Crimesof War

When is a helicopter an ambulance and when is it a gunship? The line is sometimes not as clear as it seems.

The Russian-built Mi-17 helicopter shuttling through the ground-fire above Freetown in 1997 made up to fifteen sorties a day. Sometimes it was airlifting troops, ammunition, fuel, and food to the Nigerian troops who were dislodging Sierra Leone’s military junta and reinstating Tejan Kabbah, the country’s elected president. But sometimes, it was also carrying doctors and medics, plus “casvacs”—casualty evacuations. It came under continuous fire. Is firing on a casvac a violation of the Geneva Conventions? If the Mi-17 had been downed and the casualties killed, would that constitute a violation of international humanitarian law (IHL)?

According to the Geneva Conventions, the mere fact that transports are carrying casualties does not entitle them to protection. It all depends whether the helicopter carries a clear Red Cross or Red Crescent emblem and whether, when flying over enemy territory, the pilots file a flight plan beforehand with the combatants and keep to the altitudes, departure, and arrival times stipulated on the plan. If these conditions are not followed, or if the chopper is used for hostile purposes, it is a legitimate target, whether or not there are wounded on board.

It’s not hard to see why. How are ground troops supposed to tell the difference between the Mi-17’s resupply and its casvac sorties? In the Sierra Leone case, the Mi-17 didn’t carry a Red Cross marking. In any case, if it had done so, it would have contravened the provisions of the Geneva Conventions outlawing the use of aircraft for the transport of weapons and matériel.

Detailed rules applying to aircraft are spelled out in Articles 24 to 31 of the 1977 Additional Protocol I on International Armed Conflict. This prohibits the use of medical aircraft to gain any military advantage over an adverse party and allows the adverse party to the conflict to force the plane to land for inspection. If the aircraft is in conformity with the rules, it should fly on “without delay.” In the event of a violation, it may be seized, although the sick, the wounded, and medical or religious personnel among its occupants are to be treated as protected persons. Medical air transports are allowed only to carry light weapons for self-defense as well as the small arms and ammunition of the sick or wounded. They cannot be used to collect or transmit intelligence data or carry equipment for such purposes or even to conduct searches except by prior permission.

The rules applying to ambulances or other ground vehicles are straightforward. Like medical personnel, they “may in no circumstances be attacked,” but must be “respected and protected,” according to Articles 35 and 19 of the First Geneva Convention of 1949. They also should be marked with the Red Cross or Red Crescent emblem. They are subject to inspection and lose their protection, subject to a prior warning and a reasonable time limit, if they are used to commit acts harmful to the enemy that are outside their humanitarian duties.

Whether the niceties of the convention can apply in messy cases like Sierra Leone is another question. The convention implies that States, military hierarchies, and chains of command have clear lines of responsibility. None of these were present in Sierra Leone. The Mi-17 wasn’t owned by a State, but by a private British company—Sandline International—providing mercenary aid, on a cash basis, to President Kabbah, with the British government allowing it to be refueled and serviced on British warships in Freetown’s harbor, while hiding behind official denials of involvement.

Sierra Leone belongs to a family of ethnic conflicts where the Geneva Conventions are honored more in the breach than in the observance. Even when medical transports are clearly marked with a Red Cross and are obviously carrying only casualties and medical personnel, they are often attacked. The worst recent case was in Rwanda in 1994, during the genocide, when gangs pulled victims out of Red Cross ambulances and finished them off.

Journalists traveling in Red Cross ambulances, hospital ships, and med-evac helicopters cannot be sure that they will be protected. In theory, Additional Protocol I, Article 79, requires that journalists be treated as civilians. In theory, journalists can hitch a ride in Red Cross and ICRC vehicles, providing, of course, they do not carry weapons, and they are prepared to sign an insurance waiver. In practice, nonmedical personnel often attract suspicion at inspections and checkpoints. Are they spies? Are they military personnel in disguise? Military inspection of Red Cross transports is allowed and the presence of nonmedical personnel can be used as an excuse to impound, seize, or attack. Indeed, the presence of anyone other than the sick, the wounded, or the medical or religious personnel tending them is prohibited on medical aircraft. The rule of thumb is to get authorization on paper from the ICRC or from local combatants to travel. Also remember the insurance waiver. Anyone who climbs on board their Land Cruiser should make sure someone back home has arranged insurance coverage—if they can find a company willing to write a policy!