(1) (cc) “State aircraft” means any aircraft owned or used by a State serving exclusively non-commercial government functions.
- This definition is based on Art. 2, Art. 4 and Art. 5 of the HRAW. Art. 2 thereof starts from the premise that “public aircraft” are either “military aircraft” or “non-military aircraft exclusively employed in the public service”. Accordingly, the decisive criterion for an aircraft to qualify a “State aircraft” is its employment for public service, not ownership.
- The Group of Experts preferred the commonly used expression “State aircraft” over either the term “public aircraft” or the alternative term “auxiliary aircraft”, used in some military manuals.
- The HRAW distinguish between (Art. 4) “public non-military aircraft employed for customs or police purposes” and (Art. 5) “public non-military aircraft other than those employed for customs and police purposes”. According to Art. 5 of the HRAW, the latter are “treated on the same footing as private aircraft” and, according to Art. 32 HRAW, are not subject to confiscation without prize proceeding, i.e. they do not constitute booty of war (see Rule 136 (a), which prefers the more comprehensive term “law-enforcement” over the term “police”).
- It is generally accepted that the approach to this subject which has been taken by the HRAW is still valid today. Military manuals explicitly refer to police and customs aircraft. Moreover, the limitation of the category of “State aircraft” to those performing military, police or customs services has been recognized in Art. 3 (b) of the Chicago Convention, within the framework of EUROCONTROL and by national legislation.
- A police or customs aircraft, according to Art. 4 of the HRAW, “shall carry papers evidencing the fact that it is exclusively employed in the public service. Such an aircraft shall bear an external mark indicating its nationality and its public non-military character.”
- All “State aircraft” enjoy sovereign immunity in peacetime. During an international armed conflict, this immunity continues to be applicable only insofar as neutral State aircraft are concerned. As regards the State aircraft of the Belligerent Parties, sovereign immunity is inapplicable. A distinction is made, however, between military, law-enforcement and customs aircraft which can be seized as booty of war (see Rule 136 (a)) and other State aircraft, which can only be captured as prize following prize adjudication. See Rule 136 (a) and paragraph 3 of the Commentary on that Rule.
- “State aircraft” other than military aircraft are not entitled to exercise belligerent rights (Rule 17). They are not military objectives by nature (see Rule 22 (a) and Rule 23) and, thus, not liable to be attacked automatically as such. However, if enemy State aircraft engage in activities rendering them a military objective they may qualify as a military objective (see Rule 27).
- Art. 2 of the HRAW: “The following shall be deemed to be public aircraft: (a) Military aircraft; (b) Non-military aircraft exclusively employed in the public service. All other aircraft shall be deemed to be private aircraft.”
- Art. 4 of the HRAW: “A public non-military aircraft employed for customs or police purposes shall carry papers evidencing the fact that it is exclusively employed in the public service. Such an aircraft shall bear an external mark indicating its nationality and its public non-military character.”
- Art. 5 of the HRAW: “Public non-military aircraft other than those employed for customs or police purposes shall in time of war bear the same external marks, and for the purposes of these Rules shall be treated on the same footing, as private aircraft.”
- Para. 13 (k) of the SRM/ACS: “‘Auxiliary aircraft’ means an aircraft, other than a military aircraft, that is owned by or under the exclusive control of the armed forces of a State and used for the time being on government non-commercial service.”
Para. 12.5 of the UK Manual: “‘Auxiliary aircraft’ means an aircraft, other than a military aircraft, that is owned by or under the exclusive control of the armed forces of a state and used for the time being on government non-commercial service.”
- Art. 32 of the HRAW: “Enemy public aircraft, other than those treated on the same footing as private aircraft, shall be subject to confiscation without prize proceedings.”
- E.g., Para. 12.6.1 of the UK Manual: “The Chicago Convention distinguishes between civil aircraft and State aircraft. The Convention applies only to civil aircraft. … aircraft used in military, customs and police services are deemed to be State aircraft under Art. 3(b) of the Chicago Convention.”
Para. 1008 of the German ZDv: “‘State aircraft’ are all aircraft belonging to or used by the state and serving exclusively state functions (e.g. in customs or police service).”
- Art. 3 (b) of the Chicago Convention: “Aircraft used in military, customs and police services shall be deemed to be State aircraft.”
- EUROCONTROL, Decision of the Provisional Council Session of 12 July 2001, Principle 1, see fn. 95.
- E.g., Section 3 of the Commonwealth Civil Aviation Act 1988 defines “State aircraft” as “(a) aircraft of any part of the Defence Force (including any aircraft that is commanded by a member of that Force in the course of duties as such a member) …; and (b) aircraft used in the military, customs or police services of a foreign country.” Available via www.austlii.edu.au/au/legis/cth/consol_act/caa1988154/s3.html.
- Art. 13 of the HRAW, see fn. 245.