The Downing of MH17 and the Potential Involvement of International Courts

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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.

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    James Summers says

    July 23, 2014

    Marko thank you for a very interesting piece.

    There might also be scope for ICJ jurisdiction. Under the Montreal Convention 1971, to which both Ukraine and Russia are parties, Article 14(1) provides that if negotiations on the interpretation or application of the Convention have not been effective after six months they can be submitted to arbitration and failing that the ICJ. Ukraine under articles 5 and 7 has an obligation to prosecute or extradite alleged offenders of an act of violence that destroys an aircraft on its territory as well as their accomplices. Without agreement between the two, issues of application and interpretation that could be brought before the Court might include: whether Russia by its support for insurgents in Eastern Ukraine is engaged in unlawful action that prevents Ukraine from fulfilling its obligations under the Convention or alternatively whether Russia has sufficient control over the territory that it has this obligation itself. There may also be the question of accomplices and whether it could include agents of the Russian state, if Russia did provide the missile system.

    Marko Milanovic says

    July 23, 2014

    Many thanks for the comment James. Daniel Wisehart also writes with a suggestion that the ICJ's jurisdiction could possibly be founded in the Terrorism Bombing Convention.

    ruth wedgwood says

    July 25, 2014

    Your readers may be interested in this short piece from The American Interest magazine (whose title is not meant to preclude a more general global interest!)
    See

    Shooting in the Air
    Ruth Wedgwood

    Russia’s operatives could be taken to the International Criminal Court for their role in the downing of flight MH17 over Ukraine. Even ICC skeptics in America ought to be open to this approach.

    Published on July 23, 2014

    At the height of the Soviet empire, the rule of law enjoyed little favor among apparatchiks in power. Arthur Koestler captured the point for English-speaking audiences in his ice-cold novel Darkness at Noon, describing a defendant whose crimes had to be concocted and confessed in order to purge anti-Soviet sentiment. Human rights (and the rule of law) were seen as bourgeois artifacts.

    The intimacy of Koestler’s story added to its power, for it was modeled on the demise of Lenin’s own revolutionary protégé, Grigory Zinoniev, abruptly demoted to a non-person and condemned as an enemy of the state. Many tens of thousands of dissidents in the Soviet empire met the same fate in Gulags and psychiatric hospitals. Even now, in the stalls of Moscow’s capitalist bazaars, it is considered chancy and unwise to inquire about the demise and burial place of grandparents and parents who disappeared during a century of Soviet power.

    The fall of communism has made little difference in this. The wish-list of Russian intelligence operatives does not yet include the rule of law. Nor is there any surprise in the tactics chosen by former KGB agent Vladimir Putin, now president of Russia, in his project to keep his Ukrainian neighbors safely in the undertow of paralytic post-Communism. The tactics may not comport with the laws of war, much less the norms of democracy and peace, but that is not a matter of concern in the Kremlin.

    Yet a large gulp of vodka—and a wistful toast to the rule of law—is needed before facing the callow July 17 shoot-down of Malaysia Airlines Flight 17 in the Ukraine. The Buk-M1 surface-to-air missile used by Russian-backed dissidents to kill 298 people was apparently supplied by Moscow to the Donetsk rebels. Inventory control may not be a Communist specialty, either in morals or materiel.

    Torpedoing a civilian aircraft and dooming its passenger list of noncombatant civilians, including dozens of world-famous medical experts, has crossed a red line. Yet even now, neither Moscow nor its followers have offered any convincing story of how the civilian flight was targeted. Regardless of the political divisions in a riven country, it remains a fundamental tenet of the law of war—applicable both in civil wars and international conflicts—that no civilian person or civilian object can be deliberately destroyed, and that undue risks of collateral damage are forbidden. War is to be fought between governments, not whole societies. If this distinction were not observed, as Thomas Hobbes fretted, violence could destroy all vestiges of civilization. The war of “every man against every man” would leave “no place for industry… no Knowledge on the face of the earth; no account of Time; no Arts, no Letters, no Society; and which is worst of all, continual Fear, and danger of violent death; and the life of man solitary, nasty, brutish and short.”

    Vladimir Putin has elbowed aside any recollection of the happier visage of his gemuchtlich colleague Dmitry Medvediev. In an unfettered warning at a Munich security conference some eight years ago, Mr. Putin made plain that Moscow will take what it wants. Still, one hoped that the advantages of cooperation might make sense to a country whose natural gas resources are not enough to insure a prosperous economy.

