The Air Bridge Denial Program and the shootdown of civil aircraft under international law.

• Author: Huskisson, Darren C.

1. INTRODUCTION

   In August 2003, President George W. Bush approved a plan to resume a key component of U.S. counter-drug operations in Latin America, allowing the U.S. to again share real-time intelligence with Columbia to track, intercept and even shootdown aircraft suspected of carrying drugs. (1) The recommencement of similar operations with Peru in the near future is possible, and the initiation of such an operation with Brazil is now under discussion. These types of operations have proven quite effective in their ability to deter airborne drug traffickers.

   The shootdown of suspected drug aircraft by countries such as Colombia and Peru is not new, and the success of such operations relies heavily on the airborne tracking and intelligence that only the United States is equipped to provide. This U.S. support was suspended in 2001 for more than two years in the wake of an unfortunate incident in which a Peruvian A-37 interceptor, operating as part of a joint U.S.-Peruvian counter-narcotics mission, fired two salvos of machine gun fire into a small Cessna floatplane (OB-1408), (2) after it had been identified as a probable drug trafficking aircraft. Unfortunately, the aircraft was not ferrying drugs but rather carried members of an American Baptist Missionary Group. Two people on the aircraft were killed, a U.S. missionary and her infant daughter, both killed by the gunfire from the Peruvian aircraft. This incident was the low-water mark in the history of the shootdown program code-named the Air Bridge Denial Program (ABDP). The ABDP had long operated as one part of a larger "war on drugs." The target of this war, the drug trade in South America, has been classified as a threat to the national security of the United States and is known to support such terrorist and insurgent groups as the Revolutionary Armed Forces of Colombia (FARC) and the Sendero Luminoso (SL) or "Shining Path" group of Peru, insurgent forces responsible for enormous suffering in these countries.

   While the shootdown of civil aircraft engaged in drug running dates back at least to the early 1990s, the ABDP has been officially involved in the shootdown of suspect aircraft since 1995. Despite objections from the Defense Department and from other Cabinet Agencies in the early 1990s, the Governments of Colombia and Peru introduced this shootdown component to interdiction operations. Until the shootdown of OB-1408 in 2001, the interceptor forces of Colombia and Peru had shot down, forced down or strafed with gunfire a number of civil aircraft suspected of carrying illegal drugs on the basis of real-time intelligence provided by the United States Government.

   While one cannot argue with the general success of the shootdown component of the ABDP, the shootdown of civil aircraft has long been a thorny legal issue. From the beginning of the Cold War, the U.S. had maintained a consistently negative attitude toward the use of weapons against civil aircraft in flight, (3) a disapproval that peaked in 1983 when the Soviet Union shot Korean Airlines Flight 007 (KAL 007) out of the sky and surfaced again in reaction to the Cuban shootdown of civil aircraft belonging to the Brothers to the Rescue (BTTR) Group in 1996. The U.S. is not alone in its stance. As evidenced by international reactions to a number of civil aircraft shootdowns, it is safe to say that the international community as a whole generally abhors the shootdown of civil aircraft; nevertheless it has remained surprisingly silent on the issue of ABDP shootdowns. While there has been no large-scale outcry over the shootdown operations being conducted in the skies over South America, there are potential international legal problems inherent in these shootdowns.

   Along with questions specific to ABDP operations are additional questions regarding the shootdown of civil aircraft generally. What exactly does international law forbid? What defenses to internationally wrongful conduct could potentially excuse the shootdown of a civil aircraft? Is it a violation of international law for a State to shootdown planes suspected of carrying illegal drugs even when the operation is conducted in that State and is targeted against an aircraft registered in that State? Are there previously unaddressed human rights concerns with shootdown operations? Can such operations go beyond targeting drugs to target perhaps illegal weapons, weapons of mass destruction (WMDs) and missile technology transfers, or even terrorists themselves aboard civil aircraft in flight? The implications of these answers will not only affect the international perception of the legality of ABDP shootdowns, but will also clarify the law relating to other possible uses of force against civil aircraft in the now three-year-old Global War on Terror (GWOT).

