Legal Dimensions of Use of Force Against Civilian Aircraft

Abstract

Prohibition on the use of force against civilian aircraft is closely associated with the customary international law and the international humanitarian law for preventing the aftermath of gross human rights violations such as loss of life, bodily injuries, or any other damages to humanity. The non- use of force against civil aircraft is for ensuring the safety of the civilian population from suffering, which cannot be justified in any means, and it had evolved continuously since 1998 when the ICAO assembly formally adopted it. It makes the responsibility of the state to protect civil aviation from any threat or unnecessarily shoot down. However, this responsibility is not only of the particular nation where it is flying over but also the international community in general. Prohibition on the use of force should not be confused with or equated with the denial of sovereignty. However, other forms of actions like intentionally shooting down the civilian aircraft by the military forces and even the contrary acts by individuals or rebellion groups could prove to be an indispensable approach for ope-rationalizing the restrictions. With the rise in the number of armed conflicts across the globe, along with intentionally shooting down to oppressive political regimes, the threat of civil aviation is exceptionally high. As Ukraine failed to control the contrary acts within its air space, it translates into a colossal out-flux of human life as around 300 people lost their life’s during the MH-17 shot down by the rebellion group by Russian origin missile in 2014. Coercive action is only to be invoked as a last resort. The stance for an unreasonable mistake cannot be justified under any circumstances except when civil aviation is misused for creating a threat towards public safety and national security is entitled to exercise its right to self-preservation by reasonable care. However, it is not clear if such an obligation of the contrary acts by non-state actors in certain situations can make the state responsible. It appears that international community missed addressing these opportunities so far such as the Malaysia Airlines shot down case where the rebellion group used Russian origin missile to attack the civilian aircraft during the Crimean crisis.