Rule 134
Enemy civilian aircraft and goods on board may be captured as prize on the ground or — when flying outside neutral airspace — be intercepted and ordered to proceed to a reasonably accessible belligerent airfield that is safe for the type of aircraft involved. Prior exercise of inspection is not required.
[Commentary]
- Interception is a stage preliminary to inspection and possible capture. As a rule, interception will be necessary for the purpose of verification of the aircraft’s identity. However, if the enemy character of the civilian aircraft has been established by other means, interception may not be necessary. Nor is it necessary in such circumstances to inspect goods on board.
- Rule 134 reflects customary international law (see also Rule 49), according to which enemy civilian aircraft “are liable to capture in all circumstances”,[685] unless they come within special categories that are exempt from capture under the law of international armed conflict (see Section K on medical aircraft and Rule 67 on aircraft granted safe conduct).
- In this respect, air warfare is like sea warfare and not like land warfare. Whereas in land warfare Belligerent Parties are — other than in exceptional circumstances — not allowed to interfere with private property, in sea warfare enemy civilian vessels can be captured as prize with a view to interfering with the enemy’s trade and lines of commercial communication. The same applies in air warfare, where a civilian aircraft is liable to capture as prize solely on account of its enemy character.
- The right of capture applies to enemy civilian aircraft and goods wherever they are on the ground — i.e. if they are encountered on the territory of the captor State, a co-belligerent or the enemy — as long as they are not within neutral territory. Capture is exercised by taking physical control over the aircraft and its cargo.
- If encountered in the air, capture of an aircraft is impossible. Therefore, the aircraft must be intercepted and ordered to land in an airfield where capture can be exercised. Rule 134 refers to a “belligerent airfield”, meaning any airfield which is controlled either by the Belligerent Party that effected the capture or by a co-belligerent thereof.
- The airfield that the intercepted aircraft is ordered to land in must be “reasonably accessible” and “safe for the type of aircraft involved”. Accordingly, an enemy civilian aircraft may not be ordered or forced to land in an airfield if the aircraft, its crew or its passengers are exposed to any undue risks. This is a logical consequence of the fact that the enemy aircraft does not qualify as a military objective (unless one of the conditions of Rule 27 has been met) but it is merely liable to capture.
- Contrary to what is the case for neutral civilian aircraft (see paragraph 2 of the Commentary on Rule 137 (c)), consent is not required to divert an enemy civilian aircraft from its declared destination.
- Interception of enemy civilian aircraft for the purpose of the exercise of the right of capture is permissible outside neutral airspace only. Interception of aircraft in neutral airspace is a violation of the Neutral’s territorial sovereignty and is a violation of the prohibition to conduct hostile actions in neutral territory as laid down in Rule 171 (c).
- The aircrews of captured enemy civilian aircraft are entitled to POW status under GC/III.[686] Civilian passengers may be detained only if they pose a security threat in accordance with Art. 42[687] and Art. 43 of GC/IV.[688] Otherwise, they must be promptly released.
- Capture of enemy civilian aircraft and goods on board is subject to adjudication by a prize court “in order that any neutral claim may be duly heard and determined”.[689]
- The prize court is a domestic court of the captor Belligerent Party (usually an admiralty court). An attempt in 1907 to establish an International Prize Court failed.[690]
- Art. 52 of the HRAW: “Enemy private aircraft are liable to capture in all circumstances.”
See also Para. 141 of the SRM/ACS: “Subject to the provisions of paragraph 142, enemy civil aircraft and goods on board such aircraft may be captured outside neutral airspace. Prior exercise of visit and search is not required.” - Art. 4 (A) (5) of GC/III, see fn. 676.
- Art. 42 of GC/IV: “The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.”
- Art. 43 of GC/IV: “Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.”
- Art. 55 of the HRAW: “Capture of an aircraft or of goods on board an aircraft shall be made the subject of prize proceedings, in order that any neutral claim may be duly heard and determined.”
- 1907 Hague Convention (XII) relative to the Creation of an International Prize Court, which never entered into force due to insufficient ratifications.
