Fri, Jan 8, 2021

Will the families of PS752 ever receive justice?

IranSource by Gissou Nia

Iran Middle East Politics & Diplomacy

Meisam Salahi, whose younger brother Mohsen Salahi and sister-in-law Mahsa Amirliravi, were killed in the Ukrainian passenger jet shot down in Iran, looks at a photo of his brother and sister-in-law at his home in the Toronto suburb of Richmond Hill, Ontario, Canada January 31, 2020. Picture taken January 31, 2020. REUTERS/Carlos Osorio

January 8, 2020 marks one year since Iran’s Islamic Revolutionary Guard Corps (IRGC) shot down a civilian passenger plane, Ukraine International Airlines Flight 752 (PS752), in Iranian airspace. The tragic incident killed all 176 people onboard. The passengers and crew included 138 people who were nationals, residents, or otherwise tied to Canada, as well as victims from Iran, Ukraine, Sweden, Afghanistan and the United Kingdom.

One year on, serious questions remain about the crash and its aftermath. Why did Iranian authorities not shut down the airspace to civilian aircraft during a time when a military strike by the United States was a possibility? Why did Iranian authorities choose to delay, by three days, the release of information that the IRGC had shot down PS752? And why have the families of the victims been subjected to intimidation and harassment by agents of the Islamic Republic for simply seeking answers about what happened to their loved ones?

The families of the victims are entitled to truth, justice, and reparations. The efforts undertaken on behalf of those aggrieved include diplomatic efforts, arbitration, civil litigation, and the possibility of criminal inquiries.

The Association of Families of Flight PS752 Victims—a group of family members of the PS752 victims seeking justice—launched a crowdfunding campaign in the week leading up to the one-year anniversary of the downing to raise the legal funds needed to bring the perpetrators before an international tribunal. The crowd funding campaign surpassed their monetary goal of $100,000 in just one day after announcing the campaign, with more than 2,000 people participating in the campaign at the time of this writing—one of the more impressive fundraising initiatives by the Iranian diaspora community to date.

While a case before an international tribunal has yet to be brought on PS752, a number of litigation efforts are currently pending or in the pipeline.

Claims against the airline and insurance companies

Some of the family members of PS752 victims have retained law firms in Canada to bring claims against Ukraine International Airlines and insurance companies. Most airlines maintain liability insurance that can pay compensation to families in the event of death or injury of a passenger, including death and injury from a military shootdown. In this case, Tokio Marine Kiln has been reported as the lead insurer on the war insurance policy for Ukraine International Airlines, while Global Aerospace leads the airline’s aviation all risks policy.

Compensation is a particular sticking point since it is unclear whether or not the Islamic Republic will compensate families of victims, in compliance with its obligations under international law. At the end of December, Iran’s Cabinet allocated $150,000 to the families of each PS752 victim.

Notably, that amount is in line with the upper limit of the carrier liability amount for death or injury of passengers set forth in Article 21 of the Montreal Convention 1999 (MC99). The treaty establishes airline liability in the case of death or injury to passengers, as well as in cases of delay, damage, or loss of baggage and cargo. The MC99 addresses the compensation owed by airlines to passengers, but it does not cover the wrongful acts of a state and its international responsibility or the compensation owed to harmed passengers. Iran has not ratified the MC99 but Ukraine and Canada have.

Given the murky details surrounding the nature of the shootdown, the discussion around which insurance carrier will need to bear the cost could be protracted. The discussion will also be impacted by what obligations the state has with respect to reparations, which depends on the nature of their responsibility.

Terrorism-related litigation in national courts

Some of the families of PS752 victims have pursued an alternative route to compensation by seeking reparations as part of terrorism-related lawsuits in Canada and the United States.

Canada and the US are unique in the world for carving out an exception to state immunity for acts of terrorism. This means private plaintiffs can bring a suit against a foreign state that has been designated as a state sponsor of terrorism for acts of terrorism. The Islamic Republic of Iran has been listed as a state sponsor of terrorism by both the governments of Canada and the US. Therefore, PS752 families can use legal authorities to bring a suit against the Islamic Republic for the actions of the IRGC.  

One suit, filed in Canadian courts, alleges that PS752 was shot down as a deliberate act of terrorism, or that the Islamic Republic acted in a reckless, wanton, and high-handed manner that amounted to a terrorist act. The suit relies on the Justice for Victims of Terrorism Act (JVTA), which provides that Canadian citizens and permanent residents of Canada who are victims of terrorism, as well as others if the action has a real and substantial connection to Canada, can seek redress through a civil action for terrorist acts committed anywhere in the world on or after January 1, 1985.

Given that Iran has not been forthcoming on some key questions related to the IRGC’s liability for the shootdown and state of mind and motive evidence, the JVTA standard may be tough to meet.

