Military aircraft on missions to gather, intercept or otherwise gain information are not to be regarded as carrying out acts of espionage.
- The definition of espionage (see Rule 118) excludes from its scope military aircraft on overt missions of information gathering.
- 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.
- 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”).
- 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.
- 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.
- 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.
- Even when not engaged in espionage, military aircraft constitute military objectives by nature (see Rule 1 (y) and Rule 22 (a)).
- Rule 123 deals only with military aircraft. For other categories of aircraft, see Rule 124.