Iran’s Downing of Flight 752 and Gross Negligence in International Law
by Hussam Al Thiyabi
On 08 January 2020, Iran fired two Tor-M1 surface-to-air missiles that obliterated Ukrainian International Airlines Flight 752—killing all 176 passengers and crew on board. Rather than immediately accepting responsibility for the (likely) unintentional targeting of the passenger plane, Iran obstructed the investigation, demonstrating its gross negligence towards the international community and many of the pillars it stands on. This terrible incident raises a crucial question on states’ responsibilities in case of carelessness that leads to such terrible tragedies. Gross negligence under common law jurisprudence means reckless conduct or failure to act and disregard peoples’ lives and safety, which is more than ordinary negligence. This attack underscores the irresponsible behaviour of Iran. The work discusses the use of force against civil aircraft under international law. It then turns to assessing the specifics of the unfortunate incident and evaluates whether the victims have legal claims against Iran and what they are entitled to.
The Use of Force against a Civil Aircraft — an Unjustifiable Crime
The international community set out rules governing safe navigation of the skies with the maxim level of security to protect civilians and through that safety net help promote globalisation travel, trade, and international relations. The Iranian downing of Flight 752 with no justification whatsoever and with an organised obstruction of justice campaign by Tehran has begged the question of what legal remedies are available. These will be presented alongside the presentation of the legal mechanisms available within international law.
Article 2(4) of the UN Charter, restricts states from using force against others’ territorial integrity (this includes nationally registered flights). In the case at hand, Iran’s use of force falls under this article. Despite Iran’s justification that its action could be understood as self-defence — which would, partially excuse its actions — this line of argumentation is unacceptable since the authorities in question would have had to undertake due diligence and determine the type of object in the air before ‘reacting’ to the so-called ‘threat.’ In other words, the argument that Iran’s actions which led to the downing of Flight 752 could be excused as confusion due to the fog-o-war is moot especially since it was Iran that initiated a military attack on installations across Iraq without taking precautions to protect civilian aircraft—it did not shut its airspace, it did not restrict departures or arrival and it did not issue any warnings.
The 1944 Chicago Convection set out the legal foundation of the International Civil Aviation Organization (ICAO) that aimed to protect and promote aviation and trade among states. This was followed by the 1984 Montreal Convention that adopted Article 3(bis), which considered errors in judgment that led to the targeting of civilian aircraft, such as with Flight 752, as violations of international law. Other examples include Korean Airlines Flight 007 downed by two Soviet missiles on 01 September 1983, over the Sea of Japan, killing all passengers and crew. The USSR refused to participate in the international court tasked with investigating the crime and the case was referred to the ICAO. The UN Security Council then proposed an international investigation — which was, unsurprisingly, vetoed by the USSR.
Also, the 1988 Iran Air incident is important to recall — the USS Vincennes targeted Iran Air Flight 655, killing some 290 people — as the US failed to justify its actions under international law which prodded the international community and the ICAO to apply further measures and obligations to secure safe air navigation. In 1989, the ICAO adopted a resolution, inter alia, that urged all states to take necessary actions for civil aircraft navigation to ensure accurate coordination of civil and military activities. The resolution aimed to reaffirm the fundamental principle of general international law requiring states to refrain from resorting to the use of force against civil aircraft and encouraged all states to ratify the Protocol introducing Article 3 bis in the Convention on Civil Aviation.
The interesting part of the resolution was the need to set up safety recommendations by the Air Navigation Commission. The Fact-Finding Investigation of the ICAO made the following recommendations concerning measures that could be considered ex-ante: in areas in which military activities are potentially hazardous to civil flight operations, such as the case of Iran on 08 January 2020, optimum functioning of civil/military coordination should be pursued. When such military activities involve states responsible for the provision of air traffic services in the area concerned, civil/military coordination will need to include such states.
To sum up (inter alia):
“Military forces should, initially through their appropriate state authorities, liaise with states and ATS units in the area concerned … Military units should be equipped to monitor appropriate ATC frequencies to enable them to identify radar contacts without communication ... If challenges by military units on the emergency frequency 121.5 MHz become inevitable, these should follow an agreed message with content operationally meaningful to civil pilots.”
Iran’s downing of Flight 752 cannot be regarded as a defensive act since the flight departed from Imam Khomeini International airport and the persons in the regime that authorised the use of surface to air missiles (SAMs) should have known that air navigation in Iran remained open. Under international law Iran must pay considerable compensation to Ukraine and directly to the families of the deceased for the physical and emotional damages caused and to underscore the point that every state remains internationally liable for errors of this magnitude.
The international community is now responsible to take further measures against the government of Iran in relation to its downing of Flight 752 both to punish Iran for its gross negligence and to further tighten the protocols needed to ensure air safety.
08 June 2020