GOPALAN: Iran’s Fake Apology Can’t Save It From The Long Arm Of International Law

Sandeep Gopalan Contributor
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After three days of obfuscation and steadfast denial, Iran was finally forced to accept that it shot down a civilian aircraft on January 8th — killing 176 innocent passengers including citizens from Canada (57), Sweden (17), Ukraine (11), and Britain (4). President Hassan Rouhani and other Iranian leaders had to perform an abrupt volte face after claiming repeatedly that Ukraine International Airlines Flight 752 had not been attacked by Iran. Unable to escape from their lies, Rouhani proclaimed “profound regret for the shooting down of the aircraft by the Iranian military.” Javad Zarif, the foreign minister, issued a non-apology dressed up in the words of regret: “A sad day. Preliminary conclusions of internal investigation by armed forces: human error at time of crisis caused by US adventurism led to disaster. Our profound regrets, apologies and condolences to our people, to the families of all victims, and to other affected nations.” The military claimed that as it was at its highest state of readiness, “because of human error and in an unintentional way, the flight was hit.”

Sorry just does not cut it – especially when the contrition expressed is manifestly fake. Iran must pay for this misadventure. And those responsible must be subjected to criminal prosecution and punished for violations of international humanitarian law – the rules applicable when states engage in armed conflict.

Iran’s responsibility is not difficult to establish. From the facts available so far, it is clear that Flight 752 was not a legitimate military target. Article 51 of the Additional Protocol to the Geneva Conventions of 12th August 1949 categorically establish that civilians shall enjoy “general protection” from “dangers arising from military operations.” Indeed, this sequestration of civilians from targeting is well accepted and the codification merely evidences that customary norm. Clause 2 of this article mandates that civilians shall not be the object of attack whereas Clause 4 prohibits indiscriminate attacks. And Iranian claims that the aircraft was targeted because of the prior United States strike that killed Qassem Soleimani are unavailing because Clause 6 expressly prohibits attacks “against the civilian population or civilians by way of reprisals.”

Iran’s claim that the tragedy was unintentional or caused by human error is unlikely to be of much use here. Article 57 of the Additional Protocol mandates that “constant care shall be taken to spare the civilian population, civilians and civilian objects.” Chillingly for the Iranian regime’s leadership, Clause 2 states that those who are responsible for planning or making the decision to attack shall “do everything feasible to verify” that the targets are not civilians or civilian objects and are “not subject to special protection” but are clear military targets. They are also responsible for making sure that there is no prohibition by the protocol to attack the target. The provision does not stop there: once the target has been identified as legitimate, those responsible are to take all reasonable steps to avoid the loss of civilian life. And they are to “refrain” from attacking if there is likelihood of causing “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”

Here, the attack was clearly in breach of these obligations – the aircraft was civilian, and it was flying in a path determined by Iranian air traffic control. Moreover, specific to air attacks, Clause 4 states that those responsible for an attack shall “take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.” Iran really has no defense at all here – it had plenty of opportunity to verify that the aircraft was not a military target, and those responsible ought to have taken precautions before ordering the strike.

There is another reason to be leery of Iran’s fake apology: history. In July 1988, the United States erroneously shot down Iran Air Flight 655 — killing 290 people on board. The US Navy’s USS Vincennes fired a surface-to-air missile after wrongly believing that the aircraft was a hostile F-14 Tomcat belonging to the Iranian Air Force. Following the incident, Iran denounced the US action and refused to accept that it was an accident. Iran brought a case before the International Court of Justice arguing that the shooting down of the plane was “a flagrant breach of the Chicago and Montreal Conventions and the Treaty of Amity … [which] prohibits the use of force against civil aircraft,” in addition to the UN Charter.

Critically, Iran attacked the US position that the aircraft was brought down by accident. Iran said the US could not have credibly “misidentified” the airplane because “the overwhelming weight of the evidence” revealed that the USS Vincennes “had the capacity to, and did correctly, identify IR 655 as a civilian aircraft.” Iran also cited a prior US argument against Iraq in the Stark incident that Iraq “knew or should have known” that it was attacking a US warship. Similarly, it rejected the argument that the US forces were “fatigued” and under stress. Iran also argued that the US should be liable because of “recklessness” and “gross negligence.” The US was forced to pay a settlement of $131.8 million – $61.8 million of which was paid as compensation to the families of the victims.

Now, Iran must be called to account with its own argument. Iran’s arguments before the ICJ in 1989 could come back to bite it in 2020. Iran had every opportunity to establish that the aircraft was civilian, it knew the flight path of the airplane and, despite heightened alert and tension, its forces are trained to distinguish between civilian aircraft and military targets. Finally, as it argued so powerfully in 1989, Iran’s actions are reckless and grossly negligent. If Iran’s previously extreme arguments are applied now, the question is whether the Iranian regime should be prosecuted for war crimes under the recklessness standard.

As Justin Timberlake crooned so memorably, ‘What goes around, goes around, goes around comes all the way back around …’ The West must unite to hold Iran’s leaders criminally responsible under international humanitarian law.

Sandeep Gopalan (@DrSGopalan) is vice chancellor at Piedmont International University in North Carolina. He was formerly a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He was also co-chairman or vice chairman of American Bar Association committees on aerospace/defense and international transactions, a member of the ABA’s immigration commission, and dean of three law schools in Ireland and Australia. He has taught law in four countries and served as a visiting scholar at universities in France and Germany.