What would a State do, when faced with a situation where an aircraft with 225 passengers is hurtling toward a stadium full of sports fans?
by Dr. Ruwantissa Abeyratne in Montreal
International civil aviation is a serious problem in international relations, affecting the way governments view one another; the way individual citizens view their own and foreign countries, and in a variety of direct and indirect connections the security arrangements by which we live. ~ Andreas Lowenfeld, Foreign Affairs (1975)
11 September 2021 marks the 20th anniversary of 9/11 -which we commemorate and recall with deep regret, an abiding sense of horror and unending sadness. Sadness mainly for the lives taken that day with demonic violence, but also for the lack of foresight of those responsible for protecting the victims that some intellectuals have called feckless insouciance. The 9/11 Commission Report, the formal title of which is Final Report of the National Commission on Terrorist Attacks Upon the United States, serves as the official report of the events leading up to the September 11, 2001. The Report says inter alia: “ In the spring of 2001, the level of reporting on terrorist threats and planned attacks increased dramatically to its highest level since the millennium alert. At the end of March, the intelligence community disseminated a terrorist threat advisory, indicating a heightened threat of Sunni extremist terrorist attacks against U.S. facilities, personnel, and other interests… Threat reports surged in June and July, reaching an even higher peak of urgency…”
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| The 9/11 attack |
Perhaps the most telling indictment is contained in two extracts of the Report: “ …The 9/11 attack was an event of surpassing disproportion. America had suffered surprise attacks before—Pearl Harbor is one well-known case, the 1950 Chinese attack in Korea another. But these were attacks by major powers…” and “Imagination is not a gift usually associated with bureaucracies. For example, before Pearl Harbor the U.S. government had excellent intelligence that a Japanese attack was coming, especially after peace talks stalemated at the end of November 1941. These were days, one historian notes of excruciating uncertainty. The most likely targets were judged to be in Southeast Asia. An attack was coming, but officials were at a loss to know where the blow would fall or what more might be done to prevent it.” In retrospect, available intercepts pointed to Japanese examination of Hawaii as a possible target. But, another historian observes, in the face of a clear warning, alert measures bowed to routine”.
There are a few fundamental postulates that we can consider in the current context: terrorism has not been totally eradicated; this could happen again; after 20 years, with the United States and its allies gone from Afghanistan, there has been at least one suicide bombing at Kabul airport which killed many people; the Chief of Britain’s MI5 has said as reported in World News Network: “America and Britain’s chaotic pull-out of Afghanistan will have heartened and emboldened extremists who could be inspired to carry out terror attacks”.
In peacetime, we engage in many activities in our daily life with no apprehension of attack. We attend sports events at stadiums; we go to the cinema; we board buses; we board aircraft, all this with the reasonable expectation that no harm is going to come to us. This could be because over the past 20 years, except for some sporadic terrorist activity, nothing spectacularly evil has happened on the scale and magnitude of 9/11. This is also because the global security system has thwarted numerous terrorist plots and acts through prevention and preemption. However, these circumstances do not lead to a ratiocination of assurances of safety. It is in this scenario that it could be opportune to imagine another instance of the use of aircraft as weapons of mass destruction and wonder whether States have developed a sense of foresight and a coherent and cohesive plan that the 9/11 Report seems to implicitly require. In the words of the Report: “it is therefore crucial to find a way of routinizing, even bureaucratizing the exercise of imagination. Doing so requires more than finding an expert who can imagine that aircraft can be used as weapons”.
What would a State do, when faced with a situation where an aircraft with 225 passengers is hurtling toward a stadium full of sports fans? Twenty years later, there would be plenty of warning of the catastrophe that could unfold with the availability of texting and instantly relayable photography not to mention mobile tele transmissions from an aircraft. Would the aircraft be shot down, sacrificing the 225 persons on board to avoid a larger number of people being killed in the stadium? At this point what comes to mind is the much cited conundrum of the railcar which is hurtling without brakes toward 5 men working on the tracks, where, at a point ahead of the men there is a fork that leads to a single worker. Does the operator of the railcar swerve the railcar towards the single person, killing him but saving the five people? A further question is asked in any jurisprudence class: what if, in a different scenario, a perfectly healthy man should be killed and five of his healthy organs harvested to be each transplanted in five terminally ill patients that would resuscitate them?
In the aftermath of the shooting down of Korean Air Flight 007 – a scheduled Korean Air Lines flight from New York City to Seoul via Anchorage, Alaska – which was destroyed on 1 September 1983 by Russian fighters over Russian territory, States gathered at the International Civil Aviation Organization (ICAO) and adopted Article 3 bis of the Chicago Convention which says inter alia: “ The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered…” ICAO records that Article 3 bis entered into force for 157 States which ratified or otherwise acceded to the Protocol which came into effect in 1998.
Would this mean that the 157 States would strictly adhere to this provision and not act against the aircraft hurtling towards the thousands in the stadium come what may? Of course, the authorities of a State in the position of taking this difficult decision could always quibble on the terminology of the provision, that The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight , the words “recognize” and “refrain from” not exactly saying that States “shall not use weapons against civil aircraft in flight” where the latter would ascribe mandatory force to the provision.
Another argument would be that the legal maxim “necessitat non habet legem” which means necessity recognizes no law, would impute the legitimacy of discretion to authorities to take what they think is the most prudent decision. Be that as it may, this question carries no right or wrong answer, and boils down to the Einsteinian quote that there is nothing called right or wrong but only what works and what doesn’t work. Nonetheless it poses a moral dilemma for the decision makers and offers a challenge to true leadership.
As Plato said: “there will be no end to the troubles of States or to humanity itself, till philosophers become kings in this world, or till those whom we now call kings and rulers become philosophers, and political power and philosophy comes thus into the same hands”. Much has been recommended in the 9/11 Report as preemptive and preventive measures such as curbing terrorists’ travel; exchange of information with allies; prevention of terrorists from obtaining sophisticated weapons; and the use of advanced technology to thwart terrorist acts. The bottom line to all this seems to lie in the categorical imperative of the 18th Century German philosopher Immanuel Kant – that each of us should act on our own moral imperative dictated to by our sense of fundamental rights and duties over maximizing utility.
Each of us, whether we are on board an aircraft, or watching a game in a stadium or even shopping in a mall have a reasonable belief that we would be safe, but there is also the possibility or plausibility of suffering a terrorist attack. It has happened before. We should be thinking seriously, give the current crises in geo politics.
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