23 Feb Pathways to Justice for the Downing of Flight PS752
[Amirali Alavi is the Chair of the Association of Families of Flight PS752 Victims’ Legal Committee. Irwin Cotler is Chair of the Raoul Wallenberg Centre for Human Rights (RWCHR), an Emeritus Professor of Law at McGill University, and former Justice Minister and Attorney General of Canada. Yonah Diamond is an international human rights lawyer with the RWCHR.]
On January 8, the spokesperson of the Association of Families of Flight PS752 Victims, Hamed Esmaeilion, marked the painful second annual commemoration of the downing of flight PS752 with a clarion call: “What we fight for and what unites us is justice, justice, justice.”
In the early hours of January 8, 2020, Iran carried out missile strikes against US bases in Iraq in retaliation for the assassination of Qassem Soleimani, head of the Islamic Revolutionary Guard Corps’ (IRGC) Quds Force. The IRGC expected US retaliation within minutes and therefore added air defense systems to the Tehran vicinity. Despite the immediate risks, Iran kept its airspace open to civilian aircraft. Hours later, an IRGC Air Defense Unit (ADU) stationed near Imam Khomeini Airport (IKA) fired two missiles approximately 30 seconds apart at flight PS752 three minutes after take-off, claiming the lives of all 176 passengers and an unborn child, and bringing the hostilities to a halt.
In the aftermath, Iran engaged in an overtly systematic cover-up. Within hours, Iranian authorities bulldozed forensic evidence at the site long before international investigators arrived, in contravention of the requirements set out in annex 13 of the Chicago Convention (“Aircraft Accident and Incident Investigation”). Authorities left the site open to officials to loot and even burn passengers’ valuables, painted over evidence of blood-stained walls, and repurposed the site for housing and public parks (§ 6.1.1, 6.4). An independent investigation, documented by the families’ Association, found that passengers’ electronic devices were tampered with after the crash, by damaging or replacing memory components—suggesting an attempt to destroy incriminating evidence recorded on board.
For three days following the downing, Iranian authorities repeatedly denied missiles brought down the plane, despite the available videos, photos, and live testimony of a pilot who witnessed the strike. The day after the downing, the head of Iran’s Civil Aviation Organization even asserted the missile cause was “scientifically impossible.” When Ukrainian investigators alluded to evidence suggesting a missile attack, Iran threatened to restrict the Ukrainian team’s access to the evidence. Importantly, Iran withheld the black boxes for nearly seven months– jeopardizing the integrity of the investigation in further breach of Annex 13 of the Chicago Convention– despite its pledge to send them abroad for read-out in March 2020, only to release partial data in late July 2020.
Iran simultaneously launched an aggressive campaign to silence the victims’ families, torturing, threatening, and even holding onto remains to coerce their support or submission to the government. Security forces violently suppressed peaceful protests, including mere candle-lit vigils, arresting nearly 100 and subjecting some to physical and sexual abuse.
