Rule 135
As an exceptional measure, captured enemy civilian aircraft and goods on board may be destroyed when military circumstances preclude taking the aircraft for prize adjudication, provided that all persons on board have first been placed in safety and documents relating to the prize have been preserved.
[Commentary]
- According to customary international law, Belligerent Parties are entitled to destroy captured prizes “if sending them in for adjudication would be impossible or would imperil the safety of the belligerent aircraft or the success of the operations in which it is engaged.”[691] Hence, considerations of military necessity may justify the destruction of a captured enemy civilian aircraft and of goods on board such aircraft. However, destruction of this type is only recognized as an exceptional measure and must be clearly distinguished from destruction under the definition of military objectives (see Rule 11 (y) and Section E).
- Destruction is permissible only if passengers and crew “have first been placed in safety”. Whether a place is sufficiently safe for those persons is a question of fact and will depend upon the circumstances of each case. Since capture presupposes physical control over the aircraft, it will be exercised on the ground. Therefore, the airfield where the aircraft is captured will not qualify as a sufficiently safe place if it is located within the combat zone or if it is under continuous attacks by the enemy.
- If a captured enemy civilian aircraft is destroyed, the captor “must bring the capture before a prize court”.[692] The obligation of preserving the aircraft’s documents is meant to enable the prize court to render its decision on the legality of the capture, as well as the destruction, and on possible neutral claims.
- If the prize court rules that capture or destruction was illegal, the neutral owners of the cargo on board the enemy civilian aircraft are entitled to compensation.
- Art. 58 of the HRAW: “Private aircraft which are found upon visit and search to be neutral aircraft liable to condemnation upon the ground of unneutral service, or upon the ground that they have no external marks or are bearing false marks, may be destroyed, if sending them in for adjudication would be impossible or would imperil the safety of the belligerent aircraft or the success of the operations in which it is engaged. Apart from the cases mentioned above, a neutral private aircraft must not be destroyed except in the gravest military emergency, which would not justify the officer in command in releasing it or sending it in for adjudication.”
- Art. 59 of the HRAW: “Before a neutral private aircraft is destroyed, all persons on board must be placed in safety, and all the papers of the aircraft must be preserved. A captor who has destroyed a neutral private aircraft must bring the capture before the prize court, and must first establish that he was justified in destroying it under Article 58. If he fails to do this, parties interested in the aircraft or its cargo are entitled to compensation. If the capture is held to be invalid, though the act of destruction is held to have been justifiable, compensation must be paid to the parties interested in place of the restitution to which they would have been entitled.”
