Practice Relating to Rule 7. The Principle of Distinction between Civilian Objects and Military Objectives
Section E. Attacks against civilian means of transportation
Chicago Convention
Article 3 bis of the 1944 Chicago Convention provides: “All States must abstain from using force against a civilian plane in flight.”
Convention on International Civil Aviation, Chicago, 7 December 1944, as amended by the Protocol relating to an Amendment to the Convention on International Civil Aviation, Montreal, 10 May 1984, Article 3 bis.
Report of the Commission on Responsibility
Based on several documents supplying evidence of outrages committed during the First World War, the 1919 Report of the Commission on Responsibility lists violations of the laws and customs of war which should be subject to criminal prosecution, including the destruction of merchant ships and passenger vessels without warning and without provision for the safety of passengers or crew and the destruction of fishing boats.
Report submitted to the Preliminary Conference of Versailles by the Commission on Responsibility of the Authors of the War and on Enforcement of Penalties, Versailles, 29 March 1919.
Hague Rules of Air Warfare
Article 33 of the 1923 Hague Rules of Air Warfare provides:
Belligerent non-military aircraft, whether public or private, flying within the jurisdiction of their own state, are liable to be fired upon unless they make the nearest available landing on the approach of enemy military aircraft.
Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, Part II, drafted by a Commission of Jurists, The Hague, December 1922–February 1923, Article 33.
Hague Rules of Air Warfare
Article 34 of the 1923 Hague Rules of Air Warfare provides:
Belligerent non-military aircraft, whether public or private, are liable to be fired upon, if they fly (1) within the jurisdiction of the enemy, or (2) in the immediate vicinity thereof and outside the jurisdiction of their own state or (3) in the immediate vicinity of the military operations of the enemy by land or sea.
Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, Part II, drafted by a Commission of Jurists, The Hague, December 1922–February 1923, Article 34.
New Delhi Draft Rules
Article 6 of the 1956 New Delhi Draft Rules prohibits attacks against “installations or means of transport, which are for the exclusive use of, and occupied by, the civilian population”.
Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 6.
San Remo Manual
Paragraph 41 of the 1994 San Remo Manual states: “Merchant vessels and civil aircraft are civilian objects unless they are military objectives in accordance with the principles and rules set forth in this manual.”
Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, § 41.
San Remo Manual
Paragraph 62 of the 1994 San Remo Manual provides: “Enemy civil aircraft may only be attacked if they meet the definition of a military objective.”
Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, § 62.
San Remo Manual
Paragraph 63 of the 1994 San Remo Manual states that the following activities may render enemy civil aircraft military objectives:
(a) engaging in acts of war on behalf of the enemy, e.g., laying mines, minesweeping, laying or monitoring acoustic sensors, engaging in electronic warfare, intercepting or attacking other civil aircraft, or providing targeting information to enemy forces;
(b) acting as an auxiliary aircraft to an enemy’s armed forces, e.g., transporting troops or military cargo, or refuelling military aircraft;
(c) being incorporated into or assisting the enemy’s intelligence-gathering system, e.g., engaging in reconnaissance, early warning, surveillance, or command, control and communications missions;
(d) flying under the protection of accompanying enemy warships or military aircraft;
(e) refusing an order to identify itself, divert from its track, or proceed for visit and search to a belligerent airfield that is safe for the type of aircraft involved and reasonably accessible, or operating fire control equipment that could reasonably be construed to be part of an aircraft weapon system, or on being intercepted clearly manoeuvring to attack the intercepting belligerent military aircraft;
(f) being armed with air-to-air or air-to-surface weapons; or
(g) otherwise making an effective contribution to military action.
Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, § 63.
Australia
Australia’s Commanders’ Guide (1994) states:
Civilian vessels, aircraft, vehicles and buildings may be lawfully attacked if they contain combatant personnel, military equipment, supplies or are otherwise associated with combat activity inconsistent with their civilian status.
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 951.
Australia
Australia’s Defence Force Manual (1994) states:
Civil aircraft in flight (including state aircraft which are not military aircraft) should not be attacked. They are presumed to be carrying civilians who may not be made the object of direct attack. If there is doubt as to the status of a civil aircraft, it should be called upon to clarify that status. If it fails to do so, or is engaged in non civil activities, such as ferrying troops, it may be attacked. Civil aircraft should avoid entering areas which have been declared combat zones by the belligerents.
