tion under limited conditions (after making provisions for safety of crew and passengers), unarmed merchant ships were not subject to attack. Prior evacuation of the crew and passengers were regarded as minimum assurances. After the introduction of submarine warfare, armed merchant ships, naval convoys to prevent capture, and merchant ships to gather intelligence, the actual practice of states avoided these protections. The extent to which this traditional immunity of merchant vessels, still formally recognized, will be observed in practice in future conflicts will depend upon the nature of the conflict, its intensity, the parties to the conflict and various geographical, political and military factors. The US Navy, Law of Naval Warfare pamphlet, NWIP 10-2, para. 503(b)(3) states:

Enemy merchant vessels may be attacked and destroyed, either with or without prior warning, in any of the following circumstances;

1. Actively resisting visit and search or capture.

2. Refusing to stop upon being duly summoned.

3. Sailing under convoy of enemy warships or enemy military aircraft.

4. If armed, and there is reason to believe that such armament has been

used, or is intended for use, offensively against an enemy.

5. If incorporated into, or assisting in any way, the intelligence system of an enemy's armed forces.

6. If acting in any capacity as a naval or military auxiliary to an enemy's armed forces.

d. Neutral Ships. 35 Neutral status is not determined solely by the flag a ship carries. Neutral ships may acquire the character of enemy ships under particular circumstances. Neutral merchant ships acquire the character of enemy warships and are liable to the same treatment as enemy warships when taking a direct part in hostilities or acting as a naval or military auxiliary to an enemy's armed forces. Neutral merchant ships may acquire the character of enemy merchant ships when operating under enemy control, charter or employment, or when resisting an attempt to establish identity including visit and search.

e. Current Status. It should be noted that many of these rules were developed during the time when surface ships met at sea and warships could stop, board and detain. They do not necessarily reflect the realities of aircraft or submarine warfare against merchant ships. Careful adherence to rules of engagement in the event of conflict will therefore be required.

1 On neutrality, see Hague V, Respecting the Rights and Duties of Neutral Powers and Persons In Case of War On Land; AFP 110-20, cited chapter 1; Hague XIII (Rights and Duties of Neutral Powers in Naval War, 18 Oct 1907, 36 Stat 2415; TS 545; 1 Bevans 723 (1910). On the territorial inviolability of neutral airspace during armed conflict, see Garner, "International Regulation of Air Warfare," 3 Air L.Rev. 309-311 (1932); Greenspan, The Modern Law of Land Warfare 535 (1959); 2 Schwarzenberger, International Law, International Courts, The Law of Armed Conflict 662 (1968); Spaight, Air Power and War Rights 421 (1947). On neutral territorial sea, see 3 Hyde, International Law, Chiefly as Interpreted and Applied by the United States 2337-2341 (2nd ed. 1945); Mc Dougal and Feliciano, "International Coercion and World Public Order-The General Principles of the Law of War," 67 Yale L.Rev. 830 (1958); 2 Oppenheim's International Law 687 (7th ed. Lauterpacht 1952). Also, US Army, FM 27-10, The Law of Land Warfare 185 (1956); US Navy, NWIP 102, Law of Naval Warfare, at paragraph 443 (1959); US Naval War College, 1955 International Law Studies 165 (1957). On Military Aircraft, see chapter 2, this publication, and NWIP 10-2, at paragraph 503; US Naval War College, supra at 43; Spaight, supra, 76 et seq.

2 Paragraph 3-2, this publication. On uniforms, see chapter 7; on special protection, see paragraph 4– 2(f)(g).

3 See discussion, paragraph 2-6c, this publication and authorities cited there as well as footnote 1, supra.

On compensation, See Brittin and Watson, International Law for Seagoing Officers 130 (1960); Briggs, The Law of Nations 1038 (1952); Greenspan, Soldiers Guide To The Law of War 74 (1969); Schwarzenberger, supra note 1, at 576. On medical aircraft in neutral territory, see Art. 37, GWS; Art. 40, GWS-SEA. US Position on Cambodian incursion, see Nelson, "Contemporary Practice of the United States Relating to International Law," 64 Am. J. Int'l. L. 928 (1970).

4 Weapons are discussed in chapter 6.

5 On background of the Draft Hague Rules of Air Warfare (1923), see paragraph 5-2. Article 18 states "The use of tracer, incendiary, or explosive projectiles by or against aircraft is not prohibited. This provision applies equally to States which are parties to the Declaration of St Petersburg, 1868, and to those which are not.) For discussion, see Spaight supra note 1, at 197.

