MH 17 Tragedy: An International Law Perspective

Introduction

July 17, 2014 was the day when the world was shocked with the news that a Malaysian airliner crashed in Eastern Ukraine on its way from Amsterdam to Kuala Lumpur.  At this point of time, it can be safely assumed that the plane was shot down. The United States officials assert that a SA-11 missile was fired by pro-Russian rebels from Eastern Ukraine.  Russia on the other hand, blamed the Ukrainian government. This article will show which States would have jurisdiction to punish the offenders and also which States can be held responsible in multiple international dispute resolution forums.

Criminal Jurisdiction in International Law

A State must base its criminal jurisdiction on one or more of the following principles before its courts can punish the offenders:

1.    Territorial Principle - The territorial principle is the most basic and common principle of jurisdiction.  This principle basically states that all offences committed within the territory of a State can be brought before its domestic courts, even if it involves foreign citizens.

2.    Active Nationality Principle - The active nationality principle, which is also a well-established principle, allows a State to exercise jurisdiction over crimes committed by its nationals abroad.

3.    Passive Personality Principle - The passive personality principle allows a State to claim jurisdiction to try a foreign citizen for offences committed abroad which have affected or will affect nationals of that State

4.    Protective Principle - The protective principle allows a State to exercise jurisdiction over persons whose acts are directed against the vital interest of the State even though committed abroad. Instances or categories of what may be considered ‘vital interests’ are not closed, but the principle is commonly invoked in regards to currency, immigration and economic offences.

5.    Universality Principle - The universality principle focuses purely on the nature of the offence irrespective of the place of commission of the crime, any link of active or passive nationality, or any other grounds of jurisdiction recognised under international law. Crimes which would invoke the universality principle would include piracy,  slavery,  and possibly, genocide,  torture,  crimes against humanity  and breaches of the laws of war, especially of the Hague Convention of 1907 and grave breaches of the Geneva Convention of 1949.

Conflict in Eastern Ukraine

On 7 April 2014, an armed group occupied the regional administration building in Donetsk and declared the establishment of the “Donetsk People’s Republic”. In mid-April, Ukraine began counter-insurgency operations resulting in sporadic clashes in Eastern Ukraine.  On 23 July 2014, the International Committee of the Red Cross released a statement where it declared the conflict in Eastern Ukraine to be a non-international armed conflict.

Both Ukraine and Russia are parties to the 1949 Geneva Conventions. Common Article 3 to the four 1949 Geneva Conventions prohibits all parties in a non-international armed conflict, including insurgent groups, from deliberately attacking civilians or non-combatants.

Nature of the Incident

Based on the available information at the time of this writing, there are no concrete assertions as to any motive on Ukraine, Russia or the insurgents for intentionally shooting down a civilian aircraft. Therefore it is unlikely that the incident can be classified as a crime against humanity or a war crime under the Rome Statute. This is because such crimes require the offenders to be aware that the intended targets were civilians.

Murder under domestic law would be the most appropriate crime to use for prosecution. Although the civilians in MH 17 might not have been the intended targets, the perpetrators intended to shoot down a plane and kill whoever was in it. Under the doctrine of transferred malice, the intention to murder combatants would be transferred to the actual victims, who were the civilians.

States with Domestic Criminal Jurisdiction

With reference to the jurisdictional principles as explained above, the following States would have criminal jurisdiction over the perpetrators:

1.    Ukraine - Ukraine can assert jurisdiction based on the territoriality and possibly the active nationality principle. It is too premature at this point to discuss on possible statehood of the “Donetsk People’s Republic”. Therefore in the eyes of international law, Donetsk is still the territory of Ukraine.

2.    Netherlands - Netherlands can assert jurisdiction based on the passive personality principle. Most of the victims on the aircraft were of Dutch nationality

3.    Russia - IF the perpetrators were found to be Russian nationals, then Russia could claim jurisdiction under the active nationality principles

4.    Other States - Basically the States in which the victims are nationals of would have jurisdiction under the passive personality principle

State Responsibility in International Dispute Resolution Forums

1.    International Criminal Court (“ICC”) - Although Ukraine and Russia are not members of the ICC, Ukraine could choose to refer the case to the ICC pursuant to Article 12(3) of the Rome Statute of the International Criminal Court (“Rome Statute”) as a non-party State. Article 12(3) allows a non-party State to make a declaration to the effect of accepting the ICC’s jurisdiction over crimes committed on its territory or by its nationals, even retroactively.  This means that the ICC would have jurisdiction over all relevant crimes committed in Ukraine regardless of the perpetrators nationality.  It would not come as a surprise if Ukraine makes an Article 12(3) declaration, as it had made such a declaration back in April 2014 to accept the ICC’s jurisdiction for events that occurred in Ukraine between 21 November 2013 and 22 February 2014.  The issue would be one of prosecution rather than jurisdiction. As stated above, it would be difficult to establish the mental element of the crime under the Rome Statue.

