Canada’s path to justice from Iran over shot-down flight will be hard | Daily News

Canada’s path to justice from Iran over shot-down flight will be hard

An altar with photographs of the victims who were killed in a plane crash in Iran is seen as people gather around to held a vigil in their memories on January 9, 2020 in Ottawa, Canada.
An altar with photographs of the victims who were killed in a plane crash in Iran is seen as people gather around to held a vigil in their memories on January 9, 2020 in Ottawa, Canada.

States have been historically reluctant to take responsibility for attacks on civilian planes.

Just after dawn on July 3, 1988, the USS Vincennes misread signals from a plane taking off from the Iranian coastal city of Bandar Abbas. Capt. William C. Rogers concluded that the plane was a F-14 fighter jet preparing for an attack run. The U.S. naval ship fired two surface-to-air missiles, one of which hit the jet.

Rogers soon learned that the plane he hit was not an F-14. It was Iran Air Flight 655. Onboard were 290 passengers and crew, mostly Iranian, all civilian.

Iran Air 655 was an unspeakable tragedy for Iran. History repeated itself this Wednesday when, once again, a civilian plane, destined for Ukraine and ultimately Toronto, was downed shortly after takeoff. As in 1988, the vast majority of the dead are Iranian or of Iranian descent—but this time it appears that Iran itself was the culprit.

At a Thursday afternoon press conference, Canadian Prime Minister Justin Trudeau confirmed that Western intelligence, both from the United States and other allies, strongly indicated that the Ukraine International Airlines flight was shot down by Iranian surface-to-air missiles, likely the Russian-made Tor-M1 anti-aircraft missile system. Videos posted by civilians seem to back up that theory.

According to the Canadians, the missile strike may well have been accidental—likely a byproduct of the revenge attack on American bases in Iraq—but the investigation is ongoing. Of the 176 people on board the Ukraine International Airlines flight, 57 (initially believed to be 63) were Canadian citizens —many others were transferring through Toronto.

The 1988 shootdown carries useful lessons. Since then, international law has evolved substantially, but it still remains largely toothless when it comes to the downing of civilian aircraft—and it may be up to Canada and Ukraine to seek justice for the dead.

In 1988, the Vincennes was in Iranian territorial waters, patrolling the Strait of Hormuz on guard against Iranian aggression. The Iran-Iraq War, already in its eighth year, had disrupted international shipping in the region, pushing a U.S. deployment to protect commercial traffic in the area.

Flight 655, the Pentagon initially claimed, had made an unusual descent that resembled that of an attacking jet. That maneuver, regardless of the considerable evidence that the jet was a commercial airliner, was enough to justify the missile strike. Later intelligence suggested that the plane was flying higher than first thought and that the error had been entirely on the American side.

Even so, in the days after the Iranian jet was shot down, then-U.S. President Ronald Reagan expressed his “deep regret” over the incident in a cable to Tehran.

The months that followed were less amicable.

Iran sought a resolution from the United Nations Security Council condemning America’s actions, which it did not get. The next year, Tehran went to the International Court of Justice, starting proceedings under a pair of international conventions governing civil air travel.

From the outset, however, the United States argued that the international court had no jurisdiction to hear the case and that the incident could not be decided under the two treaties.

Washington eventually offered to settle with Tehran, with the case still before the court. The two sides signed a settlement agreement in 1996 for $131.8 million. As part of the settlement, the United States recognized the downing as a “terrible human tragedy and expressed deep regret over the loss of lives caused by the incident.” It did not, however, accept responsibility.

Even before the Ukrainian jet was shot down on Wednesday, the memory of Flight 655 was back in the news—invoked by Iranian President Hassan Rouhani on Monday as threats escalated between Tehran and Washington.

Beyond the downing of Flight 655, there have been numerous instances in which states have been found responsible for attacks on civil aircraft. The results of trying to hold them responsible has been a mixed bag.

In 1983, Korean Air Lines Flight 007 was shot down by a Soviet Su-15 fighter jet, killing 269 people. Soviet military personnel concluded the flight, which had drifted into protected airspace east of Russia, was a U.S. spy plane. A full investigation into the incident was made nearly impossible due to Soviet obfuscation at the time—the black box recording was not made public until after the dissolution of the Soviet Union. It was the second Korean plane struck by the Soviets in five years – the first, Korean Air Lines 902 in 1978, managed to make an emergency landing with only two deaths.

At the time, the international community slapped sanctions on the USSR for the disaster, and a U.N. Security Council resolution stating the use of force on civilian aircraft was “incompatible with the norms governing international behavior” was introduced but vetoed by Moscow.

The disaster prompted the International Civil Aviation Organization to adopt a measure now known as Article 3bis of the Chicago Convention, stating that “every state must refrain from resorting to the use of weapons against civil aircraft in flight.” The article didn’t take effect, as it wasn’t ratified by a sufficient number of member states.

Just five months after the Iran Air flight was shot down in 1988, Pan Am Flight 103 exploded and crashed near Lockerbie, Scotland, killing all 270 people on board—mostly Americans. Investigators found evidence that plastic explosives had been packed into a boombox, blowing a hole in the plane’s fuselage.

U.S. intelligence identified two suspects, identifying them as working for Libyan intelligence. Libyan dictator Muammar al-Qaddafi initially refused to hand over the two men for trial before acquiescing. One of the two accused was convicted, although there was a belief that other more senior officials ultimately escaped justice. In the end, Qaddafi agreed to pay $2.7 billion in compensation to the victims’ families.

- Foreign Policy

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