Professional Documents
Culture Documents
I. Introduction 2
I1. Venue 2
IV. Self-Defense 30
V. Practical Considerations 34
VI. Conclusion 35
I. Introduction
II. VENUE
4
on this vital point is due to practical limitations, such as a
lack of ability to achieve an international consensus defining
recognizable justifications, or the belief that existing language
in the United Nations Charter already governs the issue of
self-defense, or a willful ideological desire to interpret
existing language in such a manner as to make it a violation of
international law to use force under any circumstance. Even
attempts to address the issue of use of force against civil
aircraft, such as Article 3 bis of the Chicago Convention, remain
ambiguous.
Article 3
Article 4
Article 9
Article 89
10
Instead, the historical pattern is premised entirely upon
shoot-downs of wayward civil airliners. Article 3 bis was
designed to protect otherwise-legitimate civil aircraft that have
wandered off course; it is not designed to deal with the issue of
the conversion of a passenger airliner that has been deliberately
converted for use as a kamikaze. Hence, although Article 3 bis
superficially appears to address the central issue of this paper,
it does not. It is certainly neither the policy nor intention of
the United States to shoot down civil aircraft, but if necessity
demands it we shall do it regardless of our formal or informal
ratification of Article 3 bis.
2. Tokyo Convention (Offenses on Board Aircraft)
Article 4
Article 17
Article 2
Article 1
12
3. For the purposes of this Convention, an aircraft is
considered to be in flight from the moment when power
is applied for the purpose of take-off until the moment
when the landing run ends.
Article 5
13
As with the Hague Convention, other than limiting
applicability of this Convention to "unlawful" activities, this
Convention contains no specific provisions applicable to the
issue of specifically authorizing the government to act in
self-defense by shooting down a civil aircraft.
5. 18 U.S.C. § 32
14
used in the statute, and the Eighth Circuit recommends the term
not be defined for the jury even if the word appears in the
statute. See Federal Jury Practice and Instructions, at § 17.05
Note Fifth Circuit. But the Ratzlaf-modified instruction fares
only little better in a necessity-induced shoot-down.
15
Wall.) 227, 22 L.Ed. 80 (1873), and in United States v. Herron,
87 U.S. (20 Wall.) 251, 22 L.Ed. 275 (1873). The Dollar rule
previously recognized and adopted the ancient English canon that
a statute or legislative act did not bind the sovereign unless it
used "special and particular words" evidencing the law's coverage
of the sovereign, and noted:
16
carry with them the implicit force majeure of their country of
origin.
1. Military Aviation
17
If there is a single class or category of non-combatant
military aircraft entitled to protection, it is medical
evacuation aircraft. See Article 36, Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, TIAS 3362 (12 August 1949); see also
Articles 19, 21, 24 and 35; and see Article 22, Geneva Convention
Relative to the Protection of Civilian Persons in Time of War,
TIAS 3365 (12 August 1949). The practice for air transport of
naval wounded is the same. See Article 39, Geneva Convention for
the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members, TIAS 3363 (12 August 1949). The honoring of
this commitment appears limited to Western democratic powers,
however.
2. Civil Aviation
18
subject to the ICAO, reality does not dictate that it be so.
Second, there is no provision within the Chicago Convention that
grants it the right to cover civil aircraft used "for any purpose
inconsistent with" the Convention. It is implicit within the
scope of both the Hague Convention (Hijacking) and the Tokyo
Convention (Offenses on Board Aircraft) that ICAO jurisdiction
continues during the period when the aircraft is not under the
control of the aircraft commander, but there is no explicit
provision that states this principle.
19
States should have a criminal statute that requires its persons
and commanders of its registered aircraft to submit to an order
to land. The Cuban government would therefore be required to
notify the United States of the overflight violations and the
intruding pilots' noncompliance, whereupon the United States
would have an affirmative duty to prosecute the violation.7
20
resources and willpower that this country typically lacks.
21
Section 32 of Title 18, United States Code, only prohibits the
use of fire or destructive devices or substances, or "act[sj of
violence against" aircraft. Arguably, aerial intercept maneuvers
are not "acts of violence," and therefore are not governed by
this statute.9
22
either, at least in the sense normally considered by the
Conventions. Military aircraft, as well as police and customs
aircraft, belong to a nation-State. Here the hypothetical
terrorists are either stateless themselves (such as
Palestinians), purport to be acting without State sanction (such
as Libyan- or Iranian-sponsored terrorists), or are in fact
operating without State sanction (such as the German Red Army
Faction, Italian Red Brigade, Irish Provisional Army, etc.). As
a result, the terrorist-controlled aircraft constitutes something
closer to a pirate vessel of old, operating without flag and
without protection.
