Section J: Protection of Particular Types of Aircraft

[Commentary]


Section J is subdivided into three Subsections. Subsection I deals with civilian airliners (be they enemy or neutral), which are entitled to particular care in terms of precautions. Subsection II deals with aircraft granted safe conduct, entitled to specific protection. Subsection III includes provisions that applicable to both categories of aircraft.

Rule 58

Civilian airliners are civilian objects which are entitled to particular care in terms of precautions.

[Commentary]

  1. Civilian airliners are defined in Rule 1 (i).

  2. Rule 58 is based on Para. 53 of the SRM/ACS[344] and on Para. 12.28 of the UK Manual.[345] Unlike Para. 53 of the SRM/ACS, Rule 58 of this Manual refers to “civilian airliners” in general and not only to “classes of enemy aircraft”. Therefore, according to Rule 58, both enemy and neutral civilian airliners are entitled to protection as civilian objects.[346]

  3. As indicated in paragraph 2 of the Commentary on Rule 1 (i), the Group of Experts was divided on the question as to whether civilian airliners are entitled to specific protection beyond the application of the principle of distinction in general. The principle of distinction is undisputed as a general norm of customary international law (see Rule 10 (a)).

  4. The key phrase “particular care in terms of precautions” also relates to the duty to avoid — or, in any event, to minimize — civilian casualties. The purpose of Rule 58 is to ensure that Belligerent Parties will at all times be aware of the vulnerability of civilian airliners and, therefore, must exercise particular care in terms of precautions in order to prevent situations that might lead to the accidental downing of a civilian airliner.

  5. The compromise adopted by the Group of Experts resulted from the following views: one part of the Group of Experts argued that civilian airliners are included in the category of civilian aircraft (as defined in Rule 1 (h)) and ought not to legally benefit from an additional (specific) protection. Another part of the Group of Experts — taking into consideration the importance of this category of aircraft because of the vulnerability of civilian airliners, which may have large numbers of civilian passengers on board who are at risk — supported the opposite view.

  6. As a compromise, the Group of Experts agreed that civilian airliners are entitled to the general protection under the principle of distinction, but that they are also entitled to “particular care in terms of precautions”. This means especially that the general obligation to take every feasible step — in order to ascertain that the target to be attacked is a lawful target — must be meticulously observed. See Rule 32 (a). See also Rule 35 (a) and Rule 35 (c).

  7. The protection of civilian airliners is also laid down in the Chicago Convention. The Convention’s Art. 3 bis, subparagraph (a), provides that the “contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight”.[347] While the Chicago Convention refers to civil aircraft (including civilian airliners) “in flight” only, this Manual posits that civilian airliners are also protected while on the ground (see Rule 59). Although the Chicago Convention does not apply in armed conflict,[348] this Manual shares the premise that civilian airliners are entitled to particular care in terms of precautions.

  8. Rule 58 in no way diminishes the general protection to which civilian aircraft are entitled (see Section I).

  9. As the protection of civilian airliners can be effective only insofar as Belligerent Parties are able to identify them, Art. 20 of the Chicago Convention provides that “every aircraft engaged in international air navigation shall bear its appropriate nationality and registration marks”.[349] Annex 7 of the Chicago Convention further sets out the procedures and rules for selection by ICAO Contracting States of nationality and registration marks. Additionally, civilian airliners can be identified through using Secondary Surveillance Radar (SSR) modes and codes for civil aircraft as specified in Annex 10 to the Chicago Convention.[350]

  10. Given the events of 9/11, it is impossible to ignore the danger that civilian airliners can be hijacked (and then used as means of attack) or otherwise be employed in ways harmful to the enemy. Hence, it is important to emphasize that, in certain circumstances, protection of civilian airliners is liable to be lost (see Rule 63). However, even if a civilian airliner loses its protection, certain conditions must still be met before attacking it (see Subsection III of Section J (III)). In ordinary circumstances, the presence on board a civilian airliner of a civilian crew and a large number of civilian passengers underscores the need to avoid collateral damage which, in most circumstances, will be excessive in relation to the military advantage anticipated (see Rule 68 (d)).

  11. Rule 58 applies also in non-international armed conflict.

  1. Para. 53 of SRM/ACS: “The following classes of enemy aircraft are exempt from attack: (a) medical aircraft; (b) aircraft granted safe conduct by agreement between the parties to the conflicts; and (c) civil airliners.”

  2. Para. 12.28 of the UK Manual: “The following classes of enemy aircraft are exempt from attack: (a) medical aircraft; (b) aircraft granted safe conduct by agreement between the parties to the conflict; and (c) civil airliners.”

