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"We will not rest until we are certain that!ustice is done," president arack $bama wrote. "Opular sentiment points to the '-as the obvious venue for any crisis. But the court turns out to be a pretty unlikely place for achieving accountability.
"We will not rest until we are certain that!ustice is done," president arack $bama wrote. "Opular sentiment points to the '-as the obvious venue for any crisis. But the court turns out to be a pretty unlikely place for achieving accountability.
"We will not rest until we are certain that!ustice is done," president arack $bama wrote. "Opular sentiment points to the '-as the obvious venue for any crisis. But the court turns out to be a pretty unlikely place for achieving accountability.
for the 298 people killed. But determining whom to go after -- and how to hold them responsible -- wont be easy. BY REBECCA HAMILTON-JULY 25, 2014 When a catastrophic event like the downing of Malaysia Airlines Flight 17 occurs, there is an understandable demand for accountability. We will not rest until we are certain that !ustice is done, "resident #arack $bama wrote on %uesday in a &utch condolence book for the victims of the crash. 'n the immediate aftermath of the shoot(down, )krainian "resident "etro "oroshenko similarly vowed, We are sure that those who are guilty in this tragedy will be held responsible. #ut the *uestion stands+ Where can !ustice be found, "opular sentiment points to the 'nternational -riminal -ourt .'--/ as the obvious venue for any crisis that makes world headlines. Former )krainian "rime Minister Arseniy 0atsenyuk, who resigned on %hursday, had called for an investigation by the '--. And even 1ichard -larke, counterterrorism aide to former ).2. "resident #ill -linton and both #ush administrations, wants those responsible handed over to the 3ague(based court. %he '--, however, turns out to be a pretty unlikely place for achieving the accountability that people are clamoring for. Although !ournalists sometimes refer to it as the world court, the '-- doesn4t actually have the authority to prosecute international crimes wherever they occur. %he court has the authority to prosecute crimes that took place in a state that has !oined its founding treaty, known as the 1ome 2tatute, or that were committed by a national of a state that has !oined. 5ike the )nited 2tates, neither 1ussia nor )kraine has rati6ed the treaty, so the '-- can4t go after those countries4 nationals or look into crimes that occurred on their territory. %here are, however, two e7ceptions to this general rule. First, the ).8. 2ecurity -ouncil can refer a situation to the '--. %his is how the court got !urisdiction over crimes committed in 2udan and 5ibya, even though neither of those countries has signed on to the '--. A 2ecurity -ouncil referral of the M317 situation, however, seems like a non(starter+ 8o one with a shred of political acumen can imagine 1ussia, a veto(wielding member of the council, agreeing. %he second possibility is for a state that has not !oined the '-- to agree nonetheless to give it !urisdiction for a particular period of time. 'n fact, )kraine has done this before+ 'n April, it granted the court the right to investigate crimes committed on its territory between 8ovember 9:1; and February 9:1<. %his kind of self(referral may be the most probable way for the '-- to get !urisdiction over M317, but it would not be without complications. Although it is undoubtedly in =iev4s interests to see pro(1ussian rebels investigated by the court, the grant of !urisdiction comes with a catch+ A state that gives the court !urisdiction cannot then dictate which actors, or which crimes, the '-- chooses to investigate. 2o if the '-- found that )krainian actors committed crimes in the same time period, unrelated to M317, it could prosecute those, too. >iven the state of con?ict on the ground, =iev cannot be sure that it won4t be on the hook for wrongdoing. @ven if all these !urisdictional hurdles could be overcome and the '-- gets the chance to conduct an investigation, a successful prosecution is still far from inevitable. A prosecution would likely involve war crimes charges of murder and attacking civilians, says Ale7 Whiting, a professor of practice in international criminal law at 3arvard. 3e adds, however, that this would re*uire the prosecutor to prove the rebels actually knew that they were targeting civilians. -omments by a ).2. intelligence oAcial reported in the Guardian on %uesday suggest that the rebels who shot down the plane were surprised to discover it was a civilian airliner. 