CIVIL AEROPLANES IN WAR TIME

Southland Times, Issue 23647, 24 October 1938, Page 8

CIVIL AEROPLANES IN WAR TIME

NO ACCEPTED CODE OF RULES The shooting down of a Chinese airliner by Japanese military aircraft over the delta of the Canton river emphazises the perils to which civil aircraft may be exposed in war, and the fact that there is, at present, no accepted code of rules to govern the conduct of air forces in wartime, writes Group Captain L. G. S. Payne in The Daily Telegraph. Draft rules for the regulation of air warfare were drawn up at The Hague in 1923 by a commission of jurists from Great Britain, the United States, France, the Netherlands, Italy and Japan. These rules were never ratified, principally because the countries were unable to agree whether military aircraft should be allowed to exercise the right of “visit and search” in respect of merchant vessels. In Article 33 of these rules it was laid down that: Belligerent non-mili-tary aircraft, whether public or private, flying within the jurisdiction of their own State, are liable to be fired on unless they make the nearest available landing on the approach of enemy aircraft. •In Article 34 it was stated that such aircraft were also liable to be fired on if they flew near military operations. In his book, “Air Power and War Rights,” Mr J. M. Spaight, an authority on international law in its relation to aviation, points out the difficulty of distinguishing between civil and military aircraft while in flight. It is particularly difficult for anti-aircraft gunners, when the plane is flying very high. He adds that, even if it can be decided that the machine is a civil aircraft, it is impossible to say, if it is flying near a military objective, whether its intentions are innocent or not. He concludes:—

“It is submitted that the right to fire upon a private aircraft in such circumstances must be admitted, provided the belligerent whose action is in question has issued a general warning or prohibition of approach to his bases, lines of communication, or the limited zone in which his land or naval forces are actually operating or military activity prevails. “After'such a warning or prohibition, private aircraft will approach at their peril and cannot expect an additional special warning or signal before they are fired upon.” There are obviously two cases to be taken into account—the case when a civil aircraft is fired on by an antiaircraft gun or battery, and that when it is fired on in the air by a military aeroplane.

In the latter case it is easier to determine, before firing, whether the aircraft is of civil or military type; but to decide whether its intentions are innocent or not is obviously difficult. The aircraft, though of civil type, may be trying to obtain military information. Furthermore, civil aircraft may be converted to military use in wartime; and, in fact, civtl types of aircraft are now employed in certain foreign air forces.

The only practical conclusion seems to be that, in war, it will not be safe for any belligerent to allow its civil aircraft to fly in a zone which cannot be guaranteed as free from the intrusion of enemy military aircraft.