Aerial Intrusions by Civil and Military Aircraft in Time of Peace

• Author: by Major John T. Pheips II
• Pages: 05

This article examines th.m nature of militarg and civil aerial i n t m sions into the airspace of o t k states. It explores the acceptable reepases under intenzational law that an nuqi7mm state may make in .response to an aerial violation ofits territorial sovere+gn-ty. This article cmludes that fwce m y be wed against militarg inmders but a requirement to warn and an opportunity to turn away or land exists under certain cimmstances. Force may not be used against civil aerial intruders u n h in self-defense rn defiined in the Uniled Nations Charter.

"We state, in the Soviet tenitow the borders of the Soviet Union are sacred"

Soviet Foreign Minister Andrei Gromyko in justifying the destruction of Korean Airliner night 007 and its 269 passengem and crew.'

1. INTRODUCTION A. THE KOREAN AIRLINES 007 INCIDENT The issue of the sovereignty of a nation's airspace was put to the test an August 31, 1983 at 1400 hours Greenwich Mean Time (GMT), when a Korean Air Lines being 747, Flight 007, departed from John F. Kennedy International Airport for a flight to Seoul, Republic of Korea. It made one scheduled stop at Anchorage, Alaska for refueling and a crew change. It carned 269 passenges and crew for the final flight to Seoui.l The passengers represented 14 different na-

   lSeerefary of Stale George Shullr puofmg Andrei Giomyko m a statement made m 'Id. at 1.

   Madnd. Span an Sppternber 7, 1883 Dep'f SI BuU, Oct 1983. 81 1. 3

   tions and included Cangessman Lawrence P. McDonald, a Member of the U.S. House of Representatives.3

   Shortly after its departure from Anchorage, Korean Airlines Flight-007 began deviating to the right, north, of its assigned flight path. This gradual deviation caused it to penetrate the airspace above the territorial waters of the Soviet Union as well as portions of Soviet temtory on the Kamchatka Peninsula and Sakhalin I~land.~ Upon contacting air traffic control on Tokyo, Japan, the pilot of KAL-007 gave Ns position as east of Hokkaida, Japan; in fact, he wasoff course by more than 100 miles This transmission occurred at 1709 hours (GMT), well after Soviet radar had begun tracking KAL-007, and approximately 78 minutes before Soviet fighters attacked the airliner.'

   Soviet radar units began tracking the airliner at approximately 1600 hours (GMT). On two separate occasions, Soviet fighters were dispatched to intercept the intruder. At 1812 hours (GMT), a Soviet pilot reported that he had visual contact with the aircraft. At 1826 hours (GMT), the Soviet pilot reported that he had fired an air-to-air missile and that the target was destroyed. Twelve minutes later, the Korean airliner disappeared from the radar screen.?

   The last transmission from KAL-007 advised Tokyo Air Traffic contmi that they were undergoing rapid decompression. There was no indication that the pilot knew that the reason for the decompression was that the aircraft had been hit by an mr-to-air missile.n

   KAL.007 crashed and sank in the Sea of Japan somewhere southwest of Sakhalin Island. There were no s~rvivan.~

   Search and rescue efforts by the Soviet Union, Japan, Republic of Korea, and the United States resulted in the recovery of frawnentary pieces of the airliner, several items of personal property belonging to passengers, and Dortions of the bodies of three adults and one chiid.1°

   'Repart of ICAO Fact-Finding Invest 1 (Dec 1983) See oh0 Dep t St Bull , Oct 1883. 81 1, 3

   'Dep f St BuU , Ocf 1983, at 1. 7*Id. ai 3'Id 814 Seraha Reporl of ICAOFacl-Fmdi"gInvesI 1 App C, atC-8 (De? 1983)*Report of ICAO Fact-Fmdmg lnveat 1. App C, at C-IO (Dec 1983)

   2. INTERNATIONAL REACTION TO THE KAL-00 7 INCIDENT

      World reaction to the destruction of a civilian airliner by Soviet military aircraft was swift and highly cntical. In outlining the American response to the attack, President Ronald Reagan called it a "crime agamst humanity" and an "atrocity."" On September 2, the Australian Minister of Foreign Affain, BlIl Hayden, stated.

      There is no circumstance in which any nation can bejustified in shooting dawn an unarmed civilian aircraft sewing no military purpose. The fact that an aircraft may have strayed into Soviet airspace and the fact that the Soviet Union refuses to recognize the existence of the Republic of Korea provide no justification far an attack on the aircraft.19

      A spokesman for the French government said that the attack on the airliner "placed in question the principles which govern international relations and respect for human life,'' while the Italian government referred to it as "a mad gesture of w a ~ . ' ' ~ ~

      Similar protests and statements were issued by governments throughout the world, including the Vatican and the People's Republic of China.14

      In a letter to the President of the United Nations Secunty Council Charles M. Lichenstein, the Acting Permanent Representative of the United States stated:

      The United States Government considers this action of Soviet militaly authorities against a civil air transport vehicle a flagrant and serious attack on the safety of international civil aviation.

