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.