[Dr Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Anda Scarlat is a Summer Fellow with the Rule of Law Program at the Institute.With many thanks to Dr Lyal Sunga, Jill Coster van Voorhout and Thomas Koerner for their helpful feedback on earlier drafts of this commentary.The views expressed here do not represent the views of the Hague Institute for Global Justice.]
17 July 2015 marked one year since the downing of Malaysia Airlines flight MH17 over eastern Ukraine, resulting in the death of 298 persons (passengers and crew). As approximately two thirds of the victims were Dutch nationals, the tragedy is particularly poignant in
The Netherlands. The facts surrounding the incident are not yet clear, with suggested scenarios for the downing of the aircraft including firing by pro-Russian rebels or from a Ukrainian fighter jet. International investigations are still ongoing and are looking, on the one hand, at the
causes of the incident and, on the other hand, at
criminal responsibility. The Netherlands is taking an active role in both investigations.
The past year has also been marked by increasing speculation on the legal avenues for redress available to the victims’ families, the affected states, and the international community as a whole. The options include:
state responsibility (inter-state litigation in the International Court of Justice (ICJ), or claims against a state who violated its human rights obligations under the European Convention on Human Rights (ECHR)); and
individual criminal responsibility (at the national and international levels).
This first of two posts will look at the two options for state responsibility, while our second essay will consider proposals for international criminal responsibility and the prospect of setting up an international criminal tribunal.
Inter-State Dispute Resolution: International Court of Justice
Shortly after the downing of MH17, speculation began about possible inter-state claims before the ICJ. As aptly explained
here, a possible claim against Ukraine could be based on the precedent in the
Corfu Channel Case, for causing or failing to prevent the downing of MH17 while it passed through Ukrainian airspace. The precise basis for the claim would depend on the outcome of the factual investigation. First, responsibility could arise if Ukraine were directly responsible for the incident through a positive act, such as the use of a weapon. Second, responsibility could arise if Ukraine had failed to avert a foreseeable risk to civilian aviation within its airspace, given that there was ongoing fighting in eastern Ukraine and that Ukraine had already decided to close its airspace up to
32,000 feet, which was
just short of the altitude at which MH17 was flying.
Furthermore, if it is found that those responsible for downing MH17 were receiving support from another state (for example Russia, as is widely argued) the supporting state could face a claim along the lines of that raised in the
Nicaragua Case, for “‘organizing or encouraging the organization of irregular forces or armed bands … for incursion into the territory of another State’ and ‘participating in acts of civil strife … in another State’, in the terms of General Assembly resolution 2625 (XXV)” (para 228).
Substantive issues aside, another pertinent consideration is that the ICJ’s
jurisdiction is fundamentally based on state consent (as per Article 36(1) of the
ICJ Statute). As explained
here, the potential respondent states (for example Ukraine or Russia, if the result of the investigation points towards them) have not made a declaration accepting the ICJ’s jurisdiction in respect of inter-state disputes (Article 36(2)). Therefore, the feasibility of an ICJ claim would depend on the respondent states accepting the jurisdiction of the ICJ for this particular claim via a special agreement (Article 36(1)). This makes inter-state litigation on the MH17 incident relatively unlikely.
In addition, such a claim would have to be brought to the ICJ by one of the potential applicant states, for example The Netherlands. This illustrates the relative impotence of the individual in the international system: the victims’ families depend on a state
choosing to bring a claim under diplomatic protection on behalf of its nationals. As yet, there have been no indications that an ICJ claim would be pursued.
The difficulties in bringing a contentious case before the ICJ may be bypassed if one of the UN organs, for example the General Assembly or Secretary General, requests an Advisory Opinion on the MH17 incident. Even though this may give some clarity on the legal position, the Advisory Opinion would not be binding on the responsible state(s), and may therefore be of limited value in practice.
Human Rights Claims: European Court of Human Rights and Domestic Litigation
Potentially responsible states could, however, face claims directly from the victims’ families under the
ECHR. Such a case,
Ioppa v Ukraine, was lodged with the European Court of Human Rights (ECtHR) in November 2014, alleging that Ukraine has violated its human rights obligations,
presumably under Article 2 (the right to life). In addition, the applicants could also bring a claim against Russia, if the ongoing investigation concludes that Russia was sufficiently involved in the conflict in eastern Ukraine, as detailed below. Both Ukraine and Russia are parties to the ECHR, which means that individuals can bring claims against them before the ECtHR for alleged human rights violations (Article 34 of the ECHR).
