(a) Only military aircraft, including UCAVs, are entitled to engage in attacks.
[Commentary]
(b) The same Rule applies to the exercise of other belligerent rights, such as interception.
[Commentary]
- The Rule is based on the Art. 13[245] and Art 16 of the HRAW,[246] and is also found in national military manuals.[247] See also Rule 115 (b).
- Rule 17 (a) aims to emphasize that only military aircraft are entitled to exercise any belligerent rights. Just like civilian aircraft, State aircraft other than military aircraft are not entitled to engage in attacks, even if they are owned by or under the exclusive control of the armed forces and being used for government non-commercial services.[248] This means that law-enforcement, customs or coast guard[249] aircraft which do not qualify as military aircraft (see Rule 1 (x)) may not engage in hostilities as long as they are not incorporated into the armed forces.
- UCAVs (see definition in Rule 1 (ee)), whether remotely piloted or acting autonomously, may engage in attacks as long as they qualify as military aircraft. Autonomous action means that the unmanned aircraft has sensors and an onboard data processing capability to make decisions to attack according to a computer program. The sensors and computer programs must be able to distinguish between military objectives and civilian objects, as well as between civilians and combatants.
- The prohibition of an exercise of belligerent rights by State aircraft other than military aircraft, as defined in Rule 1 (cc), is limited to the exercise of belligerent rights reserved for military aircraft, such as conducting an attack. State aircraft other than military aircraft may continue to perform their functions, e.g., genuine law-enforcement activities.
- Law-enforcement organizations may be incorporated into the armed forces (see Art. 43 (3) of AP/I).[250] In such cases, their aircraft qualify as military aircraft. They will then enjoy all the rights accruing to military aircraft, as well as be liable to be attacked. Members of such agencies incorporated in the armed forces become combatants (see Commentary on Rule 10 (b) (i)). The aircraft of such agencies, being State aircraft, have to be converted to military aircraft (see definition of military aircraft in Rule 1 (x)) before they may engage in attacks.
- Aircraft operated by private security companies or other private contractors not meeting the requirement to qualify as military aircraft, are civilian aircraft. Once a former military aircraft is operated, or commanded, by private companies, it loses its status as a military aircraft and may no longer engage in attacks in international armed conflicts, though it may carry out security functions for the government, as assigned.
- Rule 17 (a) does not apply in non-international armed conflict. States are more likely to employ law-enforcement and other State aircraft during these conflicts. It is not in contravention with the law of international armed conflict if such aircraft conduct combat functions.
- On occasion, States have employed the services of private security companies to conduct aerial operations during non-international armed conflicts. Although governments are not obliged to use military aircraft to conduct air combat operations in non-international armed conflict, all such operations are governed by the Rules, as applicable to non-international armed conflict, reflected in this Manual.
- Art. 13 of the HRAW: “Military aircraft are alone entitled to exercise belligerent rights.”
- Art. 16 of the HRAW: “No aircraft other than a belligerent military aircraft shall engage in hostilities in any form. The term ‘hostilities’ includes the transmission during flight of military intelligence for the immediate use of a belligerent. No private aircraft, when outside the jurisdiction of its own country, shall be armed in time of war.”
- Para. 12.34 of the UK Manual (“Only military aircraft may carry out attacks”): “Only military aircraft may attack military objectives. If it is intended to use civilian aircraft for combat purposes, they must be embodied into the air force and correctly marked. The classification in the Hague Rules 1923 of public and private aircraft has legal implications for the rights of visit, search, and capture.”
Para. 1015 of the German ZDv: “The following vessels and units are competent to perform acts of naval warfare: — warships and other units of naval forces; — military aircraft and; — units of land and air forces.”
- Para. 12.5 of the UK Manual (see fn. 111) uses the term “auxiliary aircraft”.
- Some States have organized their coast guard as a non-military law enforcement service. For those States that have organized their coast guard as a part of the armed forces, this exception is not relevant.
- Art. 43 (3) of AP/I, see fn. 199.
- Examples of belligerent rights other than attack are interception, mentioned Rule 17 (b), as well as inspection, diversion and capture as prize (see Section U).
- These belligerent rights do not exist as a matter of law in non-international armed conflict.
