Shooting Down Drug Planes 2

Oscar Alvarez, former Security Minister under Porfirio Lobo Sosa, introduced a bill in the lame duck Congress to permit the Honduran Armed Forces to shoot down suspected drug planes, among other rules. 

Yesterday, by a vote of 80 to 1, Congress passed the law.  This comes as Honduras prepares to install three radar systems it purchased from Israel after the US removed radars when the Honduran air force shot down two separate alleged drug flights in 2012, in violation of international treaties and an agreement with the US.

The new law creates an exclusion zone in the airspace over the departments of Gracias a Dios, Colon, and Olancho between the hours of 6 pm and 6 am.  The alleged goal is to prevent the arrival of narco-airplanes.  Only planes with legally filed flight plans would be allowed in the zone during those hours.  The law also establishes that no plane can fly under 18,000 feet, or slower than 300 knots during this time period in the exclusion zone.

Planes without flight plans that show up in the region or disobey the rules would be intercepted by the Honduran air force from La Ceiba (the nearest military airfield) and the interceptors would attempt contact.  If the plane fails to talk to, or obey the instructions of the interceptor, the protocol would permit shooting it down, but only with the explicit authorization of the Minister of Defense for this incident.

As we noted when Honduras originally proposed this, the country would have to repudiate its signature to several international air treaties to implement it, especially the Chicago Convention which prohibits the shooting down of civilian aircraft. 

Honduras signed the International Civil Aviation Organization (ICAO) protocol documents in 1944, and portions of it became effective in 1945 while others took until 1953 to become in effect.  A specific clause (3bis) explicitly prohibiting the shooting down of civilian aircraft without a declaration of national emergency was added in the 1990s. 

Likewise Honduras signed, but apparently never ratified, the Montreal treaty on civilian air traffic which again does not allow for shooting down civilian aircraft.

Nor is it clear that this new law will have the effect that is intended.

The conditions proposed in the law affect overflight traffic unless the plane is flying above 18000 feet and traveling more than 300 knots.  Many civil aviation aircraft can do neither.

Many planes typically used to haul drugs have no problem flying at that altitude or speed.  They are typically executive jets or planes, capable of holding 8-12 passengers or equivalent in cargo. 

The kinds of aircraft interdicted here would be those used for air taxi service to small, legal airstrips in the region, as well as seaplane or pontoon plane air taxis.  These typically hold 2-6 passengers, typically fly at speeds well under 300 knots, and altitudes well under 18,000 feet (they lack pressurized cabins and sources of oxygen). 

Because planes crossing the no-fly zone would have to be sure to clear it before 6 pm, and the height and speed exceptions are impossible for air taxis and general aviation, this law has the potential to reduce useful air service in the region.

Nor does the history of other countries that have made similar attempts suggest it will stop illegal drug flights over Honduras

The Dominican Republic passed a law allowing their military to shoot down drug planes, and they proceeded to shoot several down.  What that did was temporarily cause the cartels to switch to water based shipping, and to move air flights out into international waters except for the last few minutes of the flight, which can be done at treetop levels.  Drug overflights have since rebounded in the Dominican Republic.

Venezuela began such a policy in October, 2013, and has shot down a few aircraft.  A Mexican executive jet was reportedly shot down, creating an international incident where Mexico is still looking for answers as to how the plane, and some of its citizens, were targeted and killed by the Venezuelan air force. The new policy has not resulted in a slowing of drug flights from Venezuela to Central America and the Dominican Republic.

In Peru, the same policy resulted in at least one civilian aircraft loaded with missionaries being shot down and some of the occupants killed (gun camera video here). It's notable that Peru followed the same "protocol" specified in the Honduran law.

All of these countries still have drug overflights in similar numbers to prior to the shift in policy. 

Why would anyone expect a different outcome in Honduras?

Then there's the question of why only part of the airspace is being targeted.

The region targeted seems mostly crafted to disrupt the Zetas, who are the primary users of airstrips in eastern Honduras, leaving other parts of Honduran airspace used by the Sinaloa cartel along the Guatemalan and Salvadoran border, unchanged. Is someone crafting policy to favor one cartel over the other? 

The new policy might have the effect of shifting the pattern of drug overflights, but planes can continue to land in Yoro and Atlantida, where they often use roads as landing strips.  This would match the experience of other countries that have tried this policy where it resulted in changes in the patterns of transshipment of drugs, but failed as an interdiction strategy.

Finally there's the question of the US response. 

While the Southern Command has been known to promote such a policy for countries that we support in the war in drugs, the United States also has a strict policy since 1994 to not share intelligence or data with countries that do so, lest information we supply lead to such a downing, which under US law would make the information providers accomplices to an illegal act. 

That's why the US packed up its radar and stopped sharing information with Honduras in 2012 when Honduras shot down two alleged drug planes using US provided information.

Instead of temporarily withdrawing support for Honduras, support could be permanently withdrawn under current US policy if Honduras adopts this law.

