28 May 2021 UPDATE: IALPG’s Principal and Legal Practice Director, Joseph Wheeler, was interviewed about the international aviation law around the forced diversion of Ryanair Flight 4978 live on ABC NewsRadio, by Thomas Oriti. The interview is available to listen to at this link.

Introduction

On the 23 May 2021, Ryanair Flight 4978 diverted from its initial course from Athens, Greece to Vilnius, Lithuania, due to an alleged threat of a bomb onboard. Early media reports cited allegations (some of which have now been confirmed) that the Belarusian Government sought to arrest Raman Protasevich, a Belarusian dissident living in exile in Lithuania, who was on the flight.

It has been reported that those claiming to be Belarusian police officers on the flight informed the pilot that an emergency landing was needed, due to there being an explosive device.[1] The Belarusian government stated that Hamas made the bomb threat to leverage a ceasefire, the signing of which actually occurred two days prior (on 21 May 2021) to when the flight took off.[2] A Soviet MiG-29 fighter jet intercepted the aircraft and escorted Flight 4978 to the airport in Minsk, which was not the closest airport to their location.

The actions of the Belarusian Government were internationally condemned. Nationally, the Lithuanian government is launching a criminal investigation.[3] The European Union has implemented sanctions against President Lukashenko and have banned Belarusian airlines from entering European Union airspace.[4]

The interception is in contravention of multiple international aviation laws, puts in place opportunities for those, including Protasevich who were onboard and suffered distress, to claim compensation for their losses, as well as exposed potential privacy deficiencies in collecting COVID-19 data from air travellers during the pandemic.

Lawful Interception of Civil Aircraft

There are fundamental tensions in international aviation law between the unilateral right to exercise control over aircraft flying over a State’s territory and limits and moderators imposed by the Chicago Convention of 1944.[5] Article 1 of the Chicago Convention stipulates that every State has the sovereign right to control the airspace above its territory.[6] In this respect, if a state has reasonable grounds to believe that a civil aircraft is being used to violate the aims of this Convention, the plane may be diverted.[7] Under Annex 2 of the Chicago Convention,[8] the interception of an aircraft is used as a last resort.[9] Here, the reasons for the interception were fabricated, and thus there could have been no reasonable ground to conclude that Flight 4978 was violating the Chicago Convention, which in turn indicates that it was not a lawful interception.

Violations of International Law by Diverting Flight 4978

A direction from the officers onboard, if it contributed to force Flight 4978 to divert its course, violates Article 1(a) of the Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention).[10] The Hague Convention is limited to the offence of an individual onboard the flight.[11] Official press releases from Belarus state that President Alexander Lukashenko ordered the interception.[12] It is not an offence under the Hague Convention to call for an interception, which means guilt for the crime remains with the individual officer. However, the conduct of these officers may well invoke provisions of the Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention), which was brought about in response to the previous public spate of onboard political hijackings prior to the 1960s. While it is beyond the scope of this article to detail the result of the scenario, in short the Tokyo Convention may, among other things, permit extradition of those onboard causing or contributing to the unlawful interference to the state of Registry of the aircraft (Poland, given the aircraft registration is SP-RSM) for the purposes of exercising criminal jurisdiction over them.

The Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (Montreal Convention) provides scope to deem criminal, President Lukashenko’s actions.[13] The bomb threat, which was not deemed credible, may have raised concerns for the individual officers who made the falsified statement, per Article 1(e) of the Convention, which states that communicating false information endangers safety in flight. Further, per Article 1(2)(b), there is an offence where an individual agrees or contributes to the commission of a crime. As President Lukashenko ordered the interception from the ground, the offence may be construed to be due to his involvement. Therefore, the President may be held liable for the violation under the Convention (potentially by another state party to the Convention).

Liability for Compensation to the People Onboard

The operator (Ryanair) would be liable for damages if Belarus had ratified the Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft, and there was a mental injury caused by “a recognizable psychiatric illness resulting either from bodily injury or from direct exposure to the likelihood of imminent death or bodily injury”.[14] Reports from the other passengers on Flight 4978 stated that Mr Protasevich said: “A death penalty awaits me here”[15] and he was forcibly detained by the police after identifying himself. In a video posted to Telegram, Mr Protasevich was seen with visible bruising to the face.[16] Due to the likelihood of imminent death or bodily injury as a direct consequence of the interception, the prospect of a (released and safe) Mr Protasevich seeking compensation is real.

Furthermore, the passengers on the flight typically would not have been able to claim compensation against the air carrier in the first instance if they suffered fright or distress on this flight, as that damage is not compensable under ordinary air carrier liability conventions that govern personal injury and death onboard in situations of “accident” (eg the Montreal Convention 1999).

Regardless, such damages are foreseeable factually, because passengers’ reactions to seeing and hearing Mr Protasevich’s response to the diversion of the flight and/or the fact of the diversion itself and it’s advertised causes might have been distressing, even if those damages did not go as high as a recognisable psychiatric illness. However, the unlawful interference conventions do give such a right to compensation, and this may well be one the passengers pursue in the event they have suffered harm. Unusually, the liable party prescribed is the operator, even though there is a third party state most likely at fault for the diversion situation, but in a practical sense this would be an injured passengers’ first legal port of call, and does not discount rights of recourse by the carrier for damages it/its insurer pays to passengers onboard.