  3. The provisions of the SRM/ACS do not explicitly state that neutral civil airliners are equally entitled to special protection from attack. This point is only implicitly acknowledged in Para. 70.1 of the Commentary on the SRM/ACS: “Neutral civil aircraft may not be attacked unless they engage in specific activities as listed. Even then paragraph 71 governs. The neutral civil aircraft addressed in paragraphs 70 and 71 are civil aircraft other than medical aircraft, aircraft granted safe conduct and civil airliners which are exempt from attack.”

  4. Art 3 bis (a) of the Chicago Convention, see fn. 46.

  5. Art. 89 of the Chicago Convention (“War and Emergency Conditions”): “In case of war, the provisions of this Convention shall not affect the freedom of action of any of the contracting States affected, whether as belligerents or as neutrals. The same principle shall apply in the case of any contracting state which declares a state of national emergency and notifies the fact to the Council.”

  6. ICAO, Aircraft Nationality and Registration Marks, Annex 7 to the Chicago Convention on International Civil Aviation.

  7. ICAO, Aeronautical Telecommunications, Annex 10 to the Chicago Convention on International Civil Aviation.

Categories: J: Civilian Airliners Tags:

Rule 59

In case of doubt, civilian airliners – either in flight or on the ground in a civilian airport – are presumed not to be making an effective contribution to military action.

[Commentary]

  1. The purpose of this Rule is to affirm the protection of civilian airliners by including a presumption that they are not making an effective contribution to military action. “[M]aking an effective contribution to military action” is one of the activities which may render a civilian airliner a military objective (see Rule 63 (f)).

  2. The presumption applies both when civilian airliners are in flight and when they are parked on the ground, provided that they are on the ground in a civilian airport, i.e., an airport that does not constitute a military objective by nature (see Rule 22 (a)).

  3. The presumption is rebuttable, since the airliner may actually be used to carry combatants or otherwise make an effective contribution to military action. Once the presumption is rebutted, the airliner loses its protection (see Rule 63 (f)). Hence, if a Belligerent Party is able to establish that the civilian airliner is making an effective contribution to military action, the civilian airliner constitutes a military objective and may be treated as such. However, see Section G and Section J (III).

  4. Rule 59 applies also in non-international armed conflict.

Categories: J: Civilian Airliners Tags:

Rule 60

While civilian airliners (whether enemy or neutral) ought to avoid entering a no-fly or an “exclusion zone”, or the immediate vicinity of hostilities, they do not lose their protection merely because they enter such areas.

[Commentary]

  1. This Rule is partly based on Para. 72 of the SRM/ACS.[351] No-fly zones and “exclusion zones” are dealt with in Section P.

  2. Rule 60 is designed to ensure that civilian airliners avoid zones or areas where they may be fired upon inadvertently. It includes not only “exclusion zones” and no-fly zones, as discussed in Section P, but also any other area in the immediate vicinity of hostilities.

  3. Rule 60 does not establish an obligation to avoid entering an “exclusion zone” or a no-fly zone or any other area in the immediate vicinity of hostilities, but is merely a recommendation to that effect. The terminology used (“civilian airliners ought to avoid”) clarifies that Rule 60 does not reflect a legal obligation.

  4. Para. 72.1 of the Commentary on the SRM/ACS states that Para. 72 of the SRM/AC “places an obligation on all States, air traffic services and civil aircraft captains to take action so that civil aircraft will avoid areas of potentially hazardous military activity.” The use of the word “and” suggests that each entity (namely States, air traffic services and civil aircraft pilots) ought to contribute to the safety of civilian airliners by ensuring that civilian airliners avoid entering such zones or areas.

  5. The fact that civilian aircraft (including civilian airliners) ought to avoid areas of potentially hazardous military operations was already incorporated in Rule 54. Rule 60 serves the purpose of emphasizing that civilian airliners entering a no-fly zone or an “exclusion zone”, or the immediate vicinity of hostilities, do not lose their protection on the sole ground of entering the zone or area.

  6. If a civilian or other protected aircraft enters an area of potentially hazardous military activity, it must comply with a relevant NOTAM (see Rule 56).

  7. Rule 60 applies in non-international armed conflict only in the context of no-fly zones, and in areas in the immediate vicinity of hostilities. “Exclusion zones” are inapplicable in non-international armed conflict and therefore Rule 60 does not apply in that context (see paragraph 4 of the Commentary in the chapeau to Section P).

  1. Para. 72 of the SRM/ACS, see fn. 336.

Categories: J: Civilian Airliners Tags:

Rule 61

Any civilian airliner suspected on reasonable grounds of carrying contraband or    otherwise being engaged in activities inconsistent with its status is subject to inspection by a Belligerent Party in an airfield that is safe for this type of aircraft and reasonably accessible.