After its initial story failed, Iran attempted to propagate the narrative that the downing was due to the “human error” of an ADU operator who was qualified by nearly a decade of experience with such ADUs. Given the facts of the case and Iran’s cover-up, however, the claim of such an extremely implausible series of events has been the subject of deep skepticism. Iran’s claims rest on a combination of highly suspect factors converging at the same time. First, Iran claims that the experienced ADU operator failed to realign the system after a 105-degree radar misalignment was caused by a tactical movement over an hour before PS752 took off— during which time at least four other flights departed directly within the ADU’s detection range and with similar flight patterns to PS752 (§ 5.10.6). If misalignment truly occurred, the operator would have either engaged with these suspicious targets approaching Tehran or have had four opportunities to fix the misalignment before firing upon PS752. Moreover, the specific ADU in question (TOR-M1) is capable of recalibrating itself after every movement based on the magnetic north, and relies on a dual radar system for missile guidance that likely would have misdirected the missile if the first were misaligned. Iran’s second claim is that the ADU misidentified PS752 for a hostile target, despite the fact that a Boeing 737-800 (PS752) passenger plane and a cruise missile are unmistakably distinct in every respect, including altitude, speed, size, and flight profile (§ 5.2). A Boeing 737-800 is significantly larger, flies at approximately half the speed, and would appear vastly different on a TOR-M1 radar than an average cruise missile (about a tenfold difference in Radar Cross Section § 4.3.3). At the time the ADU first shot at PS752, the plane was approximately 1,273 meters above ground, whereas an average cruise missile flies at below 150 meters, according to military experts (§ 5.2). Moreover, the ADU has a backup automated system that identifies passenger planes based on signals received from commercial planes (Appendix H). Iran’s third claim is that the ADU operator failed to communicate with the command center due to a “momentary glitch” in the system, even though the ADU received a successful communication from its command to switch from standby to operation mode (p. 75) five minutes before PS752 took off. Finally, Iran claims that the operator defied military orders by firing at that time, as Iran’s final report states that the ADU was not “responsible for monitoring the targets; it was just obliged to perform the actions planned within the command hierarchy only if a target was assigned to them from the command center” (p. 120). In other words, Iran has sought to pin all responsibility on a single rogue operator’s actions against military orders.
Iran has consistently tried to close this file under a report conducted by its Aircraft Accident Investigation Board, which Iran deems “final” in its international representations, but which fails to account for the decision-making and human responsibility behind the downing, and nominal offers of compensation. Iran’s “final report,” however, only explains how missiles were the technical cause of the downing, while simply accepting the military’s account of an “unforeseen chain of events”— a misalignment, defective communication, misidentification of the target as hostile, and firing of the missiles, in defiance of military procedure.
The implausibility of these claims, in combination with obfuscations, cover-ups, delays, and harassments have led UN experts to conclude that Iran’s explanations have been “contrived to mislead and bewilder.”
Iran brought indictments on the basis of these claims against a few low-level officials who are charged with negligence, recklessness, failure to observe military protocols, and being party to manslaughter, thereby shielding the senior officials responsible for the downing from accountability, and ultimately protecting the culture of impunity that persists today. However, we know that a series of calculated decisions, implicating criminal responsibility, were made by those at the very top.
The order to keep the airspace open while expecting an aerial counterattack was made at the highest levels, overriding internal requests for closure, as confirmed by Iran’s former Foreign Minister, Javad Zarif, who characterized the deliberate decision as a “technical” and “political” one. Moreover, in anticipation of US retaliation, Iran surrounded (§ 5.6) Tehran with ADUs, forming a methodical defense ring, including next to IKA, unbeknownst to the innocent passengers of flight PS752. Authorities refused to even limit air traffic that day or issue a Notice to Airmen (NOTAM) regarding their military activity in the region. In fact, flights resumed uninterrupted, with striking similarity to preceding weeks. By contrast, the US issued a NOTAM nearly four hours before PS752 departed, prohibiting all flights in the area— an advisory Iran refused to communicate to PS752 and other flights that day.
Still, many Iranian and international authorities have suggested a more sinister, deliberate plan. A former senior Iranian official concluded that “they used the plane as a human shield.” In a tweet that has since been deleted, President Rouhani’s former advisor disclosed that in a private meeting with the IRGC the day of the downing it was revealed that “the operator did not make a mistake.” A Canadian court made a finding of fact and conclusion of law that the shootdown was an “intentional act of terrorism,” particularly significant as 55 Canadian citizens and 30 permanent residents were among the 176 victims killed. Ukraine’s National Defense and Security Council recently expressed their understanding that it was a premeditated attack that “must have been an order from senior management.” Ukraine’s former deputy prosecutor general further indicated that the pre-trial investigation is considering terrorism and likely war crimes.
