SECURITY COUNCIL CONDEMNS USE OF WEAPONS AGAINST CIVIL AIRCRAFT; CALLS ON CUBA TO COMPLY WITH INTERNATIONAL LAW19960727 By 13-0-2 Vote, Resolution 1067 (1996) Says States Must Bar Use of Civil Aircraft Inconsistent with Aviation Convention
Noting that the unlawful downing of two civil aircraft on 24 February by the Cuban Air Force violated the principle that States must refrain from using weapons against airborne civil aircraft, the Security Council this afternoon condemned such use as being incompatible with the rules of customary international law contained in article 3 bis and annexes of the 1944 Chicago Convention on International Civil Aviation and with elementary consideration of humanity.
By the terms of the United States-sponsored resolution 1067 (1996), adopted by a vote of 13 in favour to none against, with 2 abstentions (China, Russian Federation), the Council called upon Cuba to join other States in complying with their obligations to those provisions. It urged all States that have not done so to ratify the Protocol adding article 3 bis to the Convention as soon as possible and comply with all of its provisions, pending the Protocol's entry into force.
Article 3 bis provides that every State must refrain from the use of weapons against civil aircraft in flight. In case of interception, the lives of those aboard and the safety of the aircraft must not be endangered. If there are reasonable grounds to conclude the aircraft is being used for purposes inconsistent with the Convention, the State may instruct it to end such violations, resorting to any appropriate means consistent with international law and the Convention. Of the 102 ratifications needed for entry into force, 80 had been deposited as of 31 May. Neither Cuba nor the United States has ratified the Protocol. Both, however, are parties to the Convention, which had 184 parties as of that date.
The Security Council called upon all parties to acknowledge and comply with international civil aviation law and related internationally agreed procedures, including the rules, standards and recommended practices of the Chicago Convention.
It reaffirmed the principle that each State should take appropriate measures to bar the use of any civil aircraft for purposes inconsistent with
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the Convention's aims. That included airplanes registered in a State or operated by someone who had his principal place of business or permanent residence in that State.
The conclusions in the report of the International Civil Aviation Organization (ICAO) fact-finding investigation and the resolution adopted by the ICAO Council on 27 June were endorsed by the Security Council, which also welcomed the ICAO Council's decision to initiate a study of safety-related aspects of the report in order to prevent the recurrence of a similar tragic event.
Speaking before the adoption of the resolution, the United States representative said that the Cuban military action was a crime which Security Council must condemn in order to meet its responsibility to the international community. "Quite frankly, Cuba's position has been callous and contemptible. They shoot down civil aircraft and then blame the victims. They call for an investigation, and then blame the investigators. They are the aggressors in this case, and yet they claim they are being persecuted."
The President of the National Assembly of Cuba, Ricardo Alarcon de Quesada, said the United States had attempted from the beginning to manipulate information and falsify data regarding the incident and the circumstances that produced it. By its resolution, the Council would be endorsing conclusions of the ICAO investigation team which the ICAO Council itself had refused to endorse. The Security Council must act in a way that preserved its credibility.
Explaining his country's abstention on the resolution, the representative of the Russian Federation said the text was imbalanced, both politically and legally. It did not strike a balance between the principles of the non-use of force against civil aircraft and the non-use of such aircraft for inappropriate purposes. It had also skirted over the primary reasons for the incident while focusing mainly on the consequences. With more time, a more generally acceptable text could have been drafted.
The representative of China said he had abstained because the resolution was biased. Due to its view that the principles of international law should be implemented in a balanced way and no country allowed to apply the law selectively, China had emphasized during consultations that the Security Council should adopt the same fair and balanced approach as had the ICAO Council.
Statements were also made by the representatives of Colombia, Lao People's Democratic Republic, Viet Nam, United Kingdom, Germany, Botswana, Guinea-Bissau, Honduras, Poland, Republic of Korea, Indonesia, Chile, Italy, Egypt and France.
The meeting, which was called to order at 3:25 p.m., was adjourned at 6:35 p.m.
Shooting Down of Civil Aircraft
The Security Council meets this afternoon to consider the shooting down, on 24 February, of two United States-registered civil aircraft by Cuban fighter planes. It has before it a report by a fact-finding team of the International Civil Aviation Organization (ICAO) which investigated the incident (document S/1996/509). The report is transmitted to the Council by the Secretary-General, along with a resolution adopted by the ICAO Council on 27 June.
Results of ICAO Investigation
According to the four-member ICAO team, three Cessnas operated by "Brothers to the Rescue" deviated from their flight plans on the date in question and flew within danger areas designated by Cuba. Two of them were shot down, while approximately 10 nautical miles outside Cuban territorial airspace; the third returned safely to the United States. Cuba did not attempt to use other means available to it, such as radio communication, contrary to the principle that interception of civil aircraft should be a last resort.
The team concludes that no attempt was made to direct the two downed planes beyond the boundaries of national airspace or guide them away from prohibited, restricted or danger areas. Neither were they instructed to land at a designated aerodrome. The ICAO standard procedures for manoeuvering and for signals by military interceptors were not followed.
