Zasady podejmowania działań przy użyciu siły wobec statków powietrznych na przykładzie incydentu z USS “Vincennes”

The use of armed force against civilian airliners, especially when the action takes place outside the zone of military operations or when such force is employed by the state that is not a party to an armed conflict, is perceived as highly controversial. Therefore, in each such case, while evaluating an incident, it is advisable to consider circumstances, the course of events as well as corresponding legal standards and detailed instructions addressing the armed forces, referred to as rules of engagement. The most typical known example is that of Iran’s civilian jet airliner shot down by U.S. missile cruiser USS “Vincennes” over the Strait of Hormuz in July, 1988. Although an incident took place during the Iran-Iraq War, the Unites States was not a party to this conflict. The United States expanded protection of the U.S. Navy to secure the convoys of tankers and the rules of engagement elaborated for that purpose permitted the so-called anticipatory self-defense, that is resorting to armed force before an attack occurs which was considered unavoidable. The incident itself was described as having occurred due to misidentification of the Iranian airliner, however, it gave rise to heated discussions on the legality and legitimacy of taking military action against civilian aircraft. Article 3 of Chicago Convention of 1944, generally forbids the use of force aiming at civilian aircraft, however, it provides for one exemption justifying the right to self-defense similarly to the rules of engagement as outlined above. Thus, at the core of both legality and legitimacy of above-mentioned actions stands the question whether circumstances requiring self-defense as defined in art. 51 of the United Nations Charter as well as customary international law have been fulfilled.