Rule 136
(a) Enemy military, law-enforcement and customs aircraft are booty of war. Prize procedures do not apply to captured enemy military aircraft and other State aircraft, inasmuch as their ownership immediately passes to the captor government by virtue of capture.
[Commentary]
(b) If a military aircraft becomes disabled or experiences technical problems that require it to land in enemy territory, the aircraft may be seized and destroyed or converted for use by the enemy.
[Commentary]
(c) Captured aircrews of military aircraft covered under this Rule are prisoners of war.
[Commentary]
- This Rule is based on Art. 32 of the HRAW
.[693] In the case of enemy civilian aircraft, the property does not pass to the captor until the prize has been condemned by a prize court. For their part, enemy military aircraft captured on the ground, are no different from other enemy governmental property. All captured enemy governmental property which is movable becomes automatically the property of the captor Belligerent Party as booty of war. - In view of the nature of enemy military aircraft, it is immaterial whether they have been captured after a military engagement or whether they have been forced, by whatever means, to land on the territory of a Belligerent Party. Capture is effected by securing possession of the aircraft. The effect of capture of an enemy military aircraft is the immediate and final transfer of property to the captor Belligerent Party, who is then entitled to deal with the military aircraft as it wishes. Use of the captured aircraft as a military aircraft by the captor Belligerent Party presupposes of course that the aircraft in question meets the requirements laid down in Rule 1 (x).
- As regards State aircraft other than military aircraft, it must be recalled (see Commentary on Rule 1 (c)) that there is a distinction between those aircraft which are used for law-enforcement (including police) and customs purposes, on the one hand, and other State aircraft, on the other. According to Art. 5 of the HRAW,[694] State aircraft other than police and customs aircraft are treated on the same footing as “private” (namely civilian) aircraft and, according to Art. 32 of the HRAW, are not subject to confiscation without prize proceedings, i.e. they do not constitute booty of war. The expression in Rule 136 (a) of “other State aircraft” ought to be interpreted as State aircraft other than law-enforcement and customs aircraft. There is no question that the distinction for the purposes of booty of war and prize, made in Art. 5 and in Art. 32 of the HRAW, is still valid today.
- Rule 136 (a) uses the somewhat broader term “law-enforcement” in preference to the term “police” (used in Art. 4 of the HRAW).[695]
The fact that a military aircraft is forced to land in enemy territory, because it has become disabled or because of technical problems, does not alter that aircraft’s nature as booty of war (see Rule 136 (a)).
