(a) If the commander of a military aircraft suspects that a civilian aircraft with neutral marks in fact has enemy character, the commander is entitled to exercise the right of interception and, if circumstances require, the right to divert for the purpose of inspection.
(b) If it is established, after inspection, that the civilian aircraft with neutral marks does not have enemy character, it must be allowed to proceed without delay.
- While the bearing of neutral marks is prima facie evidence of the neutral character of a civilian aircraft (see Rule 175), the true character of the aircraft — according to Rule 144 — may be determined by “other appropriate criteria”. Hence, the commander who has information at his disposal justifying reasonable grounds of suspicion that the aircraft is in fact of enemy character, may take all measures necessary to determine the aircraft’s true character. Hence, the aircraft may be summoned and interrogated.
- If the information given is insufficient to rule out doubts as to its true character, the civilian aircraft may be ordered to a belligerent airfield for the purpose of inspection. If inspection reveals its enemy character, the civilian aircraft may be captured as prize (see Rule 134).
- If it is established that a civilian aircraft has in fact neutral character, it must be released promptly, unless inspection reveals that it has been engaged in activities rendering it liable to capture as prize (see Rule 140).
- Although diversion as well as inspection may result in financial losses for the owner or operator, there is no right for compensation as long as the reasons justifying doubts as to the true character of the aircraft have been “reasonable”. This is the case if the responsible commander acted on the basis of information available to him, justifying the conclusion that the aircraft is in fact owned by enemy nationals or operating under charter by an enemy national. If, however, no such information existed at the time of diversion, the owner or those having a legal interest in the aircraft are entitled to compensation. This applies a fortiori if the diversion was arbitrary.
- For a similar approach see UNCLOS, Art. 106 (“Liability for seizure without adequate grounds”): “Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.”