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Memorandum

subject: Aerial Intercepts and Shoot-downs: Dale:


March 30, 2000
Ambiguities of Law and Practical
Considerations

To: Cathleen Corken, Dep. Chief From: Robert A. De La Cruz


Domestic Terrorism, TVCS Trial Attorney, TVCS

I. Introduction 2

I1. Venue 2

III. Ambiguities of Law 4

A. Omissions of Treaties and Conventions 5


1. Chicago Convention 6
a. Article 3 bis 8
2. Tokyo Convention 11
3. Hague Convention 13
4. Montreal Convention 13
5. 18 U.S.C. § 32 14
B. Distinctions Between Military and Civil Aviation . 17
1. Military Aviation 17
2. Civil Aviation 18
a. Civil Aircraft Used for Illegal
Political Purposes 19
b. Civil Aircraft Used for Narcotics
Smuggling 20
c. Civil Aviation Being Used as a Weapon ... 23
C. Applicability of Other Legal Theories 23
1. 1982 United Nations Convention on the Law
of the Sea 23
2. Law of Land Warfare 26
D. United States Code 28
1. Posse Comitatus Act 29

IV. Self-Defense 30

A. United Nations Charter Provisions 30


B. Constitutional Use of Deadly Force 32

V. Practical Considerations 34
VI. Conclusion 35

I. Introduction

If the need arises for the United States government to shoot


down a terrorist-controlled civil aircraft, its decision will
hinge upon the perceived need for self-defense. Because it is
presumptively unreasonable to shoot down a civil aircraft, the
burden of justifying the shoot-down will fall upon the United
States. The justification will require that the United States
carry both the burden of production and the burden of persuasion
to present the affirmative defense of self-defense. The legal
determination of whether the shoot-down was warranted will (or
should) be governed by the well established self-defense
principles of necessity, proportionality of the force used, and
reasonableness of the perception of the threat.

II. VENUE

In the event the United States does deliberately destroy a


civil aircraft in flight, there are three possible venues in
which the government will be required to act. It is beyond the
scope of this paper to fully discuss the issues of venue,
international jurisdiction, or "punishment" or sanctions, but
because a shoot-down may effect the United States government in
these venues, I briefly identify them and address the practical
limits of their power.

First, the shoot-down will be "tried in the court of public


opinion." Regardless of the strength of the justification in
shooting down a terrorist-controlled civil aircraft, there will
be both genuine and manufactured public outrage over the act.
Due to the economic relationship between the United States and
most of the rest of the world, the "court of world opinion" will
have only a transitory effect, if at all, upon the long-term
interests of the United States. Despite the impotence of this
venue to fundamentally change the operation of the United States
government, this is the primary audience the United States
attempts to persuade. This is due in part to the fact that the
people of the United States perceive the government to be an
extension of themselves, and, internationally, both the citizens
and the government demonstrate a seemingly compulsive need to be
liked by most of the rest of the world. Internally, an
unjustifiable and objectionable action may cause the governed to
withdraw their consent to be governed by the elected
decision-maker. As a result, both the citizens and the
government attempt to avoid situations where the righteousness of
our action is validly and successfully criticized either
internally or internationally. At the practical level, the
government's obligation to appease this jury lies in preventing
or minimizing unintended collateral consequences, such as
vengeance-motivated terrorist attacks. This goal is accomplished
by publicly making a persuasive and well documented case
justifying the act as legitimate self-defense.

The second venue lies with the International Court of


Justice. The United States' amenability to the jurisdiction of
this body is a product of treaty.1 The effectiveness of this
body is a matter of dispute since, as against an economically and
militarily strong nation, the International Court of Justice
lacks the ability to enforce any sanction it might impose.
Moreover, the practical decision whether to use deadly force to
shoot down a threatening civil aircraft will not (or should not)
turn upon any requirements of pleasing this body. On the other
hand, the United States might welcome the opportunity to use the
forum of the International Court of Justice to publicize the
legitimacy of the act of self-defense. Due to the excessive
delay normally attendant in presenting a case before the ICJ,
however, the United States would still be required to make its
case before the public.

The third, and most certain, venue is Congress. Unlike the


first two venues, this body does have the power to define the
long-term goals and set the short-term operating rules for much
of the rest of the government. Just as with public reaction,
Congress will exhibit both genuine and manufactured outrage over
a shoot-down. Fortunately, Congress is a part of the United

1 The United States is a signatory to the civil aviation


Conventions discussed infra, and assuming that the destroyed
civil aircraft at issue operated under another signatory nation's
flag, the jurisdictional basis for the International Court of
Justice arises from the terms of ArticlB 84 of the Chicago
Convention (officially named the "Convention on International
Civil Aviation," Dec. 7, 1944, 61 Stat. 1180, TIAS No. 1591, 15
U.N.T.S. 295 (ratified by the United States on April 4, 1947).
The International Court of Justice (ICJ) is the ultimate arbiter
of interpretation and application of the Chicago Convention. See
D. Linnan, Iran Air Flight 655 and Beyond: Free Passage, Mistaken
Self-Defense, and State Responsibility, 61 Yale J. Int'l L. 245,
263-68 (Summer 1991). Notwithstanding the fact that a
terrorist-controlled aircraft being used as a weapon should lose
its protected "civil" status and no longer be covered within the
framework of the Convention, it is highly unlikely that the ICJ
would divest itself of jurisdiction, or rule favorably on the
loss of "civil" status. Instead, we would probably witness
another attempt by the International Civil Aviation Organization
to extend its jurisdiction to cover state (i.e., military)
aircraft, as happened with the proposed Amendment 27 to Annex 2
of the Rules of the Air.
States' legal culture, and it is assumed that Congress is capable
of understanding the law of self-defense. If the legitimate need
arises to shoot down a civil aircraft on the grounds of
self-defense, then it is assumed that the government can present
its case to Congress without undue fear of hysterical reprisals.

III. Ambiguities of Law

There is no definitive body of law which expressly permits a


government to shoot down a threatening civil aircraft. What
rules do exist only address the issue of ordering an offending
aircraft to land if it is in violation of a nation's law or in
violation of the terms of the aviation Conventions; but the rules
are silent on the ultimate issue of what force is permitted in
the face of open defiance of a show of authority. Similarly,
there is no definitive body of law which expressly permits a
government to shoot down a threatening military aircraft.
Instead, we can only draw conclusions based upon worldwide
historical practice, coupled with either a strategic desire to
maintain ambiguity for the purpose of keeping options open, or an
aversion to recognizing brutal realities wherein actual force is
used.

As applicable to civil aviation, where international


agreement does exist, such agreements form the basis for the
international Conventions that have come into force. One
uniformly accepted norm is that no nation should, as a matter of
national policy, permit or practice the shooting down of
non-threatening civil aviation aircraft. But it is also
universally accepted practice to shoot down foreign military
combat aircraft whose only threatening behavior is unauthorized
presence within the recognized airspace of a nation-state, even
though such an act is not condoned in any particular
international document.

