A Ryanair flight departed from Athens for Vilnius with a target of the authoritarian Belarus government on board. A bogus bomb plot communicated by email led to an unscheduled landing in Minsk. Dissident journalist Roman Protasevich and his Russian girlfriend, Sofia Sapega, were arrested and charged with organizing mass unrest and inciting social discord. Now an indictment has been returned by a grand jury in New York charging four Belarusian officials with conspiracy to commit aircraft piracy.

1. Introduction

On May 23, 2021, Roman Protasevich and Sofia Sapega were passengers on Ryanair flight 4978 from Athens, Greece, to Vilnius, Lithuania. Often described as a dissent journalist, he was a co-founder of NEXTA channel on the messaging app, Telegram, a popular communication platform for protagonists of Belarusian President Aleksandr Lukashenko. She is an international law student at the European Humanities University in Vilnius and was due to defend her master’s thesis after returning from Athens. (here)

The breaking stories indicated that the aircraft was intercepted by a Soviet-era MiG-29 fighter jet on orders of President Lukashenko that I briefly discussed in a previous post to On The Wire. (here) The initial reports were based on a press release by President Lukashenko who said he ordered the aircraft to be intercepted. It now appears, however, from a preliminary report by the International Civil Aviation Organization (ICAO), a United Nations agency headquartered in Montreal, Canada, that the MiG-29 did not escort the aircraft. The flight was diverted by the pilots to Minsk, the capital of Belarus, after they were advised that an email had been received conveying a bomb threat. Mr. Protasevich and Ms. Sapega were immediately arrested. The stunt was universally described as an act of aircraft piracy.

2. The Indictment

On January 20, 2022, a grand jury in the United States District Court, Southern District of New York, returned a single count indictment charging four Belarus officials with conspiracy to commit aircraft piracy. (here) The indictment charges Leonid Mikalaevich Churo, the Director General of Belaeronavigatsia Republican Unitary Air Navigation Services Enterprise, the Belarusian state air navigation authority; Oleg Kazyuchits, the Deputy Director General of Belaeronavigatsias; and, two officers of the Belarusian state security services, Andrey Anatolievich LNU and FNU LNU. The count specifically charges the defendants with a conspiracy to commit an offence as defined in the Convention for the Suppression of Unlawful Seizure of Aircraft, on an aircraft in flight outside the United States, on which U.S. nationals were aboard, in violation of Title 49, United States Code, s. 46502(b). The count alleges the defendants intentionally made a threat and seized the aircraft as objects of the conspiracy.

3. What Is Aircraft Piracy?

Acts of piracy are frequently associated with crimes of cargo raiding committed by a ship in a narrow channel with a predictable navigation route. Modern day pirates, however, frequently use motorboats in international waters that can take advantage of the small number of crew members on container ships such as the 2009 Maersk Alabama hijacking dramatized in the Academy Award nominated film, Captain Phillips. Piracy at sea may also include acts committed for political motives. The hijacking of the civilian passenger ship Achille Lauro by the Palestine Liberation Organization (PLO) in 1985 is generally regarded as an act of piracy. The term hijack is used to describe cases involving both ships and aircraft. The French term for an aircraft hijacker is pirate de l’air, literally air pirate. The term aircraft piracy is used to describe the unlawful seizure of an aircraft within the special aircraft jurisdiction of the United States in Title 49 under which the defendants have been indicted.

Aircraft hijacking usually involves one or more hijackers who force the pilot to set course for a destination of their choosing. There are instances, however, when hijackers have taken over the controls in politically motivated suicide missions such as the September 11, 2001, attacks on the World Trade Center. Political motives are varied and often include demands for asylum or concessions from state authorities. Other motives, such as economic ones, include hostage taking for ransom. There is a significant distinction, however, between these examples and the taking of Ryanair flight 4978. In suicide missions and hostage scenarios – the hijacker is on board. Aircraft security countermeasures, such as enhanced cockpit security and onboard law enforcement personnel, are neutralized when the threat comes from the other side of the windows.

4. The Jurisdiction Question

Under the doctrine of international law known as the universality principle a government may exercise jurisdiction over extra-territorial conduct if the conduct is universally dangerous to states and their nationals. In Public International Law in a Nutshell (2002), Professor Thomas Buergenthal and Professor Sean Murphy argue that the rationale underpinning the principle is that states will punish acts “wherever they may occur as a means of protecting the global community as a whole, even absent a link between the state and the parties or acts in question.” The concept of universal jurisdiction, then, applies to the crime of piracy as it does to slavery, war crimes and crimes against humanity. In this case, however, the indictment specifically asserts a link between the state and the acts in question in that flight 4978 was transporting “four U.S. nationals and more than 100 other passengers”.

Title 49 of the United States Code, s. 46502(a)(1)(A), defines aircraft piracy to mean “seizing or exercising control of an aircraft in the special aircraft jurisdiction of the United States by force, violence, threat of force or violence, or any form of intimidation, and with wrongful intent.” The Code, in s. 46502(b)(2)(A), provides for jurisdiction over the offence of aircraft piracy if “a national of the United States was aboard the aircraft” […]. (here) Further, Title 18 of the Code, s. 3238, provides that the trial of offences committed outside the jurisdiction of any particular state shall be in the district in which the offender “is arrested or is first brought”. (here) It appears from a press release issued by The United States Attorney’s Office for the Southern District of New York that the state relies upon the statutory authority to assert jurisdiction “to hold perpetrators responsible for actions which directly threaten the lives of our US citizens […]”. (here)

5. Specific Allegations

The indictment stems from an investigation by a joint team of FBI counterterrorism and counterintelligence investigators and contains details of the alleged conspiracy not readily available elsewhere. Here are three takeaways that describe the overview of the plot and some of the events involved in diversion of the flight:

