Action and Reaction:
The Belarus Gambit to Force Diversion of Ryanair Flight 4978
An Issue of great complexity and nuances
Many reports do not scratch the surface of the relevant legal strictures
This paper will explain what the ICAO and other laws say
By Irene E. Howie, ESQ. (link)
Our guest writer today is Ms. Irene Howie a highly respected aviation attorney. Her practice includes all aspects OF aviation
and based on her work at the FAA and before ICAO, she is one of the preeminent counselors on the complex laws applicable
to international flight. Likely no other international aviation lawyer can speak as authoritatively as she in that she was the FAA Counsel on ICAO’s vote to condemn the USSR for this international travesty and then to create a permanent ICAO position against such state actions.
It starts small and can end big. Recall that the 1944 Chicago Convention was intended to be a foundation for future world peace. Over the decades since, the international community has come together to add pillars to that foundation by entering into treaties governing acts that harm civil aviation. Perhaps as important as the wording of these documents is that virtually all the countries of the world came together to draft them and ratify them. The unraveling of these international norms without consequence could be a dangerous disruption to world order. The forced diversion of a scheduled commercial passenger flight by the Belarusian regime and the international reaction to it is another episode that runs that risk.
An investigation will firm up the facts now being reported. What we know: A Ryanair Boeing 737 with 171 passengers, including Roman Protasevich, a prominent Belarusian dissident and journalist, took off from Athens on Sunday, May 23, for its scheduled destination, Vilnius, Lithuania. The flight route included a segment over Belarusian
airspace. The aircraft was just moments from leaving Belarusian air space when the pilot diverted the aircraft to land in Minsk, the capitol of Belarus, at some distance from the closer airport at Vilnius. The pilot had been informed that a bomb was on board the aircraft and to land at Minsk, whether by Belarus air traffic control or by passengers on the aircraft who may have been Belarus KGB agents or both remains unclear. It is also being reported that the Ryanair pilot was signaled by the pilot of an intercepting Belarus MiG-29 jet to land in the Belarus capital.
Upon landing, the Belarusian authorities took Mr. Protasevich and his companion into custody, preventing them from leaving when the aircraft and other passengers were released. There was no bomb. It is being reported that suspected Belarusian agents on the flight also did not reboard the aircraft. The aircraft landed at its scheduled destination 12 hours after its departure from Athens.
The international reaction has been strong and swift. There have been immediate charges of “state air piracy”. On May 23, ICAO stated that “it is strongly concerned by the apparent forced landing of a Ryanair flight and its passengers, which could be in contravention of the Chicago Convention.” EU leaders have agreed to close EU airspace to Belarus airlines and is working with EU air carriers to reroute flights around Belarus airspace. It’s reported President Biden has asked his team for options to hold those responsible accountable. The ICAO Council President now has called an “urgent meeting of the 36 diplomatic representatives to the ICAO Council” on May 27 on the incident.
Clearly, the actions of the Belarus regime upset much of the international community. But what international laws did they break?
State Air Piracy?
The treaties governing “air piracy” are the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking Convention) and the supplementary 2010 Protocol (Protocol). Belarus is party to the first, but not the second. The Hijacking Convention applies to offending people, not states, and is focused only on persons “who on board an aircraft in flight:
- unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or
- is an accomplice of a person who performs or attempts to perform any such act commits an offence.”
If Belarus agents indeed were on board the Ryanair aircraft and participated in the effort to divert the flight based on a knowingly false claim that a bomb was on board and for purposes having to do only with seizing one of the passengers, then it may be argued that the aircraft was hijacked. The remedy prescribed by this treaty, however, is prosecution of the individuals who participated, not punishment of a state actor that may have ordered their actions.
The Protocol’s definition of the offence is broader and encompasses actors not onboard the aircraft: “Any person commits an offence if that person unlawfully and intentionally seizes or exercises control of an aircraft in service by force or threat thereof, or by coercion, or by any other form of intimidation, or by any technological means.” Actors on the ground in Belarus directing the diversion of the flight “unlawfully” might be included in this definition of the offence if the diversion were accomplished by a knowingly false bomb threat. Again, Belarus is not party to the Protocol nor are several EU member States or the United States (the Protocol was submitted to the Senate for advice and consent January 2020.)
And, in the context of the Hijacking Convention, what does “unlawfully” mean and which laws govern? According to the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention), to which Belarus is a party, the laws of the state of registration apply to an aircraft in flight which here presumably would be the laws of Ireland. Except, that is, as provided in Article 4:
“A Contracting State which is not the State of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except in the following cases:
(a) the offence has effect on the territory of such State;
(b) the offence has been committed by or against a national or permanent resident of such State;
(c) the offence is against the security of such State;
(d) the offence consists of a breach of any rules or regulations relating to the flight or manoeuvre of aircraft in force in such State;
(e) the exercise of jurisdiction is necessary to ensure the observance of any obligation of such State under a multilateral international agreement.”
