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Canada seeks reparations at International Court of Justice for Iran’s downing of Flight PS752

Wednesday, July 05, 2023 @ 1:11 PM | By Cristin Schmitz


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Canada, Sweden, Ukraine and the United Kingdom have jointly launched proceedings against Iran at the International Court of Justice (ICJ), seeking reparations for the families of those killed when Iran’s military illegally shot down a commercial airliner more than three years ago, as well as a public acknowledgment by the Islamic republic of responsibility for its commission of an “internationally wrongful act.”

On Jan. 8, 2020, Ukraine International Airlines Flight PS752 was shot down over Tehran’s international airport by two Iranian surface-to-air missiles, killing all 176 passengers and crew — 138 with ties to Canada, including 55 Canadian citizens, 33 permanent residents as well as students and visitors from Iran.

The disaster sparked civil litigation by the victims’ families in Canada, including tort actions, such as Arsalani v. Iran, 2021 ONSC 1334.

Iran denies all state responsibility for downing the airliner. Iran’s Islamic Revolutionary Guard Corps has admitted that it shot down the aircraft by a missile launched from its air defence systems, and that it mistook Flight PS752 for a U.S. cruise missile, hours after the guard corps fired missiles at, and struck, U.S. military bases in Iraq.

Canada and three of the other countries whose nationals were killed are part of the International Coordination and Response Group (ICRG) for the victims of Flight PS752, which was formed to try to hold Iran accountable. (The ICRG also includes Afghanistan, which did not participate in launching this week’s ICJ proceedings.)

On July 5, Global Affairs Canada announced that the four member countries jointly instituted proceedings against Iran at the ICJ in The Hague, Netherlands, in relation to Iran’s alleged breaches of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 1971 — to which the four countries and Iran are contracting states.

Known as the Montreal Convention, the treaty requires that states prohibit, prevent and punish certain offences against civil aviation, including the unlawful and intentional destruction of an aircraft in service.

The move this week at the ICJ came after Iran failed to respond to the ICRG’s request for arbitration that was sent Dec. 28, 2022. The Montreal Convention requires that if the parties cannot agree on the terms for organizing an independent arbitral tribunal with jurisdiction to hear the litigation within six months of a request, any party may refer the dispute to the ICJ.

“As we have reiterated on multiple occasions, Iran’s actions and omissions in relation to the downing of Flight PS752 by two surface-to-air missiles launched by members of Iran’s Islamic Revolutionary Guard Corps Aerospace Force amount to violations of Iran’s international legal obligations, for which Iran must take full responsibility,” the four countries said in the Global Affairs Canada press release.

“More specifically, as stated in our application, Iran has, among other violations, failed to take all practicable measures to prevent the destruction of Flight PS752 by members of its armed forces. Iran has equally failed to advance a full, transparent and impartial criminal investigation and prosecution in accordance with international standards,” they said. “Today’s legal action reflects our unwavering commitment to achieving transparency, justice and accountability for the families of the victims.”

Canada and the other three countries have asked the ICJ to adjudicate the dispute and find that Iran committed an internationally wrongful act, as alleged. They also asked the ICJ to order Iran to publicly acknowledge the internationally wrongful acts and omissions, and to publicly apologize to the victims’ families and their countries.

The quartet of countries also requested that Iran provide information to show that it has implemented concrete measures to prevent a similar catastrophe in the future.

The four countries also seek to require Iran to fulfil its other legal obligations under the 1971 Montreal Convention, including prosecuting or extraditing all alleged offenders, with any prosecution to take place “in a transparent and impartial manner.”

In addition, Canada and the other three countries seek “equitable compensation” from Iran for the “material and moral damages suffered by the victims and their families as a result of the downing of Flight PS752 and its other failures.”

Global Affairs Canada said proceedings at the ICJ usually take several years. The ICJ will set dates for written proceedings and then oral proceedings. Respondent Iran may raise preliminary objections to the jurisdiction of the court.

The members of the co-ordination group allege that Iran failed to try to take all practicable measures to prevent the destruction of Flight PS752.

“It also subsequently failed to conduct a transparent, fair and impartial investigation and prosecution consistent with international law,” a Global Affairs Canada backgrounder states. “Instead, Iran withheld or destroyed evidence (including the immediate bulldozing of the crash site), blamed other states before placing the blame on low-level Islamic Revolutionary Guard Corps military personnel for the downing, conducted a sham and opaque trial, and failed to advise either the applicants or the Council of the International Civil Aviation Organization of the measures taken in relation to the alleged offenders.”

The co-ordination group members contend “these acts or omissions amount to violations of the 1971 Montreal Convention that give rise to Iran’s responsibility under international law, including a legal obligation to make full reparation to the applicants.”

If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at cristin.schmitz@lexisnexis.ca or call 613-820-2794.