Belarus’ ‘state-sponsored hijacking’ and how it violated international law

Introduction

Belarus is currently ruled by Alexander Lukashenko’s authoritarian government, which has been in power since 1994. While Belarus claims to be a democracy, elections are widely regarded as rigged and opposition media is aggressively censored. The country is ranked 158 out of 180 in the 2020 press freedom index. The clampdown on opposition media is highlighted by the arrest of Roman Protasevich, who was charged with terrorism and inciting public disorder and social hatred for covering the 2020 Belarusian presidential elections. In Belarus, promoting public disorder and social hatred is punishable by up to 12 years in jail and a charge of terrorism, with the possibility of the death penalty if convicted.

On 24th May 2021 the Belarusian government hijacked a Ryanair Flight FR4978 on route from Athens in Greece to Vilnius in Lithuania, to arrest an anti-government journalist Roman Protasevich. Roman Protasevich is a Belarusian journalist working for Nexta — an opposition media outlet in Belarus. Roman was a significant figure in anti-Alexander Lukashenko protests following the contentious presidential elections in 2020. Ryanair in its statement claims that it was notified by Belarusian air control of a potential safety threat onboard which forced them to land in Minsk. On the other hand, the current editor of Nexta claims that officers of Belarus’s State Security Committee known as the KGB were on board the plane and informed the crew about a potential bomb on the plane which forced them to issue an SOS requesting to land in Minsk. However, later Lukashenko had via a press service admitted that he had personally ordered the flight to land in Minsk. Belarus also scrambled a MIG-29 fighter plane to intercept and accompany the Ryanair flight. On landing at Minsk, Protasevich and his girlfriend who was travelling with him were immediately arrested. Following this, the Belarusian authorities admitted that there was no bomb on board and the flight could leave. It seems to be a ploy by the Belarusian government to force the plane to land in Minsk so that Protasevich and Sapega might be apprehended. Rather than accepting responsibility for its conduct, it has constructed a story claiming that they had received a text about a bomb threat from Hamas, which was manufactured in order to obtain a Gaza ceasefire for the then ongoing Israel-Palestine conflict and to compel the European Union to end its support for Israel in the conflict.

It is difficult to estimate the gravity of Belarus’ acts from the standpoint of international law. While international law is frequently condemned as being imprecise, unenforceable, and vulnerable to manipulation or convenient reinterpretation by strong parties, it is not true for all of it. Some regimes of international law, by the agreement of states, are quite straightforward. They have specifically articulated commitments to safeguard interests that are critical to the day-to-day operation of international society, as well as suitable adjudication routes. Belarus is a party to the host of treaties governing international civil aviation, including the 1944 Chicago Convention on International Civil Aviation and the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.

Violation of the Chicago and Montreal Convention and implication under international law.

A state has “full and exclusive authority over the airspace above its territory,” according to Article 1 of the Chicago Convention. As a result, when civil aircraft fly above a state’s national airspace, they are subject to the full jurisdiction of that state and can be intercepted and ordered to land at the designated airport. The Chicago Convention’s Article 3 bis (a) states that in the event of interception, the lives of those on board and the safety of aircraft shall not be jeopardised. Therefore, whether the Belarusian military jet’s interception and subsequent redirection of the plane to a more remote airfield may have jeopardised the safety of the crew and passengers will have to be determined by an independent investigation. Additionally, a state can only use suitable means compatible with relevant standards of international law to exercise its authority to ground an aircraft en route over its territory, according to Article 3bis(b). Therefore, theoretically Poland, as the state of the aircraft’s registration, can bring such a lawsuit. The Montreal Convention’s applicable requirements are intended to protect the collective interests of the group of governments that have signed the convention. As a result, they are erga omnes partes duties, meaning that all parties to the Convention can assert Belarus’ duty in accordance with Article 48(1)(a) ASR.