Unlike the "Law of Land Warfare" or the "Law of Naval


Warfare," there is no comprehensive "Law of Aerial Warfare."
Instead, to the degree aerial warfare is considered at all,
aerial combatants have been treated as adjuncts to some other
form of combat. As a result, there is no widely-accepted body of
military definitions which might otherwise prove useful in
classifying an aircraft as threatening or non-threatening.
Similarly, notwithstanding the existence of mass commercial
aviation, none of the surprisingly few international conventions
directly confront the issue of when it becomes permissible to
destroy a civil aircraft in flight.2 The omission of discussion

There are internationally recognized rules applicable

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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.

A. Omissions of Treaties and Conventions

There are five Conventions which purport to regulate key


aspects of international aviation: the Convention on
International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, TIAS
No. 1591, 15 U.N.T.S. 295, known as the "Chicago Convention"
(ratified by the United States on April 4, 1947); the Convention
on Offences and Certain Other Acts Committed on Board Aircraft,
Sept. 14, 1963, 20 U.S.T. 2941, TIAS 6768, 704 U.N.T.S. 219,
known as the "Tokyo Convention" (ratified December 4, 1969); the
Convention of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22
U.S.T. 1641, TIAS 7192, 10 I.L.M. 133, known as the "Hague
Convention" (ratified October 14, 1971); the Convention for the
Suppression of Unlawful Acts Against the Safety of Civil
Aviation, Sept. 23, 1971, 24 U.S.T. 564, TIAS 7570, 10 I.L.M.
1151, known as the "Montreal Convention" (ratified January 26,
1973); and United Nations Convention of the Law of the Sea (1982
UNCLOS) (which entered into force on November 16, 1994, but which
has not been ratified by the United States Senate).3 Although
the Tokyo Convention is the closest of the Conventions to imply
an authorized use of force against civil aircraft, it is only a
logical implication. The 1982 Law of the Sea Convention creates
an inference, as opposed to an arguably stronger implication,
authorizing the use of force, as did the Chicago Convention
before Article 3 bis was added. The remaining documents
carefully avoid the creation of even a weak inference. Each of
ratified Conventions are discussed below. The United Nations

to interception of international civil aviation, but these do not


address the situation of a necessity-induced deliberate
shoot-down. See Annex 2, Rules of the Air, at App. 2, ICAO (9th
Ed. July 1990).
3 Additional aviation protocols do not appear to be
relevant to the issue of civil aircraft in flight. See, e.g.,
Protocol for the Suppression of Unlawful Acts of Violence at
Airports Serving Civil Aviation (United States became party on
November 18, 1994).
Convention on the Law of the Sea will be discussed later in this
paper.

1. Chicago Convention (International Aviation)

The Chicago Convention is the cornerstone upon which the


structure of international civil aviation is built. It contains
several provisions which either reappear in later Conventions, or
establishes the presumptive norm that is inherently assumed to
exist in all subsequent Conventions. In relevant part, the key
passages of the Chicago Convention are:

Article 3

(a) This Convention shall be applicable only to civil


aircraft, and shall not be applicable to state
aircraft.
(b) Aircraft used in military, customs and police
services shall be deemed to be state aircraft.
(c) No state aircraft of a contracting State shall
fly over the territory of another State or land thereon
without the authorization by special agreement or
otherwise, and in accordance with the terms thereof.

Article 4

Each contracting State agrees not to use civil


aviation for any purpose inconsistent with the aims of
this Convention.

The "aims of this Convention" are, essentially, to protect


and facilitate international air transport of both persons and
property.

Article 5 establishes a right of non-scheduled flight and


protects the right of transit passage, "subject to the right of
the State flown over to require landing."

Article 9

(a) Each contracting State may, for reasons of


military necessity or public safety, restrict or
prohibit uniformly the aircraft of other States from
flying over certain areas of its territory, provided
that no distinction in this respect is made between the
aircraft of the State whose territory is involved,
engaged in international scheduled airline services,
and the aircraft of other contracting States likewise
engaged. Such prohibited areas shall be of reasonable
extent and location so as not to interfere
unnecessarily with air navigation. Descriptions of
such prohibited areas in the territory of a contracting
State, as well as any subsequent alterations therein,
shall be communicated as soon as possible to the other
contracting States and to the International Civil
Aviation Organization.
(b) 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, on condition that such restriction or
prohibition shall be applicable without distinction of
nationality to aircraft of all other States.
(c) Each contracting State, under such regulations as
it may prescribe, may require any aircraft entering the
areas contemplated in subparagraphs (a) or (b) above to
effect a landing as soon as practicable thereafter at
some designated airport within its territory.
Article 35

(a) 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. Each State shall determine
by regulations what constitutes munitions of war or
implements of war for the purposes of this Article,
giving due consideration, for the purposes of
uniformity, to such recommendations as the
International Civil Aviation Organization may from time
to time make.

Article 89

In case of war, the provisions of this Convention


shall not affect the freedom of action of any of the
contracting States affected, whether as belligerents or
as neutrals. The same principle shall apply in the
case of any contracting State which declares a state of
national emergency and notifies the fact to the
Council.

As can be seen, the Chicago Convention clearly prohibits


using civil aviation in a militarily aggressive manner. The
failure of this Convention, as will all others, is that it does
not specify what level of actions are permissible to enforce
these prohibitions. It is inferred, but never stated, that use
of deadly force is the ultimate sanction for failure to comply
with this Convention. Moreover, the Chicago Convention speaks in
terms of contracting States, and does not encompass the acts of
stateless terrorists. Given the creation of this Convention in
1944, the failure to address a then-non-existent problem is
understandable.
a. Article 3 bis
After the Soviet destruction of Korean Air Lines Flight 007
on August 31, 1983, world opinion resulted in the creation of
"Article 3 bis," which was meant to be appended to the Chicago
Convention. Notwithstanding the United States' decision not to
formally adopt this provision, the required number of signatory
countries (which was 102) have ratified the document, and Article
3 bis is now considered to be international law brought into
force by custom. The Federal Aviation Administration believes,
or at least operates as if, Article 3 bis is binding upon the
United States.
Article 3 bis states:
(a) The contracting States recognize that every State
must refrain from resorting to the use of weapons
against civil aircraft in flight and that, in case of
interception, the lives of persons on board and the
safety of the aircraft must not be endangered. This
provision shall not be interpreted as modifying in any
way the rights and obligations of States set forth in
the Charter of the United Nations.
(b) The contracting States recognize that every
State, in the exercise of its sovereignty, is entitled
to require the landing at some designated airport of a
civil aircraft flying above its territory without
authority of if there are reasonable grounds to
conclude that it is being used for any purpose
inconsistent with the aims of this Convention; it may
also give such aircraft any other instructions to put
an end to such violations. For this purpose, the
contracting States may resort to any appropriate means
consistent with relevant rules of international law,
including the relevant provisions of this Convention,
specifically paragraph (a) of this Article. Each
contracting State agrees to publish its regulations in
force regarding the interception of civil aircraft.
(c) Every civil aircraft shall comply with an order
given in conformity with paragraph (b) of this Article.
To this end each contracting State shall establish all
necessary provisions in its national laws or
regulations to make such compliance mandatory for any
civil aircraft registered in that State or operated by
a person having his principal place of business or
permanent residence in that State. Each contracting
State shall make any violation of such applicable laws
or regulations punishable by severe penalties and shall
submit the case to its competent authorities in
accordance with its laws or regulations.
(d) Each contracting State shall take appropriate
measures to prohibit the deliberate use of any civil
aircraft registered in that State or operated by an
operator who has his principal place of business or
permanent residence in that State for any purpose
inconsistent with the aims of this Convention. This
provision shall not affect paragraph (a) or derogate
from paragraphs (b) and (c) of this Article.