6 Spaight, supra note 1, at 151-152; and Greenspan, supra note 1, at 367.

7 Article 23(c), HR, ". . . it is especially forbidden . . c. To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion;". Article 511(c) NWIP 10-2, supra note 1, states "It is forbidden to refuse quarter to any enemy who has surrendered in good faith. In particular, it is forbidden either to continue to attack enemy warships and military aircraft which have clearly indicated a readiness to surrender or to fire upon the survivors of such vessels and aircraft who no longer have the means to defend themselves." Common Article 3 to the 1949 Geneva Conventions (setting forth minimal standards applicable to internal conflicts) notes, inter alia, "Persons taking no active part in the hostilities, including numbers of armed forces who have laid down their arms and those placed hors de combat by . . . shall in all circumstances be treated humanely...." (emphasis added).

8 Spaight, supra note 1, at 128; Stone, Legal Controls of International Conflict 617 (1959).

9

Spaight, supra note 1, at 127. The common use of ruses in air to air combat in World War I and II to simulate disability or an out of control condition makes it impractical to apply the strict rule of land and sea warfare. Spaight supra note 1, at 169. 10 Attacks against civil aircraft, though not prohibited in some circumstances, should not be continued when the aircraft no longer represents a military threat. "These rules [referring to Articles 23c and d, HR, forbidding attacks against combatants who surrender and declaring no quarter] are applicable to hostilities wherever conducted. . . . A belligerent is required to use only that degree of force necessary to compel submission of the enemy, force in excess of this requirement being strictly prohibited. long been considered applicable to warships. . . . it is only reasonable to demand that in the case of enemy merchant vessels a special effort be made by the attacking warship to cease the attack once active resistance has come to an end. . . .' US Naval War College, supra note 1, at 71. On sea warfare, see paragraph 44.

...

...

...

11 For categories of protected persons see chapter 3. The 1949 Geneva Conventions require combatants to exert their utmost endeavors, subject to immediate operational constraints, to search for and rescue shipwrecked (including from air) survivors. On land, "At all times and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled." Art 15, GWS. See

also Art 18, GWS-SEA. The obligation to search for and rescue is not an absolute one, but is subject to operational necessity. In the case of aircraft, unfortunately, departure from the scene is usually required. The obligation not to attack defenseless survivors is not subject to such constraints. US Naval War College, supra note 1, at 82.

12 FM 27-10, supra note 1, at 17, states:

The law of war does not prohibit firing upon paratroops or other persons who are or appear to be bound upon hostile missions while such persons are descending by parachute. Persons other than those mentioned in the preceding sentence who are descending by parachute from disabled aircraft may not be fired upon. Article 20, 1923 Draft Hague Rules on Air Warfare 1 states:

When an aircraft has been disabled, the occupants when endeavoring to escape by means of parachute must not be attacked in the course of their descent.

World War I and II practice varied with frequent violations by Axis powers. Spaight argues protection should be limited to attacks when descending over enemy territory yet the better rule is set forth in the Army Field Manual. Spaight supra note 1, at 154. See also Greenspan, supra note 1, at 318; 10 Whiteman, Digest of International Law 405-407 (1968) [herein Whiteman].

13 See authorities supra note 12.

14 If downed in their own territory, they remain lawful targets, as combatants, unless rendered hors de combat by sickness, wounds or other causes. Spaight, supra note 1, at 124-125. If downed in the attacker's territory and subject to capture, the advantages of capture outweigh any minimal advantage secured by attack.

15 "The present Convention shall apply ... from the time they fall into the power of the enemy and until their final release and repatriation." Art 5, GPW, discussed chapter 13, this publication.

16 Art 36, GWS; Art 39, GWS-SEA: Art 22, GC. Existing specific treaty protection for military and civilian medical aircraft extends only if they are exclusively engaged in certain medical functions and are flying at heights, times and on routes agreed upon by the Parties to the conflict. Protection under the 1929 Red Cross Convention was extended except for flights over enemy controlled territory or in immediate combat zones. (Art 18, Red Cross Convention of 27 July 1929, founded in 1 The Law of War, A Documentary History 471 (Friedman ed. 1972).

17 See Report of US Delegation to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict, 1st Sess (1974) and 2nd Sess (1975).

18 Spaight, supra note 1, at 134; NWIP 10-2, supra

note 1, at paragraph 503c; US Naval War college, supra note 1, at 98.

