Nearly 100 individuals were involved in transporting and operating the BUK surface-to-air missile launcher that shot Malaysia Airlines’ Boeing 777, known as Flight MH17 outside of Torez on July 17, 2014. The SAM launcher was driven into Ukrainian territory from Russia and after the passenger plane was shot down, killing all 298 people on board, it was removed to Russia again. What’s more, the missile was launched from territory that was controlled by Russian proxies at the time of the tragedy: an elevated field stretching about 500 by 600 meters near the village of Pervomaiskiy, Donetsk Oblast.
These are the main conclusions in the interim report of the Joint Investigation Team (JIT). The team itself included representatives of five countries: Australia, Belgium, Malaysia, the Netherlands and Ukraine. These conclusions already constitute a major announcement that preparations are underway for lawsuits both against individual suspects and against Russia as a state.
The thoroughness with which evidence was collected and studied, the clarity and consistency of the work of the JIT, and the way that the actions of diplomats from the five participating countries were coordinated were quite remarkable. This gives reason to believe that we will see specific steps taken to bring those responsible to justice. Still, all is not so simple, as might have been anticipated. The Team’s next phase of work will be focused on identifying suspects in the return of the BUK. Meanwhile, both the lawyers and the diplomats will have to decide which of several possible pathways they will take.
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First of all, it’s critical to recognize that, when it comes to punishing the guilty, the Russian leadership will most likely either not cooperate with the investigation or will actually sabotage it. It’s also unrealistic to think that Russia will give up the suspects. Russian politicians, official representatives and military command began firing a series of statements, like missiles from a Grad, intended to discredit the evidence presented, the role of Ukraine in the investigation, and the work of the JIT itself.
The official representative of Russia’s Defense Ministry, Maj.-Gen. Igor Konashenkov, stated: “No Russian SAM system, including the BUK, ever crossed the Russian-Ukrainian border.” Maria Zakharova, spokesperson for the Russian Foreign Ministry, claimed: “Arbitrarily deciding who is guilty and inventing the desired results has become the norm for our western colleagues.” Even after the international report was presented, based as it is on information from radar installations, captured conversations among the militant proxies, images from satellites, information from social networks, and eye-witness testimonies, the Russian side kept insisting that MH17 was shot down by Ukraine’s Armed Forces.
Many ways to skin this cat
So the most ideal path to punish the guilty would be to set up an ad hoc international criminal tribunal based on a decision of the UN Security Council. This would bring to life the dream of “Putin in the Hague.” However, in July 2015, Russia, which is a permanent member of the Council, vetoed such a proposition.
The next option to setting up such an international tribunal, which is proposed by international attorney Volodymyr Vasylenko, a sitting judge on the International Criminal Tribunal on Former Yugoslavia (2001-2005): this kind of tribunal can actually be based on the approval of the UN General Assembly instead of the SC. In 1950, the GA passed Resolution #377 called “Uniting for Peace.” This document was intended to allow the GA to approve the necessary resolutions when the Security Council proved to be incapable of taking effective measures against countries that are violating international peace and security. At that time, Russia, in the form of the USSR, was blocking the necessary resolution regarding North Korea, which had attacked South Korea.
However, there are three problems with this mechanism. Firstly, the General Assembly can only approve recommendations. Its decisions are not legally binding. Secondly, Russia and its satellites will obviously vote against any such resolution. And so the legitimacy of an international tribunal established on this kind of wobbly legal basis could easily be challenged. Moreover, Belgian domestic law prohibits the country from participating in the formation of such a tribunal without the necessary decision of the UNSC. If there were the necessary political will to do so, the Charles Michel Government might even propose amendments to Belgian law. However, the Belgian system requires such decisions to be approved, not only by the national parliament but also by the legislatures of all three regions. This could take years.
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A third option for bringing the guilty to justice is to launch a criminal investigation with the intent of then turning it over to a national court. This can be done within the Ukrainian court system or that of the Netherlands, as the country that lost the most citizens in the tragedy. At a meeting between the Foreign Ministers of Australia, Belgium, Malaysia, the Netherlands, and Ukraine at the UN GA in September, this was the scenario under discussion. For objective reasons, the Dutch court system has a clear advantage over Ukraine’s. Firstly, its reputation worldwide is flawless, which can hardly be said about Ukraine’s judiciary. Secondly, if the case against those suspected in shooting down the passenger plane is handed over to Ukraine’s justice system, Russia’s propaganda machine will simply present it as a farce and sacrilege. With the Dutch court, this will be a lot harder to do.
