STATE-SPONSORED “HIJACKING”

On 23 May 2021, civilian Ryanair flight 4978, departing from Athens and travelling to Lithuania, was diverted by Belarusian authorities to land extraordinarily in Minsk, the capital of Belarus. With the pretext of a bomb threat on board, President Lukashenko ordered a fighter jet to intercept the European airliner while it was travelling through Belarus’ airspace, forcing it into a U-turn and to land in the Belarusian capital.

Among the 170 passengers on-board, government attention focussed on the prominent Belarusian dissident Roman Protasevich and his girlfriend Sofia Sapega, who were seized and led away by police upon landing in Minsk. Witness accounts speak of Protasevich visibly “panicking” and being heavily distressed after learning of the diversion, telling fellow passengers that a death sentence awaited him in Minsk. 

Roman Protasevich is a 26-year-old vocal government opponent, who contributed to the "Nexta" Telegram Channel, one of the few surviving independent media outlets in Belarus, mainly used to mobilise street protests in response to the ever-growing authoritarian rule. Both Protasevich and Sapega are currently under house arrest as of 25 June 2021, in separate locations, and appear to have confessed to their “crimes” in what largely resemble statements obtained under duress.

The incident gained worldwide attention for its brazen attack on civilians. This action by the Belarusian authorities has been condemned by foreign governments as “state-sponsored hijacking ,” “air piracy,” and “state terrorism”. It is alleged that the threat of a bomb on board the plane was a fabricated diversion, politically motivated to arrest the young dissident, and unprecedented in nature for its involvement of a civilian aircraft in European airspace. 

THE BROADER CONTEXT 

The Belarus government has been responsible for a pattern of dissent suppression and violent democratic crackdown, most notably after the August 2020 protests against Lukashenko’s heavily disputed election victory. 

As stated by international lawyer Max du Plessis during a panel discussion organised by Doughty Street Chambers (United Kingdom) on the topic, the Ryanair incident occurred in the context of a pervasive pattern of violent dissent suppression by the Belarusian state against its civilian population. The rights to peaceful assembly, association, and expression of the citizenry have been incrementally curtailed for the past 20 years. In addition, instances of torture against protesters, who are blacklisted and classed as “terrorists,” have mounted, creating fertile ground for arbitrary detentions and inhumane and degrading treatment in prisons.

In August 2020, after a mass outcry against Lukashenko’s allegedly rigged presidential elections, Belarus’ internal political crisis started to spill over its national borders, as reported by Katia Glod, expert and research analyst on Belarus, during the same panel discussion. What ensued was defined by Du Plessis as a dangerous “patterned transnational suppression,” where journalists, activists, and dissidents are terrorised globally. The tragic circumstances of journalist Jamal Khashoggi’s death in the Saudi Arabian consulate in Istanbul constitutes one glaring example of such transnational suppression by another state, which triggered a profound diplomatic crisis  in 2018.

The systemic nature of this politically motivated state violence – which evidences a pattern of alleged criminality – coupled with the resulting severe deprivation of civilian freedoms amounting to persecution, might constitute a crime against humanity under article 7 of the International Criminal Court (ICC) Statute. A crime against humanity is defined as a “widespread or systematic attack directed against any civilian population,” where torture, imprisonment, and persecutions are carried out by a state against the fundamental rules of international law. 

But what exactly is the position under international law?

INTERNATIONAL ACCOUNTABILITY FOR BELARUS 

During the panel discussion, Professor Nick Grief stated that international law prescribes certain norms for safe civil aviation, exercised in accordance with the principle of national sovereignty.  These are codified, among others, in the Chicago Convention on International Civil Aviation 1944, a United Nations (UN) multilateral treaty ratified by Belarus, which prohibits unlawful interference with a civil aircraft. 

Failure to comply with the treaty provisions results in the suspension of the contracting party’s voting rights in the UN Assembly and Council, but with little scope for a more substantial punitive action. However, the biggest obstacle in ensuring accountability lies in the provisions of the Convention’s first foundational article, which reaffirms a state’s “complete and exclusive sovereignty over the airspace above its territory,” granting Belarus immunity over its actions. The principle of state sovereignty is a core tenet of international law, strengthened through seminal judicial decisions, such as the Nicaragua case decided by the International Court of Justice.

Similarly, international law seems to exclude Belarus’ conduct from the legal definition of “piracy” (codified in articles 101-102 of the UN Convention on the Law of the Sea 1982), and “hijacking” (codified in the Tokyo Convention 1964 and The Hague Convention 1970), which require unlawful intervention or seizure from someone aboard the aircraft. The Belarusian interception was, by contrast, carried out by a military fighter jet from outside the aircraft.

