ICAO Council Agrees to Investigation Into Belarus Incident

 - May 28, 2021, 7:41 AM
The ICAO Council held a special meeting on May 27 to discuss the May 23 forced diversion of a Ryanair flight to the Belarusian capital Minsk. (Photo: ICAO)

The ICAO Council has asked for an investigation into the incident in which the Belarusian government allegedly forced a Ryanair airliner to land in Minsk on May 23. At a special meeting on May 27, the 36 Council members, representing ICAO member states, asked member states and other stakeholders to cooperate in a fact-finding investigation into the incident to establish, "whether there had been any breach by an ICAO member state of international aviation law, including the convention on international civil aviation [Chicago Convention] and its annexes."

In a statement released Thursday night, the governing body of ICAO instructed the ICAO Secretariat to conduct the investigation that will result in the presentation of a report to the Council at a future meeting. It called on all ICAO member states, including Belarus and its close ally Russia, to cooperate with the investigation.

While expressing concern about the forced diversion of flight FR4978 from Athens to Vilnius, ICAO has been quick to point out that it does not have the authority to directly enforce measures in retaliation at what political and airline industry leaders have characterized as a state-sponsored hijacking. Under Article 88 of the Chicago Convention, the ICAO Assembly could suspend Belarus’s voting rights as a member state if it finds “non-conformity” with the organization’s requirements.

The main grounds for any proven “non-conformity” in this case would appear to hinge on the following two articles of the Chicago Convention:

“The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.”

* “Each contracting State agrees not to use civil aviation for any purpose inconsistent with the aims of this Convention.”

In theory, the ICAO Council could suspend Russia’s membership if it finds Russia had participated in any proven breaches of protocol, or obstruction of ICAO’s processes. That would appear to be the first time that an ICAO member state government has been directly accused of a direct violation of aviation law to this extent.

Belarus President Alexander Lukashenko has continued to insist that he ordered the diversion, which involved the scrambling of an air force MiG-29 fighter to enforce cooperation by the Ryanair pilots, in reaction to an alleged report of a bomb aboard the aircraft. That justification has been roundly rejected by a broad cross-section of political and airline industry leaders with the exception of Russia. No evidence of explosives was found on the Ryanair Boeing 737 when it landed in Minsk and the emailed threats that Belarusian authorities said they received from Palestinian group Hamas were found to have been sent after the flight already diverted, according to Swiss-based internet service provider Proton Technologies.

In recent days, Russian officials have banned carriers including Air France and Austrian Airlines from flying to Moscow on the grounds that they refused to fly through Belarusian airspace en route. Multiple other airlines have started diverting flights around Belarus and a ban on Belarus-registered aircraft using European Union airspace and airports has started to be enforced. Russian aviation regulator Rosaviatsiya has reportedly informed airlines that their insistence on diverting around Belarus to access Russian airspace will likely result in delays with flight clearances. On Friday, the Russian foreign ministry said the European Union's call for Europe-based airlines to avoid Belarusian airspace was irresponsible on safety grounds. 

Late on Friday, the Biden Administration said it is suspending a 2019 agreement under which the U.S. and Belarus allowed their airlines to use each other's airspace. A spokeswoman said that the U.S. also will introduce further targetted economic sanctions against officials and close associates of President Lukashenko, who last year was re-elected for a sixth term in office in a widely disputed election.