Article 3 bis is significant in two respects, and a failure


in three. First, Article 3 bis indirectly makes reference back
to the self-defense provisions of the United Nations Charter.
Second, it explicitly imposes a duty of the intercepted aircraft
to follow the instructions given by the interceptor aircraft or
from ground controllers in the overflown State. Hence, an
intercepted aircraft is required to land.

The failure of Article 3 bis is three-fold. First, the


limit of Article 3 bis is that it only permits a State to avail
itself of the Article's provisions once the offending aircraft
has entered the territorial airspace of the State. When dealing
with weapons of mass destruction, awaiting territorial arrival of
the aircraft may be too late. For instance, prevailing winds
could theoretically spread an airborne-detonated biological
weapon or chemical weapon onto the targeted State if the
intruding aircraft were permitted to enter the territorial
airspace of that State. Depending on the nature of the weapon,
one must consider the probabilities of whether an airborne
detonation could damage the intended weapon, or whether the
weapon was created to survive explosive dispersal (such as Soviet
smallpox viruses designed to survive ballistic missile delivery
and dispersal, or American chemical weapons designed to be
delivered by artillery shells). If the weapon were nuclear or
radiological, the density of the fallout pattern will increase
the closer the weapon is to the intended target. Also, even if
there is no discrete weapon on board, the aircraft itself can be
a potent weapon. A projectile's kinetic energy is derived from
the mathematical formula of multiplying the projectile's mass by
its speed. The destructive effect of a projectile lies in the
transference of kinetic energy into the struck target. An
airborne Boeing 747 can weigh in excess of 2 million pounds,
retain structural integrity at flight speeds exceeding 500 miles
per hour, and can carry many thousands of gallons of
kerosene-based jet fuel. If used as a weapon, such an aircraft
must be considered capable of destroying virtually any building
located anywhere in the world.

Second, Article 3 bis fails to specify what types of


enforcement are permissible when confronted by noncompliance.
The general prohibition of Article 3 bis prohibits use of deadly
force, and requires States to make noncompliance punishable by
"severe penalties," but it does not explicitly authorize the use
of deadly force. Instead, a generalized reference is made to the
U.N. Charter, but that erroneously presupposes a uniformity of
definition of what the right of self defense is under the U.N.
Charter. The specifics of the United Nations Charter provisions
are dealt with later in this paper, but this issue here is
whether Article 3 bis has created an illusory reliance upon a
"right" that may not be found to exist.

Third, the conceptual scope of Article 3 bis fails to


encompass what actions are permissible when dealing with a
terrorist-controlled, hijacked or surreptitiously-armed plane
that is carrying a weapon of mass destruction to an intended
target. Notwithstanding various works of fiction, to date there
are no reported actual incidents of a hijacked civil aircraft
being deliberately and successfully used as a flying bomb.4

4 During World War II, both American and Japanese pilots


deliberately used aircraft in suicidal attacks. The difference
between the national examples lies in the formal adoption by the
Japanese of kamikaze aircraft as a tactical means of guiding the
aircraft/bomb to its target; whereas American incidents appear to
be independent decisions by the pilot of an already damaged
aircraft (one specific American example is derived from the
damage inflicted on the Imperial Japanese Navy cruiser Mogami
during the Battle of Midway).
More recently, on Feb. 22, 1974, Samuel J. Byck murdered an
airport guard and a co-pilot before he was shot and wounded (and
then committed suicide) during his failed attempt to hijack a
Delta Air Lines for purpose of crashing it into the White House.
On Sept. 12, 1994, Frank Corder, operating in an apparent
narcotic-induced fog, piloted a small and unarmed Cessna aircraft
into the White House, but caused little damage. Finally,
although not a deliberate threat, on July 16, 1998, an errant
American Airlines jet directly overflew the White House during an

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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)

The Tokyo Convention is premised entirely upon the safe


landing of the aircraft in question. In relevant part, the Tokyo
Convention states:

Article 4

A Contracting State which is not the State of


registration may not interfere with an aircraft in
flight in order to exercise its criminal jurisdiction
over an offence committed on board except in the
following cases:

a) the offence has effect on the territory of such State;


b) the offence has been committed by or against a national
or permanent resident of such State;
c) the offence is against the security of such State;
d) the offence consists of a breach of any rules or
regulations relating to the flight or manoeuvre of
aircraft in force in such State;
e) the exercise of jurisdiction is necessary to ensure the
observance of any obligation of such State under a
multilateral international agreement.
Article 4(c) is the most explicit implied justification for
the use of force found in any of the Conventions. As always,
there is no guidance given as to the permissible level of force
that may be used to enforce this provision, but it is clear that
the some form of "interfere[nee] with an aircraft in flight" is
specifically permitted. The Tokyo Convention does not specify
what form of "interference is permitted, however. Instead,
Article 11 authorizes a State to "take all appropriate measures

approach to [Reagan] National Airport.


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to restore control of the aircraft to its lawful commander" in
the event of a hijacking. But, Articles 4 and 11 must be read in
conjunction with Article 17:

Article 17

In taking any measures for investigation or arrest or


otherwise exercising jurisdiction in connection with
any offence committed on board an aircraft the
Contracting States shall pay due regard to the safety
and other interests of air navigation and shall so act
as to avoid unnecessary delay of the aircraft,
passengers, crew or cargo.

Thus, even when dealing with the Convention that most


closely implies a specific authorization for the use of force to
protect a State from a specific aircraft threat, the remainder of
the Convention expressly only authorizes non-deadly force
remedies, which puts us back sguarely within the framework of the
Chicago Convention. To the degree that Article 17 provides
latitude for use of deadly force, it is a matter of
interpretation of the phrase "due regard" for passenger safety.

Another problematic issue arises within the Tokyo Convention


due to the following Article:

Article 2

Without prejudice to the provisions of Article 4 and


except when the safety of the aircraft or of persons or
property on board so requires, no provision of this
Convention shall be interpreted as authorizing or
requiring any action in respect of offences against
penal laws of a political nature or those based on
racial or religious discrimination.

At first blush, the United States would normally interpret


this Article as embodying nothing more than a prohibition against
using this Convention as a vehicle for practicing or enforcing
invidious discrimination. Under an appropriately
ideologically-motivated interpretation, however, this Article
exempted politically-motivated crimes, possibly even including
hijacking, from coverage under this Convention.

Also note that the Tokyo Convention offered two definitions


which govern when an aircraft is considered "in flight":

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.

But when addressing the authority of the aircraft commander,


the definition was altered:

Article 5

2. Notwithstanding the provisions of Article 1,


paragraph 3, an aircraft shall for the purposes of this
Chapter, be considered to be in flight at any time from
the moment when all its external doors are closed
following embarkation until the moment when any such
door is opened for disembarkation. In the case of a
forced landing, the provisions of this Chapter shall
continue to apply with respect to offences and acts
committed on board until competent authorities of a
State take over the responsibility for the aircraft and
for the persons and property on board.

