On the 23rd of May, 2021, a RyanAir flight departing from Greece to Lithuania was forced to land in Minsk by Belarus authorities. As the plane was flying over the Belarusian airspace, air traffic controllers notified the pilots of a potential bomb threat on board. During the plane’s stop in Minsk, two passengers were detained by Belarusian authorities. One of the passengers detained was Roman Protasevich, a Belarusian journalist and known dissident who has played a key role in protests against Belarusian President, Alexander Lukashenko, and the other was his partner. The timing of the threat and the arrests has brought into question the intentions of Belarus and has raised fears of this incident creating a dangerous precedent.
A DANGEROUS PRECEDENT
Roman Protasevich is a 26-year-old activist and opposition journalist who is a co-founder and former editor of NEXTA, a Telegram blogging channel. It had become a popular source for dissidents of Lukashenko to share information and organize protests against the Belarus government. In 2019, Protasevich fled the country but continued to criticize the Lukashenko regime, resulting in him being charged with inciting public disorder and social hatred earlier in November, and subsequently labelled as a terrorist.
Lukashenko had recently won another landslide election and had been met with demonstrations and strikes since the victory of his sixth presidential term. According to The Guardian, “more than 35,000 people have been arrested, thousands have been tortured or abused, and 400 political prisoners are currently behind bars” as part of Lukashenko’s campaign against opponents. The Lukashenko regime’s fears surrounding Protasevich and his influence led to a new and extreme measure of capturing political dissidents. According to Belarusian state media, Belta, Lukashenko personally authorized the landing of Ryanair flight 4978 and dispatched a MIG-29 fighter jet to escort the plane’s landing. Much to the disbelief of the West, Belarusian authorities also claim that the pilots were not forced and by an act of urgency made a decision to land in Minsk.
Although details of the incident are still coming to light, there is a growing fear that this incident may set a new precedent amongst authoritarian states. Historically, there have undoubtedly been instances of terrorist hijackings and the shooting down of civilian planes, and poisoning. However, the bending of air traffic control rules to abduct a passenger on a commercial flight is something new and troubling.
INTERNATIONAL COMMUNITY RESPONSES
Given the fears that this incident could create a precedent in the international community, there has been swift action to take a multilateral approach in responding to it. Since the incident, many states have condemned the actions of Belarus. For example, The Republic of Ireland, where the airline originates, strongly condemned the forced diversion of the flight, with Foreign Minister Simon Coveney telling public broadcaster RTE that “this was effectively aviation piracy, state-sponsored”. The United States Secretary of State, Anthony Blinken also strongly condemned the arrest of Protasevich and called for the journalist’s release. Other state reactions condemning this incident have included responses from Poland, France, UK, Lithuania, Greece, and Italy.
The international community has also responded to this incident through the use of sanctions and flight bans. European Union (EU) leaders have agreed to impose further economic sanctions on Belarus. However, it is expected that these new sanctions will be finalized by 21 June at the next meeting between EU foreign ministers. Alongside sanctions, EU leaders have also urged all EU-based carriers to avoid flying over Belarus airspace. Additionally, Belarus carriers will be banned from flying over European Union territory or having access to its airports from 4 June.
However, it remains unclear whether these sanctions and disruptions to air travel will have a major effect on Belarus. In particular, both the EU and United States have already been imposing several rounds of sanctions on Lukashenko’s rule. For example, the EU has already imposed sanctions against Belarus as a response to the brutality of Belarusian authorities against demonstrators in late 2020. The United States had also expanded their sanctions on Belarus in August 2020. The new round of sanctions are now aimed to further target key sectors of the Belarusian economy. However, many companies remain state-owned and are more dependent on Russia than they are on the West.
Currently, it does not look like Russia will be siding with the West in their condemnation and their use of sanctions. Experts have also expressed caution on these responses due to their potential to push Belarus closer to Russia in the long-term. Russia has since dismissed the responses from the West as hypocritical and has retaliated against a ban on carriers entering Belarus’s airspace by refusing to grant permission to European planes flying to Moscow.
LEGAL IMPLICATIONS AND RESPONSES
Alongside sanctions and expressions of condemnation, the international community can also turn to international law in responding to this incident. In particular, there exists a network of treaties governing civil aviation: the 1944 Chicago Convention on International Civil Aviation and the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.
Article 1 of the Chicago Convention provides that a state has “complete and exclusive sovereignty over the airspace above its territory”. As such, there may be a valid claim by Belarus that since the aircraft was flying over its territory, it was able to be intercepted and ordered to land at the indicated airport due to the presence of a potential bomb threat. However, after the plane was made to land, there appeared to be no active bomb threat. As such, Article 1(1)(e) of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971 (Montreal Convention), to which Belarus is a signatory, could be applied since it prohibits circumstances in which a person unlawfully and intentionally “communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight” as an international crime.
In response to accusations of a fake bomb threat, Belarus’s foreign ministry has noted that the notice of the bomb threat was from Hamas, a Palestinian militant group. Lukashenko also told parliament that the email notifying him of the threat originated in Switzerland. However, Hamas has since rejected Belarus’s claim that they were behind the plane’s diversion and ‘fake bomb threat’. Swiss authorities have also denied the claim and have questioned the credibility of the email. These pieces of information will need to be further investigated. Nevertheless, the illegality of Belarus’s actions are made apparent by Article 10 of the Montreal Convention. In particular, if a flight has been delayed or interrupted as a result of a state’s use of sovereignty under Article 1 of the Convention, the state is obligated to facilitate the continuation of the journey of the passengers and crew. Belarus’s arrest and continued detainment of Protasevich and his partner appear to contravene this requirement.
This legal framework will prove to be useful for any investigations carried out by the UN’s International Civil Aviation Organisation. Invoking Article 55(e) of the Chicago Convention, the Council has listened to calls by the EU and decided to undertake a fact-finding investigation of the event. France 24 also reports that under Article 84 of the Chicago Convention disagreements between states in interpreting breaches of the law can be decided by the ICAO Council, and can be appealed to an ad hoc arbitral tribunal agreed upon with the other parties to the dispute or to the UN’s International Court of Justice in The Hague.
The use of international law and sanctions will be useful in responding to this incident. Yet, both methods require a layer of multilateral cooperation and voluntarism among states, which is unlikely to be upheld in interstate disputes. It currently remains unclear how this incident will shape any future incidents by states who fear political dissidence or opposition. The international community should remain cautious on how the incident develops.
