1.16 / IRAN AIRLINER

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SEAN RAMESWARAM (Host): President Trump’s impeachment trial is around the corner. So is his State of the Union, the Iowa caucuses, and then this election season begins in earnest. By mid-February, that one week McWar we had with Iran might be all but a distant memory for most. But not so much for the families of Ukraine International Airlines Flight 752. For them, the fallout is just starting to ramp up.

On the show today, we’re going to tell the story of what exactly happened, as far as we know to this plane . And what’s to come for all the countries involved: Canada, Ukraine, Iran. Maybe even the United States. Justing Ling is a freelance journalist based in Toronto. He’s been covering the story for Foreign Policy.

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JUSTIN LING (Journalist): So on January 8th, just a little over a week ago, amid a lot of the tensions in the Middle East, just as Iran was firing a barrage of missiles towards American military bases in Iraq, Ukrainian Airlines’ international flight 752 took off from Tehran, destined for Kiev. And then a lot of the passengers were destined to go on to Toronto.

<CLIP> CNN: We're learning that a Boeing 737 passenger plane has crashed in Iran with 176 passengers and crew on board.

<CLIP> GLOBAL NEWS: Those onboard included academics returning from holidays, newlyweds coming back from their wedding and many, many students. They came from Iran, Canada, Ukraine, Sweden, Afghanistan, Germany and England. 138 of them were supposed to be on a connecting flight to Toronto. It landed this afternoon without those people. All of them died in the crash.

JUSTIN: Now, there was a whole bunch of confusion as this was happening. There were reports of a plane crash, but this was happening at the exact same times as there were fears that American fighter jets were taking off from the UAE and elsewhere, maybe destined for Iran. There was immense confusion about, you know, where the missiles were going, what fighter jets may have been scrambled. So no one really knew what was happening. It wasn't until we started getting images of this wreckage that it became clear that, as the hours went on, it became clear that this commercial flight had gone down.

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SEAN: So how does Iran initially react to this plane going down? What do they say?

JUSTIN: So when it becomes clear that, in fact, a commercial jet had gone down in Iran before anyone really knew fully what had happened.

<CLIP> BBC: Iranian media reports say the aircraft came down due to technical problems. One official said it had been on fire.

JUSTIN: You know, there was not a lot of credibility behind that, especially after images started coming out that were initially unverified...

<CLIP> CELL PHONE FOOTAGE OF THE CRASH

JUSTIN: ...showing what appeared to be the plane on fire mid-flight before it crashed in a field. That generally doesn't seem to happen a lot with engine failure. You don't see a huge explosion.

<CLIP> PRESIDENT DONALD TRUMP: I have my suspicions. It was very... I don't want to say that because other people have those suspicions also. It's a tragic thing when I see that. It's a tragic thing. But somebody could have made a mistake on the other side. Could have, could have made a mistake. It was flying. It was...

JUSTIN: Already from the get go there was a lot of speculation that this had been a military incident, not a mechanical failure.

<CLIP> CBS NEWS: Most Western leaders are unanimous in their assessment that missiles launched in Iran brought down the doomed plane. But today, Tehran is demanding proof.

SEAN: So while Iran is denying that this was their work, what are Ukraine and Canada saying about it?

JUSTIN: Publicly, Ukraine was quiet. Ukraine managed to get investigators to the crash site relatively quickly, seemingly quicker than any other foreign state. That's because under international civil aviation laws, the destination country has special rights when it comes to the investigation. They have a higher standing when it comes to sending investigators to the crash site. And Iran dispatched a number of highly trained investigators to look at the crash site. And it seems, thanks to some reporting now, that the investigators learned pretty quickly that this was a shootdown event. They kept that quiet initially. Canada was a little more blunt as time went on.

<CLIP> CANADIAN PRIME MINISTER JUSTIN TRUDEAU: We have intelligence from multiple sources, including our allies and our own intelligence. The intelligence indicates that the plane was shot down by an Iranian surface-to-air missile. This may well have been unintentional.

JUSTIN: He opened the door and said, listen, this may be an accident. We don't know. But he said, you know, the intelligence is pretty clear cut. So it very quickly, I think, put Iran on the defensive as they were still trying to claim that this was a mechanical failure.

SEAN: So how did Iran react to Canada's aggressive reaction?

JUSTIN: You had the head of the Iranian Civil Aviation Organization saying that they had already investigated and that they completely ruled out the possibility that missiles were to blame for downing the jet.

<CLIP> GLOBAL NEWS: Families of those killed in the downed plane in Iran are facing competing narratives tonight about what led to the deaths of their loved ones. Iran does not believe what Prime Minister Justin Trudeau said yesterday about an Iranian missile shooting down the Ukraine Airlines flight. It categorically denies it.

