INTERNATIONAL COURT OF JUSTICE
APPLICATION INSTITUTING PROCEEDINGS
CONCERNING A DISPUTE UNDER THE CONVENTION FOR
THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE
SAFETY OF CIVIL AVIATION
CANADA, THE KINGDOM OF SWEDEN, UKRAINE AND THE UNITED KINGDOM
OF GREAT BRITAIN AND NORTHERN IRELAND
v.
THE ISLAMIC REPUBLIC OF IRAN
Filed with the Registry
4 July 2023
TABLE OF CONTENTS
APPLICATION INSTITUTING PROCEEDINGS
Page
I.
Introduction
2
II. Facts
3
III. Jurisdiction of the Court
9
IV. Legal Grounds for the Applicants’ Claim
12
V. Relief Sought
13
VI. Judge Ad Hoc
14
VII. Reservation of Rights
14
List of Annexes
19
1
APPLICATION INSTITUTING PROCEEDINGS
I. INTRODUCTION
To the Registrar of the International Court of Justice, the undersigned, being duly
authorized by Canada, the Kingdom of Sweden, Ukraine and the United Kingdom of Great
Britain and Northern Ireland, state as follows:
1. In accordance with Articles 36(1) and 40 of the Statute of the International Court of
Justice (“Statute of the Court”) and Article 38 of the Rules of Court, Canada, the
Kingdom of Sweden, Ukraine and the United Kingdom of Great Britain and Northern
Ireland (“the Applicants”) hereby submit this Application instituting proceedings
against the Islamic Republic of Iran (“Iran”).
2. Iran has violated a series of obligations owed to the Applicants under the Convention for
the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal
on 23 September 1971
(“Montreal Convention”), arising out of the shooting down on
8 January 2020 of Ukraine International Airlines Flight PS752 (“Flight PS752”), a civil
aircraft in service, by military personnel of Iran’s Islamic Revolutionary Guard Corps
(“IRGC”). All 176 passengers and crew on board, many of whom were nationals and
residents of the Applicants, were killed.
1
3. Iran has violated its obligations under the Montreal Convention, including under Articles
6, 7, 10, 11 and 13. Iran failed to take all practicable measures to prevent the unlawful
and intentional commission of an offence described in Article 1 of the Montreal
Convention, including the destruction of Flight PS752. It also subsequently failed to
conduct an impartial, transparent, and fair criminal investigation and prosecution
consistent with international law. Instead, Iran withheld or destroyed evidence (including
the immediate bulldozing of the crash site); blamed other States and low-level IRGC
military personnel for the downing; threatened and harassed the families of the victims
seeking justice; conducted a sham and opaque trial; and failed to report to the Council of
the International Civil Aviation Organization (“ICAO”), or the Applicants, information
1
Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 23 September 1971, 974
UNTS 177 (entered into force 26 January 1973) (Annex 1).
2
in its possession concerning the offence or the measures taken in relation to the offenders.
These actions and omissions violate the requirements of the Montreal Convention, to
which Iran and each of the Applicants are parties.
II. FACTS
4. On 8 January 2020, Iran took a number of steps that knowingly placed civil aircraft in
harm’s way. At approximately 02:00 Tehran time (“TT”) on 8 January 2020, the IRGC
Aerospace Force (“IRGC-ASF”) launched multiple ballistic missiles at two airbases
used by the United States and Coalition forces in Iraq.
In anticipation of possible
counter-strikes, the IRGC-ASF positioned Tor-M1 mobile air-defence combat vehicles
(also referred to as surface-to-air missile combat vehicles) around Tehran and in the
vicinity of Tehran’s Imam Khomeini International Airport (“IKA”). One of the airdefence
combat
vehicles
was
positioned
in
the
vicinity
of
the
town
of
Bidganeh,
along
routine
flight paths
for
civil
aircraft
transiting
IKA.
2
3
5. In this context, Iran had identified a high threat level for international civil aviation.
Nonetheless, an alleged request by the IRGC-ASF commander Brigadier General AmirAli
Hajizadeh
to
close
the
airspace
was
rejected.
4
Other obvious mitigation measures –
in particular, Notices to Airmen (“NOTAMs”)
5
– were also not implemented.
6
2
The Aircraft Accident Investigation Board of the Islamic Republic of Iran, Flight PS752 Accident
Investigation, Final Report (15 March 2021) [AAIB Final Report], online:
<icao.int/safety/airnavigation/AIG/Documents/Safety%20Recommendations%20to%20ICAO/Final%20Reports
/PS752Finrep.pdf>.
