After Iran shot down Ukraine International Airlines flight PS752 on Jan. 8, killing all 176 people on board, it said that its anti-aircraft systems were on high alert because of tensions with the United States.
That led many to wonder why neither Iran nor international aviation agencies closed the country’s airspace for civilian flights.
In fact, there are no universal rules for civil flights in conflict zones and no sanctions for governments that fail to close their airspace during dangerous times.
The United Nations’ International Civil Aviation Organization (ICAO) doesn’t have the authority to impose flight restrictions and it’s up to a country to decide whether to permit flights over its territory and whether to allow its domestic airlines to fly to foreign countries that could be dangerous.
However, it is extremely rare for a country to close its airspace due to safety concerns, according to Andriy Guck, a Ukrainian aviation lawyer. As for airlines, they usually stop flights based upon government recommendations or bans, and rarely on their own.
The absence of unified regulations or an international organization responsible for travel safety leaves the lives of innocent people in the hands of irresponsible governments. And sometimes — as in the case of PS752 — that ends tragically.
Who stopped flying to Iran?
On Jan. 3, U.S. President Donald Trump sanctioned an air strike in Iraq, killing Qassem Soleimani, a high-ranking Iranian general. That same day, Iran promised to retaliate, bringing the two countries closer to a direct military confrontation.
The next day, Polish LOT Airlines became the first passenger carrier to reroute its flights to avoid Iran airspace when flying to its Asian destinations. A few others followed, including Air France and KLM.
However, no airlines that fly to Iran halted flights. No governments or international aviation agencies issued recommendations to avoid flying to or over Iran.
In the early hours of Jan. 8, Iran fired 22 missiles at military bases in Iraq used by U.S. forces. An hour later, the U.S. issued the so-called “notice to airmen” — or NOTAM — banning all passenger flights over Iran, Iraq, the Persian Gulf and the Gulf of Oman.
The U.S. became the only country to ban flights before the downing of PS752. The Ukrainian plane was hit less than three hours later.
Shortly before the Ukrainian flight PS752, a Turkish Airlines plane bound for Istanbul and an Aeroflot aircraft bound for Moscow took off and flew in the same direction as the Ukrainian airliner. Altogether, around 100 flights departed from and arrived at the Tehran airport on the day of the crash.
Hours after the crash, the European Aviation Safety Agency recommended rerouting flights over Iran. But it had no way to enforce its recommendation.
Most international airlines began canceling their flights to and over Iran after the crash. Some, like German Lufthansa and Austrian Airlines only canceled flights as late as 10 hours after the downing. The next day, Russian Aeroflot, Turkish Airlines and most airlines based in the Middle East resumed their flights to and over Iran – most of them to European and North American destinations.
Immediately after the crash, Ukraine International Airlines (UIA) suspended all flights over Iran, while the Ukrainian government issued a flight restriction starting from Jan. 9. However, UIA was the only Ukrainian airline flying to Iran anyway.
“Airlines assess risks based on NOTAMs,” says Guck.
Iran didn’t close its airspace for passenger flights after the crash.
“They (Iran) were being completely irresponsible,” said Ihor Sosnovsky, vice president of UIA in charge of flight operations, during a press conference on Jan. 11, a day after Iran publically admitted it shot down the plane. “They had to close the airport if they were shooting somewhere from someplace. They were obliged to do so. And then they can shoot all they want.”
However, there isn’t an international law that could have forced Iran to close its airspace – or that can hold it responsible for not doing so.
Who could have closed Iran’s airspace?
According to the 1947 Chicago Convention on International Civil Aviation, the newly created International Civil Aviation Organization (ICAO) doesn’t have the mandate to ban flights over a certain country’s territory. That right belongs to the sovereign nations.
The International Air Transport Association (IATA), an organization uniting 290 airlines, similarly doesn’t rule on where and when to fly.
In fact, the ICAO issued a non-binding recommendation to avoid Iran’s airspace only on Jan. 10, two days after the crash, when Western countries already accused Iran of shooting down the plane.
Furthermore, the ICAO doesn’t initiate investigations into aviation accidents and only takes part in an investigation if one of the parties involved asks for assistance.