Acts or threats of violence in the course of air or missile operations cannot be pursued for the sole or primary purpose of spreading terror among the civilian population.
[Commentary]
- This Rule is based on the second sentence of Art. 51 (2) of AP/I.[251]
- Rule 18 pertains to both “acts … of violence” and “threats of violence”. Acts of violence will always come within the definition of attacks (see Rule 1 (e)). As for threats of violence, they can be issued through broadcasts, the dropping of leaflets or in any other fashion. Whether they constitute “acts” or “threats” of violence, such activities cannot be pursued solely or primarily for the purpose of spreading terror among the civilian population.
- Rule 18 is limited to activities in which the “sole or primary” purpose is that of spreading terror among the civilian population. The term “primary” is found in Art. 51 (2) of AP/I. A fortiori, this includes situations in which doing so is the “sole” purpose. The majority of the Group of Experts did not agree with the limitation of the prohibition in NWP to situations where the “sole purpose” of the threat is to terrorize the civilian population.[252]
- Rule 18 is confined to the concept of “spreading terror among the civilian population”. Rule 18 is irrelevant to “shock and awe” operations designed to “spread terror” among combatants.
- Very frequently, notwithstanding the obligations of passive precautions (see Section H), some military objectives are intermingled with the civilian population. If the acts or threats of violence pursued relate to lawful targets, the incidental spreading of terror among the civilian population is not prohibited by Rule 18. However, if the presence of lawful targets in the area is used merely as an excuse to conduct the operation, and in fact the “primary” purpose of the act of violence (or the threat thereof) is to terrorize the civilian population, the operation is prohibited under Rule 18.
- Rule 18 is confined to operations designed to “terrorize” the civilian population. It must be distinguished from operations designed to affect civilian morale without spreading terror among the civilian population. Examples of such operations — often labeled psychological operations or information operations — are calls to the civilian population to overthrow its national government or to otherwise diminish support for their leadership. Such operations do not come within the bounds of the definition of an “attack” (see Rule 1 (e)). On this issue, see also Rule 21.
- Some commentators contend that attacks designed to destroy civilian morale may be permissible should it lead to an early termination of hostilities. The majority of the Group of Experts believed that the prohibition of terrorizing the civilian population is absolute and, therefore, shattering civilian morale is unacceptable even if it can be explained along so-called utilitarian lines.
- As long as the targets under attack are lawful targets (see Rule 10 (b)), the fact that their destruction incidentally affects civilian morale does not preclude attack. Civilian morale, as well as the enemy’s military morale, may indeed be affected as a side effect of an aerial operation that demonstrates the attacker’s ability to strike at military objectives with impunity.
- The civilian population comprises all persons who are civilians.[253]
- Rule 18 applies also in non-international armed conflict.
- Art. 51 (2) of AP/I: “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”
- Para. 8.9.1.2 (“Terrorization”) of NWP: “Bombardment for the sole purpose of terrorizing the civilian population is prohibited.”
- Art. 50 (2) AP/I: “The civilian population comprises all persons who are civilians.”
Belligerent Parties conducting, or subject to, air or missile operations:
(a) Must take all possible measures to search for and collect the wounded, sick and shipwrecked, ensure their adequate care, permit their removal, exchange and transport, and search for the dead;
[Commentary]
(b) Must, whenever circumstances permit, arrange cease-fires, if necessary through a neutral intermediary, to facilitate the activities described in paragraph (a);
[Commentary]
(c) Ought to accept the assistance of impartial humanitarian organizations and facilitate their work in favour of the wounded and other victims of air or missile attacks.
[Commentary]
- This Rule is based on Art. 15 of GC/I[254] which obliges the Belligerent Parties to take all possible measures to search for and collect the wounded and sick, and provides for the possibility to arrange for a suspension of fire to this end. According to Art. 15 of GC/I, local arrangements may also be concluded to permit the removal, exchange and transport of the wounded on the battlefield.
- Note must be taken of the expression “all possible measures”. These measures are obviously affected by the special circumstances of air warfare. Moreover, it is necessary to distinguish between the conduct of air warfare over land and over sea.
- Rule 19 (a) also applies in non-international armed conflict.
- See fn. 232.