• The Flight was diverted by air traffic control authorities in Belarus in response to a purported threat of a bomb on board the aircraft. There was, in fact, no bomb on board the aircraft. Belarusian government authorities fabricated the threat as a means to exercise control over the Flight and force it to divert from its course toward the original destination of Vilnius, and instead land in Minsk. The purpose of the Belarusian government plot diverting the Flight to Minsk was so that Belarusian security services could arrest a Belarusian journalist and political activist (“Individual-1”) – who was critical of the Belarusian government, living in exile in Lithuania, and wanted by the Belarusian government on allegations of fomenting “mass unrest” – as well as Individual-1’s girlfriend (“Individual-2”). The Belarusian government conspiracy to divert the Flight was executed by, among others, officers of the Belarusian state security services working in coordination with senior officials of the Belarusian state air navigation authority. (para. 1)
• [B]efore the flight departed from Athens, LEONID MIKALAEVICH CHURO and FNU LNU, the defendants, arrived at an operations room of the Minsk ACC. The Minsk ACC is the air traffic control center with responsibility for Belarusian airspace. CHURO and FNU LNU conferred briefly with supervisors in the Minsk ACC, who then relayed information from CHURO and FNU LNU to two senior traffic controllers on duty that there was a bomb on board a Ryanair flight that would be entering Belarusian airspace from Ukraine, and that the flight needed to divert to the Minsk airport because the bomb would explode if the plane entered the airspace near its destination in Vilnius. The flight had not yet departed Athens when CHURO and FNU LNU visited the Minsk ACC and conveyed the purported threat. Even so, the passengers on the Flight were not required to disembark so that the aircraft could be searched, and the flight was allowed to leave Athens, consistent with the fact that the threat was not legitimate and was instead part of the plot to divert the Flight to Belarus while in the air so Individual-1 could be arrested. (para. 10)
• At approximately 9:29 UTC, the Flight crossed into Belarusian airspace at an altitude of approximately 39,000 feet. At around that time, ATC-1 first communicated by radio with the Flight and, as instructed by FNU LNU, the defendant, ATC-1 stated to the Flight over the radio that “we have information from special services that you got bomb on board and that bomb can be activated over Vilnius…Ryanair one-tango-zulu…for security reasons we recommend you to land at Uniform Mike Mike Sierra.” …[T]he Flight was located approximately 174 mules away from that airport and there were several closer airports where the flight could have landed […] At approximately 9:32 UTC, the pilot of the Flight asked ATC-1 via radio, “The bomb…threat message, where did it come from?” […] FNU LNU then directed ATC-1 to tell the Flight that “Airport – airport gave it to you. Message came to the airport email and airport gave it to you…Message came to the email,” referring to a purported email (the “Threat Email”) conveying the bomb threat that, in fact, was fabricated by Belarusian officials as part of the plot […] As directed by FNU LNU, ATC-1 relayed to the Flight, “Ryanair one-tango-zulu they say code is red.” […] At approximately 9:47 UTC, the Flight announced to the Minsk ACC that it was declaring an emergency and would divert to Minsk National Airport. (paras. 16-19 and 22)

The indictment alleges that, soon after the diversion of the flight, Belarusian authorities began to cover up what happened. Oleg Kazychits directed air traffic authorities to create false incident reports to misrepresent that the bomb threat was received about the same time that the flight entered Belarusian airspace and omit that FNU LNU was in the operations room directing events during the flight’s diversion. (paras. 35-39) Although not specifically identified in the indictment, it is clear that Mr. Protasevich is “Individual-1” and Ms. Sapega is “Individual-2”. (here and here)

6. Subsequent Events

On May 25, 2021, the arrests were denounced as “arbitrary” and “horrifying” by Marie Struthers, Amnesty International’s Director for Eastern Europe and Central Asia. (here) Ms. Struthers said Amnesty has “feared from the outset that they may be at risk of torture or other ill-treatment” and Ms. Sapega is being detained to exert pressure on Mr. Protasevich. “Do the Belarusian authorities truly believe that they can fool the world by televising a prisoner’s forced ‘confession’ and have him state that he is being treated well?” she said.

On June 3, 2021, the Belarus state television network aired an interview with Mr. Protasevich where he confessed to organizing “mass unrest” in the country. The interview has been widely condemned as a “hostage video” by experts who drew attention to his apparent state of mental breakdown and marks of physical violence on his face and hands. His father said his son’s nose appeared to be broken. On June 9, 2021, the BBC reported that a video of Ms. Sapega was released by Belarusian authorities where she said that she edits Black Book of Belarus, a Telegram channel classified by the government as an extremist group. One of Ms. Sapega’s classmates described the video as a lie. “We don’t believe it,” she said.

7. Conclusion

On January 17, 2022, the ICAO released its preliminary report titled Events Involving Ryanair Flight FR4978 In Belarus Airspace On 23 May 2021 compiled by a special Fact Finding Investigation Team (FFIT) which has raised serious questions about the authenticity of information released by Belarusian officials. (here) The report concluded that neither a bomb nor evidence of one was found during pre-departure screening in Athens and after various searches of the aircraft in Belarus and Lithuania. The FFIT concluded that “the bomb threat was deliberately false.” (at para. 5.4) The FFIT emphasized that knowingly communicating false information which “endangers the safety of an aircraft in flight” is an offence under Article 1(1)(e) of the Montreal Convention. (here) The report also cited a lack of transparency and cooperation on the part of Belarusian officials about two purported email bomb threats. At a meeting earlier today, the ICAO Council said it will not be able to complete a final report without pertinent information not provided by Belarusian authorities. Maybe a New York jury will help fill in the gaps.