Published: 03 December 2020 Author: Stefan Talmon
Mahan Air is a privately owned Iranian airline which was founded in 1991. It is Iran’s second largest carrier and operates scheduled domestic and international flights to the Far East, Middle East, Central Asia, and Europe. At the start of 2019, Mahan Air regularly serviced destinations in four Western European countries: France, Germany, Italy, and Spain. The airline had operated direct flights between Tehran and Düsseldorf since 2003 and had offered air services between the Iranian capital and Munich since 2015. At the same time, Mahan Air had been subject to U.S. sanctions since October 2011. The United States accused the airline of providing financial, material, and technological support to Iran’s Islamic Revolutionary Guard Corps-Quds Force (IRGC-QF), which had been designated by the United States in 2007 for providing material support to terrorism.
The United States had long called on Germany to ban the airline. On 14 September 2018, the U.S. ambassador in Berlin, Richard Grenell, wrote on Twitter: “Why is Mahan Air allowed to fly into Munich and Düsseldorf? I’m going to keep asking every day. Read the fact sheet on them for yourself.” The fact sheet mentioned was published on the U.S. Embassy’s website the same day. It read in part:
“Mahan Air has flown IRGC-QF operatives, weapons, equipment, and funds to international locations to support Iranian terrorist proxy groups. It has been used by the IRGC-QF to fly personnel to and from Iran and Syria for military training, facilitating covert travel of IRGC-QF members by bypassing normal security procedures and flight manifests. […]
Mahan Air has routinely flown fighters and materiel to Syria to prop up the Assad regime. Iran’s military support for Assad has contributed to mass atrocities in the country, the displacement of millions across the region, and exacerbated the greatest movement of refugees and internally displaced persons since WWII.
Since designating Mahan Air in 2011, the United States has repeatedly raised our concern that Mahan Air enjoys landing rights and services at German airports.
Mahan Air currently operates twice weekly flights to Munich and four-times weekly flights to Düsseldorf. […]
Iran’s use of Mahan Air to support the Assad regime has contributed to incredible human suffering, violence, and political instability felt across the world. We call on all governments to deny the airline overflight clearance and landing rights.”
U.S. persistent political pressure seemed to have some effect. On 21 December 2018, German tabloid Bild broke the news that the Federal Government planned to ban Mahan Air from January 2019. The decision was reportedly taken at the highest level of government. That the matter was sensitive is shown by the fact the order banning the airline was apparently redrafted nine times between 10 December 2018 and 21 January 2019.
On 21 January 2019, the German Federal Aviation Office ordered the suspension of Mahan Air’s operating license and enjoined the airline from carrying out scheduled air services to and from the Federal Republic of Germany with the proviso that all flights taking place at the time of notification of the decision were allowed to be completed. Federal Foreign Minister Heiko Maas commented on the suspension of the operating license on Twitter: “This necessary decision is based on our security interests. The airline carries equipment and individuals to war zones, above all to Syria.” The suspension was also announced at the regular government press conference on the same day. The spokesperson for the Federal Ministry of Transport stated:
“The Federal Aviation Office sent Mahan Air a decision, effective as of 21 January 2019, ordering the immediate suspension of its operating license for scheduled air services from and to Germany. The decision will take effect on the same day; that is, today.”
The spokesperson for the Federal Foreign Office added the following explanation:
“In the opinion of the Federal Government, this is immediately necessary to safeguard the foreign and security policy interests of the Federal Republic of Germany. Mahan Air has airlifted equipment and personnel to war-torn regions in the Middle East, in particular to Syria. […].
At the same time, we have always said that Iran’s destabilizing activities in the region, as well as Iran’s ballistic missile program, are unacceptable. It is therefore in the Federal Republic’s foreign policy interest not to allow air traffic to Germany by companies that support the war in Syria and help to suppress people in war zones.
In addition, in the recent past serious indications have emerged with regard to the activities of Iranian intelligence agencies in European States. Therefore, this decision does not mean a paradigm or policy change, but we are pursuing a comprehensive approach. This includes that we reserve the right to react to negative developments.
As far as we know, the air transports that I mentioned earlier are regularly carried out to Syria and war zones in the Middle East at the insistence of the Iranian Revolutionary Guards. Since this outfit has frequently been involved in terrorist acts, it cannot be ruled out that by way of Mahan Air, transports to Germany could be carried out which would impair German security concerns. The Iranian side was also informed in advance.”
In response to the question of whether the measure was taken in response to political pressure by the United States, the cabinet spokesperson stated:
“The German decision is of course based on the German assessment of our security concerns. Of course, as my colleague said, we are in constant exchange with our European partners and also with the United States. The simple fact is that it cannot be ruled out that this airline could also be used to carry out transports to Germany that would impair our security interests. This is especially true against the background of terrorist activities, intelligence on terrorist activities by Iran and Iranian agencies in Europe in the recent past.”
