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MH17 report leaves questions unanswered, and casts a light on the state of international law

Rebuilding MH17 from the wreckage was hard, but building a legal case is harder still. Michael Kooren/Reuters

While the final report of the Dutch Safety Board’s investigation into the loss of Malaysia Airlines flight MH17 over eastern Ukraine in July 2014 points no finger of blame, the evidence – bow-tie shaped fragments in the debris and bodies of victims – suggests the weapon was a 9N314M warhead launched by the Russian-made Buk surface-to-air missile system.

Russia sees the investigation, conducted in the Netherlands, as a sham aimed at justifying previous accusations. The reality is that without an outright admission of responsibility we are unlikely to ever know the events of that day sufficiently clearly to build a case that would find some person, state or organisation liable. The weapon may be found but this rarely provides sufficient proof of where true guilt lies or the real intentions of those involved.

The painstaking recreation of the MH17 crash from recovered wreckage will not establish conclusively who fired the missile. To suggest Russian military action was responsible because a Russian-made missile was used is arguably like saying Germany is responsible for a hit-and-run death in England because the car involved was a Volkswagen. In the world of overt and covert armed conflict there is little to prevent one side framing the other.

Recriminations have followed many such events since the first in 1904, when Russian soldiers shot down a German balloon. The bombing of Pan Am flight 103 over Lockerbie in 1988, and even the 9/11 attacks only emphasise the opaque and difficult nature of aerial incidents in international relations. There is something peculiar to aerial violence that lends itself to intense confusion and amplified terror.

Evidence gathering in relation to aerial crimes is typically difficult and expensive. Even when diligently gathered, such evidence is notoriously easy to attack as unreliable under the glare of lawyerly forensic analysis. Years after the conviction of Abdelbaset Ali Mohmed al-Megrahi for the Lockerbie bombings his lawyers still managed to cast serious doubt on the reliability of the conviction, leading to his release back to Libya on humanitarian grounds in 2009. He died at home in Tripoli in 2012.

Air travel’s protections

Alongside the work of the International Civil Aviation Organization (ICAO) there are several dedicated international treaties that ought to prevent the sort of loss of life as happened with MH17. The 1963 Tokyo Convention, the 1970 Hague Convention, and the 1971 Convention For The Suppression Of Unlawful Acts Against The Safety Of Civil Aviation all provide a framework by which civil aircraft should be protected from unwarranted aggression.

The Montreal Convention for example makes it an international offence for anyone to unlawfully and intentionally:

Perform an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft; or destroy an aircraft in service or cause damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight.

States signed up to the conventions have agreed to make the offences punishable by severe penalties. Those suspected of being responsible, when found, must be extradited to where the investigation is taking place, or the state where they are found must offer its own competent authorities to diligently prosecute them. It is this system of treaties and provisions that has to a large extent provided the confidence in air travel we enjoy today.

Not everyone agrees to play by international law. Jerry Lampen/Reuters

Will it come to court?

Ukraine, the Netherlands and Malaysia may wish to attempt to prosecute the suspects in this case, perhaps if necessary even sue the Russian government or Donbas regions in Ukraine for compensation. That states are responsible for internationally criminal acts is a core element of justice under public international law, as confirmed by the finding of the International Court of Justice in 1986 against the US for its paramilitary activities against Nicaragua. This important principle should be applied more routinely in international relations, as it is a vital bulwark against rising international recklessness among the powerful.

Unfortunately, legal solutions are not as straightforward as they may at first appear. In nearly all recent cases where airliners have been downed by states or shadowy groups, the truth tends to be the first casualty.

Court proceedings may also produce unintended consequences. In this case, the investigators’ conclusion that Ukraine had reason to close the airspace before the crash raises the possibility of charges of contributory negligence. It could also be argued that all the states that contributed to the circumstances leading to the Ukrainian civil war ought to share in the blame for the chaos that resulted.

Choosing a venue

The International Court of Justice can have jurisdiction if the contending states agree to appear before it, but cases can last for years and be crippled by international politics.

The International Criminal Court (ICC) oversees cases of war crimes. Cases can also appear before multilateral tribunals, such as the independent Iran-United States Claims Tribunal.

The particular individuals involved in this ignoble act can be prosecuted under the protective jurisdiction principle by the states where the victims came from. This can involve legitimate means to apprehend the offenders and bring them to book before domestic courts or an international tribunal set up for the purpose. An international tribunal in fact has been proposed by Malaysia hinting at the possibility of international justice been meted out by the “joint investigation team” nations of Malaysia, the Netherlands, Belgium, Ukraine and Australia.

By the time the final report into MH17 arrives next year, those responsible may be brought before the proposed International Court against Terrorism, which has been brought forward by Romania and gathering international support.

Politics and the law

The problem with all these options remains the fact that powerful states tend not to follow international law. China, Israel and the US have expressed their dissatisfaction with the ICC and are not party to it, nor is Russia party to the Rome Statute that sets out the jurisdiction of the ICC.

The strident calls of the West against Russia will ring particularly hollow given the incredulous US bombardment and killing of patients and staff at a MSF hospital in the Afghan city of Kunduz just a few days before the Dutch investigators’ report was published. The US itself is not new to downing civilian aircraft: in 1988 a US Navy cruiser deliberately shot down Iran Air flight 655, killing all 290 passengers and crew from six nations, including 66 children.

While the ICAO will continue to agonise over the implications of the MH17 tragedy, perhaps it has shown the public worldwide that armed conflict in far-flung territories may not be as remote as they seem. Numbness to foreign military escapades by the populace of powerful states has crept up on us all. That full-scale wars may be conducted abroad while normal life continues at home contributes to an ominous growth in international recklessness that must cease.

The case of MH17 shows all of us that we cannot literally fly over the misery and catastrophes suffered by others, and if justice is really to be done to the memory of the MH17 victims this must be incorporated into the investigators final conclusions.

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