I do not at all want to trivialize the human tragedy that is the downing of Malaysia Airlines flight MH17 over Ukraine last week, nor for that matter the parallel unfolding tragedies on the ground in Ukraine and in Israel and Gaza, by engaging in some premature lawyerly analysis. But, in reading on the unfolding story of the aircraft’s demise, I nonetheless couldn’t help but think how that story is very likely to find its epilogue in an international courtroom. The facts of MH17’s destruction are obviously far from clear, and are not going to become much clearer in the near future, but the number of possible scenarios is limited – the aircraft was (most likely) destroyed by Ukrainian rebels with Russian-supplied weapons, or (less likely) by either Ukranian or Russian state agents (who may have acted ultra vires). And not only did the downing of MH17 deepen a major existing international crisis, but it directly affected a number of states other than Ukraine and Russia, such as Malaysia and the Netherlands, not to mention the families of the victims themselves. This raises both the incentives and the opportunities for international litigation, in addition to whatever proceedings may ensue before domestic courts or international fact-finding missions.
Consider, first, the possibility that a case or cases regarding MH17 might end up before the European Court of Human Rights. Both Russia and Ukraine are of course parties to the ECHR, and readers will recall that one of the first acts of the new government in Kiev in response to the Crimea crisis was to lodge an inter-state application against Russia in Strasbourg, on which the Court ordered provisional measures. It is perfectly possible for the downing of MH17 to be an issue in the existing or a new inter-state case, or indeed one brought by a third state, such as the Netherlands, since the majority of the victims had Dutch nationality. And obviously the families of the victims may also bring individual applications against either Russia or Ukraine.
In addition to whatever direct involvement these states may have had in the destruction of the aircraft, they could also be held liable for other internationally wrongful acts. For example, Ukraine could be responsible for failing to secure the right to life of the victims and failing to comply with its substantive positive obligations under Article 2 ECHR by deciding not to close the relevant airspace for civilian traffic. Russia could be held responsible for providing the rebels with anti-aircraft weaponry without sufficient safeguards (e.g. appropriate training of the missile crews), thus creating the risk that this weaponry could be used against civilian targets. Both states could be held responsible for failing to secure an effective investigation into the incident. Obviously the facts could yet develop and some very complex preliminary issues could arise (e.g. the extent of Russia’s control over the Ukrainian rebels and the question of the ECHR’s extraterritorial application), but all these points seem arguable.
Second, consider the possibility of the involvement of the International Criminal Court. The destruction of MH17 undoubtedly took place in the context of an armed conflict (the existence of which the ICRC appears to have made clear to the parties). That conflict is prima facie a non-international conflict between the Ukrainian government and the Donetsk rebels, which satisfies the Tadic criteria of intensity and organization. Depending on the extent of Russia’s control over the rebels, the conflict could also be qualified as an international armed conflict between Russia and Ukraine. But regardless of how the conflict is classified a deliberate attack against civilians or civilian objects would constitute a war crime, for which the relevant individuals would be criminally responsible directly under international law.
Now, neither Ukraine nor Russia are states parties to the Rome Statute. However, Ukraine has recently amended its Constitution so as to allow for the ratification of the Rome Statute, and indeed has already made an ad hoc declaration under Article 12(3) of the Statute accepting the Court’s jurisdiction for crimes committed on its territory from November 2013 to February 2014. Such declarations can be retrospective, and nothing would formally stop Ukraine from making another such declaration for the attack on MH17.
As the facts become clearer (as they hopefully will), the international pressure for the prosecution of those responsible will only mount. It’s certainly not inconceivable that the ICC would become involved, or that we have some kind of ad hoc solution a la Lockerbie (a Ukrainian court sitting in the Hague?). Time will tell, but hopefully international law and international courts will provide at least some contribution to achieving a modicum of justice for the hundreds of victims of flight MH17.