    Instead, in the present moment, there is moral catastrophe. The bare-chested leader who merrily poses with Siberian tigers, Arctic bears, and a leopard for good measure, all supposedly captured by a man with a gun, now may boast of prowess in killing humans. As the political chef who stirred the pot and fueled the cauldron in Ukraine, he can add to Russia’s quarry the shoot-down of a civilian aircraft with 298 civilian passengers on board, including 80 children.

    Law is quite inadequate to address such an event as “collateral damage.” Even President Putin should be able to see that the summary execution of 100 world-class AIDS medical specialists has additional consequences that stretch far beyond the ordinary tragedy of losing a ship at sea or in the air. The World Bank estimates that by 2020, Russia may have 5.4 million people with HIV-infections; other estimates are as high as 14 million. Mr. Putin has now delayed their cure.

    Certainly the recent events change any casual view of air travel. After this demonstration of Russia’s effective high altitude weaponry, the overflight of any conflict zone should be seen as problematic. Vacation-bound tourists and business travelers will now quiz their travel agents about the details of a flight path and the altitudes to be maintained by aircraft. And there is a market niche for a new Jane’s guide to anti-aircraft weapons.

    So the question remains, how to treat the catastrophe, and whether there is any remedy in law. There are several possibilities.

    First up is the 1973 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation.

    This is one of the earliest United Nations treaties designed to fight terrorism, crafted at the time when aircraft bombings were the plat du jour among some militant groups. The Russian Federation, the Ukraine, and the Netherlands (as well as the United States) have joined the 1973 Civil Aviation Convention, and each is required by treaty to criminalize any act of destroying or damaging a plane, and to prosecute or extradite any offender found in its territory.

    This is the same treaty that allowed the criminal prosecution of two Libyan operatives for the bombing of Pan Am 103 over Lockerbie, Scotland, in which 270 civilians died, including 189 Americans. Application of the 1973 aircraft bombing treaty would also create a ready-made occasion to address the claims of the separatists, settling the question of whether Donetsk has any recognizable claim of independence from the Ukraine’s government in Kiev and its treaty obligations.

    Next up is the International Criminal Court (“ICC”), a tribunal established in The Hague on July 1, 2002, and presently open for business.

    Ukraine has not yet joined the Rome Treaty as an ICC member state. But the framers of the Rome statute included an unusual and capacious jurisdictional rule. Article 12(3) of the Rome Treaty allows a country to join retrospectively—even after a crime has occurred—and to “accept the exercise of jurisdiction by the Court with respect to the crime in question.”

    Thus, the Ukraine could file a declaration with the Hague criminal court that allows the international criminal prosecution of any person taking part in the Donetsk bombing, including any person—whether military, civilian, or office-holder—who carried out or aided and abetted that criminal act. While jurisdiction to hear a case is not often retrospective, the norms enforced by the court are rock solid. Under the terms of the Rome Treaty, any operative found to have taken part would be criminally liable.

    The United States remains leery of any expansive use of ICC jurisdiction, not least because we have troops deployed all over the world for peacekeeping and other security missions. But aircraft bombing is an early example of a crime warranting universal jurisdiction, seem as barbaric and heinous by all countries of the world, and Washington has gradually warmed to the court as its performance has been gauged over the last 12 years.

    Arresting a foreign official or fleeing perpetrator is a tricky matter, and there is cooperation (though no honor) among thieves and thugs. But as Sudanese President Omar al-Bashir has discovered, after the massacres by the state-backed Janjaweed militia, a looming international criminal case can limit one’s choice of airports and destinations, and sometimes aircraft do make extra landings, with gendarmes waiting on the runway.

    And then there is civil liability for damages. In 1986, the International Court of Justice rendered a verdict in the Nicaragua case against the United States, for Washington’s support of the Contra guerrillas. One does not have to agree with the court’s disputed fact-finding (various Nicaraguan affidavits were later thought to be false). But the jurisprudential fact remains that if a foreign government aids and abets a protégé state or rebel movement in a tactic forbidden under the law of war—and shooting down a civilian aircraft would rank high on the list—then the sponsor state may itself face civil liability and monetary payments of hundreds of millions of dollars. The World Court would have jurisdiction over a claim for civil damages under the 1973 Civil Aviation Convention.

