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Is It Possible to Punish the Criminals in MH17 Case? The Court Perspectives


Arseniy Herasymiv, attorney at Ilyashev & Partners Law Firm
Source: European Pravda

The report of the joint investigation team and the Dutch Prosecutor’s Office regarding the circumstances of shooting down the passenger plane of Malaysian Airlines (flight MH17), which was released to public on September 28, 2016, is a one more step towards bringing the criminals to responsibility.

I would like to remind that earlier the еhe Netherlands Aviation Safety Board revealed its report regarding the causes of the crash. The report stated that the plane was shot down by “Buk” missile launcher. Now we know that the plane was shot from the territory controlled by the Russian army forces, that the missile system was delivered from the territory of the Russian Federation and that after the terrorist act was brought back across the Russian border.

The scope of the investigation is very impressive. In my view it is the most far-reaching investigation which has ever been carried out in the history of air disasters. The fact of purchase of “Buk” missile launcher and conducting experiments at the territory of Finland is a perfect confirmation of it. This is why I do not support the scepticisms that this story will allegedly be soon forgotten and that the criminals will escape responsibility. I am convinced that the aim of such wide-scale investigations is not to shelve the problem in the end. A clear and understandable signal was given that the investigators revealed implication of around 100 persons into the catastrophe and that the names of these persons have been identified.

In this context three options of further course of events are possible: bringing the criminals to the responsibility in Ukraine, in the Netherlands and within the international jurisdiction – by the International Criminal Court in Hague.

In my opinion Ukraine is unpromising jurisdiction in view of its ongoing war with the Russian Federation and absence of contacts between law-enforcement agencies of two countries. The Netherlands is absolutely different story. It is a member of the European Union and has a corresponding international support. The Netherlands and the Russian Federation are the signatories to the European Convention on Mutual Assistance in Criminal Matters, as well as of the European Convention on Extradition. By using these internationally accepted instruments, coupled with political support of the European Union, the Dutch Prosecutor’s Office could be more effective in bringing the criminals to the responsibility. Ukraine, in its turn, could transfer the criminal case to the Dutch investigating authorities, which is possible under the criminal procedure rules of Ukraine.

Application of the jurisdiction of the International Criminal Court in Hague is only possible if Ukraine makes a corresponding statement as for acknowledgement of the jurisdiction of this court. On February 04, 2015 the Supreme Court of Ukraine passed a declaration on acknowledgement of the jurisdiction of the International Criminal Court regarding the crimes against humanity and war crimes committed by state officials of the Russian Federation and by leaders of DNR and LNR terrorist organizations, which led to mass casualties among Ukrainian people. In my point of view the crime related to shooting down the passenger plane of Malaysian Airlines may be reviewed in the context of the declaration made by the Ukrainian Parliament as soon as it constitutes a link or a part of military aggression launched against Ukraine. Suchwise the requirement of the Roman statute regarding the terms of jurisdiction of this body has been complied with.

If the International Criminal Court acknowledges the jurisdiction regarding the mentioned crime there will be the questions about qualification of the actions committed by the guilty persons. The Roman statute stipulates for the following groups of crimes within its jurisdiction: genocide; crimes against humanity; war crimes; crimes of aggression. In our opinion shooting down the plane of Malaysian Airlines may be qualified as a war crime. What is more among the advantages of application of the instruments stipulated by the Roman statute is that not only the actual perpetrators of the crime and commanders of corresponding troop formations will be brought to responsibility, but also those who bear political responsibility. And in this context the statement about identification of one hundred suspects is the clear confirmation of this.

In this situation the defence from potential accusation by just saying “I was not aware that it was a passenger plane” will not work because the responsibility is incurred not only in case of “knowledge”, but also for awareness.

