[p.325] Article 31 -- Neutral or other States not Parties to the conflict


[p.326] General remarks

1134 The first Convention (Article 37 ) and the Second Convention (Article 40 ) contain a similar article about flights over neutral countries (1) by medical aircraft, landing in such countries and the consequences. On the other hand, the question of overflight and landing by ' civilian ' aircraft is not broached in the Conventions.

1135 Article 31 is aimed at extending the benefits of the Conventions to ' civilian ' medical aircraft which, under the régime of the Protocols, are subject to the same [p.327] rules as military medical aircraft. Moreover, it provides certain details which were not contained in the Conventions, particularly with regard to landing.

Paragraph 1

1136 This paragraph lays down the general rules for flights over the territory or calls in the territory of a State not a Party to the conflict. These rules are similar to those laid down for medical aircraft flying over an area under the physical control of the adverse Party, (2) except that a voluntary call made under an agreement is not even considered in the territory of the latter, while it has been provided for in the context of this article. However, whether they merely want to fly over the State not a Party to the conflict or whether they wish to land or alight on water in its territory, medical aircraft can lawfully do so only if there is a prior agreement, as in the case of flights over areas under the control of the adverse Party.

1137 As the requirement of an agreement provided for in Articles 26 ' (Medical aircraft in contact or similar zones) ', 27 ' (Medical aircraft in areas controlled by an adverse Party) ', 28 ' (Restrictions on operations of medical aircraft), ' paragraph 4, the request for an agreement mentioned in this Article 31 is subject to the restrictions provided for in Article 28 ' (Restrictions on operations of medical aircraft) ', paragraphs 1-3. On the other hand, it is not subject to those provided for by Article 28 ' (Restrictions on operations of medical aircraft), ' paragraph 4, whereas prohibited search for the wounded, sick and shipwrecked being not envisageable over the territory of a State not Party to the conflict. Logically speaking, the points indicated in Article 29 ' (Notifications and agreements concerning medical aircraft), ' paragraph 1, have also to be mentioned. The rules of procedure also contained in Article 29 ' (Notifications and agreements concerning medical aircraft) ' apply either to a Party to the conflict or to a State not a Party to the conflict, when they wish to conclude an agreement, in spite of the fact that the dialogue between such States or Parties (particularly through the normal diplomatic channels) should not in principle pose any special problems.

1138 When there is an agreement about overflight or calls, medical aircraft acting in accordance with the agreement must be respected. This is self-evident, as it is the very aim of the agreement, but it obviously implies, as specifically presented in Article 29 ' (Notifications and agreements concerning medical aircraft), ' paragraph 5, that the authorities concerned must inform all the services concerned and indicate to them the means of identifying the aircraft which they are bound to ' respect, ' specifying the flights and any landing or alighting on water which they must allow without offering any obstacles.

1139 It should be noted in passing that the word "however" at the beginning of the second sentence is not very appropriate. In fact, the second sentence does not constitute an exception to the first sentence as a whole, but supplements it by being more specific. Thus the text is to be read as though this word is not there, [p.328] as the Conference did not have any intention of affecting the substance of the matter. It was merely an inaccurate use of language which was left to stand. At most it can be seen as an intention to emphasize the fact that there is no obligation to respect aircraft flying, landing or alighting on water without or in deviation from the terms of an agreement, as confirmed in the rest of the article.

1140 As in the case when they fly over "areas physically controlled by an adverse Party" or "areas the physical control of which is not clearly established", medical aircraft may be ordered to land or if need be, to alight on water, even when they are flying over the territory of a State not a Party to the conflict in accordance with a prior agreement. (3)

1141 In this situation, the responsibility for taking all measures required to guarantee a safe landing or alighting on water, which is incumbent upon a State giving the order in any case, is all the greater.

Paragraph 2

1142 The first sentence is similar to the first sentence of Article 27 ' (Medical aircraft in areas controlled by an adverse Party) ', paragraph 2.