The decision was welcomed by the U.S. ambassador to Berlin, who said that months of pressure from the United States had led Germany to ban Iran’s Mahan Air. In a major opinion piece on U.S. news channel Fox News, Ambassador Grenell wrote:
“To safeguard its own national security, the German government took the decisive step Monday, January 21, to deny future landing rights to the Iranian airline Mahan Air, which had operated multiple weekly flights to the Munich and Düsseldorf airports. We applaud the government’s decision, which rightly recognizes the airline’s role in enabling the Iranian regime’s support for terrorist proxies serving the Assad regime and spreading violence and terror across the region – with direct effects on European security.
Monday’s announcement was a resolute decision to protect Germans and Europeans, but also to stand with the displaced people of Syria. This decision denies support to the Assad regime, and deals a blow to Iran’s support for regional terror organizations, including Hezbollah. […].
Mahan Air continues to play a critical role in exporting the Iranian regime’s malign influence throughout the region. It is complicit in facilitating state-sponsored terrorism.
The United States fully supports Germany’s leadership on this issue, and calls on other nations to end Mahan Air’s access to foreign airports. The United States sanctioned Mahan Air in 2011 for providing financial, material and technological support to the IRGC-QF. We hope the EU will now enact its own sanctions on Mahan Air. […].
Iran’s use of commercial entities such as Mahan Air to perpetuate terror and violence will be greatly inhibited by Germany’s decision. This announcement by the government of Germany sends a clear message: Iran must end its support of terror and destabilizing behavior in the Middle East, Europe, and around the globe.”
Iran’s Foreign Ministry spokesperson, on the other hand, expressed regret about the decision, which he described as “hasty and unjustifiable”. He said that the move was likely based on wrong information disseminated by certain circles which were dissatisfied with Iran-German relations. He expressed the hope that the German Government would revise the decision in due course. The Foreign Ministry’s reaction was rather restrained and focused on the relations between the two countries. By contrast, the head of Iran’s Civil Aviation Organization strongly condemned the decision as a violation of international law, saying:
“The Civil Aviation Organization considers the German government’s decision to suspend Mahan Air’s operating license to that country unjustifiable and not professional. The organization believes this decision is a result of political pressures and issues unrelated to aviation and the Mahan company. […] The suspension is in line with the economic war that’s been waged against the Iranian nation.”
This measure is a blatant violation of all international rules, including the Chicago Convention, and there is no doubt that it has been adopted under the U.S. pressures.
Germany’s decision to sanction Mahan Air company is political and untechnical and the Islamic Republic of Iran has filed a strong protest at Berlin and the International Civil Aviation Organization (ICAO).”
In March 2019, the Federal Government stated in reply to a parliamentary question that the operating license would be suspended “until the time when the interests of the Federal Republic of Germany will no longer be impaired by Mahan Air.”
Mahan Air applied to the administrative courts for judicial review of the decision to suspend its operating license with immediate effect. In its submissions to the court defending its action, the Federal Aviation Office argued that according to the German Federal Aviation Act, an operating license could be suspended if the license would impair “public interests”. The Federal Aviation Office continued:
“Public interests included foreign and security policy interests. In the present case, these interests were impaired because it became known that the applicant was engaged in air transport of equipment and personnel who aided acts of war in the Middle East – in particular in Syria – and helped to suppress people in war zones. It was in the foreign policy interest of the Federal Republic of Germany not to allow air traffic to Germany by companies that support acts war in this way. According to the information available to the Federal Aviation Office, the aforementioned air transports to Syria were regularly carried out at the insistence of Iran’s Revolutionary Guards. Since this outfit had been involved many a times in acts of State terrorism, it could not be ruled out the applicant would also carry out such transports to Germany which would impair German security concerns. In this context it was also of interest that in the recent past important evidence had emerged that Iran had been planning acts of State terrorism in European States (planning of an attack on the opposition Iranian People’s Mujahideen Grand Gathering in Paris in June 2018, planning of an attack on members of the Iranian opposition in Denmark in October 2018).”
The Federal Aviation Office also justified the immediate execution of the decision as follows:
“The measures taken could not be delayed in light of the legal interests in question which required particular protection. In particular, a further delay in the form of granting an transitional period for the ending of scheduled air services by the applicant was incompatible with the foreign and security policy interests of the Federal Republic of Germany, since it could not be ruled out that every single flight operated by the applicant would also include such transports to Germany which could affect German security interests. It could not be ruled out that important legal interests would be directly endangered by the applicant continuing to operate – even individual – scheduled flights from Iran to the Federal Republic of Germany. Furthermore, there was an overriding public interest in the execution of the decision in view of the fact that the temporary continuity of the operating license and the resulting operation of scheduled air services by the applicant from Iran to the Federal Republic of Germany would entail a risk to the reputation of the Federal Republic of Germany because of the indirect toleration of support for the Syrian regime and human rights violations.”
