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The compensation battle for families of victims of UIA Flight 752

Canada can look to international law to seek justice. But there will be plenty of obstacles.

Concept illustratiuon of airline in the line of target

More than 30 years ago, in 1988, Iran faced an unspeakable tragedy. An American naval ship, mistaking a commercial flight for an F-14 fighter jet, fired two surface-to-air missiles, downing the flight and killing everyone on board.

In the aftermath, Tehran demanded some kind of accountability mechanism for states that use military power against civilian aircraft.

Though international law had a lot to say about armed conflict on the high seas and the protection of civilians and commercial ships, the rules were far more rudimentary in addressing aviation.

Managing the governance of air travel is the International Civil Aviation Organization, an agency of the United Nations. Every UN nation is a member of the ICAO (save Liechtenstein, which has no airport), and it falls onto those nations to ratify the conventions that make up the foundations of its governing laws.

In 1983, five years before the disaster in Iran, the Soviet Union downed a Korean Air flight near its border, alleging it had violated its airspace. The ICAO investigation into that disaster ultimately concluded it was an accident, but it did not have access to sensitive evidence, including the flight data recorder. Nothing in the body of law covering air disasters — the Montreal Convention and the Chicago Convention, primarily — governed military shoot-downs. Under ICAO rules, the country where the crash happens is responsible for the investigation. They do not contemplate situations where the country may also be responsible for the crash.

The USSR admitted no fault at the time, and refused to compensate the victims’ families.

Still, global political pressure began to build for changes to laws that would address military shoot-downs of civilian jets. The 1988 crash added weight to that need. But it wasn’t until 1998 that the Chicago Convention was amended and ratified to prohibit “the use of weapons against civil aircraft in flight.”

The provision didn’t get much use until 2014 when Malaysian Air Flight 17 was shot down by a mobile surface-to-air missile system, likely fired by Russian-backed separatists in the east of Ukraine. Moscow still disputes that conclusion.

More recently, on January 8, the Iranian military fired on Ukraine Airlines Flight 752, leaving Tehran and destined for Kyiv. It isn’t quite history repeating itself. This time Iran was responsible for the tragedy, and today, the international rules that purport to hold these countries responsible are in effect.

The question is whether they will be enforceable.

Much depends on Iran, says Brian Poston, a partner at MacKenzie Fujisawa LLP in Vancouver, and a member of the Canadian Bar Association’s air and space law group.

“Iran is going to be the only country with the full picture,” he says.

Though the Chicago Convention now assigns liability to the country responsible for shooting down the civilian aircraft, it does not fundamentally change the investigation process. That means that Iran holds most of the cards. Only Ukraine, which operated the aircraft, has an automatic right to send observers to the investigation.

Canada has insisted that its investigators be given access to evidence from the crash, as many of the passengers were Canadian (57 were citizens, another 29 were permanent residents). So far, Iran has been cooperative. But Ottawa’s status is not a guarantee. “They will be there purely as an observer,” says Poston.

What’s more, nothing in the convention mentions the black box records, which Iran now seems intent on keeping to itself. The crash site, too, was quickly cleaned up by authorities.

That said, the physical evidence may carry less importance in the Flight 752 tragedy. Iran has admitted to downing the flight. What matters is why.

“I can’t see Iran agreeing to participate in any sort of investigation that involves how its military makes decisions or operational decisions on the part of Iran,” Poston adds. “I don’t know of any international instrument that Canada or Ukraine could rely upon to insist on that.”

Canada’s Transportation Safety Board will produce a report, in addition to the final ICAO report, but — in keeping with the board’s mandate — it will not assign blame. None of the TSB’s evidence can be used in court. Statements given to the board are privileged.

Getting a full and fair investigation will be difficult. Getting justice in court may be even harder.

The family of the Canadian passengers could try and seek judgment against Iran in our domestic courts. But Poston says that seeking judgment in Canada may be of little use.

