Aerial Incident of 25 December 2024: Issues of Russian Responsibility

[Doniyor Mutalov is a Research Assistant at the Center for International Law and Governance, where he works with Professor Sebastián Mantilla Blanco. He holds an M.A. in Law and Diplomacy from The Fletcher School at Tufts University and was awarded the Leo Gross Prize for excellence in law studies]

Facts

On December 25, 2024, Azerbaijan Airlines Flight 8243, an Embraer 190 with 67 people aboard, was shot down by the Russian Armed Forces while flying over the Chechnya region of Russia. The plane then crashed in Aktau, Kazakhstan, killing 38 passengers and 2 crew members. This incident sparked significant outrage in Azerbaijan and marked a new case of resorting to force against civilian aircraft. Russia initially denied the attack and tried to cover up the incident; for example, the Russian Federal Air Transport Agency claimed that a bird strike caused the emergency. The initial probes found signs of “physical and technical external interference”. For instance, electronic jamming systems disabled the plane’s GPS, and investigators confirmed the presence of external objects at the crash site, likely shrapnel from a Russian missile.

Russia has so far refused to acknowledge responsibility, failed to punish those responsible, and has not provided compensation for victims and for the destroyed aircraft. This post will focus on the specialized legal regime, specifically international air law applicable to the incident at hand. It will assess Russia’s state responsibility arising from the downing of a civilian aircraft, and legal consequences therefrom.

This post focuses on a single legal regime that may be invoked in assessing the legality of the use of force against civilian aircraft: the 1944 Convention on International Civil Aviation (the “Chicago Convention”). It does not aim to provide an all-encompassing legal analysis; therefore, it excludes issues arising from the use of force between UN member states under Article 2(4) of the UN Charter and its customary corollary. Likewise, an analysis of breaches of the right to life and other human rights obligations is beyond the scope of this blog post, but; suffice it to say, customary international law and ICCPR are binding on Russia, notwithstanding its denunciation of the European Convention on Human Rights.

Chicago Convention

The Chicago Convention is a constitutive instrument for the International Civil Aviation Organization (“ICAO”) and establishes a key pillar of modern air navigation. The Convention starts by reiterating a basic tenet of international law that every state has complete and exclusive sovereignty over the airspace above its territory (Art.1), and that all foreign ‘state aircraft’ owned and operated exclusively by states other than the territorial state, in cognizance of state sovereignty, shall obtain prior authorization or permission to overfly airspace. (Art.3[c]). However, in certain respects, the Chicago Convention does limit state freedom, for instance, the national security exception (Art. 9), providing for no-fly zones over some areas, is allowable only to “a reasonable extent and location so as not to interfere unnecessarily with air navigation”. Furthermore, following the incident involving the downing of Korean Air Lines Flight 007, which strayed off navigational course into the Soviet Union, contracting parties in 1984 agreed to forgo resort to any force against civil aircraft in flight for any purposes whatsoever, and prohibited endangering the lives of passengers in the event of interception (Art. 3 bis). That means, according to current lex lata rules, using any force against civilian aircraft, even if an airplane intrudes into a State’s airspace or is thought to be used for terrorist purposes, would unambiguously constitute a prima facie breach of the rule.

As an aside, Article 3 bis can be viewed as either codifying the existing customary rule or having crystallized into a customary rule since 1984 or otherwise binding on all states. Practice of international organizations is telling in that regard, the UN Security Council (S/RES/2166) condemning the MH17 shootdown, another instance of an attack against civilian aircraft, “demanded that all states and other actors refrain from acts of violence against civilian aircraft”. The operative verb “demand” has been typically construed to incur legal obligations for UN member states and could constitute a binding resolution even without a Chapter VII reference (Bellinger). As previously noted by Batuhan Betin, the language was much stronger in (S/RES/1069), where the Security Council censured ‘the use of weapons against civil aircraft in flight as being incompatible with … the rules of customary international law as codified in article 3 bis of the Chicago Convention’. This finding is relevant for more than 29 ICAO states that have not yet accepted Article 3 bis, including the United States.

However, both Russia and Azerbaijan are contracting parties to the Chicago Convention and have ratified the relevant non-attack amendment in 1998 and 2000, respectively. Moreover, the incident is unambiguously attributable to the Russian Federation, as air defense systems are under the direct control of the Russian Armed Forces and, therefore, all their acts are automatically imputable to the State, even if soldiers contravened their duties ((DRC v Uganda, para. 213-214), see also Art. 91 AP I, Rule 149 of Customary IHL Study). The act would be attributable to Russia even if the missiles were fired by the local Chechen militia force, rather than the regular armed forces of Russia, as agents of each territorial unit of the state still constitute a State organ for purposes of international law ((Germany v United States, para. 28, and Mexico v United States, para. 76-77)). Hence, both elements of an internationally wrongful act are met.

Dispute Resolution

Azerbaijan has recently indicated that it may bring a suit against Russia for the shootdown of AZAL Flight 8243. It will most likely be proceedings under the Chicago Convention. The Convention provides a multi-tiered dispute resolution clause regarding ‘any disagreement’ between contracting states relating to the ‘interpretation or application of this Convention’ (Art. 84). Also known as an “escalation clause,” it requires parties first to negotiate, then turn to ICAO bodies, and only as a last resort, seek judicial settlement.

