Belarus Kidnapping: What International Law Says about Capture of Dissident journalist Roman Protasevich

It is for Belarus to prove that it has complied with both requirements: the president of the Council of the International Civil Aviation Organization (ICAO) is seeking official explanations and has called an urgent meeting of the 36 members of the Council for May 27 to discuss the incident.

Even if Belarus can show that its diversion of the plane was lawful, the detention of Protasevich and Sapega is another question entirely. Under the ICAO treaties, Flight FR4978 was under the jurisdiction of Poland as the country of registration of the aircraft. The aircraft was still “in flight,” even when diverted to Minsk. No country has the right to detain suspects on a civil aircraft for crimes that were not committed on board that aircraft.

International Claims
From what is known at present, it seems that the Belarusian authorities detained Protasevich and Sapega for alleged crimes that had no connection to the flight. To seek custody of them, Belarus should have applied to Poland or to Lithuania (as Vilnius was the port of destination) for their extradition for alleged crimes in Belarus. On both issues, Poland could bring legal claims against Belarus for violating its rights under the ICAO treaties as the flag state of the aircraft.

It is also possible that other countries could seek standing to sue Belarus before the International Court of Justice (the UN court) on the basis that the global system of civil aviation is threatened by such actions. There have been cases similar to this one in the past, such as when France detained a Moroccan charter plane in 1956 to arrest Algerian rebel leaders who were travelling to a diplomatic conference.

If Protasevich and Sapega were technically detained by the Belarusian authorities on the territory of Poland, as the flag state of the aircraft, then he was potentially protected by the European Convention on Human Rights. Belarus is not a participant in that treaty but Poland is. The detention of Protasevich and Sapega could have violated their right to liberty. Although Poland is not responsible for arresting Protasevich and Sapega, it could be in violation of the Convention if failing to exercise due diligence to secure their release.

In a number of cases, the European Court of Human Rights has found the Convention to apply to aircraft and ships registered in or flying the flag of a Contracting Party. While Poland has issued a strongly worded public condemnation of the actions of Belarus, calling it “state terrorism”, it is required to take practical steps within its power, such as diplomatic representations, to secure the release of the detainees on the basis that their detention was unlawful.

Although, the episode has already triggered significant international reaction, it should not be treated as an isolated instance. The Belarusian authorities have consistently undermined their own country’s rule of law, and the international community’s reaction has been limited and slow. For instance, it wasn’t until May 2021 that the UN High Commissioner for Human Rights appointed experts to document episodes of human rights violations, principally torture, that happened mostly in August 2020. The reaction of international community should clearly demonstrate that violations of international law bear consequences.

Kanstantsin Dzehtsiarou is Professor in Human Rights Law, University of Liverpool. Arman Sarvarian is Lecturer in Law, University of Surrey. This article is published courtesy of The Conversation.