The U.S. Attorney for the Southern District of New York recently announced the filing of a one-count indictment against the Director General of the Belarusian state air navigation authority (“Belaeronavigatsia”), the Deputy Director General of Belaeronavigatsia, and two officers of the Belarusian state security services. The indictment charges the defendants with conspiracy to commit aircraft piracy for allegedly engineering the diversion of Ryanair Flight 4978 while it was in flight over Belarus “for the purpose of arresting a dissident Belarusian journalist who was on board the flight.” Like the foreign defendants in a number of U.S indictments charging individuals with engaging in malicious cyber activity on behalf of foreign states, the Belarusian defendants remain at large. The United States and Belarus do not have an extradition treaty. Consequently, the United States is unlikely to gain custody of the defendants unless they travel to a country that does have an extradition treaty with the United States.
This indictment, which comes on the heels of an international fact-finding report on the forced landing, contributes to the public record of the machinations that resulted in the journalist’s arrest. This contribution offers some reactions to the indictment from the perspective of international law and U.S. foreign relations. In particular, it considers the extraterritorial reach of U.S. law to criminalize the Belarusian officials’ conduct, as well as the implications of the indictment for the scope of conduct-based foreign official immunity.
Background
On May 23, 2021, Ryanair flight FR4978 was en route from Athens, Greece to Vilnius, Lithuania when it suddenly changed course over Belarus, about six miles from the Lithuanian border. Air traffic controllers had reportedly told the pilot that “you have [a] bomb on board and it can be activated over Vilnius,” leaving the pilot no choice but to land in Minsk, Belarus. After the plane landed, Belarusian authorities arrested journalist Roman Protasevich and his girlfriend Sofia Sapega. Belarusian officials had put Protasevich on a list of “individuals involved in terrorist activity;” he reportedly said as he was led off the plane that “I’ll get the death penalty here.” Charges remain pending against Protasevich and Sapega, whose conditions of confinement have reportedly improved in response to sanctions and public outcry.
At the time of the incident, Belarus air force chief Igor Golub said there was “no interception, no forced diversion from the state border or forced landing of the Ryanair plane.” On Jan. 17, 2022, all member states of the International Civil Aviation Organization (ICAO), a U.N. specialized agency, received copies of the organization’s fact-finding report on the forced landing. The ICAO Council discussed the report during its meeting on Jan. 31. At the meeting, the Council strongly condemned communicating false information that endangers the safety of an aircraft. It also requested the ICAO investigation team to continue its work and to report any further findings, given “some newly emerging information relating to the FR4978 events and timeline,” and “the gaps in information provided by Belarus.” Meanwhile, Ryanair sought a guarantee from Belarus that there would be “no repeat” of the forced landing, and said other airlines should not fly over Belarus absent “appropriate guarantees.” The initial ICAO report emphasized that the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montréal Convention) prohibits “unlawfully and intentionally … communicat[ing] information which [a person] knows to be false, thereby endangering the safety of an aircraft in flight,” as well as attempting or assisting such communications. As a factual matter, ICAO concluded in the report that “[a]s neither a bomb nor evidence of its existence was found during pre-departure screening in Athens, Greece and after various searches of the aircraft in Belarus and Lithuania it is considered that the bomb threat was deliberately false.” The report also indicated that “a number of States connected to the event are investigating related offenses in accordance with the enabling provisions of their national laws as stipulated in the Montréal Convention.” The U.S. indictment can be viewed as an effort to enforce international law by applying domestic statutes.
The U.S. Indictment and its Foreign Policy Implications
Like other “speaking indictments,” this indictment tells a story and names specific individuals who allegedly participated in the conspiracy to force the plane to land in Minsk, and to conceal the role of Belarusian security services in directing the diversion. The indictment serves several functions apart from providing the basis for an eventual arrest and prosecution. First, it contributes to the public narrative about the event. Second, it showcases the United States’ intelligence-gathering abilities—helped significantly by the cooperation of a Belarusian defector to Poland who was in the air traffic control tower at the time of the Ryanair incident. Third, it personalizes the accusations in an effort to “name and shame,” and perhaps deter, individuals who engage in unlawful conduct on behalf of authoritarian regimes. As with the indictments of Russian and Chinese hackers, the first two goals might be more straightforward to achieve than the third.
The degree of coordination, or lack thereof, among U.S. Attorneys’ offices, Main Justice (in D.C.), and the State Department when it comes to indicting defendants who work for, or on behalf of, foreign governments, remains opaque. To take two recent examples, the 2019 indictment of a Turkish state-owned bank for conspiring to evade U.S. sanctions against Iran and the emergency extradition request to Canada for Huawei CFO Meng Wanzhou could be viewed as furthering, but also as significantly complicating, U.S. foreign policy goals. This is not a new issue. In 1996, South Africa complained about the U.S. refusal to drop its prosecution of South Africa’s state-owned arms company for breaking export laws before the end of apartheid; China was reportedly furious about the first hacking and cyber espionage indictment brought against five officers in the Chinese People’s Liberation Army (PLA) in 2014.
In terms of law, rather than policy, the Ryanair indictment also raises two interesting sets of questions, as noted above: one relating to the extraterritorial application of U.S. law, and the other relating to foreign official immunity.