Civil aircraft which have been absorbed into a belligerent’s air force and are being ferried from the manufacturer to a belligerent for this purpose, may be attacked.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 852 and 853.
Australia
Australia’s LOAC Manual (2006) states in its chapter on “Maritime Operations”:
6.39 Enemy merchant vessels. Enemy merchant vessels may only be attacked if they meet the definition of military objective.
…
6.40 Enemy civil aircraft. Enemy civil aircraft may likewise only be attacked if they meet the definition of a military objective.
…
6.44 Classes of vessels exempt from attack. The following classes of enemy vessels are exempt from attack:
…
• passenger vessels when engaged only in carrying civilian passengers;
…
6.56 The destruction of enemy passenger vessels carrying only civilian passengers is prohibited at sea.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 6.39, 6.40, 6.44 and 6.56.
In its chapter on “Air Operations”, the manual states:
8.56 Civil aircraft in flight (including state aircraft, which are not military aircraft) should not be attacked. They are presumed to be carrying civilians who may not be made the object of direct attack. If there is doubt as to the status of a civil aircraft, it should be called upon to clarify that status. If it fails to do so, or is engaged in non-civil activities, such as ferrying troops, it may be attacked. Civil aircraft should avoid entering areas that have been declared conflict zones by the belligerents.
8.57 Civil aircraft, which have been absorbed into a belligerent’s air force and are being ferried from the manufacturer to a belligerent for this purpose, may be attacked.
…
8.59 Civil aircraft on the ground may only be attacked in accordance with the normal rules relating to military objectives. However, since they may be used for transporting troops or supplies, their status will frequently depend upon the prevailing military situation.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 8.56–8.57 and 8.59.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Benin
Benin’s Military Manual (1995) states:
Foreign civilian aircraft may be attacked when escorted by enemy military aircraft. When flying alone they can be ordered to modify their route or to land or alight on water for inspection … If a foreign civilian aircraft refuses to modify its route or to land or alight on water, it may be attacked after due warning.
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, p. 8.
Burkina Faso
According to Burkina Faso’s Disciplinary Regulations (1994), it is prohibited to attack “the crew and passengers of civil aircraft”.
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de la Défense, 1994, Article 35(2).
Cameroon
According to Cameroon’s Disciplinary Regulations (1975), it is prohibited to attack “the crew and passengers of civil aircraft”.
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 32.
Cameroon
Cameroon’s Instructor’s Manual (1992) states: “Belligerents must … distinguish between military and civilian aircraft … As a result, only enemy military aircraft may be attacked; civilian, private or commercial aircraft may only be intercepted.”
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 113.
Cameroon
Cameroon’s Instructor’s Manual (2006) states in a section on “Armed Operations in the Air”:
“During hostilities, belligerents must ensure a distinction between military and civilian aircraft.”
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 259, § 614.
Canada
Canada’s LOAC Manual (1999) states that civilian aircraft and vehicles are military objectives “if they contain combatants, military equipment or supplies”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-2, § 10.
With respect to civil aircraft, the manual specifies:
Civil aircraft (including state aircraft which are not military aircraft) in flight should not be attacked. They are presumed to be carrying civilians who may not be made the object of direct attack. If there is doubt as to the status of civil aircraft, it should be called upon to clarify that status. If it fails to do so, or is engaged in support of military activities, such as ferrying troops, it may be attacked. Civil aircraft should avoid entering areas which have been declared combat zones by the belligerents, since this increases the risk of their being attacked.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 7-4, § 38.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
Civil aircraft (including state aircraft which are not military aircraft) in flight should not be attacked. They are presumed to be carrying civilians who may not be made the object of direct attack. If there is doubt as to the status of civil aircraft, it should be called upon to clarify that status. If it fails to do so, or is engaged in support of military activities, such as ferrying troops, it may be attacked. Civil aircraft should avoid entering areas that have been declared combat zones by the belligerents, since this increases the risk of their being attacked.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 716.2.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders):
1.1 Principles of combat and the need to verify the military nature of objectives (targets)
It is especially important to avoid attacking merchant ships and civilian aircraft of no military importance.
