Canada’s Path to Justice from Iran Over Shot-Down Flight Will Be Hard
States have been historically reluctant to take responsibility for attacks on civilian planes.
Just after dawn on July 3, 1988, the USS Vincennes misread signals from a plane taking off from the Iranian coastal city of Bandar Abbas. Capt. William C. Rogers concluded that the plane was a F-14 fighter jet preparing for an attack run. The U.S. naval ship fired two surface-to-air missiles, one of which hit the jet.
Rogers soon learned that the plane he hit was not an F-14. It was Iran Air Flight 655. Onboard were 290 passengers and crew, mostly Iranian, all civilian.
Iran Air 655 was an unspeakable tragedy for Iran. History repeated itself this Wednesday when, once again, a civilian plane, destined for Ukraine and ultimately Toronto, was downed shortly after takeoff. As in 1988, the vast majority of the dead are Iranian or of Iranian descent—but this time it appears that Iran itself was the culprit.
At a Thursday afternoon press conference, Canadian Prime Minister Justin Trudeau confirmed that Western intelligence, both from the United States and other allies, strongly indicated that the Ukraine International Airlines flight was shot down by Iranian surface-to-air missiles, likely the Russian-made Tor-M1 anti-aircraft missile system. Videos posted by civilians seem to back up that theory.
According to the Canadians, the missile strike may well have been accidental—likely a byproduct of the revenge attack on American bases in Iraq—but the investigation is ongoing. Of the 176 people on board the Ukraine International Airlines flight, 57 (initially believed to be 63) were Canadian citizens —many others were transferring through Toronto.
The 1988 shootdown carries useful lessons. Since then, international law has evolved substantially, but it still remains largely toothless when it comes to the downing of civilian aircraft—and it may be up to Canada and Ukraine to seek justice for the dead.
In 1988, the Vincennes was in Iranian territorial waters, patrolling the Strait of Hormuz on guard against Iranian aggression. The Iran-Iraq War, already in its eighth year, had disrupted international shipping in the region, pushing a U.S. deployment to protect commercial traffic in the area.
Flight 655, the Pentagon initially claimed, had made an unusual descent that resembled that of an attacking jet. That maneuver, regardless of the considerable evidence that the jet was a commercial airliner, was enough to justify the missile strike. Later intelligence suggested that the plane was flying higher than first thought and that the error had been entirely on the American side.
Even so, in the days after the Iranian jet was shot down, then-U.S. President Ronald Reagan expressed his “deep regret” over the incident in a cable to Tehran.
The months that followed were less amicable.
Iran sought a resolution from the United Nations Security Council condemning America’s actions, which it did not get. The next year, Tehran went to the International Court of Justice, starting proceedings under a pair of international conventions governing civil air travel.
From the outset, however, the United States argued that the international court had no jurisdiction to hear the case and that the incident could not be decided under the two treaties.
Washington eventually offered to settle with Tehran, with the case still before the court. The two sides signed a settlement agreement in 1996 for $131.8 million. As part of the settlement, the United States recognized the downing as a “terrible human tragedy and expressed deep regret over the loss of lives caused by the incident.” It did not, however, accept responsibility.
Even before the Ukrainian jet was shot down on Wednesday, the memory of Flight 655 was back in the news—invoked by Iranian President Hassan Rouhani on Monday as threats escalated between Tehran and Washington.
Beyond the downing of Flight 655, there have been numerous instances in which states have been found responsible for attacks on civil aircraft. The results of trying to hold them responsible has been a mixed bag.
In 1983, Korean Air Lines Flight 007 was shot down by a Soviet Su-15 fighter jet, killing 269 people. Soviet military personnel concluded the flight, which had drifted into protected airspace east of Russia, was a U.S. spy plane. A full investigation into the incident was made nearly impossible due to Soviet obfuscation at the time—the black box recording was not made public until after the dissolution of the Soviet Union. It was the second Korean plane struck by the Soviets in five years – the first, Korean Air Lines 902 in 1978, managed to make an emergency landing with only two deaths.
At the time, the international community slapped sanctions on the USSR for the disaster, and a U.N. Security Council resolution stating the use of force on civilian aircraft was “incompatible with the norms governing international behavior” was introduced but vetoed by Moscow.
The disaster prompted the International Civil Aviation Organization to adopt a measure now known as Article 3bis of the Chicago Convention, stating that “every state must refrain from resorting to the use of weapons against civil aircraft in flight.” The article didn’t take effect, as it wasn’t ratified by a sufficient number of member states.
Just five months after the Iran Air flight was shot down in 1988, Pan Am Flight 103 exploded and crashed near Lockerbie, Scotland, killing all 270 people on board—mostly Americans. Investigators found evidence that plastic explosives had been packed into a boombox, blowing a hole in the plane’s fuselage.
U.S. intelligence identified two suspects, identifying them as working for Libyan intelligence. Libyan dictator Muammar al-Qaddafi initially refused to hand over the two men for trial before acquiescing. One of the two accused was convicted, although there was a belief that other more senior officials ultimately escaped justice. In the end, Qaddafi agreed to pay $2.7 billion in compensation to the victims’ families.
