Laws violated

ICC Rome statue

Article 7 Crimes against humanity 1. For the purpose of this Statute, crime
against humanity means g when committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of
the attack: If investigations do prove the Downing of MH17 to be an act of
crime against humanity it violates this
Article 8 War crimes 1. The Court shall have jurisdiction in respect of war
crimes in particular when committed as part of a plan or policy or as part of a
large-scale commission of such crimes.
Geneva convention
Article 51(2) of Additional Protocol I prohibits acts or threats of violence
the primary purpose of which is to spread terror among the civilian
population

17Th July 2014 marked a tragic moment in a still young history of Ukraine country fighting for its future and identity, facing a real threat to its security
at the eastern border, witnessed 298 deaths: victims of a plane crash, most
probably, shot down by the pro-Russian separatists, constantly destabilizing
situation in the region of Donbas. Since the situation near Donetsk and
Lugansk from the Spring 2014 can be labeled as an armed conflict, 298
victims shall not astonish anyone

on a war casualties are inevitable part of hostilities. Nevertheless, death of

these 298 people, all civilians, most of the Dutch nationality, flying from
Amsterdam to Kuala Lumpur should have been avoided
In early September 2014 the Dutch Safety Board preliminary report
confirmed the first presumptions that MH17 aircraft did not explode because
of some internal reasons, butit was heat by the 'high-energy objects' that
brought the flight down.
These conclusions lead to the highly probable thesis of shooting down the
Malaysian Airlines plane by the rocket launched from the SA-11 Buk antiaircraft missile system. First reactions of victims after the reports publication
showed that close relatives of those killed in the
catastrophe seek not only the compensation, but also truth (circumstances of
the crash)and justice (bringing the responsible to justice) [1].The

international law gives at least two conventions, which may be applied in

this particular case:
(1) the 1944 Convention on International Civil Aviation (the Chicago
Convention); (2) the 1971 Convention for the Suppression of Unlawful Acts
Against
the Safety of Civil Aviation (the Montreal Convention). Both of them are
directed at investigating the causes of a plane crash. The jurisdictional
matters slightly differ under the construction of both Conventions,
nonetheless in neither of them Russia has jurisdiction to make an official
inquiry thus, the pro-Russian rebels appeal to Moscow to commence the
investigation did not have any legal basis. Malaysian Airlines MH17 Boeing
777 crash causes a lot of legal questions Direct implications of the tragedy.
Firstly, we need to ask who is responsible for this criminal act, what is more,
on two layers (1) potential state responsibility and (2) individual criminal
responsibility. Moreover, the act itself may constitute a war crime, belonging
to group of so-called international core crimes that may internationalize
investigation. Eventually, there are doubts of the International Criminal Court
(ICC) involvement and its possible jurisdiction over the MH17 case.
Since the MH17 deliberations are still in progress (similarly to the armed
conflict in theEastern Ukraine),1 all insights presented in this paper are of
mostly hypothetical character
In addition to whatever direct involvement these states may have had in the
destruction of the aircraft, they could also be held liable for other
internationally wrongful acts. For example, Ukraine could be responsible for
failing to secure the right to life of the victims and failing to comply with its
substantive positive obligations under Article 2 ECHR by deciding not to close
the relevant airspace for civilian traffic. Russia could be held responsible for
providing the rebels with anti-aircraft weaponry without sufficient safeguards
(e.g. appropriate training of the missile crews), thus creating the risk that
this weaponry could be used against civilian targets. Both states could be
held responsible for failing to secure an effective investigation into the
incident. Obviously the facts could yet develop and some very complex
preliminary issues could arise (e.g. the extent of Russias control over the
Ukrainian rebels and the question of the ECHRs extraterritorial application),
but all these points seem arguable.
Consider the possibility of the involvement of the International Criminal
Court. The destruction of MH17 undoubtedly took place in the context of an
armed conflict (the existence of which the ICRC appears to have made clear
to the parties). That conflict is prima facie a non-international conflict
between the Ukrainian government and the Donetsk rebels, which satisfies

