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

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.

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