January 8 marked the one-year anniversary of the accidental downing of Ukrainian International Airlines flight PS752 by the Iranian Revolutionary Guard Corps (IRGC) in Tehran. The incident, which killed all 176 passengers and crew members on board, drew widespread international attention and outrage, both against Iran’s actions (and subsequent investigations into the matter) and the airline itself, for flying through a potential conflict zone. Sadly, however, such tragedies, though preventable, are not as infrequent as they should be. In fact, there is a long history of civilian planes being mistakenly shot down in times of geopolitical conflict:
- 1973: A Libyan Arab Airline plane from Tripoli to Cairo was downed by Israeli fighter jets over the Sinai desert, killing 108 of the 112 people on board.
- 1983: A USSR fighter jet shot down a Korean Air Lines plane that had made its way into Soviet airspace at the same time as an American reconnaissance aircraft.
- 1988: 290 people were killed when a US warship (USS Vincennes) shot down Iran Air Flight 655, assuming it was an incoming warplane.
- 2001: Ukraine’s armed forces erroneously targeted a Russian airliner returning home from Israel during a military exercise, killing 78 people.
- 2014: Russian-backed separatists shot down Malaysia Airlines flight MH17 over eastern Ukraine, killing 298 people.
At first glance, the solution to such accidents seems fairly simple and straightforward: shutting down dangerous airspaces. The downing of flight PS752, for instance, took place amid significantly heightened tensions between Iran and the United States (US) in the aftermath of IRGC leader Gen. Soleimani’s assassination, and ideally, Iran should have promptly closed its airspace, given the fact that it was already on alert after firing more than a dozen ballistic missiles at Iraqi bases hosting American troops and had deployed anti-aircraft systems near its main international airport.
However, as stated in a Dutch government report looking into the MH17 incident, the country’s decision to keep its airspace open reflected a common practice wherein states experiencing instability or armed conflict are often hesitant to implement airspace restrictions over fears of the damage it may have on their reputation, as it may depict them as a state who can’t control its own airspace. At the same time, such states are also concerned about losing revenue from overflight permits. Additionally, international aviation law does not impose upon nations a clearly defined obligation to close their airspace in case of conflicts.
These discrepancies must be addressed so that states do not violate international humanitarian law (IHL) through such unintentional strikes and so that they are forced to protect civilian life and infrastructure at all times. Admittedly, there have been some improvements in the establishment of international guidelines and initiatives aimed at safeguarding civilian flight operations in or around conflict zones, wherein states are required to communicate risks to airlines and airports; however, the mechanisms for their implementation are inadequate. There is currently no international body with an explicit mandate to collate this kind of intelligence and publish warnings regarding the safety of airspace, and while national aviation regulators can stop their planes from flying through another country if they deem it to be high-risk, such assessments vary across the nations and airlines may be reluctant to deal with the high costs of detours and cancellations in the absence of overwhelmingly compelling reasons to do so.
Things can get even more complicated in the case of disputed territories, like Eastern Ukraine, where airline operators could get confusing and contradictory directives from two different aviation authorities. In the absence of an international body to relay proper information, experts have recommended that airlines strengthen their capacities for risk assessment when planning flight routes and make their choice of flight paths available to the public to encourage accountability and transparency on the part of carriers.
In the aftermath of MH17, though the UN’s International Civil Aviation Organization (ICAO) created a “conflict zone information repository” (which was basically a database of notices issued by member states alerting airlines to ongoing hazards to flights), it is no longer operational because it was not utilized enough. Countries were reluctant to explicitly state that there was conflict within their borders or within those of others, due to the diplomatic ramifications of publishing such warnings. And the ICAO, which is made up of these states, was in no position to pressure them into doing so. To tackle this issue, some airlines like Emirates, for instance, have suggested the establishment of a new independent, non-governmental body to gather intelligence and publish such warnings.
Apart from strengthening warning systems in case of threats to civilian aircraft, it is equally important to create robust systems that can conduct impartial investigations into accidents should they occur. The United Nation’s Special Rapporteur on Extrajudicial, Summary or Arbitrary Killings, Ms. Agnès Callamard, has noted the inadequacies in current international protocols for inquiries into such incidents, especially in cases where the state in charge of the probe is also the one responsible for the attack against a civilian airliner.
For example, Iran’s probe into the downing of flight PS752 has been met with severe criticism over the past year in this regard, with Canada, who had a significant number of its citizens on board, accusing the country of investigating itself “largely in secret,” which it said, “does not inspire confidence or trust.” Accordingly, Ms. Callamard has called for investigation standards to be modified to ensure that all parties involved in the incident (including the victims’ countries) are able to participate in any fact-finding missions and to establish independent, third party commissions, in case cooperation between the primary parties seems difficult.
Further, if countries fail to acknowledge their mistakes and do not take responsibility for their actions that cause civilian harm, the international community should consider sanctions against the country in question. In fact, the ICAO could be a platform to introduce such measures, consistent with the Chicago Convention and the Articles and Annexes it contains under international law. The international system has all it needs to ensure the safety of civilian airplanes in conflict zones. All that is needed is robust and sustained political will to address these challenges. However, with the urgency of the COVID-19 pandemic and its devastating economic fallout consuming world attention right now, progress may be slow.