(a) Only military aircraft, including UCAVs, are entitled to engage in attacks.
(b) The same Rule applies to the exercise of other belligerent rights, such as interception.
- The Rule is based on the Art. 13 and Art 16 of the HRAW, and is also found in national military manuals. See also Rule 115 (b).
- Rule 17 (a) aims to emphasize that only military aircraft are entitled to exercise any belligerent rights. Just like civilian aircraft, State aircraft other than military aircraft are not entitled to engage in attacks, even if they are owned by or under the exclusive control of the armed forces and being used for government non-commercial services. This means that law-enforcement, customs or coast guard aircraft which do not qualify as military aircraft (see Rule 1 (x)) may not engage in hostilities as long as they are not incorporated into the armed forces.
- UCAVs (see definition in Rule 1 (ee)), whether remotely piloted or acting autonomously, may engage in attacks as long as they qualify as military aircraft. Autonomous action means that the unmanned aircraft has sensors and an onboard data processing capability to make decisions to attack according to a computer program. The sensors and computer programs must be able to distinguish between military objectives and civilian objects, as well as between civilians and combatants.
- The prohibition of an exercise of belligerent rights by State aircraft other than military aircraft, as defined in Rule 1 (cc), is limited to the exercise of belligerent rights reserved for military aircraft, such as conducting an attack. State aircraft other than military aircraft may continue to perform their functions, e.g., genuine law-enforcement activities.
- Law-enforcement organizations may be incorporated into the armed forces (see Art. 43 (3) of AP/I). In such cases, their aircraft qualify as military aircraft. They will then enjoy all the rights accruing to military aircraft, as well as be liable to be attacked. Members of such agencies incorporated in the armed forces become combatants (see Commentary on Rule 10 (b) (i)). The aircraft of such agencies, being State aircraft, have to be converted to military aircraft (see definition of military aircraft in Rule 1 (x)) before they may engage in attacks.
- Aircraft operated by private security companies or other private contractors not meeting the requirement to qualify as military aircraft, are civilian aircraft. Once a former military aircraft is operated, or commanded, by private companies, it loses its status as a military aircraft and may no longer engage in attacks in international armed conflicts, though it may carry out security functions for the government, as assigned.
- Rule 17 (a) does not apply in non-international armed conflict. States are more likely to employ law-enforcement and other State aircraft during these conflicts. It is not in contravention with the law of international armed conflict if such aircraft conduct combat functions.
- On occasion, States have employed the services of private security companies to conduct aerial operations during non-international armed conflicts. Although governments are not obliged to use military aircraft to conduct air combat operations in non-international armed conflict, all such operations are governed by the Rules, as applicable to non-international armed conflict, reflected in this Manual.
- Art. 13 of the HRAW: “Military aircraft are alone entitled to exercise belligerent rights.”
- Art. 16 of the HRAW: “No aircraft other than a belligerent military aircraft shall engage in hostilities in any form. The term ‘hostilities’ includes the transmission during flight of military intelligence for the immediate use of a belligerent. No private aircraft, when outside the jurisdiction of its own country, shall be armed in time of war.”
- Para. 12.34 of the UK Manual (“Only military aircraft may carry out attacks”): “Only military aircraft may attack military objectives. If it is intended to use civilian aircraft for combat purposes, they must be embodied into the air force and correctly marked. The classification in the Hague Rules 1923 of public and private aircraft has legal implications for the rights of visit, search, and capture.”
Para. 1015 of the German ZDv: “The following vessels and units are competent to perform acts of naval warfare: — warships and other units of naval forces; — military aircraft and; — units of land and air forces.”
- Para. 12.5 of the UK Manual (see fn. 111) uses the term “auxiliary aircraft”.
- Some States have organized their coast guard as a non-military law enforcement service. For those States that have organized their coast guard as a part of the armed forces, this exception is not relevant.
- Art. 43 (3) of AP/I, see fn. 199.
- Examples of belligerent rights other than attack are interception, mentioned Rule 17 (b), as well as inspection, diversion and capture as prize (see Section U).
- These belligerent rights do not exist as a matter of law in non-international armed conflict.
Categories: D: Specifics of Air or Missile Operations