Potential Use of COVID-19 Data and Basis for Reform

NEXTA, the news publication co-founded by Mr Protasevich, stated that he believed that a Russian-speaking individual tried to take a photo of his documents in Athens, that confirmed which flight he was on.[17] This personal information, required for COVID-19 contact tracing, likely divulged confidential information such as addresses and phone numbers. If this is the case, there is likely to be more instances where travel data is used to locate an individual for illegal purposes.

With the recent use of data collection for travelling during the pandemic, information such as location and identifying particulars may be used either in paper form or through online forms. The minimum passenger data for contact tracing is a flight number, seat number, full name, date of birth, telephone number, and email address.[18] The European Union requires a Passenger Name Record (‘PNR’) to prevent crime and determine whether an individual is a threat to public health.[19] The PNR used requires access to nationality, passport number, and permanent addresses. Air carriers are not immune to data breaches – in February, Air India’s data breach, including names, date of birth and contact information was leaked, jeopardising the data of 4.5 million individuals.[20] By mandating travel documents for COVID-19 without proper collation and protection of that data, State and non-state actors may use this data to confirm the current location, or residential addresses, of any individual.

Conclusions

The diversion of Flight 4978, in contravention of numerous international aviation laws, exposes the international community to the potential realities of nefarious state action that juxtaposes “traditional” hijacking, with international terrorism, all designed to meet a state’s ends, at any cost. In addition, utilising large data collation forms without proper security for instances of public health emergency such as in the present pandemic climate may indicate that this data should be kept far more securely to facilitate peaceful air navigation in the future.

We must consider a thought for the plight of the crew who were forced to consider themselves in an emergency unlawful interference situation at the behest of a malicious state. The heightened state of tension caused by such emergency conditions would, from a human factors perspective, have contributed to the dangers emerging in the entire situation, and adding to the lack of care for human life exhibited by those behind the unlawful diversion. One can only be thankful that all reached the ground safely when, in previous circumstances, real mixups in relation to civil aircraft interceptions, have resulted in disastrous death and destruction.

Notwithstanding the safety now being assured of all of those who were on the flight (but for the unfortunate journalist now detained in Belarus, and his travelling companion) the international community must again face a situation of conflict, chequered airspace closures and NOTAMS requiring circumnavigations, and aversion of European airspace considered “hostile” in order to guarantee the peace so sought after by those who originated the Chicago Convention in a post war effort to unite the world through aviation. Seven years after tensions in the region destroyed a Malaysian Airlines aircraft (Flight MH17) such international diplomatic efforts and criminal procedures remain unfinished. Let us hope justice is secured for all onboard Flight 4978 somewhat faster given the fact that the actors involved are all alive and were watched closely by a post pandemic world that has ever reducing patience for avoidable disruptions to their rights to move across borders and exercise simple freedoms.

If you have any comments on enquiries about Flight 4978 or know someone affected by it, please contact Joseph Wheeler at jwheeler@ialpg.com.


Endnotes

[1] Cameron Miles, ‘Belarus and the Hijacking of Ryanair Flight FR4978: A Preliminary International Law Analysis’ Lawfare (Article, 24 May 2021) <https://www.lawfareblog.com/belarus-and-hijacking-ryanair-flight-fr4978-preliminary-international-law-analysis>.

[2] Reuters, ‘Belarus points to Hamas bomb threat in plane diversion, Hamas rejects claim’ (Article, 25 May 2021) <https://www.reuters.com/world/europe/belarus-points-hamas-bomb-threat-plane-diversion-hamas-rejects-claim-2021-05-24/>.

[3] Andrius Sytas, ‘Lithuania launches terrorism investigation into the plane diversion’ Reuters (Article, 24 May 2021) <https://www.reuters.com/world/europe/lithuania-launches-terrorism-investigation-into-plane-diversion-2021-05-23/>.

[4] Michael Peel, Sam Fleming and James Shotter, ‘EU agrees sanctions on Belarus for forcing down flight’ Financial Times (Article, 25 May 2021) < https://www.ft.com/content/147532bc-8f98-406c-807b-748520be6633>.

[5] Convention on International Civil Aviation, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947).

[6] Ibid Art 1.

[7] Ibid Art 3 bis.

[8] Ibid, Annex 2, Appendix 2.

[9] Ibid.

[10] Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature 16 December 1970, 860 UNTS 105 (entered into force 14 October 1971) Art 1(a).

[11] Ibid Art 1.

[12] Euronews, ‘EU leaders agree on Belarus sanctions over flight ‘hijacking’ as Roman Protasevich appears in video’ (Article, 24 May 2021) <https://www.euronews.com/2021/05/23/ryanair-flight-diverted-to-belarus-journalist-arrested-on-arrival>.

[13] Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, opened for signature 23 September 1971, 974 UNTS 177 (entered into force 18 July 1975).

[14] Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft opened for signature 7 November 2008, Doc No 43 (entered into force 2 May 2009) Art 3(3).

[15] Deutsche Welle, ‘Belarus reporter said ‘death penalty awaits me here’ – witness’ (Article) <https://www.dw.com/en/belarus-reporter-said-death-penalty-awaits-me-here-witness/a-57637371>.

[16] Above n 4.

[17] Above n 15.

[18] European Union Aviation Safety Agency, COVID-19 Aviation Health Safety Protocol: Operational Guidelines for the management of air passengers and aviation personnel in relation to the COVID-19 pandemic (Report, 30 June 2020).

[19] Ibid.

[20] Deepak Sangwan, ‘Notification to Passengers (In continuation to the information given on 19th March 2021)’ (Press Release) <http://www.airindia.in/images/pdf/Data-Breach-Notification.pdf>.