Did the offence Mr. Protasevich allegedly committed to warrant his seizure by Belarusian authorities take place on board the aircraft? The Tokyo Convention hastens to add that it is not “authorizing or requiring action” based on laws of a political nature”, and it does not draw any lines as to how a state may “interfere with an aircraft in flight” to exercise its criminal jurisdiction under the Article 4 exception.
Other Unlawful Act Against Civil Aviation?
If, as has been reported, the bomb threat conveyed to Ryanair was fabricated, the persons responsible for conveying that false information committed an offense under the 1971Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention) to which Belarus is a party. That treaty provides, in part, that “Any person commits an offence if he unlawfully and intentionally” “communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight” or is an accomplish to such a person. Here again, the remedy prescribed by this treaty, however, is prosecution of the individuals who participated, not punishment of a state actor. And which country’s laws govern whether communication of that false information was “unlawful”?
The Chicago Convention?
ICAO’s announced “strong concern” that the actions of the Belarus regime may have violated the Chicago Convention may be based on Article 3 bis which provides how an aircraft may lawfully be intercepted. That article is an amendment negotiated after the USSR shot down Korean Airlines flight 007 in 1983, killing all on board. That catastrophe occurred after an allegedly failed interception. The member states of ICAO immediately came together to condemn the action and then to amend the treaty so as to make explicit that which many countries, including the United States, deemed implicit. The amendment affirmed international standards for military-civil aircraft interface. Article 3 bis, which has been ratified by Belarus, states in part:
“(a) The contracting States recognize that every State must refrain from resorting to the use of 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. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.
(b) The contracting States recognize that every State, in the exercise of its sovereignty, is entitled to require the landing at some designated airport of a civil aircraft flying above its territory without authority or if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of this Convention; it may also give such aircraft any other instructions to put an end to such violations. For this purpose, the contracting States may resort to any appropriate means consistent with relevant rules of international law, including the relevant provisions of this Convention, specifically paragraph (a) of this Article. Each contracting State agrees to publish its regulations in force regarding the interception of civil aircraft.
(c) Every civil aircraft shall comply with an order given in conformity with paragraph (b) of this Article. To this end each contracting State shall establish all necessary provisions in its national laws or regulations to make such compliance mandatory for any civil aircraft registered in that State or operated by an operator who has his principal place of business or permanent residence in that State. Each contracting State shall make any violation of such applicable laws or regulations punishable by severe penalties and shall submit the case to its competent authorities in accordance with its laws or regulations.”
If, as has been reported, the Belarus regime dispatched a fighter aircraft to intercept the Ryanair flight and require it to land, then that action is governed by Article 3 bis. Unless the Belarus regime can produce valid evidence that the Ryanair aircraft was being used for a purpose inconsistent with the aims of the Chicago Convention (i.e., valid evidence to support the bomb threat), the interception was inconsistent with the obligations of the treaty. Further, the implementing ICAO standards in Annex 2 “Rules of Air” state “interceptions of civil aircraft are, in all cases, potentially hazardous”, “should be avoided and should be undertaken only as a last resort”.
What to do?
This isn’t the first time a scheduled commercial flight was diverted and asked to land due to a bomb threat. What’s new here, based on the reporting to date, is that the bomb threat appears to have been fabricated as part of a planned operation by the state of overflight to abduct one of the passengers from the air. And what also reportedly is new here is the use of a military jet to intercept and force the passenger aircraft to land in the state of overflight. These actions must be challenged.
The ICAO Council, upon request by an ICAO member state, can investigate whether Belarus violated Article 3 b of the Chicago Convention by intercepting the aircraft without valid cause. It can also request information from Belarus to help determine whether what took place is a hijacking under the Hague Convention or an offense under the Montreal Convention to which all interested states are parties and affirm Belarus is under obligation to prosecute the perpetrators or extradite them to, say, Ireland. These steps are necessary to affirm the international legal framework within which Belarus must conduct itself or risk being marked as an outcast. The announced ICAO Council meeting on May 27 is likely to begin this process.
As this process unfolds, states are free to take joint or unilateral action to protect their aircraft and citizens consistent with their multilateral and bilateral obligations, as the EU states evidently are now doing. An historic example of joint action was the 1978 Bonn Summit Declaration when the G-7 States announced their joint commitment, when “a country refuses extradition or prosecution of those who have hijacked an aircraft and/or do not return such aircraft,” to “take immediate action to cease all flights to that country. At the same time, their governments will initiate action to halt all incoming flights from that country or from any country by the airlines of the country concerned.” In practice, the commitment has rarely been applied.
Difficult events like this one prompt understandable international reaction. But it’s important that those reactions recognize the boundaries of international law. Otherwise, they risk further eroding trust in the foundation for the safe and orderly conduct of international aviation damaged by the event itself.
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