'f those who shot down the plane did know it was a civilian aircraft, intercepted communications might demonstrate evidence of their intent. #ut governments are often reluctant to share that kind of information with the '--. Without such evidence, proving intent would be e7tremely challenging, Whiting says. "hrases like 4war crimes4 and 4crimes against humanity4 get thrown around pretty casually, says international prosecutor and war crimes e7pert =en 2cott. #ut these crimes have certain legal elements. And meeting the re*uirements set by those elements could prove diAcult. >iven these obstacles, !ustice for an event that has garnered such global attention may, perhaps counterintuitively, re*uire a turn to the local level. %here are long(standing legal grounds for relatives of the victims to look for redress in national courts, says 1ichard &icker, director of the 'nternational Bustice "rogram at 3uman 1ights Watch. 2tates that have an interest in the case (( )kraine, Malaysia, the 8etherlands, or Australia, for instance (( either because it occurred on their territory, or because they had nationals onboard, could prosecute. And manslaughter charges available under domestic law would not face the same intent problems that beset war crimes charges. #ut though the legal hurdles can be more easily overcome at the domestic level, the practical challenges would remain. >etting unfettered access to the site ... and ultimately getting custody of any persons charged (( none of these things can be taken for granted, 2cott says. CCC 5ooking beyond those who actually 6red on the plane, what can be made of the $bama administration4s claims that the provision of weaponry, as well as the training and support needed to use the kind of #uk missile that can reach a civilian airliner, are attributable to the 1ussian state, -ould some measure of !ustice be gleaned by pinning a degree of responsibility on Moscow, %o answer this *uestion, another 3ague(based court becomes relevant. %he 'nternational -ourt of Bustice .'-B/ ad!udicates disputes between states, and it has had to grapple with a similar case in the past. 'n 1DEE, the )22 Fincennes shot down 'ran Air Flight GHH over the 2trait of 3ormuI, killing all 9D: passengers and crew. 'ran claimed that, in shooting down the plane, the )nited 2tates had violated treaties that both countries had signed. )nhappy with the decision of the aviation authority that ad!udicated the treaty violation claims, 'ran took the dispute to the '-B. %he two treaties involved in the )22 Fincennes incident are in play with M317 as well. %he -onvention on 'nternational -ivil Aviation prohibitsstates from using weaponry against civilian aircraft. %he -onvention for the 2uppression of )nlawful Acts Against the 2afety of -ivilian Aviation re*uires states to prosecute or e7tradite anyone who destroys a civilian aircraft. #ut alongside the similarities, there are also important diJerences in the two cases. 'n the )22 Fincennes case, attribution to the )nited 2tates was clear(cut because the missiles came from a ).2. warship. Attribution will be more diAcult in the M317 case, with complicated factual and legal *uestions about whether those responsible were agents of 1ussia or somehow under its 4eJective control,4 says "hilippa Webb, an '-B e7pert at =ing4s -ollege 5ondon. 'n the )22 Fincennes case, the '-B never reached a ruling because, in 1DDG, the )nited 2tates settled the case by paying KG1.E million in compensation to the victims4 families. %his situation is typical, Webb e7plains+ %he '-B does not have an encouraging track record for resolving aerial incidents. 8o case has ever reached the merits. 2o while the '-B remains a potential venue to eventually bring a claim against 1ussia, the net result, if the precedent is any indication, may well be an out(of(court settlement. And if monetary compensation was the central issue, a *uicker route for the victims4 families would be through the Montreal -onvention, which obligates airlines to pay damages for the in!ury or death of passengers. Bustice for the M317 tragedy, however, demands more than that. %he families of the victims deserve to learn the truth about how 9DE people lost their lives, and the *uestions of e7actly what happened and who is responsible are still a long way from being answered. %he events of Buly 17 are un*uestionably of international concern. #ut for those looking for accountability in the downing of M317, it may be the national avenues for !ustice, not the global ones, that are best suited to give it to them. 1$#'8 FA8 5$8=3)'B2@8LAF"L>etty 'mages