On 17 July 2014, Malaysia Airlines Flight MH17 crashed in Donetsk Oblast, Eastern Ukraine. All 298 people on board MH17, which was en route from Amsterdam to Kuala Lumpur, died. It claimed the lives of 193 Dutch nationals, 43 from Malaysia, and 27 from Australia. Other victims came from a variety of countries including Indonesia, the United Kingdom, Belgium, Germany and the Philippines. From the start, both the investigation into the cause of the crash and the criminal investigation into the downing of Flight MH17 were severely challenged due to the ongoing armed conflict in Eastern Ukraine between pro-Russian separatists, supported by the Russian Federation, and the Ukrainian government.
On 17 July 2014, Malaysia Airlines Flight MH17 crashed in Donetsk Oblast, Eastern Ukraine. All 298 people on board MH17, which was en route from Amsterdam to Kuala Lumpur, died. It claimed the lives of 193 Dutch nationals, 43 from Malaysia, and 27 from Australia. Other victims came from a variety of countries including Indonesia, the United Kingdom, Belgium, Germany and the Philippines. From the start, both the investigation into the cause of the crash and the criminal investigation into the downing of Flight MH17 were severely challenged due to the ongoing armed conflict in Eastern Ukraine between pro-Russian separatists, supported by the Russian Federation, and the Ukrainian government. Access to the crime scene was severely hampered by security issues. Dutch foreign minister Blok said attempts to hold Russia responsible for the plane’s downing under international law would be a different, parallel process from the ongoing investigation by prosecutors seeking to establish individual criminal responsibility. But, a Dutch cabinet statement mooted presenting the case to an international court or organisation for their judgment as a “possible” next step.
On 24 May 2018, A Dutch-led international criminal investigation has concluded that the Buk missile that shot down Malaysia Airlines Flight MH17 over Ukraine in 2014 came from Russia's 53rd Antiaircraft Missile Brigade. The Joint Investigative Team (JIT), comprising authorities from Australia, Belgium, Malaysia, the Netherlands, and Ukraine, made the announcement at a press conference on May 24 in Utrecht, the Netherlands. The JIT determined in 2016 that MH17 was shot down from separatist-held territory in the Donetsk region by a Buk antiaircraft system provided by the Russian military. The JIT report says the Buk entered Ukraine near Krasnodon and was spirited back into Russia immediately after the airliner was shot down. The findings of the joint investigative team made clear, the Buk missile launcher was brought into sovereign Ukrainian territory from Russia, was fired from territory controlled by Russia and Russia-led forces in eastern Ukraine, and was then returned to Russian territory.” Russia has denied any involvement in the plane’s destruction.
Under the doctrine of state responsibility, the Netherlands and/or Malaysia may be able to bring a case before the ICJ for violations of international law and internationally wrongful acts attributable to Russia and/or Ukraine. However, attributing the actual firing of the missile on Flight MH17 onto a state will be much more difficult and depends on the availability of evidence to establish a link between the perpetrators (including those who ordered or contributed to firing the missile) and the relevant state.
"Australia and the Netherlands have now (May, 24) informed the Russian Federation that we hold it responsible under international law for its role in the bringing down of MH17," said Julie Bishop, Australia's Minister for Foreign Affairs. "Australia and the Netherlands have requested Russia to enter into negotiations to open up a dialogue about its conduct and to seek reparations."
"Holding a country legally responsible is a complex process but what Netherlands and Australia want is for Russia to enter into negotiations with both of them which will ultimately lead to reparations for the victims' families."
NATO Secretary-General Jens Stoltenberg, called on Russia to accept responsibility for the crash and cooperate with international efforts to establish accountability.
Speaking to journalists on Friday, May 25, at UN Headquarters in New York, UN Deputy Spokesperson Farhan Haq said that Secretary-General António Guterres underlined a prior Security Council resolution demanding that “all states cooperate fully with efforts to establish accountability”.
One year after the incident, Malaysia introduced a draft resolution in the UN Security Council on a measure that would have established an international tribunal to prosecute persons responsible for the downing of MH17. The 15-member body, however, failed to adopt the resolution following a Russian veto. While Security Council Resolution 2166 (2014) condemned the downing of MH17 and called for accountability, it remains unclear to date just how that resolution is to be implemented. Whatever legal process is initiated, State cooperation plays a large role in their success.
The MH17 situation is legally complex due to a number of reasons, including the different types of actors, legal fields and legal orders involved: it concerned a civilian aircraft that flew from one State (Netherlands) to another (Malaysia), crossing over the territory of a third State (Ukraine) that did not close down its airspace, where it was brought down over a territory that the concerned State lacked control over (Eastern Ukraine).
1. The United Nations General Assembly starts a procedure asking the International Court of Justice for an Advisory Opinion. A number of contentious cases and Advisory Opinions by the ICJ have shown that, even where the Court cannot find a state directly liable for violations of specific international obligations, it can elaborate on the factual background of the case. This declarative function of the ICJ’s judgments may serve to publicly characterize the conduct of the respondent state or even provide a degree of satisfaction for the relatives of the victims.
