New York: Why Belarus Grounding of Ryanair Flight Broke International Law

Belarus’s use of deception and military threat to waylay a Ryanair flight Sunday and detain a prominent journalist critical of the country’s dictator was a clear-cut violation of international aviation law, legal experts say. “This was a case of state-sponsored hijacking … state-sponsored piracy,” said Ryanair CEO Michael O’Leary.

Ryanair flight 4978 was transiting Belarus airspace en route from Athens to Vilnius, Lithuania, when, according to the airline, air-traffic controllers told the flight crew that there was a bomb aboard and asked them to land in the capital, Minsk. A MiG-29 fighter jet dispatched to intercept the flight added weight to the request. Upon landing, 26-year-old Roman Protasevich, was removed from the plane and taken into custody.

“International law obviously prohibits the use of armed force against commercial aircraft,” says aviation attorney Arthur Rosenberg. The International Civil Aviation Organization “has standards governing the interception of commercial aircraft by the military.”

ICAO, an agency of the U.N., was established by an international agreement called the Chicago Convention on International Civil Aviation in 1944. The Chicago Convention is the foundational document of international aviation law and has been ratified by virtually every country on Earth, including Belarus. It specifically prohibits the use of military force against passenger flights, stating: “The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight.” There are situations in which a state can use force against a civil aircraft, such as self-defense, or if a plane violates its airspace without permission, but neither applies in this case. On Sunday, ICAO tweeted that it was “strongly concerned” by Belarus’s actions, “which could be in contravention of the Chicago Convention.”

“At the very least this can be construed as a blatant violation of international law and at worst a provocative hostile act against a sovereign state,” said Rosenberg.

ICAO is not itself a regulatory agency and does not have an enforcement arm. It’s up to individual countries to establish and enforce their own laws, generally through agencies like the Federal Aviation Administration in the United States and the European Union Air Safety Agency in the E.U. In 2019, EASA shut its airspace to 737-Max airliners, following two deadly crashes, and temporarily banned Pakistani airline PIA from its airspace, following revelations that some of its pilots were not properly licensed.

No government bodies have taken action against Belarus for the Ryanair incident yet, though several have issued strong words. On Sunday, U.S. Secretary of State Anthony Blinken said in a statement that initial reports “are deeply concerning and require full investigation.” European Commission president Ursula von der Leyen declared on Sunday that “the outrageous and illegal behavior of the regime in Belarus will have consequences … EUCO will discuss tomorrow actions to take.” (Airlines can respond to rule-breaking on their own. In the wake of the Ryanair incident, Latvian carrier airBaltic said it would divert flights around Belarus airspace.)

Protasevich was a target for his record criticizing president Alexander Lukashenko, who was elected to a sixth consecutive term last year in an election that the U.S. and others said was not free or fair. Massive protests failed to dislodge him, though, and Lukashenko has become increasingly dependent on Russian president Vladimir Putin to suppress popular discontent with his rule. Putin has a long history of violating international law to punish dissidents and perceived enemies, weighing the ensuing blowback such actions provoke against the benefit of intimidating would-be opponents. In 2018, Russian operatives used a Russian-made nerve toxin to poison Sergei Skripal and his daughter at his home in Great Britain. Skripal was a former Russian military officer who had spied against his homeland for Britain and was considered a traitor by the Kremlin. The Kremlin also violated international aviation laws when, in 2014, a Russian Army anti-aircraft unit shot down Malaysian Airlines Flight MH17 over Ukrainian territory, en route from Amsterdam to Kuala Lumpur, killing 298 civilians.

Both the Skripal case and MH17 triggered international condemnation and the imposition of some economic sanctions. But these ultimately had little effect. An official investigation led by Dutch officials into the Russian perpetrators of  MH17 bogged down amid a sustained Russian misinformation campaign and still has not yet yielded a conclusion.

Sunday’s incident comes at an awkward time for the Biden administration, which has signaled a desire to ease tensions with the Kremlin, such as by loosening sanctions against the Nordstream 2 natural-gas pipeline from Russia to the European Union. How strongly the U.S. condemns Protasevich’s illegal kidnapping could affect that reset, at the expense of tacitly encouraging further violations of international law.

”If Europe and U.S. do not respond decisively,” says Olga Lautman, a researcher who covers Russian politics and organized crime, “then today’s state-sponsored hijacking will become the norm and will lead to more emboldened dangerous acts by the Kremlin and the dictators they support.”

This article originally appeared on May 24, 2021 in New York magazine.