Rule 48
(a) All enemy civilian and State aircraft other than military aircraft may be intercepted, inspected or diverted in accordance with Section U.
[Commentary]
(b) Neutral civilian aircraft may be intercepted, inspected or diverted in accordance with Section U.
[Commentary]
- Rule 48 (a) only deals with enemy aircraft, both enemy civilian aircraft and enemy State aircraft other than military aircraft. As to neutral civilian aircraft, see Rule 48 (b).
- While enemy civilian aircraft are protected against attack (unless they constitute military objectives, see Rule 47 (b)), they are not protected against other forms of interference by the enemy Belligerent Party. Under customary international law (see Rule 134), enemy civilian aircraft may be captured as prize on the ground or — when flying outside neutral airspace — be intercepted. Moreover, enemy civilian aircraft exempt from capture as prize (e.g., cartel aircraft) may be subjected to inspection if there are reasonable grounds for sus-picion that they are not complying with the conditions rendering them immune from capture (see Rule 67).
- As for State aircraft, it is necessary to recall (see Rule 1 (cc)) that they include not only military air-craft, but also law-enforcement and customs aircraft, as well as aircraft employed for other non-commercial government functions. All State aircraft which are not military aircraft come within the scope of Rule 48 (a).
- As military objectives by nature (see Rule 22 (a)), enemy military aircraft can be fired upon. A fortiori, enemy military aircraft may be subjected to other belligerent rights, which do not entail their destruction.
- Although State aircraft usually enjoy sovereign immunity, this is irrelevant in the relations between Bel-ligerent Parties.
- As to inspection of civilian airliners, see Rule 61.
- In non-international armed conflicts, only the government will have military aircraft and State aircraft.
- Rule 48 (b) is meant to preserve the well-established right of Belligerent Parties of intercepting and inspecting civilian aircraft under Art. 49 of the HRAW,[334] which applies equally to neutral civilian aircraft. For the exercise of those rights, see Section U (II).
- It is to be noticed that unlike Rule 48 (a)), Rule 48 (b) does not specifically mention State aircraft. The reason is that neutral State aircraft, in contrast to neutral civilian aircraft, may not be interfered with by Belligerent Parties unless they constitute military objectives (see paragraph 5 of the Commentary on Rule 54 and paragraph 1 of the Commentary on Rule 174). In other words, the belligerent right of interception, inspecting or diverting — which applies to neutral civilian aircraft — does not apply to neutral State aircraft. Such aircraft enjoy sovereign immunity that must be respected by the Belligerent Parties.
- Rule 48 (b) does not apply to non-international armed conflict.
- Art. 58 (b) of AP/I: “The Parties to the conflict shall, to the maximum extent feasible: … (b) avoid locating military objectives within or near densely populated areas.”
Categories: I: General Rules