3
See Brigadier General Hajizadeh video statement imbedded in “Head of IRGC Aerospace Division accepts
responsibility for plane crash”, Iran Press News Agency (11 July 2020) [Hajizadeh Statement], online:
<iranpress.com/content/17610/head-irgc-aerospace-division-accepts-responsibility-for-plane-crash> (see
transcript at Annex 2).
4
AAIB Final Report, supra note 2 at pages 92-95.
5
Hajizadeh Statement, supra note 3.
6
A Notice to Airmen (NOTAM) (also known as Notice to Missions) is a notice or advisory issued by aviation
authorities for flight operations personnel. The notices contain information about any condition that may affect
the safety of aircraft operations, such as any temporary changes to airport facilities, procedures or navigational
aids, or to advise of potential hazards (e.g. closed runways or restricted airspace). They are issued for a specific
time period and can be valid for a few days or weeks: Skybrary, Notice to Airmen (NOTAM) online:
<skybrary.aero/articles/notice-airmen-notam>; The ICAO Manual for Civil Aircraft Operations Over or Near
Conflict Zones state that NOTAMs provide essential knowledge to personnel concerned with flight operations
and should be published when there is a presence of threat(s) from a heightened state of military alert or tension.
International Civil Aviation Organization, Risk Assessment Manual for Civil Aircraft Operations Over or Near
Conflict Zones, Doc 10084, 2
ed., 2018, pages 3-6 and 3-7, online:
<https://zoek.officielebekendmakingen.nl/blg-846381.pdf>.
nd
3
6. At approximately 05:51 TT, Flight PS752 contacted IKA Air Traffic Control (“ATC”)
requesting permission to start the aircraft’s engines. Its flight plan was sent to the military
sector
7
and the Civil-Military Operational Coordination Centre (“CMOCC”) and
received the necessary authorisation at 05:55 TT. At 06:10:20 TT, Flight PS752 was
cleared for take-off by IKA ATC along the pre-approved flight path. At 06:12:38 TT,
Flight PS752 departed IKA.
7. According to Iran’s AAIB report, less than 3 minutes into the flight, a “strong and short
impulse, similar to detonation” was recorded on the plane’s Cockpit Voice Recorder
(“CVR”). This is consistent with Iran’s admission that the first surface-to-air missile was
launched by the IRGC air-defence combat vehicle stationed in the vicinity of the town of
Bidganeh at or around 06:14:41 TT. A second missile was fired by the same vehicle at
06:15:11 TT. The CVR stopped recording seconds later.
8. At approximately 06:17:00 TT, Flight PS752 disappeared from the flight radars. At
around 06:18:23 TT, Flight PS752 crashed to the ground and exploded in Khalajabad,
near Shahedshahr, southwest of Tehran.
9. The voices of the passengers and crew were recorded on the CVR after the first missile
strike, when shrapnel from the Tor-M1 missiles punctured the fuselage.
The passengers
were alive and must have been aware that the plane was about to crash. All 176
passengers and crew were killed. They included nationals and residents of Canada,
Sweden, Ukraine and the United Kingdom, as well as Afghanistan and Iran. The age of
the victims ranged from one to 74 years old.
8
10. In the immediate aftermath of the crash on the morning of 8 January 2020, Iran at first
issued numerous denials rejecting any suggestion that the aircraft had been shot down.
9
7
The reference to the "military sector" is taken from the AAIB Final Report at page 97. The report does not
clarify what this entails. However, the AAIB Final Report indicates, at page 85, that CMOCC’s purported role
was to communicate all flight plans to the State Air Defence Operation Center (or SADOC) and air defence
sectors of the Iranian military (see Figure 45 at page 85). AAIB Final Report, supra note 2.
8
An examination of the wreckage showed that Flight PS752 was riddled with thousands of small holes
consistent with an 9M331 missile fired from a Tor-M1 combat vehicle. See, AAIB Final Report, ibid at pages
53-54 (Figure 23), see also page 67.
