Rule 58

Civilian airliners are civilian objects which are entitled to particular care in terms of precautions.

[Commentary]

  1. Civilian airliners are defined in Rule 1 (i).

  2. Rule 58 is based on Para. 53 of the SRM/ACS[344] and on Para. 12.28 of the UK Manual.[345] Unlike Para. 53 of the SRM/ACS, Rule 58 of this Manual refers to “civilian airliners” in general and not only to “classes of enemy aircraft”. Therefore, according to Rule 58, both enemy and neutral civilian airliners are entitled to protection as civilian objects.[346]

  3. As indicated in paragraph 2 of the Commentary on Rule 1 (i), the Group of Experts was divided on the question as to whether civilian airliners are entitled to specific protection beyond the application of the principle of distinction in general. The principle of distinction is undisputed as a general norm of customary international law (see Rule 10 (a)).

  4. The key phrase “particular care in terms of precautions” also relates to the duty to avoid — or, in any event, to minimize — civilian casualties. The purpose of Rule 58 is to ensure that Belligerent Parties will at all times be aware of the vulnerability of civilian airliners and, therefore, must exercise particular care in terms of precautions in order to prevent situations that might lead to the accidental downing of a civilian airliner.

  5. The compromise adopted by the Group of Experts resulted from the following views: one part of the Group of Experts argued that civilian airliners are included in the category of civilian aircraft (as defined in Rule 1 (h)) and ought not to legally benefit from an additional (specific) protection. Another part of the Group of Experts — taking into consideration the importance of this category of aircraft because of the vulnerability of civilian airliners, which may have large numbers of civilian passengers on board who are at risk — supported the opposite view.

  6. As a compromise, the Group of Experts agreed that civilian airliners are entitled to the general protection under the principle of distinction, but that they are also entitled to “particular care in terms of precautions”. This means especially that the general obligation to take every feasible step — in order to ascertain that the target to be attacked is a lawful target — must be meticulously observed. See Rule 32 (a). See also Rule 35 (a) and Rule 35 (c).

  7. The protection of civilian airliners is also laid down in the Chicago Convention. The Convention’s Art. 3 bis, subparagraph (a), provides that the “contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight”.[347] While the Chicago Convention refers to civil aircraft (including civilian airliners) “in flight” only, this Manual posits that civilian airliners are also protected while on the ground (see Rule 59). Although the Chicago Convention does not apply in armed conflict,[348] this Manual shares the premise that civilian airliners are entitled to particular care in terms of precautions.

  8. Rule 58 in no way diminishes the general protection to which civilian aircraft are entitled (see Section I).

  9. As the protection of civilian airliners can be effective only insofar as Belligerent Parties are able to identify them, Art. 20 of the Chicago Convention provides that “every aircraft engaged in international air navigation shall bear its appropriate nationality and registration marks”.[349] Annex 7 of the Chicago Convention further sets out the procedures and rules for selection by ICAO Contracting States of nationality and registration marks. Additionally, civilian airliners can be identified through using Secondary Surveillance Radar (SSR) modes and codes for civil aircraft as specified in Annex 10 to the Chicago Convention.[350]

  10. Given the events of 9/11, it is impossible to ignore the danger that civilian airliners can be hijacked (and then used as means of attack) or otherwise be employed in ways harmful to the enemy. Hence, it is important to emphasize that, in certain circumstances, protection of civilian airliners is liable to be lost (see Rule 63). However, even if a civilian airliner loses its protection, certain conditions must still be met before attacking it (see Subsection III of Section J (III)). In ordinary circumstances, the presence on board a civilian airliner of a civilian crew and a large number of civilian passengers underscores the need to avoid collateral damage which, in most circumstances, will be excessive in relation to the military advantage anticipated (see Rule 68 (d)).

  11. Rule 58 applies also in non-international armed conflict.

  1. Para. 53 of SRM/ACS: “The following classes of enemy aircraft are exempt from attack: (a) medical aircraft; (b) aircraft granted safe conduct by agreement between the parties to the conflicts; and (c) civil airliners.”

  2. Para. 12.28 of the UK Manual: “The following classes of enemy aircraft are exempt from attack: (a) medical aircraft; (b) aircraft granted safe conduct by agreement between the parties to the conflict; and (c) civil airliners.”

  3. The provisions of the SRM/ACS do not explicitly state that neutral civil airliners are equally entitled to special protection from attack. This point is only implicitly acknowledged in Para. 70.1 of the Commentary on the SRM/ACS: “Neutral civil aircraft may not be attacked unless they engage in specific activities as listed. Even then paragraph 71 governs. The neutral civil aircraft addressed in paragraphs 70 and 71 are civil aircraft other than medical aircraft, aircraft granted safe conduct and civil airliners which are exempt from attack.”

  4. Art 3 bis (a) of the Chicago Convention, see fn. 46.

  5. Art. 89 of the Chicago Convention (“War and Emergency Conditions”): “In case of war, the provisions of this Convention shall not affect the freedom of action of any of the contracting States affected, whether as belligerents or as neutrals. The same principle shall apply in the case of any contracting state which declares a state of national emergency and notifies the fact to the Council.”

  6. ICAO, Aircraft Nationality and Registration Marks, Annex 7 to the Chicago Convention on International Civil Aviation.

  7. ICAO, Aeronautical Telecommunications, Annex 10 to the Chicago Convention on International Civil Aviation.

Categories: J: Civilian Airliners