Citing events leading up to the incident, the team details a pattern of flights near and over Cuban airspace conducted by Brothers to the Rescue. Based in Miami, Florida, United States, the organization was a volunteer group of pilots set up to search for and help rafters fleeing Cuba. However, there was also evidence that some of its members sought to influence Cuba's political situation, the report states.
According to the team, Cuban authorities had notified the United States of multiple violations of Cuban airspace on seven occasions between 15 May 1994 and 4 April 1995, repeatedly demanding that the United States adopt measures to end them. On 14 July 1995, Cuba publicly declared it would take necessary steps to prevent provocative actions, warning that any aircraft intruding into Cuban airspace might be shot down.
On 13 January this year, the plane that was able to return safely to the United States in the incident under consideration flew at a low level over Havana, dropping leaflets and religious medals. The United States initiated legal action against its pilot, Jose Basulto, the President of Brothers to the Rescue. Prior to 24 February, the United States also issued public statements
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and notices advising of the potential consequences of unauthorized entry into Cuban airspace.
The Cuban Government, considering Brothers to the Rescue to be beyond the United States Government, instructed the Commander of Cuba's Anti-Aircraft Defence and Air Force not to tolerate further violations. He was authorized to personally decide on military interception and on the shooting down of aircraft, if required.
In arriving at its conclusions on the positions of the downed planes, the ICAO team had before it radar and radio data provided by the United States and Cuba. However, these contained significant differences which could not be reconciled, the team states. For example, Cuba's radar showed the three Cessnas entering the 12 nautical-mile territorial limit, with two of them being shot down at five to six nautical miles north of Havana. United States radar showed only Mr. Basulto's plane entering Cuban airspace, with the others being downed five and 10 nautical miles outside of it.
The report indicates that the most reliable position estimates were based on the recorded positions of the Majesty of the Seas, a Norwegian cruise ship, and the observations of its crew and passengers, as well as by the position of the fishing boat Tri-Liner relative to it. At the time of the interceptions, the cruise ship was placed at about 26 nautical miles north of Havana, although there is no corroborative evidence of this.
The ICAO investigation was requested by the Security Council on 27 February, through a presidential statement in which it also strongly deplored the shooting down of the two civil aircraft. The planes involved in the 24 February incident bore the following identification numbers: N2456S (shot down some nine nautical miles outside Cuba's territorial limit); N5485S (shot down at around 10 nautical miles); and N2506 (returned to the United States).
By its 27 June resolution, the ICAO Council reaffirms its condemnation of the use of weapons against civil aircraft in flight as incompatible with elementary considerations of humanity and customary international law. It states that those rules are codified in article 3 bis of the Convention on International Civil Aviation, as well as in its annexes. The article, also referred to as the Montreal Protocol relating to amendment of the Convention, was adopted unanimously by the ICAO Assembly in 1984.
The ICAO Council urges all States which have not yet done so to ratify the Protocol as soon as possible, and to comply with all its provisions pending its entry into force. Of the 102 ratifications required to enter into force, 80 had been deposited as of 31 May this year. Neither Cuba nor the United States has ratified the Protocol. Both, however, are parties to the
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Convention (also known as the "Chicago Convention"), which had 184 parties as of 31 May.
In its resolution, the ICAO Council also reaffirms the principle that each Contracting State to the Convention shall act to prohibit the deliberate use of any civil aircraft registered in that State or operated by one whose principle business or residence is there, for any purpose inconsistent with the Convention. It asks all Contracting States to report to it on any infraction of the Convention's rules on the interception of civil aircraft.
The ICAO also expresses deep regret over the loss of four lives as a result of the incident, and extends sympathy and condolences to the bereaved families of the victims.
[Article 3 bis provides that every State must refrain from the use of weapons against civil aircraft in flight. In case of interception, the lives of persons on board and the safety of the aircraft must not be endangered. If there are reasonable grounds to conclude the aircraft is being used for a purpose inconsistent with the Convention, the State may instruct it to end such violations, resorting to any appropriate means consistent with international law and the Convention. Each State shall make such violations punishable by severe penalties and submit such cases to its competent authorities.]