1143 However, there are a few slight differences in the wording. We shall note in particular that no reference is made regarding the agreement without which or in breach of which the flight is carried out. But this is without substantial consequences, as this agreement, like the one mentioned in Article 27 ' (Medical aircraft in areas controlled by an adverse Party) ' is subject to the rules laid down in Article 29 ' (Notifications and agreements concerning medical aircraft). '

1144 The obligation upon the aircraft in the situation referred to in Article 27 (Medical aircraft in areas controlled by an adverse Party) is to "make every effort to identify itself and to inform the adverse Party of the circumstances". The corresponding obligation in Article 31 is to "make every effort to give notice of the flight and to identify itself". It was proposed in Committee II to replace the term ' to give notice ' in Article 31 , as some did not consider it to be very clear in this context, and no objection was raised against this proposal. (4)

1145 The fact that this term was finally retained seems to have been unintentional and not an attempt to distinguish the obligation as formulated here from that of Article 27 ' (Medical aircraft in areas controlled by an adverse Party), ' paragraph 2. In any case, there is no practical difference for the aircraft. If it gets involved in an illegal flight despite itself and is therefore in danger of being shot down, it should do all it can to inform the State or the Party over whose territory it is flying, of the circumstances.

1146 Thus there is no substantive difference between the first sentence of paragraph 2 of Article 27 ' (Medical aircraft in areas controlled by an adverse Party) ' and the corresponding provision in Article 31. (5)

[p.329] 1147 The second sentence of paragraph 2 is virtually identical to the second sentence of paragraph 2 of Article 27 ' (Medical aircraft in areas controlled by an adverse Party). ' (6) However, it should be mentioned that in relation to Article 31 , the possibility that a Stale not a Party to the conflict might resort to an attack, mentioned here specifically as it is in Article 27 ' (Medical aircraft in areas controlled by an adverse Party) ' gave rise to a debate of some significance. For this reason the paragraph was actually not adopted by consensus in Committee II, but by vote. (7)

1148 It will be noted that according to both Article 37 of the first Convention and Article 40 of the Second Convention, medical aircraft flying over the territory of a State not a Party to the conflict "will be immune from attack" only during flights that are in accordance with a prior agreement. However, the commentary on the draft presented at the Conference of Government Experts in 1972 considered the sentence containing these terms to be shocking for its brutality, and did not consider that it had a place in a humanitarian convention. (8)

1149 From the discussions in Committee II we first quote that "the word ' attack ' does not mean to shoot down", (9) that "an order to attack implied many things other than shooting down", (10) and that "an attack was only the last step in a series of measures". (11) However, it cannot be denied that the possibility of shooting down the aircraft was left open as a last resort. The fact that nowadays "a single aircraft could wipe out an entire city should be the first point to consider", according to one delegate, (12) was probably a determining factor in this respect.

Paragraph 3

1150 The first sentence indicates that in ' all cases ' where a medical aircraft of a Party to the conflict lands in the territory of a State not a Party to the conflict, the latter can subject the aircraft to inspection. Thus this applies when the aircraft lands without a prior agreement; or when it lands after an order to do so, following a flight carried out without or in deviation from the terms of an agreement. It also applies for those cases in which landing or alighting on water is provided for in the agreement, and those where the State not Party to the conflict exercises its right to order the medical aircraft to land or to alight on water, even if it was flying in accordance with an agreement. (13) Thus a medical aircraft of a Party to the conflict flying over the territory of a State not Party to the conflict should know that it may at any time be subject to inspection and this possibility should be one more important deterrent discouraging the wrongful use of such aircraft. When [p.330] a medical aircraft landing on the territory of a State not a Party to the conflict has not done anything wrong, it is quite clear, as the text shows, that such a State has the option to carry out an inspection, but is not obliged to do so.

1151 On the other hand, it might seem that the law of neutrality could impose some obligation to carry out an inspection when the aircraft which has landed, has done so either on its own initiative without a prior agreement, or had been ordered to do so following a flight made without or in deviation from the terms of an -- agreement. In fact, in such cases the risk that the aircraft has abused the distinctive emblem for military purposes is greater. It will be found that the Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 18 October 1907 particularly prescribes for neutral Powers (which should be understood to mean all "neutral and other State not Party to the conflict" in the sense of the Protocol) that they should not tolerate in their territory movements of foreign troops or convoys of ammunition or supplies, or even the erection of "a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea" (cf. Articles 2 , 3 and 5 of that Convention). (14) Thus to carry out an inspection in such cases seems to be an elementary precaution for a State not Party to the conflict, as the only means that can ensure that it is fulfilling its obligations under the law of neutrality. Moreover, in this respect reference can be made to Article 14 of the above-mentioned Hague Convention, which permits a neutral Power to authorize the passage over its territory of convoys of the sick and wounded on condition that they include "neither personnel [i.e., able-bodied personnel] nor war material" and that "whatever measures of safety and control are necessary for the purpose" are taken.

