22 Jun Forced Landing of a Passenger Plane: Law and Politics Behind the Ryanair 4978 Flight from Athens to Vilnius: Part II
[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 aftermath of the incident: Proceedings before national and international bodies and politically charged sanctions
The Ryanair forced landing incident provoked both questions of potential Belarus’s responsibility under national and international laws and ways of executing it. In addition, a debate over the sanctions emerged, in particular, whether they were taken not prematurely (before establishing the actual violation by a judicial or para-judicial body) and whether they were not too severe.
The ICAO’s probe
To start with the first set of issues, there are a few possible ways of examining the incident and bringing to justice those responsible. The foremost avenue is obviously within the organization concerned with civil aviation, namely the International Civil Aviation Organization.
In accordance with Article 54 of this Chicago Convention, the incident, upon referral by any contracting State, must be clarified by the ICAO Council – one of the governing bodies of this structure (the second is the Assembly). The Council is obliged to ask the Belarusian government to make a statement, and then report to the Assembly about this incident and its reasons, and then, if the ICAO Assembly sees it fit, it can impose sanctions on Belarus, issue a reprimand or make some other decision. Recalling Article 55 (e) of the Chicago Convention, the ICAO’s Council decided at its urgent videoconference meeting on 27 of May to undertake a fact-finding investigation of this event, and in this connection requested the ICAO Secretariat to prepare an interim report to the Council. Belarusian Director of the Aviation Department, who participated in the meeting, “urged to conduct a fact-finding investigation in accordance with the Chicago Convention and to refrain from making conclusions until such investigation is complete”.
Nevertheless, Belarus, in order to defend its statement on a suspected bomb, will have to prove it, provide specific data: what kind of information it was, from whom it came. To say that they got it from the special services would not be enough. And if Belarus has nothing to put on the table to confirm its version, it will have a hard time. According to the German air law expert, Elmar Giemulla, it is very likely that the Assembly will issue a warning to Belarus that in case of a repetition of such an incident, the country will be excluded from ICAO. It would be rash on the part of the Belarusian government not to listen to this, because if it happens a second time, they will no longer have a chance. And the exclusion from ICAO means that it will be extremely difficult for the country to carry out international air transportation.
National law enforcement institutions are likewise capable of launching the investigation into the incident. In Belarus, the Investigative Committee branch of Minsk’s Oktyabrsky District has launched a criminal case into “a knowingly false report about danger in line with part 1, Article 340 of the Criminal Code”. In Poland, legal proceedings have been initiated by the Prosecutor General of Poland under Articles 166 (suspicion of a crime) and 189 (the use of deception and threats to take control of an aircraft and imprisonment) of the Polish penal code. The Lithuanian public prosecutor’s office opened a pre-trial investigation under Article 251 “Hijacking an Aircraft” and Article 100 “Treatment of Persons Prohibited under International Law” of the Lithuanian criminal code. Furthermore, the US Federal Bureau of Investigation (FBI) leads an independent enquiry, while closely liaising with the Polish and Lithuanian authorities, given the US passengers were present on board. The multiplicity of currently conducted national probes, as well as those to be potentially initiated by the interested parties (the flight commenced in Greece, the company is Irish), only seemingly facilitates the investigation. In reality, criminal jurisdiction issue will undoubtedly arise among all involved, and proper communication, including with the ICAO and Interpol will be required.
Avenues for international litigation
In addition to solving the dispute by the ICAO bodies, unsatisfied parties may, pursuant to Article 84 of the Chicago Convention, forward the case to an ad hoc arbitral tribunal agreed upon with the other parties or to the ICJ. This would, of course, pertain exclusively to the breach of the aforementioned Article 3bis (b) of the Chicago Convention. In reference to utilizing the ICJ in the instance of providing false information by the Air Traffic Control, prohibited by Article 1(1)(e) of the Montreal Convention linked to the positive obligation of not providing such information under Article 10 (for instance, taking due measures to verify it), the avenue is ipso jure closed for other Parties, as Belarus placed a reservation to Article 14 of the Montreal Convention, allowing for use of the adjudication in case of potential disagreements. A further possibility of legal action arises from the violation of the rights of the flag state of the aircraft (in this case Poland), who should have been asked for permission or extradition of the sought people by the Belorussian state, however, it seems unlikely due to form of security operation.
(Dis)proportionally severe sanctions
Western countries, disinclined to be entangled in rather long and perhaps even uncertain legal processes, harried with unilateral (or alliance) sanctions. However, this could be perceived as arbitrary administration of law, given that neither national nor international investigations have not been completed. Many EU countries decided to close their airspace to the Belorussian aero transport, which was evidenced on 26 of May when Belavia plane from Minsk to Barcelona turned back just before reaching Poland. Forbidding the national carrier to enter another state’s airspace must be preceded by withdrawing the consent to fly by suspension of a bilateral or multilateral agreement, yet usually by issuing NOTAM. Closing the airspace is naturally a sovereign decision of states, as there is no similarity to the law of sea’s “free passage” principle, yet can be considered as an act deteriorating international relations. Still, the Chicago Convention in Article 87 foresees a penalty in the form of not allowing the operation of an airline of a contracting State in the airspace of other states only if the airline concerned is not conforming to a final decision of the Council. In 2018, the ICJ ruled that the ICAO is a responsible organization for regulating civil air traffic over contracting States and backed Qatar’s endeavour to declare the blockage of its airspace by the surrounding Arab states contrary to international law and to demand financial compensation.