JUSTIN: But, of course, there is video evidence of these missiles heading towards the plane. It's very, very clear what had happened based on cell phone imagery that was uploaded and that was collected in some cases by The New York Times and others. I think it became pretty clear to Iran that they didn't have a leg to stand on.

SEAN: Does Iran come out and make an official statement saying, ‘Hey, that was actually us,’ and ‘Sorry we lied’?

JUSTIN: Iranian state media certainly recognized that it was, in fact, the Iranian regime. That doesn't really happen unless the regime itself acknowledges it. Iran now faces pressure not just from America. You know, of course, with whom it had rising tensions over recent weeks. But now it has a problem with Canada, with Ukraine, with the European Union. And suddenly, after trying to garner some international goodwill, it is now very much regarded as the bad guy. Not only did it shoot down a plane, it tried to lie about it. And that is very difficult, I think, for the Iranian regime to spin to the European countries with whom it's trying to preserve a nuclear deal. On top of that, you have rising discord inside Iran itself.

<CLIP> POLICE FIRE TEARGAS AT IRANIAN PROTESTERS

<CLIP> SKY NEWS: There's anger at the government on the streets in Tehran. Pockets of protest after Iran's military admitted it accidentally shot down a civilian plane. They shout for their leaders to resign.

JUSTIN: There were widespread protests in Iran towards the end of last year, largely over the cost of living. As the new year dawned, a lot of those protest petered out partially because of, you know, a fear, I think, internally that they were heading to the precipice of war with America, especially after the targeted killing of General Soleimani. I think the Iranian regime sort of managed to rally some of the population around, you know, its national cause. That went out the window when it became clear that Iran was responsible for the regime, was responsible for shooting down a jet that had, you know, dozens of its own citizens on board.

SEAN: So what is Iran doing now to own this?

JUSTIN: In recent days, you've seen the state start rounding up some people without much detail who they claim were responsible for the shoot down.

<CLIP> ABC: Iran now confirming that arrests have been made of those involved in the accidental shooting down of that plane. No details, however, of how many or exactly who has been arrested. And this morning, Iran's President Rouhani admitting that from the get go, he thought the crash wasn't normal.

JUSTIN: That does seem to be a bit of scapegoating, you know, sort of trying to blame a rogue faction or, you know, some incompetent military brass inside, but I don't know that many in the public are really going to buy that. I mean, fundamentally, military structures being what they are. You can't really blame the lowest level for the mistake of this magnitude. Ultimately, someone higher up needs to be held responsible, if not the military and the state itself.

SEAN: Was there any attempt to shift the blame back on the United States?

JUSTIN: Yeah, absolutely. I mean, you know, that was kind of a quick retort from Tehran. After they recognized they themselves were responsible for downing this airliner, they sort of put it back on to Washington and said, you know, if not for the hostilities spurred by America, this never would have happened.

SEAN: And surely Canada isn’t too happy with the U.S. either…

<CLIP> PRIME MINISTER JUSTIN TRUDEAU: I think if there were no tensions, if there was no escalation recently in the region, those Canadians would be right now home with their families. This is something that happens when you have conflict and war. Innocents bear the brunt of it.

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JUSTIN: Canadian citizens were represented more than any others in the international community on that flight. And I think it puts it on Canada to step up and ensure that there is a credible investigation for one, but also credible legal process. Thus far, it's been a mixed bag. Iran initially said that the black boxes were damaged and couldn't be read. Now they're saying they're damaged, but, you know, there's still data on them. And just recently, we've seen them seemingly acquiesce to a request to send the black boxes to France for analysis. So it remains to be seen how... to what end they're going to allow military commanders to be interviewed by investigators. That will be a huge piece of this puzzle. It's not clear whether or not they're going to participate in potentially a process at the International Court of Justice. All of those things down the line are big questions that will be very interesting to see how Iran responds to.

SEAN: More with Justin in a minute on Today, Explained.

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SEAN: Justin, has something like this ever happened before -- a country accidentally shooting down a plane full of civilians?

JUSTIN: Yeah. So unfortunately, it's happened several times. In 1988 in the Iran-Iraq War there were immense tensions in the region.

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JUSTIN: There was a huge threat to international shipping in the Strait of Hormuz, an incredibly vital shipping lane. So the U.S. Navy dispatched several ships to kind of patrol the waters and to sort of make sure that both states were respecting international shipping. At one point in early July 1988, an Iranian Airlines flight took off from a southern port city and the U.S. naval ship nearby mistook it for an F-14 fighter jet and fired two missiles. And downed the flight, killing everybody on board, mostly Iranian citizens.