23
activity not having a direct bearing on passage." While Article
19 is specifically applicable to ships, its concept extends to
aircraft.
Article 39, regarding the right of aircraft (and ships) to
engage in "transit passage" requires the aircraft to "refrain
from any threat or use of force against the sovereignty,
territorial integrity or political independence of States ..."
and prohibits the aircraft from engaging in conduct "in violation
of the principles of international law embodied in the Charter of
the United Nations."
Essentially, Articles 19 and 39 impose no greater burden
upon aircraft than those already established by the aviation
Conventions. But when dealing with the issue of piracy, UNCLOS
has a direct impact upon aviation, and effectively forecloses the
use of "piracy" law against aerial terrorists.
Article 101
Definition of piracy
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or
any act of depredation, committed for private ends by
the crew or the passengers of a private ship or a
private aircraft, and directed:
(i) on the high seas, against another ship or
aircraft, or against persons or property on board such
ship or aircraft;
(ii) against a ship, aircraft, persons or property
in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the
operation of a ship or of an aircraft with knowledge of
facts making it a pirate-ship or aircraft;
(c) any act of inciting or of intentionally
facilitating an act described in subparagraph (a) or
(b) .
Article 103
Definition of a pirate ship or aircraft
A ship or aircraft is considered a pirate ship or
aircraft if it is intended by the persons in dominant
control to be used for the purpose of committing one of
the acts referred to in Article 101. The same applies
24
if the ship or aircraft has been used to commit any
such act, so long as it remains under the control of
the persons guilty of that act.
25
In any event, by definition, civil aircraft terrorists
cannot be "pirates." The option of treating terrorists as
international criminals subject to attack anywhere, anytime and
by anybody, appears to be foreclosed.
26
Article 3, Geneva Convention Relative to the Treatment of
Prisoners of War, TIAS 3364 (12 August 1949); Article 3, Geneva
Convention for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members, TIAS 3363(12 August 1949); Article 3,
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, TIAS 3362 (12
August 1949).
27
applicability of Article Ill's command that the "judicial power
shall extend to all cases ... arising under ... the laws of the
United States ...." places criminal jurisdiction over terrorist
offenses within existing Article III courts. As a result, by
default, terrorists are just one more form of international
criminal protected by the inability and unwillingness of
nation-States to deny them sanctuary.
28
intent and spirit of the statute. Naturally, the best solution
would be to craft a legislative "fix" of this statute.
29
then the emergency exception under 10 U.S.C. § 382(d) (2) permits
the military to provide "law enforcement" assistance to the
civilian United States government. If the suspected weapon is
nuclear, the Posse Comitatus exception is found at 18 U.S.C. §
831 (e) . If the aircraft is being used as the weapon of mass
destruction, without augmentation by nuclear, chemical or
biological agents, then it would appear that the President must
invoke the collective emergency authority of 10 U.S.C. §§
331-333, in order to bring the military assets lawfully into use
to perform a law enforcement mission.12
IV. SELF-DEFENSE
30
The minor provision is found in Article 2(4), which states:
Under our existing law, the United States may use deadly
force when it has an objectively reasonable belief that the
aircraft to be seized by deadly force poses an imminent danger of
death or serious physical injury to other persons.
31
the individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify
the intrusion." id., 471 U.S. at 8, 105 S.Ct. at 1699.
32
of mass destruction exists, or that the aircraft itself is going
to be used as the weapon of mass destruction. The terrorist may
issue demands signaling their intent, or in the alternative/ we
make a probable cause determination based on circumstantial
evidence derived from various forms of intelligence that the
aircraft is under terrorist control.
V. PRACTICAL CONSIDERATIONS
33
to intercept the aircraft in question and make visual contact
between the interceptor and intercepted aircraft. Once the
intercepted aircraft fails or refuses to comply with the
directives of the interceptor, we have satisfied, to the degree
possible, the prerequisites necessary for justifying a
shoot-down. If the aircraft complies with the "follow me" signal
of the interceptor, the question left open is where to take the
intercepted aircraft, assuming it has the fuel to get there.
IV. CONCLUSION
34