      This action by the Soviet Union violateS the fundamental legal norms and standards of international civil aviation. These norms and standards do not permit such use of armed force against foreign awl aircraft. There exists no justification in international law for the destruction of an identifiable civil aircraft, an aircraft which wm tracked on radar for two-and-one-half houn, and which was in visual contact of Soviet military pilots prior to being deliberately shot down.

      "Dep'f Sf. Bull, Oef 1883.

      81 1. 6-7"Korean Oversea, Mor Sew , Masacre m the Sky 38 40 (1883) 'nK~esmgs

      Coorcmporan Arehives 32614 (2ov 18S3).

      "Id. See also Korean Oveaea, hfor Sew, Marsacre ~n the Sky 23-32 (1983)

      It IS the considered position of the Government of the United States of Amenca that this unprovoked resort to the use of force by the Soviet military authorities ~n contravention of International Civil Avtatmn Orgamzatlan standards and the basic norms of international law must be deplored and condemned by the international comrnu~ nity and by world public ~pmion.'~

   3. THE SOVIET RESPONSE

      The initial Soviet response an September 1, 1983 was that an unidentified aircraft had twice violated Soviet airspace and had 18-nored attempts by Soviet interceptors to guide it to a Soviet airfield for a landing. The report further said that the aircraft was operating without navigation lights. There was no mention of the arliner being attacked and destroyed by Soviet aircraft. The next day, the Soviets announced that their aircraft had fired tracer shells to warn the aircraft but that the aircraft had ignored the warning and continued its flight.16 It was not until September 6 that the Soviets announced that, after attempts to communicate with the intruder on the international emergency frequency, 121.5 megacycles (MHz), and after tracer shells had been fired across the path of the intruder, did the pilot fulfill "the order of the command post to stop the flight "''

      The Soviet hews Agency TASS asserted that the attack on the airliner was "fully in keeping with the law on the state border of the USSR' and that the Soviet Union would "continue to act in keeping with [Soviet] legislation'' BS the Sowet Union had a right to protect its borders and its airspace

      In a preliminary report of the Soviet Accident Investigation Corn-mission, the Soviets concluded that the deviation by KAL-007 was a "preplanned intelligence gathering and provocative mission" by the United States and Korea." The Soviet report alleged that KAL-007 had been in contact with a United States Air Farce RC-135 reconnaissance arcraft and that the two arcraft flew together for some

      lsDep't Sf Bull, Oct 1983. at 1, 3>old at 8"Keennm Contemporary Archives 32614 (hov 18831"IdlsRepoil of ICAO Fact-Fmdlng Invest 1 App F. st F-IO (Dee 18831 258

      AERIAL INTRUSIONS IN TIME OF PEACE

      Concerning the interception, the Soviet report stated:

      The second interception took place in the vicinity of Sakhaiin Island. The intruder aeroplane was still flying with its navigation and strobe lights Switched off and the cabin lights extinguished. Interception procedures were initiated at 22.16 Moscow time on 31 August 1983 (06.16 local time on 1 September 1983) when the intruder aeroplane crossed the State frontier. During the interception the intercepting aircraft flashed its light repeatedly and rocked its wings to attract the attention of the intruder aircraft's crew. At the same time the interceptor endeavoured to establish radiocommunication on the emergency frequency of 121.6 MHz.

      The intruder aeroplane did not respond to the actions of the interceptor.

      On the order of the ground control unit the interceptor, in addition to the procedures already described, fired four warning bursts of tracer shells from its guns at 22.20 Moscow time on 31 August 1983 (06.20 Sakhalin time an 1 September 1983). Altogether 120 shells were fired. The intruder aircraft did not react to this action either

      Having concluded that the unknown intruder aeroplane was an intelligence aircraft, the Area Air Defence Command declded to terminate its flight On instructions from the ground control unit the pilot of the SU-15 interceptor launched two rockets at the intNder aeroplane at 22.24 Moscow time on 31 August 1983 (06.24 Sakhalin time on 1 September 1983) over the territory of the USSR and turned back to its base aerodome.2a

      'Old at 3 The United Stales admitted that am RC-1353 rec~nnahmeearrcrsff had

      been operating off the Kamachafka Peninsula for the purpose of monifonng Soviet compliance with the SALT treaties The Soviet claim that it ww an B j~mt miaxmn

      Wllh KAL-007 waz denied The United States pmnred aut Lhar the two aircraft wereno dmei than 75 n~ullcal miles and that. at the time of Bcfusi rnterception of KAL-007, the RC 135 had been at its base m Alaska for owl one hour. The Cnlred Statesargued thalnomllifarypllof...