[Commentary]

  1. This Rule applies to civilian airliners in international airspace or in the national airspace of a Belligerent Party. In such areas, a Belligerent Party is entitled to inspect a civilian airliner if it is reasonably suspected of carrying contraband or otherwise being engaged in activities inconsistent with its status. This is line with the general provision of Rule 48 where a Belligerent Party is entitled to intercept, inspect or divert all civilian aircraft (be they enemy or neutral). However, like Para. 125 of the SRM/ACS,[352] Rule 61 adds the requirement of conducting the inspection in an airfield that is safe for a civilian airliner and reasonably accessible.

  2. A Belligerent Party must have reasonable grounds to suspect that the civilian airliner is carrying contraband or engaging in activities inconsistent with its status. The phrase “reasonable grounds” denotes that the Belligerent Party may only act on the basis of reasonable information. In other words, an inspection may only be conducted if there is reliable information suggesting that the aircraft is carrying contraband or otherwise engaged in activities inconsistent with its status. For the definition of contraband, see Rule 1 (n).

  3. Examples of activities inconsistent with the status of a civilian airliner can be found in Rule 63.

  4. Unlike Para. 125 of the SRM/ACS, the present Rule does not refer to interception as a necessary stage preceding inspection. It is believed that, with a civilian airliner, instructions to land for inspection ought to be communicated without interception being required.

  5. In order to obviate the necessity for inspection of neutral civilian airliners, and in order to decrease inconvenience and financial loss, Neutrals are encouraged to enforce reasonable control measures and certification procedures, such as the use of an “aircert”, to ensure that their civilian airliners are not carrying contraband (see Rule 138).[353]

  6. “Contraband” is a concept of prize law that does not apply in non-international armed conflict. This is made clear by the terms “susceptible for use in international armed conflict” in the definition of contraband (see Rule 1 (n)).

  7. As far as engagement of a civilian airliner in activities inconsistent with its status is concerned, the central government may inspect it during a non-international armed conflict. Non-State organized armed groups have no right to do so.

  1. Para. 125 of SRM/ACS: “In exercising their legal rights in an international armed conflict at sea, belligerent military aircraft have a right to intercept civil aircraft outside neutral airspace where there are reasonable grounds for suspecting they are subject to capture. If, after interception, reasonable grounds for suspecting that a civil aircraft is subject to capture still exist, belligerent military aircraft have the right to order the civil aircraft to proceed for visit and search to a belligerent airfield that is safe for the type of aircraft involved and reasonably accessible. If there is no belligerent airfield that is safe and reasonably accessible for visit and search, a civil aircraft may be diverted from its declared destination.”

  2. Para. 134 of SRM/ACS: “In order to obviate the necessity for visit and search, neutral States are encouraged to enforce reasonable control measures and certification procedures to ensure that their civil aircraft are not carrying contraband.”
    In parallel, Para. 132 of SRM/ACS: “In order to avoid the necessity of visit and search, belligerent States may establish reasonable measures for the inspection of the cargo of neutral civil aircraft and certification that an aircraft is not carrying contraband.”

Categories: J: Civilian Airliners Tags:

Rule 62

Enemy civilian airliners may be captured as prize but only on condition that all passengers and crews are safely deplaned and the papers of the aircraft are preserved.

[Commentary]

  1. Rule 134 of the Manual acknowledges that enemy civilian aircraft are liable to capture as prize. According to Rule 62, enemy civilian airliners are also liable to such capture. As to the conditions under which capture as prize may take place, see Section U.

  2. Rule 62 only covers enemy civilian airliners. The Manual deliberately leaves open the issue of capture as prize of neutral civilian airliners. There is no State practice at all indicating that a legitimate neutral civilian airliner can be captured as prize. However, in the exceptional circumstances in which a neutral civilian airliner is engaging in “hostile actions in support of the enemy” (e.g., by carrying enemy combatants or military supplies) (see Rule 63 (b) and Rule 63 (c)), the neutral civilian airliner may surely be assimilated to an enemy civilian airliner. In any event, it ought to be recalled that a neutral civilian airliner with no civilian passengers on board at all no longer fits the definition of a civilian airliner (see para. 5 of the commentary on Rule 1 (i)). It would then constitute an ordinary neutral civilian aircraft, in which case Art. 140 will apply.

  3. Rule 62 further makes this right subject to the condition that all passengers and crews are safely deplaned. It thereby recalls a Belligerent Party’s obligation to ensure the safety of passengers and crew as per Rule 143 (see also Para. 145 of SRM/ACS).[354] The personal effects of the crew and passengers have to be safeguarded (see Para. 158 of SRM/ACS).[355]

  4. If an enemy civilian airliner is inspected and enemy combatants are found on board among the passengers, they may be detained. However, they must be treated as POWs.

