The Belarus Incident: A Violation of International Law?

The Belarus incident raises two issues: (a) that the action was a blatant act of air piracy--the Ryanair airliner was intercepted in flight by an armed jet fighter sent to “escort” it to Minsk--and (b) that the Belarus security apparatus employed a ruse that the action was being taken because there allegedly was a bomb aboard the airplane, a craven lie tantamount to shouting “fire” in a crowded theater. It also serves as a dangerous precedent for other despots elsewhere who might choose to bring down an aircraft because they know a passenger who has annoyed them is on board.

Thus the event also impinged on international law and the “conventions” underlying the 1944 origins of the International Civil Aviation Organization (ICAO), a “specialized agency” of the United Nations founded to both support diplomacy on international air transport issues--World War II having exponentially advanced aeronautical technology to the point where aircraft could routinely cross oceans and international borders--and establish operational standards so everyone adheres to the same procedures in each other’s airspace. Since its founding meeting, or “convention,” occurred in Chicago, ICAO’s bylaws hammered out there are still referred to as the “Chicago Conventions.” Two Chicago Conventions that could apply to the Belarus government’s actions on May 23 are:

*Article 3bis: “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. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.”

*Article 4: “Each contracting State agrees not to use civil aviation for any purpose inconsistent with the aims of this Convention.” And those aims included peaceful and reciprocal civil air transport through the airspace of ICAO’s 193 signatory member nations, or states.

A few days after the Belarus-forced diversion of Ryanair 4978, the ICAO Council convened a meeting to determine a course of action to establish the facts of what happened and whether there had been a breach of international aviation law, including the Chicago Conventions and the organization’s Annexes (which are familiar--or should be--to all pilots conducting international operations). The Council members subsequently agreed to undertake a full fact-finding investigation on behalf of the ICAO Secretariat with an “interim report” to be delivered during the current session of the 36-member Council, which expires on June 25. Until the investigation is formalized and a report assembled, ICAO is making no statements about the Belarus incident. The same holds true for the NBAA and its European counterpart, the European Business Aviation Association (EBAA), which rebuffed BCA’s requests for statements.

However, the International Business Aviation Council (IBAC) in Montreal did offer a succinct position statement: “IBAC strongly condemns any acts of unlawful interference against civil aviation and strongly supports the principles of safeguarding aviation against any risks and threats in accordance with the Chicago Convention and its 19 Annexes.”

A Short Course on International Aviation Law From a Barrister

On the other hand, London barrister Cameron Miles offers an intriguing analysis of the Belarus action within the context of international law in a blog posted May 24 on the Lawfare Institute website at http://www.lawfareblog.com (in cooperation with the Brookings Institution). “From the perspective of international law,” he writes, “it is difficult to overstate the seriousness of Belarus’ actions.” While “international law” is often criticized as vague, unenforceable, and often prone to manipulation by “powerful actors,” Miles contends that some regimes of it, by agreement of states, are quite straightforward in regulating the essential functioning of international society--that is, those activities that support the common interests of countries. Examples are marine activities governed by the universally accepted “Laws of the Sea” and, as Miles cites, “the network of treaties governing international civil aviation,” most notably the 1944 Chicago Convention and its successor, the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, to both of which Belarus is a signatory--rather conveniently, under the present circumstances.

Examining those treaties, Miles writes, “one can immediately see the outline of a powerful case as to why Belarus’ actions violate international law. Article 1(1)(e) of the Montreal Convention creates an international crime where a person unlawfully and intentionally ‘communicates information which he knows to be false [e.g., the bogus bomb threat], thereby endangering the safety of an aircraft in flight.’ Secondly, per Article 10 of the Montreal Convention, a state must ‘in accordance with international and national law, endeavor to take all practicable measures for the purpose of preventing the offenses mentioned in Article 1.’” So it follows, Miles concludes, that in contriving an emergency landing of Flight 4978 “off the back of a fake bomb threat,” Belarus committed “an outrageous breach of the Montreal Convention.”

But that’s not all: By so doing, Belarus at the same time also breached Article 3bis of the Chicago Convention, which Miles points out presents a comparative rarity in international law: “a clear breach of two respected international treaties by a state, combined with a clear route to the jurisdiction of an international court or tribunal.” As the Ryanair 737 carried Polish registry, Poland (or any of the other 191 members of the Chicago Convention) could conceivably commence proceedings against Belarus before the International Court of Justice in The Hague.

Praising the network of agreements governing international civil aviation as “one of the most significant achievements” of post-World War II jurisprudence, Miles asserts that Belarus’ decision to force down Ryanair 4978 for the sole purpose of taking a dissident and his partner into custody “should cause profound disquiet within the international community and invite immediate consequences.” Furthermore, were the international community to tolerate this act of air piracy, “then other states could well form the view that such action is a permissible way of seizing political dissidents (or any other individual they want to detain…).” If safe and reliable air travel is to remain an integral part of international commerce, Miles believes, such actions by rogue state actors cannot be tolerated.

Editor's note: The first article in this series looks at the Belarus incident's applicability to business aviation. Subsequent articles will look at what to do if your aircraft gets an escort.