- This Rule is derived from Art. 15 of GC/I.[255]
- A cease-fire constitutes the temporary suspension of hostilities, and it may be agreed upon by commanders on the spot. Such a local cease-fire is particularly important when the wounded, sick and shipwrecked have to be collected and evacuated.
- Whereas a cease-fire presupposes agreement by the opposing sides, the duty to take all possible measures to collect the wounded and sick on the battlefield may require — whenever circumstances permit — unilateral suspension of operations. For an analogy, see Rule 103 regarding humanitarian assistance.
- The words “whenever circumstances permit” allow a certain latitude to the Belligerent Party conducting the operations. In particular, considerations of military necessity may preclude the suspension of air or missile attacks.
- Belligerent Parties may find it difficult to negotiate terms for the suspension of air and missile attacks. They may therefore require the services of a neutral intermediary, in order to open communication between them. The neutral intermediary may be a State or an impartial humanitarian organization, such as the ICRC.
- Rule 19 (b) applies also in non-international armed conflict.
- Ibid.
- This Rule is inspired by Art. 81 of AP/I.[256]
- Rule 19 (c) emphasizes that the obligation regarding search for, collect and care for the wounded, sick and shipwrecked (Rule 19 (a)) implies a possible need to allow impartial humanitarian organizations to assist Belligerent Parties in the accomplishment of these tasks.
- On the notion of impartial humanitarian organizations, see Rule 100 (b).
- The activities of these impartial humanitarian organizations are subject to the approval of the Belligerent Party on whose territory they operate, but this approval should not be withheld arbitrarily. The phrase “should not” is used here deliberately, since there was disagreement among the Group of Experts as to the latter issue.
- Rule 19 (c) applies also in non international armed conflict.
- Art. 81 of AP/I: “(1) The Parties to the conflict shall grant to the ICRC all facilities within their power so as to enable it to carry out the humanitarian functions assigned to it by the Conventions and this Protocol in order to ensure protection and assistance to the victims of conflicts; the ICRC may also carry out any other humanitarian activities in favour of these victims, subject to the consent of the Parties to the conflict concerned. (2) The Parties to the conflict shall grant to their respective Red Cross (Red Crescent, Red Lion and Sun) organizations the facilities necessary for carrying out their humanitarian activities in favour of the victims of the conflict, in accordance with the Rules of the Conventions and this Protocol and the fundamental principles of the Red Cross as formulated by the International Conferences of the Red Cross. (3) The High Contracting Parties and the Parties to the conflict shall facilitate in every possible way the assistance which Red Cross (Red Crescent, Red Lion and Sun) organizations and the League of Red Cross Societies extend to the victims of conflicts in accordance with the Rules of the Conventions and this Protocol and with the fundamental principles of the Red Cross as formulated by the International Conferences of the Red Cross. (4) The High Contracting Parties and the Parties to the conflict shall, as far as possible, make facilities similar to those mentioned in paragraphs 2 and 3 available to the other humanitarian organizations referred to in the Conventions and this Protocol which are duly authorized by the respective Parties to the conflict and which perform their humanitarian activities in accordance with the provisions of the Conventions and this Protocol.”
Air or missile attacks must be conducted in accordance with those feasible precautions required under Section G of this Manual designed to avoid – or, in any event, minimize – collateral damage.
[Commentary]
This Rule refers to “feasible precautions”, with a view to avoiding — or, in any event, minimizing — collateral damage to civilians or civilian objects where that is possible. For details, see
Section G.
The application of the general Rules prohibiting attacks directed against civilians or civilian objects, as well as indiscriminate attacks, is confined to air or missile attacks that entail violent effects, namely, acts resulting in death, injury, damage or destruction.
[Commentary]
- Despite the lack of direct authority for this Rule in treaty law, the majority of the Group of Experts concluded that it generally reflects State practice.
- The emphasis in Rule 21 on “acts resulting in death, injury, damage or destruction” is intended to exclude psychological warfare, whether directed against combatants or civilians, which does not generate violent effects. See paragraph 9 of the Commentary on Rule 13 (b).
- By the same token, a CNA which interferes with air traffic control but does not cause any “death, injury, damage or destruction” does not qualify as an attack (see Rule 1 (e) and Rule 1 (m)).
- Rule 21 applies also in non-international armed conflict.
