8 Jan 2020: UKR Airliner shot down in Tehran

[Underway]

I don't envy the PM on this one.  The options are extremely limited, both for a solution for closure for the families and the geopolitical realities.

The best I think we can hope for is the bodies are returned to their loved ones.  The government should push for that above all else. After they have returned them, we look at other options.

 

[Cloud Cover]

Unless this can be framed as an act of terrorism, there is very little Canadian or International Courts can do. Iran is not a signatory to the Rome Statute. The Canadian State Immunity Act grants Iran immunity from any court or proceeding in Canada. Iran (and Syria) are the only entities listed in the regulations under the SIA that would not have immunity in the case of terrorism.

Options, if they even exist at all, are very limited.

This might be shocking to many people, but even if Iran had boarded the aircraft and tortured every single passenger to death, Canadian law does not touch them. On this point the Supreme Court of Canada has recently upheld State Immunity: Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62 (CanLII), [2014] 3 SCR 176, <http://canlii.ca/t/gdwht>

"State immunity is not solely a rule of international law, it also reflects domestic choices made for policy reasons, particularly in matters of international relations. Canada’s commitment to the universal prohibition of torture is strong. However, Parliament has made a choice to give priority to a foreign state’s immunity over civil redress for citizens who have been tortured abroad. That policy choice is not a comment about the evils of torture, but rather an indication of what principles Parliament has chosen to promote.

In Canada, state immunity from civil suits is codified in the SIA. That Act is a complete codification of Canadian law as it relates to state immunity from civil proceedings. It provides an exhaustive list of exceptions to state immunity and it does not contain an exception to immunity from civil suits alleging acts of torture committed abroad. For that reason, reliance need not, and indeed cannot, be placed on the common law, jus cogens norms or customary international law to carve out additional exceptions to the immunity granted to foreign states pursuant to the SIA. Although there is no doubt that the prohibition of torture has reached the level of a peremptory norm, the current state of customary international law regarding redress for victims of torture does not alter the SIA, nor does it render it ambiguous."

Canada has no extradition treaty with Iran to stand trial under Canadian Criminal law. The ICC has no jurisdiction over Iran because it is not a signatory or a failed state.  Unless there is some convention somewhere that Canada and Iran both have ratified and signed, there is almost no legal recourse at present.

Here's what will happen: nothing.  Iran is going to pay 8K to each victim of the shoot down. Likely Canada will pay more and then try somehow to recover the amount from Iran. (There's no legal basis for Canada to do that, but we all know it will happen.)

Edited: formatting.

 

[brihard]

Unless this can be framed as an act of terrorism, there is very little Canadian or International Courts can do. Iran is not a signatory to the Rome Statute. The Canadian State Immunity Act grants Iran immunity from any court or proceeding in Canada. Iran (and Syria) are the only entities listed in the regulations under the SIA that would not have immunity in the case of terrorism.

Options, if they even exist at all, are very limited.

This might be shocking to many people, but even if Iran had boarded the aircraft and tortured every single passenger to death, Canadian law does not touch them. On this point the Supreme Court of Canada has recently upheld State Immunity: Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62 (CanLII), [2014] 3 SCR 176, <http://canlii.ca/t/gdwht>

"State immunity is not solely a rule of international law, it also reflects domestic choices made for policy reasons, particularly in matters of international relations. Canada’s commitment to the universal prohibition of torture is strong. However, Parliament has made a choice to give priority to a foreign state’s immunity over civil redress for citizens who have been tortured abroad. That policy choice is not a comment about the evils of torture, but rather an indication of what principles Parliament has chosen to promote.

In Canada, state immunity from civil suits is codified in the SIA. That Act is a complete codification of Canadian law as it relates to state immunity from civil proceedings. It provides an exhaustive list of exceptions to state immunity and it does not contain an exception to immunity from civil suits alleging acts of torture committed abroad. For that reason, reliance need not, and indeed cannot, be placed on the common law, jus cogens norms or customary international law to carve out additional exceptions to the immunity granted to foreign states pursuant to the SIA. Although there is no doubt that the prohibition of torture has reached the level of a peremptory norm, the current state of customary international law regarding redress for victims of torture does not alter the SIA, nor does it render it ambiguous."