Yet these aren’t the only options available to Ukraine, the international community, or the families of the victims. Arseniy Herasymiv, an attorney for the Illyashev & Partners law firm, says that the most effective place to bring Russia to justice for shooting down MH17 would be the European Court of Human Rights in Strasbourg (ECHR). The families of the victims would do well to work actively on this option. Its advantage is that in its practice, the court’s justices have proposed a flexible understanding of the jurisdiction of a country over a given territory. It has recognized that when, a country loses control over part of its territory due to war, the presence of occupying forces, or restricted access to that territory because ‘separatist movements’ supported by another state control it, that country is no longer held responsible for violations of human rights on that particular territory. Responsibility lies with the state that de facto has control over the territory, including through ‘separatists.’
This particular approach is based on the notion of “effective control of territory,” and has evolved in cases involving events in Transdnistria, Nagorno-Karabakh and the Turkish Republic of Northern Cyprus. These are all territories of sovereign countries that were occupied by a foreign state or separatist groups supported by another state. Russia has already had to testify in the ECHR in defense of separatism.
The case of Cyprus against Turkey over the occupation of a part of the island country is quite illustrative. Turkey challenged the notion that it was occupying based on the jurisdiction of the “Turkish Federated State of Northern Cyprus,” a marionette state set up along the lines of LNR and DNR in Ukraine.
“In the end, the court rejected Turkey’s arguments,” Herasymiv told The Ukrainian Week. “It said that the jurisdiction of a state extends not only across territory or on territory, but also with the help of the actions of persons and assets controlled by it within the jurisdiction of this state. And that’s exactly what has taken place in Eastern Ukraine. The delivery and removal of the BUK missile complex with an RF Armed Forces crew, the illegal crossing of the border, and, added to this, the political, economic and military support of DNR and LNR on Russia’s side, then these facts are more than enough to declare Russia responsible.”
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Thomas Grant, an international attorney and professor at Cambridge University told The Ukrainian Week that there is yet another international mechanism for bringing Russia to justice for shooting down the passenger plane with a BUK brought in from its territory—the International Civil Aviation Organization (ICAO), of which Ukraine is a member. And handling disputes among countries is part of the ICAO’s remit. According to Art. 3 of the Chicago Convention, which regulates foundation issues in civil aviation, “Every state must avoid the use of weapons against civil aircraft during flight.”
“The ICAO Council would try to avoid the difficult questions — in particular, the factual questions about what happened, and the legal questions about whether the conduct of the people who fired the weapon can be attributed to Russia for purposes of legal responsibility,” explains Grant. “If the Council refused to answer the questions, or if it gave an answer which the states bringing the dispute to the Council believed to be incorrect, then those states would have a right to appeal to arbitration. If Russia refused arbitration, they can then turn to the ICJ. (Of course, Russia, too, would have the right of appeal). This means that the dispute could be given a hearing at the international level, even if the result of that hearing would be uncertain.”
Naming things their proper names
Meanwhile, specialists in international law that The Ukrainian Week surveyed listed at least three legal issues that the plaintiff will face, regardless of which path is taken to sue those guilty for the tragedy. First is identifying the nature of the crimes committed. Among others, regardless of the international investigation into the downing of MH17, Ukraine is bringing into force the 1999 International Convention on the Battle with Financial Terrorism. In relation to violations of its provisions, Ukraine and Russia have already had several rounds of negotiations, during which the issue of MH17 also came up. The Convention provides for arbitrage if the sides in a dispute cannot come to terms. Why is it important to bring up this convention in relation to the prospects of investigating Russia as a state and its citizens for the shooting down of a civilian airplane? By bringing it in, the Ukrainian side considers this crime as a terrorist act as well. If the downing of MH17 is recognized at the international level as a war crime, that would be formally incompatible with the way that Ukraine is trying to get it recognized based on this convention.
The thing is that Ukraine as a state lacks a strategy for identifying Russia’s crimes in a legally proper manner at the level of national courts, or for collecting evidence and transferring it to international courts. Both Ukrainian and foreign legal experts have advised Ukraine to set up a separate body to coordinate the preparation of lawsuits against Russia at the international level. So far, nothing has been done.
