Guest Post: Malaysia Airlines Flight MH17–Possible Legal Avenues for Redress (Part 2)

[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, as Ukraine is not a party to the Rome Statute, the ICC cannot exercise jurisdiction over the alleged crimes under Article 12(2), unless Ukraine accepts ICC jurisdiction on an ad hoc basis under Article 12(3). Ukraine has already made such an Article 12(3) declaration on 17 April 2014, accepting ICC jurisdiction over crimes committed within its territory. However, this declaration is temporally limited to the period between 21 November 2013 and 22 February 2014. Nevertheless, Ukraine may choose to make a further Article 12(3) declaration which does cover the events of 17 July 2014, accepting ICC jurisdiction over the downing of MH17. Again, this would depend on Ukraine’s political will to make such an additional declaration.

In addition to an Article 12(3) declaration, the ICC would also require its jurisdiction to be triggered under one of the three mechanisms outlined in Article 13 of the Rome Statute. According to Article 13(a), a state party to the Rome Statute, for example The Netherlands, could make such a referral; Ukraine would be unable to do so itself because it is not a state party to the Rome Statute. If such a referral is made, its temporal and territorial breadth could be crucial. Given the recent controversy about the Comoros referral to the ICC, if the new referral is limited to the downing of MH17 and nothing else, the issue of situational gravity may mean that the Office of the Prosecutor (OTP) declines to initiate an investigation into the incident, following a preliminary examination (Article 53(1)). This may be remedied by a broader referral being made, perhaps encompassing the wider conflict in Ukraine, depending on the scope of Ukraine’s potential future Article 12(3) declaration. Further developments regarding the Comoros referral may be of relevance. Alternatively, under Articles 13(c) and 15, the OTP could initiate an investigation proprio motu. The same concerns of situational gravity may, inter alia, also be relevant here. Lastly, under Article 13(b), the UNSC could refer the downing of MH17 to the ICC, irrespective of whether Ukraine makes an Article 12(3) declaration. However, given Russia’s current opposition to international prosecutions for this incident (on which see further below), such a resolution would probably be vetoed.

Consequently, a prosecution in the ICC is unlikely in the near future. This highlights, once more, that political will is often the driving force behind international prosecutions.

New International Criminal Tribunal

Third, a draft UNSC resolution to set up a tribunal under Chapter VII of the UN Charter was recently vetoed by Russia. According to the draft statute of the proposed tribunal, it would mix together the features of existing ad hoc tribunals (such as the International Criminal Tribunal for the Former Yugoslavia, ICTY) and a hybrid tribunal indirectly created by a UNSC resolution (such as the Special Tribunal for Lebanon, STL). On the one hand, like the ICTY, the proposed tribunal would be created directly by a UNSC resolution and part of its material jurisdiction would draw on international law (Article 2). On the other hand, like the STL, the proposed tribunal would draw other parts of its material jurisdiction from the domestic legislation of Malaysia and Ukraine (Articles 3 and 4, respectively). Finally, like both of these models, the proposed tribunal would have primacy over national prosecutions (Article 10). In any event, given the recent Russian veto, it is unlikely that the UNSC will be able to create such a tribunal in the near future.

To overcome this hurdle, a number of alternative structures could be considered. One option would be a court created by an agreement between the UN and a state, similar to the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Court for Sierra Leone. The agreements creating these courts were negotiated by the UN Secretary General and were approved by the UN General Assembly (UNGA). This mechanism would therefore circumvent the UNSC veto, allowing the court to come into being despite opposition from any of the permanent five members.

