(18) In a final opinion, the Office of Legal Counsel of the Department of Justice concluded that the ABDP operations supporting the shootdown of civil aircraft created substantial risk that such operations would constitute aiding and abetting a violation of the Aircraft Sabotage Act of 1984.
(36) This was unquestionably the result of ABDP becoming a victim of its own success.
As the ABDP enters a new phase of operations, questions of domestic law remain largely a non-issue.
It is useful, however, to examine how this provision of international law can potentially impact operations involving the shootdown of civil aircraft, including those conducted as part of ABDP operations.
At present, ABDP programs are conducted by States inside their own territorial airspace.
(56) Such a broadening of ABDP operations could take place in a situation in which a country fails to take adequate steps to stop the flow of illegal drugs from inside its borders, leading to the implementation of nonconsensual shootdown operations over that State's territory.
This prohibition is applicable to all States under international law and would be applicable to shootdown operations conducted under the ABDP. However, this is not to imply that every killing, even those conducted in ABDP shootdowns, is a violation of that right.
It therefore follows that ABDP shootdown operations require some form of due process.
Peru and Colombia have found no need to put forth any such international justification for their ABDP shootdown operations.
As the legal position that offers the strongest justification for the use of weapons against civil aircraft, one can see that it would be desirous for ABDP countries to classify these operations against drug trafficking as a form of selfdefense, thereby not only justifying the use of force against civil aircraft, but also justifying the use of force in general without the consent of other States.
As such, while it would be a good defense in some shootdown situations, self-defense is a poor fit when looking for international justification for ABDP shootdowns.
Senator Kerry, in the 1994 debates over the ABDP, stated his belief that an Article 89 would go so far as to relieve a State of all international wrongfulness relating to a shootdown.