21 Jun Forced Landing of a Passenger Plane: Law and Politics Behind the Ryanair 4978 Flight from Athens to Vilnius: Part I
[Sava Jankovic, MA (University of Warsaw), MSc (Warsaw University of Technology), PhD (University of Dundee) is Researcher at the Institute of Legal Studies of the Polish Academy of Sciences. His interests include the law of statehood, international responsibility, human rights law and peaceful resolution of conflicts.]
The Ryanair plane flying from Athens to Vilnius on 23 of May was forced to land in Minsk by the Belorussian MIG-29 fighter under the guise of a terrorist attack. The Belorussian regime claimed there was a bomb on board the plane, while in reality none was found. On the other hand, a Byelorussian oppositionist and his girlfriend, who were among the passengers, got detained during the ‘security operation’. The whole affair turned into a diplomatic scandal, accusations of Belarus breaching international air laws, the suspension of flights through the Belarusian airspace linked with the suspension of operating permits for Belorussian national carrier Belavia as well as economic and person-targeted sanctions.
Was the diversion of the Ryanair plane by the Belarusian army in accordance with international law?
The paramount question surrounding the incident is whether the Belarusian state had a right to divert the passenger plane and command its landing in Minsk.
In legal terms, every state exercises sovereignty over its airspace, thus a civil plane using its airspace falls within its jurisdiction. According to Article 1 of the Convention on International Civil Aviation (the Chicago Convention), a state has “complete and exclusive sovereignty over the airspace above its territory”. Pursuant to Article 3 bis (b), a state is entitled to require landing at a designated airport of a civil aircraft flying above its territory only when the latter is flying “without authority” (which was not the case with the Ryanair flight), or “if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of this Convention”. In addition, under Article 5 of the Convention, contracting states agree that all aircraft not engaged in scheduled international air services are entitled to non-stop flights across their territory. However, Article 5 contains a reservation providing that any participating state reserves the right to require landing. In that regard, the action of redirecting a plane and indicating the airport for landing by the Belarussian authorities has strong legal underpinnings.
Nevertheless, operations of this calibre cannot be carried out without a compelling reason, as they would endanger the safety of civil aviation, alongside the comfort and trust of the passengers. As Jackson and Tzanakopoulos rightly point out, stopping a vehicle on land is a different and customary situation, while breaking the flow of an aircraft demands a solid reason. The Belarussian side argued that there was a bomb on board the plane, which was sufficient ground for taking the measure. Hence, the Belarusian action complied with international law norms, ergo Article 3 bis (b) of the Chicago Convention. The Belorussian side clarified that it possessed the information about the danger and forwarded it to the Ryanair crew. Aksamentov, director of the Institute of Air and Space Law AEROHELP, stated that the emergency landing occurred according to the rules, “even if the information about the mining of the plane did not come from the crew, but from some third party, including an anonymous one”.
On the other hand, there are indications that cast doubts on the official version provided by Belarus. First, why did they decide to divert the plane, which almost reached its destination in Vilnius to a further airport in Minsk? Second, had the operation be undertaken with the use of a military fighter or could it be simply carried out on land, upon reaching the final destination shortly? In that case, one may wonder if the operation was conducted with the principle of necessity and proportionality demanded by Appendix 2 of the Chicago Convention, stating that interception should be undertaken only as a last resort, but the Belarusian military jet took off immediately. This might have triggered fear in passengers, make the pilot nervous and put the whole plane at hazard. Thirdly, there are reports that Belorrusian KGB agents were on board, who followed the Belarusian oppositionist, asserted an emergency landing and disembarked in Minsk. In consequence, no explosives were found, but the opposition journalist and his girlfriend were captured. This may reveal a real motive for the instructed landing.
The incident should inevitably be investigated correctly, but if the presumptions of an orchestrated landing will confirm, Belarus may indeed be accused of breaching the respective provisions of the Chicago Convention, and, in fact, misusing it, which is proscribed by Article 4. If it turns out that Belarus had contracted agents who provided false information about the bomb as well as cooperated with the Belorussian KGB agents, it will be considered as an accomplice in the event and bear responsibility pursuant to the ILC Articles on State Responsibility. Belarus might also be accused of contravening the provisions of the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft (the Hague Convention 1970), which it joined in 1971, by virtue of not apprehending and punishing passengers (agents) who allegedly insisted on landing, and thus were considered as those attempting to take control over the flight in light of Article 1 (a) of the treaty. Furthermore, Belarus might be accused of violating Article 10 of the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (the Montreal Convention) because it did not take “all practicable measures” to prevent the commission of an offence outlined in Article 1(1)(e) of the Convention, that is, unlawful and intentional communication of false information (to the pilot by the Air Traffic Control), thereby “endangering the safety of an aircraft in flight”. Yet, in both cases, the Belarussian state would be behind and thus the question of immunity ratione materiae may arise.
