On May 23, a Ryanair flight was forced to make an emergency landing in Minsk by a MiG-29 fighter jet of Belarus. The dissident Belarussian journalist, Roman Protasevich , who was travelling in the commercial, civilian aircraft, was subsequently arrested. The whole operation, it is alleged, was carried out on the orders of President Alexander Lukashenko, who has ruled Belarus for 27 years.
The incident received considerable global attention. The European Union (EU) and the U.S. denounced it and called for a thorough investigation by the International Civil Aviation Organization (ICAO). EU-based carriers have since heeded the call to avoid overflight of Belarus. Belarusian flights have been barred from overflying EU airspace or landing at its airports. Air France, British Airways, Lufthansa, KLM and a host of other airlines have implemented their own suspensions.
At a special meeting convened on May 27, the ICAO Council expressed strong concern at the incident and launched a fact-finding investigation. Official requests for information were sent out to the countries involved in the event. Belarus and Poland have provided some preliminary details. Information is awaited from Greece, Ireland, Lithuania and Switzerland. An interim report is expected to be presented to the ICAO Council by the end of its current session, on or near June 23. The report is expected to be considered only at the next session, which begins on September 13.
European Commission President Ursula von der Leyen called the incident an “attack on democracy”, an “attack on freedom of expression”, and an “attack on European sovereignty”. The U.S., EU, and the U.K. have slapped further sanctions on Belarus. How justified was Belarus in taking such a decision? The answer lies at the junction of Belarus’s domestic laws as a sovereign country and international laws governing the action that states can legitimately take to deal with threats to security, real or perceived.
Not the first of its kind
The flight that the 26-year-old fugitive blogger boarded was operated by the Irish low-cost airline, Ryanair. It was on its way from Greece to Lithuania. While traversing the airspace of Belarus, an ostensible ‘bomb scare’ forced the aircraft to make an emergency landing in Minsk for standard checks. It turned out to be a false alarm. Mr. Protasevich, whose presence on board is suspected to be the real reason behind the action, was taken into custody soon after.
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According to media reports, Mr. Protasevich, who had fled Belarus for Poland in 2019, had been in Greece to attend an economic conference with other Belarusian dissidents. There, the blogger also covered the visit of exiled Belarus Opposition leader Sviatlana Tsikhanouskaya.
If convicted, he could face a long prison term or worse. After all, Belarus is the only country in Europe that hands down the death penalty.
Mr. Protasevich’s case is not the first of its kind. Abdolmalek Rigi, head of the Jundullah militant group, accused by Iran for fomenting attacks in the province of Sistan-Baluchistan, was similarly arrested in February 2010. According to Iranian media reports, Rigi’s plane was forced to land in Bandar Abbas by Iranian aircraft while on a flight from Dubai to Bishkek in Kyrgyzstan. Rigi was subsequently tried and executed. Itek Air, a small Bishkek-based airline, folded up in 2010 for unrelated reasons. There is no direct parallel between Mr. Protasevich and Rigi except that both men were wanted by the governments of their respective countries and their custody was secured through very unconventional means.
Pressure to divert passenger aircraft from preordained flight paths could be on grounds of a security threat or for political reasons. In 2013, during the manhunt by the U.S. for National Security Agency whistle-blower Edward Snowden, Bolivian President Evo Morales’s plane was forced to land in Austria after several European countries refused the aircraft permission to enter their airspace, allegedly due to pressure from the U.S. According to reports, there was suspicion that Mr. Snowden might have boarded the President’s plane in Moscow. As it turned out, Mr. Snowden, who later obtained asylum and stayed on in Moscow, was not in the aircraft. Following the incident, seven Latin American countries voiced their concerns to the then UN Secretary-General, Ban Ki-Moon, who asserted that “a Head of State and his or her aircraft enjoy immunity and inviolability”.
An issue with many dimensions
The issue of the use of military aircraft to neutralise potential threats posed by civilian aircraft acquired a different kind of urgency in the aftermath of terrorist attacks in the U.S. on September 11, 2001. Generally speaking, international law grants sovereignty to nations over their airspace as it does in territorial waters. The Convention on International Civil Aviation, better known as the Chicago Convention of 1944, to which Belarus is a signatory state, prohibits any unlawful intervention against a civilian aircraft. At the same time, it has various provisions under Article 9 which permit a sovereign state the right to impose restrictions, including enforced landings at a designated airport in its territory, in “exceptional circumstances or during a period of emergency, or in the interest of public safety”. Once a flight has landed, Article 16 provides the host country the right to board/search the aircraft. This is probably the clause that provided cover for the local authorities to board Mr. Morales’s aircraft in Austria in 2013. But the Chicago Convention applies only to civilian aircraft of the contracting parties. In this case, the national carrier, Belavia Belarusian Airlines, is not involved though it is part of the targeted sanctions by the EU.
Also read | EU agrees additional Belarus sanctions after forced Ryanair landing
International law might also have to be examined in light of the International Air Services Transit Agreement (IASTA), also concluded in Chicago in 1944. According to this agreement, contracting states grant to one another the freedom of air transit in respect of scheduled international air services, that is, the privilege to fly across territories without landing. Belarus is not a signatory of IASTA. For that matter, neither is Russia, which is the main supporter of Mr. Lukashenko.
Given the multiple interpretations possible under the Chicago Convention and related agreements, the investigation could be a long-drawn-out affair. The International Court of Justice does consider ICAO-related cases, but it cannot enforce its decisions. The United Nations Security Council is a divided house and, in any case, does not consider unlisted agenda unless the case constitutes a major threat to international peace and security. This is not a matter that easily lends itself to technical consideration, given that it goes beyond the issue of a forced landing of a civilian airliner to encompass broader geopolitical issues. A meaningful outcome from the ICAO investigation may therefore prove evasive.
Sujan R. Chinoy, a former Ambassador, is the Director General of the Manohar Parrikar Institute for Defence Studies and Analyses, New Delhi; views are personal