Ultra Vires


Delayed Flight to Justice

Will Canada hold Iran to account over the downing of Flight PS752?

In the early hours of January 8, 2020, the Iranian Islamic Revolutionary Guard Corps (IRGC) shot down Ukraine International Airlines Flight 752. Two surface-to-air missiles were fired at the jetliner from the vicinity of Tehran’s international airport only three minutes after take-off. All 176 on board the flight, after three minutes of suffering on the plummeting airplane, tragically perished upon impact with the ground.

Canada has felt the loss heavily. 138 of the 167 passengers were travelling to Canada via Ukraine, including 55 Canadian citizens, 30 permanent residents, and many international students coming home from winter holidays with their families. Given Canada’s deep connection to this tragedy, the Government of Canada is leading the group of the affected countries — Ukraine, Sweden, Afghanistan, and the United Kingdom — in pursuit of accountability, truth, and justice.

At the forefront of these efforts is our law school’s own Visiting Professor Payam Akhavan. Global Affairs Canada appointed Professor Akhavan as Senior Advisor on the downing of Flight PS752. This file, however, bears unique complexities that have rendered the road to justice painfully slow. In light of Iran’s disregard for international law, and with Iran itself in charge of the technical and criminal investigations, the international community has had little leverage to enforce the demands for accountability or transparency.

Meanwhile, the families of victims have not remained quiet. The Association of Families of Flight PS752 Victims was established by a group of families in Canada in the months following the incident. The Association now represents the families of over 140 of the victims and is actively advocating for truth and justice for Flight PS752. The Association has organized a number of rallies in Canada and across the world calling on international bodies to hold Iran accountable. The international community, however, has so far responded with a deafening silence — even at the most relevant forums such as the International Civil Aviation Organization (ICAO).

The rally, titled “Justice is Not Negotiable”, organized by the Association in Toronto on August 5, 2021. Credit: Mehdi Torabi Kia

Demands for Truth: The Unanswered Questions

Iran has not answered questions regarding why its airspace was allowed to remain open despite the tensions, why it ultimately attacked Flight PS752, and who gave those orders. Instead, the Iranian government has claimed that “human error” was to blame. However, this claim has since been widely rejected by the global community and is seen as a cover-up for a larger transgression.

A few hours before the IRGC fired at Flight PS752, Iran had launched a ballistic missile attack against U.S. bases in Iraq in retaliation for the killing of the IRGC Major General Qasem Soleimani by a U.S. drone on January 3, 2020. Iran anticipated a heavy response by the U.S. — namely, strikes on 52 locations throughout the country according to previous warnings. Despite being in a heightened state of war, Iranian officials refused to close their airspace. Canada’s forensic report has revealed that Iran’s top-level authorities were involved in the decision to keep the airspace open after the ballistic missile attack. Some have speculated that, in doing so, Iran was hoping to create a human shield against an American attack.

There are various gaps and inconsistencies in Iran’s accounting of the events. According to Iran’s final report, the operator of the mobile air defense unit mistook the aircraft for a cruise missile. However, this is not consistent with the technical realities of the situation. There are, for instance, unmistakable differences between a Boeing 737-800 jetliner and a six-metre-long cruise missile — including size, radar cross-section, speed, direction, and flight trajectory. This air defence unit was equipped with various radar, camera, and radio systems to be able to correctly identify the passenger aircraft with ease, from the moment it took off until the second missile was fired. Multiple other reports have detailed further inconsistencies in Iran’s narrative.

The Ukrainian and Canadian foreign ministries have also rejected Iran’s claims, as has the United Nations Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, Dr Agnès Callamard. In the words of Dr. Callamard, Iran’s assertions appear “to be contrived to mislead in one or more ways.” She also adds that on the basis of the information released by Iran, “it is not possible to answer many basic questions and clarify conjectures”, which have “led many to question whether the downing of Flight PS752 was not intentional.”

Demands for Justice: The Many Layers of Crimes

Iran’s conduct — including the reporting, investigations, criminal proceedings, and encounters with families of victims — has been designed to obstruct justice. Iranian officials initially attempted to deny the downing, calling it a “mechanical failure.” In the face of growing evidence and international pressure, Iran admitted to the attack after three days, but called it “a mistake.” Meanwhile, Iran actively took steps to destroy the evidence. Bulldozers started clearing the crash site just hours after the attack. Remarkably, the flight recorders were withheld for seven months, delaying the investigation in a complete disregard to ICAO regulations that call for immediate read-out of the recorders.

Iran has also committed several human rights violations in dealing with the families of victims and other protesters. In May 2021, the Human Rights Watch published an extensive report of harassment and intimidation of the families of victims. The report highlights numerous incidents of arbitrary detentions, abusive interrogations, torture, and interferences with burial and memorial gatherings “in an apparent attempt to curtail efforts for accountability.” Iran’s intimidation tactics extend into Canada in the form of phone calls and messages to Canadian families of victims. Inside Iran, peaceful public protests have been heavily suppressed, and protesters have in some cases been sentenced to years in prison.

While the innocent protesters were swiftly convicted, criminal proceedings for culprits of the downing of Flight PS752 have not been pursued nearly as seriously. The top commanders of the IRGC have already been extricated of any consequences, often making appearances on the state TV as national heroes. Under a judicial system that lacks independence from the other arms of the regime, there appears to be little hope for any meaningful achievement of justice in the domestic courts of Iran.

In contrast, on May 20, 2021, the Ontario Superior Court of Justice ruled on the balance of probabilities that the downing of Flight PS752 was an intentional act of terrorism. Iran did not appear in court to defend itself, resulting in a default judgement for the plaintiffs, a group of families of victims.

The Path to Justice

Canada’s path to justice is as much political as it is legal. After being a target of what was likely a terrorist act, it is important that Canada, as a global power and  advocate for human rights, stand up to Iran firmly on this matter. Remarkably, Iranian airport staff screened out any possible Americans from boarding Flight 752. This raises questions as to the differences between the attitudes of Canada and the U.S. in facing international threats and aggressions, which is critical when dealing with states that behave recklessly in the realm of asymmetric warfare.

On the legal front, the group of the affected countries have delivered their notice of claim against Iran to initiate negotiations over reparations. Iran has so far refused to respond to this notice, apparently continuing its delay tactics. If negotiations fail, the dispute can be submitted to the ICAO under the provisions of the Chicago Convention, and ultimately can be appealed to the International Court of Justice. These negotiations, however, cannot be conducted in a vacuum. They must be supplemented with adequate political action acting as levers of pressure. Strikingly, the ICAO has failed to condemn Iran for the shoot-down itself or for the numerous breaches of ICAO conventions.

Given the current conditions, the Association of Families of Flight PS752 Victims has raised the following demands:

  1. That the Government of Canada demonstrate international leadership on this file and swiftly appeal failed negotiations to the ICAO and the International Court of Justice;
  2. That the RCMP immediately launch a domestic criminal investigation under the provisions of sections 7(2)(c) and 77(d) of the Criminal Code;
  3. That the ICAO Council, including Canada, condemn the Iranian regime in the strongest terms for the crimes committed and breaches of ICAO conventions;
  4. That the Government of Canada impose Magnitsky sanctions on key members of the regime involved in the downing of Flight PS752; and,
  5. That the Government of Canada list the Islamic Revolutionary Guard Corps (IRGC) as a terrorist organization.

The second anniversary of the downing of Flight PS752 will soon arrive. January 8 is now recognized federally as the National Day of Remembrance for Victims of Air Disasters. As we honour the victims of Flight PS752 on their second anniversary, all eyes are on Canada to heed the calls for justice.

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