I was immediately besieged by legal questions from my colleagues: what action can be taken under law to prosecute the government? what are the penalties which can be imposed? how can the rights of the passenger be safeguarded?
by Dr. Ruwantissa Abeyratne in Montreal
The flying rumours gather’d as they roll’d
Scarce any tale was sooner heard than told
And all who told it added something new
And all who heard it made enlargements too ~ Alexander Pope
When Ryanair Flight 4978 bound from Athens to Vilnius in Lithuania was being operated on 23 May 2021 over the airspace of Belarus, it was diverted to Minsk National Airport in Belarus. The Boeing 737-800 which carried 126 passengers and 6 crew members was just 45 nautical miles south of Vilnius and 90 nautical miles west of Minsk when it was ordered to divert from its course and land, seemingly on a report by ground authorities who had notified that there was a bomb on board. It is worthy of note that, as already mentioned, the aircraft was traversing Belarusian airspace when the order was given.
A known fact, as reported by the media was that the Ryanair civilian flight was intercepted by a Belarusian MiG-29 fighter jet which escorted the hapless Boeing 737-800 to its new destination. Once it landed, security agents had walked into the aircraft and arrested a passenger - Roman Protasevich - founder of the social media news channel NEXTA, which played a crucial role in the protests in Belarus last summer over the outcome of its presidential election. His girlfriend who was on the flight was also taken into custody.
Other known facts are that the Foreign Minister of Lithuania, in an interview with the media, called the forced landing of the aircraft “a state sponsored act of international terrorism” while the United States called it an act in flagrant defiance of international norms. The act was condemned by the European Commission and sanctions against Belarus ensued. Several countries, including the United Kingdom and Lithuania banned flights of the national carrier of Belarus from entering their territories and advised their carriers to avoid flying over Belarusian airspace.
I was immediately besieged by legal questions from my colleagues: what action can be taken under law to prosecute the government? what are the penalties which can be imposed? how can the rights of the passenger be safeguarded? can other passengers on the flight sue the government for compensation for mental agony and delay in reaching their destination? can Belarus ban flights from coming into their territory including flying over their airspace?
Although I do have answers to these questions, this article is not about legalities, and I will reserve my legal comments to be included in a law journal article I have been invited to write.
There are unknown facts as well, including but not limited to such questions as: where did the bomb threat and report come from? What was the nature of the report? What was the nature of the conversation between the air craw and ground control? Who gave the order for interception? Was Belarus aware of the presence of Mr. Protasevich? Was the forced landing, or hijacking as some called it tendentious and planned?
Furthermore, this incident has similar precedent. The mind goes back to 1967 when 47 year old Moise Tshombe, a contentious figure and enemy of President Joseph Mobutu of Congo, had the aircraft in which he was travelling to Palma hijacked when the pilot of the aircraft was forced at gunpoint by some passengers to change route to Algeria. Less than an hour later, the plane was put down at a military base outside Algiers. The passengers and pilots were immediately taken into custody by Algiers security. It transpired that Tshombe, who was a pro West politician in the Congo, had flown from Madrid, where he lived in exile, to Palma on the island of Majorca for a few days' rest, accompanied by two security agents assigned by the Franco government to protect him.
In October 1985 EgyptAir Flight 2843 operated by a Boeing 737 aircraft, which was known to carry the hijackers of the ship Achille Lauro, had United States Navy F-14 Tomcats surrounding their aircraft which sent a message to the crew of the Boeing aircraft to divert. A short time after the EgyptAir aircraft landed, it was confronted by two United States Air Force C-141 transports which arrived with counter terrorist members of SEAL Team Six, who quickly surrounded the 737 at the airstrip as it rolled to a halt, while overhead, the F-14s closed the airspace.