In the given situation defense against a potential accusation in the form “I was not aware that it was a civil plane” will not hold water as long as responsibility is incurred not only is case of “knowledge”, but also in case of awareness about the possibility of occurrence of criminal consequences. The same formula will be applied to the actual crime perpetrators who will not be able to refer to the “mistake of fact”, i.e. to claim that “we were not aware that it was a civil plane” as soon as subjective element of the grounds of criminal responsibility stipulates not only the direct intention, but also awareness of the possibility of occurrence of negative consequences in certain particular circumstances.

However, the “Achilles’ heel” of the International Criminal Court is the detention and arrest of suspects, after all the court is deprived of the instruments required for execution of its decisions which are totally referred to the competence of the national authorities. This is why it is unlikely that the Russian Federation will cooperate with the court in view of the declaration made by the Russian officials about potential future termination of cooperation with the International Criminal Court because of the investigation into the actions of the Russian military forces in Georgia in 2008. It the international community does not pressure the Russian Federation it would be difficult to achieve any success in this case.

As to the compensation to the relatives of the victims of the terrorist attack, in my opinion the results of the Report open new perspectives in relation to the positive resolution of the case in favor of the relatives in their dispute with the Russian Federation if this dispute is considered by the European Court for human rights.

According to the Report the cause of the catastrophe was the shooting down of the plane by a rocket launched by “Buk” missile complex from the territory controlled by pro-Russian separatists. What’s more the rocket launcher was brought from the territory of the Russian Federation and following the shooting down was brought back across the border. This could only happen only upon involvement of the Russian state officials. The matter of control over the territory plays a very important role in this case because it is closely related to the matter of jurisdiction and responsibility.

Chicago Convention on International Civil Aviation defines that each member state is responsible for everything which happens in its air space. The Article 1 of the Convention on human rights and fundamental freedoms defines that the contracting parties secure to everyone within their jurisdiction the rights and freedoms stipulated by the Convention.

However, while applying the Convention the European court for human rights resorts to a more flexible approach regarding establishment of the state’s jurisdiction over certain territory by introducing a concept of “effective control over the territory”.

In other words not every state will be held responsible for the actions occurring on its territory if such territory is under occupation or is under control of separatist groups backed by a third state.

Under such conditions the occupier country will take full responsibility for the actions happening at this territory.

The concept of effective control over the territory developed itself in the cases related to events in Transdniester, Nagorny Karabakh, the Turkish Republic of Northern Cyprus, i.e. in those territories which were occupied by foreign countries or separatist groups supported by such states. The Russian Federation has already acted as the respondent in such category of cases and its role in support of separatist groups has already been previously considered.

For example, in the case Chiragov vs Armenia, Ilascu and others vs Moldova and the Russian Federation the European court clarifies the concept of “effective control over the territory”.

Each party signatory to the Convention bears responsibility for violation of rights and freedoms committed at the territory under its jurisdiction. The fact of exercising the jurisdiction over the territory is a key in the process of settlement of the issue of imposing a liability onto the state. From the point of view of international public law the term “under their jurisdiction” indicated in the Article 1 of the Convention means that jurisdiction of the state is not only territorial in its direct sense, but can also be exercised across the territory of the state.

However, such presumption may be limited in exceptional instances: for example, when the state is limited in exercising control, was disallowed to exercise or lost such control over a part of its territory, for example, as a result of the military occupation, armed conflicts and, what is important, as a result of activities performed a foreign state, supports or inculcates separatist movements at the territory of another state where violation of the human rights occurred.

In this case, regardless of legality or illegality of actions of the foreign state, its motives or justification the liability shall be imposed onto the state which promotes or supports separatism. Exercising jurisdiction in the case by the country-occupant is possible not only through its state official authorities, but also through support of certain separatist groups.

The term “support” has wide interpretation and includes political, economic and military components. This is why taking into consideration a known volume of facts clearly pointing at the role of the Russian Federation in the military conflict at the Eastern Ukraine, namely provision of humanitarian consignments, shipment of weapons, as well as support of separatists at the political level in my opinion the claim which may be brought against the Russian Federation on behalf of the relatives of the air crash victims will have a fair promise.

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