It’s now clear(er) that Ukrainian International Airlines flight PS752 was hit by Iranian missiles soon after it took off from Tehran. One line of argument is that this was done ‘unintentionally’ or ‘accidentally’. What might that mean?
Consider some options:
A bolt of lightning hits the Iranian missile systems, causing two missiles to fire and by freakish mischance they hit the plane
A mad dog is allowed to enter the missile control system and it bites a soldier, causing a reflex action that triggers the missiles that had been aimed at the airliner for a training exercise
The missile equipment is faulty, so the operators are told by their computers that PS752 is an enemy aircraft, and they shoot it down
The operators are aiming at something else and intending to destroy it but are incompetent and miss, blowing up PS752 instead
The operators get in a panic and deliberately shoot down PS752 thinking that it’s an enemy aircraft
The missile operators know that PS752 is a civilian plane, but it does a strange unexpected manoeuvre causing the operators to think that it’s on a hostile mission, so they shoot it down
And so on. The point is that when we talk about ‘intention’ or ‘accident’ there are all sorts of possible combinations of mental states and facts and chains of consequences.
The law has long pondered what it means to act ‘intentionally’ or to do something ‘accidentally’. How to ascribe responsibility without clear principles/rules for identifying how that works in human practice? Let’s recall the famous dictum by Bowen LJ in the 1885 case Edgington v Fitzmaurice:
The state of a man’s mind is as much a fact as the state of his digestion …
Hmm. Is that so? Or is it rather that there a true fact of the matter when it comes to X’s intention at moment A, but it’s impossible for us (and maybe for X himself/herself) to know it, so we have no choice but to look instead at what X did and what resulted from it?
The law has so many examples of grappling with this issue. What if I grab an umbrella from a restaurant umbrella stand on a rainy night believing that it belongs to someone else (ie that I know that I’m intending to steal it), but it turns out that I have taken my own umbrella that I left there there months earlier? Can you ‘intend’ (subjectively) to steal what is (objectively) your own property?
English law painstakingly identifies mistakes of fact and mistakes of law and combinations thereof. But underlying all that are complex and often implicit if not incoherent ideas of causation.What sort of mistake goes to affecting one’s intention and so allows due attribution of responsibility?
Lo! The beyond awesome case of R v Collins:
Let me relate the facts. Were they put into a novel or portrayed on the stage, they would be regarded as being so improbable as to be unworthy of serious consideration and as verging at times on farce…
… She also saw in the moonlight that his hair was blond. She thereupon leapt to the conclusion that her boyfriend, with whom for some time she had been on terms of regular and frequent sexual intimacy, was paying her an ardent nocturnal visit. She promptly sat up in bed, and the man descended from the sill and joined her in bed and they had full sexual intercourse.
But there was something about him which made her think that things were not as they usually were between her and her boyfriend. The length of his, hair, his voice as they had exchanged what was described as “love talk,” and other features led her to the conclusion that somehow there was something different.
So she turned on the bedside light, saw that her companion was not her boyfriend and slapped the face of the intruder, who was none other than the defendant. He said to her, “Give me a good time tonight,” and got hold of her arm, but she bit him and told him to go. She then went into the bathroom and he promptly vanished.
The complainant said that she would not have agreed to intercourse if she had known that the person entering her room was not her boyfriend. But there was no suggestion of any force having been used upon her, and the intercourse which took place was undoubtedly effected with no resistance on her part…
Here there are two intertwined legal issues of ‘intention’. Did he intend to force himself upon her unlawfully, and if so when? And did she intend to canoodle with him as such, or with someone else?
Thus the shooting down of PS752.
Back in the USA the usual suspects are claiming that this disaster happened ‘in the fog of war’ and/or a ‘crossfire’ and/or that the attack that killed Suleimani created such an ‘understandable’ climate of stress in Iran that an ‘accident’ like this was ‘bound to happen’. In other words, that the ‘real’ blame for this falls on the White House and not the Iranian regime itself.
Piffle. This sort of claim may have some banal rhetorical impact in the anti-Trump echo-chamber, but it’s simply a post hoc ergo propter hoc fallacy. It cherry-picks President Trump’s Suleimani decision among all the other possible and more immediate explanations and hoots that THAT is the key one.
In this case it’s next to impossible to accept that the missile operators did not mean to shoot at PS752 and blow it up. They did NOT shoot it down ‘accidentally’ or ‘unintentionally’. They meant to shoot it down. And they duly did so. The only issue is why they thought that it was a legitimate military target. Were they negligent? Reckless? Panicked? Drunk? Using dud equipment?
Or did PS752 itself do something so unexpected that the missile operators felt that they had no choice but to treat it as a hostile aircraft and blow it up?
The answer is easy to find out if all concerned want to find it out and make available to independent analysts all the missile equipment and operators and computer records and access to the crash site, where the wreckage and remains are handled according to agreed international standards.
Will Iran behave honourably and do that? One suspects not.