…
1.2 Foreign ships
…
In contrast [to ships that are military objectives], the following ships may be neither captured nor attacked:
…
- ships granted safe conduct
- small coastal fishing boats;
…
- other ships of no military importance.
However, in case of doubt a ship can reasonably be stopped and searched to ascertain its status. If it refuses to stop or resists being visited and searched it may be destroyed after a warning to this effect has been given.
Normally, neutral warships are not military objectives for the belligerent forces unless they refuse to be visited and searched, as described above.
1.3 Foreign aircraft
Unless they enter prohibited national airspace, foreign aircraft other than enemy military aircraft, must not be attacked.
Foreign civilian aircraft may be attacked if they are escorted by enemy military aircraft.
If civilian aircraft are flying alone they may be ordered to change their route, or to land or alight on water for inspection. If the inspection reveals that the aircraft contains personnel or objects of military importance or breaches the law of war in some other way, or if the foreign civilian aircraft refuses to alter its route or to land, it can be attacked after due warning has been given.
The above also applies to neutral military aircraft.
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter II, Section 1.1–1.3.
In Volume 2, the manual further states: “Unless they enter prohibited national airspace, foreign aircraft other than enemy military aircraft must not be attacked. … Merchant ships escorted by military vessels and civilian aircraft escorted by enemy military aircraft may be attacked.”
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section 4.
Congo
According to the Congo’s Disciplinary Regulations (1986), it is prohibited to attack “the crew and passengers of civil aircraft”.
Congo, Décret No. 86/057 du 14 janvier 1986 portant Règlement du Service dans l’Armée Populaire Nationale, 1986, Article 32(2).
Croatia
Croatia’s LOAC Compendium (1991) provides that “civilian aircraft escorted by enemy military aircraft” and “civilian aircraft that refuse to modify their routes, land or alight on water if so ordered and after warning” are proper targets in the air. The manual adds that “civilian aircraft that do not violate the airspace of a belligerent” are protected aircraft.
Croatia, Compendium “Law of Armed Conflicts”, Republic of Croatia, Ministry of Defence, 1991, p. 44.
Ecuador
Ecuador’s Naval Manual (1989) provides:
Civil passenger vessels at sea and civil airliners in flight are subject to capture but are exempt from destruction. Although enemy lines of communication are generally legitimate military targets in modern warfare, civilian passenger vessels at sea, and civil airliners in flight, are exempt from destruction, unless at the time of the encounter they are being utilized by the enemy for a military purpose (e.g., transporting troops or military cargo) or refuse to respond to the directions of the intercepting warship or military aircraft. Such passenger vessels in port and airliners on the ground are not protected from destruction.
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 8.2.3(6).
France
According to France’s Disciplinary Regulations (1975), as amended in 1982, it is prohibited to attack “the crew and passengers of civil aircraft”.
France, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree No. 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10 December 1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre, Bureau Emploi, Article 9 bis (2).
Germany
Germany’s Military Manual (1992) provides that enemy aircraft used exclusively for the transport of civilians may neither be attacked nor seized. Their protection ends
if such [aircraft] do not comply with conditions lawfully imposed upon them, if they abuse their mission or are engaged in any other activity bringing them under the definition of a military objective … Such aircraft may be requested to land on ground or water to be searched.
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, §§ 1034–1036; see also § 463.
Guinea
Guinea’s Disciplinary Regulations (2012) states: “Military personnel in combat are prohibited from … destroying and seizing neutral commercial vessels or aircrafts except in cases of smuggling, blockade breaches and other acts which conflict with their neutrality”.
Guinea, Règlement de Service dans les Forces Armées, Volume 1: Règlement de Discipline Générale (Service Regulations in the Armed Forces, Volume 1: General Discipline Regulations), 2012 edition, Ministère de la Défense Nationale, approved by Presidential Decree No. D 293/PRG/SGG/2012, 6 December 2012, Article 12(b).
