VINCENNES: Legal Liability (Pt. 3)

[Felixth...@hotmail.com]

83 Am. J. Int'l L. 336
American Journal of International Law
April, 1989
AGORA: The Downing of Iran Air Flight 655

LOOKING BACK AND LOOKING AHEAD

Andreas F. Lowenfeld [FNa1]
(*FNa1. Of the Board of Editors.)

The first thing to learn about any incident or accident involving
airplanes is "wait." The initial reports never have it quite right. This was
true about KAL Flight 007, about Pan Am Flight 103, about the bombing of
Tripoli and Bengazi, and about Iran Air Flight 655.

Yes, an Iran Air passenger plane was brought down by American missiles with
the loss of all on board. No, it was not descending toward the ship at the
time the missiles were launched. Yes, numerous warnings and requests for
identification had been sent from the Vincennes to the airliner. No, the
transmissions were not--or at least not all--received, because they were made
on a military frequency not used by civil aircraft. Yes, close to the firing,
some of the warnings were sent on a frequency that civilian airliners should
monitor. No, the transmissions from the Vincennes and neighboring U.S. Navy
ships were either not picked up by the Iran Air crew, or the pilots failed to
understand that the challenge was directed to their aircraft. Yes, members of
the crew of the Vincennes interpreted the Aegis Large Screen Radar Display
system aboard their ship as showing the unknown aircraft to be descending. No,
in fact the aircraft was in a normal climb and the Aegis Radar System
correctly reported that fact. The flight recorders (black boxes) were not
recovered.

In the end, it is quite clear what happened, as the Findings of the ICAO
investigation, as well as the investigation made by the U.S. Navy, [FN1]
confirm. It was an accident waiting to happen--the Iran-Iraq war in its eighth
year, and its subset (as the U.S. Navy Report called it), the Gulf War; the
U.S. Navy on a mission to escort civilian vessels but above all to defend
itself; [FN2] memories of the Stark; the presence of the gunboats; the use of
the airport at Bandar Abbas for both military and civilian operations; and so
on. A Notice to Airmen (NOTAM) had been circulated by the United States as
early as 1984 and amended in 1987, indicating the proper radio frequencies to
monitor U.S. naval vessels and the forms of challenge and identification. We
know that the NOTAM reached the Iranian Government; whether it reached the
crew of Flight 655 is not known. We know that civilian flight schedules were
available to the Vincennes; whether they were consulted at the critical
moments is not known. Finally, the speed of the airliner, and the much greater
speed of the missiles, brought all the elements together in seven minutes and
eight seconds, from the first appearance of the Airbus on the Vincennes's
radar screen to the downing of the aircraft. The U.S. Navy *337 Report adds
that "[s]tress, task fixation, and unconscious distortion of data may have
played a major role in this incident," and also mentions a phenomenon called
"scenario fulfillment" on the part of the TIC (Tactical Information
Coordinator). [FN3]
...
I wish President Reagan had kept to his initial declaration--written a
check, as it were--drawing on his discretionary funds or some reserve or
contingency fund of the Defense Department. That way, it could have fairly
been said that it was too early to make conclusive findings about who was to
blame, but the important issue was to give some assistance to the bereaved.
Instead, the lawyers took over, asserting three "well established principles"
(in Mr. Sofaer's words, p. 321), the thrust of which is that if the use of
force was lawful, no compensation is due, but it might be given anyhow--ex
gratia. The more important point, in both the Legal Adviser's statement and
that of Professor Maier, seems to be that "the United States does not accept
legal responsibility for this incident" (Sofaer, p. 322), and that, whatever
action the United States takes by way of compensation, it must make clear that
it is not doing so in response to a "hypothetical international legal
obligation" (Maier, p. 325)...

I agree with Maier's definition of customary international law: nations
acting from a declared view of their obligations may well contribute to the
strengthening or weakening of an international norm. This is particularly true
with regard to an event of which the whole world was aware, such as the
destruction of an airliner in flight. All the more regrettable, in my view,
that *338 the Legal Adviser and his advocate are so insistent on denying any
legal responsibility.

