Introduction
This memo addresses the tragic incident involving flight FLY SIERRA LINE, a commercial airline struck by a missile from the Nigerian Military on 5 January 2025 while in Nigerian airspace, resulting in a crash in Accra, Ghana. With 199 fatalities among the 200 individuals on board, including nationals from Sierra Leone, the United Kingdom, the United States, China, and the Netherlands, this event has heightened international tensions. As a principal legal consultant at the Centre for International Legal Studies in Sierra Leone, this analysis examines the legality of the Nigerian Military’s actions, the responsibility for the incident, the jurisdiction of affected states (including Ghana) to institute legal action, and the potential immunity of the Nigerian Military under international law. Drawing on principles of public international law, this memo provides a structured assessment of the legal framework and its implications for accountability and redress.
Legality of the Nigerian Military’s Action
The use of force against a civilian aircraft by a state’s military raises significant concerns under international law, particularly regarding the prohibition of unlawful interference with civil aviation. The 1944 Chicago Convention on International Civil Aviation, to which Nigeria is a party, establishes that states must refrain from using weapons against civil aircraft in flight (Article 3bis). Unless the aircraft posed a direct and imminent threat to national security, such an action is prima facie unlawful. Moreover, the principle of proportionality under customary international law, as reflected in the International Court of Justice (ICJ) ruling in the Nicaragua case, requires that any use of force must be necessary and proportionate to the threat (ICJ, 1986). Without evidence suggesting that FLY SIERRA LINE endangered Nigerian sovereignty or security, the missile strike appears to contravene these legal standards. Additionally, the failure to issue a warning or attempt interception before resorting to lethal force further undermines the legality of this act under international norms.
Responsibility for the Incident
Under international law, state responsibility is governed by the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA, 2001). Article 1 of ARSIWA stipulates that a state is responsible for an internationally wrongful act if it can be attributed to the state and constitutes a breach of an international obligation. In this case, the missile strike was carried out by the Nigerian Military, an organ of the state, rendering the act directly attributable to Nigeria under Article 4 of ARSIWA. The breach of obligations under the Chicago Convention and customary international law regarding the protection of civilian life further establishes Nigeria’s responsibility. Consequently, Nigeria bears the obligation to provide reparations, including compensation to the victims’ families and affected states, as outlined in Article 31 of ARSIWA. The scale of loss—199 lives across multiple nationalities—amplifies the gravity of this responsibility.
Jurisdiction of Affected States to Institute Legal Action
The question of jurisdiction involves determining whether affected states, including Ghana, Sierra Leone, the UK, the US, China, and the Netherlands, can initiate legal proceedings against Nigeria or its military. Under international law, jurisdiction over such incidents is multifaceted. Firstly, the principle of nationality allows states to seek redress for harm to their citizens. Thus, the states of the deceased passengers have a legitimate basis to bring claims against Nigeria for the loss of their nationals, potentially through diplomatic channels or international adjudication.
Secondly, Ghana, as the state where the crash occurred, holds territorial jurisdiction over the incident’s aftermath. Under customary international law, states have sovereignty over events within their territory, which could enable Ghana to initiate investigations or legal action relating to the crash site and its consequences. However, the act causing the crash occurred in Nigerian airspace, complicating Ghana’s ability to directly hold Nigeria accountable for the missile strike itself.
Furthermore, affected states may pursue legal action through international bodies such as the International Civil Aviation Organization (ICAO), which oversees disputes under the Chicago Convention, or the International Court of Justice (ICJ), provided Nigeria consents to the court’s jurisdiction under Article 36 of the ICJ Statute. While Nigeria’s consent is not guaranteed, states may also explore diplomatic negotiations or arbitration as alternative mechanisms for dispute resolution. Therefore, while jurisdiction exists on multiple grounds—nationality, territoriality, and international frameworks—the practicality of legal action depends on political will and Nigeria’s cooperation.
Immunity of the Nigerian Military
The issue of immunity for the Nigerian Military hinges on the distinction between state immunity and individual accountability. Under customary international law, codified in the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (though not yet in force), states generally enjoy immunity from the jurisdiction of foreign courts for acts of a sovereign nature (acta jure imperii). The missile strike, conducted by the Nigerian Military as an organ of the state, arguably falls within this category, potentially shielding Nigeria from lawsuits in foreign domestic courts. However, this immunity is not absolute; exceptions exist under customary law for grave breaches of human rights or international humanitarian law, though these are less clearly applicable to peacetime incidents involving civilian aircraft.
At the individual level, military personnel responsible for the strike may invoke functional immunity, protecting state agents from prosecution for official acts. However, as noted by Cassese (2008), such immunity does not apply to international crimes or gross violations of human rights. While the incident does not unequivocally constitute an international crime, the scale of civilian casualties could prompt calls for accountability through mechanisms like the International Criminal Court (ICC), though jurisdiction would depend on referral by the UN Security Council or Nigeria’s acceptance of ICC authority, which is unlikely given its limited engagement with such processes.
Moreover, state immunity does not preclude international responsibility under ARSIWA, meaning that while the Nigerian Military may evade direct prosecution in foreign courts, Nigeria as a state remains liable for reparations and diplomatic consequences. Indeed, immunity serves as a procedural barrier rather than a substantive defence against wrongdoing, leaving room for affected states to pursue accountability through non-judicial means, such as sanctions or UN resolutions.
Conclusion
In summary, the missile strike by the Nigerian Military on FLY SIERRA LINE constitutes a likely violation of international law under the Chicago Convention and principles of proportionality, rendering the action unlawful. Nigeria bears state responsibility for this wrongful act, attributable to its military, and is obligated to provide reparations to the affected parties. Jurisdiction to pursue legal action exists for multiple states based on nationality and territorial principles, with Ghana holding a unique position due to the crash occurring within its borders, though practical challenges in enforcement persist. While the Nigerian Military may benefit from state and functional immunity in foreign courts, this does not absolve Nigeria of international responsibility or preclude alternative accountability mechanisms. The implications of this incident highlight the complexities of enforcing international law in cases of military overreach, underscoring the need for diplomatic dialogue and robust international cooperation to ensure justice for the victims and prevent future tragedies. Ultimately, the resolution of this case will depend on the willingness of states to navigate the intricate balance between legal norms and geopolitical realities.
References
- Cassese, A. (2008) International Law. 2nd ed. Oxford University Press.
- International Court of Justice (1986) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14.
- International Law Commission (2001) Draft Articles on Responsibility of States for Internationally Wrongful Acts. United Nations General Assembly.
- United Nations (1944) Convention on International Civil Aviation (Chicago Convention). International Civil Aviation Organization.
- United Nations (2004) Convention on Jurisdictional Immunities of States and Their Property. United Nations General Assembly.