Hungary
Hungary’s Military Manual (1992) provides that “civilian aircraft escorted by enemy military aircraft” and “civilian aircraft that refuse to modify their routes, land or alight on water if so ordered and after warning” are proper targets in the air. The manual adds that “civilian aircraft that do not violate the airspace of a belligerent” are protected aircraft.
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 71.
Kenya
Kenya’s LOAC Manual (1997) provides: “Specifically protected transport shall be allowed to pursue their assignment as long as needed. Their mission, contents and effective use may be verified by inspection (e.g. aircraft may be ordered to land for such inspection).”
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 3, p. 12.
The manual also states:
Subject to prohibitions and restrictions on access to national air space, foreign aircraft except enemy military aircraft may not be attacked. Foreign civilian aircraft may be attacked:
(a) when escorted by enemy military aircraft, or
(b) when flying alone under the conditions stated below.
Foreign civilian aircraft can be ordered to modify their route or to land or alight on water for inspection … If a foreign civilian aircraft refuses to modify its route or to land or alight on water, it may be attacked after due warning. The provisions of this part governing foreign civilian aircraft can be applied by analogy to neutral military aircraft.
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, pp. 10–11.
Morocco
According to Morocco’s Disciplinary Regulations (1974), it is prohibited to attack “the crew and passengers of civil aircraft”.
Morocco, Règlement de Discipline Général dans les Forces Armées Royales, Dahir No. 1-74-383 du 15 rejeb 1394, 5 August 1974, Article 25(2).
New Zealand
New Zealand’s Military Manual (1992) states:
Civilian vessels, aircraft, vehicles and buildings may be lawfully attacked if they contain combatant personnel or military equipment or supplies or are otherwise associated with combat activity inconsistent with their civilian status and if collateral damage would not be excessive under the circumstances.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 516(3); see also § 623(3).
The manual further states:
Civil aircraft (including State aircraft which are not military aircraft) in flight should not be attacked. They are presumed to be carrying civilians who may not be made the object of direct attack. If there is doubt as to the status of a civil aircraft, it should be called upon to clarify that status. If it fails to do so, or is engaged in non-civil activities, such as ferrying troops, it may be attacked. Civil aircraft should avoid entering areas which have been declared combat zones by the belligerents, since this increases the risk of their being attacked.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 628(1).
Nigeria
Nigeria’s Military Manual (1994) states: “The military character of the objectives and targets must be verified and precaution taken not to attack non-military objectives like merchant ships, civilian aircraft, etc.”
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 45, § 16(a).
The manual further states that foreign aircraft “of no military importance shall not be captured or attacked except [when] they are of a dubious status, i.e., when it is uncertain whether it is a military objective or not. In that case, it may be stopped and searched so as to establish its status.”
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 45, § 16(d).
The manual also states: “Specifically protected … transports recognised as such must be respected … though they could be inspected to ascertain their contents and effective use.”
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 45, § 16(f).
Nigeria
According to Nigeria’s Manual on the Laws of War, “civilian aircraft belong[ing] to the enemy flying outside their own territory, in a zone controlled by the state or close to it, or near the battle zone can be shot down only when they do not comply with landing orders”.
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 20(d).
Peru
Peru’s IHL Manual (2004) states:
(a) Enemy merchant vessels
(1) Enemy merchant vessels may only be attacked if they meet the definition of a military objective.
…
(3) Any attack on these vessels must comply with the basic rules of international humanitarian law, the requirement to distinguish between protected persons and objects and military objectives and the conditions that must be met for an object to be considered a military objective.
…
(b) Enemy civil aircraft
(1) Enemy civil aircraft may only be attacked if they meet the definition of a military objective.
…
(3) Any attack on these aircraft must comply with the basic rules of international humanitarian law, the requirement to distinguish between protected persons and objects and military objectives and the conditions that must be met for an object to be considered a military objective.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 130.a.(1) and (3) and b.(1) and (3).
Peru
Peru’s IHL and Human Rights Manual (2010) states:
120. Enemy vessels and aircraft which benefit from immunity against attack
a. The following classes of enemy vessels cannot be attacked:
…
(5) Passenger ships if they only transport civilian passengers.