<CLIP> ADMIRAL WILLIAM CROWE: Evaluating information available from the Persian Gulf. We believe that the cruiser USS Vincennes, while actively engaged with threatening Iranian surface units, and protecting itself from what was concluded to be a hostile aircraft, shot down an Iranian airliner over the Straits of Hormuz. The U.S. government deeply regrets this incident.

JUSTIN: In that moment, a lot of those fears about what happens when a military sort of overreact came alive all over again. The U.S. military expressed their dismay immediately, but they didn't take responsibility.

<CLIP> ADMIRAL WILLIAM CROWE: On the information that is available to us that the commanding officer operator rather conducted himself with circumspection and considering the information it was available to him, followed his authorities and acted with good judgment and at a very trying period of time...

JUSTIN: The U.S. military, in a very similar way to what the Iranians did just this month, they sort of making excuses.  

<CLIP> ADMIRAL WILLIAM CROWE: The aircraft was not in the air quarter that would normally be in the air quarters, a limited amount of airspace. And he was outside of that...

JUSTIN: They started saying, well, the flight was operating on a military frequency. The flight started descending quite rapidly in an aggressive maneuver and they started trying to set up justification for the shoot down.

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JUSTIN: Now, in the months that followed, a lot of the other intelligence and radio communications, the radar imagery showed that, in fact, the flight was transmitting on a civilian frequency as well, that it was quite obvious it was a commercial airliner, that in fact, the flight was ascending, not descending, and that a lot of the claims that were being made may have been well believed in the moment, but were ultimately wrong.

SEAN: It sounds like there is an established playbook for this. And that playbook is whenever you shoot down a plane accidentally, the first thing you do is lie about it.

JUSTIN: Not even necessarily lie, but you kind of weaponize the information you have in front of you to sort of skirt responsibility, right? So, you know, I don't really have any doubt that those on the U.S. ship did believe that an F-14 was heading their way with the intent of sinking the ship. That being said, obviously there is more checks that they need to do to confirm that it was an F-14 and not a civilian aircraft.

SEAN: How does the U.S. deal with its accidental downing of a civilian aircraft?

JUSTIN: It starts proceedings at the U.N. and in the International Court of Justice.

<CLIP> M JAVAD ZARIF, THEN IRANIAN COUNSEL TO UN: The government of the Islamic Republic of Iran considers this a premeditated act of aggression and a premeditated, cold-blooded murder.

JUSTIN: And they go to court basically saying America needs to be held responsible for this. America, all the while is expressing sympathy. It sort of acknowledges that this was done in error, but it never actually apologizes and it never really takes responsibility for what has happened. Ultimately, that process begins as a full investigation, as a real investigation that sort of lays bare a lot of the facts of this case. But when it gets to court, America basically says we're looking to settle.

<CLIP> SPOKESMAN NICHOLAS BURNS (FEBRUARY 1996): The United States and Iran have settled Iran's claims against the United States, which were filed before the International Court of Justice...

JUSTIN: And that sort of begins setting the stage for what the sort of case law will be going forward. And I think also reinforces to the world that there needs to be rules in these situations that can't really be an ad hoc basis where countries are allowed to sort of accept responsibility or deny responsibility based on how they're feeling that day.

SEAN: So how much does the US end up paying?

JUSTIN: So ultimately, the settlement in 1996 works out to about 131 million dollars. It's not a huge sum of money, but I think from both sides, it was a relatively fair settlement and a recognition of sort of the damage that it had done to those families. Of course, we never really replace those who died. But it was a substantial sum of money.

SEAN: And did it create some sort of legal precedent, even though it was, I guess, up to these two countries, how much money was issued?

JUSTIN: It sort of created a benchmark for what a reasonable settlement looks like.

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JUSTIN: America never accepted responsibility, never apologized. And that was something Iran had always demanded. Years later, when the captain of the ship that was responsible for the downing was kind of celebrated and recognized as a hero in the U.S. military, Iran was absolutely livid all over again. So there's always been this sort of tension where America has never quite owned up to what happened in its entirety. And Iran has always been sort of sore about that. But it sort of sets rules on what happens when a military downs a civilian airliner and sort of lays the groundwork for what investigations look like when that happens. You know, who is responsible? And it kind of sets up the legal framework to actually bring someone to bring a foreign nation to court in an instance like this.

SEAN: And now, ironically, Iran's in the position of being the aggressor who might need to pay out to countries like Canada and Ukraine and its own citizens.

