When Ukraine International Airlines flight 752 was shot down over Tehran by Iranian anti-aircraft missiles in January 2020, killing all 176 people on board, it was just the beginning of the ordeal for the victims’ families.
In the 32 months since, they have faced obstruction and hostility from the Iranian authorities, which initially sought to deny their forces were responsible. When bodies were finally returned, they were often mixed with the remains of other victims, the personal effects of the dead were looted, and in some instances their funerals were commandeered by the Tehran regime for propaganda purposes. Grieving relatives have been assaulted, harassed and threatened.
Unlike the case of MH17, the Malaysian airliner shot down by Russian missiles in July 2014, there has been no independent international investigation on what happened to flight 752, which was downed by two missiles six minutes after take-off from Tehran’s Imam Khomeini international airport, carrying mostly Iranian and Iranian diaspora families back to their adopted nations after a visit to their homeland.
Their families feel forgotten by their governments, and are now seeking to hold accountable those responsible for the death of their loved ones.
On Wednesday they are submitting a request for the prosecutor at the international criminal court (ICC) to start an investigation of the downing of PS752 as a potential war crime and crime against humanity.
It is an innovative approach, born of a lack of alternatives. The MH17 case was the subject of a criminal investigation led by the Netherlands who lost 193 citizens of the flight, supported by Malaysia and other affected countries. But there was been no equivalent inquiry for PS752.
Among the 176 victims (one of whom was pregnant) there were 82 Iranians, 63 Canadians, 11 Ukrainians, ten Swedes, four Afghans, and three Britons. As the nation whose flag the airliner was flying, Ukraine initially took the lead, but progress was hindered first by Covid and then was engulfed by the outbreak of war this February. Iran conducted an investigation that blamed the disaster on low-level human error but the inquiry had little credibility in a country where the regime controls the courts.
The Royal Canadian Mounted Police declined to open its own criminal inquiry, or accept Kyiv’s offer of a joint investigation, reportedly telling the families that the issue was too complex and the evidence beyond reach in Iran.
Instead the RCMP said they would support Ukrainian investigative efforts, but the families said the Canadians had failed to share their testimony and other evidence with Kyiv, even before the Russian invasion. Canada, Ukraine, Sweden and the UK have formed a International Coordination and Response Group, to negotiate with Iran about justice and reparations, to little effect so far. The group is thought to be taking Iran to the International Court of Justice (ICJ) but it would be a very slow process, and the ICJ does not deal with individual criminal responsibility.
Asked about a possible ICJ move, Marilyne Guèvremont, a spokeswoman for Global Affairs Canada, said “the Coordination Group has determined that further attempts to negotiate with Iran are futile at this time.”
“We are now focused on the subsequent actions to resolve this matter in accordance with international law,” Guèvremont added. “We will not rest until the families get the justice, transparency and accountability from Iran that they deserve.”
The families, however, have run out of patience. Hamed Esmaeilion, the president and spokesman of the Association of Families of Flight PS752 Victims, said: “It has been so slow and bureaucratic that after two years, we said: We have to try another path.”
The families’ legal strategy makes use of Article 15 of the ICC’s founding Rome statute, which allows “any individual, group, or organisation” to inform the prosecutor’s office of suspected crimes.
Ukraine has already given the ICC jurisdiction to investigate war crimes and crimes against humanity on its territory after November 2013, and in legal terms the Ukrainian airliner counts as national territory.
The shooting down of the plane followed the US drone strike killing Iranian general Qassem Suleimani on 3 January 2020, and a retaliatory Iranian missile strike against US bases in Iraq five days later. Therefore, the application to the ICC argues, an international armed conflict existed at the time, and the downing of the plane was therefore a war crime.
The families argue in their case that the plane was deliberately shot down PS752 despite indications of its civilian status, and that the Iranian government decided at a high level to keep the skies open, and not to issue any warning to airlines about the dangers. The motivation, the brief argues, was to deter US attacks and therefore Tehran was using civilian passengers and crews as human shields.
The brief also accuses Iran of “outrages upon personal dignity and pillage”, for failure to secure the crash site, the bulldozing of wreckage, the looting of valuables and the careless mixing of the victims’ repatriated remains.
Navaz Ebrahim lost her sister, Niloufar, her only sibling, who had gone to Iran from her home in London to celebrate her wedding. She and her groom, Saeed Tahmasebi Khademasadi, both perished in PS752 on their way to London to start a new life.
Niloufar’s baggage was returned but without any of the jewellery she took for her wedding or any of the couple’s wedding gifts, or the wedding photos that were visible in news reports of the crash site.
Far worse, when Niloufar and Saeed’s remains were finally sent back to Britain, DNA tests revealed there were body parts of other passengers inside the caskets.
“I cannot even put into words how much this has affected our family,” her sister, Navaz, said. “It completely ruined us. Our lives are completely destroyed.”
After the crash, Javad Soleimani went to Iran to bury his wife, Elnaz Nabiyi, in her home province of Zanjan. They had been living in Canada working on their doctorates in management together, planning careers and a family. Elnaz had gone back to Iran for a short trip to visit relatives.
The funeral was meant to be a strictly family affair but when he arrived, he found members of the Islamic Revolutionary Guard Corps (IRGC) and a mullah who was representing the supreme leader, Ali Khamenei. They proceeded to take over the funeral.
When the coffin arrived it had a plate on it was inscribed “Congratulations on your martyrdom”. The family had to fight to stop her being buried in the martyrs’ cemetery, as if she had died fighting for the Islamic Republic.
After Soleimani confronted the provincial IRGC commander and accused him of hijacking Elnaz’s funeral, he received a summons by the intelligence service. He did not attend and left Iran soon afterwards.
“After 32 months, we still don’t know the truth of what exactly happened on that night, and without closure and justice, it’s going to be very hard for families to move on,” Soleimani said.
Esmaeilion, the families association president, lost his wife, Parisa, and their nine-year-old daughter Reera, their only child. They had moved to Canada when Reera was six months old to start a new life and pursue careers as dentists. Parisa had taken Reera back to Iran for her sister’s wedding and they were on the way back home.
Iran returned none of Reera’s belongings, but seven months after her death a stranger approached him when he was out walking in a park near his house in Richmond Hill, Ontario, and told him he had her health insurance card. It had been sent to the wrong family.
Since becoming the voice of the association pushing for accountability, Esmaeilion has had repeated anonymous death threats, and a call from a stranger who said to him: “Let’s talk about the last moments of your wife and daughter.” The Canadian police have opened an inquiry into the harassment of the victims’ families.
For Esmaeilion and the other families the ultimate aim is for the ICC prosecutor, British lawyer, Karim Khan, to include the PS572 brief in his Ukraine war crimes investigation.
“I know he has a lot of cases on his table, and I understand it’s a complicated case,” Esmaeilion said. “But this was a war crime and this was a crime against humanity, so we expect them to open an investigation.”
