Russian Agents Charged with Downing of MH17; MH17 Cases in Strasbourg

Yesterday international investigators charged three Russian nationals and one Ukrainian national before Dutch criminal courts for the 2014 downing of Malaysian Airlines flight MH17 over Ukraine. According to a report in the Guardian:

The suspects were named as Igor Girkin, a former colonel of Russia’s FSB spy service; Sergey Dubinskiy, employed by Russia’s GRU military intelligence agency; and Oleg Pulatov, a former soldier with the GRU’s special forces spetsnaz unit. All were Russian soldiers previously sent abroad.

A fourth suspect, Leonid Kharchenko, is a Ukrainian. He led a military combat unit in the city of Donetsk as a commander, it was alleged.

Girkin was minister of defence in the Moscow-backed Donetsk People’s Republic (DNR). He was the commander of the DNR when the plane was shot down on 17 July 2014. Dubinskiy served as Girkin’s deputy in the DNR, and Pulatov was Dubinskiy’s deputy. Kharchenko was under their command.

Investigators said the soldiers “formed a chain linking DNR with the Russian Federation”. This link was how the separatists obtained heavy equipment from Russia including the Buk launcher used to fire at MH17 with “terrible consequences”.

The accused did not push the button themselves but were responsible for bringing the anti-aircraft system to eastern Ukraine. They could therefore be held criminally liable and charged with murdering 298 people, investigators said.

Readers will recall that last year the investigators and the Dutch and Australian governments formally attributed the downing of MH17 to Russia. Yesterday, however, saw the first criminal charges brought against specific individuals. Obviously, it remains highly unlikely that any of them will face trial in the Netherlands in the foreseeable future, unless they are unwise enough to travel abroad, although they will likely be tried in absentia.

There have also been interesting developments about litigation regarding MH17 in the European Court of Human Rights. Back in 2014 I suggested that the families of the victims may decide to bring cases against both Russia and 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.

At least two such cases have indeed been brought and have been communicated by the Court to the respondent governments for pleadings on admissibility and merits.

First, in 2016 the Court communicated to Ukraine application no. 73776/14, Ioppa v. Ukraine, and three other joined applications. According to the Court:

Relying on Article 2 of the Convention, the applicants claim that the Ukrainian authorities failed to protect the relatives’ life by not completely closing the airspace above the ongoing armed conflict in the region through which the MH17 flight passed. In particular, the applicants complain that failure to close the airspace was intentional, that the authorities knew of the danger of flights above the military conflict zone but undertook no action to close the airspace. The applicants submitted that the Ukrainian authorities’ intentional failure to close the airspace above the military conflict zone resulted in death of the applicants’ relatives.

Clearly, the applicants in the case would have their work cut out for them to actually prove their allegations. It is also reasonably clear from the two questions that the Court directed to the parties, which are about whether the applicants have exhausted domestic remedies in Ukraine, that it is unlikely that this application will ultimately be found admissible. The Court asked no questions on the substance of the complaints or on the facts. I am unaware of what remedies the applicants pursued in Ukraine, or of what the status of case currently is, except that a HUDOC search does not show a decision on (in)admissibility, even though it’s been three years since the application was communicated. It thus seems most likely that the Court is keeping this case in a drawer somewhere, but that it’ll in the end declare it inadmissible (if readers have any further information to share on this case, it’d be very much appreciated).

Then, this April, the Court communicated a second MH17 case, this time to Russia – applications nos. 25714/16 and 56328/18, Ayley and Others against Russia and Angline and Others against Russia. This is the big one, directly invoking Russia’s responsibility for shooting down the plane. Legally, however, the complaints are nuanced and multi-faceted, allowing and perhaps even requiring the Court to make some significant developments in its case law.