…
121. Other enemy vessels and aircraft
a. Enemy merchant vessels
(1) Enemy merchant vessels may only be attacked if they meet the definition of a military objective.
…
b. Enemy civil aircraft
(1) Enemy civil aircraft may only be attacked if they meet the definition of a military objective.
…
(3) Any attack on these aircraft must comply with the basic rules of International Humanitarian Law (IHL), the requirement to distinguish between protected persons and objects and military objectives and the conditions that must be met for an object to be considered a military objective.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 120(a)(5), p. 310, § 121(a)(1), p. 312, and § 121(b)(1) and (3), p. 313.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
113. War-ships shall not destroy any enemy civil ships or otherwise divert it from its destination, except for the following cases:
- the vessel refuses to stop after it was requested to do so, or
- the vessel resists a visit.
Prior to using force against a civil vessel the war-ship shall provide for the security of passengers and crew, of the documents and papers, unless the war-ship is in danger of being sunk by an enemy war-ship, escort ship or aircraft.
114. Destruction of the enemy passenger vessels carrying only civilians is prohibited at sea. For the safety of the passengers, such vessels shall be diverted to an appropriate area or port in order to complete capture.
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, §§ 113–114.
Senegal
According to Senegal’s Disciplinary Regulations (1990), it is prohibited to attack “the crew and passengers of civil aircraft”.
Senegal, Règlement de Discipline dans les Forces Armées, Décret 90-1159, 12 October 1990, Article 34(2).
Togo
Togo’s Military Manual (1996) states:
Foreign civilian aircraft may be attacked when escorted by enemy military aircraft. When flying alone they can be ordered to modify their route or to land or alight on water for inspection … If a foreign civilian aircraft refuses to modify its route or to land or alight on water, it may be attacked after due warning.
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule II, p. 8.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “The following classes of enemy aircraft are exempt from attack: … b. aircraft granted safe conduct by agreement between the parties to the conflict; and c. civil airliners.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 12.28.
United States of America
With respect to civil aircraft, the US Air Force Pamphlet (1976) states:
If identified as a civil aircraft, air transport in flight should not be the object of attack, unless at the time it represents a valid military objective such as when there is an immediate military threat or use. An unauthorized entry into a flight restriction zone might in some conflicts be deemed an immediate military threat. Wherever encountered, enemy civil aircraft are subject to instruction in order to verify status and preclude their involvement … Civil aircraft on the ground, as objects of attack, are governed by the rules of what constitutes a legitimate military objective as well as the rules and principles relative to aerial bombardment. As sources of airlift they may, under the circumstances ruling at the time, qualify as important military objectives. Civil aircraft entitled to protection include nonmilitary state aircraft and a state owned airline. The principle of law and humanity protecting civilians and civilian objects from being objects of attack as such, protects civil aircraft in flight, because civil aircraft are presumed to transport civilians. Such an aircraft is not subject to attack in the absence of a determination that it constitutes a valid military objective.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 4-3.
United States of America
The US Air Force Commander’s Handbook (1980) states: “Civilian vehicles, aircraft, vessels … may be the object of attack if they have combatant personnel in them and if collateral damage would not be excessive under the circumstances.”
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 2-2.
United States of America
The US Naval Handbook (1995) provides:
Civil passenger vessels at sea and civil airliners in flight are subject to capture but are exempt from destruction. Although enemy lines of communication are generally legitimate military targets in modern warfare, civilian passenger vessels at sea, and civil airliners in flight, are exempt from destruction, unless at the time of the encounter they are being utilized by the enemy for a military purpose (e.g., transporting troops or military cargo) or refuse to respond to the directions of the intercepting warship or military aircraft. Such passenger vessels in port and airliners on the ground are not protected from destruction.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 8.2.3(6).
United States of America
The US Naval Handbook (2007) states:
Civilian passenger vessels at sea and civil airliners in flight are subject to capture but are exempt from destruction. Although enemy lines of communication are generally legitimate military targets in modern warfare, civilian passenger vessels at sea, and civil airliners in flight, are exempt from destruction, unless at the time of the encounter they are being utilized by the enemy for a military purpose (e.g., transporting troops or military cargo) or refuse to respond to the directions of the intercepting warship or military aircraft. Such passenger vessels in port and airliners on the ground are not protected from destruction.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.6.3.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Denmark, Military Criminal Code, 2005, § 36(2).