Extraterritorial Application of U.S. Law to the Ryanair Incident
In U.S. law, 49 U.S.C. § 46502(a) defines “aircraft piracy” as “seizing or exercising control of an aircraft in the special aircraft jurisdiction of the United States by force, violence, threat of force or violence, or any form of intimidation, and with wrongful intent.” The indictment alleges that the defendants conspired to convey the false bomb threat to the pilot of the Ryanair flight “in order to exercise control over the Flight and cause its diversion to Minsk.” Because the alleged offense occurred outside the special aircraft jurisdiction of the United States (because the flight lacked the requisite connection to the United States), the charges are based on 49 U.S.C. § 46502(b). That section provides jurisdiction over an offense, and conspiracy to commit an offense, defined in the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft (the Hague Hijacking Convention). Although the Convention envisions that the person committing the offense would be “on board an aircraft in flight,” a 2010 Protocol to that Convention (the Beijing Protocol) updates the definition of an offense to include if a person “intentionally seizes or exercises control of an aircraft in service by force or threat thereof, or by coercion, or by any other form of intimidation, or by any technological means,” including if a person “unlawfully and intentionally causes any person to receive such a threat, under circumstances which indicate the threat is credible.”
The Hague Hijacking Convention and Beijing Protocol envision that states parties will make these offenses punishable under national law. The United States has done so, and it has provided U.S. courts with jurisdiction over offenses that take place outside its special aircraft jurisdiction in the following circumstances: if (A) a national of the United States was aboard the aircraft; (B) an offender is a national of the United States; or (C) an offender is afterwards found in the United States. Subsection (C), which is similar to language in other statutes such as the Genocide Accountability Act of 2007, represents the closest approximation of pure universal jurisdiction in the U.S. Code, since the United States does not conduct criminal trials in absentia.
Here, because there were four U.S. nationals on board the Ryanair flight (among over 100 passengers), the basis for jurisdiction is subsection (A). This subsection reflects what international lawyers refer to as “passive personality” jurisdiction. Although both passive personality jurisdiction and universal jurisdiction are exceptions to more common forms of jurisdiction based on the territorial location of the offense (here, a Polish-registered plane in Belarusian airspace) or the nationality of the offender (Belarusian), piracy has long been viewed as a quintessential universal jurisdiction crime.
The real innovation in this case, then, is less asserting jurisdiction on the basis of passive personality than characterizing a state’s decision to compel an aircraft within its airspace to land in its territory as piracy. Although the ICAO report recalls the obligation under the Montréal Convention not to intentionally and unlawfully communicate false information that endangers the safety of an aircraft in flight, the indictment’s reliance on the Hague Hijacking Convention and Beijing Protocol definitions seem more fully to capture the essence of Belarus’s unlawful actions here.
Foreign Official Immunity in U.S. Courts
The Hague Hijacking Convention responded to the growing problem of hijacking of civilian airliners by individuals and non-state groups. But indicting and issuing arrest warrants for current or former foreign officials for aircraft piracy or hijacking offenses could raise questions about the application of immunity doctrines. As my colleague and coauthor Bill Dodge has explained in prior Just Security posts, and as I have summarized here, status-based immunity shields certain incumbent officials (diplomats, heads of state, and heads of government) from foreign legal proceedings during their time in office. Conduct-based immunity shields other incumbent officials, and former officials, from foreign legal proceedings for their “official acts.” Not all acts performed under color of foreign law qualify as official acts for immunity purposes, as I have explored in prior work, and as Bill and I discussed in a recent law review article.
Intentionally forcing a civilian aircraft to land on false pretenses is not, presumably, something that U.S. officials plan to do, and therefore not something a foreign country might seek to prosecute them for. In that sense, signaling that such conduct falls outside the scope of “official acts” for conduct-based immunity purposes does not create the same kind of reciprocity concerns potentially raised by indictments for other types of conduct, such as non-commercial cyber espionage. Countries also treat some conduct in which they engage regularly, such as espionage, as falling outside the scope of “official acts” for conduct-based immunity purposes.
That said, since the customary international law of conduct-based immunity is formed by state practice accompanied by opinio juris (the belief that a given practice is required or prohibited by international law), prosecutors should remain mindful of the cumulative effect of U.S. indictments on customary international law. Given reports that Belarusian President Lukashenko “gave an ‘unequivocal order’ to ‘make the plane do a U-turn and land,’” one wonders whether he will be indicted along with the other named defendants once he no longer enjoys status-based immunity as a sitting head of state.
Conclusion
The success of the global civil aviation regime depends on states subordinating their perceived short-term political interests to the maintenance of safe and predictable flight routes. Other states enforce this regime by responding to violations with forceful denunciations and other measures, such as economic sanctions and avoiding a noncompliant state’s airspace. Imposing individual criminal responsibility provides another way to deter and punish conduct that violates core international prohibitions.
International criminal tribunals do not generally recognize immunity defenses, but the situation in national courts is more fraught. States often cannot be trusted to police their own officials’ misconduct, and international tribunals lack the capacity and the jurisdiction to enforce international prohibitions on a large scale. Enforcement therefore falls to other states. In addition to the U.S. indictment, Lithuania has an ongoing criminal investigation into the Ryanair incident, and Poland also conducted an investigation. The broad consensus that Belarusian authorities violated international aviation law—despite disinformation to the contrary—arguably makes the domestic prosecution of international crimes somewhat less controversial in this case. In an international legal system based largely on reciprocity, U.S. officials must remain mindful of international law both in their conduct, and in their exercise of prosecutorial discretion.