The Juridical Starus of Medical Aircraft Under the Conventional Laws of War

• Author: First Lieutenant Edward R. Cummings
• Pages: 03

1. INTRODCCTIOS

In 1910, General Mooy of the Dutch Medical Corp obsemed that aircraft could be successfully used to evacuate the wounded and sick from the battlefield.' Even at this earlv date, the concept of using medical aircraft2 had a historical precedent, since during the German siege of Paris in 1870: some wounded Frenchmen aere success-fully airlifted by balloon.' By 1911, Charles Julliot published the

pmenred herein are chore of the mrhor m d doI of The Judge Adrocate GeneraPr School or

rm) Excrrr Leire Officer, lnrerniriond ABniri Diwiian. Office of The Judge Adiocare Generil, Deparment of the .Amy. 1Vsrh-mgron. DC. B A , 1972, The Johns Hopkinr Unh~rriry. Bairimare. VD, J D Candi-dire, 1971. The Gear 6 niihingron Univerncy. Wuhmgron. DC.

cu~rent propmdI on medical mrcrnfr found ~n rhe lnrwnariond Canmitree of the Rod Crorr draft pmtocol~. \lidicd iircrifr m q be ~uplmei, helicopters. airships. seaplanes. dmgabler, and m y orher R?ng machine. See Iznnz~nazrr

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Rmvnr 1.0 68-1, ar 1 !L968)Tu0 US. .Army officers conrrrucred snd Rex L plane-imbulmci in 1910 IC Forr Birnncns, Florida. For the hirrori of the US use of Righr mbulmcer, see id., SIIff. SIL dro Guiford S Soboroff. Air Eriiruriian An Hirroricd Rewew, 18 J.

ALc~rr 12, 1919, Cahixeuriar 10 !Ocrober 19711, I N ~ ~ A I I O P I U . C o n r ~ m r s

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first volume on the koa1 siacus of medical alrcraft enrirled L'A2i~tioii Smitaire Dmmr L,?'XXI:.e Conf6rewe 1~ztm~rionalde Ln Cioix- During the pre-lx-orld l!.ar I period. Jullior and other aurhori pointed OUT char man) casualt~es died because they could not be lo-cated after a battle.j' It w s proposed that aircraft or balloons be equipped mirh deiices to iluminare areas where the xounded were thought to he so thar ground rroopr could locate them' Thus. aircraft could he used t o k least find the wounded. Ir was recamired. however. thar the use of alrcraft ro search far the moundedawould perhaps be governed bv different rules Than ihose designed fur the evacuation of rhe u.ounded.' The main reason thar different rulesmight be needed was that an\- Avme vehicle could be used to observe the battlefield and thus obtain hrekpence.& This security risk was too Frat. especiallv in light of the in&easing use of balloons for mill-tar>--operarioni pr$r to ;he First IVarldtVnh the advent of rhe First Xl'orld LVar. and the increasing rec-o p d m of the potential use of medical aircraft to aid the wounded and sick.1n various arrempts to erant juridical sramr to medical aircraft mere made. In order to deieiap leva1 norms to regulate the use of aircraft in eeneral. international la\; publicists have often made analogies to $her areas of the law. such as rhe laa of the sea.': The

Rouge.

hIEDI(LU. AIRCRAFT

l a w of aerial warfare were no exception. Just as rhe 1906 Con-vention for the Amelioration of tha Condition of the Wouded and Sick nz Armies b7 the Fiel$* was later adopted in 1907 to maritime ~arfare,'~attempts were made to conrert rhe laws of land and sea warfare into a law of aerial warfare, evinced by the proposed Hague Rules of Air IVdare of IY22.l4 As this study will indicate, analogies to "hospital ships" have often been used in developing the law applicable to medical aircraft; likewise, there has been an extensive use of analogies to rhe customary international law pertaining to medical penannel and vehicles. Yet the authors who have written on the subject af medical aircraft hare generally been cautious and hare nor found juridical protection in treaty clauses that were developed far differenr facrual circumstances. As a result. there hare not been manv statements about a "customary Ian" on medical aircraft rhat is binding on all nations. Rather, It appears that the applicable law in any given siruation is rhar first developed in the 1929 Red Cross Conrention'n and later changed in three of the Geneva Conventions of 1949."

Given the sophisrication and success of modern means of eracua-tion," the importance of medical aircraft to belligerents 1s consider- 12 July 6, 1909. 35 Srat. ISS5. \\', hl~uoi,

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ISGeneir Conrenrmn for the Amolrorarron of rhe Conditmn ai rhe Wounded ODCI\~ITI

119 (1971).

md Sick of Armies m chc Field. JuI? 17, 19'9, 47 Smr. 2071, after ciied as 1919 Conrenrmnl

18 Generi Canienfion Relmve to the Proiecfmn of CIOf War, hug 12. 1W9. I19551 3 U.S.T. ,515, T1.A.S. L-0. 13for the Arneiioririon of rhe Condmon of she n'ounded mdm the Field, Aug. 12. 1949. 119~51 I US.T. 1115. T1A.S. NoContention for the .%melioiarion of the Condmon of \\mnd?d, Slck and S h p urecked Members ai .Armed Forces a See, hug. I?. lW9, 1193~1 I CS.T. 1217. TI %S. No. 3163l7On the capbhty ai urcnfr 10 e%acu%te the uounded 2nd to uaniparr rhcm li~offno Nellr Opermionr .Milimi E Nrl 66), Burera, Rmue Concepii, Before and Carlmn. MAC'S Aeromdiciil fiiicuitim MAPIDYII iSupp, Jm 1973); P Dlzcer.