Text of Draft Resolution
The Council also has before it a draft resolution (document S/1996/596*) sponsored by the United States, the text of which reads as follows:
"The Security Council,
"Recalling the statement made by its President on 27 February 1996 (S/PRST/1996/9) strongly deploring the shooting down by the Cuban Air Force of two civil aircraft on 24 February 1996, which resulted in the death of four persons, and requesting the International Civil Aviation Organization (ICAO) to investigate this incident in its entirety and to report its findings to the Security Council,
"Noting the resolution adopted by the Council of ICAO on 6 March 1996 which strongly deplored the shooting down of the two civil aircraft and which directed the Secretary-General of ICAO to initiate an immediate investigation of the incident in its entirety in accordance with the Security Council Presidential Statement of 27 February 1996 and to report on that investigation,
"Commending ICAO for its examination of this incident and welcoming the resolution adopted by the Council of ICAO on 27 June 1996, transmitting the
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report of the Secretary-General of ICAO (S/1996/509, annex) to the Security Council,
"Welcoming also the report of the Secretary-General of ICAO regarding the shooting down of civil aircraft N2456S and N5485S by Cuban MIG-29 military aircraft, and noting in particular the conclusions of the report,
"Recalling the principle that every State has complete and exclusive sovereignty over the airspace above its territory, and that the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto and noting in this connection that States shall be guided by the principles, rules, standards and recommended practices laid down in the Convention on International Civil Aviation of 7 December 1944 and its annexes (the Chicago Convention), including the rules relating to the interception of civil aircraft, and the principle, recognized under customary international law, concerning the non-use of weapons against such aircraft in flight,
"1. Endorses the conclusions of the ICAO report and the resolution adopted by the Council of ICAO on 27 June 1996;
"2. Notes that the unlawful shooting down by the Cuban Air Force of two civil aircraft on 24 February 1996 violated the principle that States must refrain from the use of weapons against civil aircraft in flight and that, when intercepting civil aircraft, the lives of persons on board and the safety of the aircraft must not be endangered;
"3. Expresses deep regret over the loss of four lives and offers its deep sympathy and condolences to the bereaved families of the victims of this tragic even;
"4. Calls on all parties to acknowledge and comply with international civil aviation law and related internationally agreed procedures, including the rules and standards and recommended practices set out in the Chicago Convention;
"5. Reaffirms the principle that each State shall take appropriate measures to prohibit the deliberate use of any civil aircraft registered in that State or operated by an operator who has his principal place of business of permanent residence in that State for any purpose inconsistent with the aims of the Chicago Convention;
"6. Condemns the use of weapons against civil aircraft in flight as being incompatible with elementary considerations of humanity, the rules of customary international law as codified in article 3 bis of the Chicago Convention, and the standards and recommended practices set out in the annexes of the Convention and calls upon Cuba to join other States in complying with their obligations under these provisions;
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"7. Urges all States which have not yet done so to ratify as soon as possible the Protocol adding article 3 bis to the Chicago Convention, and to comply with all the provisions of the article pending the entry into force of the Protocol;
"8. Welcomes the decision of the Council of ICAO to initiate a study of the safety-related aspects of the report of the investigation with regard to the adequacy of standards and recommended practices and other rules relating to interception of civil aircraft with a view to preventing the recurrence of a similar tragic event;
"9. Decides to remain seized of the matter."
MADELEINE K. ALBRIGHT (United States) said that the draft resolution before the Council was to condemn the cold-blooded shoot-down by Cuba of the two unarmed aircraft operated by "Brothers to the Rescue" and declare the shoot-down as a violation of international law. It also demanded that all nations, specifically Cuba, abide in future by international legal standards on civil aviation.
Months after the shoot-down, the accounts of the United States and of Cuba of the incident differed, she continued. But the governments had pledged to cooperate fully with an investigation to be conducted by ICAO, with an obligation to accept its outcome. The United States accepted the investigation and believed that it was accurate in stating that the Cuban military had identified the two unarmed Cessnas as civil aircraft before intentionally destroying them. It had also stated that Cuba had not followed ICAO standards or their own procedures for intercepting aircraft and that the aircraft had been destroyed, according to the most reliable position estimates, about nine to 10 miles outside Cuban airspace.
By its actions, Cuba had violated the principle of customary international law which stated that States must refrain from using weapons against civil aircraft in flight and the ICAO principle that the interception of such planes should be undertaken only as a last resort, she said. As the ICAO had noted in its 27 June resolution, by taking the lives of four Americans -- Pablo Morales, Carlos Costa, Mario de la Pena and Armando Alejandre -- Cuba had flouted elementary considerations of humanity.
Although the resolution before the Council had been prompted by the tragedy of February, she continued, it served the goal of maintaining international peace and security by calling upon all nations to refrain from shooting down civil aircraft in violation of international legal standards. But the Cuban Government refused to acknowledge the unlawful nature of its action, had not expressed regret at the loss of lives and continued to
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threaten to shoot civil aircraft. "Quite frankly, Cuba's position has been callous and contemptible. They shoot down civil aircraft and then blame the victims. They call for an investigation, and then blame the investigators. They are the aggressors in this case, and yet they claim they are being persecuted."
The Government of Cuba had not accepted its responsibility to comply with the Chicago Convention and customary international law, she said. In contrast, the United States accepted its responsibilities. What the Cuban military had done was a crime and the Security Council must condemn it so as to meet its responsibility to the international community.
RICARDO ALARCON DE QUESADA, President of the National Assembly of Cuba, said the United States had attempted, since February, to manipulate information and falsify data, in order to make it as difficult as possible to analyse the incident of 24 February and the circumstances that produced it. That effort was accompanied by an intense publicity campaign which sought to issue condemnations in advance, without allowing the truth to become clear.
In the spirit of "sentence first and verdict later", the Council had met on the incident in February, issuing a presidential statement, he said. It asked the ICAO to examine the incident and present its conclusions to the Security Council. Thirteen days after the Council of ICAO adopted its resolution on the matter, communications were sent to the Governments of the United States and of Cuba. The ICAO team was invited to Cuba, and arrived in Havana within five days of the sending of their communication. The ICAO's preliminary report of 6 May indicated that Cuba responded to all the requests made by that team.
