State and civilian aircraft may be used in unlawful activities with varying degrees of induced threat to public order and security, or may sometimes serve legitimate purposes, but achieved in violation of aviation law. Polish law explicitly provides for the conditions of admissibility and the decision-making process of a force response to the crossing of a state border by foreign military aircraft. Also unmanned aerial vehicles may be destroyed, disabled or their control may be taken over.
In 2011, the crew of a helicopter used by one of the media companies is believed to have simulated a momentary radio station malfunction while hovering over the apron of Chopin Airport, thus blocking a section of the controlled area of the airport, impeding traffic and delaying an air traffic controller’s instruction to leave the vicinity of the airport, to allow journalists to produce better and longer video footage of various shots of the LOT Polish Airlines Boeing 767, which had landed in Warsaw a few hours earlier without its landing gear extended[i].
Far more damaging, but still not even close to the most undesirable behaviour in aviation, was the use of a large fleet of light aircraft to smuggle drugs over the southern border of the United States of America. As early as the 1970s, the notorious Barry Seal – a double agent for the CIA and the Colombian Medellin Cartel – was proving that this kind of audacious practice, based on the inadequacies of radar systems in very low layers of airspace, was not only possible, but scalable to astonishing proportions[ii].
Taking only the perspective of the state, and refraining from raising deontological issues, an offence of similar gravity to the smuggling flight (because ridiculous) can be considered to be the breaking of a 19-year-old German – Mathias Rust – through the Soviet air defence system and landing on Red Square in Moscow. The flight from the Finnish capital Helsinki, which took place on 28 May 1987 deep into the USSR, was possible in view of the same flaws in the surveillance equipment as in the case of Barry Seal’s fleet, but also in view of a number of coincidences such as the accidental recognition of all aircraft over the USSR as ‘theirs’ by the radar system and the similarity of the Cessna 172, which Rust was piloting, to a Yak-12 aircraft[iii].
Much higher up, as at an altitude of more than 20 kilometres above sea level, on 1 May 1960 the Soviets detected an American U-2 spy plane, which they then shot down, and captured the pilot, Francis G. Powers[iv]. Nevertheless, the events of 11 September 2001, when terrorists hijacked four passenger airliners at once, two of which hit the World Trade Center complex, one of which crashed into the Pentagon, and the last of which crashed without reaching its destination, presumably the Capitol in the US capital, Washington, D.C., are probably the most serious and the source of the greatest tragedy in the history of aircraft torture[v] .
These high-profile cases of (often, to put it mildly) breaches of aviation law raise the question of the means available to the state to deal with offending aircraft and their pilots, and inspire this discussion of the possibility of taking the most serious response, which is undoubtedly the shooting down of manned or unmanned aircraft, whether state or civilian.
First of all, a distinction needs to be made between state and civil aircraft. This task can be difficult, as was evident, for example, in the ambiguous nature of the tragic Tupolev Tu-154M flight to Smolensk in 2010[vi]. The general consensus is that all aircraft are divided into state and civil aircraft, and that classification is determined by their ‘service’, i.e. the purpose of their use[vii]. In Article 4 of the Convention on International Civil Aviation, signed in Chicago on 7 December 1944 (hereinafter: the Chicago Convention), the contracting states declared that they would refrain from using civil aviation for insufficiently specified purposes contrary to the Chicago Convention, hence the apparent desire to clearly separate the categories of aircraft in question. It is also worth pointing out that there tends to be a refusal to recognise the more lenient treatment of civil aircraft commandeered by criminals, particularly terrorists, when there are no innocent persons on board[viii].
