Updated: Jan 10, 2022
On May 23 2021, a Ryanair flight from Athens to Vilnius was rerouted by Belarusian Authorities and ordered to land in Minsk. On that plane were Belarusian dissident Roman Protasevich and his girlfriend Sofia Sapega. The passengers were ordered to open their bags and their luggage was checked by authorities, their identities checked and the two dissidents were arrested almost immediately. The Belarussian authorities have justified landing the plane by stating they received an anonymous message about a Hamas bomb on the plane and so had to check the plane. However, this story is doubted by many in the international community. There have been many condemnations by the countries of the world, however, no real pressure has been placed on Lukashenko. Lukashenko seems to have gotten away with this in the political sphere, but does he have to get away with it in a legal one? Is there a case that his actions were illegal under International Law, and if so, can Belarus be brought to justice?
To prove Lukashenko’s actions were illegal, two aspects of the flight may be looked at. One of these will be whether Belarus had the right to order the plane to land, and the other will be the detention of Protasevich and his girlfriend.
If the rerouting of the aircraft were to be legal, then Belarus would have had to have ‘reasonable grounds' to do so and it would have to have followed its own guidelines on intercepting civilian travel. The president of the Council of the International Civil Aviation Organization (ICAO) has called a meeting of the Council on the incident in order to look into the justifications of the landing order.
Even if the forced landing of the plane was legal, then the detention of Protasevich and his girlfriend are another matter. The detaining of any criminal on a civilian aircraft for a crime that was not committed on the flight is illegal under the Convention of International Civil Aviation. Therefore, the detaining of Protasevich and his girlfriend was illegal under International Law.
The question of legality is therefore solved. The actions of Belarus were illegal under International Law. Now, how can Belarus be held to account?
Two big pretexts exist which would allow for action, however the easiest pretext for action would rely on the following; The plane was, as of the time of the flight, registered in Poland, therefore as the plane was flying, it technically counted as Polish sovereign territory. This means the two detainees were protected under the European Convention of Human Rights. Belarus is not a party to the treaty, but the Polish are, meaning the arrest of Protasevich and his girlfriend violated their Right to Liberty under the Convention. Poland would be forced by its treaty obligations to take action against Poland. Belarus is required by International Law to request extradition for the two from Poland, giving Poland the pretext to fulfil those obligations.
Now how would Poland take action?
Poland could take action in the ICJ (the International Court of Justice, the UN’s court) by suing Belarus for infringement of the international order of Aviation. They could also, should less attention be required, use diplomatic channels to threaten Belarus into releasing the captives.
In summary, Belarus has violated international law in this instance and Poland can, should they have the political will, use this to hold Belarus to account. In this instance, there is a way, but not the will.