Article 3bis of the Chicago Convention would eventually be ratified, in 1998. Initially, it seemed to create a standard for how military downings of civilian aircraft should be handled. When Ukraine in 2001 inadvertently shot down a Tupolev Tu-154 plane, en route from Israel to Russia, it initially denied responsibility. After an investigation found its military responsible, it accepted full responsibility and signed a settlement agreement with both Israel and Russia.
But the more recent shootdown of Malaysia Airlines Flight 17 shows that international law is still ill equipped to handle states that refuse to take responsibility for their own actions. The flight was shot down by surface-to-air missiles in eastern Ukraine in 2014, landing in a field in Donetsk, the site of intense fighting between the Ukrainian military and Russian-speaking separatists supported by the Russian military.
The Netherlands handled the primary investigation, as the flight had departed from Amsterdam and the majority of passengers were Dutch. The investigation concluded that a Buk surface-to-air missile was responsible for the crash, and evidence points to the missile being launched from rebel-held territory.
As a result of the Dutch report, the International Civil Aviation Organization adopted new rules for how civil aircraft operate in or near conflict zones. Those new rules hold the state responsible for safety in airspace it controls, which includes ensuring that lines of communication between aircraft and local military assets is functional and communicating risks to airlines and airports.
It’s unclear if Russia will face charges in the International Court of Justice for its role in the strike, though it has thus far denied any responsibility. If it goes forward, it will likely be the first real test of how the Chicago Convention governs these shorts of cases.
However, even if Article 3bis is a major step forward for legal accountability, it contains a massive loophole, recognizing that it does not infringe on states’ right, under the U.N. Charter, to self-defense. There are differing views in academia as to whether that clause, in effect, permits the shooting down of civilian aircraft if a state can invoke its own self-defense as justification.
Even still, given Tehran’s past insistence that international law should govern the shooting down of civilian aircraft, be it accidental or intentional, it may be difficult for the regime to now skirt culpability if a claim is filed with the International Court of Justice. Iran, Ukraine, and Canada are all parties to the Chicago Convention.
But it may well fall on Trudeau to hold Iran accountable in a way that the Dutch were unable to do with Russia, at least to date. On Thursday, Trudeau called Dutch Prime Minister Mark Rutte to discuss his country’s experience with Malaysia Airlines Flight 17. Trudeau told reporters that Rutte highlighted the need to build “direct and real relationships with all different elements involved in the crash,” including those who possibly downed the plane.
Thus far, Iran has insisted that the flight recorders must stay in Iran, although it has agreed to let Ukrainian investigators study their contents. Iran has also said it would allow Canadian officials to join the investigation.
But Iranian officials are disputing the conclusion that a surface-to-air missile was responsible for the crash. “We can say that the airplane, considering the kind of the crash and the pilot’s efforts to return it to Imam Khomeini airport, didn’t explode in the air. So, the allegation that it was hit by missiles is totally ruled out,” Ali Abedzadeh, the head of the Iran Civil Aviation Organization, told state-owned PressTV on Thursday. (Update: Iran admitted responsibility for the crash early in the morning on Saturday, after initial denials.)
Should a final Iranian report conclude that mechanical failure was responsible for the crash, it’s unclear whether Tehran can really be held to account through international law.
Ottawa is eager to press the matter. Trudeau, speaking with reporters Thursday, iterated that a “credible” investigation is a first step before Canada can consider legal action or diplomatic penalties for Iran. “I think those are conversations and steps we will contemplate as things move forward if it doesn’t appear that there is a credible, complete investigation, but right now, we continue to work with partners and, and direct Iran with our requests that we have a credible and complete investigation,” he said.
A Canadian official told Foreign Policy that the Canadian government intends to see the investigation through. Should Iran be found responsible, however, the official confirmed that the International Court of Justice would be the body responsible for handling any international legal action. Ukraine’s Foreign minister Vadym Prystaiko also suggested, on Friday, that Kyiv could pursue legal recourse, potentially through the U.N.
There are good reasons for Iran to admit culpability—and Canada is in a novel position to force the issue, should it refuse. With tensions still high in the region, Tehran cannot afford to alienate other Western nations, especially those trying desperately to hold together the Iran nuclear deal.
Canada, in particular, has inched toward normalizing relations with Tehran. While it is not party to the 2015 deal, it has, in recent years, eliminated many of its own sanctions on the Iranian state. The Trudeau government also committed to reestablishing diplomatic relations with Iran, beginning with high-level meetings with the theocratic regime, though that has yet to happen—and now seems unlikely, given the current climate. As the investigation goes on, Canada is represented by the Italian Embassy in Tehran.
The Iranian regime is keen to reestablish Western relations, as reintegrating into the global community will ease pressures on the Iranian economy. Popular protests over the cost of living have rocked the regime, leading to a harsh crackdown. Now the state is sure to face internal questions over its downing of the jet, given that the majority of those killed either lived in Iran or were of Iranian descent.
But should Iran continue to skirt responsibility and hamper an independent investigation, Ottawa may look to further isolate Tehran from the international community—and the toothlessness of air law may be reinforced.