What Iran attempted to characterize as a matter of civil negligence evidently involves serious criminal implications—ranging from human shielding at best to an intentional downing of a commercial jetliner. We will outline these modes of criminal liability based on what we know. Iran is a signatory, though not a State party, to the Rome Statute. We will therefore primarily consider the parameters of war crimes and terrorism under the Geneva Conventions, customary international law, and domestic law where applicable.
The preliminary element required for classifying the downing as a war crime is whether an armed conflict existed at the time. The threshold for such a conclusion is low. The commentary to Article II of the Geneva Conventions defines armed conflict as “[a]ny difference arising between two States and leading to the intervention of members of the armed forces.” In this case, there was a dispute around the assassination of Soleimani, which led to the intervention of armed forces.
The most relevant war crimes involved in the downing are the attacking of civilians, attacking of civilian objects, and using the presence of civilians as human shields. At present, we do not have access to sufficient information to determine the level of planning involved within the chain of command or whether direct orders were given to the ADU operator to shoot down PS752. However, the most generous reading of the facts demonstrates a level of recklessness amounting to war crimes under customary international law.
According to the authoritative study of the International Committee of the Red Cross (ICRC) on Customary International Humanitarian Law rules, the required mental element for war crimes under “international case law… are violations that are committed wilfully, i.e. either intentionally (dolus directus) or recklessly (dolus eventualis).” The ICTY, in the Galic Trial Judgment, considered the mental element required for wilfully attacking civilians and determined that “the notion of ‘wilfully’ incorporates the concept of recklessness.” As support, the Trial Chamber cites the ICRC’s commentary on “wilfully,” the mens rea required, which “encompasses the concepts of ‘wrongful intent’ or ‘recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening.” The Trial Chamber in the Strugar case similarly cites the “acceptance of an indirect intent as sufficient to establish the necessary mens rea for murder and wilful killing.” By the time the ICTY delivered its trial judgment in the Perišić case, the recklessness mens rea for attacking civilians became a matter of settled law in the jurisprudence. The ICTY Prosecution in Simic and Others has even suggested that recklessness encompasses a level of negligence, or “wilful neglect that reaches the level of gross criminal negligence.” (ICTY, The Prosecutor’s Pre-trial Brief, Simic et. al., IT-95-9-PT, p. 35)
In addition, there are reasonable grounds to believe the downing of PS752 constitutes the war crime of using human shields. The ICC’s elements of the war crime of using protected persons as shields, in addition to the armed conflict context and perpetrator’s knowledge of such, includes taking “advantage of the location of one or more civilians… [and] intend[ing] to shield a military objective from attack or shield, favour or impede military operations.” In this case, Iran deliberately stationed additional ADUs near an international airport and escalated their alertness to the highest levels, or a “war situation,” in anticipation of a US counterattack. Indeed, the IRGC Commander-in-Chief, Hossein Salami, asserted that the IRGC was expecting US counterattacks across Iran, including one suspected against the Supreme Leader’s residence (5.1). In this scenario, Iran embedded artillery among civilians with their targets aimed at an airspace akin to a safe zone amidst a war, using the presence of civilian aircraft to shield military operations.
Even if the ADU operator acted alone or “erred” in shooting down the plane, there are still grounds to bring charges against the senior officials with effective command and control over the ADU operator under the framework of command responsibility. The ICTY Appeal has held that an order made with “the awareness of the substantial likelihood that a crime will be committed in the execution of that order has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering (para. 42).”
While only a comprehensive, transparent investigation will uncover the internal orders given and the senior officials’ level of knowledge that day, there is significant evidence that high-level officials laid the groundwork by giving orders to strike against an imminent US attack. Following the downing, Amir Ali Hajizadeh, Commander of the IRGC’s Aerospace Force, announced that Iran’s air defense systems were ordered to engage in “war conditions” and that “the Comprehensive Network informed these systems, including the one that got engaged, that cruise missiles are launched towards the country… and on their way.” Another ADU operator on duty that day attested to receiving the same information, and that their commander announced that they were in a 3-C situation (war situation), which required closure of the airspace (Appendix G).
