Lawyers representing the families who lost loved ones in the downing of Flight PS752 said they filed a brief on Wednesday calling on the International Criminal Court to investigate the case as a possible war crime or crime against humanity.
Families say it’s taking too long in Canada to get justice and are taking matters into their own hands.
“We have no indication of a roadmap to justice or a timetable for action from the affected countries, especially Canada,” said Hamed Esmaeilion, spokesperson for the association representing families. His wife and nine-year-old daughter died on board the flight.
“Affected countries moved with a glacial pace that was marred by bureaucracy and a wishful thinking attitude towards meaningful negotiation with the Islamic Republic of Iran.”
The coalition of countries that lost citizens on the plane – including Canada – abandoned efforts to negotiate reparations with Iran in January after being repeatedly blocked. Since then, the coalition has said it is focusing on action “in accordance with international law”.
The families are now calling on the Canadian government to support its request to the International Criminal Court for a review of all available evidence in an effort to prosecute those responsible.
Iran’s Islamic Revolutionary Guard Corps shot down the Ukrainian commercial plane with two surface-to-air missiles in January 2020, killing all 176 people on board, including 55 Canadians and 30 permanent residents.
Iran initially denied destroying the flight. After evidence against Iran’s claim piled up around the world, Iranian officials admitted that their military “mistakenly” shot down the passenger plane.
The Canadian government launched its own forensic investigation rather than a criminal investigation. Last year, this investigation concluded that the government had no evidence from its part proving that the disaster was “premeditated”. But Canada has concluded that Iran was fully responsible for the deaths of everyone on board the plane, as well as for failing to provide security in the airspace and notifying the airlines. risks.
Dissatisfied with this discovery, the families of the victims did their own research. They hired a former Toronto police detective, obtained audio recordings from Iranian officials and consulted with military experts.
In a rare move, the families released their own “investigative” report last year which alleged that Iran had deliberately kept its airspace open to use civilian air passengers as human shields against a possible US attack.
The families’ submission to the International Criminal Court (ICC) argues that the highest levels of the Iranian government decided to keep the airspace open over Tehran without warning commercial airlines of the ongoing intense military activity. .
Hours before the downing of Flight 752, the Islamic Republic of Iran targeted a US base in Iraq in retaliation for the recent killing of the Iranian general Qassem Soleimani.
The families’ lawyers claim that the Iranian government and IRGC perpetrators committed war crimes, including “intentional killings, intentional attacks directed against the civilian population or civilian objects…as well as crimes against humanity of murder and “other inhumane acts”. “
The families’ legal advisers say there is a mechanism that allows individuals or victims – in this case, the PS752 families – to provide information to the ICC prosecutor’s office about alleged crimes. The bureau would then review the evidence to decide whether to accept the case.
Errol Mendes, a law professor at the University of Ottawa, was a visiting lawyer at the ICC in 2015 and is now president of the Canadian section of the International Commission of Jurists.
Mendes said the Flight PS752 case may not meet the ICC’s ‘severity threshold’ as the court typically prosecutes mass genocide, crimes against humanity, war crimes or crimes of aggression in large scale.
But it’s worth a try, Mendes said, adding there’s a chance the case will be accepted if there’s enough evidence to show Iranian officials used commercial air passengers as human shields. .
“It’s okay to try the different routes,” he said. “If they do and are successful, they need to think seriously about what kinds of evidence they can realistically get from the prosecutor to start a serious investigation.”
Yonah Diamond, an international human rights lawyer serving as an advisor to the victims’ families, said families could also argue the case was admissible on other grounds.
Ukraine has opened a criminal investigation into the downing of flight PS752 because a plane from its country was shot down. But since Russia invaded Ukraine, the prosecutor’s office “is clearly unable to conduct its investigation” as Russia “causes untold destruction to its infrastructure and overwhelms its justice system,” Diamond said.
“Other countries have been reluctant to open criminal investigations, making the ICC the appropriate venue – as a court of last resort,” Diamond wrote in an email to CBC News.
Haydee Dijkstal, one of the lawyers who made the request to the ICC, spoke on Wednesday at a roundtable organized by the American think tank Atlantic Council. Dijkstal said the families are asking the Canadian government to join in their submission, which she hopes will compliment the job the government is doing.
“It’s been over two years,” Dijkstal said of the downing of flight PS752. “In the best case, things move and move faster.”
The families’ submission is also an effort to pressure the federal government to take the matter to the International Civil Aviation Organization (ICAO), of which Iran is a member state.
This is the legal route that the Canadian government has said in the past that it would take if negotiations with Iran failed. Through this process, the case could end up before the International Court of Justice – but to seek compensation for victims, not criminal justice.
The government has yet to provide a comment in response to CBC New’s inquiry about the families’ resubmission.