Spain
Spain’s Penal Code (1995), as amended in 2010, states:
1. Anyone who in the event of an armed conflict commits or orders to be committed any of the following acts shall be punished with four to six years’ imprisonment:
…
h. … [D]estroying non-military ships or aircraft and the cargo of an adverse or neutral party, or capturing them, in violation of international norms applicable to armed conflicts at sea;
…
2. … In all other cases mentioned in the above article, the higher sentence can be imposed when extensive and important destructions are caused to the property, objects or installations or [the acts] are of extreme gravity.
Spain, Penal Code, 1995, as amended on 23 June 2010, Article 613(1)(h) and (2).
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
SECTION I – GENERAL PROTECTION AGAINST THE EFFECTS OF HOSTILITIES
CHAPTER I – BASIC RULE AND FIELDS OF APPLICATION
Article 48 – Basic rule
In order to ensure respect for and protection of … civilian objects, the Parties to the conflict shall at all times distinguish between … civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
The targets that on each occasion were attacked with home made bombs at midnight were a mosque in Soweto, railway tracks in Soweto resulting in the death of a woman and injuries to her family, the bridge over the Umtamvuna River between the Eastern Cape and Natal and the Lanseria airport. Where the attempts were unsuccessful, and time mechanisms were also set to go off at midnight, targets included a taxi rank in Soweto and a Buddhist Temple in Bronkhorstspruit. However, two workers were injured in Bronkhorstspruit when the bomb was handled and were hospitalised. These targets cannot with the best will in the world be labelled as military targets
…
… The core remains that only the targeting of military objects is permissible. The targeting of civilian objects is in conflict with the provisions of [the 1977 Additional] Protocol I.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 68 and 70.
Belgium
In a communiqué issued in 1973, the Belgian Government condemned the deliberate destruction of a Libyan Boeing by Israeli air force units because it “condemns all violence of which innocent civilians are the victims”.
Belgium, Government communiqué, 22 February 1973, RBDI, Vol. XI, 1975, p. 375.
Islamic Republic of Iran
The Report on the Practice of the Islamic Republic of Iran states that during the Iran–Iraq War, the Iranian authorities accused Iraq on many occasions of having carried out attacks against civilian objects, including civilian aircraft, trains and merchant ships.
Report on the Practice of the Islamic Republic of Iran, 1997, Chapter 1.3.
Malaysia
The Report on the Practice of Malaysia states that no civilian aircraft may be attacked.
Report on the Practice of Malaysia, 1997, Answers to additional questions on Chapter 1.4.
Malaysia
In 2010, during the consideration of the Status of the 1977 Additional Protocols by the Sixth Committee of the UN General Assembly, a statement of the delegation of Malaysia was summarized by the Committee in its records as follows:
8. [The delegate of Malaysia] said that …
…
10. … [t]he laws of naval warfare incorporated the fundamental principles of international humanitarian law, including necessity and proportionality …
11. [In the case of the attacks by the Israel Defense Forces on the Mavi Marmara and five accompanying vessels in May 2010] … Clear justification needed to be provided for unprovoked attacks on neutral vessels.
Malaysia, Statement by the delegation of Malaysia before the Sixth Committee of the UN General Assembly on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, 18 October 2010, as published in the summary record of the 13th meeting, 8 December 2010, UN Doc. A/C.6/65/SR.13, §§ 8, 10 and 11.
Peru
The Report on the Practice of Peru refers to a scholar who wrote that in 1879, during a conflict against Chile, a Peruvian admiral refused, on humanitarian grounds, to attack an enemy vessel that he believed to be a transport ship.
Report on the Practice of Peru, 1998, Chapter 1.3, referring to E. Angeles Figueroa, El Derecho Internacional Humanitario y los Conflictos Armados, Lima, 1992, pp. 119–120.