That report stated that the team went on to visit Washington, between 2 and 4 April, he said. It went to Miami, Florida, remaining there from 14 to 19 April. However, the investigators did not, and could not say that the United States had fully complied with their requests. The report indicated that further contacts were being pursued to obtain information from the United States on a number of questions.
He said those questions included such matters as information on ground transmissions, radar data from United States customs and by the regional centre for the Caribbean in southern Florida; radar from the Air Force in Florida; radar recorded by the United States navy; radar traces from a plane that was north of the 24N parallel on the date in question; information on the degree of observance of measures adopted regarding prior incursions into Cuban air space.
On 6 May, ICAO's Council had therefore been compelled to extend its investigation for an additional month, while the team waited for the United States to provide it with that basic data, he said. Even then, the report
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could not be concluded, because of information which was not provided by the United States. The ICAO Council met on 26 June. Thus, most members of the Security Council were able to read in the media what the United States had already determined would be the conclusions of the Security Council once it received the ICAO report. "Sentence first -- verdict afterwards."
The ICAO Council had simply forwarded to the United Nations the report of the investigative team, he said. Many members of the United Nations which were not represented on the Security Council or in ICAO might wish to know why the investigation had developed as it did. The report described the means by which the location of the planes in question had been determined. It cited radar information. Eyewitness accounts from the ships Majesty of the Seas and the Tri-Liner were described as being mutually supportive. The relative positions of those vessels was also cited. The combination of those three factors produced what had been described as "the most reliable position estimates".
He drew attention to a document distributed in February by the United States which was said to be the authoritative version of the radio transcripts. It bore the words, "this is the authoritative transcript -- destroy all others". However, the copy subsequently provided to the investigative team omits six minutes, which bore directly on the positions of the planes in question and of the Majesty of the Seas.
Nowhere in the ICAO report did it say that the investigative team personally interviewed any witnesses from the Majesty of the Seas "and the supposed fishing vessel from the United States, the Tri-Liner", he said. The existence of the "supposed Tri-Liner" had not even been proven. The report did state that it was unable to obtain independent confirmation of the location of the Majesty of the Seas.
In May, the ICAO team had an opportunity of listening to what the United States said was a recording of the radio communications, he said. However, there was a clear difference, amounting to six minutes, between that account and the earlier transcript. By 30 March Cuba, for its part, had submitted its radio and radar data and made it possible for the team to interview whomever it wished. Cuba submitted its original radio tapes, as well as the equipment used for that taping. In June, the ICAO Council concluded in Montreal. From the United States, it had heard only a cassette tape, which was in the custody of representatives of the United States. There was thus little reason to have confidence in the version presented by the United States.
With respect to radar, the situation was also interesting, he said. Two months after the incident, the United States authorities were unable to provide any data from any of their radar. The report itself stated that the United States authorities had, on 24 February, warned that there were some flights that should be appropriately recorded and registered by radar
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installations. It also stated that on 13 February -- 11 days prior to the incident -- the United States Federal Aviation Administration (FAA) was informed that something might happen in connection with those flights, of which they should be aware.
The report stated that members of the team, meeting at Montreal in May, had asked the United States for additional information regarding radar data from the air control centre, he said. Why was the erasure of data only known to the investigative team on 21 May? The radar station closest to the event had simply erased its data. No United States radar data had been sufficient to describe the final minutes of the incident.
It was not difficult to understand the way in which the United States handled the data it was obliged to provide, he said. It was not difficult to see the way it had adulterated the radio communications, did not facilitate contact by the investigators with the supposed witnesses from the supposed fishing vessel that was supposedly in the area, with respect to an incident that took place while the planes were well within Cuba's territorial limits.
Those efforts also applied to the civilian nature of the aircraft involved, he said. The ICAO had stated that the use of an aircraft determined whether it was civilian in nature. The plane in question had nothing to do with cargo or civil aviation. The United States authorities should be concerned that planes in the area are employed for solely civilian purposes, particularly in view of hundreds of United States civil aircraft which daily passed through the air corridor between Cuba and the United States.
All of the apparatus use by the group responsible for the events of 24 February were Cessna 337s, he said. Anyone familiar with the subject of aviation knew hat that model had a twofold nature -- both civil and military. Persons familiar with aviation could find a description of that aircraft in the Johnson's Aircraft Journal. It was sometimes used for passengers, cargo and correspondence. It had also been used by the United States army in Central America. In other words, it was also designed for operations of a military nature. In aviation journals, it was always described as having such a dual function. The mission that was being carried out had nothing to do with civil aviation, he said. The equipment that was employed could also have military uses.
Several years ago in Miami, a Congresswoman from Florida had organized a campaign to have the Pentagon provide some Cessna 337s to the group which participated in the incident of 24 February, he said. Apparently, she had been successful. In July that year, the Miami Herald published a report, by its editor, of a trip he had taken with "Brothers to the Rescue". It included a photo of the plane in which he had flown, with the letters "USAF" on the wings.
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Thus, it was not just a plane that had been used by the military -- the markings of the United States Air Force had not yet even been erased from the plane, he said. Today, an airplane bearing the same markings and belonging to "Brothers to the Rescue" was at the Opa-locka Airport and might be involved in another, similar incident. That organization had carried out premeditated acts which were not civil in nature and which violated both international law and Cuba's sovereignty. They were also related to very serious crimes against the Cuban people.
