Civilian airliner
(1) (i) “Civilian airliner” means a civilian aircraft identifiable as such and engaged in carrying civilian passengers in scheduled or non-scheduled service.
[Commentary]
- While no treaty recognizes a separate category of “civilian airliners”[46] the unique standing of civilian airliners is acknowledged in the SRM/ACS[47] and various military manuals (UK Manual[48] and NWP[49]).
- The Group of Experts was divided on whether civilian airliners are a special category benefiting from specific protection beyond that due to the general protection accorded to civilian aircraft. The compromise was to recognize that civilian airliners are entitled to particular care in terms of precautions (see Section J (I) and Section J (III), especially Rule 58).
- Civilian airliners benefit from particular care in terms of precautions in view of their world-wide em-ployment in carrying civilian passengers in international air navigation, and in view of the vast risks to innocent passengers in areas of armed conflict.
- Since “civilian airliners” are but a subcategory of “civilian aircraft”, they must comply with the rules on registration and marking set forth in the Chicago Convention (see paragraph 3 of the Commentary on Rule 1 (h)).
- The phrase “engaged in carrying civilian passengers” means that the civilian passengers must actually be on board the aircraft, whether in flight or while the aircraft is on the ground. Aircraft with no civilian passengers on board are “civilian aircraft”, as dealt with in Rule 1 (h) and in Section I. On the other hand, the mere fact that some passengers are members of the enemy’s armed forces, does not prejudice the status of a civilian airliner. That does not mean that a civilian airliner may never be attacked (see Section J (I) and Section J (III)).
- “Civilian airliners” will usually be identifiable as such because Belligerent Parties, as well as Neutrals, provide regular air traffic services within their respective flight information region (FIR) in accordance with ICAO regulations and procedures. Their status as civilian airliner, however, does not depend on whether the flight in question is scheduled. Similarly, it is immaterial whether the flight takes place along Air Traffic Service-routes. Since the object and purpose of the category of “civilian airliner” is to protect civilian passengers, civilian airliners having strayed from their Air Traffic Service-routes — e.g., in a situation of distress — are still entitled to particular care in terms of precautions.
- The special protection of “civil aircraft” under Art. 3 bis of the Chicago Convention does not apply in situations of armed conflict. Art. 3 bis of the Chicago Convention reads: “(a) The Contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.”
- Para. 13 (m) of the SRM/ACS: “‘Civil airliner’ means a civil aircraft that is clearly marked and engaged in carrying civilian passengers in scheduled or non-scheduled services along Air Traffic Service routes.”
- Para. 12.7 of the UK Manual: “‘Civil airliner’ means a civil aircraft that is clearly marked and engaged in carrying civilian passengers in scheduled or non-scheduled services along air traffic service routes.”
- Para. 8.6.3. of NWP (“Enemy Vessels and Aircraft Exempt from Destruction or Capture”) of NWP at subpara. 6: “Certain classes of enemy vessels and aircraft are exempt under the law of naval warfare from capture or destruction provided they are innocently employed in their exempt category. These specially protected vessels and aircraft must not take part in the hostilities, must not hamper the movement of combatants, must submit to identification and inspection procedures, and may be ordered out of harm’s way. These specifically exempt vessels and aircraft include: … (6) Civilian passenger vessels at sea and civil airliners in flight are subject to capture but are exempt from destruction. Although enemy lines of communication are generally legitimate military targets in modern warfare, civilian passenger vessels at sea, and civil airliners in flight, are exempt from destruction, unless at the time of the encounter they are being utilized by the enemy for a military purpose (e.g., transporting troops or military cargo) or refuse to respond to the directions of the intercepting warship or military aircraft. Such passenger vessels in port and airliners on the ground are not protected from destruction.”
Categories: Section A: Definitions
