Hijacking Ryanair plane & kidnapping of Roman Protasevich: An international law analysis

Belarus continues to be in the news and all for the wrong reasons each time. Its government has arrested Roman Prostasevich, a feisty, 26-year-old rebellious journalist, dissenter and freethinker, last week in a dramatic exercise of force by hijacking a plane that he was travelling in and getting it to ‘force land in Minsk’. The hijack was an act of ‘state-sponsored terrorism’ and is extremely dangerous. BBC wrote, ”Belarus scrambled a fighter jet to force the plane – bound for Lituania to land, claiming a bomb threat’’.

Just last year Roman Prostasevich was declared a terrorist by the Belarusian government for speaking his mind but he remained defiant and intrepid and continued to be on collision course with the government. Soon after the hijack Roman was apprehended by the Belarusian government agencies and no one has any clue whatsoever about him anymore. His father told BBC correspondent Sarah Rainsford that, ”He is fearful his son may be tortured’’. Once a  gifted high school science student in Minsk, the capital of Belarus, Roman took to rebellious activism since the age of 16 fighting to overthrow the oppressive regime of Alexander Lukashenko, the great dictator of a nation whose government was described by former US secretary of State Condoleeza Rice as, "The last remaining true dictatorship in the heart of Europe’’. He had to flee his country and was in exile until his dramatic arrest recently in Minsk. He faces multiple threats from the Belarusian security apparatus for resisting his government’s tyranny and being the arch-enemy of its dictator.

The hijack: How it all happened

Roman Protasevich, left for Greece from Lithuania, where he had been living, to attend a conference and was on a short vacation with his Russian girlfriend, Sofia, when his plane was hijacked. Roman and his girlfriend were visibly shaken and shattered when he was arrested by the Belarus security on the tarmac at Minsk airport after a MIG-29 fighter jet intercepted the commercial flight to Lithuania from Greece on which he was travelling. He now faces the vengeance of President Alexander Lukashenko and a highly hostile and belligerent government. Given the history of oppressive regimes and their fascistic ways of stifling dissent threat to his life cannot be ruled out. The Belarusian authorities released a short video showing Roman Protasevich confessing to taking part in the organisation of ‘mass unrest’ last year in Minsk, the capital of Belarus.

The international media has reported that friends of Roman Protasevich claimed that his statement was recorded under duress, that Roman had discussed possible threats to his life with them and was convinced that he should avoid flying over Belarus, Russia or any other State that cooperated with President Lukashenko. Some international media has also reported that Protasevich told a few co-passengers that he fears for his life in Belarusian custody. Perhaps Mr Protasevich had not a clue that the Ryanair flight he had boarded in Athens, Greece, would fly over the western edge of Belarus. This air route opened the way for President Lukashenko to execute his dark operation which the European & other world leaders decried as a ‘state-sponsored hijacking” of the Ryanair plane carrying the young activist and his girlfriend. It is reported that Protasevich noticed a man at the check-in counter at Athens airport taking photographs of him and his travel documents.

While this blog is being written a DW news report has stated that a Belarusian journalist, Alexander Burakov who was on a journalistic assignment for DW has just been released on 2.6.2021 from prison in Belarus. Shortly after his release, speaking to DW,  Burakov recounted the horrors of the detention facility where he had been held stating that it was like a 'military prison''. The journalist said that the guards in the detention facility did not let him sleep and conducted nightly checks, which involved him getting completely naked. ''They were waking me up twice a night, every night, taking me out of my cell and telling me to take my clothes off, including underwear'' he said. This is the grim reality of vengeance of a fascistic regime.  As I write this Roman Prostasevich is in captivity somewhere and it's anybody's guess how he is being treated.          

What international law says about abducting dissident journalist Roman Protasevich

What we know is that the Ryanair aircraft carrying Protasevich among other passengers was scheduled to fly from Athens in Greece to Vilnius in Lithuania on May 23. While in Belarusian airspace, the pilot was ordered to divert his plane from its course and to land in Minsk, Belarus. Upon landing on the ground, the airport authorities searched the suitcases of the passengers, checked their identities and detained two of them: one of them the most wanted  Protasevich and the other his girlfriend, Sofia Sapega.

The Belarusian authorities claimed that they received an anonymous letter claiming that Hamas had planted a bomb on board the plane and hence they duly ordered the pilot to land so that they could trace the bomb and destroy it. The Belarusian claim appears to be shallow since one cannot fathom why in the first place someone would directly inform Belarusian authorities and not airport or security agencies in Greece or Lithuania in case of a bomb threat. It is also to be noted that when the aircraft was diverted it was closer to Vilnius in Lithuania than Minsk. If at all safety of the passengers was the primary concern then the Belarusian authorities would have allowed the aircraft to quickly land in Vilnius.

Two important legal questions emerge out of the fallout of the Belarusian fiasco. Firstly, whether the Belarus authorities had the power to divert the aircraft from its flight path to land in Belarusian territory, Minsk, where it was not supposed to land at all.  The apparent justification that was proffered by them for the interception of the plane by a MIG 29 fighter jet was its safety due to a suspected bomb on board. The modus adopted by Belarus ordering the pilot to make an emergency landing at Minsk may be significant legally. Going by the statutes of the Convention on International Civil aviation, 1944, Belarus may have been within its legal right to order a civil aircraft flying above its territory to land, but what they will have to show is that they have had reasonable and sufficient grounds to do what they did. Also Belarus was required to issue the order of forced landing in compliance with its published national regulations regarding the interception of civil aircraft flying over its territory. It is for the Belarusian authorities to establish that they have complied with both the requirements. 