Canada has no extradition treaty with Iran to stand trial under Canadian Criminal law. The ICC has no jurisdiction over Iran because it is not a signatory or a failed state.  Unless there is some convention somewhere that Canada and Iran both have ratified and signed, there is almost no legal recourse at present.

Here's what will happen: nothing.  Iran is going to pay 8K to each victim of the shoot down. Likely Canada will pay more and then try somehow to recover the amount from Iran. (There's no legal basis for Canada to do that, but we all know it will happen.)

Edited: formatting.

Regarding the shoot down, offhand I don’t see any plausible way we could charge any individuals criminally anyway, absent being able to prove that a deliberate decision was made to knowingly shoot down a civilian airliner. Legally, assuming it was a genuine mistake, there’s little real difference between the shoot down, and one of our LAVs taking out a taxi in Kandahar under the mistaken belief that it might be a VBIED.

On some of the brutal repression of internal dissent, hypothetically Canada could apply the provisions of the Crimes Against Humanity and War Crimes Act, if there were a Canadian victim or the accused stepped foot onto Canadian soil. While the CAHWCA draws its definitions from the Rome Statute, it doesn’t require an accused to be an official of a state signatory to be subject to the jurisdiction of the Act. Such a hypothetical prosecution (say against a police or military or other government official who had a direct role in crimes against humanity with a Canadian victim) could result in an INTERPOL red notice being issued, and if the accused were to be flagged at a port of entry of a country with an extradition treaty with Canada, they could get picked up and extradited for prosecution. The RCMP has a small unit that, among other things, would carry out such investigations.

Needless to say, while the set of circumstances could happen, this would be a long shot. It also would be purely criminal in nature, and would not provide civil restitution or remedy.

 

[Cloud Cover]

In the case I noted above, the Supreme Court ruled there is no difference between a state and officials of a state. There is no method for Canada to prosecute Iranian nationals for torture crimes (committed after 1985) specified under domestic Canadian law. The foreign state would have to agree, and then the accused would have Charter rights and good luck after that. So it’s a rather pointless thing anyway. However, the Supreme Court did kick the ball back to Parliament to change and create new laws about these things, but obviously that didn’t happen.

 

[brihard]

In the case I noted above, the Supreme Court ruled there is no difference between a state and officials of a state. There is no method for Canada to prosecute Iranian nationals for torture crimes (committed after 1985) specified under domestic Canadian law. The foreign state would have to agree, and then the accused would have Charter rights and good luck after that. So it’s a rather pointless thing anyway. However, the Supreme Court did kick the ball back to Parliament to change and create new laws about these things, but obviously that didn’t happen.

...Yes there is. As I said, the Crimes Against Humanity and War Crimes Act. But there would have to be a Canadian nexus. It’s a rarely applied law, but it is on the books and it is in use. A foreign official can be prosecuted under our domestic law for a criminal offense under the act (essentially it codifies Jus Cogens into domestic law). But for the jurisdictional elements in S.8 of the act to be met there has to be a Canadian nexus under one of a few enumerated conditions. An Iranian national, if they tortured or killed a Canadian citizen in an act of political repression, could definitely be prosecuted, notwithstanding the many legal challenges that exist. Alternatively anyone who has committed any of the many acts constituting crimes against humanity or war crimes is subject to prosecution if they later touch Canadian soil, such as if they arrive as a prospective asylum claimant. Most frequently these individuals are identified before they touch our soil and are denied visas/immigration/refugee status while still abroad.

In any case, I’m not suggesting it’s at all likely to actually happen. I’m saying the law is in place that it very conceivably could. Say a Canadian citizen of Iranian descent returned to Iran, was tortured/murdered for political purposes, and witnesses were able to substantiate the offence and file a criminal complaint. That could lead to an investigation and prosecution.

https://laws-lois.justice.gc.ca/eng/acts/c-45.9/FullText.html

 

[The Bread Guy]

... Iran is going to pay 8K to each victim of the shoot down ...