This latter definition was incorporated by the Hague


Convention as the operational definition.

3. The Hague Convention (Hijacking)

This Convention closed the "political offense" loophole left


open by Article 2 of the Tokyo Convention. It mandated that
unlawful seizures of aircraft (hijacking) be deemed a serious
crime which mandated prosecution. Other than limiting the
prohibited conduct to "unlawful" activities, this Convention
contains no provisions applicable to the topic of this paper.

4. The Montreal Convention (Sabotage)

The Montreal Convention made it an offense to unlawfully


commit an act of violence against a person on an airplane where
such conduct threatened the safety of the aircraft; to destroy an
aircraft in flight or being "in service" of flight; to place by
any means a device or substance on board an aircraft "in service"
that could destroy or endanger the safety of the aircraft; to
destroy or damage air navigation facilities that would endanger
the safety of aircraft in flight; and to attempt any of the
aforementioned activities or to convey false information which
endangers the safety of an aircraft in flight.

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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

Pursuant to its obligation to effectuate the provisions of


the Montreal Convention, the United States enacted implementing
legislation. It was the express purpose of Congress "to
implement fully" the Montreal Convention "and to expand the
protection accorded to aircraft and related facilities." See
H.J.Res. 648, Pub.L. 98-473, 98 Stat. 1837 (Oct. 12, 1984). In
drafting the legislation, Congress failed to describe the
scienter to use, but instead used the terminology "Whoever
willfully - ...." In so doing, Congress seemingly, and
apparently unintentionally, criminalized the potential
self-defense actions of the United States government.

The terms "willful" and "willfully" have no set meaning, and


have been interpreted (in non-tax cases) in a variety of ways.
Indeed, the term "willfully" has "defied any consistent
interpretation by the courts." United States v. Granda, 565 F.2d
922, 924 (5th Cir 1978) . According to the Federal Jury Practice
and Instructions, "willfully" is defined as follows:

The term "willfully", as used in these instructions to


described the alleged state of mind of Defendant ,
means that (he)(she) knowingly (performed an act) (failed to
act), deliberately and intentionally ("on purpose") as
contrasted with accidentally, carelessly, or
unintentionally.

Federal Jury Practice and Instructions § 17.05(5th Ed.)

Under this definition, a United States soldier, airman, or


employee ordered to shoot down a threatening aircraft is acting
"willfully" because the act is done intentionally, and not
accidentally. This definition, and jury instruction, would
probably constitute reversible error, in light of Ratzlaf v.
United States, 510 U.S. 135, 136, 114 S.Ct. 655, 657, 126 L.Ed.2d
615 (1994). Ratzlaf required that the defendant have known his
actions were illegal. The Ratzlaf rationale has led several
Circuits to modify their instructions to reflect a knowledge that
the committed was done in violation of a law. See, e.g., United
States v. Doyle, 130 F.3d 523, 540 (2d Cir. 199777 United States
v. McNamara, 74 F.3d 514, 515 (4th Cir. 1996). The Seventh and
Ninth Circuits recommend that "willfully" not be defined unless

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.

Section 32(a)(1) specifically makes it an offense to destroy


"any aircraft in the special aircraft jurisdiction of the United
States" [emphasis added]. In other parts of this statute, when
Congress meant to discuss civil aircraft, they explicitly
referenced "civil aircraft." Accordingly, the § 32 (a) (1)
reference to "any" must, in fact, mean "any" aircraft.5 Assuming
a United States interceptor aircraft, or long range ground based
missile launcher, fired upon a terrorist-controlled U.S. flag
aircraft in international airspace (or any civil aircraft inside
U.S. airspace), the person launching the weapon would be
intentionally acting, knowing that such act is in violation of
the law. That individual would have an affirmative defense to
raise at trial, but the underlying act would still be
presumptively criminal. While it would be exceedingly unlikely
that the United States government would prosecute such an
individual, there is no guarantee that other nations would not
use the Convention and 18 U.S.C. § 32 to assert criminal
jurisdiction over the launching person. Hence, the lack of
scienter in § 32 potentially exposes governmental actors, acting
in good faith and within the scope of their duties, to criminal
prosecution.

In light of this unacceptable situation, the Executive


branch of government may wish to invoke immunity from the reach
of § 32. In Nardone v. United States, 302 U.S. 379, 58 S.Ct.
275, 82 L.Ed.314 (1937), the Supreme Court limited a
long-standing rule of statutory interpretation it had previously
recognized in Dollar Savings Bank v. United States, 86 U.S. (19

5 Assuming that "any" does, in fact, mean "any" aircraft,


18 U.S.C. § 32 becomes constitutionally suspect where, taken
literally, this statute would prohibit the destruction of a
hostile nation's intruding air force. Given this possible
interpretation, this statute is unconstitutional in that it
represents an impermissible legislative infringement upon the
Executive Branch's un-enumerated constitutional duty and
prerogative to defend the United States from hostile attack. See I
The Prize Cases, 67 U.S. (2 Black) 635, 668, 17 L.Ed. 459 (1862T~
("If a war be made by invasion of a foreign nation, the President
is not only authorized but bound to resist force by force. He
does not initiate the war, but is bound to accept the challenge
without waiting for any special legislative authority.").

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:

The most general words that can be devised (for


example, any person or persons, bodies politic or
corporate) affect not [the sovereign] in the least, if
they may tend to restrain or diminish any of his rights
and interests.

Id., 86 U.S. (19 Wall.) at 239.

When deciding Nardone, the Supreme Court implicitly rejected


the first half of the Dollar rule, requiring "special and
particular words" to be averred within the statutory language,
and concluded that generalized statutes did apply to the
government. See also United States v. Arizona, 295 U.S. 174, 55
S.Ct. 666, 79 L.Ed. 1371 (1935). The Nardone decision retained,
however, the latter half of the Dollar rule, by rejecting a
literal reading of a general statute where doing so would
"deprive the sovereign of a recognized or established prerogative
title or interest[,]" or where literal application of the
statutory language "would work obvious absurdity[.]" Nardone v.
United States, supra, 302 U.S. at 383-4, 58 S.Ct. at 277.

Even if 18 U.S.C. § 32 is construed as generally prohibiting


the United States or its agents from destroying civil aircraft,
but see 22 U.S.C. § 2291-4, the statute does not foreclose the
duty of self-defense, or the affirmative legal defense of
self-defense. See The Prize Cases, supra, 67 U.S. at 668 ("If a
war be made by invasion of a foreign nation, the President is not
only authorized but bound to resist force by force. He does not
initiate the war, but is bound to accept the challenge without
waiting for any special legislative authority."). Therefore, the
Executive branch of government could argue it is immune from § 32
where statute both deprives the sovereign of the prerogative of
self-defense, as well as working an "obvious absurdity" in
potentially precluding self-defense.

B. Distinctions Between Military and Civil Aviation

Every Convention - Chicago, Tokyo, Hague and Montreal -


contains an explicit provision stating that the Convention does
not apply to "military, customs, or police" aircraft. Such State
aircraft fly without the protection of these Conventions, but

16
carry with them the implicit force majeure of their country of
origin.