There is also evidence demonstrating Iran’s responsibility for the war crimes of pillaging, or appropriating property without the victims’ consent, and despoiling the dead, or committing “outrages upon personal dignity,” which includes the dignity of those who perished (ICC’s Elements of Crimes FN 49). Immediately following the crash, Iran bulldozed over dead bodies on site. Iranian officials and the public looted and even burned passengers’ valuables at the site. The authorities further barred families from seeing the bodies of their loved ones before burial and denied requests for identification documentation. In some cases, Iran repatriated body parts belonging to victims other than the families’ loved ones, based on faulty DNA testing (§6.1.2). These crimes not only severely degraded the victims’ dignity, but also undermined the process of identifying the bodies and the overall investigation.
In the alternative, there are also grounds to prosecute the shootdown as an act of terrorism, as the Ontario superior court held in the civil context. The Canadian Criminal Code defines terrorism under two distinct categories. One includes a traditionally understood definition of terrorist activity that is committed “for a political, religious or ideological purpose… with the intention of intimidating the public…” and that intentionally kills. endangers life or causes serious risk to the public. The second, however, includes a list of crimes implementing international conventions, including acts endangering aircraft, violence against internationally protected persons, and hostage-taking. Within this category, the very crime of “caus[ing] damage to an aircraft in service that renders the aircraft incapable of flight” is considered terrorist activity. In other words, the act of shooting the plane with the intention of causing damage that would render it incapable of flight would amount to terrorism under the Canadian legal definition of terrorism.
Interestingly, under Iranian law, there is a presumed intentionality in this case, as one legal scholar recently pointed out in an article about the downing of PS752: “in homicide and crimes committed by the firing of a gun or a missile, the default assumption is on intentional murder, and it is the culprit who would need to prove that the crime was unintentional.”
This analysis of the crimes involved is only based on what we know at present. Only a complete and independent investigation into Iran’s internal military plans, discussions, and orders that caused the downing will reveal the full extent of criminality.
It is therefore incumbent on all concerned States to take the following actionable steps. First, the affected countries should form a Joint Investigation Team (JIT), as was done to investigate the downing of MH17 spearheaded by the Netherlands, Australia, Belgium, Malaysia, and Ukraine. The fruits of that investigation are now coming to fruition, as Dutch prosecutors expect a verdict this year. A similar Joint PS752 Investigation Team would broaden the scope of the international investigation and forums for eventual prosecution, rather than having countries work in silos. Second, countries must demand from Iranian counterparts the disclosure of basic evidence that would shed light on what happened that day, which should particularly be a precondition for the P5+1 as the nuclear talks enter the “final stage.” Iran continues to block access to the audio recording from the ADU that shot down the plane, the uncensored PS752 black boxes, footage from the runway, the take-off clearance transcript, and access to key witnesses. Third, countries should directly appeal to the public to come forward with any relevant information in exchange for rewards. Fourth, victims’ countries must open criminal investigations into terrorism and war crimes, as Ukraine has already initiated. Fourth, Ukraine should work with the International Criminal Court to accept jurisdiction over atrocity crimes committed against the Ukrainian registered plane. Fifth, the UN should mandate an investigative mechanism into the downing. Sixth, affected countries should seek accountability at the International Civil Aviation Organization Council and International Court of Justice (ICJ)— forums which Iran engaged with in the past— for breaches of aviation law without delay. Seventh, countries should impose Global Magnitsky sanctions on the officials responsible for the downing and repression in its aftermath. Eighth, countries should join the Safer Skies Initiative to protect commercial airlines in the future. And lastly, countries must provide more robust protection and support for families abroad who face transnational intimidation and repression by Iranian officials.
The long road to justice is not easy, but we must at least follow the roadmap available to us.
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