2.    International Court of Justice (“ICJ”) - The ICJ’s jurisdiction for contentious cases depends on the consent of the parties.  Both Ukraine and Russia have not made declarations to the effect of submitting to the compulsory jurisdiction of the Court. 

Ukraine could be liable for a breach of its treaty obligations under Article 10 of the Montreal Convention 1971 for failing to “take all practicable measures” to prevent such an incident. MH 17’s presence in Ukraine’s airspace was legal under Article 1 of the 1944 Transit Agreement, which both Ukraine and Malaysia are parties to.  Ukraine had the means to close the airspace, as the exercise of the privilege under Article 1 of the 1944 Transit Agreement is subject to Ukraine’s approval in “areas of active hostilities” under the same article. Additionally, Ukraine could have restricted aircrafts from using certain parts of its airspace for “reasons of military necessity or public safety” under Article 9 of the 1944 Chicago Convention.

There could be a way to circumvent the issue on States accepting the ICJ’s jurisdiction. States may consent to the jurisdiction of the ICJ by ratifying conventions or treaties containing jurisdictional clauses granting the ICJ with jurisdiction in advance over disputes involving the interpretation and application of the convention.  Article 14 of the Montreal Convention 1971 is a jurisdictional clause of such nature, with a pre-condition of arbitration. Ukraine could argue that its obligation to prosecute or extradite the offenders under the Montreal Convention 1971 needs interpretation in light of a scenario where the offenders are in a territory not under their control. Ukraine could also pose a question on whether Russia has a duty to prosecute or extradite the offenders under the Montreal Convention 1971 if it can be proved that Russia has effective control over the rebels and in turn, the territory they are on.

3.    European Court of Human Rights (“ECHR”) - Representatives of the German victims of Malaysian Airlines are planning to bring an action against Ukraine in the ECHR for manslaughter by negligence. .Details of the action have yet to be made known. The argument above could be used to show Ukraine’s negligence.

Conclusion

From a legal standpoint, it is manifest that there are many ways in which justice can be served. The problem is getting to the point where the prosecution process takes over. There seems to be many obstacles from an investigation standpoint. Unfortunately, international law is premised on the consent of States. The political will of the international community has a direct bearing on the likelihood of justice being served in the MH 17 tragedy.

Palestine and Statehood

Introduction

The issue of whether Palestine is a State in the eyes of international law has once again emerged in light of its membership in the International Criminal Court (“ICC”). The fact is, Palestine’s statehood cannot be questioned in the eyes of the law. This article will look at: first, the law on statehood; secondly, the history of Palestine as a State; and thirdly, Palestine under the criteria for statehood.

The Law on Statehood

In order for an entity to be a State, it must fulfil five criteria: firstly, a permanent population; secondly, a defined territory; thirdly, a government; fourthly, independence; and fifthly, recognition.

1.      Permanent population: There is no requirement on the number of citizens, neither is there a nationality requirement.

2.      Defined territory: There is no rule prescribing a minimum area of territory a State must possess. There is also no rule requiring contiguity of the territory of a State. Disputes as to the boundaries or borders of the territory of a State does not affect its statehood. Even claims on less than the entire territory of a State does affect its statehood.

3.      Government: This criterion is linked to the previous criterion of territory, as a State must have a government in general control of its territory. This control includes some degree of maintenance of law and order and the establishment of basic instructions as a bare minimum. Such control need not be effective as can be seen in the former Belgian Congo. There were various secession movements, division of the central government, dire need of international aid due to bankruptcy and the introduction of UN forces to prevent civil war. Despite all these factors, Congo was admitted into the UN as a State in 1960 without dissent.

4.      Independence: Any territorial entity formally separate and possessing a certain degree of actual power fulfils this criterion. Even protected States such as San Marino, Bhutan and Morocco were recognised as States despite having its internal and external affairs administered by other States. Foreign control overbearing the decision-making of the entity concerned on a wide range of matters of high policy and doing so systematically and on a permanent basis would disrupt statehood.

5.      Recognition: The majority view is that recognition by other States of an entity’s statehood is not required. However, the fact is recognition is important as it will eventually determine if an entity can enter international organizations as a State. What is the point of being a State factually if an entity can’t obtain the legal rights and benefits that flow from being a State?

