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Looking Back and Looking Ahead

Published online by Cambridge University Press:  27 February 2017


The first thing to learn about any incident or accident involving airplanes is “wait.” The initial reports never have it quite right. This was true about KAL Flight 007, about Pan Am Flight 103, about the bombing of Tripoli and Bengazi, and about Iran Air Flight 655.

Agora: The Downing of Iran air Flight 655
Copyright © American Society of International Law 1989

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1 U.S. Dep't of Defense, Formal Investigation into the Circumstances Surrounding the Downing of Iran Air Flight 655 on July 3, 1988 (1988) (prepared by Rear Adm. William M. Fogarty, July 28, 1988) [hereinafter U.S. Navy Report]. The report, together with endorsements by the Commander in Chief U.S. Central Command and the Chairman of the Joint Chiefs of Staff, is appended (with minor deletions) to the full report of the ICAO investigation, excerpted supra at p. 332 [hereinafter ICAO Report].

2 “The primary responsibility of the Commanding Officer under the ROE [Rules of Engagement] is the defense of his ship from attack or from threat of imminent attack.” U.S. Navy Report, supra note 1, para. III.A.3.(a)(2).

3 Id., para. IV.A.12 (under “Opinions”—Psychological factors).

4 According to the ICAO Report, supra note 1, 66 flights using the route taken by Flight 655 took place between June 2 and July 3, 1988, an average of about 2 per day and a maximum of 6 on June 23. Flight 655 itself was a twice-weekly service. Contrary to the original reports, the flight seems at all times to have operated within the accepted 20-nautical-mile-wide civilian air corridor.

5 In fact, the U.S. Navy Report by Admiral Fogarty is dated before the testimony of Maier and Sofaer here excerpted, though it may not have made it up through channels by the time of the congressional hearings.

6 See N.Y. Times, Apr. 30, 1952, at 1, col. 1; id., May 1, 1952, at 1, col. 4, 3, col. 2.

7 See 31 Dep'T St. Bull. 165, 196, 241–42 (1954).

8 See 8 M. Whiteman, Digest of International Law 1265–66 (1967).

9 Id. at 891–98.

10 Case concerning the Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), Preliminary Objections, 1959 ICJ Rep. 127 (Judgment of May 26). Subsequently, Bulgaria paid compensation to Israel equal to the limits of liability provided for in the Warsaw Convention (see p. 330 n.9 supra) for persons injured in international air transport accidents.

11 See N.Y. Times, Feb. 22, 1973, at 1, cols. 5–8; id., Feb. 23, 1973, at 1, cols. 4–5; id., Feb. 24, 1973, at 1, cols. 6–7; id., Mar. 7, 1973, at 8, col. 1.

12 ICAO Council Resolution of June 4, 1973, ICAO Doc. 9073–C/1011, C-Min 79/4, reprinted in 12 ILM 1180 (1973).

13 See N.Y. Times, Apr. 21, 1978, at 1, col. 5; id., Apr. 30, 1978, at 1, col. 5. For recollections of the experience by the pilot of the Korean plane, see id., Sept. 9, 1983, at All, cols. 5–6.

14 UN Doc. S/PV.2474 (1983), reprinted in 22 ILM 1136, 1145 (1983).

15 Marshal Nikolai V. Ogarkov, news conference, Sept. 9, 1983, reprinted in N.Y. Times, Sept. 10, 1983, at 4, cols. 1–6.

16 Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, TIAS No. 1591, 15 UNTS 295.

17 For a discussion of the declaratory character of the proposed amendment, see Cheng, The Destruction of KAL Flight KE007, and Article 3 bis of the Chicago Convention, in Liber Amicorum Honouring Prof. I. H. Diederiks-Verschoor 49, 59–61 (1985).

18 The text continues: “and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.” ICAO Doc. 9437, A25–Res. (May 10, 1984), reprinted in 23 ILM 705 (1984).

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