Spy plane collision of 3/31/2001

On the night of 3/31/2001 (I believe it was the morning of 4/1/2001 local time), an American military reconaissance aircraft collided with a Chinese F-8 fighter which was shadowing it. The Chinese plane crashed into the ocean; the American plane was forced to land at a Chinese airfield.

It has now been approximately forty-eight hours since this incident. I want to skip talking about who is to blame for the collision, except to say that a fighter jet should have had no trouble avoiding a relatively slow recon plane. I don't know the details of the accident, nor does anyone else except those involved.

What I do want to talk about is China's as-yet unfulfilled obligations to the American airmen and to the American government under Article 118 of the Third Geneva Convention of 1949 and under the 1977 Additional Protocol I to the Geneva Conventions. The crew of the aircraft in question may have been composed entirely of soldiers, or there may have been some civilians aboard. In either case, the soldiers are entitled to all the rights due prisoners of war, as laid out in the Geneva Conventions and the Additional Protocols thereto.

Article 118 of the Third Geneva Convention states that prisoners "shall be released and repatriated without delay after the cessation of active hostilities." Since there are no active hostilities going on, China is therefore obligated under Article 118 to release the American airmen and return them home without further delay. The Additional Protocol I goes a little further, listing the "unjustifiable delay in the repatriation of prisoners of war or civilians" as a grave breach of the protocol.

Clearly I am no expert in international law; I have only a somewhat educated layman's understanding of the Geneva Conventions. But China's obligations seem nonetheless clear with respect to the American citizens: they should be returned home immediately.

Note: Much of the legal information contained in this writeup can be found in the excellent reference Crimes of War: What the Public Should Know, edited by Roy Gutman and David Rieff. It is truly an excellently written, easily understandable reference on the legal obligations of nation-states towards soldiers, civilians, and cultural property of other states.

The Chinese media, in which there is total political censorship, has for the most part portrayed this as an act of aggression by the US. Many Chinese do not realise that the collision took place in international airspace, and they still remember the bombing of the Chinese embassy in Serbia. Combine this with increased Chinese nationalism of late, and you get a situation where the Chinese are very unlikely to:

• Admit that it wasn't in fact an act of American aggression;
• or cede to the Americans and let their public think this "act of aggression" has gone unpunished.

It seems fairly likely that the Chinese will have stripped this plane of anything that could be of use to them. The only comfort is that the crew are equipped with sledgehammers to destroy anything they can before landing, and are also instructed to take such measures as eating anything they can and destroying things in other ways. It does seem worrying that the Chinese didn't allow the US access to their airmen earlier - bombing the plane is still an option for the US, and as the Chinese know this they wouldn't want the airmen telling the US that equipment was still intact before the Chinese had collected it...

It is becoming increasingly difficult to find the truth from news reports. Sensationalism is perhaps the greatest threat to objective, unbiased journalism.

People definitely love a great story, but the truth is not always a great story. This is what is happening with mainstream media's coverage of the midair collision of a U.S. surveillance plane and a PRC fighter jet. I have always believed that to find the truth, one must hear both sides of an argument. And being able to speak and read Chinese, I have a distinct advantage in this case.

For the past couple of days, I have been gathering information online from Chinese military websites, Internet forums and chatrooms. And now, I shall present to you the facts provided by the Chinese government and the views of some common Chinese folks.

Both sides acknowledge several facts: this was an accident, an unintentional and unfortunate event; a Chinese plane is lost, and a Chinese pilot is dead; the American aircraft landed on Chinese territory, and the crew members are held in China, albeit in a guesthouse.

However, the two sides are bitterly divided over three issues: the legality of the aircraft being in China, how promptly the crew and the plane should return, and most importantly, how the collision came about.

The U.S. government claims that the aircraft has the right of fly over international water and the right to land in China after sending a distress call. The Chinese government, on the other hand, claims that the U.S. aircraft was in China's coastal exclusive economic zone, and according to Subsection 3 of Article 58 of the United Nations' Law of the Sea, "In exercising their rights and performing their duties under this Convention in the exclusive economic zone, states shall have due regard to the rights and duties of the coastal state and shall comply with the laws and regulations adopted by the coastal state in accordance with the provisions of this convention and other rules of international law in so far as they are not incompatible with this Part."

It is not hard to see why China finds U.S. surveillance operation off its coast in violation of its rights, and in violation of "the laws and regulations adopted by the coastal state."

China insists that the airbase where the U.S. plane landed did not receive the distress call or a request for permission to land, and that China has the right to seize a foreign military aircraft that landed without permission according to Chinese law. So depending on how one reads the law, China may or may not have the right to board and search the plane.

While President George W. Bush called for an immediate return, China asked for an American apology and said that the crew is assisting in China's investigation of this fatal accident. If the American pilot is at fault, then an apology would seem logical, but it would be impossible to determine who is at fault until the investigation is over.

I am by no means an expert in Chinese law. But it is quite perceivable that somewhere in the volumes of Chinese legal code, there is a law that lets China keep the witnesses, the crew and the evidence the plane in China until the investigation is over.

The Chinese government had also indicated that the crew members are not diplomats and do not have diplomatic immunity, which means that they will be governed by Chinese law as long as they remain in China. Now, do we really want the crew to stay in China for the duration of an investigation that can take weeks or even months?

The final question is who is at fault for the collision, is it the American pilot or the Chinese pilot?

The answer to this question is critical to both the timely return of the crew and whether or not an apology is necessary. The official Chinese story was given on April 4. It was presumably based on accounts of the other Chinese pilot who was at the scene.

It basically concludes that the American aircraft caused the accident as it made a wide turn without warning. On the other hand, General Henry H. Shelton, chairman of the Joint Chiefs of Staff, hinted that it was the Chinese pilot's fault, saying it was "hard to imagine" that the larger, relatively slow-moving turboprop-driven U.S. plane had initiated the collision. Many Chinese web-goers seemed to be angry at this presumption as much as at the incident itself.

So what are the possible solutions? Well, the "regret" speech Secretary of State Colin Powell gave last Wednesday (April 4) was very smart. Something with an emotional appeal like that would definitely ease tensions and calm the portion of the Chinese population that had been enraged by the incident.

The next logical step would be to offer assistance in the investigation into the accident and to try to bring the crew members out by convincing China that the best thing to do is to have the investigation elsewhere. But even if the crew members were to remain in China, they would probably be treated fairly.

I can speak from my own experience, because Chinese immigration officials detained me for an hour and a half when I entered China in the summer of 1994. I later learned that they suspected my passport was forged. So I sat in a room with a couple of grim-faced Chinese officials and enjoyed my cup of tea. And in the end, nothing happened.

So as a great man once said, "Life is like a box of chocolates, you never know what you're gonna get."