Traités, États parties et Commentaires
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Commentaire of 2016 
Article 37 : Flight over neutral countries. Landing of the wounded and sick
Text of the provision*
(1) Subject to the provisions of the second paragraph, medical aircraft of Parties to the conflict may fly over the territory of neutral Powers, land on it in case of necessity, or use it as a port of call. They shall give the neutral Powers previous notice of their passage over the said territory and obey all summons to alight, on land or water. They will be immune from attack only when flying on routes, at heights and at times specifically agreed upon between the Parties to the conflict and the neutral Power concerned.
(2) The neutral Powers may, however, place conditions or restrictions on the passage or landing of medical aircraft on their territory. Such possible conditions or restrictions shall be applied equally to all Parties to the conflict.
(3) Unless agreed otherwise between the neutral Power and the Parties to the conflict, the wounded and sick who are disembarked, with the consent of the local authorities, on neutral territory by medical aircraft, shall be detained by the neutral Power, where so required by international law, in such a manner that they cannot again take part in operations of war. The cost of their accommodation and internment shall be borne by the Power on which they depend.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2479  New in 1949, Article 37 represented an advance in international humanitarian law. For several years prior to that, the ICRC, faced with certain specific cases, had felt that a provision regulating the flight of medical aircraft over neutral territory was needed.[1] The article is an accommodation between two vital interests: considerations of humanity and the requirement to facilitate care of the wounded and sick during armed conflict, on the one hand, and the rights of neutral Powers, on the other hand.
2480  During an armed conflict, a belligerent Power with the necessary capabilities may seek to move its wounded and sick personnel expeditiously by air from the front line to a hospital in its own territory or elsewhere. The most direct route to a hospital – one that minimizes flight time and maximizes the chances of the wounded reaching life-saving treatment in time – may pass through the airspace of a neutral Power, i.e. a State which is not a Party to the international armed conflict in question.[2]
2481  In such a scenario, absent another international law provision to the contrary, the neutral Power would have the absolute right to deny the passage of the medical aircraft, notwithstanding the potential human suffering engendered by disallowing the flight through its airspace.[3]
2482  Central to the issue is a long-standing principle of international law, codified in Article 1 of the 1907 Hague Convention (V), that ‘[t]he territory of neutral Powers is inviolable’. This provision, specific to the law of neutrality, is in line with the general rule of international law that any entry into national airspace or territory is subject to the prior authorization of the State concerned.
2483  It might also happen that a belligerent Power’s medical aircraft, without initially having planned to do so, enters neutral airspace owing to inclement weather or mechanical failure or because a patient on board is suffering severe complications. In this scenario, also absent international law provisions to the contrary, the neutral Power might be tempted to interpret the absolute inviolability of its territory and the restrictions flowing from the law of neutrality as licence to deny the aircraft’s passage through its airspace, or to refuse it permission to land in its territory.
2484  In both of the above scenarios, the humanitarian imperative of expeditiously transporting the wounded and sick to medical facilities is in direct conflict with the neutral Power’s sovereignty and its concomitant right to exclude entry to aliens. The need to reconcile these two competing interests had been apparent since the discussions in 1907 on the wording of Article 14 of the Hague Convention (V) and of Article 15 of the Hague Convention (X).[4] Article 37 of the First Convention extends the accommodation between these interests to air transport. The provisions of Article 37 have since been further clarified, and expanded upon, in Article 31 of Additional Protocol I.[5]
2485  Lastly, for a certain number of States, it must be emphasized that air ‘casualty evacuation’ has evolved since 1949 to play a central role in the collection, evacuation and care of the wounded and sick during armed conflict. Such operations are no longer confined to the initial transfer of the casualty from the tactical engagement area to a forward-deployed medical treatment facility. Many armed forces rely on fixed-wing air capabilities to transport casualties to permanent medical facilities, often situated far from the battlefield. Getting the wounded and sick to these facilities may necessitate extensive flight through the airspace of neutral Powers.[6] The coordination of such transit and the setting of clear rules to avoid uncertainty as to the status of medical aircraft while they transit neutral airspace is therefore essential if the humanitarian objectives of the Convention are to be fulfilled.
