Little that global law can offer MH17 victims

The world was horrified when a Malaysia Airlines Boeing 777 aircraft was downed on July 17 over eastern Ukraine, killing all 298 people on board.

The United States has offered audio and visual data suggesting Russian complicity, and accused Moscow of "creating the conditions" for the MH17 shootdown.

That region of Ukraine is controlled by Russia-backed separatists who claim they do not have missiles capable of shooting down a jetliner. Russia denies supplying the rebels missiles. Both blame Ukraine instead.

The dead are from 17 countries, mainly the Netherlands, Malaysia and Australia. In the aftermath of the tragedy, one big question is, what can be done to secure justice for the victims and their families?

The short answer is, perhaps very little.

In terms of immediate action, the United Nations Security Council could adopt a militarily enforceable resolution calling for an immediate ceasefire and withdrawal of all forces to internationally recognised boundaries.

But Russia has veto power in the Security Council. So this resolution is unlikely to be adopted.

The US and Europe had already imposed sanctions on Russia after it annexed Crimea from Ukraine. Now British Premier David Cameron is calling for yet more sanctions over the MH17 crash.

What else may happen?

In terms of investigations, the separatists have handed over to Malaysia the aircraft's black boxes, which have been flown to a London lab authorised by the UN International Civil Aviation Organisation (ICAO).

Malaysia may request an ICAO fact-finding mission to determine the circumstances leading up to the disaster to see who was responsible - the separatists, Russia or Ukraine.

If blame can be determined, the parties may agree on compensation. But if ICAO cannot conclusively ascribe blame, as was the case with the Soviet shootdown of Korean Airlines Flight 007 over the Kamchatka Peninsula in 1983, it will have to dismiss Malaysia's claims.

In terms of litigation, Kuala Lumpur can then appeal the ICAO decision at the International Court of Justice (ICJ). All UN members are subject to the court's jurisdiction.

Malaysia can ask the court to rule if Russia, say, violated global conventions on safeguarding civilian flights and, if it did, order Moscow to pay compensation.

So any litigation in the first instance is likely to be a civil claim at the ICJ for compensation and damages. Malaysia and the 16 other countries whose citizens were on board MH17 may initiate such action against responsible parties.

For such action to succeed, however, what is critical is the forensic evidence - especially to pinpoint the type of missile used and where it was fired from. But in the days after MH17 was downed, it was plain for all to see that the evidence was being compromised with rebels and villagers traipsing all over the crash site.

People who enter a crash site may not only take evidence away but also plant some.

Could the ICJ find Russia liable? Yes, if it is proven that Russian-backed rebels fired the missile and Russia provided the missile, training or financing.

The ICJ decided so in 1986, when it found the US liable for the loss of lives and damage to property inflicted by the Nicaraguan Contra rebels, because the US had armed, trained and bankrolled them.

If Russia were found liable, it would have to pay compensation. But if it refuses, no one would be able to do much because ICJ rulings are enforced by the UN Security Council, where Russia has veto power. Still, it might pay up if that sees Western sanctions reduced or even terminated.

Could the ICJ also find Ukraine guilty? Yes, if its very first case, tried in 1947, is any precedent. There, Albania was held liable for the loss of lives and damage to property when British naval ships struck mines while passing through the Corfu Channel between Greece and Albania.

The ICJ ruled that even if Albania did not lay the mines, it was liable as it was aware of the risk but did not inform other states.

So even if Ukraine did not fire the missile, it could be held liable if it knew that separatists within its borders had missiles that could hit a global civilian aircraft, but failed to alert other nations.

The ICJ process involves states only. So what about individual perpetrators being compelled to stand trial?

This would need the International Criminal Court (ICC), which can investigate and bring charges against individuals for war crimes, genocide or crimes against humanity - if it establishes who fired the missile that hit MH17 and that they knew the target was a passenger jet.

If the Ukrainian separatists fired the missile but the weapon was supplied by Russia, and Moscow knew how it would be used, then any Russian officials involved could be held liable too.

But ICC involvement looks quite unlikely in the MH17 case.

Here's why.

First, war crime charges are usually only initiated when a pattern of behaviour over an extended period is established, not for a one-off incident. For example, Serbian president Slobodan Milosevic was charged with ethnic cleansing of hundreds of Kosovo Albanians and hundreds of non-Serbs in Croatia and Bosnia during his tenure.

Second, Malaysia is not a signatory to the Rome statute under which the ICC was set up. And while Russia and Ukraine are signatories, neither has ratified the statute. So the ICC has no jurisdiction over the case.

The UN Security Council can refer a case to the ICC and that would give it jurisdiction, but Russia would likely veto such a move. The ICC can also initiate cases on its own. If it did so and its investigations led to it issuing arrest warrants for perpetrators it identified, it would still need Ukraine or Russia to arrest the accused and send them to be tried.

So an ICC case, though possible, is not very likely. 

It would be much easier to prosecute the alleged killers in domestic jurisdictions.

Since the main hurdle is arresting the accused persons, criminal prosecution in Ukraine or Russia would make the best sense - if these states want to.

But whether they will initiate such criminal prosecutions will likely be politically determined.

All in all, international law seems to offer little justice for those who perished on MH17 and their kin.

andyho@sph.com.sg

This article was first published on July 27 2014.
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