the Tadic criteria of intensity and organization. Depending on the extent of

Russias control over the rebels, the conflict could also be qualified as an
international armed conflict between Russia and Ukraine. But regardless of
how the conflict is classified a deliberate attack against civilians or civilian
objects would constitute a war crime, for which the relevant individuals
would be criminally responsible directly under international law.
Now, neither Ukraine nor Russia are states parties to the Rome Statute.
However, Ukraine has recently amended its Constitution so as to allow for
the ratification of the Rome Statute, and indeed has already made an ad hoc
declaration under Article 12(3) of the Statute accepting the Courts
jurisdiction for crimes committed on its territory from November 2013 to
February 2014. Such declarations can be retrospective, and nothing would
formally stop Ukraine from making another such declaration for the attack on
MH17.
As the facts become clearer (as they hopefully will), the international
pressure for the prosecution of those responsible will only mount. Its
certainly not inconceivable that the ICC would become involved, or that we
have some kind of ad hoc solution a la Lockerbie (a Ukrainian court sitting in
the Hague?). Time will tell, but hopefully international law and international
courts will provide at least some contribution to achieving a modicum of
justice for the hundreds of victims of flight MH17.
Concerning the possibility of a war crime - or any other grave violation of
international law - we have to distinguish the situation of state responsibility
And individual criminal responsibility. It is important to underline that
prosecution and conviction of an individual does not preclude the state
responsibility for the same act or omission (dual legal responsibility).
Considering state responsibility , at least in theory, we may indicate three
potential subjects: 1) pro-Russian separatists, 2) Russia and 3) Ukraine. The
first one is non-state actor, two latter are classical subjects of international
law, thus subordinated to the Lawson state responsibility for internationally
wrongful acts (governed by the customary law, mostly reflected in the 2001
UN Draft Articles on State Responsibility [2, Art. 8]).Dismissing the Ukrainian
responsibility as irrational and direct Russian responsibility as hardly
impossible to prove, the act of downing Boeing 777 should be factually
attributed to pro-Russian rebel forces (it is worth reminding that soon after
the catastrophe one of their leaders, Igor Girkin vel Strelkov, admitted fact of
shooting down the airplane on social media channels). Nevertheless, proRussian separatists, even though claiming the creation of a new state

Novorossiya, containing two peoples republics: Donetsk and Lugansk, s

till remain the non-state actor. That is why, we should examine the possibility
of attributing their acts to the Russian Federation, which actively supports
rebels, operating in the easternUkraine. According to Article 8 of the
abovementioned Draft Articles a state may be held responsible for acts
conducted by non-state actors, if the person or group of persons is in
fact acting on the instructions of, or under the direction or control
of, thatState in carrying out the conduct . Ergo , test of directing and control
must be applied,which would highlight and prove the effective control of
Moscow over the pro-Russian separatists. International Court of Justice (ICJ)
in the Nicaragua case of 1986 did not find the effective control of USA over
contras, paramilitary forces fighting against the
Nicaraguan government, even though US authorities widely and actively sup
ported these groups [3]. ICJ stressed that to attribute actions conducted by
contras to USA, it is significant to prove the US effective control over a
specific operation, while which international law was violated.
Similarly, ICJ in the Genocide case of 2007 [4] did not attribute conduct of
Republika Srpska Army (VRS), including the crime of genocide committed in
Srebrenica in July 1995, to Federation Republic of Yugoslavia (then Serbia),
since, according to the Courts reasoning, VRS possessed sufficient scope of
autonomy, thus all decisions were undertaken independently, with no
command of Belgrade. These two leading cases clearly point that in order to
attribute the MH17 downing to Russia at least two elements must be proven:
1) the effective control of Kremlin over proRussian rebels (and lack of autonomy in taking decisions); 2) directing andeff
ective control over the particular act of shooting down the plane that
infringed international law especially the second one appears to be strongly
problematic in a given circumstances. To draw a full picture, Ukraine cannot
be found responsible for proRussian rebels conduct, even though it occurred on the Ukrainian territory
Kyiv did not control Donbas in the day of tragedy.
The biggest obstacle in the course of determining whether the downing of
MH17 was a war crime - or as Ukrainian President Petro Poroshenko
announced during the first day after the tragedy: crime of terror - is to
indicate the intent of crime. Without the intent of crime
like in an analyzed circumstances, when, according to Prof. W.
Schabas words: targeting civilians is a war crime, but it seems right now not
to be
likely that the plane was deliberately targeted. If its negligence, then its
manslaughter the legal qualification of the conduct changes, giving no
possibility of prosecuting for a war crime [7].
The second significant consequence connected with the IHL norms is the
definition of pro-Russian separatists under the laws of war label. If we