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B. The law of neutrality and medical aircraft
2486  The law of neutrality plays a vital role in the regulation of international armed conflicts by establishing the rights and obligations of neutral Powers, on the one hand, and the belligerent Parties, on the other hand. International customary and treaty law imposes an obligation on neutral Powers to prevent the use of their territory and the airspace above by the Parties to the conflict for any military purpose.[7] It is self-evident that the use of neutral airspace by military aircraft of the belligerent Powers would amount to a breach of the neutrality obligation, and is therefore prohibited.[8] Failure to comply with this obligation may result in the belligerent Powers taking measures to prevent opponents from benefiting from access to neutral territory for military purposes.[9] It is nonetheless accepted that use of neutral airspace by Parties to an international armed conflict to transport the wounded and sick is not a violation of the law of neutrality by any of the States involved. This is so because such transport cannot be considered as serving a military role as its sole purpose is to alleviate the suffering associated with armed conflict.
2487  Article 37 aims to reconcile the obligation of the neutral Power to prevent abuse of its territory for military gain with the humanitarian objective of enabling the evacuation of the wounded and sick by the fastest means possible, which is most likely to be by air. Accordingly, the article explicitly applies not only to the Parties to an armed conflict, but also to neutral Powers. On the basis of Article 4 of the First Convention, the latter ‘shall apply by analogy the provisions of the [First] Convention to the wounded and sick, and to members of the medical personnel … of the armed forces of the Parties to the conflict, received or interned in their territory’. Neutral Powers are therefore obliged to respect and protect the wounded and sick and the medical personnel of Parties to the conflict in their otherwise inviolable territory. Other conventions have similarly mentioned the right of a neutral Power to allow the wounded and sick to transit its territory, under certain restrictions designed to protect the said Power’s neutrality and to prevent the Parties to the conflict from abusing the neutral territory for logistical purposes.[10]
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C. Historical background
2488  The 14th International Conference of the Red Cross, held in Brussels in 1930, requested that the matter of medical aircraft flying over neutral territory be regulated. An informal proposal was subsequently developed whereby medical aircraft should be allowed to cross neutral airspace freely, provided that the neutral Power concerned was able to exercise a right of control similar to that exercised by a belligerent Power over enemy medical aircraft flying above its territory.[11]
2489  Based on this proposal, the Preliminary Conference of National Societies in 1946 recommended that the First Convention include an article analogous to Article 14 of the 1907 Hague Convention (V).[12] This idea was accepted by the 1947 Conference of Government Experts on the cumulative condition that the neutral Power was previously notified of the passage of a medical aircraft over its territory and that the medical aircraft obeyed any summons to land.[13]
2490  The draft approved by the 1948 Stockholm Conference maintained these ideas, while adding that the neutral Power was entitled to formulate, and apply (if it did so equally for all the Parties to the conflict), conditions or restrictions on the passage of medical aircraft through its airspace.[14] A proposal put forward during the 1949 Diplomatic Conference to relax these conditions was unsuccessful.[15]
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D. Paragraph 1: Conditions for a medical aircraft to fly over, or land in, the territory of a neutral Power
2491  Although Article 37 reflects an effort to advance the humanitarian purpose of protecting the wounded and sick, it also reflects the need to preserve the rights of neutral Powers. As a result of these competing considerations, it was not possible to impose an unconditional obligation on a neutral Power to allow the flight, over its territory, of an aircraft qualifying as a medical aircraft.[16] At the same time, it was not considered feasible to allow neutral Powers plenary authority to grant or deny medical aircraft use of their airspace.
2492  The agreed solution was to adopt a general rule permitting medical aircraft of a belligerent Power to fly over the territory of a neutral Power, land in case of necessity, or use it as a port of call.[17] Article 37 gives neutral Powers the assurance that allowing medical aircraft to fly over, or land in, their territory does not violate the law of neutrality, while also giving them the right to place restrictions or conditions on those aircraft.
