[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.]
Following on from our
previous commentary on potential state responsibility, this post will look at the role of individual criminal responsibility in addressing the downing of MH17. Proposals have been made for using either existing mechanisms or for setting up a new tribunal to address this incident specifically. Determining the best avenue ultimately depends on the outcome of the investigations into the incident and the political realities of the situation.
At the outset, it is important to note the most recent major development: the Russian
veto, on 29 July 2015, of a proposed United Nations Security Council (UNSC) resolution which aimed to set up an international tribunal to prosecute the individuals responsible for downing MH17. Despite this apparent setback, which is explored further below, a wide variety of options remain open.
Domestic Prosecution
First, the alleged perpetrators could face domestic prosecution in a state which has jurisdiction over the crimes in question. The most familiar bases for jurisdiction under international law would be:
territorial (i.e. Ukraine, in whose territory and/or airspace the alleged crimes took place; or Malaysia, as the state of
registration of the aircraft, in accordance with Article 3(1) of the
Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft);
nationality (depending on the nationality of the alleged perpetrators, which has not yet been established); and
passive personality (depending on the nationality of the victims, so including states such as The Netherlands, Malaysia and Australia). In addition, if international crimes are alleged, any state could exercise
universal jurisdiction over the alleged perpetrators, for example on grounds that the incident amounted to “
war crimes”; this would depend on the various states having
legislated to give their domestic courts jurisdiction to prosecute international crimes. In addition, it may be very difficult to secure the arrest and surrender of accused persons for prosecution at the national level, especially if they are high ranking officials.
It is possible that The Netherlands would exercise jurisdiction over these alleged crimes, based on either passive personality or universality, given the important role it has played in investigations thus far, as well as the fact that a large number of its nationals died during the incident. Although these circumstances are likely to result in support for such a prosecution at the domestic level in future, The Netherlands (alongside states such as Australia, Belgium, Malaysia and Ukraine) is currently pushing for other avenues for prosecution, such as an international tribunal.
One could also argue that Ukraine and Malaysia have more robust jurisdictional claims over the incident by virtue of the territoriality principle. However, this argument is typically based on the practical reality that these states would, in most cases, have better access to the witnesses and other evidence needed for prosecution. In the case of MH17, given the strong involvement of The Netherlands and other states in the investigation thus far, these investigating states may be in a better position,
de facto, to carry out the prosecutions, regardless of the relative robustness of the
de jure basis for jurisdiction.
International Criminal Court
Secondly, if international crimes falling within the ambit of the
Rome Statute of the International Criminal Court (ICC) are alleged, the perpetrators could also be tried before this Court. However,