Further, Article 1(1)(e) of the Montreal Convention defines an international crime as when someone purposefully and fraudulently “communicates information that he knows to be incorrect, therefore compromising the safety of an aircraft in flight.” First, according to Article 10 of the Montreal Convention, a state shall “in accordance with international and national law, endeavor to take all practicable measures for the purpose of preventing the offenses mentioned in Article 1.” Second, Article 5 of the Convention mandates that the states establish jurisdiction for certain violations of civil aviation safety. There is no sign that the plane was in any danger, and given the accusations that the diversion had a hidden agenda, we can reasonably believe that the information supplied was purposefully false, endangering the jet’s safety. According to the evidence, Belarus appears to have committed a violation of Article 10(1) by failing to prevent the relevant offence from occurring. Since there is no sign that the plane was in any danger, and given the accusations that the diversion had a hidden agenda, we can reasonably believe that the information supplied was purposefully false, endangering the jet’s safety. Therefore, Belarus violated the Montreal Convention when it staged an emergency landing of Ryanair Flight based on a false bomb warning. Normally, a complaint against Belarus at the International Court of Justice (ICJ) in The Hague could be filed by either Poland, as the aircraft’s flag state, or any of the other 186 member nations of the Montreal Convention. However, in the present case, the ICJ would dismiss it on the grounds of lack of jurisdiction because Belarus made a reservation to Article 14 of the Montreal Convention’s dispute settlement clause, which gives the ICJ jurisdiction. However, Belarus failed to make a similar reservation to Article 87 of the Chicago Convention, which allows any dispute under the treaty to be referred to the Council of the International Civil Aviation Organization (ICAO).

As a result, we have a relative anomaly in international law: a state’s clear violation of two accepted international treaties, along with a clear path to the jurisdiction of an international court or tribunal. In international law, the remedy is also apparent. Poland, as the aircraft’s flag state and the victim of Belarus’ illegal act under international law, is entitled to full compensation. Belarus shall, as far as practicable, wipe out all the consequences of the illegal conduct and reinstate the situation which would, in all probability, have existed if it had not been committed as the Permanent Court of International Justice (PCIJ) articulated it in the Chorzów Factory case in 1928 that under the general principles of international law repatriation must be made when a violation of international law takes place. PCIJ held that “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed . Therefore, Protasevich must be allowed to depart Belarus, for Poland (or any other qualified state) to be made whole in the Chorzów Factory concept. As seen in the International Tribunal for the Law of the Sea similar instructions were issued in 2013 at the request of the Netherlands in the Arctic Sunrise case. On that occasion, a Dutch-flagged Greenpeace vessel was detained in the Russian exclusive economic zone with Russian nationals on board. The tribunal ruled that the vessel Arctic Sunrise, as well as all other people imprisoned in connection with the dispute, be released and permitted to depart the Russian Federation’s territory and maritime territories in exchange for a 3.6-million-euro bond.

According to the New York Times and various other media outlets covering the event, Lithuanian officials said the civilian plane was “hijacked by military force,” while the Greek Foreign Ministry said it was a “state hijacking.” However, this terminology seems to be out of place in this case, as a hijacking takes place only when a person on board an aircraft “seizes or exercises control of that aircraft (or attempts to do so) by threat or force or by other forms of intimidation”, according to the Convention for the Suppression of Unlawful Seizure of Aircraft. Despite the presence of Belarusian KGB agents on board, there is no evidence that they utilized intimidation, threats, or force to take control of the plane. If the agents had truly taken control of the plane, we could be dealing with a violation of the state’s commitment under Article 9 of The Hague Convention to “preserve the control” of the aircraft’s rightful commander.

Conclusion

Looking at the events that transpired in the case it seems that Belarus appears to have broken both the Chicago and Montreal Conventions by forcing the Ryanair flight to land in Minsk. Despite the fact that the Montreal Convention’s adjudication path is closed owing to Belarusian reservations, the Chicago Convention’s adjudication route remains open. Further, in the aftermath of the 2020 elections, after which President Lukashenko is widely regarded to have used state violence to stay in power, the Belarusian government has made it apparent that it will not change its actions in response to diplomatic condemnation. What happens when a particular state decides it is satisfied to go without the benefits of international society, which is the primary way of enforcement for international law? Belarus is far from becoming a “hermit kingdom,” as North Korea is, but there is no doubt that it is progressively, maybe irreversibly, backsliding, and that foreign action could speed this process. Refusing to act by the international community may thus herald in a new era of international air travel, in which airlines refuse to fly over specific locations or refuse to transport known political dissidents on board for fear of state-sponsored hijacking.

Vanshikha Choraria is reading Law at Jindal Global University. She is also a core member of the Jindal Society of International Law.

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