2493  According to Article 37(1), medical aircraft may ‘fly over the territory of neutral Powers’, i.e. through their national airspace. Interpreted in the context of the relevant provisions of international law, the term ‘airspace’ refers to the national airspace over land areas, internal waters, and the territorial sea.[18]
2494  Moreover, medical aircraft may use the territory of a neutral Power ‘as a port of call’, i.e. as a stopover before pursuing their journey, for example to transfer the wounded and sick from one aircraft to another or to refuel.[19] In such cases, the rights and obligations flowing from Article 4 come into play.
2495  Article 37(1) imposes three express, and cumulative, conditions on the use of neutral airspace by belligerent Powers, all of which are derived from Article 36.
2496  First, belligerent Powers whose medical aircraft wish to pass safely through the national airspace or land in the territory of a neutral Power must give the latter notice of this intent. Article 37 does not indicate exactly how, when, by whom or to whom such notice must be given. This seems to allow maximum flexibility in complying with this obligation, while requiring good faith on the part of the belligerent Power in ensuring that the neutral Power’s competent authorities have truly received the notice. Once notice has been given, Article 37 contains no explicit requirement for the Power operating the medical aircraft to wait until the neutral Power confirms receipt of the notice. However, barring emergency situations, the need to wait for confirmation is implicit in Article 37(2), which allows the neutral Power to place conditions or restrictions on the passage or landing. In keeping with the general obligation to implement treaties in good faith, the pre-planned versus time-sensitive nature of such intrusions into neutral airspace should guide the level of authority and timing of the notice, providing the neutral Power with every opportunity (and obligation) to respond to the notice. As indicated by the text of Article 37(1), landing in the territory of a neutral State is only authorized ‘in case of necessity’, i.e. it cannot merely be a matter of convenience or preference. The ‘necessity’ may relate to factors such as the aircraft’s technical needs, as it may also relate to the medical needs of the wounded and sick.
2497  Second, medical aircraft must obey any summons to land issued by the neutral Power.[20] Such a summons could be exercised by the neutral Power for the purpose not only of inspecting the aircraft, but also for the purpose of complying with its obligations flowing from the law of neutrality. As with the first condition, Article 37 does not indicate by whom or when such summons must be issued. However, it stands to reason that, like the belligerent Power, the neutral Power also has an obligation to use good faith in resorting to this provision. Accordingly, such summons should be issued as promptly as feasible in the prevailing conditions and in a manner that maximizes the opportunity for the aircraft to heed the demand.[21] If a medical aircraft is issued with a summons to land, the officer in charge may be hesitant to comply, for example because of concerns that the condition of the wounded and sick could be adversely affected by the delay or that they could be interned by the neutral Power.
2498  As noted below, overflight of a neutral Power’s territory by a medical aircraft will ideally occur pursuant to a prior agreement with all the Parties to the conflict. If authorized by such agreement (in other words, the opposing belligerent Power had previously agreed to allow continuation of the flight based on the assurances of the aircraft commander to the authorities of the neutral Power), the neutral Power may grant a request from the officer in charge to continue the flight. Granting such a request does risk conflicting with the neutral Power’s international legal obligation to prevent use of its territory by Parties to a conflict for military purposes, as the neutral Power would have to take the aircraft commander’s word as to the nature of the occupants and cargo. To reconcile humanitarian interests with its neutrality obligations, the neutral Power may nonetheless order landing and inspection as a precondition for allowing the flight to resume. Even if overflight takes place pursuant to a prior agreement, compliance with a request to land would be required. Ultimately, therefore, including within an agreement between the belligerent Powers and the neutral Power, a ‘continuation of flight’ provision based on the assurances of the aircraft commander will not completely eliminate the possibility of a summons to land for inspection, but it substantially reduces the likelihood of it happening. In essence, therefore, the agreement reached for each specific case will be the framework in which to assess the question of whether the neutral Power remains entitled to summon the medical aircraft to land for inspection purposes.
