Metrojet Flight 9268 – A Preliminary (Legal) Remark

As most longtime readers are aware, I know a thing or two about international aviation law and have even ventured to comment on it from time to time (see, e.g., posts related to the Malaysia Airlines tragedy). News has now broken that Russian air carrier Metrojet Flight 9268 (7K9268), which crashed over Sinai last week, was likely brought down by a bomb planted by the so-called Islamic State (ISIS) or one of its affiliates. Nothing is 100% official yet, though United States and United Kingdom intelligence services are backing this conclusion. Russia and Egypt are not so sure.

It should come as no surprise that the apparent attack on 7K9268 is a crime under international law. The 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971 Montreal Convention) expressly prohibits any act which endangers, damages, or destroys an international carrier, though arguably earlier air-crimes treaties and customary international law proscribed such actions as well. One of he purposes of the 1971 Montreal Convention was to ensure that air criminals would be either prosecuted or extradited, no matter where in the world they are apprehended (the classic principle of aut dedere aut judicare). Despite the hype around the air-crimes treaties, none of them impose an unbreakable obligation on their respective state parties to prosecute or extradite. Any state can have recourse to its national laws governing extradition to block the obligation. So, for example, a country which has a law prohibiting extradition to any state which imposes torture or the death penalty can evade the obligation. As for prosecution, that is left up to national authorities; they can take a walk if they so desire.

What this means is that there is no guarantee under international law that the perpetrator(s) of the 7K9268 attack will be brought to justice even if apprehended. While there would no doubt be intense diplomatic pressure for any apprehending state to comply with the principle of aut dedere aut judicare, it’s uncertain that it will, particularly if the domestic political costs for doing so are high. The only reliable recourse Russia has is to use its own resources, including military force, to track down and kill or capture those responsible.

I will likely write more on this as further information comes to light.


1 Comment

  1. Cabbage
    November 5, 2015

    Given how quiet the Russians have been, I can’t help but wonder if they’re going to forgo legal proceedings and simply assassinate anyone they deem responsible. Their response, as you note, will probably depend on where the bombers happen to be.

    Or they could mimic the American response to terror attacks and occupy Oman.

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