I do not understand Maier's argument at all. The ability to make ex gratia
payments without creating a legal precedent, he writes, "permits and
encourages de facto aid to the victims in circumstances where the actual facts
cannot be found and interpreted or where, for other reasons, acknowledging
legal liability might be politically unacceptable to the nation involved" (p.
329). Of course, in the actual case, the facts were found--quite promptly,
and, I believe, reading the ICAO Report and the U.S. Navy Report together,
quite convincingly. [FN5] But the correct legal principle, I am clear, is not
as Sofaer and Maier would have it--no legal liability to victims of airplane
disasters without proof of fault beyond a reasonable doubt, and no fault in
combat zones--but rather liability regardless of fault, so long as the cause
is established, as it clearly was in the case of Iran Air 655, as in the case
of Korean Air Lines 007. I would have hoped that those who spoke for the
United States about the tragedy of July 3, 1988, from the President on down,
would have recognized this principle, so essential for the safety of civil
aviation, as other spokesmen for the United States and its allies have done
when other states' military (whether or not on orders from on high) brought
down civilian aircraft that may have strayed off course.

I believe that the Soviet Union was responsible, at international law, for
downing KAL 007. I believe (and so testified in litigation still in progress)
that this is true whether or not there was an equipment fault, or careless
navigation or deliberate overflight of Soviet territory by the Korean
airliner. Two wrongs do not make a right, and Maier's analogy to contributory
negligence as barring the claim is bad tort law because the passengers were
not negligent, and bad international law because the liability of the state
for shooting down a plane does not depend on negligence.

Fortunately, there are not many precedents for the fate of Iran Air 655.
Most involved flights over land, and in each case it seems that the defense
forces reacted too quickly to a perceived intrusion. The United States did not
hesitate to condemn all the attacks, without exception, though doubtless in
some of the instances the aircraft had strayed from their assigned routes (as
turned out not to have been the case of IR 655), and in some instances, such
as in the Berlin corridor and the South China Sea, tension prevailed there as
it did in the Strait of Hormuz.

. On April 29, 1952, an Air France plane on a scheduled flight from
Frankfurt to Berlin was attacked by a Soviet fighter plane, using cannon and
machinegun fire. The wounded aircraft managed to land, but several passengers
as well as a crew member were injured. The three Western members of the Allied
High Commission in Germany issued a joint statement: "Quite apart from these
questions of fact [i.e., whether the aircraft was inside or outside the air
corridor], to fire, in any circumstances, even by way of warning, on an
unarmed aircraft in time of peace, wherever that *339 aircraft may be, is
entirely inadmissible and contrary to all standards of civilized behavior."
[FN6]

. On July 23, 1954, a British airliner on a scheduled flight from Bangkok to
Hong Kong was shot down about 30 miles south of Hainan Island, killing 13 out
of 21 persons on board, including three U.S. citizens. Both the United Kingdom
and the United States issued strong condemnations, invoking "universally
recognized rules of international law," and demanding both punishment for the
persons involved and compensation for the loss of life and property. [FN7] The
Government of the People's Republic of China took responsibility for the
incident, which it attributed to a misidentification of the aircraft. The
British Government presented a claim of <<PoundsSterling>>367,000, which was
paid in full, together with formal assurances that measures "have been taken
to prevent recurrence of such incidents." [FN8]

. On July 27, 1955, a civilian airliner belonging to El Al Israel Airlines,
flying from Vienna to Tel Aviv, apparently departed from its flight path over
Greece and intruded into Bulgarian airspace, where it was shot down by
Bulgarian aircraft, killing all 58 persons on board. Several governments,
including that of the United States, declared that the attack was "a grave
violation of accepted principles of international law," and demanded
punishment of the persons involved and compensation for the victims. At first,
the Bulgarian Government admitted "a certain haste" on the part of its air
defense units and expressed its "profound regret for this great disaster."
Subsequently, Bulgaria changed its position and offered to compensate the
victims ex gratia, without accepting any legal responsibility. The United
Kingdom, the United States and Israel rejected this position, and brought a
suit against Bulgaria in the International Court of Justice. [FN9] The Court
dismissed the action on the ground of lack of jurisdiction; [FN10] certainly
the claimant countries did not withdraw their legal positions.

. On February 21, 1973, a Libyan Airlines B-727 was shot down by Israeli
fighter planes while overflying the (then Israeli-occupied) Sinai Peninsula on
a flight from Tripoli to Cairo, with the loss of 108 lives. Israel at first
stated that its fighters had acted "in strict compliance with international
law," having taken "maximal warning measures." Subsequently, however, Israel
expressed "profound sorrow" and made compensation of $30,000 per victim.
[FN11] The Council of the International Civil Aviation Organization adopted a
resolution condemning Israel's "flagrant violation of the principles enshrined
in the Chicago Convention." [FN12]

*340 . On April 20, 1978, a Korean Air Lines B-707 on a polar flight from
Paris to Seoul strayed off course into Soviet airspace. A Soviet interceptor
plane attempted by wing signals and radio contact to direct the airliner to
land, but when these communications failed, the Soviet plane fired a missile
at the airliner, which sheared off 15 feet of the plane's left wing and tore a
hole in the fuselage. Nevertheless, the plane was not completely destroyed and
managed to land on a frozen lake, with the loss of only two lives. Within 2
days an American rescue plane took the passengers out, and the crew was
released a few days later, after interrogation. [FN13] Unlike all the other
incidents mentioned, this one did not produce a global outcry: apparently, the
international community understood that while national sovereignty over
airspace must be respected, there is an equally important principle that
civilian aircraft must not be destroyed in flight with total loss of life.