9
On 8 January 2020, the Director of Iran’s Center for Communication and Information in the Ministry of Roads
and Urban Development, Qasem Biniaz, denied rumours that the plane had been hit by a missile: Mohammad
Nasiri, Nasser Karimi and Jon Gambrell, “Ukrainian airplane crashes near Iran’s capital, killing 176”, CTV
News (08 January 2020), online: <ctvnews.ca/world/ukrainian-airplane-crashes-near-iran-s-capital-killing-176-
4
Such denials persisted in the face of a public statement on 9 January, from Canadian
Prime Minister, Justin Trudeau, referring to credible intelligence that Flight PS752 had
been shot down by a surface-to-air missile.
Still, on 10 January, Ali Abedzadeh, the
Head of Iran’s Civil Aviation Organisation, insisted categorically that, “what is obvious
to us and we can say for sure is that no missile has hit the plane.”
10
11
11. In fact, IRGC-ASF commander Brigadier General Hajizadeh later admitted that he had
known very early on “Wednesday morning” [8 January 2020] that an IRGC missile “had
hit a target” and he had advised “the authorities” of a “strong possibility that we [the
IRGC] had hit a plane of our own.”
Once advised, the Armed Forces General Staff –
the highest military body in Iran, which reports directly to the Iranian Supreme Leader
[Ayatollah] Ali Khamenei – immediately put those with knowledge of the missile strike
“in quarantine” and prohibited them from talking to anyone.
12
13
12. On 11 January 2020, confronted with overwhelming evidence, Iran finally admitted
publicly that Flight PS752 had in fact crashed as a result of a missile strike by the IRGC,
but claimed that the aircraft was targeted “unintentionally due to human error”.
A tweet
by Iran’s President, Hassan Rouhani, characterized it as an “unforgiveable mistake.”
14
In
a televised statement on the same day, Brigadier General Hajizadeh claimed that the airdefence
vehicle
located
in
the
vicinity
of
Bidganeh
had
misidentified
the
Boeing
737800
as
a
cruise
missile.
He
further
claimed
that
the
vehicle
operator
had
failed
to
get the
necessary
authorisation
from
his
superiors
before
firing
on
the
target.
15
16
This was the same
1.4757677?cache=?clipId=89926?autoPlay=true?autoPlay=true?autoPlay=true>. On the same day, Iranian
Armed Forces spokesman, Brigadier General Abolfazl Shekarchi, rejected Western media reports that a missile
had hit Flight PS752: “Armed Forces spox strongly rejects rumors of missile hitting Ukrainian airliner”, Mehr
News (08 Jan 2020), online: <en.mehrnews.com/news/154348/Armed-Forces-spox-strongly-rejects-rumors-ofmissile-hitting>.
10
Prime Minister of Canada, Justin Trudeau, held a press conference on 9 January, 2020 – Canada received
credible intelligence that Flight PS752 was shot down by a surface-to-air missile. CPAC, “PM Trudeau:
Intelligence suggests plane was shot down” (9 January 2020), online: <cpac.ca/episode?id=6a9b1c74-436d432d-910b-ad7f521617b2>
(see
transcript
at
Annex
3).
11
“Surely No Missile Hit Ukrainian Airliner: Iranian Official”, Tasnim News Agency (10 January 2020), online:
<tasnimnews.com/en/news/2020/01/10/2178971/surely-no-missile-hit-ukrainian-airliner-iranian-official>.
12
Hajizadeh Statement, supra note 3.
13
Ibid.
14
Announcement of the General Staff of the Armed Forces about Ukrainian Passenger Plane Crash, Islamic
Republic News Agency (11 January 2020 at 7:07 am Tehran Time), online: <هیعلاطا لکداتس یاهورین حلسم هرابرد
طوقس یامیپاوه یربرفاسم نیارکوا - انریا (irna.ir)> (Annex 4).
15
Hassan Rouhani, “Armed Forces’ internal investigation…” Twitter (10 Jan 2020, 11:40pm EST / 11 Jan 2020,
8:10am TT), online: <twitter.com/HassanRouhani/status/1215856039997984768>.
16
Hajizadeh Statement, supra note 3.
5
narrative repeated by IRGC Commander-in-Chief Major General Salaami before the
Iranian Parliament on 12 January 2023.
17
13. By the time Iran admitted that the IRGC had shot down Flight PS752, the primary crash
site had already been bulldozed, and the numerous police and military personnel who
were present had failed to secure the evidence or prevent extensive looting of the primary
site. Law enforcement was observed extracting items from purses and bags, including
identifying information, and placing them randomly in transparent bags. Air accident
investigators from Ukraine arriving in Tehran on 9 January 2020 noted that airplane
debris, and passenger belongings, as well as soil from the crash site had been moved to
a secondary location by truck and shovelled haphazardly by bulldozers into large piles.