1152 As regards the inspection, this should have a very specific aim, namely, ' to determine whether it is in fact a medical aircraft. ' It must be limited to this purpose and investigations made for other purposes, such as, for instance, commercial ones, would be wrong.

1153 As regards the question of determining whether the aircraft is in fact a medical aircraft, this was examined above. (15)

1154 As compared with inspections under Article 30 ' (Landing and inspection of medical aircraft), ' paragraphs 3 and 4, two of the three points listed are left out. There is no requirement to ascertain, firstly, whether the aircraft is in violation of the conditions prescribed in Article 28 ' (Restrictions on operations of medical aircraft) '; and secondly, whether it has flown without or in breach of a prior agreement.

1155 The fact that Article 28 ' (Restrictions on operations of medical aircraft) ' is not mentioned is without important consequences. Paragraph 1 and to some extent paragraph 2 apply principally to the relations between a medical aircraft belonging to a Party to the conflict and the adverse Party. As regards paragraph 4, the text itself indicates that it refers only to flights in contact or similar zones [p.331] or in areas physically controlled by the adverse Party. However, aircraft flying over neutral territory as a convenient way of reaching enemy territory in order to collect or transmit intelligence data, is not only prohibited by Article 28 ' (Restrictions on operations of medical aircraft), ' paragraphs 1 and 2, but is also a breach of the law of neutrality. Further, aircraft carrying equipment intended for collecting or transmitting intelligence data, as prohibited by Article 28 ' (Restrictions on operations of medical aircraft), ' paragraph 2, and carrying other armaments than those listed in Article 28 ' (Restrictions on operations of medical aircraft) ', paragraph 3, would no longer even be covered by the definition of medical aircraft (16) as set out in Article 8 ' (Terminology), ' sub-paragraphs (f), (g) and (j). Thus the conclusion of the inspection would be that the aircraft is not a medical aircraft, with all the attendant consequences.

1156 On the other hand, the fact that there is no requirement that one of the aims of the inspection should be to verify whether the aircraft has made the flight without or in violation of the terms of the agreement constitutes a significant difference as compared with the inspection provided for in Article 30 ' (Landing land inspection of medical aircraft) '. As the final sentences of this paragraph confirm, it shows that unlike a Party to the conflict which has in its power a medical aircraft belonging to the adverse Party, a State not Party to the conflict does not have the right to seize a medical aircraft for the sole reason that it has flown over its territory or has landed there without or in violation of the terms of an agreement. The obviously very different relations between a Party to the conflict and the adverse Party, compared with those between a Party to the conflict and a State not Party to the conflict, justify this relaxation of the rule.

1157 ' The second, third and fourth sentences ' of the paragraph, which determine the manner in which the inspection should be carried out in order to safeguard the condition of the wounded and sick as far as possible, are similar to the second, third and fourth sentences of Article 30 ' (Landing and inspection of medical aircraft) ', paragraph 2. (17) The only difference between these two articles on this subject lies in the reference in Article 31 to the "Party operating the aircraft", whose wounded and sick shall not be removed from it unless their removal is essential for the inspection. In fact, these three rules of procedure have the sole aim, as we have already recalled several times, of safeguarding the condition of the wounded and sick. This is included in Article 31 taking into account the fact that, as a general rule, the other wounded and sick have to be removed from the aircraft in any case, and that it is therefore preferable to take them immediately to somewhere adequately equipped for their care. The reason for this provision is to avoid as far as possible any pointless transportation of the wounded and sick. Thus, under Article 31 every effort should be made to avoid removing the wounded and sick from the aircraft unless such removal is justified by the inspection or by their condition. This applies just as much to Article 30 ' (Landing land inspection of medical aircraft) ', as it applies to Article 31 . The wounded and sick should, therefore, depending on each individual case, stay on board or should [p.332] have the choice to remain in the aircraft if it is allowed to continue the flight at the end of the inspection.