. Finally, in the morning of September 1, 1983, a Korean Air Lines B-747
with 269 persons on board was shot down by Soviet fighter planes after it had
strayed into Soviet airspace over the Sea of Okhotsk, with total loss of life.
This time there was a global outcry--an emergency meeting of the United
Nations Security Council; an emergency session of the Council of ICAO; an
extraordinary session of the Assembly of ICAO; suspension of Aeroflot's
landing rights in the United States; suspension of British Airways service to
Moscow; and so on. A week after the disaster, U.S. Ambassador Jeane
Kirkpatrick said in the Security Council:
Had the Soviet Government taken responsibility for the action, admitted
that a terrible mistake had been made, offered compensation to the families
for the loss of life, and in co-operation with other States, undertaken a
review of the incident to ensure that such a tragedy would not recur, then the
consequences of the event would have been contained and, to the degree
possible, minimized. Nothing, to be sure, could reclaim the lives of those 269
people, but relations among nations would not have suffered, and civilian air
travel might have been rendered less vulnerable to such errors in the future.
[FN14]

When the chief of the Soviet General Staff finally held a news conference on
the disaster the next day, he replied to a question:
I'm certain that you all know that the Soviet Union's Government has
expressed its grief about the death of innocent people who were aboard the
plane. As far as responsibility and not only financial responsibility is
concerned, that falls on those who sent them to their deaths. Referring to
President Reagan's claim that we should apologize, President Reagan should
simply turn around and take one look in his mirror and it would become clear
to him who should answer questions of this sort. [FN15]

The Soviet Union did not cooperate with the ICAO investigation, and to this
day, as far as I know, it has not apologized or offered to pay compensation to
the victims of KAL 007, though of course its relations with the United States
and the West in general have greatly improved.

*341 Each of the episodes cited in this brief summary was in some way
distinguishable from the case of Iran Air 655. Each was also in some way
similar, in that it involved countries hostile to each other, and times of
political tension. In each prior case, the United States has asserted a
principle of responsibility, not for ex gratia payment, not for nonlegal or
public relations purposes, but on the basis of its understanding and
declaration of the law. This is the first such case, as far as I know, in
which it was the United States that brought down the civilian airliner. I find
it very troubling, therefore, when the spokesmen for the United States
Government now advocate a quite different legal principle.

Lest I be misunderstood, I want to summarize my position. I do believe that
the downing of Iran Air 655 was an accident, in the sense that it was not a
task assigned to the Vincennes by the Navy or the U.S. Government, and in the
sense that the commander of the ship did not realize that he was firing on a
civilian airliner. The situation was also very different from that of KAL 007,
in that the Soviets had two and a half hours to consider their response, while
the Vincennes had 7 minutes. Also, the United States did apologize, and it
cooperated fully with the ICAO investigation and made its own investigation
public. But in this area, responsibility does not depend on discovery or
apportionment of fault. The correct legal principle, in my view, is as set
forth in the amendment to the basic document of international aviation, the
Chicago Convention, [FN16] that came out of the Korean Air Lines disaster.
Proposed new Article 3 bis--not yet in force but I believe declaratory of
international law [FN17]--reads:
(a) The contracting States recognize that every State must refrain from
resorting to the use of weapons against civil aircraft in flight . . . .
[FN18]

That principle, it is clear, was breached by the United States in the case of
Iran Air 655, and it follows that the United States is responsible. To say
that is not to condemn the United States or even to find fault. It is simply
to state that responsibility flows from the action itself.

The U.S. Navy is already reexamining its crew training, and the utility of
its (perhaps too complex) RCA Aegis Radar system. I would hope that the State
Department and its advocates would also do some reexamining, and acknowledge
that, yes, international legal responsibility lies with the state whose
military bring down civilian aircraft, whether the act was committed in bad
faith, good faith or no faith at all.

http://www.geocities.com/Pentagon/Quarters/4654

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