assume that situation in Donbas during the mid-July 2014 constituted noninternational armed conflict, then, bynature, two parties to the conflict exist:
(1) Ukrainian regular army forces and (2) pro-Russian separatists. As a result
of confirming the legal status of separatists ascombatants, Ukrainian
authorities cannot prosecute and eventually punish them as Terrorist or
criminals just by undermining the legal and factual order of a country and
taking part in hostilities (to some extent being beyond the law). To remind
-Poroshenko's actions directed at separatists forces were immediately named
as a 'anti-terrorist campaign', constantly emphasizing the unlawful conduct,
undertaken by 'Donbas' guerillas'. Decision to confirm the combatant status
probably would diminish the Ukrainian President's policy, however, at the
same, it would lead to clear duties set on both sides of the dispute undoubtedly numerous acts of pro-Russian forces could be classified as
serious violations of IHL or war crimes (it may serve as a privilege for
Ukrainians in the eventual court's trial).
International or domestic trial?
Many commentators analyze the possible interference by the International
Criminal Court (ICC). The ICC involvement and the potential prosecutions
lead by the first permanent world's criminal tribunal would definitely
strengthen the judicial response to the MH17 tragedy, showing respect to the
victims' families, as well as enhancing the international position of the Court
itself. Moreover, the conviction by the ICC is of much more significance (also
from the symbolic point of view) than judgment issued by any domestic
court. Although, neither Ukraine, nor Russia are state-parties to the Rome
Statute, the legal 'constitution' of the Hague's tribunal, which makes it much
more complicated to trigger the Court [8, pp. 76-82].One possibility touches
the UN Security Council (UNSC) referral under Article 16 of the Statute.
Nonetheless the presence of the Russian Federation as a permanent member
of the Council (belonging to so-called P5 group) and its veto power to block
any UNSC resolution hinders making this option real [9]. Because of the
same reasons, it is hard to foresee any ad hoc tribunal (or any investigation
organ) established by the UNSC in order to determine the individual criminal
responsibility concerning the MH17 crash. Another chance for the Court to
jump into action is the declaration of the acceptance of the jurisdiction of the
ICC, submitted by Ukraine to the Court's Registrar
Office. Needless to say, Ukraine has already submitted one declaration, conc
erning KyivMaidan's events and the alleged crimes against humanity,
committed by the government forces (starting from the former President
Viktor Yanukovych) from November 2013till February 2014. The Prosecutor of
the ICC decided to open preliminary investigations, which may lead to the
concrete cases against the perpetrators of heinous crimes aimed at the
peaceful protesters on Maidan. Nevertheless, those decisions taken by
the ICC and Verkhovna Rada (to ad hoc accept the jurisdiction of the Court)
do not affect any other examples of crimes (including the MH17 downing)
committed on the territory of Ukraine. To cover these criminal acts by the ICC

jurisdiction another Ukrainian declaration is needed, this time, with reference

to war crimes that possibly did happen in Donbas region (ratione materiae)
in the course of carefully defined time limit (ratione temporis). Since the ICC
Prosecutor is not bound by the state declaration's content (like for example
the indications to prosecute x,Y or z ), Ukraine shall point very carefully the
initial date of the ICC jurisdiction ratione temporis regarding the situation on
the east of Ukraine, e.g., the day of the first hostilities in Donbas - starting
from this date all criminal acts, falling within the ambit of the jurisdiction, can
be inquired by the Court. Anyway, the best solution for Ukraine is simply to
ratify and become the regular state-party to the Rome Statute, which
would open all legal actions stipulated by the Statute, with the most
prominent one (in case of political will to 'invite' the Court), i.e. self-referral
(Article 14).Problem with the Court's jurisdiction is just the primary one, since
the decision to open investigation still lays with the competences of the
Prosecutor. She (Ms Fatou Bensoudafrom Gambia) needs to take into
considerations all accessible information andcontemplate whether the MH17
downing may constitute a war crime. If there requirements of war crime
definition of the Rome Statute are not met (which may be found in Article 8
of the Statute), the MH17 case is beyond the jurisdiction and interest of the
Court and, by so, should be abandoned. Besides that, problems of gathering
evidences appear (necessity of a cooperation with any fact-finding body,
operating at the place of a crash), which will not accelerate the Hagues
international institution decision to start proceedings. Considering punishing
the persons responsible for shooting down the plane under Ukrainian
criminal code as an act occurred in the territory of Ukraine, Kyiv has a full
right (and obligation) to prosecute and adjudicate the perpetrators of such.
Fortunately, the amnesty statute enacted by Verkhovna Rada on September
16, 2014 [10], covering pro-Russian separatists crimes committed in order
to secure peace in the eastern Ukraine, does have exception for those, who
committed serious violations (including the MH17 downing) [11]. In this case,
the question remains whether the Ukrainian authorities will have enough
political strength and motivation to pursue justice and punish the
wrongdoers of Boeing 777 crash. The other possibility is the prosecution led
by any other state involved in a tragedy. Asit is clear, the Dutch authorities
immediately after the catastrophe launched an investigation (the Dutch
criminal law makes it possible to prosecute anyone accused of killing the
Dutch citizen, even if a crime occurred on foreign soil) this time, as in acase
of the ICC involvement, the biggest issue is to gather the precious
evidentiary material. Eventually, it might appear that suspected persons hid
themselves in the Russian Federation territory, what will open the legal
discussion on an extradition submission, most probably declined by
Kremlin. Nonetheless, any national authorities of the countries involved, woul
d probably notargue in favor of a war crime, which demands the higher
burden of proof, relying on thelegal construction of murder much more
easy to prove by a prosecutor during a trial