Cuban sugar fields had been burned by aircraft, he said. Cuban cities had been attacked by aircraft. Explosives had been showered down on Cuba. Biological substances had been introduced into the country by such aircraft. Acts of sabotage against his country were being planned by that group. He cited a Federal Bureau of Investigation (FBI) report regarding efforts by Brothers to the Rescue to bring contraband weapons into Cuba by air.
The Government of the United States had been taking some measures, prior to the incident, to address the activities of that group, he said. However, an attempt was being made to keep certain information concealed. On 5 July, the United States National Transportation Safety Board (NTSB) had investigated the suspension of Mr. Basulto's licence. That suspension, at first indefinite, had been reduced to 150 days. That meant he would be able to fly again by October. Mr. Basulto himself indicated, in a document of the Board, that his license was being suspended 82 days after the incident. During that time, he had been flying and nothing had been done about it. He said there were eight other aircraft flying with him on that same day.
He said the NTSB report cited meetings held in 1992, 1993, 1994 and 1996 between a Mr. Smith and the persons from that group, to try to convince them not to violate international law and the rules of the United States, and to warn them that they were committing offences which could and would be punished. An individual from that group told the NTSB administrative judge that he had violated Cuban airspace in July, but had not been charged with any violation by the FAA.
Cuba was not accusing the victims, he said. The main party was the United States Government, which had been unable to have their own rules and regulations respected. It had been reported that, one week before the incident in question, a warning was made that Mr. Basulto and others would be flying to Cuba on 24 February with the aim of creating a political incident. Could the United States authorities take the stance of the zealous defenders of law, safety and security in civil aviation, giving advice to others, or were they themselves responsible for such incidents?
Where were the radio communications from any of the authorities who had been warned by the United States? he said. What warnings were give to those flights that they should return, that they were flying without authorization
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over an area where they were not permitted? How was it that the last minutes of the communications regarding that incident had disappeared? The United States had falsified data, impeded analysis and used regrettable procedures in order to make consideration of the matter before the Council as difficult as possible.
The draft resolution before the Security Council would have the Council endorse conclusions that the ICAO Council itself had refused to endorse, he said. The Security Council would reaffirm the principle that each State shall take appropriate measures to prohibit the deliberate use of civil aircraft for other purposes. That paragraph had been presented by the United States. Was it appropriate to accept such a paragraph from that country? With what moral authority could the United States speak on a matter which it violated daily?
He said the draft resolution would urge all States to ratify the Protocol. Would the United States, as author of the draft resolution, be ratifying the Protocol? The draft would urge compliance with all the provisions of the article pending entry into force of the Protocol. Was the United States doing so?
While a number of States had not ratified the Protocol, many attached a great deal of importance to it, he said. Cuba was already taking steps to ask the ICAO Council to analyse problems relating to abuse of civil aviation in its region, including the inappropriate use of civil aircraft there in contravention of the Chicago Convention. It was hoped that all States which wished to see Article 3 bis applied in practice would support that effort. Such violations put at risk the citizens of the United States who were in the majority of those who flew in the air corridors over Cuba.
He said his delegation would be pleased to provide information on what really happened at the meeting of the ICAO Council in Montreal. That body had managed to safeguard its credibility, in the face of the manipulative efforts which had confronted it. The Security Council was now faced with the same need to act in a way which maintained its credibility.
ANDELFO J. GARCIA (Colombia) said that the international community should reflect on the causes of the tragic incident and on how to avoid a recurrence. Operative paragraphs 2 and 3 of the 27 June ICAO Council resolution were worth highlighting; the principle that States should refrain from using weapons against airborne planes was as relevant as that calling on States to prevent the misuse of civil aircraft. The latter principle should be respected in order to avoid the violation of the sovereignty of States. The Security Council could reiterate the inviolability of the sovereignty of States and the right of peoples to life. He expressed regret that the draft did not contain some of the amendments proposed by delegations such as the caucus of the Non-Aligned Movement. He reiterated the need for all States to respect and comply with the norms and principles of the Chicago Convention.
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ALOUNKEO KITTIKHOUN (Lao People's Democratic Republic) said that each State had the right and sacred duty to defend its sovereignty and territorial integrity, if it felt that they were about to be threatened. Some of the technical questions related to the incident had not been clarified. For instance, who was responsible, how it took place and why it had occurred had not been resolved. The incident was a reflection of the sad relations that had existed between the United States and Cuba, which showed a lack of mutual trust, and jeopardized the interest of both States. Solutions could be found provided that both of them showed true political will. He appealed to both of them to demonstrate wisdom and to try to improve their bilateral relations and resolve their disputes peacefully, which would contribute to international peace and security.