Paoracolr 1x0 hrarrxr\rs Brrwmr _E Csir~o

1909 [hereinafter cited a3 M ~ u o r l st 2181 (1910).

19Con\ennon (X) for the hdiprion IO \larmme Warfare of the Principles of rhe Genela Conrenrion, Ocr 18, 1907, 36 Sfat. 21il. 2 Il.&rrar 2126 (1910)

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able, both in financial ternis and ~n remi of morale for rhe uounded. It will not be known u n d rhe end ai rhe second session of the Diplomaric Conference on the development of the laws of war whether the limited luudical sram thar medical aircraft now eqoy wdl be expanded. The second semen of the Diplomatic Gnference will be held m Geneva, Swtzerland in February of 1975. If rhe Conference doer accept the various proposed atticks on medical aircraft which will be submirted.'e the mmuniry of medical personnel and vehicles, first recognized in 1864. xill b; ertended and provide for a more effective use of medical aircrafr.

11. THE DEVELOPUEKT OF COSVESTIONhL LA\Y FOR \IEDIC.AL PERSOSSEL ASD \THICLES

1. 1844 GE.VEVA CO.VVE.\TIO.V

   L-Tnder the 1864 Cowwntion for the Ameliorjtiow of the Conditioii of tbe Wounded in Armies in the Field,'O which was drafted due to the initiatiie of Henri Duranr and orhers who had witnessed the lack of medical treatment m the am of the second half of rhe 19rh century. medical personnel and facilines received juridical status under treatv lau for the finr time?' Article I stated rhat ambulances and

   DE Bra~irrrr om Lrmu\r~oarri joz Vrarr~rroirrh LID Karvxiv IN SA\-~TITJDIEYII 0972) Glbboni b: Fromhagen. Arrmidirnl T~mipmrarion end Gin

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   Ar-crsr 12. 1919. iniclei 26-12 (June 19-il

   come 2 pnv 10 the treaty unci1 1882'

   MEDIC& AIRCRAFT

   military hospitals were neutral and were entitled to protection as long as sick or wounded were in them. Am& 7 requited a distinctive and uniform flag for hospitals and ambulances and an arm-badge for medical personnel. The emblem used u as a red cross.2'

   >Vhether the provisions conrained in this treat" created some status for balloons or any aircraft durmg the period hf 1864 to 1906 was discussed by one author who came to a negative conclusmn.2' The author noted that permiming an enemy balloon to scan a battlefield on which there are wounded created a secnrity problem." Such a scanning could give a tactical advantage to one &de, a sirnation which the parties to the treaty would nor have contemplated. Moreover, the proposed use of balloons would be to search for the wounded, not for their evacuation, which was the very objen of the protection given to ambulances. Indeed, under the terms of the treaty, Article 1 gave medical establishments protection only if there were wounded therein, not if they were just being used to seek far the wounded. Despite the fact (hat some protection WY given TO medi-cal vehicles, Julliot concluded that aerial vehicles did not have protection under the 1864 treaty.zi

2. 1906 GEXEVA COXVE.VTf0.V'

   The 1906 Red Crass ConventionZ6 did not change these norms. Rather. it was made explicit that the limited protection afforded to medical establishments would terminate if they were used to commit acts injurious to the enemy.28 Medical convoys could be broken up if military necessity required Charles Julliot inferred from the latter provision that the convention would not permit medical can-voys. whether aerial or not, to freely circulate in any area looking for wounded. and at the same rime observe the enemy's secrets and mditary

   Since medical aircraft received no juridical status under the 1864 and 1906 Conventions, the French Lique Nariomle Aerienne sug- 91 see g~~.riiy T. L ~ ~ ~ ~ ~ , T~ P ~ ~ ~ ~ ~

   (189Ii.ps C. Jurnar, IUPT. now 5, st 14.23ld.1t11,1624id 81 14.25Convenrion for the hrnelioritian of the Condirron oi rhe \rounded and

   28Arr. 1.11All. 11.26 C JL.LLIOT. rupra nore I, II 16.

   Sick. July6. 1906. I1 S m 1881. 2 \I~rroi 2181 (1910i.

   I ~ ~

   gesred to the French Foreign \lmarrr that an International Red Cross Conference be canrekd on medical aircraft I' The Foreign \linstry declined to take any action on the request in February. 1911, on rhe grounds char no international ules on air navigation in times of pea& existed and because of the difficulty of distinguishing rhe narionalirr and affiliarion of aircraft in flighr?"

   During the First IVorld \Tar. there mere several eiacuarions by aircraft I' In 1915, for example, French ambulances \rere used to ei acuare \rounded Serbian troops in some wounded rroops acre transported for a distance of 180 kilameters.3s Ir does nor appear. howeTer, that Red Cross marked flving ambulances were used during the First XVorld...