14. In the days following the downing, the families of the victims were subjected to
numerous acts of intimidation and abuse, including pressure by the IRGC to declare the
victims as “martyrs”.
IRGC Commander-in-Chief Major General Salaami told family
members that the victims were “martyrs” because the destruction of Flight PS752 had
helped avoid a war with the United States and thus saved many lives.
18
Those who
demanded justice faced a pattern of what UN human rights reports have characterised as
threats and harassment. There have even been accounts of torture of the families of the
victims.
19
20
17
“General Hossein Salami speaking about the downing of Flight PS752 to Iranian Parliament” YouTube (12
Jan 2020) online: <https://www.youtube.com/watch?app=desktop&v=DaC5nhc9cUQ> (unofficial translation in
subtitles) (see unofficial transcript at Annex 5).
18
Islamic Republic of Iran, Government Information Center, “The Victims of the Ukrainian Airplane Incident
are Considered Martyrs” (14 January 2020), online: <https://dolat.ir/detail/333308> (Annex 6); See also,
"Relatives Of Ukrainian Airliner Victims Complain Of Pressure From Iranian Authorities", Radio Free Europe
Radio Liberty (3 February 2020), online: <rferl.org/a/some-relatives-of-ukrainian-airliner-victims-complain-ofpressure-from-iranian-authorities/30414991.html>.
19
"Iranian Parents Take on Powerful Revolutionary Guard as They Seek Justice Over Jet's Downing", Radio
Free Europe Radio Liberty (11 January 2022), online: <rferl.org/a/iran-families-revolutionaryguard/31649627.html>.
20
United Nations, Office of the United Nations High Commissioner for Human Rights, Press Release, “Attack
on PS752: Iran violated multiple human rights obligations - UN experts” (23 February 2021) [OHCHR Press
Release 23 February 2021], online: <ohchr.org/en/press-releases/2021/02/attack-ps752-iran-violated-multiplehuman-rights-obligations-un-experts>;
Javaid
Rehman,
Report
of
the
Special
Rapporteur
on
the
situation
of
human
rights
in
the
Islamic
Republic
of
Iran,
UNGAOR,
75
Sess, UN Doc A/75/213 (2020), online:
<documents-dds-ny.un.org/doc/UNDOC/GEN/N20/190/27/PDF/N2019027.pdf?OpenElement>; “Iran: Scores
injured as security forces use unlawful force to crush protests”, Amnesty International (15 January 2020),
online: <amnesty.org/en/latest/news/2020/01/iran-scores-injured-as-security-forces-use-unlawful-force-tocrush-protests/>;
"Iran's
Cover-up
of
Plane
Crash
Compounded
Its
trouble
in
the
Streets",
Human
Rights
Watch
(24
January
2020),
online:
<hrw.org/news/2020/01/24/irans-cover-plane-crash-compounded-its-trouble-streets>;
“Iran:
Ukraine
Airline
Victims’
Families
Harassed,
Abused”,
Human
Rights
Watch
(27
May
2021),
online:
<hrw.org/news/2021/05/27/iran-ukraine-airline-victims-families-harassed-abused>;
United
Nations,
Letter
of
th
6
15. Amidst growing demands, including by the Applicants,
for transparency, justice and
accountability, Iran’s Military Prosecutor purported to conduct an investigation into the
downing of Flight PS752. Upon conclusion of this opaque investigation on 7 January
2021, the Prosecutor simply repeated Iran’s official position from 11 January 2020 that
the downing was caused by the “human error” of military personnel who had acted with
“carelessness and recklessness” and had not followed Armed Forces rules and
regulations.
21
22
16. In February 2021, Special Rapporteurs of the UN Human Rights Council criticised the
military investigation, saying that Iran had failed to conduct an impartial, independent,
and comprehensive investigation, consistent with its international obligations. They
further noted that “[t]he investigation by the Iranian authorities also disregarded the
responsibility of high-level officials.”
23
17. This criticism is consistent with numerous UN human rights reports expressing deep
concern over the lack of independence and impartiality of the judiciary in Iran, and
repeatedly urging Iran to ensure that international fair trial standards are met in its
criminal justice system.