The cases cited in the introduction represent only a narrow slice of incidents that, over the last 100 years, have been associated with state, often forcible, responses to law-breaking by aircraft pilots, the most serious incidents of which primarily involved illegal, deliberate and unintentional border crossings by foreign military aircraft. In post-war state aviation, incidents often had a background of dividing the world into political-military camps[ix]. As early as 1946, a US military aircraft was forced to land by fire following an inadvertent crossing of the Yugoslav border. Shortly afterwards, another US machine suffered a similar fate. In 1951 over the Sea of Japan and the following year over the Baltic Sea, USSR aviation shot down military aircraft belonging to the US military. In yet another, 1953, the Soviets shot down a British Army training plane. In 1960, there was the aforementioned downing of an American U2 reconnaissance aircraft and the capture of the pilot. These cases, or rather their lack of legal consequences on either side, the late aviation law specialist M. Żylicz considers them to be an affirmation by the international community of the right to the inviolability of territorial airspace by foreign troops and to an acute defensive response in such situations[x].
It should not come as a surprise to learn that Polish law explicitly provides for the conditions of permissibility and the decision-making process for a force response to the crossing of a national border by foreign military aircraft and their performance of flights in that airspace without the appropriate air traffic services permit or in contravention of the conditions of the permit, if it has nevertheless been issued.
Article 18b of the Act of 12 October 1990 on the Protection of the State Border states that in such a case, the state air traffic management authority (this is the Polish Air Navigation Services Agency, the provision contains an archaic term that should read ‘institution providing air traffic services’) has the right to summon such an aircraft to leave Polish airspace, to change its direction or altitude, to perform a landing at a designated airport or to carry out other instructions aimed at ending the violation of Polish space. Any failure to respond to summonses or commands may result in interception by a Polish state aircraft designated from the Armed Forces of the Republic of Poland or another North Atlantic Treaty Organisation (NATO) state. Interception consists of identifying a foreign military aircraft, attempting to establish radio and visual communication with it and, by means of voice or visual commands, displayed using the entire aircraft, guiding the intercepted aircraft to an appropriate flight direction or altitude, or forcing a landing at a designated aerodrome. While radio commands do not require explanation, it should be pointed out that visual signals may consist, for example, of the aircraft tilting appropriately and flashing its position lights at irregular intervals to signify, ‘you are being intercepted’, or of releasing the landing gear, switching on the landing lights and flying over the runway in use, which constitutes the command, ‘land in this direction’[xi].
In the further absence of a response, the military aircraft may be warned with warning shots by the interceptor ship and finally, if this signal is also ignored, destroyed. The decision to use the final measure is taken by the Armed Forces Operations Commander in the form of an order. It specifies the appropriate armament that will enable the task to be carried out with minimal risk of damage to bystanders and property. The pilot-in-command of the intercepting aircraft has an independent decision on the destruction of the intercepted aircraft when an attack is launched in its direction or when there is no communication with the Air Defence Commander on Duty or when a foreign military aircraft undertakes an armed attack on the territory of the Republic of Poland, undertakes actions suggesting, inter alia, preparation for such an attack or performs reconnaissance in order to enable the attack.
The situation is quite different for civilian aircraft, which enjoy international immunity. At the heart of their formal privilege was an incident in 1983, when a South Korean civilian Korean Air Line Boeing 747, operating a flight from Anchorage, Alaska, to Seoul, was shot down over Sakhalin by the USSR, killing 269 people[xii]. Public pressure led to the addition of Article 3 bis to the Chicago Convention, sub-paragraph a of which mandates that any State shall refrain from resorting to the use of weapons against a civilian aircraft in flight and that, if such a vessel is intercepted, the lives of those on board and the safety of the machine shall not be endangered. The provision does not provide for any exception to its content.
Meanwhile, the reality of the early 21st century surpassed the greatest fears of humanity at the time. On 11 September 2001, at around 10 a.m. local time, i.e. when the second of the hijacked planes hit the World Trade Center towers, US President George Bush approved Vice President Cheney’s order to shoot down all aircraft known to have been commandeered by terrorists[xiii]. At the time, although no downing ultimately took place, it came to light that the United States still had procedures in place relating to the use of force against civilian aircraft.
