| by Ruwantissa Abeyratne

( July 19, 2014, Melbourne, Sri Lanka Guardian) Malaysian Airlines Flight MH 17, operated by a Boeing 777 -200ER aircraft flying from Amsterdam to Kuala Lumpur on 17 July 2014, and carrying 283 passengers and 15 crew, was shot down by a BUK surface to air missile over Donest Oblast in Eastern Ukraine, while at an altitude of 10,000 meters. It is alleged that the act was carried out by pro Russian rebels, who have flatly denied responsibility. Two thirds of the passengers on board were of Dutch origin. All those on board perished.

A similar event, which occurred in September 1983 when a Russian SU-15 Interceptor plane shot down a Korean Airlines Boeing 747 aircraft operating flight KE 007 bound from New York City to Seoul via Anchorage. The plane was destroyed over Sakhalin Island while navigating over prohibited Russian airspace. All 269 passengers and crew on board died.

Amidst a vociferous international outcry, the International Civil Aviation Organization (ICAO) convened a special Assembly of ICAO member States which adopted article 3 bis to the Convention on International Civil Aviation (Chicago Convention) which now provides that ICAO member States undertake to refrain from using force against civil aircraft. Arguably, this provision ex facie does not apply to the destruction of the aircraft which operated flight MH 17. At the time of writing, there was no formal pronouncement, unlike in the KE 007 disaster, that a State was involved in bringing down flight MH 17. Some alleged that it had been brought down by pro Russian rebels, which left both Ukraine and Russia as presumed innocent.

The United States claimed that the act of destruction could be imputed to the Russian Federation, stating that a heavy missile such as the BUK surface to air missile could not be obtained by the pro Russian rebels unless powerful persons gave it to them. Be that as it may, there are a few interesting background factors and stark facts that are worthy of consideration.

Although the destruction of aircraft at high altitude was addressed in Article 3 bis of the Chicago Convention, The ICAO Assembly, in addition, addressed the analogous issue of Man Portable Air Defence Systems (MANPADS). At the 36th Session of the Assembly of the International Civil Aviation Organization (ICAO), held from 18 to 28 September 2007, member States of the Organization adopted Resolution A36-19 [threat to civil aviation posed by man-portable air defense systems (MANPADS)] which expressed the deep concern of States regarding the global threat posed to civil aviation by terrorist acts, in particular the threat posed by MANPADS, other surface to air missiles systems light weapons and rocket propelled grenades. The Assembly urged all member States to take the necessary measures to exercise strict and effective controls on the import, export, transfer or retransfer and stockpile management of MANPADS and associated training and technologies, as well as limiting the transfer of MANPADS production capabilities; It also called upon all Contracting States to cooperate at the international, regional and sub-regional levels with a view to enhancing and coordinating international efforts aimed at implementing countermeasures carefully chosen with regard to their effectiveness and cost, and combating the threat posed by MANPADS.

Relevant to the adoption of Resolution A36-19 was the fact that the United Nations General Assembly, on 8 September 2006, had adopted Counter-Terrorism Strategy, which is a unique global instrument that was calculated to enhance national, regional and international efforts to counter terrorism. The Strategy emphasizes the need to combat illicit arms trade, in particular small arms and light weapons, including MANPADS. Member States have agreed to a common strategic approach to fight terrorism, not only by sending a clear message that terrorism is unacceptable but also resolving to take practical steps individually and collectively to prevent and combat it. These steps include a wide range of measures ranging from strengthening State capacity to counter terrorist threats, to better coordinating United Nations System’s counter-terrorism activities.

The use of surface to air missiles and anti-tank rockets by terrorists goes back to 1973. On 5 September 1973 Italian police arrested five Middle-Eastern terrorists armed with SA-7s. The terrorists had rented an apartment under the flight path to Rome Fumicino Airport and were planning to shoot down an El Al airliner coming in to land at the airport. This arrest proved a considerable embarrassment to Egypt because the SA-7s were later traced back to a batch supplied to it by the Russian Union. It was alleged that the Egyptian government was supplying some of the missiles to the Libyan army but inexplicably, the SA-7s had been directly rerouted to the terrorists. This incident also placed the Russian Union in an awkward position because of the possibility that its new missile and its policy of the proxy use of surrogate warfare against democratic states were revealed to the West.