Poland
Following investigations by the Secretary-General of the International Civil Aviation Organization (ICAO) into the shooting down of two civil aircraft by the Cuban air force on 24 February 1996, a debate took place on 26 July 1996 in the UN Security Council, during which Poland asserted that the principle that States must refrain from resorting to the use of weapons against civil aircraft in flight was well established in customary international law and codified in Article 3 bis of the 1944 Chicago Convention. According to Poland, an attack against a civilian aircraft in flight violates elementary considerations of humanity.
Poland, Statement before the UN Security Council, UN Doc. S/PV.3683, 26 July 1996, p. 19.
Sri Lanka
In 2011, in its Humanitarian Operation Factual Analysis July 2006–May 2009, Sri Lanka’s Ministry of Defence stated:
LTTE [Liberation Tigers of Tamil Eelam] attacks on economic targets and key civilian infrastructure facilities were aimed at crippling economic activity within Sri Lanka. Its attack on the country’s Central Bank in Colombo in 1996 imperilled the entire financial system. Its attack on the country’s International Airport in July 2001, in which several passenger jets including an Airbus A-340 and an Airbus A-330 were completely destroyed and many others seriously damaged, had a devastating impact on the tourism industry for many years. The LTTE also targeted the critical Kolonnawa Oil Refinery on several occasions, the last of which was an air raid it carried out in 2007. The LTTE targeted essential transport infrastructure facilities such as the Central Bus and Train Stations in Colombo, and carried out attacks on numerous buses, trains and civilian aircraft.
Sri Lanka, Ministry of Defence, Humanitarian Operation Factual Analysis July 2006–May 2009, July 2011, § 27.
The Ministry of Defence further stated: “On 18 May 2009, Sri Lanka defeated the LTTE, bringing to an end three decades of conflict and suffering.”
Sri Lanka, Ministry of Defence, Humanitarian Operation Factual Analysis July 2006–May 2009, July 2011, § 12.
United States of America
Following investigations by the Secretary-General of the International Civil Aviation Organization (ICAO) into the shooting down of two civil aircraft by the Cuban air force on 24 February 1996, a debate took place on 26 July 1996 in the UN Security Council, during which the United States stated: “Cuba violated the principle of customary law that States must refrain from resorting to the use of weapons against civil aircraft in flight – a principle that applies whether the aircraft are in national or international airspace”. According to the United States, an attack against a civilian aircraft in flight violates elementary considerations of humanity.
United States, Statement before the UN Security Council, UN Doc. S/PV.3683, 26 July 1996, p. 3.
UN Security Council
In resolutions adopted in 1986 and 1987 in the context of the Iran–Iraq War, the UN Security Council deplored attacks against civilian aircraft.
UN Security Council, Res. 582, 24 February 1986, § 2, voting record: 15-0-0; Res. 598, 20 July 1987, preamble, voting record: 15-0-0.
UN Security Council
In a report on Angola in 1993, the UN Secretary-General described an incident which took place on 27 May 1993 whereby “UNITA [União Nacional para Independência Total de Angola] ambushed a train … as a result of which up to 300 people, including women and children, died and hundreds of others were wounded. UNITA alleged that the train was ferrying troops and weapons and not civilians, as claimed.” Noting that UNAVEM helicopters evacuated 57 seriously injured civilians, mostly women and children, from the site, the Secretary-General supported “the statement made by the President of the Security Council to the press on 8 June 1993 in which the Council strongly condemned the 27 May train attack and urged UNITA’s leaders to make sure that its forces abide by the rules of international humanitarian law”.
UN Secretary-General, Further report on UNAVEM II, UN Doc. S/26060, 12 July 1993, § 5.
In a subsequent resolution, the UN Security Council reiterated “its strong condemnation of the attack by UNITA forces, on 27 May 1993, against a train carrying civilians” and reaffirmed that “such criminal attacks are clear violations of international humanitarian law”.
UN Security Council, Res. 851, 15 July 1993, § 18, voting record: 15-0-0.
UN Security Council
In 1996, in a statement by its President in connection with the shooting down of two civil aircraft by the Cuban air force, the UN Security Council stated:
The Security Council strongly deplores the shooting down by the Cuban air force of two civil aircraft on 24 February 1996, which apparently has resulted in the death of four persons.