Let us give them the benefit of doubt and assume that they can show that their diversion of the civil aircraft was lawful. Which brings us to the second question of the detention of two passengers Protasevich and Sofia. Why were they forced to disembark?   Significantly,  under the ICAO treaties, Flight FR 4978 was under the jurisdiction of Poland as the country of registration of civil aircraft. The aircraft bearing tail number SP-RSW, was registered in Poland. The aircraft was in flight, even when diverted to Minsk. The written rule states that, "No country has a right to detain suspects on a civil aircraft for crimes that were not committed on board that aircraft.” So then what plausible explanation can they proffer for detaining Roman Prostasevich and Sofia for alleged crimes that had no connection to flight FR 4979. The appropriate way out of this for Belarusian authorities would have been to seek custody of Roman & Sofia and applying to Poland or to Lithuania for their extradition for alleged crimes in Belarus. This may have forced the two nations to at least consider the request.

International law prohibits the use of armed force against commercial/civil aircraft. The ICAO has standards governing the interception of commercial aircraft by the military. ICAO, an agency of the United Nations, 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 almost every country on earth Belarus included. It specifically prohibits the use of military force against passenger flights. The stated law is that, “The contracting States recognise that every State must refrain from resorting to use of weapons against civil aircraft in flight.”Notwithstanding, certain situations may arise in which a State can use force against a civil aircraft, these may be for civil defence, or if a plane violates a country’s airspace without permission. But none of these hold good for hijacked Flight FR 4978. There is no doubt at all that the actions of the Belarusian authorities are in contravention of the Chicago Convention, shady and savage. Besides there is the 1971 Montreal Convention for the Suppression of Unlawful Acts Against The Safety of Civil Aviation, to which Belarus is also a party, is applicable. Article 1(1) (e) of the Montreal convention says that any person commits an offence if he unlawfully and intentionally communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight. By forcing an emergency landing of Flight FR 4978  using the deception of a fake bomb threat, Belarus has committed an outrageous breach of the Montreal Convention as well. 

Given these iniquitous violations, other countries could possibly sue Belarus before the International Court of Justice on grounds that the global system of civil aviation is threatened by such actions of Belarusian authorities. Our past is not new to instances of a similar kind. I can think of  France which detained a Moroccan charter plane in 1956 in order to arrest Algerian rebel leaders who were travelling to a diplomatic conference. The Algerians were fighting to end the 130 years of colonial rule of France. In order to isolate the Algerian rebels ( Front de Liberation Nationale - FLN) and their area of operations, France granted Tunisia and Morocco independence, and their borders with Algeria were militarized with barbed wires and electric fencing. When FLN leaders attempted to travel to Tunisia in October 1956 to discuss the Algerian War, French forces diverted their plane and jailed the men.

If the legal position is that Protasevich and Sofia were technically detained by the Belarusian authorities on the territory of Poland, as the flag State of the aircraft, then they are protected by the European Convention on Human Rights. Incidentally, Belarus is not party to that convention but Poland is. The European Court of Justice, in a number of cases, has applied the Convention to civil aircrafts and ships registered in or flying the flag of the contracting party. It is true that Poland has issued a strongly worded public condemnation of the actions of Belarus, calling it ‘a state terrorism’. But Poland requires to take steps within its power to secure the release of the detainees on the basis that their detention is unlawful and Belarus has no business to detain those on flight FR 4978 which was under its jurisdiction.

Why the govt of India must take a stand and not continue to remain silent 

The United Kingdom, France, Poland, Lithuania, Latvia, Finland, Estonia, Slovakia, Cyprus, have already banned flights from Belarus. European Union (EU) has agreed to ramp up sanctions against Belarus. The EU foreign ministers have discussed sanctions on companies that are close to the Belarusian regime and continue to do business with them. The US has responded and condemned the State-sponsored hijacking of Protasevich. The main concern for democratic regimes all over the world is that State-sponsored hijackings might become a norm in the future and may lead to more emboldened dangerous acts by dictators and some other regimes who support and sponsor cross-border terrorism. India must remember that it has already gone through the horrors of hijacking of its Indian Airlines plane IC- 814 where 5 terrorists brought the nation to its knees, trading 176 lives for 3 dreadful terrorists. We also know that most of the flights to US and Europe from India via Delhi or elsewhere fly over Pakistan.The perils of flying over such a rogue terrain is known to all. It is for this reason that India needs to assert and lend it’s voice to the world’s democracies condemning Belarus for it’s an act of State-sponsored hijacking.

The author of this article, Rajiv Chavan, is a Senior Advocate & former President of Advocates Association of Western India (2013-2015 & 2015-2018) 

Disclaimer: The views and opinions expressed within this article are the personal opinions of the author. The facts, analysis, assumptions and perspective appearing in the article do not reflect the views of Republic TV/ Republic World/ ARG Outlier Media Pvt. Ltd.