I've seen UKR media saying the Ukrainian gov't will pay ~$8K per victim, and will continue to chase/work with Iran in getting Iran to pay over & above that as well.  Have you seen anything on IRN confirming payment (as opposed to broad commitments to talk about compensation)?  Thx!

 

[Retired AF Guy]

That didn't take long. Thousands of Iranians take to the street to protest the destruction of the Ukrainian airliner.

Thousands of Iranians Have Bravely Protested the Government’s Role in Ukrainian Plane Crash

The regime admitted late Friday its armed forces were responsible for the downed the airliner and the deaths of all 176 people on board.

Samantha Michaels

Thousands of people took to the streets across Iran this weekend to condemn their government for shooting down a Ukrainian passenger plane—killing all 176 people on board—and then lying for days to hide its role in what happened.

In Tehran, people flooded main squares on Saturday afternoon demanding repercussions for Supreme Leader Ayatollah Ali Khamenei, and that officials responsible for the plane crash be punished. Protests also rocked other cities, including Shiraz, Esfahan, Hamedan, and Orumiyeh. In videos posted on social media, the New York Times reports, protesters yelled, “Death to liars!” and “Death to the dictator!” In Tehran, anti-riot police unleashed tear gas and fired water cannons at demonstrators.

The bluntness of these protesters, captured in videos below, is particularly striking following a brutal crackdown by the regime late last year on demonstrations that were initially sparked by an increase in gas prices. According to CNN, the UN Human Rights Office had information to show that some 200 people were killed and thousands were arrested during the crackdown.

    #IranProtests
    The public's anger has a clear target: Khamenei.
    Crowds chant "Khaemnei is a murderer, his regime is obsolete."#IranPlaneCrash pic.twitter.com/WQpXeM65Zj

    — Farnaz Fassihi (@farnazfassihi) January 11, 2020

The Ukrainian plane was struck by surface-to-air missiles minutes after taking off from an airport near Tehran on Wednesday. It carried passengers from Iran, Canada, Ukraine, Sweden, Afghanistan, Germany, and United Kingdom, and was en route to Ukraine. Hours earlier Iran had launched an attack on US targets in Iraq, in response to the US killing of Iranian Maj. Gen. Qasem Soleimani earlier this month, and Iranian officials said they had been on alert for a potential counterattack.

Iranian officials admitted their role in the crash late Friday, after days of denials. Iranian President Hassan Rouhani described the incident as a “disastrous mistake,” and Khamenei called for an investigation. On Twitter, Iranian Foreign Minister Mohammad Javad Zarif offered his “profound regrets, apologies and condolences,” but also criticized the United States for ratcheting up tensions by killing Soleimani. “Human error at time of crisis caused by US adventurism led to disaster,” he wrote.

On Saturday, some of the Iranian demonstrators ripped up photos of Suleimani, according to reports from Iran’s semi-official Fars news agency. In a commentary, the news agency condemned Iran’s leaders for trying to cover up their role in the downing of the plane. “It is pivotal that those who were hiding the truth from the public for the past 72 hours be held accountable, we cannot let this go,” it read, according to the Times.

Link

 

[Cloud Cover]

Thought this was quite series of tweets and a good article. Summed nicely with "We are mourning and I am livid" ...

"https://www.ctvnews.ca/business/maple-leaf-foods-ceo-takes-aim-at-u-s-government-over-plane-crash-in-iran-1.4764217

 

[Sub_Guy]

Thought this was quite series of tweets and a good article. Summed nicely with "We are mourning and I am livid" ...

"https://www.ctvnews.ca/business/maple-leaf-foods-ceo-takes-aim-at-u-s-government-over-plane-crash-in-iran-1.4764217

Trump didn’t shoot down that plane.

 

[OldSolduer]

Trump didn’t shoot down that plane.

Too many “experts “ can now spread their ridiculous assertions thanks to social media. I’m not saying Trump is a saint but the CEO of that company can pound sand. STFU and that includes all those Hollywood limousine liberals.

Rant ends. Cheers

 

[Jarnhamar]

Edit

 

[Journeyman]

Trump didn’t shoot down that plane.