  5. The treatment of enemy civilian airliners and passengers landing in neutral territory must be in accordance with the law of neutrality. Members of the armed forces of a Belligerent Party must therefore be interned for the duration of the armed conflict. See the second sentence of Rule 170 (c).

  6. Rule 62 does not apply in non-international armed conflicts, because (i) prize law does not apply in such armed conflicts; and (ii) non-State organized armed groups do not have a right to capture civilian airliners.

  1. Para. 145 of the SRM/ACS: “If capture is exercised, the safety of passengers and crew and their personal effects must be provided for. The documents and papers relating to the prize must be safeguarded.”

  2. Para. 158 of SRM/ACS, see fn. 727.

Categories: J: Civilian Airliners Tags:

Rule 63

Subject to Rule 68, activities such as any of the following may render a civilian airliner a military objective:

[Commentary]

(a) Being on the ground in a military airfield of the enemy in circumstances which make that aircraft a military objective.

[Commentary]

(b) Engaging in hostile actions in support of the enemy, e.g. intercepting or attacking other aircraft; attacking persons or objects on land or sea; being used as a means of attack; engaging in electronic warfare; or providing targeting information to enemy forces.

[Commentary]

(c) Facilitating the military actions of the enemy’s armed forces, e.g. transporting troops, carrying military materials, or refuelling military aircraft.

[Commentary]

(d) Being incorporated into or assisting the enemy’s intelligence gathering system, e.g., engaging in reconnaissance, early warning, surveillance or command, control and communications missions.

[Commentary]

(e) Refusing to comply with the orders of military authorities, including instructions for landing, inspection and possible capture, or clearly resisting interception.

[Commentary]

(f) Otherwise making an effective contribution to military action.

[Commentary]

  1. Rule 63 is partially based on Para. 56 of the SRM/ACS[356] and on Para. 12.31 of the UK Manual.[357]

  2. Rule 63 sets out the circumstances under which a civilian airliner may constitute a military objective. The term “may” indicates that, even in the circumstances described in Rule 63 (a) − (f), a civilian airliner does not automatically become a military objective. On the other hand, Rule 63 (a) − (f) does not provide an exhaustive list of the activities that may render a civilian airliner a military objective. This is indicated by the words “such as” in the chapeau of Rule 63, as well as by the open-ended nature of Rule 63 (f).

  3. Rule 63 (a)–(f) is merely meant to give guidance as to how to apply the definition of military objectives (see Rule 1 (y) and Section E, especially Rule 22) to civilian airliners. The activities enumerated in Rule 63 (a)–(f) relate only to “use” and “purpose” (i.e. “intended future use”), and are subject to the application of Rule 22 (c) or Rule 22 (d).

  4. Even if a civilian airliner has become a military objective, this does not automatically mean that it may be attacked. In addition to a civilian airliner having become a military objective, the conditions in Rule 68 must be met too before it may be attacked. Moreover, a civilian airliner which has become a military objective re-gains its civilian status once it ceases to make an effective contribution to military action.

  5. Rule 63 must be read against the background of Rule 27 pertaining to attacks against enemy aircraft other than military aircraft. Rule 63 (b)–(f) are textually identical to Rule 27 (a)–(e). It is only Rule 63 (a) which is specific to civilian airliners.

  6. The use of any aircraft other than a military aircraft as means of attack is prohibited at all times (see Rule 115 (b)).

  7. The main conditions precedent to an attack against a civilian airliner that has lost its protection are enumerated in Rule 68. It must be recalled however that there are also ancillary conditions in Rule 69 and 70.

  8. Rule 63 applies also in non-international armed conflict.

  1. Para. 56 of the SRM/ACS: “Civil airliners are exempt from attack only if they: (a) are innocently employed in their normal role; and (b) do not intentionally hamper the movements of combatants.”

  2. Para. 12.31 of the UK Manual is identical to Para. 56 of the SRM/ACS.

  1. Rule 63 (a) applies only to civilian airliners parked “on the ground in a military airfield of the enemy”. If a civilian airliner is parked on the ground in a civilian airport, Rule 59 applies.

  2. A civilian airliner parked “on the ground in a military airfield of the enemy” does not automatically become a military objective. In order for it to become a military objective, a civilian airliner must by its nature, location, purpose or use make an effective contribution to military action and its total or partial destruction, capture or neutralization, in the circumstances ruling at the time, must offer a definite military advantage (See Rule 1 (y) and Rule 22).

  3. The presence of a civilian airliner may not be abused by the enemy in order to render a military airfield immune from attack (see Rule 45). A civilian airliner present in a military airfield runs the risk of being destroyed as collateral damage, in case of a lawful attack against the airfield.