Another significant incident occurred on 13 January 1975 when an attempt by terrorists to shoot down an El Al plane with a missile was believed to have brought civil aviation to the brink of disaster. Two terrorists drove their car onto the apron at Orly airport, where they set up a rocket launcher and fired at an El Al airliner which was about to take off for New York with 136 passengers. The first round missed the target thanks to the pilot’s evasive action and hit the fuselage of a Yugoslav DC-9 aeroplane waiting nearby to embark passengers for Zagreb. The rocket failed to explode and no serious casualties were reported. After firing again and hitting an administration building, which caused some damage, the terrorists escaped by car. A phone call from an individual claiming responsibility for the attack was received at Reuters. The caller clearly implied that there would be another such operation, saying ‘Next time we will hit the target.

Missile attacks are common. There was a marked increase in missile attacks since 1984. On 21 September 1984 Afghan counter-revolutionaries fired a surface-to-air missile and hit a DC-10 Ariana Airliner carrying 308 passengers. The explosion tore through the aircraft’s left engine, damaging its hydraulic system and a wing containing a fuel tank. The captain of the aircraft, however, managed to land the aircraft safely at Kabul International Airport. Another significant incident took place on 4 April 1985, when a member of Abu Nidal group fired an RPG rocket at an Alia airliner as it took off from Athens Airport. Although the rocket did not explode, it left a hole in the fuselage.

Advanced missiles and rockets have been found in many terrorist and insurgent armouries. It is suspected that some terrorist organizations, including Iranian militia in Lebanon, the Provisional Irish Republican Army and various African and Latin American insurgents, possess the sophisticated Russian-made RPG-7 portable rocket launcher, but it is disturbing to note that some terrorist organizations, most notably Palestinian groups, have their own RPG-7-manufacturing facilities. In addition, more than a dozen other terrorist and insurgent groups were known to possess portable surface-to-air missiles, These groups included various Cuban surrogates, Colombian drug dealers, and a number of African, European and Palestinian terrorist organizations.

Some Counter Measures

The gathering of reliable intelligence remains the first line of defence. Although modern technologies clearly aid terrorists in terms of weapons and targets, technology can also be used against terrorists. Governments which are endowed with the necessary technology can keep track of terrorist organizations and their movements with the aid of computers. At the same time, electronic collection methods and signals intelligence afford the possibility of eavesdropping on and intercepting terrorist communications, leading to better predictions of their operations. One of the instances where intelligence gathering worked well to prevent terrorism occurred in September 1984, when the Provisional IRA spent an estimated £1.5 million in the United States on a massive shipment of seven tons of arms. With the help of an informer about a forthcoming shipment of weapons, including rockets, to the Provisional IRA from the United States, the FBI informed British intelligence, who in turn contacted the Irish, and the ship carrying the arms was tracked by a US satellite orbiting 300 kilometres above the earth. The satellite photographed the transfer of the arms to a trawler. Finally, two Irish Navy vessels intercepted the trawler and British security forces arrested the crew. This incident shows that intelligence gathering with the help of high technology can cut off the transfer of missiles and other weapons to terrorists.

The installation of a sophisticated antimissile system similar to that employed on military aircraft to divert surface-to-air missiles is an effective deterrent. One good example is the measure taken by the British government which, immediately after the discovery of 20 SA-7s in the coaster Eksund, which was intercepted by French authorities off the coast of Brittany in November 1987 when bound for the IRA, fitted all British Army helicopters flying in Northern Ireland with electronic and other decoy systems to confuse the missile’s heat-seeking guidance system. These included the US-made Saunders, AN/ALG 144. This system, when linked to the Tracor AN/ALE 40 chaff dispenser, works by jamming the missile’s homing radar and sending infra-red flares and chaff to act as a decoy for the heat-seeking device. The system is used by both the US and the Israeli Armies, which have been well-pleased with its performance. Until the British realised that the IRA might be in possession of SAMs, the Ministry of Defense hesitated to install such a system because of the high cost involved, and its decision to do so shows the seriousness of the threat. Another example of a good counter-measure is the response of El Al airlines to the threat of such an attack which included the installation of electronic countermeasure equipment similar to that employed on military aircraft to divert surface-to-air missiles.