International organizations and states voiced their concerns about the potential violation of international law by Belarus. The ICAO claimed that the forced landing “could be in breach of the Chicago Convention on International Civil Aviation”, while the NATO Secretary-General stated that grounding of the flight constitutes a “serious and dangerous incident which requires international investigation”. The majority of the Western politicians were more concrete about the breach and the ensuing sanctions. The EU Commission President Ursula von der Leyen described the incident as “utterly unacceptable”, stating that “any violation of international air transport rules must bear consequences”. Latvian Foreign Minister, Edgars Rinkēvičs, referred to the incident as “contrary to international law” and said that the reaction should be “strong and effective”. The tendency of the Western states towards a harsher language was repeated at the UN Security Council closed-door meeting on Belarus called for 26 May. In a letter, six members (Estonia, France, Ireland, Norway, Great Britain and the United States) underlined that the interception of the Ryanair flight was “a blatant attack on international civilian aviation safety and European security.” The fact, that the remaining members of the Security Council (India, Russia, China, Kenya, Mexico, Niger, Saint Vincent and the Grenadines, Tunisia and Viet Nam) did not sign reflects the political colour of the incident, described in the second part of this post.
The card Belarus did not want to play
Belarusian official stance is that it acted in accordance with international air law while performing its action of grounding the passenger plane. President Lukashenko while speaking to the parliament on 26 of May revealed that the message about the bomb was communicated by the Belarus Air Traffic Control originated in Switzerland and that the military jet did not in any way force the Ryanair plane, and it was sent for security reasons only, so that the potential explosion does not affect people on the ground and premises (since, as he claimed, they could not do much about the onboard passengers). In a nutshell, the possibility of a purported terrorist attack justified the operation.
Assuming that it is just a cover for Belorus’s genuine intentions – arresting the opposition figure – as voiced by the Western world, it would be interesting to ponder over another possibility for justifying the action, which Belarus did not want to initiate, namely the conservative perception of sovereignty. This might have triggered a lesser backlash by the Western leaders, who had felt additionally irritated by the attempted deception manoeuvre regarding the bomb on board.
Belarus is known for its rather Hegelian approach to sovereignty, in which a state has considerable control of its citizens and territory and where people enjoy fewer freedoms or pardons. There is no need to mention that Belarus is the only European state that is not a member of the Council of Europe and thus a non-party to the European Convention on Human Rights for the main reason that it still allows capital punishment. In states like Belarus, plotting or treachery against the government is considered an unfriendly act engendering the most severe consequences. Mr Protasevich since November 2020 figures on the government’s list alongside 700 people as an “individual involved in terrorist activities” and faces charges on at least three criminal courts. If convicted of terrorism, he could face the death penalty. But if one looks a few decades behind, the same will recall how strictly espionage was treated in the whole of Europe and how draconian punishments could be expected for it. As a matter of fact, many Western states still have constitutionally envisaged high penalties for espionage or serious deeds against the interest of a state, which include the attempt at overthrowing the government. Yet, they don’t observe them in a literal way and draw a considerable distinction between peaceful protests and attempts at overthrowing the government, in stark contrast to Belarus. With that in mind, the arrest of an “enemy of the state” could have been an expected act in Belarus, even if that involved a forceful landing of a passenger plane.
One could easily imagine a comparable action of the US forces in case a wanted person would found himself within the US jurisdiction. Several “questionable” examples involving the display of sovereign powers could be furnished to this end. First, the arrest of Meng Wanzhou, deputy board chair at Huawei, in 2018 at the Vancouver International Airport, which, according to her, was a plotted action of the US and Canadian agencies. Second, in 2013, a Bolivian president’s plane was grounded in Vienna under the suspicion that Edward Snowden, sought by the US for revealing a number of secret documents from the US National Security Agency, was among the passengers. Besides, there is a plethora of incidents related to states’ non-consensual operations in other states’ territories under the pretext of protecting vital national interests linked to the arrest or killing of wanted people, which is a much greater breach of international law. This was the case of a) the arrest of Adolf Eichmann by the Mossad in Argentina in 1960, which ended in a UN Security Council resolution 138 condemning Israeli action; b) the interception of the EgyptAir aeroplane by the US Grumman F-14 Tomcat fighters in 1985 in order to arrest terrorists who had previously killed the US citizen onboard of the Achille Lauro, which caused big sovereignty controversy between Italy and the US, since the action took place in Sicily; c) the killing of Osama bin Landen by the US forces in Pakistan in 2001, which was conducted in breach of Pakistani territorial integrity.