19 In Flight On Ground. See chapter 2 for discussion of civil aircraft. For discussion of basic immunity of civil aircraft in airspace, see Spaight, supra note 1, at 394; NWIP 10-2, supra note 1, at paragraph 503; US Naval War College Studies, supra note 1, at 108; Stone, Legal Controls of International Conflict 618 (1973).

For discussion of attacks on military objectives on the ground, see chapter 5. Moreover injury to civilians or damage to civilian objects resulting from attacks on civil aircraft on the ground may be minimal or nonexistent.

This section distinguishes between "in flight" and "on the ground," because of the different treatments afforded civil aircraft within the context of this publication. The greater danger that exists for passengers in an aircraft in flight is recognized by the International Civil Aviation Organization (ICAO), which also draws the above distinction for aircraft in flight. See Assembly Resolutions in Force, 1975, Doc 9124, ICAO, A17-17, clause 5, at 134 "lethal object to be ejected while in flight;" A17-5, clause 5, at 136 "unlawful diversion of an aircraft in flight."

20 Zones. The establishment of restrictions by zones is widely used. Although the normal procedure is to seek identification of all aircraft at all times, in practical terms this would create a broader protection for civil aircraft than actually exists in most armed conflicts. Unauthorized entry into a flight restriction zone may endanger and delay military personnel, jeopardize military operations, and distract valuable reconnaissance activities.

Authority For Zones. The authority for establishing these zones for aircraft engaged in international scheduled airline service is at Art 9(a), Convention on International Civil Aviation (Chicago), 7 December 1944, 61 Stat 1180; TIAS 1591; 3 Bevans 944; 15 UNTS 295 (1947), reprinted AFP 110-20, at 5-2 [herein Chicago Convention].

The authority for establishing these zones in an emergency is at Art 9(b), Chicago Convention. "Each contracting State reserves also the right, in exceptional circumstances or during a period of emergency, or in the interest of public safety, and with immediate effect, temporarily to restrict or prohibit flying over the whole or any part of its territory,

.

Flight Restriction Zone. The use of zones is a simple and effective way in which orders and commands can issue which can be implemented by field personnel, especially when dealing with the sensitive and complicated problem of dealing with civilian activities during periods of armed conflict.

Requirement of Notice for Zones. ICAO Assembly Resolution A17-9, at 129, 1975, UN Doc 9124, invites the parties to use the Good Offices of the

ICAO. Also see, A17-16, at 136, "Reports on incidents of unlawful interference;" A17-14, at 137, "International co-operation and exchange and dissemination of information related to unlawful interference."

Unauthorized Approach of Territory. Art 36, GC; Art 9(a), 9(b), and 35(a), Chicago Convention.

State Owned Airlines. The Chicago Convention is applicable only to civil aircraft and not to state aircraft. Art 3(a), Chicago Convention. The "state aircraft" used in the Convention is a term of art to define aircraft used in military, customs and police services. Art 3(b), Chicago Convention. The term "state aircraft" should not be confused with a state owned air transport enterprise offering or operating an international air service. Art 96(c), Chicago Convention.

21 Articles 33 and 34, 1923 Draft Hague Rules of Air Warfare, discussed paragraph 5-2, this publication, and found in Spaight and Greenspan, supra note 1, as appendices.

22 US Navy, Tentative Instructions for the Navy of the United States Governing Maritime and Aerial Warfare, May 1941 (1944).

23 Spaight, supra note 1, at 404.

24 McWhinney, Aerial Piracy and International Law (1971); Joyner, Aerial Hijacking as an International Crime (1974).

25 Case concerning the aerial incident of 27th July, 1955 (United States of America vs. Bulgaria), Memorial submitted by the Government of the United States of America, 2 Dec 1958, [Bulgarian attack on Israeli Airliner entering Bulgarian air space without permission] found in 9 Whiteman 340 (1968). The Bulgarian Government earlier had expressed regret, promised to identify those responsible, and undertook necessary steps to insure such catastrophes would not be repeated. 9 Whiteman 327. (Bulgaria was not then a member of the Chicago Convention). Israel in its brief noted ". . . when measures of force are employed to protect territorial sovereignty, whether on land, on sea or in the air, their employment is subject to the duty to take into consideration the elementary obligations of humanity, and not to use a degree of force in excess of what is commensurate with the reality and the gravity of the threat (if any)." 9 Whiteman 328.

