Shootdown of MH-17 from the international law point of view

Regarding shootdown of MH-17 flight let’s say there are basically 2 scenarios. 1. State, means Russia or Ukraine did it. 2. Non-state actor – rebels – with some support of Russia did it. What could be the international reaction in terms of international law? Read few comments.

Marco Sassòli, Professor of International Law, Director of the Department of International Law and International Organization, University of Geneva

In any case, it is a crime to deliberately shoot down a civilian airliner. As there is an armed conflict in Eastern Ukraine, it is also a violation of international humanitarian law. If it was a mistake, one should determine whether all feasible precautionary measures in attacking a supposed military plane were taken. If Ukraine (or Russia) did it, it is in addidion a violation of international air traffic agreements. If Russia did it, it is in addition a serious violation of Ukrainian sovereignty. If a non-state actor did it, the violation of international humanitarian law is the same. It is also a violation by Russia, if Russia had effective control over what the group did (including as violation of Ukrainian sovereignty).

For the violation of International Humanitarian Law issue, both Ukraine and Russia could as for an enquiry by the International Humanitarian Fact-Finding Commission, the competence of which both have recognized. This would be the first time the Commission could actually work.

Geoffrey Corn, Professor of Law, South Texas College of Law

If the plane shot down by Russian or Ukraine, the legal implications are profound. The European Convention on Human Rights prohibited the arbitrary deprivation of life, and deliberately shooting down a civilian airliner must amount to a violation of that obligation. Family members of victims may bring legal actions in Russian or Ukranian courts, actions that may ultimately end up in the European Court of Human Rights.

There is also potential for criminal responsibility. Either state, if it determines a service-member unlawfully authorized the shoot down, might bring a criminal action against that individual. Would it be a war crime subject to the jurisdiction of the international criminal court? It might be. Because neither Ukraine nor Russia are parties to the treaty establishing the ICC, a case could only be brought there if it was referred to the court by the UN Security Council. Of course, it it was an effort to prosecute a Russian, that is unlikely because of Russia’s veto power; if it were against a Ukranian (military or rebel), it is more conceivable, but still unlikely, I think. Furthermore, it would require a conclusion the shoot down took place as part of an “armed conflict.”

Of course, if Ukraine is able to arrest someone it believes committed the act, that person could be prosecuted under Ukranian law.

Finally, any criminal charge would require proving the plane was deliberately attacked or that the decision to attack the plane was criminally reckless. In other words, if it turns out the plane was shot down as the result of a ‘reasonable mistake’ (for example a mistaken assumption it was a military plane engaged in an attack), that is arguably not criminal. I think that based on what we know so far this is highly unlikely, but like any tragedy of this nature, we have to see where the facts lead us.

One more possibility to consider is that one of the nation’s whose nationals were killed could, if their law allows, seek to prosecute the responsible party. Of course, they would have to get that person into their national jurisdiction, but it is a possibility.

Paul Arnell, Reader in Law, Aberdeen Business School, Robert Gordon University Aberdeen

The shooting down of flight MH-17, if that is indeed what happened, is a significant international incident but also one that is unlikely to have considerable direct consequences. It is significant as it entailed the intentional destruction of a civilian aircraft with almost 300 people on board.

The attack on flight MH-17, undoubtedly illegal under national and international law, is, however, unlikely to have considerable direct consequences. This is because of the complexity of the situation in the Ukraine, the undoubted difficulties that will be encountered in holding individuals, a group or indeed country to account for the attack, the involvement of Russia in the Ukraine and United Nations, and the general impotence of international law in such circumstances.

Emily CrawfordPost-doctoral Fellow and Associate, Sydney Centre for International Law, University of Sydney

The international response so far seems to focusing on the investigation of the crash site, and ensuring that the separatists cooperate with any independent investigation.  While a couple of States (like Australia and the US) have gone on the record as directly blaming Russia for facilitating the act (either through provision of the weaponry or otherwise because they are backing the separatists), my feeling is that most other States will wait before making any similar comments, but will encourage the separatists to allow for independent investigations.  I suspect that we will have a Security Council resolution sometime soon, which condemns the act but does not make any specific (or general) allegations as to who might be responsible.  It will likely focus on allowing access to the site, and encouraging all States to take all measures to facilitate the investigation.  It will probably also condemn the targeting of civilians.  Anything more strongly worded or more specifically singling out Russia will be vetoed by Russia and China – so we won’t see any comments about the territorial integrity of Ukraine, or any comments about the invalidity of the annexation of Crimea – at least not coming out of the Security Council.


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