Aircraft granted safe conduct by agreement between the Belligerent Parties − such as cartel aircraft − are entitled to specific protection from attack.
[Commentary]
- Rule 64 is based on Para. 53 (b) of the SRM/ACS.[358]
- 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).
- 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.
- 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).
- 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]
- 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.
- 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]
- Para. 53 (b) of SRM/ACS, see fn. 344.
- 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. …”
- 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.
- 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.”
- 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).”
(a) Aircraft granted safe conduct lose their specific protection from attack in any one of the following instances:
[Commentary]
- They do not comply with the details of the agreement, including availability for inspection and identification.
[Commentary]
- 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]
- Rule 65 (a) is based on Para. 55 of the SRM/ACS[363] and on Para. 12.30 of the UK Manual.[364]
- 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).
- 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).
- Notwithstanding the loss of specific protection, attack against such aircraft strictly depends on the application of Section J (III).
- The two conditions enumerated in Rule 65 (a) (i) and Rule 65 (a) (ii) are alternative and not cumulative.
- Rule 65 (a) applies also in non-international armed conflict.
- 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.”
- Para. 12.30 of the UK Manual is identical to Para. 55 of the SRM/ACS.
- Rule 65 (a) (i) is based on Para. 55 (c) of the SRM/ACS.[365]
- 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).
- 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).
- 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.
- Para. 55 (c) of SRM/ACS, see fn. 363.
- Rule 65 (a) (ii) is a combination of Para. 55 (a) and Para. 55 (b) of the SRM/ACS.[366]
- 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.
- The adverb “intentionally” indicates that aircraft granted safe conduct will not lose their specific protection in case that the improper activity happened accidentally.
- 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.
- 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.
- Para. 55 (a) and Para. 55 (b) of SRM/ACS, see fn. 363.
- Rule 65 (b) is based on Para. 57 (c) of the SRM/ACS.[367]
- “Sufficiently grave” means that the circumstances of non-compliance cannot be regarded as a trivial matter. This is a de minimis clause.
- Rule 65 (b) applies also in non-international armed conflict.
- Para. 57 (c) of SRM/ACS, see fn. 372.
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]
- 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.
- 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.
- Rule 66 applies also in non-international armed conflict.
- Art. 52 (3) of AP/I, see fn. 210.
- 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”.
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]
- This Rule is based on Para. 142[370] and on Para. 143 of the SRM/ACS.[371]
- 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.
- Rule 67 applies also in non-international armed conflict.
- 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.”
- 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.
- 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.
- 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.
- 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)).
- “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.