26 UN Security Council Resolution 262 (1968), adopted unanimously, condemning Israeli attack against Beirut Airport, 8 Int'l. Legal Materials 445 (1969) (herein I.L.M.); UN Security Council Decision on hijacking S/10705, 20 June 1972, 11 I.L.M. 919; International Civil Aviation Organization (ICAO) Council Resolution Concerning Israeli attack on Libyan Civil Aircraft (4 June 1973), 12 I.L.M. 1180; ICAO Council Resolution on Israeli Violation of Lebanese Airspace (diversion aircraft) (20 Aug. 1973), 12 I.L.M. 1181; ICAO Assembly

Resolution Concerning Unlawful Interference with Civil Aviation (21 Sept. 1973), 12 I.L.M. 1536. 27 See chap 2 for discussion. Also see Art 3, Chicago Convention, and Art 35, Chicago Convention: No munitions of war or implements of war may be carried in or above the territory of a state in aircraft engaged in international navigation, except by permission of such State."

28 See paragraph 7-4 and chapter 8 for discussion of relevant principles.

Definitions. "Airline"-Art 96, Chicago Convention. "State Aircraft"-Art 3(b), Chicago Convention.

29 The combined protection of neutrality and general civilian immunity affords greater protection to neutral civil aircraft.

30 See authorities supra note 19.

31 This covers attacks against sea targets, not attacks against air targets over the sea or land. The text of Rules 1, 2, and 5 are from NWIP 10-2, supra note 1, at paragraph 503. On the basic application of sea warfare rules to attacks by aircraft against sea targets and maritime warfare in general, see NWIP 10-2, at paragraph 250; US Naval War College, supra note 1, at 68; Spaight, supra note 1, at 479; Stone, supra note 8, at 603, 617. Shipwrecked at sea and hospital ships/medical transport. Persons . . . who are at sea, and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances, it being understood that the term 'shipwrecked' means shipwrecked from any cause and includes forced landings at sea by or from aircraft." Art 12, GWS-SEA. For discussion, see chapter 12.

Hague XI, Articles 3 and 4, protect vessels used exclusively for fishing along the coast or small boats employed in local trade and vessels charged with religious, scientific or philanthropic missions.

32 The treaties to which the US is a party on naval warfare include:

Convention Regarding the Rights of Neutrals at Sea, 22 July 1854, 10 Stat. 1105; TS 300; 11 Bevans 1214 (US & USSR are parties).

Convention Relative to the Laying of Automatic Submarine Contact Mines, October 18, 1907, 36 Stat. 2332; TS 541; 1 Bevans 669 (1910). (Hague VIID

Convention Concerning Bombardment by Naval Forces in Time Of War, October 18, 1907, 36 Stat 2351; TS 542; 1 Bevans 681 (1910). (Hague IX)

Convention Relative to Certain Restrictions With Regard to the Exercise of the Right of Capture in Naval War, October 18, 1907, 36 Stat 2396; TS 544; 1 Bevans 711 (1910). (Hague XI)

Convention Concerning the Rights and Duties of Neutral Powers in Naval War, October 18, 1907, 36 Stat 2415, TS 545; Bevans 723 (1910). (Hague XIII)

Treaty for the Limitation and Reduction of Naval Armament, London April 22, 1930; 46 Stat 2858;

TS 830; 2 Bevans 1055; 112 LNTS 60 (1930) (Expired except for Part IV to remain in force without limit of time.)

Historical development. The issues have been fairly extensive and include: taking enemy goods aboard neutral vessels (free goods-free ships), convoying of neutral merchant ships by neutral warships, arming merchant ships, converting merchant ships to warships outside of home port, conforming to requirements for search or destruction by submarines and aircraft, imposing war zones dangerous to shipping, diverting ships prior to visit, transferring of enemy merchant ships to neutrals, engaging in unneutral service and resisting search.

Adjudication. The issues have also been subject to extensive international adjudication. See Schwarzenberger, supra note 1, at 390.

33 In 1963, the United States adopted limited meas

ures of quarantine during the Cuban Missile Crises to preclude introduction of offensive missiles. See Meeker, "Defensive Quarantine and the Law," 57 Am. J. Intl. L. 515 (1963). Additionally in the Vietnam Conflict the US instituted a temporary mine blockade as a legitimate measure of collective self defense.

34 Kelsen, Principles of International Law 107 (1957); US Naval War College, supra note 1, at 55; Stone, supra note 8, at 585; Schwarzenberger, supra note 1, at 385; 10 Whiteman 670.

35 NWIP 10-2, supra note 1, at paragraph 501(b) and Schwarzenberger, supra note 1, at 399. Neutral vessels acquire enemy character as merchant vessels when operating under enemy control, orders, charter, employment or direction or when resisting an attempt to establish identity, including visit and search.