Last week, the U.S. Department of Justice unsealed an indictment of the former Cuban president Raul Castro on charges that include the destruction of a civil aircraft in violation of 18 U.S.C. section 32. The incident underlying that charge involved the 1996 shootdown by Cuban fighter jets of two civil aircraft used by the Cuban exiles known as the “Brothers to the Rescue” to engage in pro-democracy activities and to rescue individuals attempting to flee Cuba by sea. According to the indictment, the shootdown caused the deaths of four individuals, including three U.S. citizens. Fidel Castro, Raul’s brother and predecessor, stated at the time that he had given orders instructing the shootdown of aircraft violating Cuban airspace (according to the DOJ indictment, it was Raul in his then-role as head of the military who authorized deadly action against the Brothers’ aircraft, specifically). It is contested whether the civil aircraft were in Cuban or international airspace at the time of the shootdown. Cuban officials claimed that the fighter jets issued warnings before engaging in lethal use of force, although the United States took the position at the United Nations Security Council that Cuba had failed to follow proper warning procedures, and that in any case the use of weapons against a civil aircraft in flight was a violation of international law (see pg. 629-30).
Following the shootdown, the Security Council requested that the International Civil Aviation Organization (ICAO) investigate the incident. ICAO concluded in its findings that the Cuban fighter jets made no attempt to direct the civil aircraft out of sovereign airspace or instruct them to land, and failed to follow ICAO procedures for interceptions. After receiving the ICAO report, the Security Council adopted resolution 1067, in which it endorsed the ICAO findings and concluded that the shootdowns were unlawful.
Against this backdrop, the Q&A below provides an overview of the legal framework governing shootdowns. In short, shootdowns are prohibited under both international and domestic U.S. law absent very specific circumstances. The United States criminalizes the use of force against civil aircraft, with jurisdiction potentially attaching to foreign government officials – although charges of this nature have rarely been brought against foreign officials. The Q&A takes no position on the decision to indict Castro, nor the likelihood that he may face criminal trial in the United States on the basis of these charges. Instead, it provides the legal context in which the indictment has been issued.
Are Aerial Shootdowns of Civil Aircraft Permitted Under International Law?
No, except in self defense as described below. International law prohibits the shooting down of civil aircraft. Two primary treaties codify this prohibition: (1) the Chicago Convention; and (2) the Montreal Convention. Cuba and the United States are parties to both. The prohibition is understood to reflect customary international law binding on all States.
The Chicago Convention
The Convention on International Civil Aviation (the Chicago Convention) expressly prohibits the use of weapons against a civil aircraft in flight (Article 3 bis). The U.S. Department of Justice’s Office of Legal Counsel (OLC) has noted that there is reason to believe that the article is “declaratory of customary international law,” as has ICAO.
The Chicago Convention also provides parameters for interceptions of civil aircraft that do not involve the use of force, requiring that such interceptions must be a last resort, and that in those instances “the lives of persons on board and the safety of aircraft must not be endangered” (see Article 3 bis (a)). The Convention also established ICAO and mandated it with developing international standards and procedures in relation to air navigation (see Article 37). ICAO subsequently issued standard procedures for aircraft interceptions, which include radio signals, visual signals, and physical signals such as flashing lights and rocking the wings of the intercepting aircraft. These procedures, and whether the Cuban fighter jets complied with them, have been at issue in the Cuba case.
The Montreal Convention
The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (the Montreal Convention) prohibits damaging or destroying a civil aircraft in flight or in service, and obligates States Parties to criminalize such action with the attachment of “severe penalties” (see Article 3).
While not at issue in the Brothers to the Rescue case, the distinction between a civil aircraft “in flight” versus a civil aircraft “in service” is an important feature of the Montreal Convention. An aircraft is “in flight” from when its external doors close after embarkation, until they open for disembarkation. But an aircraft is “in service” from the initiation of preflight preparations of the aircraft (i.e. by ground personnel or the crew for a specified flight) until 24 hours after landing – a significantly more expanded period of time. This means that the prohibition under the Montreal Convention extends not only to aircraft in active flight, but also to those on the ground during the protected period, making it more protective than the Chicago Convention in this regard. Law enforcement or military action against grounded civil aircraft such as bombing, strafing, ramming, shooting tires or turbines, or similar are prohibited under this Convention.
Are There Any Exceptions to the Prohibition Under International Law?
Yes, although they are quite limited. As OLC emphasized in its 1994 memo on the topic, “the only recognized exception to this rule is self-defense from attack.” The fact that a civil aircraft may be used for unlawful purposes – including, for example, suspected drug trafficking – has no bearing on this prohibition, nor does the unpermitted entry into a foreign country’s sovereign airspace or the failure to comply with ICAO interception signals. In these situations, States may protect their sovereign airspace by (a) directing the aircraft to land at a designated airport; (b) giving the aircraft any other instructions to cease violations; or (c) taking any “appropriate means consistent with relevant rules of international law, including [Article 3 bis of the Chicago Convention].” In other words, a wide range of activity is permitted to address violations of sovereign airspace, but the use of force is not one of them.
Additionally, the Montreal Convention is generally understood not to apply to military forces acting in armed conflict (see, for instance, here at pg. 200). The Chicago Convention similarly states that its provisions do not “affect the freedom of action” of States engaged in armed conflict (see Article 89). This is not to say that States may freely target civil aircraft during times of armed conflict – to the contrary, they may only be targeted to the extent that they constitute a military objective and are otherwise targetable under the law of armed conflict (also known as international humanitarian law).
Does the United States Support These Conventions?
Yes. The United States is a State Party to both the Chicago Convention and the Montreal Convention, and implemented its obligations under the Montreal Convention via domestic U.S. legislation (see further below).