1. Military Aviation

There are no treaties or Conventions which explicitly grant


one nation the power or lawful authority to shoot down another
nation's military aircraft. Instead, the pragmatism of harsh
reality controls the practice of shooting down intruding military
combat aircraft. To the degree that nations engage in
self-restraint in shooting down their neighbor's combat aircraft,
such restraint can safely be presumed to be the product of a
desire not engage in open belligerency. Conversely, the neighbor
can be presumed to withhold its aircraft from crossing a border
out a desire to preserve its limited supply of very expensive
combat aircraft. But violations of this general accord result in
self-help, wherein the intruding combat aircraft are destroyed by
the overflown nation. See generally Geiser, The Fog of Peace:
The Use of Weapons Against Aircraft in Flight During Peacetime, 4
J. Int'l Legal Stud. 187 (Summer 1998) [hereinafter "Fog of
Peace"]- While the nation that lost its aircraft may be
outraged, the rest of the world is not. Furthermore, since war
interferes with the general orderliness and predictability of
nations at peace, as well as with commerce, the practical and
world-wide consensus is that escalation to full scale war is not
appropriate when someone destroys trespassing combat aircraft.

At least one distinction has been recognized for clearly


non-combatant-type military aircraft. On August 9th and 19th,
1946, Yugoslavia intercepted unarmed but admittedly intruding
U.S. military transport planes and machine-gunned them. The
first aircraft made a forced landing, and the second was shot
down. By agreement between Yugoslavia and the United States, it
was decided to permit non-combatant military planes to either
land upon order of the interceptor aircraft, or failing that, to
pursue diplomatic remedies. See Fog of War, supra, 4 J. Int'l
Legal Stud, at 198-201. It is exceedingly unlikely that this
isolated episode can be extrapolated into a general rule
protecting non-combatant-type military aircraft, and Yugoslavia
had an ulterior motive for seeking peace with the United States
at the time it reached its agreement on this matter (border
dispute with Italy). However, even were we to accept the very
tenuous assumption that unarmed military transport aircraft are
"safe," any protection given this form of unarmed aircraft is
only operable in the absence of open belligerency. If a state of
war or open belligerency exists, these aircraft are legitimate
targets.

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

When dealing with civil aircraft, all the presumptions in


favor of use of force are reversed. In part, this is in keeping
with the general prohibition against unnecessarily killing
civilians during hostilities. See generally, Geneva Convention
Relative to the Protection of Civilian Persons in Time of War,
TIAS 3365 (12 August 1949); but see Article 28 ("The presence of
a protected person may not be used to render certain points or
areas immune from military operations."). Also, the clear intent
of the Chicago Convention and its progeny is to specifically
protect international civil aviation that is operating normally
in the course of aviation business. See Preamble and Article 4,
Chicago Convention.

The presumption against resort to deadly force being used


against civil aviation extends even to aircraft that are
operating outside the scope of the coverage of the Conventions.
The Chicago Convention assumes that every civil aircraft flying
"belongs" to some country. See Article 17, Chicago Convention
(aircraft have nationality of State of registry), and Article 18,
Chicago Convention (no dual State registration). The country of
origin retains the duty to control and punish its civil pilots
who deviate from the rules of the air. See Article 12, Chicago
Convention ("Each contracting State undertakes to insure the
prosecution of all persons violating the regulations
applicable.").

Two major conceptual flaws exist under the Chicago


Convention's assumption of universal coverage over all civil
aviation aircraft. First, not all civil aircraft engage in
international transportation, and therefore are not under the
jurisdiction or protection of ICAO.6 While we may assume that
any international aircraft seized by terrorists for use as or in
conjunction with a weapon of mass destruction is nominally

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.

But even assuming that ICAO jurisdiction does continue when


a civil aircraft is unlawfully diverted from its routine mission,
there are no provisions in these Conventions that assert coverage
over aircraft that intentionally begin their flights beyond the
limits of the law.

At least two examples illustrate this point: the use of


civil aviation for unlawful political purposes, as in the example
the Cuban shoot-down of two "Brothers to the Rescue" aircraft on
February 24, 1996; and the use of civil aviation for narcotics
smuggling, which implicates the Colombian and Peruvian policies
of shooting down of narcotics smugglers' aircraft during and
between 1992 and 1994 (and perhaps beyond).

a. Civil Aircraft Used for Illegal Political Purposes

In the "Brothers to the Rescue" shoot-down, the position


articulated by the United States was that it was the civil nature
of the aircraft that made the shooting down illegal under
international law. See Fog of Peace, supra, 4 J. Int'l Legal
Stud, at 229. Reference by the United States was made to Article
3 bis, but inasmuch as this reference was a "political" statement
made by the Secretary of State in a press conference, such
reference cannot be interpreted as legal reliance upon, or formal
adoption of, Article 3 bis. In any event, by its terms, the
"Brothers to the Rescue" misuse of civil aviation appears to be
within the scope of conduct that Article 3 bis was designed to
protect. Article 3 bis (c) requires "each Contracting State" to
make it "punishable by severe penalties" for its persons or
registered aircraft to fail to comply with an order to land
issued by the overflown State. Under this regime, the United

6 Article 3 of the Hague Convention (Hijacking) and


Article 4 of the Montreal Convention (Sabotage) expressly cover
aircraft engaged in both international and domestic flight. Per
Article I, the Tokyo Convention (except when describing powers of
the aircraft commander) applies when the aircraft is "in flight,"
and it is implicitly assumed that this includes domestic flight.

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

b. Civil Aircraft Used for Narcotics Smuggling

A slightly different situation arises when dealing with


narcotics' smuggling aircraft. Unlike the political activities
carried out by the "Brothers to the Rescue," narcotics have a
direct, immediate and measurable nexus to murder, death, and
other serious crimes. Whether the murders are committed by
narco-terrorists defending their airfields from the Colombian or
Peruvian Army, or whether the murders and deaths are reflected in
the daily death toll within the United States, nobody can deny
the nexus or severity of the threat. Moreover, narcotics
aircraft are clearly operating for a "purpose inconsistent with
the aims of the [Chicago] Convention," and therefore it is
theoretically arguable that such aircraft have no greater or
lesser right to continue flying than any intruding military
combat aircraft. But for the existence of 18 U.S.C. § 32, and to
a lesser degree Article 3 bis, it would be entirely defensible to
argue that international law does not prohibit the shooting down
of narcotics aircraft. The existence of 18 U.S.C. § 32 makes
such an argument untenable for the United States, however,
because it represents the policy of the United States to not
shoot down "any" civil aircraft.

On the other hand, the federal government has granted


"official immunity for authorized employees and agents of the
United States and foreign countries" to "interdict" narcotics
aircraft by destruction. See 22 U.S.C. § 2291-4. This statute
appears to apply the Nardone exception reserving sovereign powers
as against a general legislative enactment. The interdiction
must occur within a foreign nation's airspace, however, and does
not confer equivalent authority to domestically-based agents of
the United States.

The remedies available for using less-than-deadly force


against civil narcotics aircraft are not quite as limited as
usually thought, but they do require a level of commitment of

1 If such a statutory scheme is created, the statute


should put venue in an appropriately neutral judicial district,
so as to avoid the jury nullification problems encountered in
Washington D.C., Florida, and Puerto Rico.