In addition to this suit that alleges terrorism, another Canadian firm has filed a class-action suit against the Islamic Republic alleging a negligence theory of liability. Canada’s federal government served the Islamic Republic with both suits in September 2020.

The US-based family members of PS752 victims have also filed a terrorism-related suit against the Islamic Republic in US federal court. The plaintiffs rely on Section 1605A of the US Code, or what is commonly referred to as the “terrorism exception” to the Foreign Sovereign Immunities Act, to bring their claims. The terrorism exception creates a private right of action against a foreign nation sponsoring terrorism under limited circumstances for certain damages, including economic loss, pain and suffering, and punitive damages. Claims can arise from underlying conduct involving a range of acts, including aircraft sabotage or the provision of material support or resources for aircraft sabotage, resulting in personal injury or death.

International Court of Justice

After the tragedy on January 8, 2020, many initial calls for justice demanded that Canada or another country take the Islamic Republic of Iran to the International Court of Justice (ICJ)—a global court based in The Hague, Netherlands that settles state-to-state disputes. There were also calls to bring IRGC perpetrators before the International Criminal Court (ICC), also based in The Hague. While the ICJ addresses state-level violations of international law, the ICC exercises criminal jurisdiction over individuals. For reasons that exceed the scope of this writing, the ICC would not be a viable forum for the PS752 matter on jurisdictional and evidentiary grounds at this time. With respect to the ICJ, while calls for justice were immediate following the shootdown, bringing the PS752 case before the ICJ is, in part, a matter of “running out the clock.”

Iran is bound by several international treaties governing civil aviation, including the Convention on International Civil Aviation (Chicago Convention) and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention 1971). The obligations under these conventions include the non-use of weapons against civil aircraft in flight and the duty to prohibit, prevent, and punish the destruction of an aircraft in service. Any breach of these obligations must first be resolved through state-to-state negotiations.

In the case of breaches of the Chicago Convention, if negotiations to resolve disputes are not fruitful, then per Article 84 of the agreement the dispute may go before the Council of the International Civil Aviation Organization (ICAO), a specialized agency of the United Nations (UN) that works in cooperation with the UN’s 193 member states to enable and maintain global civil air transportation. Any decision by the ICAO Council may then be appealed at the ICJ. Per Article 14 of the Montreal Convention 1971, states must try and resolve any disputes through negotiation first and then arbitration before the dispute can be referred to the ICJ.

In short, the ICJ could be an option to bring a legal claim arising out of these conventions—should a state agree to bring the claim against Iran—but only if negotiations and arbitration to resolve the issues have proved unsuccessful.

Other claims

However, another path could be available on other claims related to Iran’s obligations under international humanitarian law and international criminal law—should more information come to light.

In a report released in December 2020 by the Honorable Ralph Goodale, the special advisor to Prime Minister Justin Trudeau on Canada’s response to the downing of PS752, he noted the following with respect to Iran’s decision-making on that night:

“Reacting to the reality of a shooting war in the region, the US Federal Aviation Administration (FAA) issued an official notice (NOTAM) ordering American civilian aircraft to avoid an area roughly from the Mediterranean Sea to the Gulf of Oman, including all of Iran. Commercial airlines from other countries—Canada, Australia, and Singapore, for example—also steered clear. Ready for the Americans to shoot back, Iran had placed its air defen[s]e system on high alert […] Iran did not, however, close its airspace to civilian traffic.”

In his report, Goodale also noted an audio recording obtained by Canadian media of a telephone call from a senior Iranian official to a Canada-based family member of a PS752 victim. In it, the official “suggested Iran’s airspace remained open throughout the relevant period to avoid disrupting scheduled traffic or tipping off the Americans about Iranian military activity.”

This supports earlier assertions directly following the shootdown that Iranian authorities kept the airspace open to deter a US attack on the airport or a nearby military base out of the belief that US forces would be hesitant to strike amidst the presence of civilian passenger planes. If true, this would mean that the Iranian authorities turned planeloads of passengers into human shields by omission, thereby violating the law of armed conflict and possibly committing war crimes.

The question of whether there may be more serious allegations about the Islamic Republic’s conduct was also raised by a media interview with Canada’s Foreign Minister, François-Philippe Champagne, following the release of the Goodale report. In that interview, Champagne said he did not believe that “human error” was the cause of the downing and noted that Iranian authorities have failed to address key questions concerning the chain of command and military decisions that day.

Time will reveal whether more information is forthcoming or if states are at an information impasse. If Iranian authorities fail to fully comply with the investigation queries, they may soon see themselves in an international court.

Gissou Nia is a senior fellow with Middle East Programs at the Atlantic Council. She currently leads an effort to build a strategic litigation program on the Middle East and North Africa, with an initial focus on Iran. Follow her on Twitter: @GissouNia.

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