The new reality brought about by the aforementioned attacks, underpinned Poland’s blatant violation of Article 3 bis of the Chicago Convention as well, which occurred in 2004 with the addition to the Aviation Law of Art. 122a, which provided that, if considerations of national security so required, the air defence command authority may determine that a civilian aircraft is being used for unlawful activities, which it is particularly entitled to do if it is for an aerial terrorist act, and – under the terms of the Law on the Protection of the State Border – such an aircraft may be destroyed.
The provision did not last long, as it lost its validity as early as in 2008, when the Constitutional Tribunal ruled, in its verdict no. K 44/07, that it was incompatible with the constitutional guarantees of protection of human life referred to in Article 38 of the Constitution of the Republic of Poland, and was formulated in violation of the principle of proportionality indicated in Article 31 of the Constitution of the Republic of Poland, which allows only for exceptional limitations to the protection in question[xiv]. Article 31 of the Constitution of the Republic of Poland provides that human freedom is subject to legal protection and that every citizen is obliged to respect the rights and freedoms of others. No citizen may be compelled to do anything that he or she is not required to do by law, and limitations on the exercise of constitutional rights and freedoms may be imposed only by statute and only when this is necessary to ensure state security, maintain public order, protect the environment, public health or public morals and to protect the rights and freedoms of others. At the same time, these limitations may not impair the essence of these rights and freedoms. In turn, the mechanism of searching for the observance of the principle of proportionality, which stems from Article 31(3) of the Constitution of the Republic of Poland, requires the establishment of an adequate boundary between individual freedoms and the needs of society. The Constitutional Court emphasised the difficulty of finding this balance and the need for caution and a balanced approach to lawmaking, which was not to be achieved with regard to the rather general provision allowing for the possibility of shooting down a civilian aircraft with people on board[xv]. The term ‘unlawful acts’ was seen by experts as vague, and it was also noted that the wording ‘in particular’ in relation to ‘a means of terrorist attack’. Questionable legislative technique in the Border Protection Act and a lack of consistency in the provisions were also noted[xvi].
The removal of Article 122a of the Aviation Law Act from the Polish legal order resulted in a consideration of the possible application of the general provisions of criminal law with regard to the institution of necessary defence and state of superior necessity, established by the legislator respectively in Articles 25 and 26 of the Act of 6 June 1997 – the Penal Code (i.e. Journal of Laws of 2022, item 1138, as amended). Particular attention was paid to the problem of maintaining the proportion between the good sacrificed and the protected good and to the fact that, at the moment of issuing the order, it is difficult to determine a priori which legally protected good is being saved (as it is difficult to determine what the aircraft would hit)[xvii]. To cite the arguments carried out at the time and to repeat the arguments is beyond the scope of this paper, hence it is only necessary to mention the general majority consensus of the doctrine of criminal law science reached at the time. As a rule, it was considered that a public official who would take the decision to shoot down a plane with passengers on board could not benefit from the benefit of necessary defence and state of superior necessity, nevertheless, such a person, due to taking the decision in a short period of time, in the face of exceptionally intense stress, would be acting in the so-called atypical motivational situation, which could lead to the exclusion of the perpetrator’s guilt and thus avoid incurring criminal liability, or constitute a mitigating circumstance for the penalty[xviii].
The final argument in favour of not developing the aforementioned considerations of criminal law institutions in the form of necessary defence and state of superior necessity is their lack of topicality, as with the amendment of the Aviation Law of September 2023, the legislator has again directly normalised the issue of shooting down civilian aircraft. Given the complexity of the content of these provisions, it seeks not to repeat the mistake of 15 years ago of violating the Constitution of the Republic of Poland by drafting the norms too generally.
The current Article 122b of the Act is the key provision regulating the treatment of aircraft performing flights in a manner that deviates from the established flight organisation and hence may pose a threat to public safety. According to its wording, the state air traffic management authority is entitled to summon the crew of such aircraft to restore the correct flight parameters. The summons may consist in issuing a permit or instructions concerning the direction or altitude of the flight, the place of landing or the performance of other actions aimed at restoring order in Polish airspace. A foreign civil aircraft that has illegally crossed the borders of the Republic of Poland may also be obliged to leave Polish airspace. Failure to comply with the orders in question gives rise to the right to resort to the reaction measures provided for in Article 18b(2)-(5) and Article 18bb-18bj of the Act on the Protection of the State Border.