In April 1996 in Vienna, States representatives of the “New Forum” held a Plenary to confirm the “Wassenaar Arrangement”, earlier agreed upon in the city of Wassenaar, the Netherlands, that addresses risks to regional and international security related to the spread of conventional weapons and dual-use goods and technologies while preventing destabilizing accumulations of weapons such as MANPADS. The Wassenaar Arrangement complements and reinforces, without duplication, the existing control regimes for weapons of mass destruction and their delivery systems, as well as other internationally recognized measures designed to promote transparency and greater responsibility, by focusing on the threats to international and regional peace and security which may arise from transfers of armaments and sensitive dual-use goods and technologies where the risks are judged greatest. It is also calculated to enhance co-operation in order to prevent the acquisition of armaments and sensitive dual-use items for military end-uses, if the situation in a region or the conduct of a state is, or becomes, a cause for serious concern to the Participating States. It is not the intent and purpose of the Arrangement to be directed against any state or group of states, nor will it impede bona fide civil transactions. Furthermore it will not interfere with the rights of states to acquire legitimate means with which to defend themselves pursuant to Article 51 of the Charter of the United Nations. The Arrangement allows for Participating States to control all items set forth in a list of dual-use goods and technologies and in the munitions list, with the objective of preventing unauthorized transfers or re-transfers of those items. Participating States also agree to exchange general information on risks associated with transfers of conventional arms and dual-use goods and technologies in order to consider, where necessary, the scope for co-ordinating national control policies to combat the risks involved. At the tenth Plenary meeting of the Wassenaar Arrangement, held in Vienna on 8-9 December 2004, participating States reaffirmed their intent and resolve to prevent the acquisition by unauthorized persons of conventional arms and dual-use goods and technologies, in particular by terrorist groups and Organizations. States also exchanged information on various natioal measures adopted to implement the provisions of the Arrangement.

The Wassenaar Arrangement is the first global multilateral arrangement on export controls concerning conventional weapons and sensitive dual-use goods an technologies. It has not been designated the conventional term “convention” or “agreement” but nonetheless carries the agreement of participating States to collaborate in complementing, without duplication existing regimes on the non-proliferation of weapons of mass destruction and their delivery systems. The Wassenaar Arrangement is not a treaty in the sense of Article 102 of the United Nations Charter, nor is it a treaty as defined by the Vienna Convention on the Law of Treaties of 1969, Article 2 of which defines a treaty inter alia as an international agreement concluded between States in written form and governed by international law. However, it remains an agreement between sovereign States concerning the implementation of municipal law of each participating State. This does not, however, mean that the Wassenaar Arrangement cannot be considered an international agreement or that it is invalid. It merely means that the Arrangement does not come within the purview of the Vienna Convention. It is worthy of note that Article 3 of the Convention explicitly recognizes that international agreements between States do not lose their validity merely because they do not come within the ambit of the Convention. One of the cardinal principles enunciated by the International Committee of the Red Cross (ICRC) is that persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity. They should, in all circumstances, be protected and treated humanely without any adverse distinctions. It is obvious that the “protection” referred to must come from the State and no one else.

The bottom line is that those who perished in Flight MH were not involved in the situation between the Russian Federation and Ukraine. One of the cardinal principles enunciated by the International Committee of the Red Cross (ICRC) is that persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity. They should, in all circumstances, be protected and treated humanely without any adverse distinctions. It is obvious that the “protection” referred to must come from the State and no one else.

The author is an aviation lawyer who worked at the International Civil Aviation Organization for 24 years.

[i]Malcolm N. Shaw, International Law, supra, note 33, at 1079.