Addressing the United Nations Security Council, Australian foreign minister Julie Bishop condemned the downing of Malaysia Airlines flight MH17 as “barbaric” and “an absolute outrage”. She demanded justice, saying:
We must have justice. We owe it to the victims and their families to determine what happened and who was responsible.
When 298 innocent civilians are killed in such tragic circumstances what exactly do we mean when we call for justice? What are the chances of justice being done in this case? Can international law realistically deliver a measure of justice that will provide any level of comfort or closure to the grieving families and friends?
Ordinarily, calls for justice rely on demands to investigate, prosecute and punish those responsible. This is reflected in the resolution that the Security Council adopted. It emphasised the importance of a “full, thorough and independent international investigation” and demanded that those responsible be held to account.
Unfortunately, both history and recent events suggest that justice under international law is elusive and difficult to deliver. Several avenues may be pursued. None is swift or straightforward.
Obstacles to an ICC prosecution
The then-Ukrainian prime minister, Arseniy Yatsenyuk, initially suggested that this is an international crime that the International Criminal Court (ICC) should investigate. This is unlikely to occur, for a number of reasons.
Initial jurisdictional hurdles include the fact that neither Ukraine or Russia is a party to the ICC Rome Statute. Russia could also veto any attempt by the UN Security Council to refer the matter.
The ICC itself is limited to considering specific offences. While some have characterised the shooting down of MH17 as an act of terrorism, terrorism is not an offence within the jurisdiction of the ICC.
It has also been suggested that this may be either a crime against humanity or war crime. There are, however, difficulties with both of these characterisations given intelligence reports suggesting pro-Russian separatists mistook MH17 for a Ukrainian military transport plane.
Prosecutors would then struggle to show the act was part of a systematic attack directed against a civilian population or that a civilian object had been intentionally targeted. They would need instead to rely on recklessness in verifying a military target to establish a war crime.
The most significant challenges facing any ICC prosecution are practical. Finding the necessary evidence when the integrity of the crash site was so comprehensively compromised in the days after the disaster is going to be enormously difficult.
The ICC will also rely on the cooperation of individual states, notably Russia, to ensure that the responsible individuals and relevant evidence are handed over. The releases of images and videos reportedly showing the MH17 missile launcher in the area and then being moved into Russia is concerning in this respect.
Russia did ultimately vote in favour of the Security Council resolution, which included a demand that all states cooperate fully with efforts to establish accountability. But Russian cooperation can certainly not be assumed.
Prospects for a domestic court trial
It is more likely that any criminal prosecution will take place in a domestic court. This has the advantage of likely being a faster option than the notoriously slow ICC processes.
The most obvious state with jurisdiction is Ukraine, which has a clear territorial connection. There are, however, difficulties, given both the ongoing conflict in Ukraine and the political reality that Russia will be less likely to cooperate with a prosecution that it would see as being inherently biased.
Any other state would first need to establish jurisdiction. One possibility is the Netherlands, which lost 193 citizens in the tragedy. The Netherlands’ International Crimes Act allows Dutch criminal law to be applied to war crimes or crimes against humanity committed abroad against Dutch nationals. Dutch public prosecutors have formally opened an investigation of the crash, which is the first step towards a domestic prosecution.
Any criminal prosecution, whether international or domestic, will face the practical challenges outlined above. That is, the initial interference with the crime scene and the likely need for Russian cooperation present significant hurdles. This will not be a straightforward prosecution wherever it occurs.
Can a state be held responsible?
A further possibility is that a state may be held responsible, as opposed to individuals. This would allow a case to be started before the International Court of Justice (ICJ).
There is evidence of strong links between Russia and the separatists who appear to be responsible for shooting down MH17. This includes Russia providing weapons and training throughout the Ukrainian conflict.
The White House deputy national security adviser Ben Rhodes recently acknowledged, however, that a “direct link” between Russia and the missile launch had not been established. In particular, it isn’t clear whether any Russian operatives were present at the launch. Nor is it clear whether Russia provided either the weapons or training to those who used them.
To attribute the conduct of individuals to a state, that state needs either to exercise effective control over the conduct, or to subsequently acknowledge and adopt it as its own.
It is difficult to argue that Russia has “acknowledged and adopted” the conduct of the separatists, particularly in light of its support of the UN Security Council resolution. The “effective control test” will also be difficult to satisfy. A high degree of control over the specific operation is required to be demonstrated at international law.
The acknowledged lack of a “direct link” at the present time suggests that current evidence is not sufficient to establish this case.
Can justice be delivered?
Clearly, considerable hurdles must be overcome before any individual or state will be held legally responsible for the deaths of the 298 passengers and crew aboard MH17. The most promising option would appear to be a domestic prosecution by a country like the Netherlands.
However, the contamination of the crime scene has made any prosecution significantly more difficult. Russian co-operation will likely be essential to any successful prosecution.
Justice under international law is often a frustratingly elusive concept. The UN Security Council resolution is a positive step, which signals an international commitment to seek accountability in this case, but there is still a long way to go before justice is delivered.