Guest Op-Ed: Action and Reaction: The Belarus Gambit to Force Diversion of Ryanair Flight 4978

Before the end of World War II, the United States government brought representatives of nations from around the world to Chicago to hammer out an important set of rules designed to facilitate the safe rise in global air travel. The Convention on International Civil Aviation, also known as the Chicago Convention, was intended to be a foundation for world peace. In the decades since, the international community has come together to add pillars to that foundation by entering into treaties aimed at acts that harm civil aviation. Perhaps as important as the wording of these documents is that virtually the entire international community came together to draft and ratify them. The unraveling of these international norms without consequence could be a dangerous disruption to world order. Last month’s forced diversion of a scheduled commercial passenger flight by the Belarusian regime and the international reaction to it threatens to do just that.

On May 23, a Ryanair Boeing 737 with 171 passengers, including Roman Protasevich, a prominent Belarusian dissident and journalist, took off from Athens, Greece for Vilnius, Lithuania. The flight route included a segment over Belarusian airspace. The aircraft was just moments from leaving Belarusian air space when the pilot was informed that a bomb was on board and to divert to Minsk, the capitol of Belarus. Whether the pilot was informed by Belarus air traffic control or by passengers on the aircraft who may have been Belarus KGB agents, or both remains unclear. It is reported that the Ryanair pilot was signaled by an intercepting Belarus MiG-29 jet to land in the Belarus capital. Upon landing, Belarusian authorities took Protasevich and his companion into custody, preventing them from leaving when the aircraft and other passengers were released. There was no bomb. It is also reported that the suspected KGB agents on the flight did not reboard the aircraft, which eventually continued on to Vilnuis. Protasevich and his companion remain held against their will under apparent extreme duress.

The international reaction has been strong and swift. There have been immediate charges of “state air piracy.” On May 23, the International Civil Aviation Organization (ICAO) stated that it is “strongly concerned by the apparent forced landing of a Ryanair flight and its passengers, which could be in contravention of the Chicago Convention.” European Union leaders agreed to close EU airspace to Belarus airlines and the European Union Aviation Safety Agency (EASA) directed EU based airlines and advised others to avoid Belarus. President Biden asked his team for options to hold those responsible accountable and the Federal Aviation Administration (FAA) issued a Notice to Airmen (NOTAM) advising U.S. passenger airlines to “exercise extreme caution” while flying over Belarus. Both EASA and the FAA stated that additional measures may be necessary pending investigation.

The ICAO Council President called an “urgent meeting of the 36 diplomatic representatives” on May 27 to consider the incident. The Council decided to do a fact-finding investigation and asked the ICAO Secretariat to prepare an interim report to the Council “presenting the available facts and relevant legal instruments” and urged the collaboration of member states “in the interests of ensuring the safety and security of civil aviation.” Under Article 55(e) of the Chicago Convention, the Council has the authority to:

Investigate, at the request of any contracting State, any situation which may appear to present avoidable obstacles to the development of international air navigation; and, after such investigation, issue such reports as may appear to it desirable.

The Council has undertaken several investigations using this authority, including after Korean Airlines Flight 007 was shot down in 1983. Cooperation of the interested states is essential to success.

Clearly, the actions of the Belarus regime upset much of the international community. But what international laws did they break?

 State Air Piracy?

The treaties governing “air piracy” are the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking Convention) and the supplementary 2010 Protocol (Protocol). Belarus is party to the first, but not the second. The Hijacking Convention applies to offending people, not states, and is focused only on individuals “who on board an aircraft in flight:

  1. unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or
  2. is an accomplice of a person who performs or attempts to perform any such act commits an offence.”

If Belarus agents indeed were on board the Ryanair aircraft and participated in the effort to divert it, based on a knowingly false claim that a bomb was on board and for purposes having to do only with seizing one of the passengers, then it may be argued that the aircraft was hijacked. The remedy prescribed by this treaty, however, is prosecution of the individuals who participated, not punishment of a state actor that may have ordered their actions.

The Protocol’s definition of the offence is broader and encompasses actors not onboard the aircraft: “Any person commits an offence if that person unlawfully and intentionally seizes or exercises control of an aircraft in service by force or threat thereof, or by coercion, or by any other form of intimidation, or by any technological means.” Actors on the ground in Belarus directing the diversion of the flight “unlawfully” might be included in this definition of the offence if the diversion were accomplished by a knowingly false bomb threat. Again, Belarus is not party to the Protocol nor are several EU members or the United States (the Protocol was submitted to the Senate for advice and consent January 2020.)

And, in the context of the Hijacking Convention, what does “unlawfully” mean and which laws govern? According to the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention), to which Belarus is a party, the laws of the state of registration apply to an aircraft in flight which here presumably would be the laws of Ireland, if the Ryanair aircraft is registered there. Except, that is, as provided in Article 4:

“A Contracting State which is not the State of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except in the following cases:
(a) the offence has effect on the territory of such State;
(b) the offence has been committed by or against a national or permanent resident of such State;
(c) the offence is against the security of such State;
(d) the offence consists of a breach of any rules or regulations relating to the flight or manoeuvre of aircraft in force in such State;
(e) the exercise of jurisdiction is necessary to ensure the observance of any obligation of such State under a multilateral international agreement.”

(Emphasis supplied.)

Did the Belarusian regime seize Protasevich for an alleged “offence committed on board the aircraft?” The Tokyo Convention hastens to add that it is not “authorizing or requiring action” based on “laws of a political nature,” and it does not draw any lines as to how a state may “interfere with an aircraft in flight” to exercise its criminal jurisdiction under the Article 4 exception.