  4. In case that a civilian airliner (carrying civilian passengers, see the definition in Rule 1 (i)) is landing in distress in a military airfield, the prevailing view among the Group of Expert was that (i) efforts must be made to alert the enemy to the situation; and (ii) the pilot must take every measure available to him to show that the airliner is in fact in distress (open slides, etc.).

  5. If a civilian airliner is being diverted to a military airfield, the Belligerent Party responsible for the diversion has an obligation to remove the civilian airliner from its military airfield as soon as possible, in order not to endanger it unnecessarily.


Rule 63 (b) specifically includes the situation where a civilian airliner is hijacked and is flown into a target. In such cases, the civilian airliner effectively becomes a means of attack, that is, a weapon (see also Commentary on Rule 27 (a)).

See Commentary on Rule 27 (b).

See Commentary on Rule 27(c).

See Commentary on Rule 27(d).

See Commentary on Rule 27 (e). In case of doubt as to whether a civilian airliner is making an effective contribution to military action, Rule 59 provides for a rebuttable presumption that this is not the case.
Categories: J: Civilian Airliners Tags:

Rule 64

Aircraft granted safe conduct by agreement between the Belligerent Parties − such as cartel aircraft − are entitled to specific protection from attack.

[Commentary]

  1. Rule 64 is based on Para. 53 (b) of the SRM/ACS.[358]

  2. Although the category of “aircraft granted safe conduct” relates principally to cartel aircraft (defined in Rule 1 (g)), there is no limitation on the type of aircraft (military or other State aircraft, civilian aircraft or medical aircraft), or on the activities carried out, to which safe conduct may be granted by agreement.[359] A safe conduct may be granted for purposes exceeding the role of cartel aircraft, e.g., carrying consignments of humanitarian aid (see Section O).

  3. All aircraft granted safe conduct enjoy specific protection from attack contingent on respect for the conditions enumerated in Rule 65. On the notion of specific protection, see paragraph 3 of the Commentary in the chapeau on Section K.

  4. The specific protection of aircraft granted safe conduct is contingent on the agreement whereby they operate. To the extent that these are civilian or medical aircraft, they also benefit from the protection due to them as such (see, respectively, Section I and Section L).

  5. Aircraft granted safe conduct are entitled to specific protection from attack not only when they are performing their assigned mission, such as transporting POWs or parlementaires, but also on their way to collecting such individuals and on their way back after having transported them.[360]

  6. The agreement reached by the Belligerent Parties ought to contain details about the flight and activities carried out by the aircraft granted safe conduct. Such details are indispensable in the absence of any special method of identification foreseen for such aircraft.

  7. Aircraft granted safe conduct may be identified through the filing of a detailed flight plan pursuant to Rule 53 (a) of this Manual and through the use of Secondary Surveillance Radar (SSR) modes and codes for civilian aircraft.[361] However, it may not use medical aircraft identification. ICRC aircraft — one type of aircraft that may be granted safe conduct — constitute an exception in this respect: ICRC aircraft may use the same means of identification as medical aircraft, even though they operate under a safe conduct granted by Belligerent Parties.[362]

  1. Para. 53 (b) of SRM/ACS, see fn. 344.

  2. See Para. 55.1 of the Commentary on the SRM/ACS: “Belligerents would expect that aircraft granted safe conduct would comply with the conditions in this paragraph. There is no limitation on what the agreed role could be. Aircraft granted safe conduct could be inter alia transporting prisoners of war, conducting relief missions, transporting cultural property, or protecting the environment. …”

  3. See Para. 47.22 of the Commentary on the SRM/ACS: “Cartel vessels are exempt from capture and attack, not only when they are carrying the prisoners of war or communications, but also on the journeys to collect the prisoners or communications and on their way back after having transported them.” This explanation concerning cartel vessels ought to apply by analogy to aircraft granted safe conduct.

  4. See the final sentence of Para. 55.1 of the Commentary to the SRM/ACS: “Other safe conduct aircraft may not use medical aircraft identification, but at present must rely on filing a detailed flight plan (paragraph 76) and using Secondary Surveillance Radar (SSR) modes and codes for civil aircraft.”

  5. Penultimate sentence of Para. 55.1 of the Commentary to the SRM/ACS: “With regard to the identification of [aircraft granted safe conduct], aircraft chartered by the ICRC have the same status as medical aircraft and may use the same methods of identification (paragraph 175).”

Categories: J: Aircraft Granted Safe Conduct Tags:

Rule 65

(a) Aircraft granted safe conduct lose their specific protection from attack in any one of the following instances:

[Commentary]
  1. They do not comply with the details of the agreement, including availability for inspection and identification.
    [Commentary]

  2. They intentionally hamper the movements of combatants and are not innocently employed in their agreed upon role.
    [Commentary]

(b) Loss of specific protection will only take place if the circumstances of non-compliance are sufficiently grave that the aircraft has become or may reasonably be assumed to be a military objective.

