In the hours preceding the ballistic missile launch on US positions in Iraq, Iran went on high military alert, and the IRGC deployed mobile SAM units in the vicinity of Tehran’s IKA.88 Iran knew that ongoing military tensions, an elevated defence posture, and the deployment of SAM units in the vicinity of an airport serving civil aviation would raise the risk for civil aircraft. Notwithstanding the increased risk to civil aviation and, based on its risk assessment that such a risk was “low,” Iran decided to keep this airspace open to civil aircraft while implementing only one mitigation measure. Iranian decision makers had the benefit of international guidance and recommendations to inform their plan to manage risks to civil aviation from the IRGC’s military activities. Recent history demonstrated the level of risk, most notably Malaysia Airlines Flight 17 (MH17) which was shot down over Ukraine in 2014. Iran also had ICAO guidance material available to assist it in managing risks to civil aviation from military activities in conflict zones.89 Finally, Iran had first-hand knowledge of the risks faced by civil aircraft during times of heightened tension with the downing of Iran Air Flight 655 (IR655) in 1988. The downing of IR655 resulted in the development of ICAO guidance on managing military activities with the potential to be hazardous to civil aircraft operations.
Risk Analysis Under international law, Iran bears the responsibility for ensuring that civil aviation operations in its airspace are safe, including from military hazards.90 Standards and recommended practices are set out in annexes to the Chicago Convention to assist member States in this regard. The Iranian Final Report claimed that Iran’s military conducted a thorough risk assessment in advance of its launch of missiles on US positions in Iraq the morning of January 8, 2020,91 but was silent on any risk assessment conducted by Iran’s Civil Aviation Organization or the Air Navigation Service Provider. The military’s risk assessment concluded there was a “low risk” of Iranian defence forces misidentifying civil aircraft (like Flight PS752) departing IKA.92 Iran claimed its military assessment informed its decision to keep its airspace open over Tehran during this period of heightened tension and noted its identification of mitigation measures to protect airlines. This reportedly included a mitigation measure that required flights departing IKA to obtain military approval before take-off. The Forensic Team has no other source of information to corroborate Iran’s claim with respect to the conduct of its risk assessment; however, it is known that Iran did not share information on its risk assessment with UIA in advance of Flight PS752 taking off. In contrast, Iran’s Final Report indicated that the assessment determined there was a “very high” risk of misidentification for flights transiting the Iran-Iraq border and “high risk” for those travelling along four parallel north–south flight corridors in western Iran in proximity to the border.93 Iran’s Final Report indicated that Iranian airspace and departures from Iranian airports would have been stopped “in the event of a conflict.”94 The Forensic Team examined air traffic within the four airways close to the Iran-Iraq border the morning of January 8, 2020 (UT430, UM317/L319, UL223, and UT301). This analysis determined that ATC stopped using the four airways beginning at approximately 05:15 TT.95 ATC managed the traffic in these corridors without issuing a NOTAM to notify airlines of the risk, contrary to international guidance.96 35