20
resources and willpower that this country typically lacks.

The first option is use our radar capabilities to track the


intruding aircraft back to their home base, whereupon we demand
that the country of origin criminally prosecute the violators.
The sanction to be applied for lack of prosecution is a series of
escalating economic sanctions, including the termination of that
nation's permissive entry into United States airspace for normal
airborne commerce.8 When dealing with situations such as
presented in Colombia, where the government is incapable of
policing its narcotics violators, the United States might be
justified in engaging in a more direct form of self-help.

The second option, premised upon failure of the first


option, is to engage in a hazardous and fuel-consuming practice
of aerial interception and harassment (a.k.a. "force-down").
Given that the normal body of governmental police aircraft are
incapable of conducting high-performance intercepts, the United
States would likely have to rely upon military combat aircraft.
Assuming that the intercepted aircraft declined an invitation to
comply with the orders of the intercepting aircraft, the military
aircraft would engage in high-speed and violent maneuvers in very
close proximity to the intercepted aircraft that would do two
things: cause the intercepted plane to consume fuel, and break
the nerve of the pilot. If the intercepted aircraft can be
forced to use its fuel in avoidance maneuvers, the aircraft will
have the option of landing in the United States or being forced
down at sea. If the nerve of the pilot can be broken, the pilot
may choose to surrender, or assuming escape, not return. This
option carries with it a substantial risk of mid-air collisions,
and an even greater risk of inducing the intercepted aircraft to
depart controlled flight (i.e., crash).

The second option is clearly an attenuated method of


applying deadly force, but the situation puts the pilot of the
intercepted aircraft in the position of deciding whether to
comply with the interceptor's commands or to crash. Since the
intercepted aircraft is not covered within the scope of any of
the civil aviation Conventions, this form of engagement is not
prohibited by such Conventions. Article 3 bis permits the
intercepting country to "any appropriate means" of enforcing its
airspace sovereignty, short of "resorting to the use of weapons."

8 For the purposes of this paper, I have not attempted to


integrate to what degree our right to impose economic sanctions
may be limited or modified by our membership in the World Trade
Organization or by the North American Free Trade Agreement, or by
other similar agreements.

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

The third option is to continue the present practice of


attempting to make law enforcement interceptions with substandard
police aircraft. Notwithstanding the fact that the current
practice has been demonstrated to be of limited effectiveness,
this appears to represent the level of commitment that this
nation is willing to undertake, commensurate with its desire not
to offend domestic public sensibilities.

The fourth option is to do nothing. This option would


require an acceptance of political realism equivalent to that
exercised by Option Two. In essence, the government would admit
defeat, admit that it is incapable of safeguarding the nation's
airspace, and permit whomever wished to fly over the United
States to do so for any purpose.
c. Civil Aviation Being Used as a Weapon

When dealing with an aircraft that has come under the


control of stateless terrorists, who intend to use the aircraft
as either a weapons delivery system or a guided missile, none of
the generally accepted theories apply. The aircraft is neither
military nor civil. The aircraft, which is presumably filled
with hundreds of innocent passengers, may have started its flight
under the protection of the various civil aviation Conventions,
but once the intended use of the aircraft becomes known, the
aircraft should lose its protected status. It is only the
unchanged outward appearance of the aircraft that generates the
illusion that the aircraft continues to be a civil aircraft.

The terrorist-controlled aircraft is not quite military,

9 The use of aerial intercept missiles, whether infrared


or radar guided, is prohibited by 18 U.S.C. § 32(a) (2), which
makes it unlawful to place a destructive device or substance "in
proximity to" an aircraft. Missiles typically operate with
proximity-fused warheads.

As for "world opinion" to a policy of inducing narcotics


aircraft to crash by means other than the use of weapons, please
note that there was no meaningful adverse world opinion, nor
sanctions, to the announced Colombian and Peruvian policies of
shooting down narcotics aircraft. See Fog of Peace, supra, 4 J.
Int'l Legal Stud, at 219-220 and nn7T30-132.

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.

C. Applicability of Other Legal Theories

What is the status of terrorists, especially terrorists in


control of an aircraft? The practical answer is that such people
are the functional equivalent of pirates; international outlaws
who used to be subject to attack by anyone at any place.
Unfortunately, the United Nations Convention on the Law of the
Sea has foreclosed the use of this conceptual construct. Whether
this was intentional or merely a reflection of society's
increasingly unwillingness to commit necessary violence for the
purpose of self-protection is a matter beyond the scope of this
paper.

1. United Nations Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea


[hereinafter UNCLOS] took effect in 1994. Like Article 3 bis,
UNCLOS has obtained sufficient signatories to become customary
international law, even though the United States has not formally
ratified it. Notwithstanding the title of this Convention,
UNCLOS contains several passages relating specifically to
aircraft. In many respects, UNCLOS is similar to the aviation
Conventions in that definitional concepts limit protection under
this Convention to those vessels and aircraft that are otherwise
operating lawfully. But while UNCLOS often creates strong
implications that seemingly justify use of force in certain
circumstances, UNCLOS creates definitions about piracy that
preclude the use of this term and concept from being applied to
terrorist-controlled aircraft.

Article 19 of UNCLOS defines "innocent passage" as being


passage that "is not prejudicial to the peace, good order or
security of the coastal state." Passage "of a foreign ship shall
be considered prejudicial" if it poses "any threat or use of
force against the sovereignty, territorial integrity or political
independence of the coastal State" or engages in "any other

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.

Based upon these provisions, piracy requires two or more


vessels or aircraft: one is the pirate, the other is the
target/victim.

Piracy must be committed for "private ends," which means


financial reward. An ideologically motivated hijacking is not
covered. UNCLOS mirrored the loophole created by the Tokyo
Convention, which required the Hague Convention to close.10

Under Article 104, an "aircraft may retain its nationality


although it has become a pirate ..." depending upon the law of
the nation of registration of the aircraft. The ancient common
law concept of severing the legitimate origins of a vessel from
its piratical application has been overturned by this Convention.
UNCLOS purports to govern the high seas and the airspace
beyond the territorial limits of nations. Although the general
transit-right terms of UNCLOS are not "inconsistent" with the
Chicago Convention, the piracy provisions are beyond the scope of
the Chicago Convention. If the Chicago Convention applied sub
silencio to civil aircraft operating beyond the jurisdiction of
the ICAO, then UNCLOS is inconsistent with the Chicago
Convention. Pursuant to Articles 82 and 83 of the Chicago
Convention, signatory States are foreclosed from adopting other
agreements that are "inconsistent" with the Chicago Convention.
If UNCLOS controls the issue, then a fortiori the Chicago
Convention never did govern the situation wherein a civil
aircraft is converted in flight from a protected "civil" status
to an unprotected status operating in contravention of the aims
of the Chicago Convention, because the UNCLOS piracy provisions
are not "inconsistent" with the Chicago Convention. But UNCLOS
only applies when two aircraft are involved. If this is the
case, then it stands to reason that a solitary
terrorist-controlled civil aircraft is not governed by either
UNCLOS or the Chicago Convention.