JUSTIN: Yeah. That's right. And it sort of turns the tables. That's why it's so difficult to take credibly a lot of the attempts by Tehran to sort of throw this back in America's face, because they were the ones clamoring for this credible process that features a serious investigation, a real court process, and real penalties and ownership and recognition of what had happened. Something that they seem kind of uncomfortable with doing now.

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SEAN: Who's  going to be in the position more so here to ensure that Iran is held accountable? Is it Ukraine? Is it Canada?

JUSTIN: We saw a conversation begin around what a legal process should look like when a military downs a civilian airliner. There's something called the Chicago Convention. And the Chicago Convention sort of governs how commercial airliners are supposed to operate from one country to another. It's supposed to be an international standard for how planes take off and land and and fly through other countries’ airspace. So under the Chicago convention, it sort of recognizes different parties for different responsibilities. So as part of the investigation, the manufacturer of the aircraft has sort of special status in terms of leading the investigation, though, that is sort of designed more for mechanical failures. The country the flight was destined for has standing to sort of run the investigation, but it's also not totally defined. I mean, Canada has insisted on sending investigators. It's already sent a couple. It's likely to send many more. There was some reticence by Iran seemingly to give them visas. They've now been awarded those visas and they're likely in Iran right now and more likely to show up. But I think Canada has to sort of force itself into this. I mean, I don't think Ukraine is necessarily incredibly invested in the region. You know, it has its own sort of concerns to worry about right now the majority of the victims from from abroad were Canadian. So I think it really puts the onus on Canada to to step in here. What's more, Canada has, you know, long press to the Iranian regime for changes around human rights, for changes around democratic processes, to sort of try to press it to stop funding terrorist organizations in the region. So I think Canada has already exercised a fair bit of pressure on the Iranian state. It has been supportive, though, not a party to the nuclear deal with European Union and the U.S., which I think, again, puts in a good spot to actually use what leverage it has to go after Tehran to do this properly. Canada had substantial sanctions in place against Iran up until the last couple of years. They've removed those sanctions. And I can imagine that putting them back on will be on the table now. So I think Canada is really the best place here. Of course, America may see itself being party to the eventual legal process. But obviously, given the hostilities between those two countries and Iran's insistence that America is somewhat to blame for the downing, I think it puts them in too awkward a spot to really inject themselves into this process in a major way.

SEAN: How is the Canadian public reacting? Is it mad at Iran? Is it mad at the United States?

JUSTIN: I think it's both. You know, there is a public perception that America does bear some blame because it created the hostilities that led to this incident. At the same time, there is also, I think, going to be a fair bit of anger at the Iranian state for actually being responsible. And if there is a perception that Iran is dragging its feet, you know, when it comes to investigation of the court process or that it is obfuscating or trying to cover up this incident, I think there's going to be a real demand that Iran be held to account. But, you know, there's been a fair bit of mourning. This was devastating, especially to the small number of communities where these folks came from. Most of the victims came either from Edmonton, Ottawa or Montreal. And you saw the Prime Minister reach out to a lot of the victims families and friends and supporters who showed up on Parliament Hill to hold a candlelight vigil the day after the incident. You know, this has been really devastating to a tight knit community.

<CLIP> 660 NEWS REPORT: HONEY SHAHIN: They were all geniuses who came here to learn. They came here to add to the world and now, they are not here anymore.

SHAYESTEH MAJDINA: She was on the plane last night and I lost her with her two friends.

HONEY SHAHIN: I have no one in Canada. We are...like...my friends are my family. They were our families. Today I lost brother, I lost a sister, and it’s sad.

<CLIP> JUSTIN TRUDEAU: You may feel unbearably lonely but you are not alone. Your entire country stands with you tonight, tomorrow, and in all the years to come. We will build that future they all dreamed of together. That’s what Canada is.

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SEAN: But if Canada is successful in holding Iran accountable, it might end up ensuring that the families of Iranians who died on this flight are compensated, too.

JUSTIN: Absolutely. And that really is the flipside of all of this, is that if Canada can make this International Court of Justice process work and put real force in effect behind the Chicago Convention, then that is a real big victory here. You know, this is what this whole process was designed to as going back to the 1980s. You know, this was kind of the dream of a lot of people who put this together—was to create a legal mechanism to ensure that with something like this happens there are repercussions. And that there has to be, if not a full apology, at least a recognition of responsibility, a path to justice for the people who lost their loved ones on these flights. And hopefully, you know, sort of a disincentive for states to shoot first and ask questions later.

SEAN: Justin Ling is a freelance reporter, he’s been writing lots about Flight 752 for Foreign Policy. I’m Sean Rameswaram. This is Today, Explained.

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