Will the new ICAO-Beijing instruments build a Chinese wall for international aviation security?

• Author: Piera, Alejandro
• Position: International Civil Aviation Organization - III. The New Regime E. Military Exclusion Clause through III. U. ICAO Assembly Declaration, p. 183-218

5. Military Exclusion Clause

   The so-called military exclusion clause was the single most controversial issue of the entire negotiations from their beginning through to the instruments' adoption by the Beijing Diplomatic Conference. (280)

   The Beijing instruments contain a provision whereby, under certain circumstances, any activities of armed forces against civil aviation during an armed conflict are excluded from the scope of the new regime. (281) In other words, conduct that would otherwise constitute an offense under existing international aviation security treaties would not be amenable to prosecution if carried out by armed forces during an armed conflict. The latter would fall under the rules of international humanitarian law. (282)

   1. Objectives

      The military exclusion clause pursues three objectives.

      First, it confirms that the new regime does not alter the rights, obligations, and responsibilities of Member States and individuals under international law--namely, the Charter of the United Nations, the Chicago Convention, and international humanitarian law. (283) One might argue that this objective is in itself superfluous because those obligations and responsibilities exist whether or not they were expressly retained in the new regime.

      Second, the clause seeks to exclude not only those actions that armed forces carry out during an armed conflict but also the actions of military forces of a state in the exercise of its official duties, to the extent that such conduct is governed by international humanitarian law. (284) This means that, under certain circumstances, certain acts of military forces during times of peace may also fall outside of the new regime.

      In the discussions that preceded the Beijing Diplomatic Conference, this objective caused significant discomfort in some quarters. (285) Some states categorically stated their unwillingness to accept a clause that completely exempts actions of military forces even during peacetime. (286) Other states asserted that there should be a distinction between "a military conflict and an act of military aggression, as well as between a military conflict during a time of peace and a military conflict during a time of war." (287) Still other states said that the clause should only apply "in case of formal declaration of war by a State against another, as formal declaration of war brings the conflict into the ambit of other international treaties." (2880 If the clause is applicable even in those cases where there is no formal declaration of war, these states contend that the aggressor state is not "subject to any international accountability." (289) Similarly, as the SSCLC noted, the reference to international humanitarian law may be confusing, and it may be difficult to integrate it with civil aviation regulations. (290)

      Finally, the clause aims to make it clear that it does not purport to legitimize acts that otherwise would be unlawful or to preclude in any way the possibility of prosecution. (291)

   2. Rationale

      As the rapporteur to the Diplomatic Conference noted, the military exclusion clause finds its origins in the Terrorist Bombings Convention, the Nuclear Terrorism Convention, and the SUA Protocol. (292) Its inclusion in those conventions is justified by the fact that, in the view of some states, it addresses conduct already covered under international humanitarian law, which deals with issues such as a state's right to resort to the use of force (jus ad bellum) and what is acceptable in using such force (jus in bellum). (293) Thus, the clause is not an exclusion of international criminal liability, but rather a qualification of the applicable field of international law. (294) Perhaps the discomfort of some states with this clause was due to the fact that--as many commentators have pointed out--terrorism poses significant challenges to international humanitarian law and it is not precisely clear where its boundaries lie. (295)

      Those in favor of inclusion of the military exclusion clause contend that most recent counterterrorism conventions adopted under the auspices of the United Nations now contain this clause, which makes it clear that military activities are not within those conventions' scope of application. (296) Its inclusion in the Beijing instruments arguably preserves the status quo, simply reflecting "established practice." (297) Those in favor also claim that ICAO's aviation security conventions have been "commonly understood not to apply to military activities, which are governed by other laws." (298) Some Council decisions and certain state practices, which will be examined further below, do not necessarily confirm that point of view.

      Given the different nature of the aviation security conventions, it could be argued that the fact that the military exclusion clause has been incorporated in other international counterterrorism conventions should not be viewed as sufficient justification. Although it has been said that it is only of a declaratory nature, (299) given the previous history of incidents of the activities of armed forces involving civil aircraft and infrastructure, a military exclusion clause can play a much more striking role, for it excludes numerous actions that would otherwise be considered unlawful.

      Throughout the negotiation process of the Beijing instruments there were a number of attempts to introduce significant amendments to the military exclusion clause. (300) Nonetheless, the final wording of the clause remained almost unaltered throughout the whole process since the first meeting of the SSCLC. (301)

   3. Scope

      The key question is whether or not acts committed by armed forces of a given state that satisfy the different elements of the offenses defined in the Beijing instruments fall within their scope. (302) Yet, establishing which conducts fall within or without the regime may be particularly difficult. In many situations, a thin line separates what falls under the ICAO regime from what is governed by other fields of international law, such as the rules of armed conflict.

      The following questions may best exemplify the complexity of the problem at hand:

      i) Would the destruction of an international airport by armed forces constitute an act of unlawful interference under the Beijing instruments or rather a justified act of self-defense?

      ii) Would the seizure of a civil aircraft by a newly formed state's secret service agents be covered by the Beijing instruments or would it instead constitute the legitimate expression of the right of self-determination?

      iii) Is military aggression against civil aviation in times of peace, as opposed to self-defense, captured by the military exclusion clause?

      iv) Should the activities of armed forces against civil aviation during an armed conflict be recorded as acts of unlawful interference against international civil aviation?

      v) Where do the NATO bombings of Libyan airports that took place in the summer of 2011 fall? (303)

      vi) If those bombings do not fall within the scope of the ICAO aviation security instruments, why then has the Assembly repeatedly condemned "all acts of unlawful interference against civil aviation whenever and by whomsoever and for whatever reason they are perpetrated"? (304)

      The above statement by the Assembly does not distinguish between actions carried out by military forces and those that are standard acts of unlawful interference. If the Assembly unanimously condemns all such acts, regardless of the nature of the aggressor, one is certainly entitled to ask why attacks of armed forces against civil aviation would not also constitute acts of unlawful interference. And although the answers to the above questions would inevitably depend on the specific facts of each case, they illustrate that there is no one-size-fits-all approach.

      It may well be the case that a state, or its organs or agents, carry out (unlawful) acts that meet all of the elements required for the commission of an offense, yet given that such actions fall within the scope of other legal regimes (such as international humanitarian law), they are not in fact prohibited. (305) These other regimes may establish the basis for other justifications not provided in the ICAO aviation security conventions. This will certainly be the case for lawful acts of war, such as self-defense. (306) Clearly, if for instance, military forces bomb civil aviation infrastructures, the belligerent state will not be under an obligation to extradite or prosecute the offenders, for their actions fall outside the scope of ICAO's aviation security conventions. (307)

      The activity of military forces will fall within the scope of the ICAO aviation security instrument to the extent that such actions are not carried out in the exercise of official duties. (308) Likewise, where the activities of armed forces are carried out beyond the context of the rules of armed conflict, such actions will not be subject to the military exclusion clause, and, if they satisfy the elements of the Beijing instruments, they will be subject to that regime. (309)

      Another interesting question is whether acts of military forces against civil aviation, carried out in furtherance of a particular struggle for self-determination, fall within the scope of the Beijing instruments or whether the military exclusion clause captures those acts and makes them subject to other rules of international law. This is probably one of the most difficult hypothetical questions to resolve. Of course, it would depend on the fact pattern involved. Kimberley Trapp suggests that those acts would only be excluded from the Beijing instruments "to the extent [that they are] committed in the course of an armed conflict by an organized group subject to command responsibility." (310)

      One can certainly question if the actions of nonmilitary state officials, such as those of secret service or counterintelligence agents, would be covered by the military exclusion clause or whether...