Seeking redress for victims

The issue of seeking redress for victims of the tragedy, or being more
precise, the families of the direct victims of a plane crash, appears to be of
the same significance as the question of a legal responsibility of an act itself.
Just after the catastrophe the Malaysian authorities (alongside the Airlines)
granted first compensation (an advance financial assistance) of 5.000 EUR,
declaring increasing the total amount of material compensation up to 50.000
EUR. Nevertheless, these actions are rooted in a free will of Malaysia, also
trying to somehow improve the situation of Malaysian Airlines in the eyes of
potential worldwide clients (also bearing in mind the MH370 plane that
disappeared while flying over South China Sea and Andaman Sea in March
2014).According to recent news (late September 2014) the German survivors
of victims ofMH17 tragedy want to sue Ukraine before the European Court of
Human Rights(ECHR) in Strasbourg, demanding 1 million EUR compensation
for each victim [12].The application is going to be based on the possible
violation of right to life, secured by the European Convention on Human
Rights. The main argument of the legal actions victims touches the nonclosure of the Ukrainian air space in the course of warfare and, by so,
infringement of passenger's right to life (Art. 9 of the Chicago Convention
urges states to declare non-fly zone for reasons of military necessity
or public safety). It is necessary to underline that Russia is also a party to the
Convention, although the lawsuit will not tackle Kremlin. The author of the
claim, the German expert of an aviation law Elmar M. Giemulla, does not
eliminate the possibility of suing Russia as well in the future [13], however it
might meet the huge pressure (coming mainly from the Old Europe
countries) not to attack Moscow in Strasbourg. Does the suit have the
chance to be positively adjudicated (ergo, against Ukraine) by the ECHR? It
cannot be excluded, but the Court should carefully examine the possible
contribution by the Malaysian Airlines by not changing its flight route (as was
done by Air France or British Airways), being aware of the war happening in
Donbas region. The other possibility, which may sound completely unreal at
the moment, is that the Russian Federation would decide in the future to pay
the compensation for the victims of the tragedy ex gratia, without any trial
(ergo, without finding Russia legally responsible for the MH17 crash). Such
cases were observed in the recent history, e.g. in the case of shooting down
the Iranian Airbus A300 B2-203 by the rocket launched from the USS
Vincennes in 1988 [14] the US authorities paid the compensation, but
without admitting its legal responsibility, especially in a potential case of a
trial before an independent international court [15].
Conclusive remarks
The MH17 crash was a huge tragedyin a few seconds people from different
parts of the world, sometimes completely unaware of the situation in
Ukraine, became victims of a war. The Boeing 777 catastrophe raises a lot of
legal questions and doubts. Even though we might feel quite assured who is

factually responsible for shooting down

the plane, many complications will appear on a way to pursue justice and pu
nish those responsible. First of all, as pro-Russian separatists cannot be
treated as a state and a crime itself cannot be attributed to Russian
Federation (lack of effective control) the inter-state complaint, for instance
brought before the International Court of Justice, is almost not possible to
come true. Secondly, most probably the act itself cannot be classified as a
war crime or crime of terror (lack of intent of crime), thus the possibility of
the interference of the International Criminal Court (lack of jurisdiction) shall
be abandoned. Thirdly, the perpetrators of a crime may be brought to justice
by the national authorities of states involved, e.g. Ukraine or The
Netherlands, which most probably would rely charges on the construction of
a murder (manslaughter) instead of a war crime, which might appear less
problematic for the prosecutor to prove .Eventually, considering seeking
redress for victims, we have to remember that besides the compensation
paid by the Malaysian Airlines (or Malaysian state), families of the direct
victims of the tragedy may seek damages also on the international forums.
One of which is European Court of Human Rights both Ukraine and the
Russian Federation accepted the jurisdiction of the Court by ratifying the
Convention, but, with regard to recent news, it would be Ukraine to face the
litigation in Strasbourg at first