Furthermore, earlier commentators had suggested that a Lockerbie-style tribunal would be the best fit for the MH17 incident. It is important to emphasize that the court in the Lockerbie case was not created by the UNSC and it was therefore very different from recent attempts of the UNSC to set up an MH17 tribunal. Although the UNSC did ‘welcome’ the Lockerbie prosecution, the court hearing the Lockerbie trial was part of the Scottish judicial structure and it applied Scottish law. The only extra-national feature of the trial was its location in The Netherlands. Therefore, the establishment of a Lockerbie-style tribunal is a very different proposition from the recent proposals for a tribunal created by the UNSC under Chapter VII of the UN Charter. This differentiation is fortuitous, as it would allow the establishment of a tribunal for MH17 without the need for UNSC approval. However, despite the similarities in the subject matter of the Lockerbie and MH17 incident, in that they both involved the downing of an aircraft, the Lockerbie approach may not be the best fit for potential MH17 prosecutions. Most importantly, such a tribunal would have insufficient extra-national features to lend legitimacy to the prosecutions and to encourage the cooperation of states in surrendering accused persons to the tribunal.

Most recently, there have been new proposals for the creation of an international tribunal with UNGA approval, following the Russian veto in the UNSC. However, as explained here, it should be noted that it is highly questionable whether the UNGA has the legal power to create such a tribunal. The alternative would then be the creation of a tribunal by some or all of the affected states via a multilateral treaty (much like the ICC), potentially with the subsequent support of the UNGA under the procedure set out in Article 18(2) of the UN Charter [latter source available in Dutch only]. The affected states would, in this case, carry out the prosecutions by pooling their territorial, passive personality and (possibly) nationality jurisdiction. Any subsequent UNGA backing would simply add legitimacy to the tribunal, but the UNGA would not be setting up the tribunal itself, nor approving the conclusion of a treaty between the UN and a state to set up a tribunal (as was the case with the ECCC, for example). However, the importance of added legitimacy should not be underestimated: this feature would make such a tribunal preferable to, for example, a Lockerbie-style tribunal and may therefore encourage more state cooperation in surrendering accused persons to the tribunal.

It is also important to remember that, whichever court structure, if any, is ultimately chosen, the effective prosecution of the alleged perpetrators would once again be dependent on the willingness of various states to cooperate with the potential court, for example by arresting accused persons and surrendering them to the custody of the court. As shown by the recent non-cooperation of South Africa with the ICC arrest warrant for President Omar Al-Bashir, such cooperation cannot be taken for granted. This exposes one of the greatest weaknesses of the international criminal system: its dependence on state cooperation, and therefore on political will.

Thus, despite the recent Russian veto, several other options remain open for bringing the individual perpetrators to justice. Yet, much like the possible claims against states explored in our previous commentary, few of these options are available in practice without the requisite political will of key players. On the other hand, even though there are ways to circumvent the opposition of certain states, this may not be constructive for reaching the ultimate goal of achieving justice and preventing a reoccurrence of this type of tragedy, given the need for cooperation from such states for any tribunal to function in practice. Therefore, a more inclusive approach may be preferable if it encourages wider cooperation with the process.

Nonetheless, if a new international tribunal proves to be the only means of bringing the alleged perpetrators to justice, there is the possibility of carrying out the prosecutions in absentia (as exemplified by the STL). The non-cooperation of states should not be allowed to stand in the way of justice being done for the victims in some (limited) way, even if the punitive element of the process is compromised by not having the accused persons in the custody of the court. However, this should be an option of last resort only, in order to protect the legitimacy of the proceedings and of international criminal justice more broadly.

Furthermore, it is regrettable that the international community must resort to setting up yet another international tribunal to deal with the MH17 incident, rather than being able to use the established structures of the ICC. Despite progress being made over the years, the Rome Statute is still far from being universally ratified and the ICC’s triggering mechanisms can be highly politicized. Setting up yet another international tribunal requires considerable resources and may lead to further fragmentation in international criminal law. On the other hand, the substantive jurisdiction of a new tribunal can be better tailored to the MH17 incident, as shown in the draft statute of the recently rejected tribunal; furthermore, a new tribunal would avoid adding even more pressure on the limited resources and operational capabilities of the OTP at the ICC. These are the trade-offs of international criminal justice, meaning that no one option will be a perfect fit. However, this also shows that the system offers both diversity and flexibility in addressing different challenges, which may be the system’s greatest strength.

Finally, we must remember that individual criminal responsibility and state responsibility are not mutually exclusive and can both be pursued to address the consequences of the MH17 incident.