Nonetheless, there seems to be a breach of articles 3bis (a) and (b) the Chicago Convention, for Belarus’ “aerial interceptions and use of weapons,” which potentially endangered the safety of the passengers aboard the aircraft. Additionally, there may be a breach of article 1(1)(e) of the Montreal Convention 1999 over the use of “false signals for the purposes of unlawful aircraft diversion”. The inherent risk of any aerial interception is recognized in annex 2 to the Chicago Convention, which states that any intervention is always potentially hazardous and shall be used as a last resort. 

The breach of the Chicago Convention subjects Belarus to the jurisdiction of the International Court of Justice. Individuals may also be subject to the criminal jurisdiction of Poland, which is the state where the Ryanair aircraft is legally registered. This particular element establishes a domestic link with the Polish jurisdiction, allowing it to bring national criminal proceedings against a foreign actor. Another option is universal jurisdiction, which is the legal ability of any state to bring domestic criminal proceedings against a foreign actor, regardless of where the crime was committed, the nationality of the accused, or other legal requirements, usually needed to initiate a national prosecution. Universal jurisdiction can be invoked when breaches of fundamental norms of international law, binding on every state, are alleged. These are called “jus cogens” norms, or “peremptory norms” in international law. 

INTERNATIONAL RESPONSE AND OUTRAGE 

Following nearly 27 years of relatively undisturbed authoritarian rule, Lukashenko’s recent actions were met with an unusually swift international response. The European Union (EU) has been prompt in agreeing on sweeping economic sanctions, as opposed to its previous symbolic blacklists which had little to no impact on Belarus factual trading capacity. Belarus’ most profitable industries are targeted, such as tobacco, wood, petroleum, and potash (a fertiliser compound which constitutes Belarus’ main export). Their direct import into EU markets is currently banned, as is indirect dealings with Belarusian companies operating in those markets. In addition, access to the EU capital market has been significantly limited, and air traffic through Belarus’ airspace, or via Belarusian carriers, has been halted. The agreed sanctions have officially entered into force on 24 June 2021, after being published in the EU Official Journal.

The imposition of strict economic sanctions will inevitably compromise Belarus’ diplomatic relations, especially with the EU and the United States. Notwithstanding the need to convey a strong international message of condemnation, Francois Zimeray, former French Ambassador for Human Rights, warns of the risks of cutting Belarus off from the EU foreign trading bloc. By so doing, he argues, Belarus will be pushed into the “arms” of Russia, that often have little regard for the citizens’ human rights and freedoms, and with which it already has close trade and political ties. He also argues that the agreed isolationist sanctions carry a very low leverage effect, because the magnitude of the EU-Belarus trade is trifling to begin with. To maximise accountability, the EU should refine its diplomatic relationship with Belarus, by severely sanctioning single individuals, yet focussing on developing durable economic relations with the country as a whole. This, says Zimeray, is the only viable long-term solution, as opposed to diminishing exchanges in the short term, with the considerable side-effects of polarising political positions. 

However, disrupting profitable supply chains by disabling the major operating companies in Belarus is the only pragmatist way to tackle impunity, says Natalia Kaliada, founder of activist platform “Belarus Free Theatre”. Kaliada’s chilling accounts of political repression and exiled Belarusian activists have made the global news on multiple occasions. She added that Magnitsky sanctions, which are targeted economic sanctions imposed through a global human rights accountability tool, are urgently needed to limit Lukashenko’s capital power.

STRATEGIC LITIGATION AND LEGAL CREATIVITY

Another important point to be considered is strategic litigation and legal creativity. The Ryanair flight diversion has once again proved the inefficacy of the current international law accountability regime, which ought to be revised and approached from different angles. Crucially, Russia retains a full veto power in the UN Security Council, which makes the prospect of any succeeding Resolution or sanction against its allied Belarus very bleak. The International Criminal Court also does not have universal jurisdiction to try the case. However, action can be taken by individual states. Taking the example from the successful German prosecution of Syrian officials for crimes against humanity – the first of its kind under international criminal law. Ten Belarusian individuals have already asked the German government to exercise its universal jurisdiction and prosecute Lukashenko for the crimes committed in the 2020 crackdown on democratic protests. 

The Ryanair scandal has exposed the gravity of an “internationalised” repression and transnational “terrorisation” of journalists, activists, and dissidents, which calls for a change in the way state and criminal liability attaches. However, it has also evidenced just how fragile the Belarus regime is, which has unashamedly risked it all to apprehend a young dissenting voice. As such, the international legal community and executives of many countries around the world hope that the strategic use of legal creativity, universal jurisdiction of national courts, and diplomatic negotiations will ultimately be capable of suppressing the decentralised terror threat, while stabilising overall international relations over a longer time span.

Diana is a law graduate, legal advisor and research assistant. She has worked in the fields of immigration, asylum and equality law. She strongly advocates for minority rights, social welfare and the rule of law. Diana holds an LL.B. in European and Comparative Law from Maastricht University and is currently studying the accelerated LL.B. at the University of Glasgow to qualify as a solicitor-advocate.

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