A further set of sanctions relates to encouraging EU carriers not to use the Belorussian airspace, which may have devastating effects for the economy given that Belarus receives income from airlines that enter its airspace of up to €70,000 (£60,000) each day. In addition, a three-billion-euro EU investment package for Belarus was frozen in connection to the incident and the US re-imposed full blocking sanctions against nine Belarusian state-owned enterprises previously granted relief under a series of General Licenses by the Treasury Department. All in all, the economic impact of the sanctions is great, but the sanctions’ effects on human rights, in particular, of the Byelorussians, is significant too. It might be argued that the inflicted sanctions are disproportionate to the scale of the incident and were determined largely by the pursued geopolitical agenda of bringing down the Lukashenko regime. In other words, the primary reason for such severe sanctions is rather the repression of the opposition than merely the air incident (the pane, after all, continued its flight to Vilnius). Three main arguments substantiate this thesis a) the history of sanctions imposed on the Lukashenko regime for the “mistreatment” of the opposition, b) the very political statements, which make it clear that the geopolitical agenda is at stake, and c) the inaction of the Western world in more grave situations, exposing larger violations of human rights.
Regarding the first argument, it is evident that whenever opposition activists are targeted in Belarus, an immediate harsh reaction follows from the Western world. In 2004, an embargo on arms was imposed by the EU as a result of the disappearance of two opposition politicians. In 2020, a travel ban and asset freeze against 88 individuals and seven organisations were instituted by the EU in relation to the “intimidation of peaceful demonstrators” and allegedly forged presidential elections.
With reference to the second argument, the initial harsh language of unprecedented act of “state terrorism” or effective “aviation piracy, state sponsored” was soon supplemented with the accusations of harassments of journalists and “shocking assault on human rights and freedom of the press”. The EU Council’s conclusions of 24 May not only “strongly condemn the forced landing of a Ryanair flight in Minsk, Belarus, on 23 May 2021 endangering aviation safety” but also “demand the immediate release of Raman Pratasevich” (co-founder of the opposition Nexta channel on Telegram, used for mobilising street protests) and his girlfriend Sofia Sapega. The statement by the White House Press Secretary Jen Psaki of 28 of May is clothed in an akin political accent as it, apart from calling for a “credible international investigation into the events of May 23”, demands “immediately release all political prisoners, and enter into a comprehensive and genuine political dialogue with the leaders of the democratic opposition and civil society groups that leads to the conduct of free and fair Presidential elections under OSCE auspices and monitoring”.
As per the third argument, that is, the incomparably heighten reaction of the Western leaders to the current incident than to other even more serious occurrences, one could mention the downing of a Ukrainian commercial airliner by Iran in 2020, which went largely unsanctioned and unremedied, as observed by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. In the same vein, the Belarusian incident brought about considerably aggrandized consequences for the regime than to those responsible for the recent Palestinian-Israeli conflict, which involved bloodshed and massive infrastructure destructions.
Having said that, although the safety and comfort of the passengers of the Ryaianr flight 4978 could have been important for the Western leaders as well as that the fact that similar incidents (including justifications) do not repeat in other parts of the world, it is the democratic values of the freedom of speech, media and thought, which greatly fit within the agenda of ousting the “undemocratic” Lukashenko regime, that underpin the sanctions policy. Thus, the sanctions could be considered disproportionate to the incident, yet proportionate to broader politically envisaged goals. The question, however, remains how effective the sanction policy will be in the long run, what will be the response of Russia, and whether in the end, it will lead to the desired or contra effects.
The situation surrounding the incident of an “emergency” landing of the Ryanair flight 4978 in Minsk on 23 of May 2021 has more political than legal overtones. It could be inferred from the most plausible motive for grounding the plane by the Belorussian government as well as from the reaction of the Western world thereto. International law, on its side, was used as an instrument for justifying and denouncing the grounding, which nota bene, is generally the case when a scandal of such dimensions erupts. From what we know so far, the whole action was most likely politically motivated – it is hard to believe that Belorus would deliberately place on itself the burden of a security operation, especially that the plane almost reached its destination in Lithuania. In that regard, Belorus breached international law, in particular the Montreal Convention. It, however, remains debatable whether the action of grounding the plane apart from being an uncommon or unfriendly act would also be illegal, had Belarus not provided purportedly false information on the bomb, but explained its action in terms of arresting the fugitive sought for serious offences, who found himself within the confines of state’s criminal jurisdiction. We seem to lack a firm legal stance on that and such clarification would be more than welcome on this occasion from the ICAO Council or later by an authoritative body engaged with international law. This is essential for the unencumbered air transit, security of the passengers, friendship and understanding among nations and, most notably, order in international civil aviation. Potential future litigation of the incident will undoubtedly be cumbersome due to the limited legal avenues and complicated fact-checking task. Irrespective of the potential litigation, the incident will be used by Belorus and the West to carry out their political agendas. For Belorus, it means the maintenance of power by all available means, mainly based on suppressing the opposition. For the West, it means the continuation of toppling the Lukashenko regime, by imposing very severe sanctions.