R: Specifics of Air or Missile Operations

Rule 123

Military aircraft on missions to gather, intercept or otherwise gain information are not to be regarded as carrying out acts of espionage.

[Commentary]

  1. The definition of espionage (see Rule 118) excludes from its scope military aircraft on overt missions of information gathering.

  2. Military aircraft that do not enter the airspace above enemy-controlled territory can never be regarded as engaged in espionage because they do not come within the bounds of the definition in Rule 118, which requires that the information be obtained “in territory controlled by the enemy”. This is so even if they indulge in intelligence gathering when they fly adjacent to enemy airspace.

  3. When military aircraft engaged in intelligence gathering enter the airspace above enemy-controlled territory, they can be regarded as engaged in espionage only if they are “acting clandestinely or on false pretences”, in other words, they are acting covertly (“clandestinely”).

  4. The nature of the information gathered, so long as it is of military value, is irrelevant. For instance, military aircraft may intercept electronic signals, listen into phone and other communications, take photos, observe heat signature, etc.

  5. Operations such as air refuelling for special operations involving infiltration, exfiltration, or airdrops, do not as such amount to espionage, because they have nothing to do with intelligence gathering.

  6. When a military aircraft does not qualify as being engaged in espionage, neither do the aircrews in it. This is so even if the aircrews are not wearing uniform while on board, because the wearing of the uniform is generally not apparent to the enemy, and because the military aircraft’s marking allows sufficient identification. See, however, Rule 117.

  7. Even when not engaged in espionage, military aircraft constitute military objectives by nature (see Rule 1 (y) and Rule 22 (a)).

  8. Rule 123 deals only with military aircraft. For other categories of aircraft, see Rule 124.

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Rule 124

The use of civilian aircraft and State aircraft other than military aircraft of a Belligerent Party, flying outside the airspace of or controlled by the enemy — in order to gather, intercept or otherwise gain information — is not to be regarded as espionage, although the aircraft may be attacked at such time as it is carrying out its information-gathering mission.

[Commentary]

  1. Civilian and State aircraft other than military aircraft of a Belligerent Party may be used to gather information of military value from outside the airspace of, or the airspace controlled by, the enemy. Nevertheless, such aircraft, when engaged in such activities, constitute military objectives (see Rule 27 (a) and Rule 27 (c)).

  2. Of course, this Rule is without prejudice to the provision of Rule 171 (b), which does not allow use of neutral airspace for “intelligence purposes”.

  3. However, when civilian and State aircraft other than military aircraft gather information of military value within enemy controlled airspace, the acts concerned constitute espionage because they create the false pretences of being entitled to protection from attack.

  4. The use of weather aircraft — equipped and employed to monitor, collate and report data concerning weather conditions — does not amount to espionage, regardless of where the mission is conducted, because the information gathered is not military in nature (although aircraft conducting such missions for military purposes, or which will provide data to the military, may qualify as a military objective (see Rule 27, especially Rule 27 (a) and Rule 27 (c)).

  5. The expression “airspace of or controlled by the enemy” includes occupied territory. Information gathering missions over occupied territory are treated as if they were conducted over enemy territory.

  6. Rule 124 covers State aircraft other than military aircraft. As for military aircraft, see Rule 123.

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