24
the Special Rapporteur on extrajudicial, summary or arbitrary executions Agnès Callamard, UN Doc AL IRN
28/2020, 24 December 2020, online:
<spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25795>.
21
International Coordination and Response Group for the victims of Flight PS752 – Framework for Cooperation
with Iran, 16 January 2020, online: <canada.ca/en/global-affairs/news/2020/01/international-coordination-andresponse-group-for-the-victims-of-flight-ps752--framework-for-cooperation-with-iran.html>;
Joint
Statement
from
the
International
Coordination
and
Response
Group
for
the
victims
of
Flight
PS752,
27
October
2020,
online:
<canada.ca/en/global-affairs/news/2020/10/joint-statement-from-the-international-coordination-andresponse-group-for-the-victims-of-flight-ps752.html>;
Joint
statement
from
the
International
Coordination
and
Response
Group
for
the
victims
of
Flight
PS752
on
notice
of
claim
to
Iran,
3
June
2021,
online:
<canada.ca/en/global-affairs/news/2021/06/joint-statement-from-the-international-coordination-and-responsegroup-for-the-victims-of-flightps752-on-notice-of-claim-to-iran.html>.
22
“Tehran’s Military Prosecutor Describes New Aspects of Ukrainian Aircraft Crash”, Islamic Republic News
Agency (7 January 2021), online: <irna.ir/news/84177070> (Annex 7).
23
OHCHR Press Release 23 February 2021, supra note 20.
24
Situation of human rights in the Islamic Republic of Iran - Report of the Special Rapporteur on the situation
of human rights in the Islamic Republic of Iran, Javaid Rehman, UNGAOR 49
Sess, UN Doc A/HRC/49/75
(2022) at paras. 49-51, online: <https://digitallibrary.un.org/record/3957951?ln=en>.
th
7
18. On 6 April 2021, the Military Prosecutor of Tehran stated that criminal indictments had
been issued for 10 military officials, but their identities and rank were not made public
at the time.
25
19. In September 2021, it was reported that senior government and IRGC officials
responsible for the operation on 8 January 2020 would not stand trial.
26
20. The court sessions were closed to the general public and the indictment was not publicly
available. Some families of the victims were allowed to attend specific court sessions,
but they were subject to strict confidentiality requirements. Moreover, families have
faced intimidation and harassment because of their repeated expressions of concern that
the trial was neither impartial nor transparent.
21. On 16 April 2023, Iran’s Ministry of Justice announced that the military court had issued
its verdict. Although this verdict has not been made public or shared with the Applicants,
it was reported that all 10 accused were allegedly found guilty of lesser charges, including
not following orders. Only the alleged commander of the air-defence combat vehicle near
Bidganeh that shot down Flight PS752 was found guilty of a charge that appears to be
equivalent to criminal negligence causing death. He was allegedly sentenced to 13 years
in prison.
27
22. On 18 April 2023, the Applicants issued a public statement condemning the trials and
verdicts as lacking the necessary impartiality and transparency required under
international law.
28
23. Prior to the verdict, in February 2023, numerous families of the victims had withdrawn
their complaints, stating that they did not recognise the legitimacy of the military court
25
“Issuing indictment for 10 people in the case of the Ukrainian plane”, Iranian Students’ News Agency (6 April
2021), online: <https://www.isna.ir/news/1400011707677/> (Annex 8).
26
“Iran’s Judiciary Exonorates Top Officials For Flight 752”, Iran Wire (1 September 2021), online:
<https://iranwire.com/en/special-features/70259/?ref=specials>.
27
“Issuing the Verdict for the Ukrainian Aircraft Case After 20 Court Hearings / First-row Defendant Sentenced
to13 Years in Prison”, Mizan Online (16 April 2023), online: <mizanonline.ir/fa/news/4707892/> (Annex 9).
28
Joint Statement from the International Coordination and Response Group for the victims of Flight PS752 on
the criminal trials in Iran, 18 April 2023, online: <canada.ca/en/global-affairs/news/2023/04/joint-statementfrom-the-international-coordination-and-response-group-for-the-victims-of-flight-ps752-on-the-criminal-trialsin-iran.html>.
8
proceedings.
Following the verdict, in May 2023, it was reported that one of the
families of the victims who had not withdrawn their complaint filed an appeal with the
Supreme Court of Iran to contest the validity of the charges originally laid and the lack
of transparency in the investigation and judicial proceedings. The Applicants have no
expectation that the Supreme Court will be willing or capable of remedying the lack of
impartiality, transparency, and fairness that are endemic in Iran’s judicial system.