   ABDP shootdowns have escaped international legal analysis largely due to the fact that the States involved have asserted "sovereignty," arguing that the subjacent State alone has the right to deal with aircraft flying over its territory as it sees fit. However, as we will see, the drug operations that are the target of the ABDP are inherently international and invoke international legal concerns that far surpass the reaches of sovereignty. To ignore the shootdown of these aircraft is to ignore the development of international law.

   In the examination of today's potential shootdown situations, one must do away with the mentality that was pervasive during the Cold War and with the KAL 007 shootdown specifically. The shootdown of KAL 007 and other shootdown events of the Cold War have the similarity of being "intrusion shootdowns." The aircraft were targeted with deadly force solely for where they were (in most cases, illegally flying over repressive Eastern Bloc countries), not for what they were doing. An international legal consensus has developed holding that intrusion shootdowns are per se illegal under international law.

   Modern analysis must move beyond this mindset and take a close look at the what and not the where. The ABDP shootdowns target the actions of drug traffickers and the threats posed by their flights; therefore, the legality of these operations must be analyzed from that standpoint. With this change in view, one must be mindful that such analysis could have repercussions for civil aviation and for international law issues in general, especially in the midst of the international upheaval that has resulted from the GWOT.

   Part II of this article will examine the history of the ABDP shootdown operations, from their inception to the 2003 resumption of operations. Part III will examine the various sources of international law relating to the use of force against civil aircraft and will attempt to distill some specific rules that are applicable to the legal analysis of ABDP operations and shootdowns in general. Part IV of this article will look at the circumstances under international law in which a State may be relieved of its international obligations, focusing on the options that could be used to justify the shootdown of civil aircraft and will seek to apply these options in an effort to determine the international legality of the ABDP shootdowns. Finally, Part V will examine other potential issues relating to the shootdown of civil aircraft as part of the ABDP.

2. THE HISTORY OF THE AIR BRIDGE DENIAL PROGRAM AND THE SHOOTDOWN OF SUSPECTED DRUG AIRCRAFT

   The Air Bridge Denial Program derives its name from its goal: to deny the South American drug network the "air bridge" used to transfer semi-refined cocaine from growing areas in rural Peru, Bolivia and Colombia to processing plants in Colombia and onward to destination countries. While this transportation network also includes land and water routes, its lifeblood is aerial transportation. (4) The denial of this air bridge, initially through the interdiction of suspect planes on the ground and later through the use of weapons against aircraft in flight, is seen as a key component of the overall success of U.S. counter-drug operations. However, while this component has had a long and successful history, it has been controversial.

   1. Early Counter-Drug Operations in South America

      1. The Origin of the Program

         In the 1980s, the production and international transshipment of cocaine, along with other illegal drugs from Latin America, morphed into a national security problem, necessitating involvement from more than just police forces and the U.S. Coast Guard. In response, there has been a constant U.S. counter-drug presence in Latin America since at least the early years of the Reagan Administration. Starting in 1985, the U.S. began funding Peruvian operations, code-named "Condor," aimed at destroying airstrips used by drug-running aircraft, hoping to destroy the pillars of the air bridge. (5) While "Condor" involved increased logistical and intelligence support, the real increase in military activity began in 1989 with President George H. W. Bush's so-called "Andean Initiative." This initiative involved the deployment of seven Special Forces teams and approximately 100 military advisors to Colombia, Bolivia and Peru to train the armies of the region to fight the drug war. (6)

         Beginning in the early 1990s, the United States Southern Command began a program called "Support Justice" to assist in the aerial monitoring of the air bridge. "Support Justice" involved the use of P-3 and AWACS surveillance aircraft, the goal of which was to "confirm anecdotal law enforcement information regarding the frequent use of small private aircraft to move ... cocaine" and to "provide objective data on the non-commercial routes being used by trafficking aircraft, the flight times, departure points and final destinations." (7) Peru used this information to implement a program of interdiction at the points of departure and arrival of suspect aircraft, thereby avoiding the need to use force against drug trafficking aircraft in flight. (8) While...