What about the continuity of statehood when one or more of the criteria above is put in doubt after an entity becomes a State? Dame Higgins, former President of the International Court of Justice, could not have put better, ‘once in the club (of states), the rules by which admission was tested- and that always with a degree of flexibility- become less important’. Somalia continued to be a State despite not having a government from 1992 until 2000, or arguably even longer. The Order of Malta, which was once recognised as a State when situated in Rhodes and Malta, never lost its statehood despite migrating around Italy for 7 years without a territory. Unfortunately, recognition plays a vital role when it comes to continuity of statehood. For example, the former Union of Soviet Socialist Republic was allowed to continue as Russia, however, the Socialist Federal Republic of Yugoslavia was not allowed continue as the Federated Republic of Yugoslavia. The reason being that recognition by the international community was given to the former but not to the latter.

History of Palestine as a State

Palestine was recognised as a State back in 1919 where it was put under the mandate of Britain as a Class A mandate territory. This was in light of Article 22(4) of the Covenant of the League of Nations which reads:

“Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory.”

Class A mandate territories were clearly being recognised as “nations”. The term “nation” is used to denote a “State” as the “League of Nations” was an association of States. Britain extended to Palestine a number of multilateral and bilateral treaties as its Mandate and the Palestine administration executed treaties in the name of Palestine. The administration of Palestine had the authority to enact its own nationality law under Article 7 of the Palestine Mandate. The Permanent Court of International Justice regarded Palestine as a State in the Mavrommatis Palestine Concessions case between Greece and Britain.

The downfall began when the League of Nations dissolved itself in 1946. Britain was obliged to bring Palestine to independence in line with Article 22(4) as stated above, but never did. Eventually the UN General Assembly adopted Resolution 181 in 1947. The central clause of Resolution 181 states:

“Independent Arab and Jewish States … shall come into existence in Palestine two months after the evacuation of the armed forces of the mandatory Power has been completed but in any case not later than 1 October 1948”

The events that followed will not be discussed here as it would require a minimum of 10 pages. In essence, a People’s Council working with a Jewish Agency in Palestine declared statehood for a Jewish State to be called Israel in 1948 and was eventually admitted into the UN in 1949. What happened after that was an insidious illegal annexation.

Palestine under the Criteria for Statehood

Now we shall analyse if Palestine has fulfilled the criteria mentioned above.

1.      Permanent population: This criteria is certainly undisputed as Palestine has a permanent population inhabiting its territory.

2.      Defined territory: Under the mandate, Palestine’s territory was clearly defined, bounded by Lebanon on the north, Syria and Transjordan on the east, Egypt on the south and the Mediterranean Sea on the west. Although the territory was cut into by Israel after 1948, it does not affect statehood. Illegal annexation does not affect statehood as evidenced by State practice in Estonia, Latvia, Lithuania, Ethiopia, Austria, Czechoslovakia, Poland and Albania.

3.      Government: This is where the main dispute is, to be specific, on the issue of administrative control over the territory. The Palestinian National Authority (“PNA”) had control over the administrative aspect of Gaza and the West Bank. Palestinian laws continued to be in force. Legislative and executive decrees were published in an Official Gazette starting in 1994. The Palestinian Legislative Council, whose members were elected in 1996 approved laws and confirmed the appointment of cabinet members. Palestine had the three traditional branches of an executive, a legislature and a judiciary by virtue of its Basic Law of 1997. Although the Hamas assumed control in Gaza from 2007 which led to two different administrations, this does not affect statehood. The example of Somalia as mentioned above cements this.

4.      Independence: Certain writers argue that Israel’s control over Gaza prior to its withdrawal negated Palestine’s statehood. However as stated above, such control was insufficient to disrupt statehood as PNA still exercised vital functions as the government. Regardless, it is firmly established that belligerent occupation does not affect statehood as can be seen from State practice in Kuwait and Denmark.

5.      Recognition: There are too many examples to show that Palestine has been recognised as a State. Palestine is a member of numerous international organisations and treaties. Most importantly, 138 countries voted in favour of Palestine as Non-Member Observer State of the UN. This clearly shows that most States regard Palestine as a State.

Even if any of the above criteria is doubted, Palestine can still be regarded a State. There are other examples besides Somalia and the Order of Malta where statehood continues despite the absence of a criterion of statehood.

Conclusion

It is absolutely lucid that Palestine is a State under international law. The fact that Palestine is not a member of UN is clear evidence of the true nature of international law. In the international arena, law is what the superpowers say it is. Powerful States continue to fight for absolute power at the expense of millions of innocent people. Have we ever actually evolved as human beings?