In German law, the case turned on the interpretation of the term “public interests” in the Civil Aviation Act. Mahan Air argued that the term was to be understood narrowly in the sense of “public transport interests”. The Federal Aviation Office, on the other hand, submitted that the term also included general political interests. The Higher Administrative Court of Lüneburg followed the government’s interpretation, holding that public interests included “general political interests” and that the “security and foreign policy interests of the Federal Republic of Germany are to be regarded as such general political interests.” The Court consequently upheld the immediate execution of Mahan Air’s operating license.
To the extent that the suspension of Mahan Air’s operating license was directed at Iran, the measure constituted a classic act of retorsion – an unfriendly but lawful act taken in response to another State’s unfriendly or illegal act. There was no suggestion that Iran had violated international law vis-à-vis Germany. In particular, there was no evidence of an Iranian act of State terrorism in or against Germany. The measure was taken to express Germany’s displeasure and disagreement with Iran’s destabilizing activities in the Middle East and its State terrorist activities in Europe which were considered to be “negative developments”.
The suspension of Mahan Air’s operating license may have constituted an unfriendly act towards Iran, but it was not an illegal act under international law. Germany, like any other State, has complete and exclusive sovereignty over the airspace above its territory. Aircraft of other States thus need permission to operate scheduled or unscheduled air services over or into German territory. For example, Article 6 of the Convention on International Civil Aviation (Chicago Convention) provides:
“No scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization.”
Such permission is usually given in bilateral air services agreements but can also be given on an ad hoc basis. If such an agreement had been in place, the suspension of the operating license for the reasons given would most likely have constituted an illegal act because of the violation of the agreement. However, no bilateral air services agreement was in force between Iran and Germany in January 2019. The two countries had concluded such an agreement in 1961. Under that agreement Germany had granted Iran the right to designate a certain number of airlines to operate scheduled air services on agreed routes between Iran and Germany. Germany had also agreed to grant the designated Iranian airlines the necessary operating licenses. The revocation of operating licenses or the suspension of traffic rights of designated airlines was limited to certain specified, traffic related reasons. Under that agreement, the suspension of Mahan Air’s operating license would probably have been illegal. However, Iran had terminated the agreement on 18 August 1971. A new air services agreement was initialled on 1 October 2015 but had not yet been signed. Under the new agreement, designated Iranian airlines, including Mahan Air, would have been entitled to up to 30 weekly passenger flights to Germany. But, as the new agreement was not yet in force, Iran did not have any right to air services between the two countries under international law that could be violated. Contrary to the assertion of the Iranian Civil Aviation Organization, there was also no question of a violation of the Chicago Convention, which in Article 5 provides only for a right of non-scheduled flights but not a right to scheduled air services.
The measure taken against Mahan Air was noteworthy for two reason. First, it was justified on the ground that the operation of scheduled air services by the airline from Iran to Germany entailed a risk to Germany’s “security interests” as well as its “reputation”. Second, it is a rare example of a national, unilateral sanction by Germany which was imposed only days after, and in addition to European sanctions against Iran. The German example was followed in March 2019 by France, in December 2019 by Italy and in March 2020 by Spain, meaning that Mahan Air was banned from all Western European countries.
The sanctions against Mahan Air also had another political dimension. On 14 July 2015, Iran, the P5+1 countries – the United States, the United Kingdom, France, Russia, China, and Germany – and the European Union (EU) had agreed on a Joint Comprehensive Plan of Action (JCPoA) that sought to ensure that Iran’s nuclear programme would be exclusively peaceful. Under the JCPoA, Iran agreed to limit its uranium enrichment activities in return for United Nations Security Council, European Union and United States nuclear-related economic sanctions against the country being lifted. Germany was a strong supporter of the JCPoA. When the United States decided on 8 May 2018 to withdraw from the arrangement and to reimpose sanctions, Germany went in direct opposition to the U.S. policy of maximum pressure against Iran and tried to preserve the JCPoA. At the same time, Germany wanted to show that it shared the United States’ concerns regarding Iran’s destabilizing regional activities. The sanctions against Mahan Air were thus a way to mend fences with the United States by taking a tougher stance against Iran while, at the same time, preserving the JCPoA. It was most likely this “foreign policy interest” that the Foreign Office spokesperson alluded to when explaining the reasons for the sanctions decision. This foreign policy aspect was probably well understood in Tehran, which explains the muted reaction by Iran’s Foreign Ministry.
Category: Coercive measures short of the use of armed force