[Commentary]

  1. Rule 65 (a) is based on Para. 55 of the SRM/ACS[363] and on Para. 12.30 of the UK Manual.[364]

  2. Aircraft granted safe conduct are entitled to specific protection from attack. This specific protection will be lost in case of any breach of the terms of the special agreement underlying the operation. See also subsection J (III).

  3. Loss of specific protection by an aircraft granted safe conduct means that it reverts to the original category to which it belonged. It has to be recalled that such aircraft may include any type of aircraft (military or other State aircraft, civilian aircraft or medical aircraft, see Para. 2 of the Commentary on Rule 64).

  4. Notwithstanding the loss of specific protection, attack against such aircraft strictly depends on the application of Section J (III).

  5. The two conditions enumerated in Rule 65 (a) (i) and Rule 65 (a) (ii) are alternative and not cumulative.

  6. Rule 65 (a) applies also in non-international armed conflict.

  1. Para. 55 of SRM/ACS: “Aircraft granted safe conduct are exempt from attack only if they: (a) are innocently employed in their agreed role; (b) do not intentionally hamper the movements of combatants; and (c) comply with the details of the agreement, including availability for inspection.”

  2. Para. 12.30 of the UK Manual is identical to Para. 55 of the SRM/ACS.

  1. Rule 65 (a) (i) is based on Para. 55 (c) of the SRM/ACS.[365]

  2. Since the agreement reached between the Belligerent Parties is the sole reason for the specific protection of this category of aircraft, the aircraft is obliged to comply with the terms of such agreement in order to retain that specific protection (although it may enjoy some other protection as explained in paragraph 2 of the Commentary on Rule 64).

  3. Aircraft granted safe conduct are obliged to submit to inspection on the ground, in order to allow the opposing Belligerent Party to verify that it adheres to the terms of the agreement. Such inspection ought preferably to occur at an airfield or airport before the beginning of the flight (see Para. 55.1 of the Commentary on the SRM/ACS).

  4. Aircraft granted safe conduct are also obliged to comply with an order to identify themselves. Such identification will usually occur in flight (inter alia, through interception), and will not require inspection on the ground.

  1. Para. 55 (c) of SRM/ACS, see fn. 363.

  1. Rule 65 (a) (ii) is a combination of Para. 55 (a) and Para. 55 (b) of the SRM/ACS.[366]

  2. The conjunction “and” indicates that both conditions listed in Rule 65 (a) (ii) must be fulfilled cumulatively, i.e. the aircraft granted safe conduct must intentionally hamper the movement of combatants and it is not innocently employed in the agreed upon role.

  3. The adverb “intentionally” indicates that aircraft granted safe conduct will not lose their specific protection in case that the improper activity happened accidentally.

  4. As long as the aircraft granted safe conduct is innocently employed in its agreed upon role, the fact that it actually (but unintentionally) hampers the movement of combatants cannot be held against it.

  5. Aircraft granted safe conduct do not lose their specific protection from attack due to their carrying purely defensive weapons (for example, chaff) and individual light weapons for the defence of the crew, unless this runs counter to the basic agreement governing their mission.

  1. Para. 55 (a) and Para. 55 (b) of SRM/ACS, see fn. 363.

  1. Rule 65 (b) is based on Para. 57 (c) of the SRM/ACS.[367]

  2. “Sufficiently grave” means that the circumstances of non-compliance cannot be regarded as a trivial matter. This is a de minimis clause.

  3. Rule 65 (b) applies also in non-international armed conflict.

  1. Para. 57 (c) of SRM/ACS, see fn. 372.

Categories: J: Aircraft Granted Safe Conduct Tags:

Rule 66

In case of doubt whether an aircraft granted safe conduct qualifies as a military objective as per Rule 27, it will be presumed not to qualify as such.

[Commentary]

  1. This Rule is based on Art. 52 (3) of AP/I,[368] as well as on Para. 58 of the SRM/ACS.[369] The purpose is to affirm the protection of aircraft granted safe conduct by acknowledging a (rebuttable) presumption in their favour in case of doubt as to their use.

  2. The presumption contained in Rule 66 is the counterpart to Rule 59. An aircraft granted safe conduct must not be considered a military objective if doubt remains whether this is indeed the case. See Commentary on Rule 59 mutatis mutandis.

  3. Rule 66 applies also in non-international armed conflict.

  1. Art. 52 (3) of AP/I, see fn. 210.

  2. Para. 58 of SRM/ACS: “In case of doubt whether a vessel or aircraft exempt from attack is being used to make an effective contribution to military action, it shall be presumed not to be so used”.

