January 8th, 2020, 6. 20 am. Close to Iranian capital, shortly after take-off, a Boeing 737-800 performing a flight Ukraine International Airlines 752 (PS 752) from Tehran to Kyiv fell to the ground – none of 176 people on board survived. The event shocked public opinion worldwide, especially as it occurred in turbulent times – just a few days earlier the United States' troops killed general Suleimani, causing already tense relations between Tehran and Washington to decline further.
Author: Mateusz Osiecki
The accident of PS 752 raised many questions and doubts among international community – was it a terrorist attempt? Did Iran contribute to the tragedy? Will this catastrophe affect Islamic Republic’s relations with other states? Certainly, answers to those questions will be given only when official report from the accident investigation is published. Nevertheless, we can already explain some legal issues that are related to fatal final of PS 752.
First of all we have to emphasize that the purpose of every air accident investigation is to find causes of the crash, not to apportion blame or liability. In the latter case a separate criminal investigation is instituted in accordance with the legal regime of relevant state. However, even in air accident investigation serious doubts may rise on which state is responsible for its conduct, what countries can access data from flight data recorders etc. Helpful in that matter is Annex 13 to Convention on International Civil Aviation (or “Chicago Convention”) entitled “Aircraft Accidents and Incidents Investigation”, which is binding upon nearly all states of the world. It contains detailed provisions on conduct of investigation. It stipulates inter alia that the state of accident’s occurrence is responsible for initiating and conducting actual investigation (so in our case – Iran), but under a mutual agreement it can delegate partially or in whole its competences to another state. However, during investigation itself, the state responsible for conduct is obliged to communicate its results to other entities, such state of registry (in our case – Ukraine), state of manufacture (the United States), or International Civil Aviation Organisation. Taking into account current tense relations between Iran and the United States, it is quite possible that the former one shall delegate part of its duties related to communication with Americans to another state.
Although I mentioned already that only final report from the investigation shall reveal the true cause of the crash of PS 752, certain speculations already arose on how the tragedy had happened. One of the theories entails that the Boeing was shot down by a surface-to-air missile and to support it, a video was published online, on which we can see a projectile launched moments after the plane’s take-off from Tehran Airport. If that cause is confirmed, provisions of international conventions would be applicable.
An already evoked Chicago Convention stipulates in Article 3 bis that every state must refrain from using weapon against civil aircraft in flight. If then Iran confesses that it launched a missile that struck down PS 752, it shall have to accept consequences enshrined in provisions on states' responsibility. On the foreground we have here a duty to pay compensation for relatives of those killed, as well as public apologies and expression of repentance.
On the other hand, if it is revealed that the projectile was not fired by a state’s command, but from a private entity’s initiative (e.g. terrorist organisation), applicable will be provisions of Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation from 1971. Under its Article 1, destruction of aircraft is treated as an offence that should be punished by “severe penalties”. Art 5, in turn, stipulates which countries are eligible to establish their jurisdiction in relation to the offence – those are inter alia state of occurrence (Iran) and state of aircraft’s registry (Ukraine). Article 7 regulates the issue of extradition that takes place if a state on whose territory an offender is found does not establish jurisdiction. Although it may seem a little complicated, it is based on quite simple mechanism – to establish jurisdiction means to institute legal proceedings against an offender. Normally it is done by a state on whose territory such an offender is located. But sometimes it happens that the state is not interested in instituting proceedings (if e.g. the case is politically sensitive). Then it should extradite the offender to another state if the latter one decides to establish jurisdiction on its own. Thanks to those rules minimised is risk of situation in which an offender evades punishment only because his state of current residence is not interested in proceeding with the case.
As we can see, the accident of PS 752 might in reality seem a very complicated case, that may eventually negatively affect ties on international scene, especially in relation to Iran. But as I said above, final conclusions can be made once we accede a report from investigation. Then we will be sure whether the missile really struck down the aircraft or not. Until then, we can just stay patient and observe further course of action.
Mateusz Osiecki – PhD Candidate at the Chair of International Law and International Relations, Faculty of Law and Administration, University of Łódź (Poland)