The Netherlands’ inter-State application against Russia six years after MH 17

Malaysian Airlines flight MH 17 from Amsterdam to Kuala Lumpur was shot down in July 2014 over the territory of Eastern Ukraine, killing 298 persons. On 10 July 2020, almost exactly six years later, the Dutch government lodged an inter-State application against Russia before the European Court of Human Rights (ECtHR, the Court) under Article 33 ECHR, citing “the pursuit of truth, justice and accountability”.

The step met with media interest well beyond Europe. Antoine Buyse reported the case to the legal blogosphere. This contribution first provides some perspective on how remarkable, even if not surprising, the Dutch step is. Then, we turn to some of the challenges this case raises, including the issues of extra-territorial jurisdiction and the overlap with individual applications. We conclude that the Dutch application can be read as an open invitation to other States to join the proceedings as additional parties under Article 33 ECHR or third parties under Article 36 ECHR.

The inter-State application in perspective

There are currently an unprecedented number of nine sets of inter-State applications pending before the ECtHR. Russia is the respondent in eight of them. Six of the inter-State applications, counting the present Netherlands v Russia as one of them, relate to the events in Crimea and Eastern Ukraine since 2014. In addition, approximately 7,000 individual applications concerning the territorial conflict between Ukraine and Russia are pending before the ECtHR. The strengths and challenges of inter-State proceedings have been detailed in our previous post on EJIL:Talk!.

The Dutch government has used the inter-State proceedings twice before. In 1967, it brought a case against the Greek Colonel rule together with Denmark, Norway and Sweden. While the Netherlands did not join a second set of proceedings against Greece in 1969, it joined forces with Denmark, France, Norway, Sweden against Turkey’s military regime in 1982. These cases have been seen as examples of altruistic human rights litigation. Noteworthy is that the the Dutch government underlined that by submitting the inter-State application, “the Netherlands stands by all 298 MH17 victims, of 17 different nationalities, and their next of kin” (emphasis in the original).While individuals can apply to the ECtHR only to vindicate their own rights, the inter-State application is a testament to the erga omnes partes character of the European Convention on Human Rights.

Individual and inter-State proceedings

Overlapping individual and inter-State applications have become the rule rather than the exception. While the European Convention on Human Rights does not address their relationship, inter-State and individual applications do not mutually exclude each other. A State, by bringing an inter-State application, does not deprive individuals of the right to bring an application. The Court clarified this in Varnava and Others v Turkey. The need to coherently deal with these applications concerns all stages of the proceedings, thus admissibility, merits and just satisfaction.

The Dutch allegations center around the lack of an appropriate investigation by Russia under Article 2 ECHR. The individual applications under Article 34 ECHR of Ayley and Others v Russia and Angline and Others v Russia were lodged by 380 individuals, the next of kin of the victims of the disaster. Similarly, they raise allegations under Article 2 ECHR. The individual cases were communicated to Russia in 2019. About two-thirds of the victims killed in the MH 17 incident were Dutch. The Netherlands uses its possibility to participate in those proceeding as a third party under Article 36 § 1 ECHR. The Dutch foreign minister Blok announced that “[t]he contents of the inter-State application will also be incorporated into the Netherlands’ intervention in the individual applications submitted by the victims’ next of kin against Russia to the ECtHR.”

Russia’s extra-territorial jurisdiction and State responsibility

The weapon that downed MH 17 was fired from Ukrainian territory. The Netherlands alleges that the plane was shot down from a BUK-TELAR surface-to-air missile system which belonged to and was provided by the Russian Federation. However, Russia denies any involvement in the destruction of the aircraft. This raises questions of extraterritorial jurisdiction under Article 1 ECHR as well as of attribution, which have, in various constellations, been of the centerpieces of the ECtHR’s jurisprudence.

The responsibility of a State for the downing of a civilian aircraft flying over foreign territory is an unprecedented situation for the Strasbourg Court. Russia may, depending on the factual circumstances, be seen as enjoying ‘effective control’ over the area from which the missile was fired and thereby exercising extra-territorial jurisdiction, see Al Skeini and Others v United Kingdom, paragraphs 138-139 and the subsequent Catan and Others v the Republic of Moldova and Russia, paragraph 106. As Marko Milanovic has observed, the individual applications have invoked four different bases for responsibility. They may concern Russia’s possible active involvement or, alternatively, that Russia was under an obligation to prevent the firing of the missile. A third option would be to see Russia as complicit by providing separatists with a weapon and fourth, that the Russian Federation failed to control the misuse of its missile system by a non-State actor. 

Admissibility

One issue that will be central for the admissibility for both the inter-State application and the overlapping individual applications is the requirement to exhaust domestic remedies in Russia. Article 35 § 1 ECHR applies to both individual and inter-State of proceedings. Where a State espouses the claims of individuals as it is done by the Dutch government, the individuals concerned are regularly required to exhaust domestic remedies, while the requirement is not an absolute one. In contexts where systemic issues beyond the single case have been complained of, the Court has developed important exceptions to the requirement.

The quest for truth

Russia’s role in the investigations has, up to now, been controversial at best. The Netherlands maintain an official webpage with information concerning MH17. As about 200 persons on board of flight MH 17 were Dutch nationals, an investigation into the causes of the incident was led by the Dutch Safety Board, an independent administrative body. Its final report, issued in October 2015, concluded that the plane had been hit by a missile launched from a Buk surface-to-air missile system from somewhere in an area of eastern Ukraine.

In parallel, a Joint Investigation Team of police officers and public prosecutors from Australia, Belgium, Malaysia, the Netherlands and Ukraine, started criminal investigations. Its main preliminary findings were that flight MH 17 had been shot down by a BUK missile, fired from a field in the area of Pervomaiskyi, which at the time was controlled by pro-Russian separatists. The Joint Investigation Team found that the missile had been launched from equipment brought from Russia and returned there afterwards. According to the investigation, the equipment had come from a unit of the Russian Federation’s armed forces. In March 2020, a criminal trial of four individuals suspected of downing flight MH17 was initiated in the Netherlands. The trial is being conducted in absentia of the accused. Lachezar Yanev observed on this blog that those individuals involved may enjoy immunity.

An open invitation to other States to join the proceedings

The Dutch application enhances pressure on Russian authorities, while it remains to be seen whether Russia will give up its stance of denying all responsibility for the incident. In July 2015, Russia vetoed a draft resolution at the UN Security Council to set up an international criminal tribunal to establish individual liability for the disaster. While we do not know what litigation strategy Russia will pursue, Russia has participated in all other inter-Stare applications so far.

One reading of the remarkable Dutch inter-State application is that it is an open invitation to other member States whose nationals were killed in the MH 17 incident (Belgium, Germany and the United Kingdom) to join the proceedings, either as co-applicants or as third parties under Article 36 ECHR. The erga omnes partes character of the ECHR means that other member States are free to join the inter-State proceedings even if none of their nationals were immediately affected by the MH 17 incident. Further, it is possible for States to add weight to the proceedings as amici curiae. The compulsory jurisdiction of Strasbourg may become what the Russian Federation had sought to avoid: an international court proceeding that establishes State responsibility over the downing of MH 17.