Understanding when a commercial flight can be intercepted and hijacked – 05/26/2021 – Worldwide

The hijacking of a commercial flight by the Belarusian dictatorship “sets a very serious precedent, leaves people in great insecurity, and states will try to investigate and react quickly”, explains Brazilian specialist in the field, Paulo Calazans, 52 years.

In the operation led by dictator Aleksander Lukachenko on Sunday (23), a MIG 29 fighter and military helicopter were used to intercept a Boeing of Ryanair Sun (a Polish subsidiary of the Irish company) traveling from Athens to Vilnius . .

The plane was carrying a Belarusian journalist critical of the regime, Roman Protassevich, to Lithuania. In Minsk, where the plane was forced to land, the 26-year-old blogger and his girlfriend, Sofia Sapega, 23, were arrested by Lukachenko’s agents.

Cases like this endanger the lives of passengers and crew and affect businesses economically, two areas regulated by international aviation law, Calazans says.

Professional pilot for 32 years, he is also a lawyer, member of the aeronautical law commission of the OAB and is completing a book on public aviation law.

From the United States, where he works, he spoke about how international rules deal with flight safety and what should be considered in investigations into the hijacking of a Ryanair flight by the Belarusian dictatorship. .

How is flight interception treated in international aviation law?

The texts govern relations between the countries under two pillars: the economy and the safety of air traffic. In the economic pillar, there are losses due to delays or irregularities of the flights caused by an interception. In terms of security, the risks that a military interception poses for the aircraft, the passengers and the crew.

Aviation law only applies to civilian flights – it does not apply to military or state aircraft, such as police or customs.

What are the main regulations?

The so-called Chicago system, which emerged after World War II, to regulate a promising market – with hundreds of military aircraft available for civilian use – and at the same time subject to the political consequences of recent conflicts.

During the Cold War, incidents that resulted in the deaths of civilian passengers prompted countries to add the Chicago Convention to include a new article, 3bis, dealing specifically with interceptions.

In one case, in 1980, an Itavia DC-9 was intercepted by a military aircraft and shot down by a missile, killing all 81 people on board. The cause and perpetrators have not been identified.

In 1983, Korean Airlines Flight 007 was shot down by Soviet interceptors, killing 269 occupants. According to the investigation, an American spy plane had taken the same route the day before as the civilian plane.

With a sequence of “hijackings” (as they are commonly known as illicit seizures) of planes for political purposes – like that of three planes that went to the United States in 1970 and were hijacked to Egypt and Jordan by the Popular Front for the Liberation of Palestine – new rules in this area have also been created in the Montreal Convention.

What rules could have been broken in the operation in Belarus?

There are three apparent violations:

customary law, which establishes international cooperation and non-interference in the airflow

of Article 3bis of the Chicago Convention, which makes illegal the improper intervention of the use of military aircraft against civil aircraft – which affects the business economically and endangers the lives of passengers

of the Montreal Convention, article 1 of which establishes the deliberate communication of information deemed to be false as an international offense – in the case of the Ryanair hijacking, the Belarusian regime said it had received a bomb threat

Who decides if a plane can fly over a country?

There are very detailed bilateral and multilateral agreements, which stipulate, for example, the number of flights, schedules and charges paid to the state overflown. The documents are deposited with Icao.

Among the so-called freedoms of the air are the right to fly over and the right to technical landing – refueling or breakdown.

If there are agreements, how can a country prohibit Belarusian companies from stopping in their airspace?

Agreements contain termination clauses and a state can argue that the rules have been violated. This is what the European Union will do between the sanctions announced this week.

Can a country ban its companies from flying over Belarus?

Yes, companies are subject to the regulatory power of the state. In the case of the flight from Athens to Vilnius, the company – Ryanair Sun, a subsidiary of Ryanair – is Polish and must respect the decisions of Poland.

In its own airspace, when can a state intercept a plane?

There are three hypotheses:

the use of airplanes for purposes contrary to the convention, such as drug trafficking

self-defense, like the suspicion of a bomb – which, if it explodes, will strike its territory. This must be the argument put forward by Belarus

a declaration of war or national emergency, such as those that exist today in eastern Ukraine – after the conflict with Russia began in 2014 – or in the region of Ethiopia and Eritrea

Interceptions were also determined in episodes where the flight was in danger, such as that of Germanwings, which was deliberately shot down by its co-pilot in 2016, or that of Helius Airways, whose pilots fainted from lack of oxygen in 2005.

How is the interception made?

There are specific protocols for signaling and maneuvering in this situation.

Interceptor planes use their lights and swings to communicate with civilian flight pilots, who are trained for this eventuality.

Airport approach and landing maneuvers are also specific, as the interception usually occurs when the flight is at risk.

In general, the pilot is generally warned by air traffic control of the interception.

There are also coded radio channels, in which the civilian pilot communicates with the military, both to accept the interception and to receive instructions.

Who can request surveys?

States and Icao. As the company is registered in Poland, Poland can order an investigation. Lithuania (where the flight was heading) and Latvia (which borders the two countries) have started investigating the facts

Who conducts the investigations?

States deploy prosecutors, diplomats and aviation experts, who will assess records and other documents and try to obtain copies of military orders. The International Civil Aviation Organization (Icao), linked to the UN, assesses the case and its assembly – formed by the member states – determines the sanctions

Can any state be punished?

International law is based on voluntary cooperation, so the state must recognize the jurisdiction of treaties. Belarus is a contracting party to the Chicago Convention, which authorizes its sanction

What are the possible sanctions?

Diplomatic sanctions, economic reparations orders or restoration of the previous status quo – in the case of Belarus, for example, ensuring that the blogger arrives in Vilnius, as planned before the interception

Who guarantees that the punishment will be carried out?

This is one of the great limits of international law: there is no executive power. Another difficulty is that investigations usually last for months, freeing the case from public pressure. Generally speaking, these conflicts also leave the domain of law and move towards that of international relations, with political and economic pressures.

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