“Unless Iran has assets in Canada, and I doubt they do, any judgment against Iran is unenforceable,” he says. “You can’t execute on it.”

In part that’s because Iranian assets in Canada have already been seized and liquidated in a series of judgments against the theocratic regime for having sponsored terrorist groups such as Hamas and Hezbollah.

Criminal proceedings are a possibility. In 2019, Dutch prosecutors announced homicide charges against four individuals, including three Russians, in connection with the shooting down of Malaysian Airlines flight 17. Russia has refused to extradite the accused.

ICAO rules, however, can be enforced by the International Court of Justice. And they contemplate financial judgments for families of those who have died in aviation accidents in the form of “special drawing rights.” “Further wording for the Chicago Convention would be very helpful, and going as far as spelling out compensation for military downing of civilian aircraft,” Poston says.

When Iran brought a case against the U.S. before the ICJ, after the 1988 Iran Air incident, the U.S. eventually agreed to settle, relying on the amounts stipulated in the Chicago Convention as a benchmark.

A final judgment at the ICJ could, hypothetically, award the base compensation, plus additional damages for malice.

There has been no major case where the ICJ has awarded families such damages, though Ukraine may yet bring a suit against Russia for Malaysian Air Flight 17.

“The process is similar to any court that hears international matters. It will be a public shaming on Iran, but I don’t think it will likely provide any clear recourse for the families,” Poston says. “The power of the court to force a judgment are pretty slim.”

Complicating matters further is article 3bis of the Chicago Convention, which does not apply to situations where a sovereign state acts in self-defence.

Still, the convention was also supposed to ensure that commercial airlines don’t fly in dangerous skies. After the Malaysian Airlines jet was shot down in eastern Ukraine, the ICAO faced tough questions on why the jet was flying over an active warzone where mobile surface-to-air missile systems were known to be operating.

Article 9b of the convention specifically allows for portions of a country’s airspace to be closed should a risk arise. Iran, earlier this month, knew it would be firing missiles towards American military bases in Iraq. Firing on the civilian jet appeared to be done out of fear it was an American fighter jet, or cruise missile.

Poston points out that, because it chose to take off in the dangerous conditions, families of the victims could try and hold the company responsible. “Honestly I think their only action is to go against Ukrainian Airlines for negligence,” Poston says.

On Monday, Toronto firm Himelfarb Proszanski announced that it would be filing a proposed class action against Ukrainian Airlines.

“At the time of the crash, the U.S. Federal Aviation Administration banned civilian aircraft from flying over the region,” reads a press release from the firm. “After the downing of Malaysian Airlines Flight 17 in 2014, many airlines respect FAA notices when making safety decisions.”

Himelfarb Proszanski concludes: “Flight PS752 departed despite the known risks.”

In its defence, the airline could argue that the Iranian civil aviation authority told them they were clear for takeoff, and so they operated in good faith.

Ultimately, Canada and the families of the victims may be left frustrated by the whole process. And the incident may end up exposing the fundamental flaws in international aviation law. But, Poston says, it’s better than the alternative.

“In international law you want as many states as possible to sign on to it,” he says. “So all conventions have to be written in such a fashion that parties will be willing participants, to sign and ratify it.”

Because Canada is a large contributor to the ICAO, which is also headquartered in Montreal, it could attempt to use its influence to push through further changes addressing liability. But change in multi-lateral settings is hard.

“Do I see any substantive change coming to the Chicago Convention or the Montreal Convention coming out of this loss?” Poston says. “Unfortunately no, I don’t.”

Rather than use the convention to hold Iran to account, the United Nations could seek to suspend Iran from the ICAO, or expel it entirely.

But that defeats the whole idea that the ICAO should be universally applied, says Poston. “If you kick them out or suspend them, the world’s probably in a worse position,” he says.

The world will have to wait and see whether Iran intends to fight accountability for its actions, or like America 30 years ago, it will agree to settle to avoid a protracted international legal dispute.

What is clear is that the law patched together to handle this sort of situation remains inadequate in delivering real justice.