J: Civilian Airliners

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.

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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.

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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.

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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.”

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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.

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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.
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