1158 ' The fifth and sixth sentences ' determine the fate of the aircraft and that of its occupants.

1159 We will first examine the case of the aircraft. "If the inspection discloses that the aircraft is in fact a medical aircraft" in the sense of the Protocol, it must in any case be allowed to continue the flight. As mentioned above, the fact that it has flown over the territory of a State not Party to the conflict, or landed on such territory, without permission or in violation of an agreement, is not a sufficient reason to detain it. On the other hand, there is nothing to prevent the State not a Party to the conflict from making a protest to the Party to which the aircraft belongs, and to take all possible steps to prevent such an incident occurring again, particularly if the flight over its territory was not justified by ' force majeure, ' but resulted from a decision taken deliberately. An aircraft permitted to leave will be given "reasonable facilities" for the continuation of the flight, i.e., as far as possible, it will be given all the technical help needed for the safety of the flight. Although not explicitly stated, a State allowing an aircraft to leave must also give the appropriate medical assistance to ensure the adequate treatment of the wounded and sick during the flight as far as it is able to do so. This obligation follows, in particular, from Article 19 ' (Neutral and other States not Parties to the conflict).' (18)

1160 If the inspection discloses that the aircraft "is not a medical aircraft" in the sense of the Protocol, it ' must ' be seized. Thus this provision is stricter than that laid down in Article 30 ' (Landing and inspection of medical aircraft) ' which, in a similar situation, leaves the adverse Party to that to which the medical aircraft belongs, the ' choice ' whether or not to seize the aircraft. The reason for this difference is perfectly logical. In the case where the adverse Party detains the aircraft there is only a bilateral relationship. There is nothing in humanitarian law that aims to prevent a Party to the conflict from being more generous vis-à-vis the adverse Party than the law prescribes. On the other hand, when the aircraft is in the hands of a State not Party to the conflict, there is a trilateral relationship. By acting too liberally vis-à-vis one Party to the conflict, the State not Party to the conflict would put the other Party at a disadvantage. Moreover, the possibility of choosing could place such a Party in an embarrassing situation vis-à-vis one or other of the Parties to the conflict. For this reason there is an obligation to seize the aircraft in the situation envisaged here. It will be shown, for that matter, that paragraph 5 of this article is concerned with the same problem. (19) Moreover, it is worth noting that this rule also flows from Article 5 of the 1907 Hague Convention V, on neutrality.

1161 We will now deal with the delicate problem of the fate of the passengers.

1162 If the aircraft is permitted to continue its flight it may do so "with its occupants, other than those who must be detained in accordance with the rules of international law applicable in armed conflict". Thus it is the duty of States not [p.333] Parties to the conflict to detain certain occupants. However, the question could also be asked whether the other occupants should be obliged to continue the flight.

1163 The "rules of international law applicable in armed conflict" referred to here are the relevant provisions of the above-mentioned Hague Convention (20) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. Reference is also made indirectly to it in Articles 37 of the first Convention and 40 of the Second Convention. (21)

1164 Article 14 of this Hague Convention deals with the passage over neutral territory of "the sick and wounded belonging to the belligerent armies". The provisions of that article should apply here by analogy. Nevertheless, one might wonder whether a distinction should not be made between aircraft which have landed without an agreement or because they have been ordered to do so, following a flight carried out without or in violation of the terms of an agreement, and aircraft which have been ordered to land for verification purposes, even though they were flying in accordance with an agreement. In fact, in the latter case, the decision whether or not to order the aircraft to land is left to the discretion of the State not Party to the conflict, and at first sight it might seem inequitable that the fate of some of its occupants should depend on such discretionary power. However, the deliberations in Committee II did not show any intention of making such a distinction. Moreover, Parties to a conflict which conclude an agreement for overflight of territory of a State not Party to the conflict by a medical aircraft know that such aircraft may be ordered to land. (22) Finally, a State not Party to the conflict should act in the same way vis-à-vis all the belligerents. (23) For all these reasons it must be admitted that Article 14 applies by analogy in all cases where a medical aircraft belonging to a Party to the conflict lands in the territory of a neutral State.