2499  Lastly, as specified in the third sentence of Article 37(1), medical aircraft are protected from attack, both by the neutral Power and the Parties to the conflict, only when flying on routes, at heights and at times specifically agreed upon between the Parties to the conflict and the neutral Power.[22] The wording of this requirement mirrors the wording of Article 36(1).
2500  The relationship between the first and the third sentences of Article 37(1) needs to be carefully analysed. Based on the first sentence, medical aircraft have a right to fly over, or land in, neutral territory. Yet, according to the third sentence, their immunity from attack depends on a prior agreement. Implementation of the requirement to obtain an agreement, as provided for in the third sentence, may not negate the right granted by the first sentence.
2501  The agreement referred to in the third sentence of Article 37(1) will be in the form of a special agreement in the sense of Article 6 of the Convention. The wording ‘between the Parties to the conflict and the neutral Power concerned’ does not necessarily imply that the agreement must be multilateral, i.e. between the neutral State and all the Parties to the international armed conflict. A bilateral agreement, i.e. between the neutral Power and the Party to the conflict concerned, will suffice.[23]
2502  Lastly, allowing the overflight of a medical aircraft of a Party to an armed conflict without a prior agreement does not amount to a violation of the neutral Power’s duties under the law of neutrality. Granting such permission cannot be considered to have given the Party to the conflict a military advantage as it is motivated purely by humanitarian considerations.
2503  It must be noted that the prior agreement requirement is a controversial aspect of Article 37, as it may be read by some to imply that, in the absence of such an agreement, the neutral Power has the right to take all measures deemed necessary to prevent use of its airspace by medical aircraft that fail to comply with this requirement.[24] As indicated above, this could potentially negate the right conferred by the first sentence of Article 37(1). At the same time, while the right conferred by the first sentence stands as such, it is clear that the agreement referred to in the third sentence provides the most comprehensive protection against attack or against any other measure that might interfere with the flight of the aircraft. Therefore, with regard to this last condition, it must be emphasized that, consistent with the provisions of Article 36, an attack against such aircraft, even when flying without a prior agreement or deviating from prearranged conditions, should always be considered a measure of last resort to protect the sovereign interests of the neutral Power.
2504  Furthermore, while the law of neutrality dictates whether or not the neutral Power may act to prevent unauthorized overflight of its territory by a medical aircraft, any attack against such an aircraft by the neutral Power must comply with the applicable rules of international humanitarian law. In particular, the terms ‘immune from attack only when flying on routes’ agreed upon, as used in the third sentence of Article 37(1), in no way releases the neutral Power from its obligation to respect the rules on the conduct of hostilities, such as those restricting attacks to military objectives and those requiring the taking of all feasible precautions in attack. Accordingly, as an aircraft exclusively engaged in a medical (transport) activity does not qualify as a military objective, deliberately attacking such an aircraft, even once it has violated the sovereignty of the neutral Power, must be considered unlawful if the neutral Power is aware or should have been be aware of the status of the aircraft.
2505  The rule regarding overflight by a medical aircraft of the territory of a neutral Power in the absence of an agreement or in deviation from the terms of an agreement has been clarified in Article 31(2) of Additional Protocol I.[25] This provision requires the medical aircraft in these circumstances to make every effort to give the neutral Power notice of its entry into its airspace, and requires the neutral Power to make all reasonable efforts to avoid having to resort to the final option of attacking it, for example by giving medical aircraft an order to land for inspection purposes.[26]
2506  Accordingly, while a special agreement between the neutral Power and the Parties to the conflict is not completely necessary for a medical aircraft to enter neutral airspace, it helps to avoid doubt by putting the neutral Power on notice of its presence and intentions. Informing the neutral Power of the flight’s times, route and altitude will minimize the risk of the neutral Power misidentifying the medical aircraft as either a military aircraft of a belligerent Power or as an unknown agent violating its sovereignty.