The lack of response from the crew of such a civil aircraft raises the need to investigate the risk of it being used as a means of terrorist attack. Change of flight plan, ignoring procedures related to loss of communications, failure to respond to instructions from air traffic management authorities, unusual change of flight parameters or transponder code without receiving instructions, use of non-standard terminology, use of transponder code 7500 (unlawful interference), 7600 (loss of communication), 7700 (emergency), radio transmission suggesting hijacking or other unlawful interference, transponder deactivation, and receipt by services of credible information of intent to use the aircraft for a terrorist attack, cause such an object to be treated as a RENEGADE Suspect.
At this point, it is likely that a decision will be made by the Armed Forces Operations Commander to intercept the aircraft, which he has the right to do under Article 18bc of the State Border Protection Act. The procedure towards a civilian aircraft consists of three phases[xix]. In the first, it should be approached from behind, and then the intercepting aircraft should take up a position to the left, slightly above and in front of the intercepted aircraft, but no closer than 300 metres.
In phase two, the intercepting aircraft should carefully approach the intercepted object and, without causing panic on the part of its crew or passengers, identify the machine.
The third phase consists of the re-departure of the intercepted and intercepting aircraft. During it, radio or visual commands may be issued, as already mentioned in the text.
A higher level of threat, i.e. Probable RENEGADE, refers to a situation in which the RENEGADE Suspect does not respond to commands coming “from the ground” or from the intercepting aircraft or when the crew of such an object outright refuses to comply. With regard to such a machine, the Armed Forces Operations Commander may order the intercepting aircraft to fire warning shots, as referred to in Article 18bc of the State Border Protection Act. It should be expected that the escort of such traffic will continue until it leaves Poland’s borders or lands on its territory.
Finally, if a civilian aircraft has been intercepted and does not respond to appropriate commands, and there is indisputable evidence that it may be used as a means of terrorist attack, then it is given Confirmed RENEGADE status. A decision to destroy such an object may be taken by the Armed Forces Operations Commander when the following conditions are cumulatively met: the circumstances indicate that the civilian aircraft will be used as a means of a terrorist attack, the attack cannot be prevented by other available means, and the aircraft is either unmanned or there are only persons on board with the intention of using the machine as a means of that attack.
Issuing such an order requires the Operational Commander to take into account the entire context of the situation. He should act adequately to the threat and – as a rule – in accordance with international agreements binding Poland, although it is difficult to speak here of respect for Article 3 bis of the Chicago Convention. The decision should be taken after considering all the circumstances of the incident, as well as after establishing the real degree of risk to the lives of bystanders, including those who could be affected by the terrorists’ actions. It should be remembered that the overriding objective that should guide the decision-maker is the protection of innocent lives. The use of force against a civilian aircraft is always a last resort.
As regards unmanned aerial vehicles, they may be destroyed, rendered inoperative or taken under control in the event that the flight of such an aircraft poses a threat to the life or health of persons, there is a threat to protected objects, equipment or areas, the course of a mass event is disrupted or the safety of its participants is endangered, the object moves in a space where such flight is prohibited or a justified suspicion is raised that it may be used – again – as a tool in a potential terrorist attack. The decision to use force against such a device is taken by officers of the relevant services, including the Police, Border Guard, State Protection Service, Internal Security Agency, Intelligence Agency, Military Intelligence and Counterintelligence Service, Prison Service, Military Police and the Armed Forces, but also in some cases by personnel of specialised armed security formations. In conclusion, the possibility of shooting down a manned or unmanned aircraft is a complex issue that is subject to both national and supranational regulations. It always represents a certain compromise between the rights of those on board such a machine and those threatened by a potential attack of a military or terrorist nature. Finding a point of balance is not easy, as evidenced by the failure of the first attempt to regulate this issue in the Third Republic, which was made in 2004 and lasted – as too general and therefore flawed for constitutionalists – only four years. The second attempt made just over a month before this text was written (November 2023) seems to have a better chance of success, as we will see in the following years. Regardless of all the above, however, it is to be hoped that the regulations described in this text, will remain only on paper and never be considered for use.