1165 Article 14 , which deals only with the military wounded and sick, makes two requirements of a State not Party to the conflict. First, to guard the wounded and sick of the adverse Party to that to which the aircraft belongs. Thus it must guard such wounded, sick and shipwrecked persons who would otherwise become prisoners of war. Secondly, it must guard the wounded and sick of the Party to which the aircraft belongs, if these are committed to its care, i.e., in practical terms, those whom the captain of the aircraft, after consulting medical personnel, considers are unable to endure the continuation of the flight. In the first case it therefore depends on a control to be carried out by the State not Party to the conflict whether they stay behind. In the second case it depends on the decision of the captain of the aircraft. All wounded, sick and shipwrecked persons who remain behind must be guarded by the State not Party to the conflict "so as to ensure their not taking part again in the military operations". (24) Insofar as the [p.334] State not Party to the conflict is a Party to the first Convention and to Protocol I, the relevant provisions of these instruments will be applied to them by analogy. (25)

1166 Except for one specific category which is discussed below, other occupants of the aircraft are not comparable to the persons referred to in the Hague Convention, and it would be abusive to apply this Convention by analogy. With regard to such persons, it suffices to say that they are not covered by the law of neutrality but by the rules of human rights law and by the national legislation of the State where the persons concerned are situated. Thus the determining factor should be the free will of the persons involved. The medical aircraft does not enjoy extraterritorial rights and the crew have no right to detain the occupants against their will.

1167 With regard to civilian wounded or sick who are unable to express their will, but whose condition does not require them to be removed from the aircraft, a logical approach should be adopted. If their nationality is that of the Party to which the aircraft belongs, they should continue the flight. If their nationality is that of the adverse Party, they should be removed from the aircraft. If they are nationals of the State not Party to the conflict on the territory of which the aircraft has landed, they will obviously be removed from the aircraft, but, if they are nationals of another State not Party to the conflict, their fate should be determined in agreement between the captain of the aircraft and the authorities of the State on the territory of which the aircraft has landed.

1168 A State not Party to the conflict is under an obligation to care for the civilian wounded and sick removed from the aircraft and to treat them humanely, but unlike the provisions laid down with regard to the military wounded and sick, there is no obligation to keep them until hostilities have ended. The civilian wounded and sick may request repatriation, particularly through the diplomatic representation of their country. They may also seek asylum in the State in whose territory they have landed, or in another State.

1169 For the sake of completeness, one special case should be mentioned, namely, members of the crew seeking asylum in a State not Party to the conflict. It was shown above that all members of the crew are considered to be medical personnel in the sense of the Protocol. However, in this case it is necessary to make a distinction between military medical personnel and civilian medical personnel. (26) Those belonging to the first category -- who would therefore be deserting -- should be treated as members of the armed forces seeking refuge in the territory of a State not Party to the conflict, (27) and be interned until hostilities have ended. In fact, it would appear incompatible with the law of neutrality to allow them to reach the adverse Party. When hostilities have ceased, they will remain free to seek asylum wherever they wish, unless they are suspected of any war crimes.

[p.335] 1170 On the other hand, someone who is a member of the civilian medical personnel should be treated like any other civilian. In any case, the law of neutrality does not impose any obligation on a State not Party to the conflict to hold him until hostilities have ceased.

1171 When the inspection discloses that the aircraft is not in fact a medical aircraft in the sense of the Protocol, it must be seized as mentioned above. All the occupants will therefore be disembarked in the territory of the State not Party to the conflict and their fate is determined by paragraph 4 of this article.

Paragraph 4

1172 This paragraph deals with the fate of the wounded, sick and shipwrecked disembarked in the territory of a State not Party to the conflict with the exception of those who are disembarked temporarily (i.e., the wounded and sick who are disembarked while they are waiting for the aircraft to continue its flight because of their condition and local circumstances).

1173 The various categories of persons who may be disembarked in the event that the aircraft is permitted to continue its flight were outlined above. If the aircraft is seized, what was said with respect to paragraph 3 continues to apply for those concerned. A few additional remarks should be made regarding the fate of other occupants.