10 The "political" loophole for maritime ships and


platforms was closed with the Convention for the Suppression of
Unlawful Acts Against the Safety of Maritime Navigation, codified
at 18 U.S.C. § 2280, and the Protocol for the Suppression of
Unlawful Acts Against the Safety of Fixed Platforms Located on
the Continental Shelf, codified at 28 U.S.C. § 2281. Presumably,
aircraft remain protected under the Hague Convention.

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.

2. LAW OF LAND WARFARE

If terrorists are not pirates, they must be some other form


of international criminal. But terrorists do not meet the
criteria of being considered an armed force governed by the laws
of war. If they were, their chosen method of war stands in
direct contravention of the laws of war.

For examples, all of the 1949 Geneva Conventions governing


various aspects of treatment of civilians, wounded, and prisoners
contain the following passage in their respective Article 3:

In the case of armed conflict not of an international


character occurring in the territory of one of the High
Contracting Parties, each Party of the conflict shall
be bound to apply, as a minimum, the following
provisions:

(I) Persons taking no active part in the hostilities,


including members of armed forces who have laid down
their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse
distinction founded on race, colour, religion or faith,
sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain


prohibited at any and in any place whatsoever with
respect to the above-mentioned persons:

(a) violence to life and person, in particular murder


of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular
humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of
executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by
civilized peoples.

Article 3, Geneva Convention Relative to the Protection of


Civilian Persons in Time of War, TIAS 3365 (12 August 1949);

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).

"Wilful killing" of a protected person is considered a grave


breach of each of these Geneva Conventions.11 See Article 147,
Civilians; Article 130, Prisoners; Article 51, Shipwrecked
Members; and Article 51, Field Wounded. Each nation is entitled
to bring violators before their own courts to prosecute such
violators. See Article 129, Article 146, Article 50 and Article
50, respectively.

But terrorists are not "war criminals." There is no


specific prohibition against classifying them as such, only a
lack of consensus. If classified as war criminals, the
accelerated due process available to the United States through
its military jurisprudence might be advantageous for use.
Courts-martial do not suffer the delays normally attendant in the
civilian system, and the military jury pool would be better than
what might be found in large metropolitan centers. While there
is certainly Constitutional tension between placing such
international criminals under the jurisdiction of military
tribunals; compare Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100
L.Ed. 8 (1955) (striking down military jurisdiction over
discharged U.S. serviceman), with In re Yamashita, 327 U.S. 1, 66
S.Ct. 340, 90 L.Ed. 499 (1946)(military tribunal had valid
jurisdiction over enemy alien charged with violations of
international laws of war); there is no inherent bar that would
prevent such an act. Article I, Section 8, clauses 9 and 10 of
the Constitution gives Congress the power "To constitute
tribunals inferior to the Supreme Court;" and "To define and
punish piracies and felonies committed on the high seas, and
offenses against the law of nations." The existing statutes
would have to be repealed, and passed again in a fashion
conferring jurisdiction over terrorist offenses expressly to
military tribunals. In such legislation, the Supreme Court's
appellate jurisdiction would be denied by Congress. See Ex Parte
McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1868) (Article III
appellate jurisdiction subject to "such exceptions, and under
such regulations, as the Congress shall make."). Until the
procedure described above occurred, however, the general

11 Note the previous discussion regarding the term


"willful."

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.

D. United States Code

The domestic federal law of the United States provides no


greater specificity or clarity of thought than the international
law.

"The United States Government has exclusive sovereignty of


airspace of the United States." 49 U.S.C. § 40103(a). Pursuant
to 49 U.S.C. § 40106(b), the President may "suspend the authority
of" a person or government to operate an aircraft within the
United States. The President may act without notice or hearing,
and lasts as long as the President deems necessary. The most
significant problem with the invocation of "emergency powers"
under 49 U.S.C. § 40106 is that the Presidential power occurs
under the express terms of the statute only if the enemy is "the
government of a foreign country ... [using] an aircraft as an
instrument of policy . . . . " There is no provision for independent
cells of stateless terrorists. Also note that the Presidential
power conferred under 49 U.S.C. § 40106 is that of "suspension"
of flying privileges. Accordingly, a legal argument justifying a
shoot down would be based on an analogy to statutes granting
federal law enforcement agents the power to make arrests and
carry firearms. Just as the authorizing legislation for these
federal law enforcement agents do not expressly authorize the use
of deadly force, the power under 49 U.S.C. § 40106 does not
expressly authorize use of force as a means of enforcing the
suspension. The use of such force, however, is always implicit
within meaning of the statute. Assuming the existence of a
credible threat which could be explained in a judicial
proceeding, it is highly probable that no federal judge would
limit the sanctions under 49 U.S.C. § 40106 to mere suspension.
The extension of § 40106 from "government of a foreign country"
to stateless terrorists would likely follow the same lines. The
distinction between foreign governments and stateless terrorists,
however, may be a point upon which the judiciary might take
notice. Nonetheless, interpretation of the "foreign country"
requirement would probably be favorable to the government. The
legislative history of this statute indicates that "government of
a foreign country" replaced "foreign nation" in 1958. The
problem of stateless terrorists did not exist in 1958, and our
argument would be that such terrorists are included within the

28
intent and spirit of the statute. Naturally, the best solution
would be to craft a legislative "fix" of this statute.

1. Posse Comitatus Act, 18 U.S.C. § 1385

In order to intercept a civilian airliner, the United States


would have to rely upon the use of military aircraft to perform
the intercept. Military combat aircraft have the weapons
necessary to shoot down another aircraft, and are capable of
mid-air refueling, which gives them the range necessary to
intercept the civilian aircraft (assuming the threat is
discovered before the aircraft enters United States airspace).
Use of military aircraft and personnel implicate the Posse
Comitatus Act.

The statute reads:

Whoever, except in cases and under circumstances expressly


authorized by the Constitution or Act of Congress, willfully
uses any part of the Army or Air Force as a posse comitatus
or otherwise to execute the laws shall be fined under this
title or imprisoned not more than two years, or both.

The Title 18 Posse Comitatus Act expressly does not apply to


the Navy or the Marine Corps. Under Title 10, which applies to
all branches of the military, Congress passed 10 U.S.C. § 375,
which reads:

The Secretary of Defense shall prescribe such regulations as


may be necessary to ensure that any activity (including the
provision of any equipment or facility or the assignment or
detail of any personnel) under this chapter does not include
or permit direct participation by a member of the Army,
Navy, Air Force, or Marine Corps in a search, seizure,
arrest, or other similar activity unless participation in
such activity by such member is otherwise authorized by law.

The military construes 10 U.S.C. § 375 as making the Title


18 Posse Comitatus Act applicable to all branches of military
service (except the Coast Guard).

As discussed below, the constitutional use of deadly force


is analyzed as a "seizure" under the Fourth Amendment. If the
"seizure" is analyzed under a Fourth Amendment rationale, there
is a strong implication that the "seizure" is done in the context
of federal law enforcement operation.