2507  Additionally, situations may arise in which a medical aircraft enters and/or lands in neutral territory out of necessity and without having planned to do so. Take, for example, a medical aircraft that had intended to fly around neutral territory, rendering prior agreement with the neutral Power unnecessary. However, owing to a navigational error, the aircraft inadvertently flies into neutral airspace, or is forced by mechanical fault to land in neutral territory. The same may arise because of a sudden, unexpected medical emergency for one of the patients on board. While there is no prior agreement between the belligerent Power and the neutral Power, international law prohibits the neutral Power from attacking the medical aircraft as a first resort. The neutral Power would have an independent obligation to identify the aircraft and issue it with a summons to land in order to inspect it.
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E. Paragraph 2: Equal application of conditions or restrictions
2508  Article 37(2) allows the neutral Powers to place ‘conditions or restrictions on the passage or landing of medical aircraft on their territory’. This would logically take the form of conditions or restrictions concerning route, altitude, landing, inspection or timing, or a combination of them. In keeping with the overall nature of neutrality obligations, all conditions and restrictions related to the use of neutral airspace by medical aircraft of a Party to the conflict must not only be the same for all belligerents but also, according to Article 37(2), applied equally to them all.[27]
2509  Equal application of conditions or restrictions to the medical aircraft of any belligerent Power is an important aspect of neutrality and a component of the broader equality of treatment principle inherent in the law of neutrality. A belligerent Power would be likely to consider any differentiation between it and the other belligerent Powers in the formulation or application of such conditions or restrictions to be disadvantageous treatment by the neutral Power. This in turn could result in the neutral Power’s neutrality being called into question by the belligerent Power which considers itself aggrieved.
2510  A neutral Power’s entitlement to place conditions or restrictions on the passage over or landing of medical aircraft on its territory necessarily implies a good faith obligation to facilitate such passage by formulating appropriate conditions. Accordingly, it would be inconsistent with the object and purpose of Article 37 for a neutral Power to use this entitlement to impose conditions or restrictions which, de facto, render it (next to) impossible for medical aircraft to exercise the rights conferred on them by the first sentence of Article 37(1).
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F. Paragraph 3: Actions upon the landing of medical aircraft on the territory of a neutral Power
2511  Once a medical aircraft has landed on the territory of a neutral Power, its authorities may inspect the aircraft, irrespective of the reasons for the landing. The purpose of the inspection is to verify whether the aircraft is, in fact, a medical aircraft. If this is the case, the aircraft may continue its flight. If not, it may be seized.[28] If, whatever the circumstances, the wounded and sick on board disembark with the consent of the local authorities, paragraph 3 applies; conversely, paragraph 3 does not apply if the wounded and sick remain on board.[29] For details with regard to each of those instances pertaining to an inspection, see Article 30 of Additional Protocol I.
2512  Since the neutral Power has the authority to determine whether it is necessary or not to inspect such an aircraft, it would be somewhat illogical if a medical aircraft would be summoned to land without the need for inspection. If the Party requesting the aircraft to land does not proceed to an inspection, it could be construed that the summons was issued for other, possibly unlawful, reasons. Accordingly, inspection is probable following a summons to land, but will also be lawful if exercised, for example, following an involuntary landing. Various situations may lead to the disembarkation of the wounded and sick, with the consent of the local authorities. Whatever the preceding circumstances, Article 37(3) stipulates that they ‘shall be detained by the neutral Power, where so required by international law, in such a manner that they cannot again take part in operations of war’.
