In this article, we continue with the international regulations shaped after the 1983 Korean Air Lines incident, particularly the 1984 Protocol (Article 3bis) and the debates within the framework of the right of self-defense.
Following the attack on the China National Aviation Corporation's aircraft in 1938, many people lost their lives as a result of attacks on civilian aircraft of many different countries. Most recently, due to the shooting down of the Korean Air Lines Boeing 747-203B aircraft by the Soviet Union on September 1, 1983, the General Assembly of the International Civil Aviation Organization, which held an extraordinary meeting, signed a protocol regarding the amendment of the Chicago Convention.
In accordance with the Protocol signed on May 10, 1984, the contracting states shall refrain from resorting to the use of armed force against civil aircraft in flight. Contracting states may, in the exercise of their sovereignty, require the landing at some designated airport of a civil aircraft flying above its territory without authority or if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the Chicago Convention; they may also give any other instructions to end violations. If an intervention occurs, it must be carried out without endangering the lives of the people on board and the safety of the aircraft. Under this new regulation, contracting states also undertake to publish their current national regulations concerning the interception of civil aircraft, to ensure compliance with the provisions of this supplementary protocol, and to make the necessary regulations in their domestic law to penalize violators. It is explicitly stated in the newly added article that any necessary measures may be taken provided they are consistent with international law, and by referring to the Charter of the United Nations, it is clearly expressed that the provisions of this protocol should not be interpreted as modifying the rights and obligations under the Charter of the United Nations. The article included the obligations not only of the country intercepting the civil aircraft in its airspace but also of the aircraft's state of registry.
As I have explained, the Protocol signed in 1984 does not prohibit intervention against a civil aircraft, but it prohibits endangering the aircraft and the lives of the people on board in the event of an intervention. Therefore, the intervening state may restrict the flight path of the intercepted civil aircraft, use an interceptor aircraft, fire warning shots, etc. While doing all these, it must, however, avoid endangering the lives of the aircraft and the people inside it. Furthermore, as I stated above, their rights and obligations under the United Nations Charter are also reserved.
The Right of Self-Defense and Civilian Aircraft
One of the principal organs of the United Nations is the Security Council. The Security Council is responsible for maintaining peace and security among member countries. According to the United Nations Charter, if it determines that peace is threatened, breached, or an act of aggression has occurred, it can take all necessary measures, including armed intervention, to maintain or restore international peace and security. The structure, powers, and responsibilities of the Council are also regulated in the United Nations Charter.
However, sometimes the situation at hand may require more rapid action. In this case, the Security Council may not be expected to take the necessary measures. It is for this reason that the right of self-defense is regulated in Article 51 of the Charter. The article states exactly: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." That is, to speak of the right of self-defense, one must first be the target of an armed attack. The article regulates defense due to an attack, not pre-emptive self-defense. For example, in the case of the Korean plane shot down in 1983 or in the other examples I listed earlier, there was no armed attack.
In practice, the Security Council also has resolutions confirming the right of self-defense against terrorist attacks. In my opinion, it is possible to include terrorist attacks when evaluating the concept of armed attack, but of course, the principle of proportionality in self-defense must not be violated. The limit of this is still not clear enough. Different countries have different domestic legislation on how to intervene in a terrorist attack like 9/11 and whether to use armed intervention against an aircraft with civilians on board. For example, while France has regulated the destruction of an aircraft in such a case as self-defense, the Karlsruhe Constitutional Court, in its decision dated February 15, 2006, stated that shooting down a civilian aircraft with innocent people on board would mean, in a sense, that the lives of the people on the aircraft were preferred over the people on the ground, and this was also contrary to the Constitution, which guarantees human dignity, and ruled that this could not be done.
In the aftermath of the 9/11 attacks, there was no change in the protocol regarding not attacking civilian aircraft, but as a result of this attack, the adequacy of security measures in aviation came to the fore. In October 2001, the ICAO General Assembly, at its 33rd session, adopted Resolution A 33-1, issuing a declaration concerning the misuse of civil aircraft as weapons of destruction, including civil aviation, and their use in other terrorist acts. The declaration stated that the use of civil aircraft as weapons was contrary to the Chicago Convention and that this, and the commission of terrorist acts using civil aviation or civil aviation facilities, also violated international law. The same declaration also called on states to regulate and criminalize the use of aircraft as weapons. The same declaration also requested the Council and the Secretary-General to urgently assess the adequacy of existing aviation security regulations (including Chicago Convention Annex 17 and other relevant annexes) and to establish the ICAO Universal Security Oversight Audit Programme (USOAP). The Council was also requested to hold a ministerial conference as soon as possible, and if possible, in 2001. The Ministerial Conference mentioned in the declaration was not held in 2001 but at the beginning of 2002. A "Ministerial Conference on Aviation Security" was held at the ministerial level on February 19-20, 2002, in Montreal, the headquarters of ICAO. As a result of the conference, many decisions were taken to increase security.
Many years have passed since the Protocol and the 9/11 attacks, but unfortunately, tragic events have continued to occur. Shortly after 9/11, on October 4, 2001, a Siberia Airlines flight operated by a Tupolev Tu-154 also ended as a result of armed intervention in a similar manner. The plane, en route from Tel Aviv to Novosibirsk, crashed into the Black Sea. Although a terrorist attack was initially suspected, it was later accepted that the plane was shot down during a training exercise by the Ukrainian Air Force. The 12 crew members and 66 passengers on board unfortunately lost their lives.
When we come to 2014, an aircraft flying from Amsterdam to Kuala Lumpur was hit by a BUK missile system while flying over eastern Ukraine, and as a result, the 298 people on board unfortunately lost their lives.
Finally, the downing of Ukrainian Airlines flight PS752 by Iran resulted in the loss of 167 passengers and 9 crew members on board.