Human Lives Human Rights: In the previous part, we examined the validity of the claims made by Iran’s military officials regarding the cause of the downing of Ukrainian Airlines Flight PS752, and now we will review the same from the perspective of international law.
The legal responsibility of Iran in the case of the Ukrainian passenger plane crash is a complex and multifaceted issue. Iran should make every effort and cooperation to secure the rights of the survivors and the Ukrainian airline company, and not to neglect this crime and the rights of the victims due to the passage of time. This obligation stems from the fact that Iran has ratified the International Civil Aviation Agreement (Chicago Convention) that was signed in 1944 in America.
According to the Chicago Convention, Iran is responsible for ensuring the safety of foreign aircrafts while they are in its airspace. Article 9 of this convention also addresses the issue of prohibited areas, and in paragraph “b” of this article, it clearly states that each contracting state may prohibit or restrict the flight of civil aircrafts over its territory in case of emergency or when public safety is involved. These conditions are very similar to the situation that led to the downing of the Ukrainian plane, because according to the Chicago Convention, the Iranian government was obliged to declare its airspace a prohibited area on the night of the incident.
At that time, Iran had launched missile attacks on the US base in Ain al-Assad in Iraq and was on military alert for a possible war with the US. However, according to the statements of the relevant officials in the media, the Ukrainian plane did not receive any warning that flying was prohibited under those circumstances. Although by examining the black box of this plane and accessing the last conversations of the pilot with the control tower, one can better understand what happened at that moment, but based on these statements, it is not possible to interpret the “prohibition of flight” mentioned in this article as implying the possibility of being attacked and shot down. Moreover, we can refer to Article 10 of the National Aircraft Law, which states: “In cases where public security or military reasons require it, with the approval of the Council of Ministers or the Supreme National Security Council, it can prohibit or limit the flight of Iranian or foreign aircrafts over a part of its territory or restrict it to certain conditions.”
Therefore, the failure of timely action by the government and the relevant military authorities in implementing Article 10 of the National Aircraft Law is a clear example of carelessness and non-observance of government regulations, and the final human error by the military authorities is actually the outcome of a series of other human errors that caused this incident and the targeting of the Ukrainian Boeing plane. According to articles 506 and 526 of the Islamic Penal Code enacted in 2012, all agents and stewards are responsible in this field and based on international regulations and treaties, this issue should be addressed.
Another aspect of Iran’s legal responsibility in the case of the Ukrainian passenger plane crash is the international dimension. According to the 2001 draft articles on the responsibility of states for internationally wrongful acts, there are two elements for a wrongful act to entail state responsibility: the attribution of the act to the state and the breach of an international obligation by the state. In this case, these two elements are present and result in Iran’s international responsibility.
Furthermore, according to articles 4 and 5 of this draft, the conduct of state organs or of persons or entities exercising elements of governmental authority can also engage state responsibility if the two elements mentioned in Article 2 are met.
Another issue that is relevant to this discussion is the possibility of a US military attack on Iran’s territory in response to Iran’s missile attack on the Ain al-Assad base in Iraq. According to Iranian authorities, there was a risk that the US government would launch a military strike against Iran on the night of the incident to retaliate for the attack on Ain al-Assad. However, Iran has not provided any evidence of an imminent US attack on Iran.
In a situation of war, civilians may be identified and targeted as enemy forces not only based on their conduct, but also because of their location. Therefore, it is essential to avoid applying the laws of war where there is no war. Moreover, using the term “war on terrorism” does not justify the actual conditions of war.
This does not mean that terrorist acts cannot create a situation of war, but the war must have two parties that are organized and under clear command, that are capable of complying with the laws of war (whether they do so in practice or not), and that accept its consequences.
Therefore, although Iran’s conduct may rightly place it within the framework of “state sponsorship of terrorism”, this fact alone does not confirm the existence of a situation of war between the US and Iran.
Even in a situation of war, there are limits to the use of force. For example, taking precautionary measures to avoid civilian casualties or refraining from attacking combatants if civilian harm is expected. Based on this, even if Iran had considered itself in a situation of war, which seems to be an unfounded claim, still targeting a civilian aircraft is a clear example of a grave war crime.
Based on these arguments, Iran’s crime in shooting down the Ukrainian passenger plane is evident, and Iran cannot escape from the heavy responsibility of targeting the Ukrainian civilian plane with the claims of the possibility of a military attack, the right of self-defense, or human error.