2513  No precise guidance is given as to who exactly is covered by the term ‘local authorities’. In practice, which authority is entitled to consent to the disembarkation of the wounded and sick from a medical aircraft on its territory will depend on the country’s internal structure. If the wounded and sick’s medical needs require such disembarkation, for example because of the delay engendered by the inspection, it seems difficult to imagine how such consent could lawfully be denied in view of Article 4, which requires the neutral Power to ‘respect and protect’ the wounded and sick on its territory (application by analogy of Article 12).[30] As noted above, absent a special agreement permitting onward flight, Article 37 establishes what appears to be an obligation for the medical aircraft to comply with a summons to land. In such a situation, consent for disembarkation should be implied by the summons. The alternative would lead to an illogical result: the neutral Power would require the aircraft to land, prohibit onward flight because of the absence of a special agreement, and then require the occupants to remain in the aircraft, thus almost certainly causing their medical needs to remain unaddressed. The obligation on the neutral Power to detain, ‘in such a manner that they cannot again take part in operations of war’, the wounded and sick belonging to a belligerent Power who are disembarked from a medical aircraft is qualified by the words ‘where so required by international law’. These words were inserted to ensure the provision’s consistency with Article 11 of the 1907 Hague Convention (V), in which general provision is already made for the internment by neutral Powers of belligerent forces who enter its territory.[31] It is outside the scope of this commentary to examine the current status of the said article.[32] It can only be observed that, since 1907, States themselves have not publicly re-examined whether these rules still reflect the law.[33] Article 37 remains silent as to what needs to occur to the crew if they are civilians, and it has been observed that international law is not clear on this issue.[34]
2514  The objective to be achieved on the basis of the obligation applicable to the neutral Power is that the wounded and sick ‘cannot again take part in operations of war’. No guidance is given on the specific measures which need to be taken by the neutral Power in order to achieve that objective. In the Second Convention, with regard to other factual scenarios pursuant to which wounded and sick persons may end up in the hands of a neutral Power, two different formulations can be found. First, Article 15 of the Second Convention states that ‘it shall be ensured’ by the neutral Power that the wounded, sick and shipwrecked taken on board a neutral warship or a neutral military aircraft ‘can take no further part in operations of war’. In addition, Article 17(1) of the Second Convention requires that the wounded, sick and shipwrecked who are landed in a neutral port with the consent of the local authorities ‘shall … be so guarded’ by the neutral Power so that ‘the said persons cannot again take part in operations of war’. Since these are related provisions, however, despite the terminological differences, they must be interpreted to imply the same obligation.[35] Otherwise, this would lead to inconsistencies in the interpretation of these three provisions regarding essentially the same situation involving the neutral Power.
2515  The practical question these formulations raise is whether, in order to achieve the stated objective, it is necessary to deprive the persons in question of their liberty, i.e. whether the more stringent term ‘detained’ as used in Article 37(3) takes precedence with regard to the interpretation of all three provisions. During the 1949 Diplomatic Conference, it was noted that the word ‘internment’ was not mentioned. At the same time, the question was raised whether, in practical terms, this boils down to the same thing: ‘How else can you prevent people from taking part in the war if you do not intern them?’[36] Internment is non-criminal, non-punitive detention for security reasons in situations of armed conflict.[37] Internment, however, is certainly the most invasive and severe measure that can be taken to preclude persons from taking any further part in operations of war. Depending on the circumstances, however, internment may not be necessary. Wherever possible, neutral Powers must explore alternative measures, such as requesting the persons in question to submit to regular appearances at a police station or confining them to a living facility while being under electronic surveillance. For a neutral Power assessing its obligations under Article 37(3), internment should only be considered as a last resort, i.e. if it is the only way of achieving the objective.[38]
2516  Where the option of internment is absolutely necessary, and without prejudice to any more favourable treatment which the neutral Power may choose to give, the persons concerned are to be treated as prisoners of war.[39] If the option to intern is taken, the other paragraphs of both Article 11 and Article 12 of the 1907 Hague Convention (V) apply.
2517  Even where required by international law, the wounded and sick may not be detained by the neutral Power if it has been agreed otherwise (‘[u]nless agreed otherwise between the neutral Power and the Parties to the conflict’). As is the case with the agreement referred to in Article 37(1), the agreement referred to in this paragraph is not bilateral (between the neutral Power and the Party to the conflict concerned) but multilateral (between the neutral Power and all the Parties to the conflict). At all times, the neutral Power must remain cognizant of and committed to the obligations set forth in Article 4.