1174 All the military wounded, sick and shipwrecked of the Party to which the aircraft belongs are in the same situation as those entrusted to the State not Party to the conflict when the aircraft is permitted to continue its flight, a situation which was examined above. Thus they must be held "in such a manner that they cannot again take part in the hostilities". As regards other military wounded, sick and shipwrecked, it was shown above that they must in any case be held in this way.

1175 As was also mentioned above, the law of neutrality does not impose an obligation to hold the civilian wounded, sick and shipwrecked. These will be repatriated or sent to the State of their choice (if this State will accept them) provided that their condition allows it.

1176 As regards the crew, the special case in which crew members refused to continue the flight, even though the aircraft had permission to do so, was discussed above. In the event that the aircraft is seized, the whole crew falls into the hands of the State not Party to the conflict. In this respect there is an omission in Article 31 , as it does not deal with this problem. It should therefore be dealt with on the basis of the principles of international humanitarian law and the law of neutrality, and by applying the existing rules by analogy.

1177 In the situation discussed here, the aircraft is not really a medical aircraft in the sense of the Protocol, since this is the only reason for which it can (and must) be seized by the State not Party to the conflict. Members of the crew who consciously participated in what constitutes an abuse of the emblem no longer enjoy the status of medical personnel. With regard to civilians, this also constitutes a punishable breach for them. By analogy, Article 11 of the above-mentioned Hague Convention should be applied to these persons. Thus they should be interned [p.336] until hostilities have ceased, without prejudice to their being put on trial, which is compulsory if they are found to have committed a grave breach of the Conventions or of the Protocol. (28)

1178 In our opinion, the fate of those members of the medical personnel who can clearly be shown not to have been involved in abuse of the distinctive emblem should be as follows: civilian medical personnel will be repatriated like any other civilians in this situation, if they express the wish to be repatriated. Members of permanent military medical personnel will also be repatriated if they wish, in the way that such personnel must be repatriated when they fall into enemy hands. (29) The possibility given in Article 28 of the first Convention for a Party to the conflict to compel such personnel to remain behind insofar as they are needed to care for the wounded and sick of the Party to the conflict to which they belong, should not be applied by analogy to a State not Party to the conflict. Finally, temporary military medical personnel have to be treated as members of the armed forces of a Party to the conflict entering neutral territory (30) and must be interned until hostilities have ceased.

1179 Paragraph 4 adds two elements which are worthy of note. The obligation imposed upon a State not Party to the conflict to detain some categories of persons may be lifted or modified if so agreed between ' that State and the Parties to the conflict. ' This clearly means that each time there must be agreement between all three Parties (State not Party to the conflict and the two belligerent Parties). Thus, for example, if a State not Party to the conflict wishes to set free nationals of a Party to the conflict, whom it is supposed to detain until hostilities have ceased, before such time, it must not only have the agreement of the Party to which such persons belong (which will presumably grant permission very easily), but also that of the adverse Party. Such agreements can be envisaged particularly on the basis of reciprocity when nationals of both sides are interned in a State not Party to the conflict.

1180 The second new element mentioned in paragraph 4 concerns the "cost of hospital treatment and internment", which "shall be borne by the State to which those persons belong". This is in accordance with the above-mentioned Hague Convention of which Article 12 , paragraph 2, provides that: "At the conclusion of peace the expenses caused by the internment shall be made good". Nevertheless, there is nothing to indicate here that the debt need not be settled until there is peace, and in general the Parties to which the interned persons belong (31) should cover the expenses caused by such persons regularly, in such manner as may be agreed upon with the State not Party to the conflict. Finally it is clear that this obligation is related only to persons who ' must be interned ' by the State not Party to the conflict and not such persons as it may have granted temporary or permanent asylum.

[p.337]
Paragraph 5

1181 This paragraph is important for States not Parties to the conflict. In the tense international situation which exists when an international armed conflict takes place on the borders of such a State, it is essential that it should not be open to the accusation of favouring one belligerent to the disadvantage of the other. The danger of such accusations and the possibility that they might have dramatic consequences should encourage the State not Party to the conflict to do all it can to avoid an ambiguous attitude.