29
24. In exchanges with the Applicants, Iran has claimed – without any explanation – that it
has dealt with “all technical, military, legal, criminal and compensatory aspects of the
case […] based on and even beyond, the international obligations”.
Yet it remains the
case that Iran has not reported the findings of a preliminary enquiry. It has not reported
to the ICAO Council relevant information concerning the circumstances of the offence
and the measures taken in relation to the offenders and in particular, the results of legal
proceedings. Iran has also failed to accept repeated requests for assistance in respect of
criminal proceedings in Ukraine arising out of the destruction of Flight PS752.
III. JURISDICTION OF THE COURT
30
25. The Applicants and Iran are all Members of the United Nations and bound by the Statute
of the Court, including Article 36(1), which provides in relevant part that the Court’s
jurisdiction “comprises… all matters specially provided for… in treaties and conventions
in force”.
26. The Applicants and Iran are all Contracting States to the Montreal Convention. None of
them has reservations to this Convention.
27. Article 14, paragraph 1, of the Montreal Convention provides:
“Any dispute between two or more Contracting States concerning the interpretation or
application of this Convention which cannot be settled through negotiation, shall, at the
request of one of them, be submitted to arbitration. If within six months from the date
29
"Families Of Airline Downing Victims Withdraw Complaint, Say Iranian Court Incompetent",
RadioFreeEurope Radio Liberty (13 February 2023), online: <rferl.org/a/iran-flight-victims-withdrawsuit/32269478.html#:~:text=Abbas%20Sadeghi%2C%20a%20lawyer%20and,our%20complaint%20on%20Febr
uary%2012.%22>.
30
Note Verbale from Ministry of Foreign Affairs of the Islamic Republic of Iran to Ministry of Foreign Affairs
of Ukraine dated 17 November 2021, No 641/969901 (Annex 10, Note 25).
9
of the request for arbitration the Parties are unable to agree on the organization of the
arbitration, any one of those Parties may refer the dispute to the International Court of
Justice by request in conformity with the Statute of the Court.”
28. As indicated below, each of the requirements for jurisdiction under Article 14, paragraph
1, of the Convention is met:
(i) there is a dispute between two or more Contracting States concerning the
interpretation or application of the Montreal Convention;
(ii) the dispute cannot be settled through negotiation; and
(iii) the Applicants have requested arbitration, but the Parties have been unable to agree
on the organization of the arbitration within six months from the date of the request.
(i) There is a dispute between the Applicants and Iran concerning the interpretation
or application of the Montreal Convention.
29. On 2 June 2021, the Applicants, transmitted a formal Notice of Claim
to Iran. The
Notice recorded the Applicants’ position that the downing of Flight PS752 by the IRGC
constituted an internationally wrongful act and that Iran’s actions and omissions
amounted to breaches of Iran’s obligations under the Montreal Convention. It further
stated that Iran was required to make full reparation in accordance with international law
and to investigate and prosecute or extradite all alleged offenders in a transparent and
impartial manner in accordance with the requirements of international law.
31
30. Additional details of the Applicants’ claims, including their claims under the Montreal
Convention, were provided to Iran in a Note Verbale and Annex, dated 20 December
2021.
32
31. To date, Iran has not acknowledged the Notice of Claim or any of the Applicants’ claims
related to the downing of Flight PS752. On the contrary, Iran has repeatedly asserted that
there is nothing to discuss because all relevant matters have already been addressed in
accordance with Iran’s international obligations.
33
31
Applicant’s Notice of Claim to the Islamic Republic of Iran dated 2 June 2021 (Annex 10, Note 19).
32
Note Verbale from the Applicants to the Ministry of Foreign Affairs of the Islamic Republic of Iran dated 20
December 2021, No 72/23-604-102444 and 72/23-604-102445 (Annex 10, Note 26).
33
Notes Verbales from the Ministry of Foreign Affairs of the Islamic Republic of Iran were sent separately to
Applicants (see Annex 10, Notes 27-30, 33-36, 41-44). See also Letter from the Permanent Representative of
10
(ii) The dispute cannot be settled through negotiation.
32. For over two years, the Applicants sought in good faith to resolve their dispute with Iran
over the interpretation and application of the Montreal Convention by negotiations, but,
by December 2022, all attempts had proven to be futile and it had thus become clear that
the dispute cannot be settled by negotiation.