The International Court of Justice (ICJ), in the context of a similar compromissory clause, ruled that for a negotiation precondition to be satisfied, there must be a:

“genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute”.

(Georgia v Russia, para. 157)

Furthermore, the negotiation requirement will be satisfied only if good-faith negotiations fail or attempts to negotiate are futile or otherwise deadlocked (Belgium v Senegal, para. 58-59). Additionally, evidence of unsuccessful negotiations is required by Art. 2(g) of the ICAO Rules on the Settlement of Differences, adopted in 1957 and applicable to disputes before the ICAO bodies.

Regarding negotiations, the President of Azerbaijan stated that they haven’t received any meaningful response or reaction from Russia, despite seven months having passed since the incident. He further lamented that mutual legal assistance requests get almost robotic replies: “the investigation continues.” Therefore, it is reasonable to conclude that the prerequisite for negotiation is satisfied in the present case, and Azerbaijan is entitled to escalate the matter. As a next step, an aggrieved state may turn to the ICAO Council, the organization’s executive body comprising 36 member states, which adopts decisions by simple majority.

Azerbaijan is not currently a member of the Council but can be elected for the next cycle. Russia has previously been expelled from its permanent seat on the ICAO Council for illegally confiscating airplanes, losing its status as a “state of chief importance in air transport.” In any event, Russia would not have the right to vote, as the Convention bars voting by any member on any dispute to which it is a party, a procedure widely respected and recognized, unlike the similar limitation imposed by UN Charter Art. 27(3), that is arguably honored more in breach than in observance.

The most egregious example, perhaps, is the US vetoing a draft UN Security Council resolution by Nicaragua in 1986, which called for US compliance with the famed ICJ judgment, finding the US is responsible for multiple breaches of international law in and around Nicaragua. However narrow one may interpret the notion of the “party to a dispute”, there’s no question that the US was a contentious “party to a dispute” at hand and hence should have abstained during the vote pursuant to Art. 27(3).

The ICAO Council recently concluded its first case on the merits in 80 years, ruling that Russia violated the ban on using weapons against aircraft by causing the destruction of a Malaysian airliner in 2014, most likely with a Buk surface-to-air missile fired by Russian separatists in Ukraine. The case was filed by Australia and the Netherlands in 2022. Similar proceedings are likely to be brought by Azerbaijan against Russia, given that the dispute’s subject matter is almost identical and the dynamics at the Council, as represented by the sovereign states, are favorable to Azerbaijan.

In light of the structure and procedure, ICJ has previously determined that the ICAO Council’s dispute resolution function “does not transform [it] into a judicial institution in the proper sense of the term” (Bahrain et al. v Qatar (I), para. 60)

The decision of the ICAO Council may also be appealed and reviewed by a competent judicial body, either the International Court of Justice or an arbitration panel, within 60 days of the date of the ICAO Council’s decision. If Azerbaijan is dissatisfied with the Council’s decision on compensation or the outcome, it may appeal to the ICJ or an ad hoc arbitration panel. The same option would be open to Russia. On September 18, 2025, Russia appealed the ICAO’s decision regarding MH17 to the ICJ. The timeline is surprising, given that an appeal must be notified to the ICAO within 60 days of receipt of the notification. The question remains whether that notification is a jurisdictional bar or a procedural requirement. Interestingly, ICAO first announced its decision on 12 May 2025, 130 days before the Russian lawsuit.

Defenses

Russian officials may claim that the plane was misidentified during the heightened period of military tension and drone attacks. Russia has implemented a closed-skies protocol to combat Ukrainian drones, and a plane was mistaken for a drone during that period. However, the black box revealed that the AZAL plane was damaged several minutes before the airspace was shut down. Moreover, according to ICAO, the offense would attach irrespective of modalities of intent or negligence, and thus, mens rea is an irrelevant category when assessing state responsibility for breaching Article 3 bis. In other branches of international law, such as IHL and IHRL, a mistake of fact may be considered a reasonable defense; however, this is not discussed in this post.

Ultimately, even if we accept, for the sake of argument, that an honest and reasonable mistake or a mistake of fact led to the shootdown of Flight 8243, it will hardly serve as a complete defense and absolve Russian responsibility. At best, it will serve as a mitigating factor in compensation assessment.

Future

In 2019, ICAO established the Working Group for the Review of the ICAO Rules for the Settlement of Differences (WG-RRSD), comprising experts from 23 member states, which convened for more than three years. In June 2024, the Working Group adopted its Final Report, examining relevant practices of other international dispute settlement bodies, and suggested revisions to the ICAO Rules for the Settlement of Differences. Among the more contentious suggestions is the expansion of Article 1 of the Rules, subject to the ICAO Council’s consent, to apply to all disagreements relating to international air law instruments. Currently, the Rules apply only to differences concerning the Chicago Convention, the Transit Agreement, and the Transport Agreement. The expansion would be vital for all air safety and security treaties, which are clearly co-applicable to this incident, but to which Russia has appended reservations precluding ICJ jurisdiction, including the Montreal Convention of 1971, prospectively allowing Azerbaijan to bring claims beyond the Chicago Convention. Ultimately, the Russian Federation bears direct responsibility for destroying AZAL aircraft and has an obligation to provide adequate compensation for the families of the victims. Absent affirmative efforts to that end, Azerbaijan has a legal right and standing to bring a claim to the attention of the ICAO Council and possibly other international bodies.