Canada finds Iran committed terrorist act in shooting down Ukrainian plane

The Ontario Superior Court of Justice ruled Thursday that Iran committed international terrorism in January 2020 by shooting down Ukraine International Airlines Flight 752 with two missiles. The attack killed all 176 passengers flying to Kiev from Tehran, of whom 55 were Canadian citizens and another 30 were permanent residents of the North American country.

"The plaintiffs have shown that the defendants' downing of flight 752 was an act of terrorism and constitutes terrorist activity," the case's trial judge, Edward Belobaba, included in the ruling. "I find, on a balance of probabilities, that the missile attacks on flight 752 were intentional and directly caused the deaths of all on board during a time when there was no armed conflict," he added.

The defendants include both the Revolutionary Guard and several senior members of the Iranian military. Supreme Leader Ayatollah Ali Khamenei is also incriminated in the case. The ruling also states that the Persian authorities postponed acknowledging the facts and claimed instead that the accident was caused by an error in the defence system. Tehran's version of the story was that an operator mistook the plane for a cruise missile. 

The investigating judge in the case based his ruling on several expert reports submitted by the prosecution. One, compiled by Iranian-born analyst Bahman Jeldi of the Canadian Centre for Persian Studies, states that it is not possible for two missiles to be fired by mistake "considering the advanced military capabilities of the TOR-M1, the two radars and the control system, the pre-approved flight plans and the control of the airspace which rests with the IRGC". Belobaba also included the findings of the investigation by Agnès Callamard, UN Special Rapporteur on extrajudicial, summary or arbitrary executions.

In principle, the Canadian judiciary has no legal jurisdiction over other states. However, a law established in 2012 limits immunity for countries that support terrorism. Iran was listed that same year for its support for Bashar al-Assad's regime in Syria, its nuclear programme and threats to Israel, which led then foreign minister John Baird to sever diplomatic relations between Ottawa and Tehran.

Iran decided not to defend itself in court against the lawsuit brought by four families of the victims. The Canadian judiciary tried to contact Iranian representatives in Washington, who are in charge of the regime's affairs in Canada, without receiving an immediate response. The ruling therefore declares Iran in default and lays the groundwork for determining the amount of damages to be awarded in the civil suit. However, the bilateral deadlock makes it difficult for the future claim to be formalised by the Canadian judiciary.

One of the victims' lawyers, Jonah Arnold, said on Canadian television that there are Iranian assets in Canada and internationally that he would seek to seize, including oil tankers. "We will look internationally to seize whatever we can seize once we have a determination of what the level of compensation is," he said. Arnold has experience in this case, having represented other clients in previous claims against Iran.

Fellow lawyer and human rights activist Kaveh Shahrooz welcomed the ruling, but stressed that the challenge is to enforce it. "I hope this decision will not prevent the Canadian government from taking this case to international fora such as the International Court of Justice," Shahrooz added. "And I hope that such a court will not consider this case as a substitute for an international judgment declaring Iran responsible for the murder of 176 innocent people."

Iran's killing of 176 people follows a period of instability within the regime. On 3 January 2020, Revolutionary Guard General and Quds Force commander Qassem Soleimani was assassinated by the US. Just five days later, the plane was shot down "in retaliation", according to the four plaintiff families.

Voices from the Conservative Party of Canada have called for the Iranian Revolutionary Guard to be listed as a terrorist organisation. In response to this opposition position, Foreign Affairs Minister Marc Garneau said last week that Canada has identified the Quds Force, a branch of the Persian institution in charge of operations outside Iran, as a terrorist entity. However, the families of the victims do not interpret the move as sufficient as it is not directly responsible for the downing of the plane.