34
33. Notwithstanding Iran’s admission that Flight PS752 was shot down by the IRGC, it has
given no indication that it accepts responsibility for its actions and omissions under
international law.
34. By December 2022, the Applicants had concluded that there was no prospect of the
parties settling this dispute through negotiations.
(iii) The Applicants requested arbitration, but the Parties have been unable to agree
on the organization of the arbitration within six months from the date of the
request
35. In a Note Verbale dated 22 December 2022, delivered to Iran on 28 December 2022, the
Applicants requested arbitration in accordance with Article 14, paragraph 1 of the
Montreal Convention, and proposed that discussions be held to agree on the organization
of the arbitration.
In subsequent correspondence from the Applicants to Iran in April
2023,
35
36
the Applicants reiterated their proposal to hold discussions and invited Iran to
meet at a specific time and place.
36. Despite explicit efforts from the Applicants to attempt to organize arbitration pursuant to
the Montreal Convention, Iran continued to ignore the matter entirely. In its Notes
Verbales dated 30 May 2023 to each Applicant,
Iran did not accept the proposed place
and time for a meeting on this issue and did not offer a counter-proposal. Iran did,
37
the Islamic Republic of Iran to the United Nations addressed to the Secretary-General dated 31 January 2022
(Annex 10, Note 37).
34
See Annex 10 for list of Notes Verbales exchanged between the Applicants and the Islamic Republic of Iran.
35
Note Verbale from the Applicants to the Ministry of Foreign Affairs of the Islamic Republic of Iran dated 22
December 2022, No 72/05-620-106210 (Annex 10, Note 52).
36
Note Verbale from the Applicants to the Ministry of Foreign Affairs of the Islamic Republic of Iran dated 20
April 2023, No 72/22-620-44438 (Annex 10, Note 105).
37
See Notes Verbales from the Ministry of Foreign Affairs of the Islamic Republic of Iran sent separately to the
Applicants (Annex 10, Notes 108-111).
11
however, finally accept and acknowledge that collective negotiations were the optimal
manner in which to pursue a negotiated settlement. The Applicants responded on 22 June
2023 by asking Iran to acknowledge their request to organize arbitration.
38
37. The six-month period provided for in Article 14, paragraph 1, expired on 28 June 2023,
without any expression of willingness by Iran to discuss, let alone to reach agreement on,
the organization of the arbitration.
38. The requirements of Article 14, paragraph 1, having been met, the Court has jurisdiction,
pursuant to Article 36(1) of the Court’s Statute and Article 14 of the Montreal
Convention, to hear the claims submitted in the present Application against Iran.
IV. LEGAL GROUNDS FOR THE APPLICANTS’ CLAIM
39. The Applicants’ claims are based on violations by Iran of several of its obligations under
the Montreal Convention, including, but not limited to the following:
- The failure to immediately make a preliminary enquiry into the facts and
promptly report its findings, as required by Article 6;
- The failure to submit the case to its competent authorities for the purpose of
prosecution, as required by Article 7;
- The failure to take all practicable measure for the purpose of preventing the
destruction of Flight PS752, as required by Article 10;
- The failure to afford the greatest measure of assistance in connection with the
criminal proceedings, as required by Article 11; and
- The failure to report to the ICAO Council as promptly as possible any relevant
information in its possession concerning the circumstances of the offence and
the measures taken in relation to the alleged offender(s), as required by Article
13.
40. These violations give rise to Iran’s responsibility under international law, including the
duty to make full reparation.
38
Note Verbale from the Applicants to the Ministry of Foreign Affairs of the Islamic Republic of Iran dated 21
June 2023, No 72/22-620-72387 (Annex 10, Note 112).