Other Unlawful Act Against Civil Aviation?

If the bomb threat conveyed to Ryanair was fabricated, the persons responsible for conveying that false information committed an offense under the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention) to which Belarus is a party. That treaty provides, in part, that “Any person commits an offence if he unlawfully and intentionally…communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight” or is an accomplice to such a person. Here again, the remedy prescribed by this treaty is prosecution of the individuals who participated, not punishment of a state actor. And which country’s laws govern whether communication of that false information was “unlawful?”

The Chicago Convention?

ICAO’s “strong concern” that the actions of the Belarus regime may have violated the Chicago Convention may be based on Article 3 bis which provides how an aircraft may lawfully be intercepted. That article is an amendment negotiated after the KAL 007 catastrophe which occurred after an allegedly failed interception. The member states of ICAO immediately came together to condemn the action and then to amend the treaty so as to make explicit that which many countries, including the United States, deemed implicit. The amendment, which has been ratified by Belarus, affirmed international common law standards for military-civil aircraft interface and states in part:

“(a) 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.

 (b) The contracting States recognize that every State, in the exercise of its sovereignty, is entitled to require the landing at some designated airport of a civil aircraft flying above its territory without authority or if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of this Convention; it may also give such aircraft any other instructions to put an end to such violations. For this purpose, the contracting States may resort to any appropriate means consistent with relevant rules of international law, including the relevant provisions of this Convention, specifically paragraph (a) of this Article. Each contracting State agrees to publish its regulations in force regarding the interception of civil aircraft.

 (c) Every civil aircraft shall comply with an order given in conformity with paragraph (b) of this Article. To this end each contracting State shall establish all necessary provisions in its national laws or regulations to make such compliance mandatory for any civil aircraft registered in that State or operated by an operator who has his principal place of business or permanent residence in that State. Each contracting State shall make any violation of such applicable laws or regulations punishable by severe penalties and shall submit the case to its competent authorities in accordance with its laws or regulations.”

(Emphasis supplied.)

If the Belarus regime dispatched a fighter aircraft to intercept the Ryanair flight and require it to land, then that action is governed by Article 3 bis. Unless the Belarus regime can produce valid evidence that the Ryanair aircraft was being used for a purpose inconsistent with the aims of the Chicago Convention (i.e., valid evidence to support the bomb threat), the interception was inconsistent with the Article 3 bis obligations of the treaty. Further, the implementing ICAO standards in Annex 2 “Rules of Air” state “interceptions of civil aircraft are, in all cases, potentially hazardous…should be avoided and should be undertaken only as a last resort.”

The Chicago Convention has another legal “hook” that might apply. Article 4 is a catch-all agreement among the parties “not to use civil aviation for any purpose inconsistent with the aims of this Convention.” This article may apply to a state’s use of its air traffic control function to convey false bomb threats so as to cause a civil aircraft to land for the purpose of seizing a passenger.

What to do?

This is not the first time a scheduled commercial flight was diverted and asked to land due to a bomb threat. What is new, based on the reporting to date, is that the bomb threat appears to have been fabricated as part of a planned operation by the state of overflight to abduct one of the passengers from the air. Also new is the use of a military jet to intercept and force the passenger aircraft to land in the state of overflight. These actions must be challenged.

The ICAO Council can investigate whether Belarus violated Article 3 bis of the Chicago Convention by intercepting the aircraft without valid cause. It can also request information  from Belarus to help determine whether what took place is a hijacking under the Hague Convention or an offense under the Montreal Convention to which all interested states are parties and affirm Belarus is under obligation to prosecute the perpetrators or extradite them to, say, Ireland. These steps are necessary to affirm the international legal framework within which Belarus must conduct itself or risk being marked as an outcast. The ICAO Council meeting on May 27 began this process and, as part of the investigation mandate, will not only determine “the available facts” but also the “relevant legal instruments.”

As this process unfolds, states are free to take joint or unilateral action to protect their aircraft and citizens consistent with their multilateral and bilateral obligations, as the EU states are now doing. A historic example of joint action was the 1978 Bonn Summit Declaration when the G7 nations announced their joint commitment, when “a country refuses extradition or prosecution of those who have hijacked an aircraft and/or do not return such aircraft,” to “take immediate action to cease all flights to that country. At the same time, their governments will initiate action to halt all incoming flights from that country or from any country by the airlines of the country concerned.” Unfortunately, in practice, the commitment is rarely applied.

Another example is the 1985 USSR, Japan and U.S. trilateral agreement that established a communications system among their air traffic control centers for civil aircraft flying over the northern Pacific Ocean. Here, a chastened Soviet government, perhaps wishing to reestablish its international aviation safety credentials after the KAL disaster, joined the others in an effort to avoid another shooting down of a commercial aircraft. This effort helped to shore up global trust.

Difficult events like the Belarus diversion prompt understandable international reaction. There is genuine concern that certain national leaders may see this as precedent to divert overflying civil aircraft carrying political dissidents. But it is important that the international community’s reaction recognizes the boundaries of international law and, if necessary, strengthens them. Otherwise, we risk undermining the foundation for the safe and orderly conduct of international aviation damaged by the small blow of the event itself.

The views expressed above are those of the author and do not necessarily reflect the views of the Eno Center for Transportation.

This is an updated version of article first published by JDA Journal, May 26, 2021. Reproduced with permission. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the author.

Irene E. Howie is an attorney in private practice specializing in domestic and international aviation regulatory matters. She served for several years as Assistant Chief Counsel for International Affairs and Legal Policy at the Federal Aviation Administration and was a partner at Hogan & Hartson, LLP, now Hogan Lovells.

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