S: Specifics of Air or Missile Operations

Rule 128

Aircrews of a military aircraft wishing to surrender ought to do everything feasible to express clearly their intention to do so. In particular, they ought to communicate their intention on a common radio channel such as a distress frequency.

[Commentary]

  1. The law of international armed conflict does not precisely define when surrender of a military aircraft takes effect or how it may be accomplished in practical terms.
  2. Unlike land or naval warfare (see paragraphs 5 and 6 of the Commentary on Rule 127 (a)), the practice of air warfare does not reveal any commonly accepted indication of an aircrew’s wish to surrender.
  3. Rocking the aircraft’s wings, lowering the landing gear and other signals (such as flashing of navigational lights or jettisoning of weapons) are sometimes cited as indications of an intent to surrender, but they cannot be regarded as conclusive evidence, since there may be other reasons for the activity in question. Moreover, when air and missile combat is conducted beyond visual range, as frequently happens in modern warfare, such gestures are futile. Consequently, only an appropriate radio communication — duly transmitted to the enemy, preferably on an ICAO distress frequency — may be deemed an effective message of surrender in over-the-horizon aerial encounters.
  4. The ICAO distress frequency must not be disrupted by any Belligerent Party (see paragraph 2 of the Commentary on Rule 115). Continuous watch ought to be kept on this frequency at the appropriate command centres.
  5. Rule 128 applies mutatis mutandis to capture in non-international armed conflict (see paragraph 6 of the Commentary on Rule 125).

Rule 129

A Belligerent Party may insist on the surrender by an enemy military aircraft being effected in a prescribed mode, reasonable in the circumstances. Failure to follow any such instructions may render the aircraft and the aircrews liable to attack.

[Commentary]

  1. In the absence of generally prescribed modes of surrender in air warfare, there may be no alternative to such modes being set ad hoc by a Belligerent Party in light of the prevailing circumstances. However, any prescribed mode established in such fashion must be reasonable.
  2. A “prescribed mode” — established under Rule 129 — could include flying a particular course, at a fixed altitude and at a given airspeed, as well as landing at a pre-arranged location.
  3. Once a prescribed mode of surrender is established in conformity with Rule 129, any deviation from its terms may expose the aircraft to an attack.
  4. Rule 129 applies mutatis mutandis to capture in non-international armed conflict (see paragraph 6 of the Commentary on Rule 125).

Rule 130

Aircrews of military aircraft wishing to surrender may, in certain circumstances, have to parachute from the aircraft in order to communicate their intentions. The provisions of this Section of the Manual are without prejudice to the issue of surrender of aircrews having descended by parachute from an aircraft in distress (see Section T of this Manual).

[Commentary]

  1. Since there is no generally prescribed mode indicating surrender of an aircraft and its crew, and since radio communications may fail, aircrews of military aircraft may have no alternative but to resort to parachuting from their aircraft if they want to surrender.
  2. Aircrews of military aircraft may descend by parachute from their aircraft because of distress, irrespective of any intention to surrender (see Section T). Whether or not they wish to surrender, they must not be attacked during the descent, and must be given an opportunity to surrender upon reaching enemy-controlled territory (see Rule 132 (b)). Only airborne troops may be attacked during their descent.
  3. Rule 129 applies mutatis mutandis to capture in non-international armed conflict (see paragraph 6 of the Commentary on Rule 125).

Rule 131

Subject to Rule 87, surrendering combatants, as well as captured civilians accompanying the armed forces (such as civilian members of military aircraft crews) and crews of civilian aircraft of the Belligerent Parties who do not benefit from a more favorable treatment, are entitled to prisoner of war status.

[Commentary]

  1. This Rule is based on Art. 4 (A) (4)–(5) of GC/III,[676] which deals with persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews. It also includes crews of civilian aircraft of the Belligerent Parties. Such civilians are entitled to POW-status if they are captured.
  2. Civilians who are entitled to POW-status under GC/III must be differentiated in this respect from ordinary civilians who are covered by GC/IV.
  3. Generally speaking, aircrews and passengers of State aircraft (other than military aircraft) will be civilians. However, some passengers transported by a State aircraft other than a military aircraft, may be members of the armed forces. In that case, they may be taken as POW upon capture of the aircraft.
  4. Medical or religious personnel cannot be taken as POW and must be allowed to carry out their mission (see Rule 71 and 87).
  5. The status of POW does not exist as a legal category in non-international armed conflict. Nevertheless, those who have given themselves up for capture (see paragraph 6 of the Commentary on Rule 125) enjoy certain protections under Common Art. 3 of the Geneva Conventions[677] and under customary international law.
  1. Art. 4 (A) (4) and (5) of GC/III: “(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.”
  2. Common Art. 3 of the Geneva Conventions, see fn. 118.