Shooting down planes is bad policy.

It hasn't worked elsewhere.  It won't work in Honduras.  It doesn't work.

Shooting down drug planes

In an interview with Mexico's newspaper, El Universal, Honduran General Rene Osorio Canales says he wants to shoot down drug planes.  This, he says, is a better solution than legalizing some drugs, a measure considered by Central American Presidents at a recent meeting.  Osorio rejected Guatemalan President Perez's attempts to get legalization discussed because "the youth would have more freedom (presumably to use drugs) and we would be more polluted (presumably with drugs)."  Given that less than a month ago, on March 30, Osorio seemed to be against shooting down suspected drug planes as being illegal under international law, this change of heart is interesting.

Shooting down drug planes is not a new suggestion.  Here he's echoing Juan Orlando Hernandez and others in the Honduran Congress who, because of their political aspirations, are anxious to be seen as hard-line anti-drug without actually having such a legislative record.  Juan Orlando Hernandez first embraced this strategy after a meeting with US officials in the United States.

Nor is shooting down drug planes a new suggestion in the world.  Its been done, at least twice in the Dominican Republic in recent years, but only after trying to force the planes to land.  Likewise, the United States has encouraged the military of Colombia and Peru to adopt such anti-drug plans.

In his interview with El Universal, Osorio maintained the polite fiction that following and forcing down the drug planes was already the policy of the Honduran Air Force.  In reality, the Honduran Air Force does not intercept planes and force them to land at a controlled airport, or at least, they've never publicly reported a success at doing that.  This was the policy from the 1980s to at least 2004 when a drug plane they fired warning shots at, then crashed in the department of Lempira.  They report following drug planes, but they have not reported successfully forcing one to land at a controlled airport in the last 8 years.

Osorio, at least, realizes that legal changes must happen before Honduras could actually legally shoot down a plane suspected of carrying a cargo of drugs.  Brian E. Foont, in a review of the law and international incidents published in 2007 in The Journal of Air Law and Commerce goes over the state of law regarding the downing of civilian aircraft.  There's this international treaty called the Convention on International Civil Aviation or Chicago Convention.  The Convention neither bans, nor permits the shooting down of civilian aircraft but sets up that each nation's airspace is sovereign, and that it is international case law and reports of groups like the ICAO (the International Civil Aviation Organization) that establish the current norms about how civilian aircraft may be treated by national military forces.

In 1986, the ICAO, proposed adding  amendment 3bis to the Chicaco Convention which reads in part:

The contracting states recognize that every state must refrain from resorting to the use of military weapons against civil aircraft in flight, and that in case of interception, the lives of persons on board and the safety of aircraft must not be endangered.

The amendment goes on to include that every nation can request aircraft violating its airspace to land at a designated place, and establishes the requirement that aircraft obey such orders.  This amendment was not ratified by the membership in the ICAO until 1998. Interestingly, the US and Peru, both of whom advocate shooting down suspected drug planes (outside of US air space) are not signatories of Article 3bis.  Foont  concludes that a rule prohibiting the use of force against civilian aircraft is at the cusp of being established international law, but that its not quite there yet. 

Foont, in the above referenced article, also reviews the law with respect to the shooting down of suspected drug planes.  He notes that the US, while not having this policy for US airspace, encourages it in partner countries such as Peru and Colombia, both of which have "accidentally" shot down civilian missionary flights as part of such a drug interdiction program.  The US has even gone so far as to indemnify and hold harmless any US functionary aiding countries that the President of the US has found to have an adequate civilian safety assurance program as part of such a drug interdiction program, and this includes the programs in these two countries.

Osorio makes the argument that Honduras needs the US to provide upgrades to its air force in order to implement such a policy, specifically Bell 212 helicopters and Super Tucano aircraft, which thus far, the US has declined to provide through its military aid to Honduras.  Its current fleet of aging Tucano aircraft Osorio claims are too slow to intercept the modern civilian aircraft being use, and its F5 fleet is too broken down to be flown that often.

Osorio gives us no clues as to why he's had an apparent change of heart with regard to the interception and downing of suspected civilian drug aircraft.  However, such a program in other Latin American countries has inevitably led to innocent civilian deaths. 

Right now Honduras has no viable way to detect and follow suspected civilian drug aircraft, so this is a hypothetical future that is only possible with a large scale infusion of money and equipment to the Honduran Air Force.  They lack local radar, and apparently do not have access to the US Southern Command's radar network such as the arrangement that the military of the Domincan Republic have, where their soldiers watch over radar consoles at US Southcom and dispatch Dominican Air Force planes to intercept detected drug flights. 

While interdiction of planes worked in places like the Dominican Republic, greatly reducing the amount of cocaine literally dropping from the air, that effect was short lived.  The drug traffickers responded by switching to water transport and continue to use the Dominican Republic as a transit point. 

Why should we expect a different outcome in Honduras?