If the suspected weapon of mass destruction on board the


intercepted aircraft is thought to be chemical or biological,

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

A. United Nations Charter Provisions

To the degree that the aviation Conventions are willing to


recognize any implicit use of force, they do so through the
mechanism of asserting that no provision of any of the
Conventions modifies "the rights and obligations of States set
forth in the Charter of the United Nations." There is one major,
and one minor, provision within the United Nations Charter
applicable to this issue.
The major provision is found in Article 51, which states:

Nothing in the present Charter shall impair


the inherent right of individual or
collective self-defense if an armed attack
occurs against a Member of the United
Nations, until the Security Council has taken
the measures necessary to maintain
international peace and security. Measures
taken by Members in the exercise of this
right of self-defense shall be immediately
reported to the Security Council and shall
not in any way affect the authority and
responsibility of the Security Council under
the present Charter to take at any time such
action as it deems necessary in order to
maintain or restore international peace and
security.

12 In the unlikely event the intercepted aircraft is not a


U.S. flag aircraft, does not carry any American citizens on
board, and has not yet entered United States airspace, then no
violation of Posse Comitatus Act would occur even if the military
aircraft were supplied without justification under one of the
aforementioned legal schemes.

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The minor provision is found in Article 2(4), which states:

All Members shall refrain in their


international relations from the threat of
force against the territorial integrity or
political independence of any State, or in
any other manner inconsistent with the
Purposes of the United Nations.

Both provisions have strict constructionist proponents.


These strict constructionist proponents interpret Article 2(4) as
prohibiting any Member from using armed force at all times and
under any circumstances. Similarly, strict constructionists
interpret Article 51 as requiring the attacked State to absorb
the first blow. Naturally, there are competing viewpoints to the
contrary.

Because every nation shall interpret either of these


Articles in whatever manner seems advantageous at the moment, the
result is that the United Nations Charter neither provides
guidance nor confers any explicit right to use anticipatory
self-defense against a weapon-laden terrorist-controlled
aircraft. Accordingly, the United Nations Charter is as
worthless as the aviation Conventions when seeking express
authority to justifiably shoot down a civil aircraft that poses a
threat.

Accordingly, if the need arises to shoot down such an


aircraft, any decision made within the United States should be
done in accordance with our own interpretation of
Constitutionally-permitted use of deadly force. The leading
Supreme Court opinions in this field are Tennessee v. Garner, 471
U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), and Graham v.
Conner, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

B. Constitutional Use of Deadly Force

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.

As set forth in Tennessee v. Garner, supra:

"apprehension by the use of deadly force is a seizure


subject to the reasonableness requirement of the Fourth
Amendment." Id., 471 U.S. at 7, 105 S.Ct. at 1699.

"We must balance the nature and quality of the intrusion on

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.

"[T]he question [is] whether the totality of the


circumstances justifie[s] a particular sort of search or
seizure." Id., 471 U.S. at 9, 105 S.Ct. at 1700.

"Thus, if the suspect threatens the officer with a weapon or


there is probable cause to believe he has committed a crime
involving the infliction or threatened infliction of serious
physical harm, deadly force may be used if necessary to
prevent escape, and if, where feasible, some warning has
been given." Id., 471 U.S. at 11-12, 105 S.Ct. at 1701.

In Graham v. Conner, supra, the Supreme Court provided


additional guidance on interpreting Tennessee v. Garner. In
relevant part, the Supreme Court noted:

"Our Fourth Amendment jurisprudence has long recognized that


the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it. [Citation
omitted.] Because '[t]he test of reasonableness under the
Fourth Amendment is not capable of precise definition or
mechanical application' [citation omitted], however, its
proper application requires careful attention to the facts
and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to
evade arrest by flight.
The 'reasonableness' of a particular use of force must
be judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight."

Graham v. Conner, 490 U.S. at 396, 109 S.Ct. at 1871-72.

"As in other Fourth Amendment contexts, however, the


'reasonableness' inquiry in an excessive force case is an
objective one: the question is whether the officers' actions
are 'objectively reasonable' in light of the facts and
circumstances confronting them, without regard to their [the
officers'] underlying intent or motivation."

Id., 490 U.S. at 397, 109 S.Ct. at 1872.

To put these phrases into context, we first look to


determine whether probable cause exists to believe that a weapon

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.

Second, we examine the severity of the intended crime, that


is a detonation or employment of a weapon of mass destruction
that is reasonably anticipated to cause mass casualties. This is
a brutal cost/benefit calculation; hundreds of innocent
passengers sacrificed for the protection of presumably thousands
of lives.

Third, we examine whether there are any options other than


(less than) use of deadly force. This is the proportionality
prong of the test. In the case of an airborne aircraft, there
are exceedingly few available alternatives to shooting it down.

Assuming that probable cause exists to satisfy the first


element, and that the severity of the threat is properly deemed
to be catastrophic under the second element, and assuming under
the third element that less-than-deadly force options are not
objectively reasonable, then seizure of the terrorists and the
aircraft by means of deadly force is constitutionally authorized.

Fortuitously, the "reasonableness" standard governing the


perception of the threat under American law is consistent with
Article 3 bis of the Chicago Convention. In Article 3 bis, the
overflown country can order an aircraft to land "if there are
reasonable grounds to conclude that it is being used for any
purpose inconsistent with the aims of this Convention ...." But,
even had a higher legal standard of certainty been required to
satisfy the unenforceable demands of these Conventions, the
United States would be justified in shooting down the terrorist
aircraft if necessity demanded it.

V. PRACTICAL CONSIDERATIONS

All scenarios for using a civil aircraft as weapon of mass


destruction or its mode of delivery are premised upon some form
of advance warning regarding the aircraft. If advance warning
exists, then the United States should strongly consider using
Article 89 of the Chicago Convention, wherein we notify the ICAO
that a national state of emergency exists and that we are
exercising our "freedom of action" under that provision.

Pursuant to Article 3 bis, UNCLOS, and Annex 2 to the Rules


of the Air, the United States appears to have an affirmative duty

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.

Another unanswered question is whether the interceptor pilot


or pilots will comply with an order to shoot down a civil
airliner, presumably filled with hundreds of innocent passengers.
Assuming the shoot-down order is complied with, I recommend that
the missile be fired from several miles distance so that the
engaging pilot not be forced to watch the bodies of the
passengers fall out of the targeted aircraft, and not be caught
within the contamination or detonation envelope of the weapon
thought to be on board.

In the event that a shoot-down becomes necessary, the world


practice is to pay compensation to the victims. For the victims
of the accidental shoot-down of Iran Air Flight 655, the United
States offered its compensation ex gratia. See generally,
Linnan, Iran Air Flight 655 and Beyond: Free Passage, Mistaken
Self-Defense, and State Responsibility, 16 Yale J. Int'l L. 245
(Summer 1991). With the exception of the Soviet Union and its
destruction of Korean Air Lines Flight 007, the world practice
has been to pay compensation, either ex gratia or after admitting
liability. See generally, Fog of Peace, supra. Such
compensation is typically paid regardless of the original
legitimacy of the reason for shooting down the aircraft.

IV. CONCLUSION

No body of law exists that affirmatively governs the


situation created by a nation confronting the need for
anticipatory self-defense in the face of an inbound
terrorist-controlled civil aircraft. For the United States, the
constitutional requirements of necessity, reasonableness and
proportionality will determine whether the decision was lawful.
Whether or not the rest of the world accepts our reasonableness
determination or decision is utterly meaningless.

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