The United States has invoked international law in response to the shooting down of civil aircraft before, for instance in response to the shootdown of Korean Air Lines Flight 007 (KAL 007) by the Soviet military in 1983 (indeed, it was this shootdown that led to an amendment of Article 3 of the Chicago Convention to ensure there was no ambiguity as to its prohibitions on shooting down civil aircraft in flight). Additionally, the U.S. has at various times supported the process by which the ICAO Council (of which the United States is a member) eventually determined that Russia had violated the Chicago Convention when it shot down Flight MH17.
Are Aerial Shootdowns Permitted Under U.S. Domestic Law?
No. The Aircraft Sabotage Act, codified at 18 U.S.C. section 32, establishes criminal offenses pertaining to the damaging, destroying, or threatening to damage or destroy a civil aircraft in service or in flight, in close alignment with international law. The penalties for violating these provisions are severe, including up to life imprisonment or, if the crime results in the loss of life, potentially the death penalty (see FN 11).
18 U.S.C. section 31 uses the same definitions for “in flight” and “in service” as those used in the Montreal Convention, meaning that the prohibitions also extend to grounded aircraft during the protective preflight and 24-hour post-landing periods. A civil aircraft is defined in 49 U.S.C. section 40102 as any aircraft that is not a government aircraft utilized for non-commercial purposes.
The law does not prohibit “ordinary law enforcement operations” in relation to either the crew or the cargo, including searches, seizures, or arrests – and incidental damage caused to an aircraft during a seizure and arrest operation would not trigger criminal liability, according to the Department of Justice (see FN 25).
Are There Any Exceptions to the Prohibition Under U.S. Domestic Law?
Yes, there are limited exceptions to the prohibition on the use of force against civil aircraft under domestic U.S. law. The U.S. domestic legal exceptions are more expansive than those available under international law, including some counternarcotics-related activities under very specific circumstances.
Self-Defense and Armed Conflict
The U.S. domestic prohibition on the use of force against civil aircraft in flight or in service is excepted in circumstances where there is an imminent, serious threat of physical harm, for instance emanating from a crew’s active armed resistance to lawful police orders. Otherwise, the behavior or affiliations of the pilots do not affect the prohibition (in the absence of a presidential determination, as discussed below). Indeed, the 1994 OLC memo made clear that even in the instance that a civil aircraft is engaging in unlawful activity, the only permitted exception to the prohibition on using force against that aircraft is self-defense against a threat of imminent, serious physical harm.
The prohibition under U.S. law also does not apply during armed conflict, with the same caveats as noted in the discussion above.
Presidential Determination
There is one other exception to the prohibition under domestic U.S. law, in very specific and limited circumstances. In large part in response to the 1994 OLC memo (and its implications for potential U.S. government officials’ liability), Congress quickly passed legislation to provide a narrow exception to criminal liability under 18 U.S.C. section 32 for specific law enforcement-related shootdowns.
Specifically, foreign government officials engaging in shootdowns are not liable if two conditions are met: (1) the targeted aircraft is “reasonably suspected to be primarily engaged in illicit drug trafficking,” and (2) the president of the United States has certified to Congress (on an annual basis) that shootdowns are necessary due to the “extraordinary threat posed by illicit drug trafficking to the national security of that country” and that the country has “appropriate procedures in place to protect against innocent loss of life in the air and on the ground. . .” This exception was codified in 22 U.S.C. section 2291-4. Although quite rare, presidents have exercised this authority in a number of contexts, most notably in Colombia (a determination which appears to be currently in effect).
Does the U.S. Domestic Law Prohibition Extend to Officials of Foreign Governments?
Yes. U.S. district courts have held U.S. criminal jurisdiction under 18 U.S.C. section 32(b) in particular extends to those who use force against a civil aircraft “even if a U.S. aircraft was not involved and the act was not within [the United States]” (see United States v. Yunis). Under section 32(b), it is sufficient that an offender is present in the United States for jurisdiction to attach; further, the Yunis court found that such jurisdiction may attach even if a defendant is only on U.S. soil because they have been brought to the United States for prosecution on other charges (and indeed, noted that the Montreal Convention would in fact obligate the U.S. to either prosecute or extradite an individual charged with offenses established under the treaty, such as section 32(b)). 18 U.S.C. section 32(a), the specific provision under which Castro has been charged, does not have this expansive extraterritorial scope, but it does apply to U.S.-registered civil aircraft shot down abroad (see FN 14), as DOJ claims was the nature of the aircraft shot down by the Cubans in 1996. Citing caselaw as well as legislative history, the Department of Justice emphasized in 1994 that the prohibition under both sub-sections (and attaching criminal liability) extends to government officials acting in their official capacities. Notably, the memo – which was focused in particular on the risk of secondary liability for U.S. government officials facilitating shootdowns abroad, rather than on the potential to directly prosecute foreign officials themselves – did not address the issue of various immunities that may attach in certain scenarios, and which would need to be considered in any direct prosecution of a foreign official who may potentially benefit from such immunities.
Has the United States Brought Criminal Charges on This Basis Before?
Yes. The United States has pursued criminal charges against foreign government actors under 18 U.S.C. section 32 in the past, including in response to the bombing of Pan American Flight 103 under the direction of Libyan state officials (with new charges filed as recently as 2020).
The Department of Justice has also taken the position that 18 U.S.C. section 32 would apply to the use of force by law enforcement or military officials of foreign governments taken against civil aircraft suspected of engaging in drug trafficking as part of an official government counternarcotics program if the requirements noted above are not met, although no prosecutions on this basis have been brought to date.