NGO QUANG XUAN (Viet Nam) said the Members of the United Nations had always stressed the fundamental principles of respect for national independence, sovereignty and territorial integrity, as well as non- intervention and non-interference in the internal affairs of all countries, be they large or small. As a non-aligned country and a good friend of Cuba, Viet Nam would always support the foreign policy of the Cuban Government. That policy was in accordance with the principles of respect for peace, friendship, national independence, sovereignty, territory integrity, non-intervention and non-interference in a country's internal affairs. Viet Nam fully supported the ongoing efforts of the international community, including the non-aligned countries, aimed at maintaining those principles.
Sir JOHN WESTON (United Kingdom) said he wondered, in listening to the statement by Cuba, whether he was listening to something out of Alice in Wonderland, in which everything was topsy-turvey. To adapt the words of Shakespeare, "perhaps the envoy doth protest too much". The United Kingdom would support today's draft resolution, which made clear the Council's condemnation of the use of weapons against civil aircraft in flight. The United Kingdom expressed its deepest condolences to the families of those killed on 24 February.
He said the United Kingdom strongly supported the resolution's endorsement of the ICAO report and resolution, which he went on to review. There could be no doubt that Cuba had contravened principles of international law in using force against civil aircraft and in not following established international procedures on interception of such aircraft. The current resolution made clear that such incidents were unacceptable to the international community.
All States had an obligation to comply with the provisions of international law and the standards and recommended practices set down in the Chicago Convention and its annexes, as well as to cooperate fully with ICAO. The United Kingdom looked to all States to abide by those obligations. It
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urged all States which had not yet done so to ratify the Protocol adding article 3 bis to the Chicago Convention as soon as possible.
He said the statement by Cuba had been "a virtuoso demonstration of the art of filibuster in the grand manner". The Council had long experience in tactics deployed in its Chamber with regard to the policies of Cuba. He remembered hearing that very approach one day in the autumn of 1962 in this very Chamber. It made use of "the tactic of the whopper", which applied when one wanted to take liberties with the truth. It dictated that "if you tell it long enough and you tell it big enough, there's a sporting chance that someone will believe part of it, even if out of pure exhaustion. Plus ça change, plus c'est la même chose".
The purpose of today's resolution was not only to draw attention to the illegal use of weapons in the incident in question, he said. It also looked forward, seeking to prevent the recurrence of similar actions which put at risk the lives of those travelling in civil aircraft. It was hoped that all States would acknowledge their obligations and take every measure to ensure that the tragic events of 24 February were not repeated. By today's action, the Council was doing no more than upholding the principles of international law and fulfilling its responsibility to safeguard international peace and security.
TONO EITEL (Germany) said he would vote for the draft resolution which came after weeks of intense deliberations, with all different aspects of the case closely scrutinized. The main item at stake was the basic rule that States must refrain from using weapons against airborne planes. Downing unarmed civilian planes, regardless of where that was done, breached international law which must not be tolerated. He commended ICAO for its resolution and report and expressed hope that the discussions would end and that further violations would not occur again.
QIN HUASUN (China) said that the principles of international law should be implemented in a comprehensive and balanced way and no country should apply the law selectively. International law provisions on the non-use of weapons against civil aircraft should be respected and, by the same token, those on the inviolability of territorial airspace and the abuse of civil aviation must be observed. The ICAO resolution was balanced and represented the collective will of all of its members. Therefore, China had emphasized during consultations that the Security Council should base its actions on that resolution and adopt the same fair and balanced approach. It had therefore suggested reasonable amendments to the draft before the Council. However, key amendments proposed by parties concerned had not been accepted, giving the current draft resolution a biased tilt. China would abstain on the draft text.
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LEGWAILA J. LEGWAILA (Botswana) said his delegation had stated that it was necessary for States to refrain from using weapons against airborne civil planes. Planes that entered a country without authority should be intercepted and guided to a landing strip where the true facts of their presence could be established. Equally, civil aircraft should never be used for purposes inconsistent with the Chicago Convention. Planes that deliberately penetrated the airspace of another country to foment civil disorder or disturbance should be seriously warned against engaging in such acts of provocation. While States should refrain from using weapons against civil aircraft, they should not be unnecessarily provoked into taking actions they would otherwise avoid. The draft resolution before the Council was generally acceptable to the extent that it reaffirmed the principle in the Convention and its annexes. Botswana would have preferred different wording of operative paragraphs 2 and 6.
ADELINO MANO QUETA (Guinea-Bissau) said that the 24 February incident had violated article 3 bis of the Chicago Convention. Paragraphs 4 and 5 of the draft resolution sent a clear message in the efforts to prevent a recurrence of such incidents. As such, his delegation would support the draft text.
GERARDO MARTINEZ BLANCO (Honduras) said that the ICAO report had reaffirmed the principle that States should observe the principle regarding the non-use of weapons against airborne planes. The report also reminded the Council that no State should allow the misuse of civil aircraft registered in its territory to violate another country's sovereignty. The international community must not allow a repetition of the 24 February incident and it should take measures to avoid a recurrence of such tragedies. His delegation agreed with the draft and would vote for it.
ZBIGNIEW M. WLOSOWICZ (Poland) said the Council was condemning the use of weapons against airborne planes, hoping that it would never happen again. Poland valued the draft resolution's reaffirmation of the principle that each State should take measures to bar the deliberate use of civil aircraft for purposes inconsistent with the Chicago Convention's aims. He expressed sympathy to the families of the incident's victims.