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“In reality, everything is happening chaotically, from case to case,” says lawyer Stanislav Batryn, whose CSO Open Court has been gathering evidence of Russia’s crimes in Ukraine. “A perfect example of this is the situation with the signing of a contract with the RF legalizing the Crimean Federal District by MinEnergo. Similarly, Ukraine has failed to put together a strategy for qualifying Russia’s actions: support of terrorism or direct invasion.” Batryn’s organization collects proofs of Russia’s crimes in Ukraine. It has initiated a court case to establish the fact of Russia’s military aggression against Ukraine at the Shevchenko District Court of Kyiv. In May of this year, the court ruled against this.
In terms of the history with the Boeing 777, most lawyers agree that this was a war crime. Vasylenko also says that the downing of MH17 was a war crime and a crime against humanity, not an act of terrorism, as it took place during an armed conflict and led to the mass murder of civilians.
Choosing the right tools
In any case, this crime should be considered as one episode in Russia’s continuing aggression against Ukraine, so it would make sense to include the evidence gathered by the JIT in Ukraine’s suit against Russia in the International Criminal Court in the Hague. In February 2015, the Verkhovna Rada issued a resolution acknowledging its jurisdiction regarding “crimes against humanity and war crimes carried out by highly-placed Russian officials and the leaders of two terrorist organizations known as LNR and DNR. Such crimes have led to especially heavy consequences and the widespread killing of Ukrainian citizens.”
The prosecutor in this international court still needs to decide whether to open this case or not. The key factor in this case is the evidence presented by the Prosecutor General’s Office (PGO) of Ukraine, the Security Bureau of Ukraine (SBU) and the Ministry of Internal Affairs (MIA). A first attempt to get a case heard in The Hague already failed, in this instance, related to the crimes on the Maidan. The quantity and quality of evidence presented by Ukraine’s law enforcement agencies did not persuade the Hague prosecutor. Ukraine’s own Foreign Ministry has hinted that the PGO’s work in preparing evidence was unsatisfactory.
The results of the investigation into the MH17 catastrophe really is a boon for Ukraine: here, all the materials are ready and only need to be handed over to The Hague, that is, attached to the case. However, if Ukraine has any intention of someday suing Russia for damages for its military aggression in Eastern Ukraine and its annexation of Crimea, Ukraine must continue to document all possible evidence on its own as well.
In addition to this problem, lawyers urge Ukraine to prepare for Russia to argue that establishing a legal tie between those who shot the Russian BUK at MH17 and Russia as a state is impossible, that it simply doesn’t exist. Thomas Grant notes that it won’t be that easy to deny this, although there would seem to be plenty of evidence in the investigation. One way or another, in order to bring Russia to justice as a state, this link needs to be legally established. This will be one of the key challenges both for the ECHR and for the International Criminal Court—and for any tribunal that might be set up in the future.
Yet another issue is that the defense will argue that those who operated the BUK had no idea that they were shooting at a civilian aircraft, “because there was a military conflict underway.” And war, after all, is war, and sometimes innocent people die. Still, there is a legal counterargument for this point: the very fact that the BUK was moved onto Ukrainian territory from Russia is already a crime.
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“Whether or not those who are accused knew or didn’t know that they shot at a civilian aircraft will make no difference, because in this context, the important point to understand is that the missile was aimed at an aircraft and there was already a risk that civilians would be hit,” says Arseniy Herasymiv. “What’s more, moving a BUK surface-to-air missile complex into Ukraine from Russian territory and back was an act of aggression, in and of itself.”
In the end, the process of determining which mechanism to use in suing Russia and its citizens for their crimes and the court review of the case could drag on for many years. This particular case will demand profound patience and very precise, systematic work on the part of all sides that want to see legal and ordinary human justice prevail. It took more than 10 years to bring Libya’s special forces to justice for blowing up the PanAm passenger jet over the Scottish town of Lockerbie in December 1988. The case was heard in a Dutch court and the UN Security Council instituted sanctions against Libya for refusing to turn over the suspects. Eventually, Libya was forced to pay compensation to all the families of the 270 victims.
In other words, no single mechanism was used to bring the criminals to justice and punish them, but an entire configuration of mechanisms. For this particular mass-murder, both specific individuals and the state of Libya took responsibility. Clearly, in the case of MH17, we should also see this kind of combination of various tools in investigating those guilty of the tragedy.
Translated by Lidia Wolanskyj
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