The arguments of those who were opposed to an absolute rule are of two kinds. In the first place, they argued that an airman suspended from his parachute is perfectly capable of committing a hostile act during his descent, for example, by opening fire on persons on the ground, and consequently the text should be amended accordingly. Other delegates contested this view on the basis of their personal experience of parachuting, and the amendment did not gain a sufficient number of votes to be adopted at the plenary meeting.
The second argument of the same delegates was that although an airman parachuting from an aircraft may be ' hors de combat ' during his descent, he is only ' hors de combat ' temporarily if he lands in friendly territory. Moreover, it is possible that he could try to escape during the descent itself by guiding the direction of the descent, though this also depends on the wind. Additionally, a person who lands in allied territory escapes capture, and therefore the conditions of Article 41 ' (Safeguard of an enemy hors de combat) ' are no longer fulfilled. To give airmen, who have control of tremendous firing power, this sort of advantage compared to other combatants, is out of proportion to the devastation which these airmen can cause nowadays. Such courtesy is not reconcilable with that owed the civilian population, and practice during the Second World War does not confirm any such rule.
Moreover, it is not uncommon for airmen in distress, parachuting not into their own territory, but into enemy territory, to transmit distress signals during their descent intended to alert their own forces and lead to a rescue operation, with the aim of escape. It was stated that this clearly proves that these persons are not ' hors de combat ' during their descent, and certainly have no intention of surrendering. Consequently the conditions of paragraph 1 of Article 41 [ Link ] ' (Safeguard of an enemy hors de combat) ' are not fulfilled and the safeguard should not be granted.
The main speaker to reply to these objections was the representative of the ICRC. He considered that any decision to restrict the safeguard provided for in paragraph 1 of Article 42 would introduce in the Protocol an element contrary to its purpose and spirit. The Geneva Conventions only contain provisions protecting victims of war, they do not give States rights against these victims. Since 1864, when States adopted the first Geneva Convention for the amelioration of the condition of wounded soldiers in armed forces in the field, they accepted that they would have to sacrifice some of their power for the benefit of human beings, for a compelling humanitarian need. The law in this respect should not be questioned again. On the contrary, it has been extended since then to other categories of victims of hostilities, including airmen in distress who are actually "shipwrecked in the air", as it were.
Others argued that the elimination of a few pilots cannot be a decisive way of winning a war. Finally, the decision favoured by the minority could have a disastrous effect on pilots, who would either tend to avoid the risks necessarily involved in restricting their attack to the assigned military target, or would not bail out but undertake a desperate defence with the means still at their disposal, which would not be to the advantage of the adverse Party.
A number of delegations explicitly approved the ICRC position, and the proposal of the minority was rejected
[...]
The rule adopted, admittedly only by majority vote, is therefore clear and without reservations. However, its application can involve difficulties, for it is not always easy, in particular for combatants on the ground or at night, to distinguish between a parachutist in distress and a parachutist who is attacking, or even a spy, or to realize that the crew concerned is descending from an aircraft in distress when this is flying at an altitude of 10,000 metres or more. However, these considerations should not constitute an obstacle to the application in good faith of the rule of this paragraph.