The only international body that can restrict flights over a given territory is the United Nations, by sanctioning a no-fly zone. However, this happens rarely and usually during severe international conflicts, like the wars in the former Yugoslavia in the early 1990s or the civil war in Libya in 2011.
According to Guck, in the PS752 situation, the responsibility lies with the host country, Iran.
“After firing missiles and awaiting retaliation from the U.S., they should have closed their airspace,” says Guck. “They didn’t do so because they used passenger aircrafts as a shield from potential U.S. retaliation.”
Tragedy repeating
In the summer of 2014, when Russian-led proxies shot down Malaysian Airlines flight MH17 over Ukraine’s eastern Donbas region, many were puzzled to discover that the airspace over a war zone was open for civil aviation.
In fact, on July 17, 2014, when the Malaysian Airlines Boeing 777-200 was shot down, 160 planes flew over the region.
Days before the MH17 downing, the State Aviation Administration of Ukraine raised the minimum permitted flight altitude over Donbas based on information about Russian anti-aircraft weapons present in the region.
But Russia brought in a Buk missile launcher with an altitude range of up to 14,000 meters and shot down MH17, killing all 298 people on board, most of whom were Dutch citizens.
In October 2015, the Dutch Safety Board issued a report stating that MH17 was brought down by a missile and that Ukraine had sufficient reasons to close the airspace over Russian-occupied parts of its territory.
However, no further action was taken against Ukraine, since there are no official regulations issued by the ICAO establishing conditions when a country must close its airspace.
Based on previous instances when a passenger plane was downed by a missile, one of two scenarios is likely to follow such an incident. In the case of MH17, Russia denies responsibility for downing the plane, despite clear evidence to the contrary.
A Joint Investigation Team (JIT) including prosecutors from the Netherlands, Belgium, Australia, Ukraine and Malaysia was formed in 2014. JIT’s 2019 report states that the Buk launcher was brought from Russia. The team also identified potential suspects. The suspects’ trial in absentia is set to begin on March 9.
The European Court of Human Rights transferred two claims by the families of the victims to Russian courts. One claim accuses Russia of shooting down the plane. The other relates to smuggling the weapons used to shoot down the plane into Ukraine. According to the claims, Russia violated the European Convention on Human Rights.
Ukraine is also suing Russia for allegedly breaching the UN Terrorist Financing Convention. According to Kyiv, by financing militants in Donbas and providing them with weapons such as missile launchers, Russia violated international law.
What happens next?
Unlike Russia, Iran has admitted to downing PS752. Previous cases indicate what comes next.
Iran will most likely pay compensations either to the families of the victims directly or to the countries whose citizens died in the crash. In exchange, the families or the countries will sign settlements renouncing future legal claims.
In a Jan. 11 video address to the nation, President Volodymyr Zelensky said that Ukraine received a formal apology from Iranian President Hassan Rouhani. Ukraine’s Prosecutor General’s Office has opened an investigation into the crash. Meanwhile, Zelensky has demanded that the bodies of those killed be returned rapidly and that the people directly responsible for the crash be punished.
“The (Ukrainian) government will provide financial assistance to the families of the victims. The state will also help them obtain compensation from the airline, insurance companies and Iran,” Zelensky said.
Ukrainian experts, joined by experts from Canada, remain on the ground, investigating the crash and analyzing the plane’s black boxes. On Jan. 14, the Reuters news agency reported that Iran had arrested potential suspects in the plane’s downing without providing any specific details.
On Jan. 11, the Ukrainian government ruled to pay the families of the victims Hr 200,000 ($8,500) each and said it will help the families to receive financial compensation from Iran.
UIA said it will pay all necessary insurance fees to the families of the victims in accordance with the 1999 Montreal Convention – a minimum of $22,000 per victim.
The amount of compensation that will be provided by Iran is yet unknown.
In a similar situation, Iran received $131.5 million from the U.S., after the latter shot down an Iranian passenger plane in 1988. The U.S. didn’t officially apologize but paid the money in 1996 in order for Iran to withdraw a case against it in the International Court of Justice.
In 2001, when Ukraine shot down a Russian passenger plane over the Black Sea during a military drill, the country didn’t officially admit guilt but still paid $200,000 to the families of the 78 people killed.