CHOI SUNG-HONG (Republic of Korea) said the use of weapons against civil aircraft in flight was unacceptable under any circumstances. At the same time, the Council should reaffirm that all States take appropriate measures to prohibit such craft's misuse. Since the draft upheld the principles of international law on the safety of civil aviation and condemned the use of weapons against airborne planes, he would vote for it. His delegation also fully endorsed paragraph 7 of the draft urging the States that had not done so to ratify article 3 bis of the Chicago Convention as soon as possible and to comply with all of its provisions pending its entry into force.
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MAKARIM WIBISONO (Indonesia) said that the Council should approach the safety of international aviation in a constructive manner; rather than condemning one State's action, it should underline the principles of safe civil aviation while respecting the sovereignty of States over their territory. The territorial integrity of a State's airspace must be respected by others and the repeated violations of Cuba's airspace by civil planes was a cause of concern for that country. More than 340 civil aircraft overflew Cuba daily without incident, more than half of which were United States aircraft. Therefore, Indonesia had reservations regarding operative paragraph 6 because it lacked objectivity by its urging Cuba to abide by principles it had always held. It was intolerable that civil-registered planes were misused and used to violate the sovereignty of others. All States, without exception, should strictly abide by the principles and rules regarding international air navigation as set out in the Chicago Convention and other instruments.
The Council's reaction should be expressed in a balanced manner, he continued. It must be assertive in assuring that all parties complied with the Convention and its annexes in its entirety. International law should be equally applicable to all nations and not serve the interpretations of one party. The credibility of international law would be undermined should the Council endorse a selective approach.
Certain aspects of the incident should be clarified, he said. Having considered the circumstances, the ICAO Council had found it hard to endorse the investigative report. In that regard, he expressed reservations towards operative paragraph 1 of the draft; since the ICAO Council had not endorsed the report, it was inappropriate for the Security Council to do so. Similarly, with regard to operative paragraph 2, the ICAO Council resolution had not qualified the 24 February incident as such.
The draft resolution could be improved to produced a more balanced text, he continued. Indonesia had difficulty with the fact that only one party was asked to comply with relevant resolutions and international civil aviation law, as stated by operative paragraph 6. No one party should have been singled out. Efforts by various delegations, including the caucus of the Non- Aligned Movement, to improve the draft and make it fair had not been adequately considered.
However, Indonesia would vote for the draft as it would like to reiterate its view that the use of weapons against airborne aeroplanes was unjustifiable, that the lives of those on board should not be endangered and because Indonesia condemned the use of weapons against such vessels as violations of international law, he said. The principle of non-recourse to weapons was reflected in operative paragraph 6 of the draft.
JUAN SOMAVIA (Chile) said the draft resolution was a result of active consultations, and Chile would be supporting it. Chile had sought to express
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its sensitivity to the humanitarian dimension of the incident, as valuable lives were lost. It had worked to safeguard the principles of norms of international law. In the procedural realm, it had sought a clear investigative process to provide information on what actually occurred.
Four lives had been lost, without any justification, he said. There should be no recurrence of such events in future. It was of fundamental importance to comply with the rules of international law governing civil aviation. The Chicago Convention established clearly the validity of article 3 bis under customary law. There was an absolute need for that norm to be respected by all States, to ensure the proper use of, and respect for, civil aviation by all States.
He said Chile had agreed that the Council should go beyond deploring the events and request an investigation into them by ICAO. While appreciating the efforts of the ICAO technical team, there had been difficulties inherent in the investigation. Nevertheless, the ICAO resolution was appreciated, since it reaffirmed fundamental principles.
He said, above and beyond the factual aspects of the incident, the controversy surrounding it straddled two questions: the downing of unarmed civil aircraft, and the use of civil aviation in a manner inconsistent with the principles of the Chicago Convention. In seeking to place the two issues in proper perspective, due importance must be given to the need to protect the value of human life. Nevertheless, it was hoped the incident would encourage reflection, so similar situations might be avoided in future.
He said it was hoped that States would take the appropriate additional measures to prevent the improper use of civil aviation. It also seemed important that ICAO had taken a decision aimed at promoting information exchange prior to actions which might contravene article 3 bis. He expressed profound sorrow at the incident and full solidarity with the victims.
LORENZO FERRARIN (Italy) said the Council, on 27 February, had strongly deplored the shooting down by the Cuban Air Force of two civil aircraft, which had taken place three days earlier, resulting in the death of four persons. The ICAO report, which it requested at that time, had confirmed that two unarmed civil aircraft in flight were destroyed, while means other than interception available to Cuba, such as radio communication, had not been utilized.
He said Italy's position was fully reflected in the statement issued by the Foreign Ministers of the European Union on 26 February. They said that, "irrespective of circumstances of the incident, there can be no excuse for not respecting international law and human rights norms". His Government deeply regretted the loss of lives caused by the tragic event. States must refrain from the use of weapons against civil aircraft in flight which violated
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customary international law, irrespective of whether or not the aircraft was within the territorial airspace of the State and irrespective of whether that State had ratified the Protocol to the Chicago Convention.