Obviously not. 

From Twitter (so it's even more authentic than the CBC comment section):

Was going to go to sleep but now reading conspiracy theories by MAGA accounts that the plane was shot down by the Canadian deep state because it had six nuclear scientists on board. Peak internet.

      :Tin-Foil-Hat:    op:    #TweetsFromTwits

 

[The Bread Guy]

I've seen UKR media saying the Ukrainian gov't will pay ~$8K per victim, and will continue to chase/work with Iran in getting Iran to pay over & above that as well.  Have you seen anything on IRN confirming payment (as opposed to broad commitments to talk about compensation)?  Thx!

Update:  based on current currency rates, UKR will pay 200,000 UKR hrvynia (CAN $10,890) "of assistance to the families of those who were killed in the plane crash in Iran and will monitor the proper payoff of insurance payments in accordance with the Montreal Convention."

 

[The Bread Guy]

Let the doubts creep in ...

... Radio communication can be unreliable. The people at the other side of the operators call may have been talking to someone else or could  not react immediately. Air defense personal is trained to always presume electronic interference by enemy forces. The U.S. has publicly bragged about its cyber-attacks on IRGC systems. U.S. air attacks typically come behind a wave of electronic countermeasures.

Under these circumstances - highest possible alarm level, current warnings of hostile cruise missiles, unknown target flying towards a presumably military objective, lack of communication, little decision time - the operator of the Tor system did what he was trained to do ...

#AlternativeNarratives

 

[Brad Sallows]

>unknown target flying towards a presumably military objective

How do civilian aircraft flying regular routes and schedules become "unknown"?  Air defence specialists are not expected to know this information?  There is no way to "interrogate" civilian aircraft?

 

[The Bread Guy]

This, from IRN media ...

Official: Canada, US, France Refuse to Help Decoding Black Box

Canada, France and the US have declined Iran's request to help extracting data from the black box of the Ukrainian plane which suffered an unfortunate accident on Wednesday, Head of the Accident Investigation Board of the Civil Aviation Organization Hassan Rezayeefar announced on Monday.

Rezayeefar said Iran has asked Canada, France and the US to bring their software and hardware equipment to Tehran to extract data of the black box of the Ukrainian plane that was downed in an air defense incident on the Southwestern outskirt of Tehran on Wednesday, but they have denied Iran's request.

Then, Iran offered Ukraine, Sweden, Britain, Canada, and the US to send the black box to an impartial laboratory and France was the country all five countries agreed on, the official added.

Black box recordings of the Ukrainian airliner will be downloaded in France, head of the accident investigation board of Civil Aviation Organization of Iran announced on Saturday ...

More in full story attached.

 

[SeaKingTacco]

>unknown target flying towards a presumably military objective

How do civilian aircraft flying regular routes and schedules become "unknown"?  Air defence specialists are not expected to know this information?  There is no way to "interrogate" civilian aircraft?

The evidence seems to indicate that the Iranian Air Defence is not well integrated into the overall airspace control structure, meaning they do not have access (or easy access) to the civil air picture, which is imperative to properly make a shoot/no shoot decisions.

I doubt Russian weapons engineers give much thought to including the ability to interogate civil air transponders in their AD systems, but I could be proven wrong on that point.

As an aside, there was a thread around here awhile ago suggesting that the "easy" solution to the Cdn Army's current lack of an AD capability was to just give AD weapons systems to infantry units. This incident illustrates why that is not a good idea. The easy part is part is firing the missile. The hard part is understanding the overal airspace control structure and situation. It takes years of expertise to effectively command and control an air defence unit.

 

[OldSolduer]

I'd like to add that the leadership of Iran may not be all that well versed in technology and all the small details. Allah will provide and guide, right?

 

[Good2Golf]

I'd like to add that the leadership of Iran may not be all that well versed in technology and all the small details. Allah will provide and guide, right?

...well they’ve managed to keep flying F-14 Tomcats, and they’re pretty cyber-savvy.

 

[dapaterson]

...well they’ve managed to keep flying F-14 Tomcats...

So you're saying the RCAF should try recruiting their technicians?