    One of the ironies of the present moment is that Mother Russia was once a great champion of international law. The evidence is found in the world-famous texts of the 1899 and 1907 Hague conventions, setting out the tenets of humanitarian law and the proper conduct of war. These seminal texts were championed by Czar Nicholas and his legal advisor Friedrich Martens. There were other nineteenth century reformers, to be sure, including Henri Dunant of Switzerland and Francis Lieber of the United States. But the Russian czar and his legal advisor boldly proclaimed that the violence and brutality of war should have limits.

    The Carnegie Peace Palace in The Hague, where the International Court of Justice still convenes to hear its cases, is graced by a marble statue of Friedrich Martens, and for good reason. A liberal Russian tradition predates Moscow’s long romance with Communism, and is worthy of pride.

    It’s time for Mr. Putin to call off his dogs, and to leave the Ukraine alone

    Svitlana Starosvit says

    July 25, 2014

    Dear Marko,
    The argument with ICC is a very interesting one, but it seems that it is very important to identify against which individuals the case will be brought. An ad hoc declaration of Ukraine under Article 12 (3) of the Statute specifically accepted the court’s jurisdiction for crimes committed on the territory of Ukraine by Ukrainian President and other officials. In the case of MH17 it is highly unlikely that we can speak about the involvement of Ukrainian army or officials, or other persons controlled by Ukraine, rather we can speak about the involvement of other foreign State, which is not party to the Statute and which certainly will not bring the case under Article 12(3). So, it seems doubtful that Ukraine will have grounds for the similar ad hoc declaration, at least in case it wishes to do so against third parties(non-Ukrainian nationals).

    Marko Milanovic says

    July 25, 2014

    Svitlana, many thanks for your comment. I don't think the possible foreign nationality of the perpetrators would be any bar for an Article 12(3) declaration. The declaration is essentially a transfer of Ukraine's territorial jurisdiction, and the nationality of the perpetrators or the fact that their state of nationality is not a party to the Rome Statute is irrelevant (you'll recall the discussions all those years ago re the US objections to the Rome Statute on these grounds, which were by and large resolutely rejected in scholarship and statements by other states). This is a straightforward application of Article 12(2)(a) of the Statute.

    On the other hand, that Russian nationals could potentially be prosecuted under a Ukrainian Article 12(3) declaration does not mean that Russia would as a non-state party have any kind of obligation to cooperate with the ICC (it just wouldn't).

    Veronika Bilkova says

    July 27, 2014

    Thank you for the post, Marko.
    A small question relating to the ICC: provided it is confirmed that the plane was shot down by mistake, would you still qualify the act as "a deliberate attack against civilians" and hence, as a war crime?
    As for the ECtHR: I was wondering what the jurisdictional basis could be in case of Russia. After all, even if it were proved that the plane was shot down by the insurgents with the weaponry provided by Russia, how would that bring the plane into the jurisdiction of Russia?

    Marko Milanovic says

    July 27, 2014

    Hi Veronika,

    In response to your first question, I guess it depends on what you mean when you say the plane was shot down by mistake. If the missile operator genuinely believed that he was targeting a military aircraft, which turned out to be a civilian airliner, then a prosecution before the ICC would be difficult since the Rome Statute requires intent and knowledge in terms of mens rea. But there's a whole doctrinal debate about whether the Statute allows for recklessness/dolus eventualis, i.e. criminal responsibility because of conscious disregard of risk. Also, even if an ICC prosecution wouldn't be possible, the perpetrators could be charged for negligent homicide or some other similar crime under applicable domestic law (be it Ukrainian, Russia, Dutch, or what have you) before domestic courts (or some kind of ad hoc tribunal).

    As for the ECtHR, you are right that there would be a jurisdiction issue, but not I think an insurmountable one. One avenue of argument would be that Russia exercises control over the Donetsk rebels/the Donetsk region for the purposes of attribution and/or jurisdiction. Another would be to argue for an expansive position that states have a general, territorially unlimited negative obligation to refrain from providing aid and assistance to third parties if they know or ought to know that there is a real risk that such aid and assistance would be used for human rights violations. (Obviously, your mileage may vary with all this).

    Svitlana Starosvit says

    July 30, 2014

    Thank you, Marko