BCL partner John Binns and associate Suzanne Gallagher’s article ‘How to lose friends and alienate nations: with its clear disregard for legal norms, Belarus takes its rogue state status up a gear’ has been published by Reports Legal.
Here’s an extract from the article:
With its clear disregard for legal norms, Belarus takes its rogue state status up a gear
Partner John Binns and associate Suzanne GallagherSuzanne Gallagher of the Sanctions and Extradition team at BCL Solicitors explain how Belarus’ recent actions demonstrate how not to seek an arrest, as well as how to invite international sanctions.
An unscheduled layover
Last week, Ryanair Flight FR4978 was en route between two EU capitals (Athens and Vilnius, the capital of Lithuania) when it was intercepted by a fighter jet from Belarus. Early reports indicate it was Belarusian air traffic control that informed the pilots of a potential security threat on board. They were then given instructions to divert to Minsk. On board, 171 passengers and crew members experienced an unscheduled layover of just under six hours. Roman Protasevich (a 26-year-old journalist from Belarus), and his girlfriend Sofia Sapega (a Russian national), were forcibly removed from the plane by Belarusian officials. Roman Protasevich is known for his criticism of President Alexander Lukashenko and is said to have played a key role for the opposition in the August 2020 presidential election. That election was “not transparent, free or fair”, according to a report of the Organisation for Security and Cooperation in Europe, dated November 2020, a conclusion shared by the EU.
The incident has been widely condemned by the international community and government officials, as well as Ryanair. It has been described as state-sponsored hijacking, air piracy and kidnapping. From a diplomatic perspective, an incident involving an Irish airline, a Polish registered plane and a cabin full of EU nationals is a disaster. But there is a legal perspective too. Belarus may be in breach of its obligations under international conventions – and has invited the use of various international sanctions – by acting as it did, rather than seeking the arrest of Mr Protasevich by legal means.
The International Civil Aviation Organization (ICAO), an agency of the United Nations, has publicly stated that Belarus could be in breach of the Chicago Convention. This Convention, finalised on 7th December 1944, is also known as the Convention on International Civil Aviation. The ICAO did not detail how Belarus may have breached the Chicago Convention, but under Article 3 bis “States must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of the persons on board and the safety of aircraft must not be endangered.” By sending a MiG-29 fighter aircraft equipped with air-to-air missiles to intercept a civilian aircraft, have the authorities in Minsk ‘used weapons’ and thereby breached this convention? Did the diversion and the unscheduled layover put the lives of those on board or the safety of the aircraft at risk?
The sanctions response
Irrespective of whether Belarus is or is not in violation of its convention obligations, officials involved in this episode have poked the bear of the EU’s international sanctions regime. Belarus is already quite familiar with this, with the EU already imposing sanctions on President Lukashenko, as well as 87 individuals and seven entities connected with him. The restrictive measures consist of a ban on travel to the EU and an asset freeze. EU persons and entities are forbidden from making funds available to those listed, either directly or indirectly. There are identical sanctions applicable in the UK.
Since the episode, the European Commission has called for the European Council to “adopt additional listings of persons and entities as soon as possible on the basis of the relevant sanctions framework”. In a speech on the topic, President Ursula von der Leyen indicated that new sanctions would be imposed on individuals involved in the hijacking, as well as on businesses and economic entities financing President Lukashenko’s regime.
This article was published by Reports Legal on 02/06/21. Read the full version on their website.