The Security Council recalls that according to international law, as reflected in article 3 bis of the International Convention on Civil Aviation of 7 December 1944 added by the Montreal Protocol of 10 May 1984, States must refrain from the use of weapons against civil aircraft in flight and must not endanger the lives of persons on board and the safety of aircraft. States are obliged to respect international law and human rights norms in all circumstances.
UN Security Council, Statement by the President, UN Doc. S/PRST/1996/9, 27 February 1996.
UN Security Council
Following investigations by the Secretary-General of the International Civil Aviation Organization (ICAO) into the shooting down of two civilian aircraft by the Cuban Air Force in 1996, the UN Security Council adopted a resolution on the conclusions of the ICAO report, in which it condemned
the use of weapons against civil aircraft in flight as being incompatible with elementary considerations of humanity, the rules of customary international law as codified in article 3 bis of the Chicago Convention, and the standards and recommended practices set out in the annexes of the Convention.
UN Security Council, Res. 1067, 26 July 1996, § 6, voting record: 13-0-2.
UN Human Rights Council
In a resolution adopted in 2006 on the grave situation of human rights in Lebanon caused by Israeli military operations, the UN Human Rights Council stated that it was:
Guided by the Charter of the United Nations, relevant human rights instruments and international humanitarian law, in particular the Hague Conventions of 1899 and 1907 on the Laws and Customs of War on Land which prohibit attacks and bombardment of civilian populations and objects and lay down obligations for general protection against dangers arising from military operations against civilian objects, hospitals, relief materials and means of transportation.
UN Human Rights Council, Res. S-2/1, 11 August 2006, preamble, voting record: 27-11-8.
UN Secretary-General
In 1993, in a report concerning the situation in Abkhazia, Georgia, the UN Secretary-General stated that he was particularly shocked by deliberate attacks on Georgian aircraft, which had resulted in heavy civilian losses.
UN Security Council, Report concerning the situation in Abkhazia, Georgia, UN Doc. S/26551, 7 October 1993, § 17.
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International Criminal Tribunal for the former Yugoslavia
In its final report to the ICTY Prosecutor in 2000, the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia stated, concerning the “attack on a civilian passenger train at the Grdelica Gorge on 12 April 1999”, that “the bridge was a legitimate military objective. The passenger train was not deliberately targeted.” The Committee did not refer specifically to the civilian character of the passenger train, but implied that, had the train been intentionally targeted, or had there been in the conduct of the attack against the bridge a sufficient “element of recklessness in the conduct of the pilot or weapons systems officer”, an investigation could have been opened.
ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, The Hague, 14 June 2000, § 62.
ICRC
To fulfil its role of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces the following rules of IHL applicable to foreign aircraft:
Subject to prohibitions and restrictions on access to national air space, foreign aircraft, except enemy military aircraft, may not be attacked. Foreign civilian aircraft may be attacked:
a) when escorted by enemy military aircraft;
b) when flying alone: under the conditions stated in this chapter.
Foreign civilian aircraft can be ordered to modify their route or to land or alight on water for inspection … If a foreign civilian aircraft refuses to modify its route or to land or alight on water, it may be attacked after due warning.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, §§ 466–469.
ICRC
In an appeal issued in October 1973, the ICRC urged all the belligerents in the conflict in the Middle East (Egypt, Iraq, Israel and the Syrian Arab Republic) to observe forthwith, in particular, the provisions of, inter alia, Article 47(2) of draft Additional Protocol I which stated in part: “Objects designed for civilian use, such as … installations and means of transport … shall not be made the object of attack, except if they are used mainly in support of the military effort.” All governments concerned replied favourably.
ICRC, The International Committee’s Action in the Middle East, IRRC, No. 152, 1973, pp. 584–585.
ICRC
In an appeal issued in 1979 with respect to the conflict in Rhodesia/Zimbabwe, the ICRC specifically requested that the Patriotic Front “cease the shooting down of civilian passenger aircraft”.
ICRC, Conflict in Southern Africa: ICRC appeal, 19 March 1979, §§ 5 and 6, IRRC, No. 209, 1979, pp. 88–89.
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