With regard to the substantive aspect of the right to life under Article 2 ECHR, the applicants argue that:

there has been a substantive violation of that provision in that the Russian Federation was responsible for the downing of flight MH 17 through its army officers or other officials or by virtue of its control over and support for the Russian separatists’ forces, as well as because it had effective control and exercised some governmental power over the relevant part of the territory of Eastern Ukraine. In particular, it is alleged that, while knowing or being obviously in a position to know that civilian aircraft flew over the relevant area and could be reached by a missile fired from a BUK launching facility, the Russian Federation moved its BUK launch facility to the territory of Ukraine and was responsible for one of the following scenarios: (a) was actively involved in the decision to fire the BUK missile at the airplane; or (b) despite the presence of its military during the firing of the missile did not prevent the firing of the missile; or (c) made the BUK launching facility and missile available to the separatists’ forces without controlling its use; or (d) did not keep the BUK missile and launch facility under its control;

Effectively, the applicants have given the Court four different versions of the case. The first is that Russia was ‘actively involved’ in the decision to shoot down the plane, i.e. the missile strike was directly attributable to Russia. The second is that Russia could have prevented the firing of the missile by pro-Russian non-state actors, but failed to do so – this is framed as a violation of a positive, rather than of a negative obligation. Third, that Russia was complicit in the downing of the aircraft, by providing the separatists with a weapons system, without controlling how that system would be used – note the immediate implications of this argument for any state giving or selling weapons systems to other states or non-state actors, e.g. the UK selling weapons to Saudi Arabia knowing that Saudi Arabia would use them to kill civilians in Yemen. Fourth, that Russia failed to control its missile system, thus passively allowing a non-state actor to misuse it.

Clearly, it’ll very much depend on the facts and the available evidence which of these avenues the Court will ultimately pursue. The findings of the joint investigative team would very much support the first option, but it’s equally possible that the Court will approach the case from a legally more innovative complicity perspective or from the standpoint of positive obligations.

With regard to the procedural aspect of Article 2, the applicants do not only invoke Russia’s responsibility for failing to effectively investigate the downing of the aircraft, but also its responsibility for failing to cooperate with the international investigation. The Court has recently examined the duty to cooperate in the Grand Chamber judgment in Güzelyurtlu and Others v. Cyprus and Turkey. (I have also recently discussed that case with regard to the duty of state to cooperate in the investigation of the murder of Jamal Khashoggi – incidentally yesterday the UN Special Rapporteur on extrajudicial executions published her full report on Khashoggi’s death, which is very rich and detailed and which I’ll write about next week, after I’ve had the time to digest it). In its General Comment 36, the Human Rights Committee has also emphasized the duty of states to cooperate as a separate limb of the procedural obligation to investigate an unlawful death.

Finally, a huge aspect of the case is the issue of the extraterritorial application of the ECHR, since MH17 was shot down outside Russia’s own territory. The Court thus asked the parties to address whether:

the alleged violations of the Convention and its Protocols fall within the “jurisdiction” of the Russian Federation within the meaning of Article 1 of the Convention? In particular, did the Russian Federation exercise “authority and/or effective control” over the relevant eastern regions of Ukraine at the time of the downing of flight MH17, through their armed forces or a subordinate local administration or in collaboration with local armed forces? In this respect, what was the extent of the military and logistic Russian presence in July 2014? In addition, were agents of the Russian State involved, directly or indirectly, in the downing of flight MH17?

Obviously, this issue potentially runs directly against the Court’s (yet to be completely overturned) holding in Bankovic that a kinetic use of lethal force without territorial control does not suffice to create Article 1 jurisdiction, even if the optics of this case are very different. There are several possible approaches that the Court could take here. First, it could evade the Bankovic problem by finding that Russia did, in fact, control the area in which the downing of the aircraft took place, per the spatial model of jurisdiction. Doing so, however, would require the Court to explore in sufficient detail the links between Russia and the pro-Russian separatists in Eastern Ukraine – something which it will likely have to do anyway in other pending cases on the Ukrainian conflict, especially the inter-state ones. Second, the Court could take Bankovic head on and overrule it either totally or partly. Doing so would however have systemic consequences in the expansion of the ECHR to all or most extraterritorial uses of forces by European states. I personally think that this would be a very good thing, and this seems like an excellent case to finally overturn Bankovic, but it is more likely that the Court will take the more cautious first route if the facts allow it. Third, the Court could apply Bankovic and find the MH17 case inadmissible. This would not only be the legally wrong thing to do, but would also look so bad politically that I very much doubt this could really happen; the exhaustion of effective domestic remedies is however a pressing issue here as well.

In short, the Strasbourg litigation on MH17 is hugely significant, both for the individual applications and for broader questions of principle. Obviously it remains to be seen just how quickly the Court will pursue the second case – it may well languish for many more years without much apparent progress.