In July 1971, A BOAC VC-10 aircraft ‐ which left Rome with 108 passengers and 11 crew members bound for Khartoum and Dar es‐Salaam, was ordered to land in Benghazi, Libya while it was in Libyan airspace. On board were Lieut. Col. Babakr al‐Nur Osman and Maj. Farouk Hamadallah, both of whom had been in London for medical treatment, and were on their way back to Khartoum to take leading positions in the new regime that had been opposed by forces loyal to the former government, and the aerial intervention had led to the detention by Libya of the two officers after the aircraft landed.
To go back to the Ryanair incident, the Council of the International Civil Aviation Organization (ICAO) – the specialized agency of the United Nations charged with addressing international civil aviation – considered the issue on 27 May 2021 and issued the following statement: “The ICAO Council expressed its strong concern today at the apparent forced diversion of Ryanair Flight FR4978, a commercial passenger aircraft flying in Belarus airspace on Sunday, 23 May 2021. At a special meeting convened, the ICAO Governing Body underlined the importance of establishing the facts of what happened, and of understanding whether there had been any breach by any ICAO Member State of international aviation law, including the Convention on International Civil Aviation (Chicago Convention) and its Annexes.
Recalling Article 55 (e) of the Chicago Convention, the Council decided 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 for a subsequent meeting of the current session, presenting the available facts and relevant legal instruments. The Council also called upon all ICAO Member States and other relevant stakeholders to collaborate with this fact-finding investigation in the interests of ensuring the safety and security of civil aviation and offered the assistance and expertise of ICAO in the pursuit of this endeavor.
"The Council has therefore decided that all relevant facts should be officially established through an ICAO investigation conducted by the ICAO Secretariat," emphasized ICAO Council President Salvatore Sciacchitano. ICAO Secretary General Dr. Fang Liu responded to the Council's decision during the meeting and assured the full support and cooperation of the Secretariat in implementing this decision”.
Ex facie, getting to know the unknown is seemingly prudent, particularly by an international body of 36 States. In matters such as these it is natural that the Council has been and will be in polarized groups. The vitriolic and oftentimes vituperative debates that have followed certain contentious and indeed disturbing incidents can be recalled. Two such instances that come to mind are those provoking the debates in Council when Israeli forces destroyed Gaza International Airport and the earlier event of the destruction of Korean Air Flight 007 over Russian airspace.
Therefore, it is not surprising that one notices the diplomatically worded text of the ICAO message on Ryanair flight 4978 with words such as “strong concern” and “apparent forced diversion” and “whether there had been any breach by any ICAO Member State of international aviation law, including the Convention on International Civil Aviation (Chicago Convention) and its Annexes”.
Article 55e) of the Convention on International Civil Aviation which the Council of ICAO cites in its statement says that it is one of the permissive functions (granting discretion) of the Council to “Investigate, at the request of any contracting State, any situation which may appear to present avoidable obstacles to the development of international air navigation; and, after such investigation, issue such reports as may appear to it desirable”.
Accordingly, while seeking to investigate the circumstances, which is a positive step by the Council of ICAO, all that the Council of ICAO is seemingly interested in is to determine whether there are “avoidable obstacles to international air navigation” which in turn could be narrowed down to the aftermath of the incident and whether it could lead to air navigation. This does not seem to comport with the earlier statement of the Council that the investigation would be a “fact finding one” to determine “whether there had been any breach by any ICAO Member State of international aviation law, including the Convention on International Civil Aviation (Chicago Convention) and its Annexes”.
The more contentious issue is in Article 4 of the Convention which states that “Each contracting State agrees not to use civil aviation for any purpose inconsistent with the aims of this Convention”. The aims of the Convention are clearly set out in its Preamble which states inter alia that the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security.
It doesn’t take a lawyer to figure this out.
Dr. Abeyratne is former Senior Legal Officer at ICAO and currently teaches aviation law and policy at McGill University. He is the author of Convention on International Civil Aviation: A Commentary, Aviation Security Law, Air Navigation Law and several other books relevant to this issue.
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