The use of civilian aircraft and State aircraft other than military aircraft of a Belligerent Party, flying outside the airspace of or controlled by the enemy — in order to gather, intercept or otherwise gain information — is not to be regarded as espionage, although the aircraft may be attacked at such time as it is carrying out its information-gathering mission.
- Civilian and State aircraft other than military aircraft of a Belligerent Party may be used to gather information of military value from outside the airspace of, or the airspace controlled by, the enemy. Nevertheless, such aircraft, when engaged in such activities, constitute military objectives (see Rule 27 (a) and Rule 27 (c)).
- Of course, this Rule is without prejudice to the provision of Rule 171 (b), which does not allow use of neutral airspace for “intelligence purposes”.
- However, when civilian and State aircraft other than military aircraft gather information of military value within enemy controlled airspace, the acts concerned constitute espionage because they create the false pretences of being entitled to protection from attack.
- The use of weather aircraft — equipped and employed to monitor, collate and report data concerning weather conditions — does not amount to espionage, regardless of where the mission is conducted, because the information gathered is not military in nature (although aircraft conducting such missions for military purposes, or which will provide data to the military, may qualify as a military objective (see Rule 27, especially Rule 27 (a) and Rule 27 (c)).
- The expression “airspace of or controlled by the enemy” includes occupied territory. Information gathering missions over occupied territory are treated as if they were conducted over enemy territory.
- Rule 124 covers State aircraft other than military aircraft. As for military aircraft, see Rule 123.