1182 The case under consideration here concerns the facilities accorded for passage of medical aircraft of the Parties to the conflict over its territory, or for the landing or alighting on water of such aircraft. Paragraph 5 lays down an obligation to apply "equally to all Parties t the conflict" any conditions and restrictions in force in this respect. (32) Of course, this does not mean that a State not Party to the conflict is obliged to allow exactly the same number of medical aircraft of each of the Parties to fly over its territory. However, it should consider all requests for agreements, from whatever Party they come, in the same way. The procedures it demands in such agreements, the degree of verification that it imposes on such flights, should also be the same for each of the Parties to the conflict. As regards inspection on the ground, the fate of the aircraft and that of its occupants, it has already been shown that the same rules apply to aircraft of each of the Parties.

' Y.S. '


NOTES

(1) [(1) p.326] For the exact meaning of the expression "neutral and other States not Parties to the conflict", cf. commentary Art. 2, sub-para. (c), supra, p. 61. For the sake of simplicity, the term "States not Parties to the conflict" is used below to cover the whole expression;

(2) [(2) p.327] On this, cf. commentary Art. 27, supra, p. 293;

(3) [(3) p.328] For the reason for this provision, cf. commentary Art. 30, para. 1, supra, p. 316;

(4) [(4) p.328] Cf. O.R. XI, pp. 545-546, CDDH/II/SR.48, paras. 39-41 and 43;

(5) [(5) p.328] On this subject, cf. commentary Art. 27, supra, pp. 295-296, which ' mutatis mutandis ' also applies here;

(6) [(6) p.329] Again, cf. commentary Art. 27, supra, pp. 296-298;

(7) [(7) p.329] Cf. O.R. XII, p. 259, CDDH/235/Rev.1, para. 37;

(8) [(8) p.329] CE 1972, ' Commentary, ' Part I, p. 58 (Art. 29, paras. 1-3);

(9) [(9) p.329] O.R. XII, p. 35, CDDH/II/SR.58, para. 34;

(10) [(10) p.329] Ibid., para. 36;

(11) [(11) p.329] Ibid., p. 36, para. 44;

(12) [(12) p.329] Ibid. p. 33 para. 19;

(13) [(13) p.329] Cf. para. 1, last sentence, and the commentary thereon, supra, p. 328;

(14) [(14) p.330] It is generally agreed that a large part of this convention now constitutes customary international law;

(15) [(15) p.330] Cf. commentary Art. 30, para. 3, supra, p. 319;

(16) [(16) p.331] Cf. commentary Art. 28, supra, p. 299;

(17) [(17) p.331] On this subject, cf. commentary Art. 30, supra, pp. 317-319;

(18) [(18) p.332] On this subject, cf. commentary Art. 19, supra, p. 237;

(19) [(19) p.332] Cf. infra, p. 337;

(20) [(20) p.333] Cf. supra, p. 330;

(21) [(21) p.333] Cf. ' Commentary I, ' p. 296;

(22) [(22) p.333] Cf. supra, p. 328;

(23) [(23) p.333] Cf. commentary para. 5, infra, p. 337;

(24) [(24) p.333] In some cases they may be repatriated before hostilities have ceased. On this subject, cf. Third Convention, Part IV, Section I, in particular Art. 110;

(25) [(25) p.334] Cf. Art. 4, First Convention and Art. 19, Protocol I;

(26) [(26) p.334] On this subject, also cf. commentary Art. 15, supra, p. 189;

(27) [(27) p.334] Cf. Art. 11 of the above-mentioned Hague Convention;

(28) [(28) p.336] On this subject, cf., in particular, Arts. 49-50 of the First Convention, and ' Commentary I, ' pp. 350-372, as well as Art. 85 of the Protocol and the commentary thereon, infra, p. 989;

(29) [(29) p.336] Cf. Art. 28 of the First Convention;

(30) [(30) p.336] Cf. Art. 11 of the above-mentioned Hague Convention;

(31) [(31) p.336] Although it is not mentioned in the text, this need not necessarily be a State in the context of Protocol I: cf., in this respect, Art. 1, para. 4;

(32) [(32) p.337] This is merely a reflection, for that matter, of a general obligation arising from the law of neutrality;