MH17 crash under legal scrutiny
THE Malaysian Airlines plane crash in the eastern part of Ukraine on the last Friday raises a lot of doubts and questions, not only of political character, but also the legal one. Who is responsible for shooting down the aircraft with almost 300 passengers and plane crew? Is it possible to attribute this action to any state? Finally, would it be easy to prosecute and punish the perpetrators of the tragedy?
Most of the foreseen issues are of complicated nature, which is even multiplied by the factual situation in the Donetsk region. Ukraine and other involved states in the tragedy, like the Netherlands or Malaysia, postulated the establishment of an international commission to carry on the independent inquiry. Bearing in mind the obligations under the 1944 Chicago Convention on International Civil Aviation that force the host-state (Ukraine, in particular) to undertake actions aimed at the proper investigation of the causes, if the plane crushes, this article is to shed more light on the legal character of shooting down MH17 – was it an act of terrorism or the war crime? If yes, who is to be held accountable?
The most possible scenario in which the Malaysian Airlines plane was shot down by the pro-Russian rebels (their leader Igor Girkin vel Strelkov confirmed it on the Internet social media), operating in the Donetsk Oblast does not preclude the direct involvement of the Russian Federation, however makes it very difficult to find any link between separatists and Russia. In such situation, we talk about the non-state actor(s), controlling some part of the Ukrainian territory, being (most probably) equipped, trained and politically, logistically and financially supported by the Putin's Russia. Both countries – Ukraine and Russia constantly blame each other for causing the MH17 crash. It is true that the tragedy took place on the Ukrainian soil; nevertheless it does not automatically lead to its international responsibility. Contrary, the Ukrainian government is only de iure host of the eastern part of the country, which is de facto ruled by the pro-Russian rebels and, by so, has no influence on what was happening in the Donetsk region since few months time. On the other hand, in order to attribute the action conducted by separatists to Russia we need to prove that the latter possesses effective control over the rebel groups (e.g. the chain of command), what appears to be problematic, especially in the light of (any) international court proceedings (compare for instance the Nicaragua case of 1986 before the International Court of Justice).
Concerning the individual criminal responsibility, it is necessary to underline that the situation in the eastern Ukraine creates the case of the so-called non-international armed conflict. Again, to speak about the 'full' international armed conflict, we should prove any form of the Russian direct involvement. Maybe, if the missiles were launched from the Russian territory, it would internationalised the conflict, but this is still just the hypothesis without any hard confirmation. The non-international armed conflict is definitely less described in the international humanitarian law regulations, although the rule of distinction (MH17 was the civil object) still applies.
However, to judge that shooting down the Malaysian aircraft was a war crime or – how it is indicated by the President of Ukraine Petro Poroshenko – a crime of terror, it is essential to prove the intent of the potential perpetrator. Both crimes to be committed require also the mental element to be met by the wrongdoers, which basically means intent and knowledge of a crime. We have to remember that one possibility of the Friday's tragedy sequence provides rebels into shooting down the military Ukrainian aircraft, only by accident firing at the civil plane. If it confirms, we cannot speak anymore about a war crime, but – at most – only grave breaches of Geneva Conventions, although to state it still wrongdoers need to have 'guilty minds'. The next problematic issue connected with laws of war is linked to the legal status of the rebels –the Ukrainian authorities cannot bring them to justice 'just' for taking part in hostilities (as terrorists, for instance), if the formal status of rebels as combatants is confirmed.
A war crime, at the same time belonging to the international core crimes, would entail the possibility of the international prosecution. Unfortunately, neither Ukraine, nor Russia (most of the rebels are Russian citizens) is the state-party to the Rome Statute of International Criminal Court.
To trigger the Tribunal without the ratification, the UN Security Council's referral is necessary, however Russia as a P5 member effectively bar such solution. Because of the same reasons it is not possible to establish any temporal international body, with mandate tailored solely on the Malaysian aircraft crash. Of course, each non-member state can ad hoc accept the ICC jurisdiction, as it was done by the Ukrainian government concerning crimes committed on Maidan in Kyiv during protests against the former President Viktor Yanukovych, but even if Ukraine decides so, there is a long way to open an investigation before the Hague Tribunal. Inquires conducted by the local authorities in Ukraine are at risk of being ineffective, mostly because of the difficulties to get as fast as possible to the place of catastrophe and collect evidences. Moreover, pro-Russian rebels are obviously not in a position to cooperate with Ukrainian government in identifying the people responsible.MH17 crash was an extra-ordinary, hard to believe tragedy, but for the legal, sufficient response, which would guarantee that the perpetrators will be bring to justice, we still lack too many elements.
Either individual, or state responsibility for the abovementioned reasons appear to be almost 'mission impossible', at least at present, for any, domestic or international body. If the Russia-Western World relations improve in the future, maybe Putin would decide to compensate victims of the tragedy, but only ex gratia, with no courts' trials and without any official confirmation of the Russian responsibility.
The writer is PhD Candidate at the University of Lodz, Poland.
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