Categories: J: Aircraft Granted Safe Conduct Tags:

Rule 67

Aircraft granted safe conduct are exempt from capture as prize, provided that they:

[Commentary]

(a) Are innocently employed in their normal role;

[Commentary]

(b) Immediately submit to interception and identification when required;

[Commentary]

(c) Do not intentionally hamper the movement of combatants and obey orders to  divert from their track when required; and

[Commentary]

(d) Are not acting in breach of a prior agreement.

[Commentary]

  1. This Rule is based on Para. 142[370] and on Para. 143 of the SRM/ACS.[371]

  2. The status of aircraft granted safe conduct is different from that of enemy civilian airliners, which do not benefit from exemption from capture (see Rule 62). However, it is clear that aircraft granted safe conduct must abide by the terms of their mission. The four conditions listed in Rule 67 (a) − (d) are cumulative. As the term “provided that” indicates, it suffices that one of the conditions of Rule 67 (a) − (d) is breached for an aircraft granted safe conduct to be liable to capture as prize.

  3. Rule 67 applies also in non-international armed conflict.

  1. Para. 142 of SRM/ACS: “The following aircraft are exempt from capture: (a) medical aircraft; and (b) aircraft granted safe conduct by agreement between the parties to the conflict.”

  2. Para. 143: Aircraft listed in paragraph 142 are exempt from capture only if they: (a) are innocently employed in their normal role; (b) do not commit acts harmful to the enemy; (c) immediately submit to interception and identification when required; (d) do not intentionally hamper the movement of combatants and obey orders to divert from their track when required; and (e) are not in breach of a prior agreement.”


Concerning the expression “innocently employed”, see Commentary on Rule 65 (a) (ii). The expression “normal role” means that the aircraft does not perform any activity which is inconsistent with its execution of the mission for which safe conduct was granted.

  1. A Belligerent Party has the right to ensure that the aircraft granted safe conduct is being used only for the purposes agreed upon. Therefore, an aircraft conducting a safe conduct mission is susceptible to being intercepted.

  2. As for interception in general (including procedures required for carrying it out, see Section U. Interception is usually conducted for purposes of later inspection on the ground (see Rule 134). As for identification, it can be conducted either in flight or on the ground during inspection. When interception is carried out, the aircraft granted safe conduct is required to cooperate with the intercepting aircraft.

  1. The adverb “intentionally” indicates that aircraft granted safe conduct will not lose their specific protection in case that the activity happened accidentally (see Commentary on Rule 65a (a) (ii)).

  2. “Orders to divert from their track” may be issued when the flight of the aircraft granted safe conduct interferes with military operations or otherwise poses a security risk. Orders to divert may not be issued capriciously; they must have a military reason.


Prior agreement means primarily the agreement under which the safe conduct is provided. However, there may be a supplementary agreement. For instance, the Belligerent Parties may conclude first a general agreement and then an ad hoc agreement relating to the specific flight.
Categories: J: Aircraft Granted Safe Conduct Tags:

Rule 68

Civilian airliners and aircraft granted safe conduct may only be attacked if they   have lost their protection as per Rules 63 and 65 and if the following cumulative conditions are fulfilled:

[Commentary]

(a)  Diversion for landing, inspection, and possible capture, is not feasible;

[Commentary]

(b)  No other method is available for exercising military control;

[Commentary]

(c) The circumstances leading to the loss of protection are sufficiently grave to justify an attack; and

[Commentary]

(d) The expected collateral damage will not be excessive in relation to the military advantage anticipated and all feasible precautions have been taken (see Section G of this Manual).

[Commentary]

  1. This Rule is partially based on Para. 57 of the SRM/ACS[372] and on Para. 12.32 of the UK Manual.[373]

  2. The purpose of Rule 68 is to specify the conditions that have to be fulfilled before either a civilian airliner or an aircraft granted safe conduct which has lost its protection (because it engages in any of the activities set out in respectively Rule 63 or Rule 65 (a)) may be attacked.

  3. A civilian airliner or an aircraft granted safe conduct may only be attacked if all the conditions of Rule 68 (a) to Rule 68 (d) are met.

  4. The application of this Rule is subject to the general conditions in Sections D, E and G (especially subsection (III) of Section G), and to the ancillary conditions in Rule 69 and 70.

  5. Rule 68 applies also in non-international armed conflict.

  1. Para. 57 of SRM/ACS (“Loss of exemption”): “If aircraft exempt from attack breach any of the applicable conditions of their exemption as set forth in paragraphs 54-56, they may be attacked only if: (a) diversion for landing, visit and search, and possible capture, is not feasible; (b) no other method is available for exercising military control; (c) the circumstances of non-compliance are sufficiently grave that the aircraft has become, or may be reasonably assumed to be, a military objective; and (d) the collateral casualties or damage will not be disproportionate to the military advantage gained or anticipated.”