2518  Article 37 is silent as to the fate of any medical personnel, or dead persons, who may be on board the medical aircraft.[40] In all instances in which the wounded and sick are accommodated and interned by the neutral Power, the costs incurred are to be borne by the State on which they depend, i.e. the State that they served before coming under the jurisdiction of the neutral Power.[41] In most circumstances, this will be the State of their nationality. However, where a person fights on behalf of a State other than the State of his or her nationality, the costs of accommodation and internment are borne by the State on whose behalf he or she is fighting. In most instances, this will be their State of nationality. However, in cases where an individual fights on behalf of a State other than their State of nationality, the costs of accommodation and internment shall be borne by the State on whose behalf they fight.[42]
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Select bibliography
See the select bibliography of the commentary on Article 36 of the First Convention.

1 - As the 1929 Geneva Convention on the Wounded and Sick had not addressed this issue, it fell to law of war experts to consider what rules might apply to a medical aircraft overflying the territory of a neutral Power. Among the varying views were: that medical aircraft evacuating the wounded and sick should be able to enter and leave neutral jurisdictions freely; that medical aircraft should seek permission to enter neutral airspace; and that wounded and sick aboard medical aircraft could be subject to internment. See Edward R. Cummings, ‘The Juridical Status of Medical Aircraft Under the Conventional Laws of War’, Military Law Review, Vol. 66, 1974, pp. 105–141, at 122 (citing James Molony Spaight, Air Power and War Rights, 3rd edition, Longmans, London, 1947, p. 359).
2 - For further details on which entities qualify as a ‘neutral Power’, see the commentary on Article 4, section C.1.
3 - See Chicago Convention on International Civil Aviation (1944), Article 1: ‘The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.’
4 - See Doswald-Beck, p. 176.
5 - See also Manual on International Law Applicable to Air and Missile Warfare (2009), Rules 84 and 85, and San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), Rules 181, 182 and 183.
6 - Furthermore, in relation to Article 37 specifically, it must be noted that when such transport is an aspect of military operations conducted pursuant to a UN Security Council authorization adopted on the basis of Chapter VII of the UN Charter, the characterization of a ‘neutral’ Power may be complicated by the obligation of UN Member States to act in support of the Security Council authorization. In this respect, see Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 165.
7 - See Hague Convention (V) (1907), Articles 1 to 5, and Hague Convention (XIII) (1907), Articles 1, 2 and 5. See also Manual on International Law Applicable to Air and Missile Warfare (2009), Rules 166 and 167(a).
8 - See Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 170(a), first sentence: ‘Any incursion or transit by a belligerent military aircraft (including [an Unmanned Aerial Vehicle/Unmanned Combat Aerial Vehicle] or missile into or through neutral airspace is prohibited.’
9 - See Hague Convention (V) (1907), Article 10, and Hague Convention (XIII) (1907), Article 8. See also Manual on International Law Applicable to Air and Missile Warfare (2009), Rules 168 and 169.
10 - Hague Convention (V) (1907), Article 14.
11 - Reports and Documents for the Preliminary Conference of National Societies of 1946, pp. 42–43. See also Minutes of the Preliminary Conference of National Societies of 1946, Vol. I, pp. 113–114.
12 - Minutes of the Preliminary Conference of National Societies of 1946, p. 114.
13 - Report of the Conference of Government Experts of 1947, p. 47.
14 - Draft Conventions adopted by the 1948 Stockholm Conference, p. 44.
15 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 86–87.
16 - For an analysis of the conditions which need to be complied with for an aircraft to qualify as a medical aircraft, see the commentary on Article 36, sections C and D.1.
17 - The current text thus establishes a right of medical aircraft to overfly neutral countries, subject to the condition of a prior agreement specifying the route, altitude and time of flight. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 197.
18 - For the purpose of interpreting Article 37(1), the notion of ‘territory of neutral Powers’ excludes the airspace above straits used for international navigation, as well as the airspace above designated archipelagic sea lanes, through which medical aircraft are already entitled to fly as per the conditions set out in Articles 38(1) and 53(1)–(3) of the 1982 UN Convention on the Law of the Sea. See also Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 84.
19 - See also the definition of ‘port of call’ in Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1118.