12
V. RELIEF SOUGHT
41. The Applicants respectfully request the Court to:
a. Adjudge and declare that Iran has violated the Montreal Convention, including
Articles 6, 7, 10, 11 and 13, including by failing to:
- endeavour to take all practicable measure to prevent the destruction of Flight
PS752;
- conduct a prompt, effective, independent and impartial preliminary enquiry
into the shooting down of Flight PS752 and to report its findings;
- submit the case in good faith to its competent authorities for the purposes of
prosecution in the same manner as in the case of any ordinary offence of a
serious nature under the laws of Iran, and to ensure that the resulting
prosecution is conducted in an impartial and transparent manner to ensure
accountability and justice for the victims and their families;
- afford the greatest measure of assistance in connection with criminal
proceedings; and
- report to the ICAO Council as promptly as possible any and all relevant
information in its possession concerning the circumstances of the offence and
the measures taken in relation to the offender or the alleged offender.
b. Order that the Respondent:
i. Publicly acknowledge its internationally wrongful acts and omissions as
alleged;
ii. Publicly apologise to the Applicants and the families of the victims;
iii. Provide assurances and guarantees of non-repetition, including by
adopting concrete measures to prevent a similar downing in the future;
iv. Fulfil its other legal obligations under the Montreal Convention,
including prosecution or extradition of alleged offenders, with any
prosecution taking place in a transparent and impartial manner.
c. Order full reparation for all injury caused to the Applicants as a result of the
Respondent’s violations of the Montreal Convention, including:
13
i. Returning the missing belongings of the victims;
ii. Providing full compensation to the Applicants for the material and moral
damages suffered by the victims and their families.
VI. JUDGE AD HOC
42. In accordance with the provisions of Article 31(3) of the Statute of the Court, and Article
35(1) of the Rules of the Court, the Applicants give notice of their intention to exercise
their right to choose a judge ad hoc. In light of Article 31(5) of the Statute of the Court,
it is the intention of the Applicants to appoint a single judge ad hoc.
VII. RESERVATION OF RIGHTS
43. The Applicants reserve the right to revise, supplement or amend this Application, as well
as the legal grounds invoked and the relief requested, as may be necessary to preserve
and vindicate their rights under the Montreal Convention.
14
15
16
17
18
LIST OF ANNEXES
APPLICATION INSTITUTING PROCEEDINGS
Page
Annex 1 Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation, 23 September 1971, 974 UNTS 177 (entered into force 26
January 1973)
21
Annex 2 Transcript of Brigadier General Hajizadeh video statement imbedded in
“Head of IRGC Aerospace Division accepts responsibility for plane crash”,
Iran Press News Agency (11 July 2020) - English
64
Annex 3 Transcript of “Prime Minister Trudeau: Intelligence suggests plane was
shot down”, CPAC (9 January 2020) – English and French
68
Annex 4 Announcement of the General Staff of the Armed Forces about Ukrainian
Passenger Plane Crash, Islamic Republic News Agency (11 January 2020) -
Persian
79
Annex 4.1 Announcement of the General Staff of the Armed Forces about
Ukrainian Passenger Plane Crash, Islamic Republic News Agency (11
January 2020) – English
83
Annex 5 Transcript of “General Hossein Salami speaking about the downing of
Flight PS752 to Iranian Parliament”, YouTube (12 Jan 2020) – English
85
Annex 6
Islamic Republic of Iran, Government Information Center, “The Victims of
the Ukrainian Airplane Incident are Considered Martyrs” (14 January
2020) – Persian
95
Annex 6.1
Islamic Republic of Iran, Government Information Center, “The Victims
of the Ukrainian Airplane Incident are Considered Martyrs” (14 January
2020) – English
97
Annex 7 “Tehran’s Military Prosecutor Describes New Aspects of Ukrainian
Aircraft Crash”, Islamic Republic News Agency (7 January 2021) - Persian
98
Annex 7.1
“Tehran’s Military Prosecutor Describes New Aspects of Ukrainian
Aircraft Crash”, Islamic Republic News Agency (7 January 2021) -
English
102
Annex 8 “Issuing indictment for 10 people in the case of the Ukrainian plane”,
Iranian Students’ News Agency (6 April 2021) – Persian
107
19
Annex 8.1
“Issuing indictment for 10 people in the case of the Ukrainian plane”,
Iranian Students’ News Agency (6 April 2021) - English
110
Annex 9 “Issuing the Verdict for the Ukrainian Aircraft Case After 20 Court
Hearings / First-row Defendant Sentenced to 13 Years in Prison”, Mizan
Online (16 April 2023) – Persian
111
Annex 9.1
“Issuing the Verdict for the Ukrainian Aircraft Case After 20 Court
Hearings / First-row Defendant Sentenced to 13 Years in Prison”, Mizan
Online (16 April 2023) - English
115
Annex 10 List of Notes Verbales Exchanged between the Parties and Other
Correspondence
118
20
Joint Application instituting proceedings