  2. Para. 12.32 of the UK Manual is identical to Para. 57 of the SRM, the cross-reference in the UK Manual being to paragraphs 12.29 to 12.31 of the UK Manual.

  1. This condition is derived from Para. 57 (a) of the SRM/ACS.[374]

  2. The rules relating to diversion for landing, inspection, and capture are contained in Section U.

  3. The reference in Rule 68 (a) to “diversion for landing, inspection, and possible capture”, which constitutes a conditio sine quo non to attack, does not preclude the possibility of a different type of diversion away from the area of operations in lieu of an attack. Diversion away from the area does not entail landing, inspection, and capture. Such diversion, however, may not be sufficient in the view of the intercepting force. For example, the aircraft may be believed to be transporting combatants or military equipment, and this in breach of the safe conduct agreement. In such a case, there may be no alternative to diversion for purposes of landing, inspection and possible capture.

  1. Para. 57 (a) of SRM/ACS, see fn. 372.

  1. This condition is virtually identical to Para. 57 (b) of the SRM/ACS.[375]

  2. Belligerent military forces must first exhaust all feasible means to exercise control of the aircraft, with a view to the cessation of activities that had brought about the loss of protection in accordance with Rule 63 or Rule 65.

  3. When an order to land or to divert is issued, it must be reasonable in the circumstances. The aircraft ordered to land or divert must be afforded a reasonable opportunity to comply with it in terms of both time and practicability.

  1. Para. 57 (b) of SRM/ACS, see fn. 372.

  1. This condition is based on Para. 57 (c) of the SRM/ACS.[376]

  2. “Sufficiently grave” means that the circumstances of non-compliance cannot be regarded as a trivial matter. This is a de minimis clause. See also the Commentary on Rule 65 (b).

  1. Para. 57 (c) of SRM/ACS, see fn. 372.

  1. This condition is based on Rule 14. See also Para. 57 (d) of the SRM/ACS.[377]

  2. This general requirement is included here explicitly with a view to underscoring, in the specific context of civilian airliners and aircraft granted safe conduct, the general principle of proportionality (Rule 14) and the requirement of taking feasible precautions (Rule 32 (c) and Rule 35 (c)). Civilian airliners are entitled to particular care in terms of precautions.

  3. The Group of Experts did not agree as to whether the expected collateral damage is confined to the civilian losses on board the civilian airliner or the aircraft granted safe conduct, or whether it also extends to any further civilian losses on the ground (see paragraph 4 of the chapeau of the Commentary on Section G (III)).

  1. Para. 57 (d) of SRM/ACS, see fn. 372.

Categories: J: Provisions Common to Civilian Airliners and Aircraft Granted Safe Conduct Tags:

Rule 69

Any decision to attack a civilian airliner or an aircraft granted safe conduct pursuant to Rule 68 ought to be taken by an appropriate level of command.

[Commentary]

  1. The phrase “an appropriate level of command” is relative in its essence. This is due to the fact that States have different military structures and command levels. Since the decision to attack a civilian airliner or an aircraft granted safe conduct is of grave nature, it must be taken by a sufficiently high level of command.

  2. As a possible analogy, it is noteworthy that under Art. 13 (2) (c) (i) of the Second Protocol to the 1954 Hague Convention, cultural property under enhanced protection may only be the object of attack if ordered “at the highest operational level of command”.[378]

  1. Art. 13 (2) (c) (i) of the Second Protocol to the 1954 Hague Convention, see fn. 558.

Categories: J: Provisions Common to Civilian Airliners and Aircraft Granted Safe Conduct Tags:

Rule 70

In case of loss of protection pursuant to this Section, a warning must be issued – whenever circumstances permit − to the civilian airliner or the aircraft granted safe conduct in flight before any action is taken against it.

[Commentary]

  1. Rule 70 reiterates an obligation already appearing in Rule 38. However, Rule 38 is confined to objects entitled to specific protection (including aircraft granted safe conduct) but here it is extended also to civilian airliners, which are only entitled to particular care in terms of precautions.

  2. A warning must be issued “whenever circumstances permit”. In particular, there may be circumstances in which a hostile act by an aircraft is imminent and in which no time is available to issue the warning. In such a situation, a Belligerent Party cannot be expected to give a warning.

  3. A warning to a civilian airliner or to an aircraft granted safe conduct in flight may be issued either through radio communication or, where required through the exercise of the acceptable modes of interception detailed in the Commentary on the chapeau to Section U. If necessary, warning shots may be fired.

  4. For further details concerning this obligation to warn, see Commentary on Rule 37 and on Rule 38.

Categories: J: Provisions Common to Civilian Airliners and Aircraft Granted Safe Conduct Tags: