Guest Post: Malaysia Airlines Flight MH17–Possible Legal Avenues for Redress (Part 1)

[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).

For such a case to be heard by the ECtHR, the applicants would have to show that the respondent state(s) had jurisdiction over the alleged human rights violations under Article 1 of the ECHR. For example, Russia may have had jurisdiction over any human rights violations if it exercised “effective authority” over the relevant area in eastern Ukraine, subject to the findings of the ongoing investigations (see Ilaşcu and Others v Moldova and Russia, Decision on Merits, ECtHR Grand Chamber, 8 July 2004, para 392). At the same time, Ukraine may also have had jurisdiction over any violations, as the state on whose territory the violations occurred, regardless of whether it lacked de facto control of the area (Ilaşcu, para 333). However, some have expressed doubt about the likely success of such claims before the ECtHR, inter alia due to difficulties in showing causation, given that the details of the incident, and therefore the foreseeable risk to civil aviation at the time, are still unclear. These impediments may be easier to overcome once investigations into the incident have been concluded.

It should also be noted that, under Article 35(1) of the ECHR, the victims’ families would first have to exhaust any available local remedies against the state in question, before bringing the case to the ECtHR. In practice, this means bringing claims against states in the relevant national courts first, regardless of whether the applicants live outside of the forum state (see Demopoulos and Others v Turkey, Decision on Admissibility, ECtHR Grand Chamber, 1 March 2010, para 98). If, as a result of such domestic proceedings, the victims’ families are granted the redress they are seeking, ECtHR proceedings may become unnecessary. In light of this requirement under the ECHR, it is doubtful whether the claim brought in Ioppa will be heard by the ECtHR, as it is unclear whether the applicants exhausted local remedies in Ukraine before lodging the claim with the ECtHR.

Furthermore, even if a case was successfully brought by the complainants and the ECtHR ruled in their favor, recent developments and proposed changes in Russia’s constitutional law may threaten compliance with any potential judgments against Russia. In any event, there are no claims related to MH17 currently lodged with the ECtHR against Russia.

Of course, the ECtHR could also hear an inter-state complaint for breach of human rights. Given that Ukraine has already brought a number of claims against Russia before the ECtHR regarding the conflict in eastern Ukraine, it is quite possible that it may wish to bring a claim regarding the downing of MH17. Many of the same legal issues regarding jurisdiction and compliance with judgements would also arise here, as explained above in relation to individual claims.

While there may be some difficulties in making out the substantive elements of a claim against a responsible state, whether in the ICJ or the ECtHR, the main impediments are still based on garnering the requisite political will from states to either: bring a claim against another state in the ICJ; accept the jurisdiction of the ICJ to hear the case; and comply with any judgments made by the ICJ or the ECtHR. In light of this, claims in the ECtHR are the more feasible option, as they do not depend on the respondent state’s consent. An additional advantage is that the ECtHR allows individuals to seek redress directly, without depending on a state to bring a case on their behalf. Furthermore, the ECtHR is an avenue which is likely to be pursued in practice: individuals have already brought a claim against Ukraine regarding MH17, and Ukraine has brought a number of claims against Russia in relation to other aspects of the eastern Ukrainian conflict (and is therefore more likely to bring another in relation to MH17).

Dependence on the political will of states is also a major weakness of individual criminal responsibility. As we have seen from recent attempts to set up an international criminal tribunal to bring the alleged perpetrators to justice, this type of mechanism is also heavily reliant on the political will of states, whether this means setting up a new tribunal or cooperating with an existing one. These issues will be addressed in our second post.