Artur Banach, attorney at law
[i] Gazeta.pl (2011, 3 November) [CAPTAIN WRONA] ‘Blue 24’ ignored tower commands after Boeing 767 landing? Tower footage Medium in Polish: https://buzz.gazeta.pl/buzz/7,163510,10579570,kapitan-wrona-blekitny-24-ignorowal-polecenia-wiezy-po-ladowaniu.html [accessed 02.11.2023];
[ii] The Gentleman’s Journal The incredible story of Barry Seal – the man who worked for both the CIA and Pablo Escobar Medium in English: https://www.thegentlemansjournal.com/article/incredible-story-barry-seal-man-worked-cia-pablo-escobar/ [accessed 2.11.2023];
[iii] Flapilot.co.uk (2021, 28 May) 34 years ago a teenager landed a Cessna in Red Square Medium in Polish: https://dlapilota.pl/wiadomosci/dlapilota/30-lat-temu-nastolatek-wyladowal-cessna-na-placu-czerwonym [accessed 5.11.2023];
[iv] The Office of the Historian U-2 Overflights and the Capture of Francis Gary Powers, 1960 Medium in English: https://history.state.gov/milestones/1953-1960/u2-incident [accessed 10.11.2023];
[v] The Encyclopedia Brittanica September 11 attacks Medium in English: https://www.britannica.com/event/September-11-attacks [accessed 4.11.2023];
[vi] Rzeczpospolita (2010, 28 September) Smolensk flight was military, experts say Medium in Polish: https://www.rp.pl/wydarzenia/art7009061-lot-do-smolenska-byl-wojskowy-mowia-eksperci [accessed 8.10.2023];
[vii] M. Żylicz Shooting down a civilian aircraft as a tort of international law, PiP 2009, no. 6, pp. 24-36
[viii] Ibid;
[ix]Ibid;
[x] Ibid;
[xi] Aeronautical Information Publication (AIP) Poland, current as of 7 December 2017 (AIRAC AMDT 196), ENR 1.12 Interception of civil aircraft;
[xii] Wikipedia (2002, 18 October) Korean Air Lines Flight 007 Medium in English: https://en.wikipedia.org/wiki/Korean_Air_Lines_Flight_007 [accessed 30.10.2023];
[xiii] A+E Networks EMEA (2019, 9 September) Behind the 9/11 White House Order to Shoot Down U.S. Airliners: ‘It Had to be Done’ Medium in English: https://www.history.com/news/september-11-attacks-shootdown-order-cheney-bush [accessed 13 September 2023].
[xiv] W. Dzienkiewicz [in:] Aviation Law. Commentary, ed. M. Żylicz, Warsaw 2016, art. 122(a).
[xv] I. Niżnik-Dobosz, 5. Basic value dilemmas in the science of law, including administrative law, and their collision in the context of the concept of justice [in:] Justice and trust in public authorities in administrative law, ed. M. Kasiński, M. Stahl, K. Wlaźlak, Warsaw 2015;
[xvi] M. Iwański, Entitlement to shoot down a civil aircraft (some remarks on the compatibility of Article 122a of the Aviation Law with the Constitution of the Republic of Poland.), WPP 2008, no. 1, pp. 75-85;
[xvii] J. Kulesza, The extent of freedom of public administration bodies in taking a decision to destroy a civil aircraft. Glosa to the judgment of the TK of 30 September 2008, K 44/07, PiP 2009, no. 9, pp. 122-127.
[xviii] M. Iwański, Entitlement…, pp. 75-85;[xix] Aeronautical Information Publication (AIP) Poland, current as of 7 December 2017 (AIRAC AMDT 196), ENR 1.12 Interception… .
