The parallel seems to end there as there is a difference between “a state of high alert” which existed in Iran on 8 January and a battle which brought down the Iran Air aircraft.
by Dr. Ruwantissa Abeyratne
MSN News has announced that “Iran's president has finally acknowledged what Canada, Britain and the United States have strongly suspected for days — that it was indeed an Iranian missile that downed a Ukrainian jetliner operating Flight 752 from Teheran to Kiev on Wednesday 8 January”. All on board were killed. Iranian President Hassan Rouhani has issued an unconditional apology saying: “The Islamic Republic of Iran deeply regrets this disastrous mistake”. Flight 752 (PS752) was carrying 176 people who died in the crash, including: 82 Iranians, 57 Canadians, 11 Ukrainians, 10 Swedes, four Afghans, three Germans and three British nationals. CNN reported on Saturday 11th January that Iran’s explanation for the “human error” was that the plane was shot down while Iran was on “high alert” at the time of shooting and was in a sensitive state. Furthermore, the Iranian authorities are reported to have stated that the Ukrainian aircraft was “misidentified” as it turned to the direction of an Iranian Revolutionary Guard base. The exact statement of the Iranian authorities is reported to be that “Under such sensitive and critical conditions, the Ukrainian Airlines flight 752 took off from the Imam Khomeini airport and while rotating, it was placed completely in the position of approaching a sensitive military center in the altitude and trajectory of an enemy target. They must have thought the plane on their radar, flight PS752 was a foreign air force plane about to blow up.”
A curious parallel comes to mind where, on 3 July 1988 The United States accidentally downed Iran Air Flight 655 which was operated by an Airbus A-300B aircraft, killing 290 passengers and crew The U.S fired two surface-to-air missiles launched from the U.S.S. Vincennes, a guided-missile cruiser on duty with the United States Persian Gulf/Middle East Force in Iranian airspace over the Islamic Republic's territorial waters in the Persian Gulf. The incident occurred in the midst of an armed engagement between U.S. and Iranian forces, in the context of a long series of attacks on U.S. and other vessels.
The parallel seems to end there as there is a difference between “a state of high alert” which existed in Iran on 8 January and a battle which brought down the Iran Air aircraft.
In the wake of the shooting down of the Ukrainian aircraft, an interesting statement came out in ETN (eTurboNews) that “also responsible for the Ukraine International Airlines crash may be Lufthansa, Austrian Airlines, Turkish Airlines, Qatar Airways, and Aeroflot to the parties responsible for the Ukraine International Airlines disaster in Iran? This is on the basis that the following flights had departed Tehran at times in proximity to the Ukrainian aircraft’s departure: Turkish Airlines TK 875 on 08 January took off at 3.35 am to Istanbul; Austrian Airlines OS 872 on 08 January t00k off at 3.45 am to Vienna; Lufthansa LH 601 on 08 January took off at 4.23 am to Frankfurt; Aeroflot SU431 on 08 January took off tr 4.31 am to Moscow; Qatar Airways QR 491 on 08 January took off at 5.01 am for Doha; Turkish Airlines TK 873 on 08 January took off at 5.07 am to Istanbul; Turkish Airlines TK879 on 08 January took off at 8.23 am to Istanbul; Qatar Airways QR483 on 08 January took off at 12.50 pm to Doha; Turkish Airlines TK871 on 08 January took off at 3.29 pm to Istanbul; Qatar Airways QR 499 on 08 January took off at 11.08 pm to Doha.
The question then arises: who really was responsible for the death of the 176 passengers on board the ill-fated flight? The airlines which departed Tehran in contemporaneous chronology, which should not have taken off as they owed a responsibility to the Ukrainian airline to set an example by not flying that day, or was it the State from which the aircraft took off? To determine this issue in its aeronautical context one has to go back to history.
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 Donetsk Oblast in Eastern Ukraine, while at an altitude of 10,000 meters. Two thirds of the passengers on board were of Dutch origin. All those on board perished.
A similar event had 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.
Consequent upon the 1983 shooting down of KL 007, and 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, and, in the case of interception, the safety of lives of those on board should be the paramount consideration.
Additionally, according to Article 28 of the Chicago Convention, Iran was required to provide in its territory air navigation facilities inter alia to facilitate international air navigation. This provision imputes to Iran the obligation to provide air traffic services that is calculated to ensure an aircraft’s navigational safety. A more compelling provision in the Convention is Article 9 which states that each contracting State may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory, provided that no distinction in this respect is made between the aircraft of the State whose territory is involved, engaged in international scheduled airline services, and the aircraft of the other contracting States likewise engaged. Such prohibited areas must be of reasonable extent and location so as not to interfere unnecessarily with air navigation. Descriptions of such prohibited areas in the territory of a contracting State, as well as any subsequent alterations therein, are required to be communicated as soon as possible to the other contracting States and to ICAO.
One could argue that Iran had an obligation to adhere to the aforementioned provisions and close its airspace in the wake of hostilities between Iran and the United States. The only instance where these provisions would not apply is when a State invokes Article 89 of the Chicago Convention which provides that in a state of war or “national emergency” the provision of the Convention would not affect the freedom of action of a State so involved provided that State advises the Council of ICAO.
The final question would then be, considering the fact that Iran was not at war with the United States, was it under a state of national emergency? Would “high alert” qualify as a national emergency? And did Iran advise the ICAO Council?
Dr. Abeyratne is Senior Associate, Air Law and Policy at Aviation Strategies International. He is also Visiting Professor in Air Law and Policy at McGill University. Prior to his current engagements he was Senior Legal Officer and Coordinator, Air Transport at The International Civil Aviation Organization. Among his recent publications are Aviation Security Law and War and Peace: The Aviation Perspective His latest book, to be released shortly, is titled Aviation in the Digital World.
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