On the other hand, the ICAO Council was correct in underlining the principle that each Contracting State shall take appropriate measures to prohibit the deliberate use of any civil aircraft for any purpose inconsistent with the aims of the Convention, he said. The draft resolution before the Council contained an important reference to that principle. Indeed, the draft resolution, largely based on the ICAO resolution, contained very specific references to all principles governing international civil aviation relevant to the issue under consideration. It also noted that the unlawful shooting down by the Cuban Air Force of the civil aircraft violated the most basic of those principles.
NABIL A. ELARABY (Egypt) said the question being discussed today was a legal matter. Article 3 bis sought to codify customary law, by which States were to refrain from the use of force against civil aviation in flight. "We live today in a world that must be governed by the law", he said. Any violation of international law was a violation of the rights of every country. The Council must act in solidarity to address any violations clearly and specifically.
He said the fact that the Council had approved the conclusions of the ICAO report, even while observing certain contradictions in it, was aimed at ensuring full respect for international law governing the subject. It also aimed to support international principles regarding the interception of flights which violated a country's airspace, regardless of whether that country had ratified the Montreal Protocol. All countries should respect the rules it set out.
All Member States must adopt measures to prevent civil aircraft in their country from being used in contravention of the Chicago Convention, he added.
ALEXANDER GORELIK (Russian Federation) said the Council was faced with the problem of ensuring observance for humanity, national security, State sovereignty in the flight of civil aircraft. It was unfortunate that all States had not ratified article 3 bis of the Chicago Convention. The Russian Federation profoundly regretted the loss of life in the 24 February incident and expressed condolences to the bereaved families. The ICAO had opted for a constructive approach, by focusing on the prevention of similar incidents in the future.
The draft resolution before the Security Council reaffirmed the principles enunciated in the ICAO resolution, he said. It condemned the use of weapons against civil aircraft in flight as incompatible with the
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principles of humanity, international law and standard practice. That applied to all States.
The Security Council bore responsibility to ensure timely compliance with international law, which included not allowing violation of the sovereignty of States, or of the principles of civil aviation, he said. Unfortunately, the draft resolution, though improved significantly over the initial text, continued to swerve from an orientation that would be consistent with the interests of all members of the international community.
He said the current text was imbalanced, both politically and legally. It did not strike a balance between the principles of the non-use of force against civil aircraft and the non-use of such aircraft for inappropriate purposes. International law must be complied with by all, in all its aspects. It was important to ensure compliance with all aspects of article 3 bis.
The draft skirted over the primary reasons for the incident while focusing mainly on the consequences, he said. Yet, the aims of Brothers to the Rescue were hardly compatible with the aims enunciated under the Chicago Convention. The resolution of the ICAO Council had reflected the political position of its members. The current draft resolution fell short of that resolution. The Security Council should not take it upon itself to offer a legal qualification of the events of 24 February.
In the Security Council draft, accuracy and thoroughness had been sacrificed to the desire to force a decision, he said. There had been a real opportunity to arrive at a generally acceptable text which could have been used for future interpretation of similar incidents -- an end to which his delegation had striven for. The Russian Federation would not be able to support the draft in its present form and would abstain in the voting.
Action on Draft
The draft resolution was adopted by a vote of 13 in favour to none against, with 2 abstentions (China, Russian Federation), as Security Council resolution 1067 (1996).
Speaking after the vote, the Council President, ALAIN DEJAMMET (France), speaking as the representative of his country, said that the 24 February event had taken place in the context of tensions in the relations between Cuba and the United States. The resolution adopted by the Security Council was consistent with the work of the ICAO, stating that the downing of two civil aircraft violated the principle of non-recourse to weapons against airplanes. It recalled the right of each State to exercise sovereignty over its airspace and the principle that States should take appropriate action to prevent the use of civil aircraft based in their territory in manners inconsistent with the Chicago Convention. His delegation attached great importance to the
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resolution's appeal to all States that had not yet done so to ratify article 3 bis of the Chicago Convention and to apply it pending its entry into force.
Right of Reply
Ms. ALBRIGHT (United States) said that despite his one-and-a-half-hour statement, Cuba's representative had said nothing new, nothing to change the fact that Cuba had shot down the civil planes in international waters and that they were civil planes. If the Cuban representative did not believe those facts he could talk to the pilots of the MiGs who had identified the Cessnas as civil before shooting them down. He had said nothing to indicate regret for the death of the four civilians who had died in the incident, an act that the Security Council had condemned as a violation of international law.
"Sentence first and verdict later" -- she recalled, paraphrasing the Cuban statement -- was what had happened on 24 February when Cuba sent four Americans to death without prior inquiry. After months of deliberations, the Security Council had now found Cuba "guilty as charged".
Mr. ALARCON DE QUESADA (Cuba) said that on 20 June, even before the report of the investigation team came out, the same words had been heard. Nine members of the Security Council had put forward ideas that would have gone along the lines of what was concluded by the ICAO Council. Long before the current meeting of the Security Council, one delegation had insisted on distorting the truth without replying to very specific questions. Where were the witnesses? Where were the recordings? Where did the truth lie? The "defender of the truth" had put a great deal of effort into hiding the truth, he said.
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