20 - For clarification of the article provided in Additional Protocol I, see Doswald-Beck, p. 177 (‘there is … a simple reference to the duty of medical aircraft to obey a summons to land without specifying that that summons must only be for inspection’).
21 - For further details, see the commentary on Article 36, section G.
22 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 214.
23 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 295.
24 - For the scenario in which a medical aircraft flies over the territory of a neutral Power in the absence of an agreement (or in deviation from the terms of an agreement), see Additional Protocol I, Article 31(2)–(3), as well as Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 85, and San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), Rule 182.
25 - For a discussion of the impact of the rules in Additional Protocol I dealing with medical aircraft on the interpretation of the rules in the Geneva Conventions dealing with medical aircraft, see the commentary on Article 36, para. 2436.
26 - See also Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 85(a), second sentence: ‘Once the aircraft is recognized as a medical aircraft by the Neutral, it must not be attacked but may be required to land for inspection.’
27 - See also Additional Protocol I, Article 31(5).
28 - Yves Sandoz, ‘Rights, Powers and Obligations of Neutral Powers under the Conventions’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 85–108, at pp. 100–101.
29 - Addenda to the Draft Conventions submitted to the 1948 Stockholm Conference, p. 4.
30 - If dead persons are on board the medical aircraft, Article 4 of the First Convention requires the neutral Power to apply, by analogy, the provisions of the Convention applicable to the dead. The same holds true for the military medical and religious personnel on board. For details, see the commentary on that article, sections C.3.c and C.3.d.
31 - A similar rule can be found in Article 15 of the 1907 Hague Convention (X) and in Article 43 of the 1923 Hague Rules of Air Warfare.
32 - For a historical analysis, see Dwight S. Mears, ‘Neutral States and the Application of International Law to United States Airmen during World War II. To Intern or Not to Intern?’, Journal of the History of International Law, Vol. 15, No. 1, 2013, pp. 77–101. See also K.V.R. Townsend, ‘Aerial Warfare and International Law’, Virginia Law Review, Vol. 28, 1941–1942, pp. 516–527, at 518–520.
33 - The drafters of the Geneva Conventions deliberately chose not to address the substance of the law of neutrality, while cross-referring to it in a number of rules. For details, see the commentary on Article 4, para. 910 and section C.3.b.
34 - Yves Sandoz, ‘Rights, Powers and Obligations of Neutral Powers under the Conventions’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 85–108, at 101.
35 - Vienna Convention on the Law of Treaties (1969), Article 31(1): ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’
36 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 249 (Netherlands).
37 - See ICRC Opinion Paper, ‘Internment in armed conflict: basic rules and challenges’, November 2014, available at www.icrc.org/en/document/internment-armed-conflict-basic-rules-and-challenges.
38 - Conférence internationale de la Paix, La Haye, 18 May–29 July 1899, Sommaire général, Troisième Partie, Deuxième Commission, p. 80: Ce que le comité de rédaction désire, c’est que les blessés, les malades et les naufragés soient déclarés incapables de servir. Ce n’est pas une raison de les garder indéfiniment sur le territoire neutre. … C’est imposer un devoir trop lourd aux neutres que de les obliger à garder pendant toute la durée de la guerre les naufragés, blessés ou malades. Il faudrait trouver des garanties suffisantes sans exiger ce sacrifice des Puissances neutres. (The drafting committee wants the wounded, sick and shipwrecked to be declared incapable of service. This is not a reason to hold them indefinitely on the neutral territory. … This imposes too heavy a burden on neutral countries by obliging them to guard the shipwrecked, injured or sick for the duration of the war. Sufficient guarantees must be found that this sacrifice will not be required on the part of neutral Powers.)
39 - See Third Convention, Article 4(B)(2).
40 - As to their status and treatment, see the commentary on Article 4, sections C.3.c and C.3.d.
41 - See also United States, Law of War Manual, 2015, para. 9.1.2.1
42 - Similarly, see Article 15(2) of the 1907 Hague Convention (X) and Article 40(3) of the Second Convention.