2. ICAO Council has jurisdiction based on the Convention on International Civil Aviation (Chicago, 7 December 1944). Should evidence point to a possible way to argue attribution to Russia, it can be argued that Russia would have violated Article 3bis of the Chicago Convention. Article 3bis of the Chicago Convention provides that “the Contracting States recognize that every State must refrain from resorting to the use of weapons against civilian aircraft in flight,” unless in accordance with a state’s right to self-defense, which is not a viable argument in the situation of MH17. The article was adopted in 1998 in response to the shooting down of Korean Air Flight 007 over Soviet airspace and is largely considered to be a reflection of customary international law. As one commentator puts it, “Article 3 bis is intended to effectively preclude a State from using its unfettered discretion to use weapons against an intruding aircraft and to ensure that people onboard are not harmed.” Should Russia have been involved in the shooting down of MH17, it may well have violated this provision, and in any case, this could be phrased as a dispute on the “application or interpretation” of the Chicago Convention and could thus be submitted to the ICAO Council and be appealed at the ICJ.
3. The European Court of Human Rights, which has jurisdiction over the Netherlands, Ukraine and Russia, and can hold them accountable for violating their obligations under the European Convention on Human Rights. With regard to MH17, victims could potentially bring proceedings against Russia and/or Ukraine for violating the right to life. Where a violation is found, the ECtHR can issue binding judgments against member states and provide just satisfaction, which could be helpful in obtaining redress for victims.
4. Prosecution by the ICC for war crimes. Next to seeking the state responsibility of Russia and Ukraine for violating their international obligations, it may also be possible to criminally prosecute the individuals responsible for firing the missile on Flight MH17. One option is that alleged perpetrators are prosecuted by the ICC. Ukraine has made an Article 12(3) declaration accepting the ICC’s jurisdiction, which is currently being considered by the ICC Prosecutor. If positively reviewed, the Prosecutor may open a criminal investigation into the situation in Ukraine – potentially including the downing of Flight MH17. However, the Prosecutor may also decline to do so. The Prosecutor will have to determine, among other things, that the MH17 situation is of sufficient gravity to warrant the Court’s attention, and also that such an investigation is not contrary to the interests of justice.
5. Prosecution before domestic courts on the basis of Article 1 of the 1971 Montreal Convention, as an international crime, and on the basis of a domestic criminal code.
Several states could assert jurisdiction in their domestic courts over the downing of MH17: Ukraine, Russia, the Netherlands, Malaysia, and other states whose nationals were killed. These states could obtain jurisdiction based on the territoriality principle, the passive personality principle, or the provisions for jurisdiction laid down in Article 5 of the 1971 Montreal Convention. If a person is tried by the ICC or in a domestic court, another court may not be able to take this case on as well (ne bis in idem). In addition, according to the principle of complementarity, the ICC Prosecutor is mandated to grant primacy to domestic investigations and prosecutions. The current investigation by the Joint Investigation Team may mean that the ICC will not intervene, unless the domestic proceedings target different actors and/or crimes, or if states such as the Netherlands/Ukraine are unable or unwilling to investigate.
6. Civil proceedings for the downing of Flight MH17.
Those that may have violated their responsibilities to ensure the safety of passengers on board Flight MH17 include:
i) Ukraine; based on both national and international legislation, it can be argued that Ukraine has a duty to protect foreigners legally passing through its airspace, which could form the legal ground for a case in Ukraine against the state.
ii) Malaysia Airlines/KLM; a civil suit against the airlines could be brought before a court in several states based on the Chicago and Montreal Conventions.
iii) Malaysia; a case against Malaysia, as the state where the airline has its domicile, might be faced with some obstacles: the Malaysian authorities claim that there is no legal requirement for them to provide airlines with any information on the safety of foreign airspace, yet there are arguments to contest this.
In Legal remedies for downing Flight MH17, (the White Paper) the editors M. de Hoon, J. Fraser and B. McGonigle Leyh address in detail the above mentioned (paraphrased) possible legal redress mechanisms that may be available to victims and their states:
"This white paper aims to show victims and their supporting governments some of the potential pathways for legal accountability. It highlights legal, political and practical hurdles likely to arise, as well as provides some preliminary observations concerning legal strategies. The families of the victims know better than anyone that legal remedies of any kind will never fully compensate them for their losses. At a minimum, they deserve, as does the rest of the flying public, answers as to what happened and accountability for those responsible. By laying out the present applicable law and possible remedies, the authors hope that this paper will help the families and their governments decide which routes to pursue, and which goals to prioritize. As the families have already experienced, the road towards justice in any case involving the downing of civilian aircraft is likely to be long and arduous."
- Abeyratne, R., "Flight MH17: The Legal and Regulatory Fallout", Air & space law, 39 (2014), No. 6, pp. 329–340.
- Hoon, M. de, "Navigating the Legal Horizon: Lawyering the MH17 Disaster", Utrecht journal of international and European law, 33 (2017), No. 84, pp. 90-119.
- Hoon, M. de, Fraser, J. and McGonigle Leyh, B. (eds.), Legal remedies for downing Flight MH17, [Washington, DC] : Public International Law & Policy Group. [Amsterdam] : VU University Amsterdam, 2016, 106 pp.
- Kaiser, S.A., "Legal Considerations about the Loss of Malaysia Airlines Flight MH17 in Eastern Ukraine", Air & space law, 40 (2015), No. 2, pp. 107–121.