Justice for MH17

The world wants to hold someone accountable

for the 298 people killed. But determining whom
to go after -- and how to hold them responsible
-- wont be easy.
BY REBECCA HAMILTON-JULY 25, 2014
When a catastrophic event like the downing of Malaysia Airlines Flight 17
occurs, there is an understandable demand for accountability. We will not
rest until we are certain that !ustice is done, "resident #arack
$bama wrote on %uesday in a &utch condolence book for the victims of the
crash. 'n the immediate aftermath of the shoot(down, )krainian "resident
"etro "oroshenko similarly vowed, We are sure that those who are guilty in
this tragedy will be held responsible.
#ut the *uestion stands+ Where can !ustice be found,
"opular sentiment points to the 'nternational -riminal -ourt .'--/ as the
obvious venue for any crisis that makes world headlines. Former )krainian
"rime Minister Arseniy 0atsenyuk, who resigned on %hursday, had called for
an investigation by the '--. And even 1ichard -larke, counterterrorism aide
to former ).2. "resident #ill -linton and both #ush administrations, wants
those responsible handed over to the 3ague(based court. %he '--,
however, turns out to be a pretty unlikely place for achieving the
accountability that people are clamoring for.
Although !ournalists sometimes refer to it as the world court, the '--
doesn4t actually have the authority to prosecute international crimes
wherever they occur. %he court has the authority to prosecute crimes that
took place in a state that has !oined its founding treaty, known as the 1ome
2tatute, or that were committed by a national of a state that has !oined.
5ike the )nited 2tates, neither 1ussia nor )kraine has rati6ed the treaty, so
the '-- can4t go after those countries4 nationals or look into crimes that
occurred on their territory.
%here are, however, two e7ceptions to this general rule.
First, the ).8. 2ecurity -ouncil can refer a situation to the '--. %his is how
the court got !urisdiction over crimes committed in 2udan and 5ibya, even
though neither of those countries has signed on to the '--. A 2ecurity
-ouncil referral of the M317 situation, however, seems like a non(starter+
8o one with a shred of political acumen can imagine 1ussia, a veto(wielding
member of the council, agreeing.
%he second possibility is for a state that has not !oined the '-- to agree
nonetheless to give it !urisdiction for a particular period of time. 'n fact,
)kraine has done this before+ 'n April, it granted the court the right to
investigate crimes committed on its territory between 8ovember 9:1; and
February 9:1<.
%his kind of self(referral may be the most probable way for the '-- to get
!urisdiction over M317, but it would not be without complications. Although
it is undoubtedly in =iev4s interests to see pro(1ussian rebels investigated
by the court, the grant of !urisdiction comes with a catch+ A state that gives
the court !urisdiction cannot then dictate which actors, or which crimes, the
'-- chooses to investigate. 2o if the '-- found that )krainian actors
committed crimes in the same time period, unrelated to M317, it could
prosecute those, too.
>iven the state of con?ict on the ground, =iev cannot be sure that it won4t
be on the hook for wrongdoing.
@ven if all these !urisdictional hurdles could be overcome and the '-- gets
the chance to conduct an investigation, a successful prosecution is still far
from inevitable. A prosecution would likely involve war crimes charges of
murder and attacking civilians, says Ale7 Whiting, a professor of practice in
international criminal law at 3arvard. 3e adds, however, that this would
re*uire the prosecutor to prove the rebels actually knew that they were
targeting civilians. -omments by a ).2. intelligence oAcial reported in
the Guardian on %uesday suggest that the rebels who shot down the plane
were surprised to discover it was a civilian airliner.
'f those who shot down the plane did know it was a civilian aircraft,
intercepted communications might demonstrate evidence of their intent.
#ut governments are often reluctant to share that kind of information with
the '--. Without such evidence, proving intent would be e7tremely
challenging, Whiting says.
"hrases like 4war crimes4 and 4crimes against humanity4 get thrown around
pretty casually, says international prosecutor and war crimes e7pert =en
2cott. #ut these crimes have certain legal elements. And meeting the
re*uirements set by those elements could prove diAcult.
>iven these obstacles, !ustice for an event that has garnered such global
attention may, perhaps counterintuitively, re*uire a turn to the local level.
%here are long(standing legal grounds for relatives of the victims to look
for redress in national courts, says 1ichard &icker, director of the
'nternational Bustice "rogram at 3uman 1ights Watch.
2tates that have an interest in the case (( )kraine, Malaysia, the
8etherlands, or Australia, for instance (( either because it occurred on their
territory, or because they had nationals onboard, could prosecute. And
manslaughter charges available under domestic law would not face the
same intent problems that beset war crimes charges. #ut though the legal
hurdles can be more easily overcome at the domestic level, the practical
challenges would remain. >etting unfettered access to the site ... and
ultimately getting custody of any persons charged (( none of these things
can be taken for granted, 2cott says.
CCC
5ooking beyond those who actually 6red on the plane, what can be made of
the $bama administration4s claims that the provision of weaponry, as well
as the training and support needed to use the kind of #uk missile that can
reach a civilian airliner, are attributable to the 1ussian state, -ould some
measure of !ustice be gleaned by pinning a degree of responsibility on
Moscow,
%o answer this *uestion, another 3ague(based court becomes relevant. %he
'nternational -ourt of Bustice .'-B/ ad!udicates disputes between states, and
it has had to grapple with a similar case in the past. 'n 1DEE, the )22
Fincennes shot down 'ran Air Flight GHH over the 2trait of 3ormuI, killing all
9D: passengers and crew. 'ran claimed that, in shooting down the plane,
the )nited 2tates had violated treaties that both countries had signed.
)nhappy with the decision of the aviation authority that ad!udicated the
treaty violation claims, 'ran took the dispute to the '-B.
%he two treaties involved in the )22 Fincennes incident are in play with
M317 as well. %he -onvention on 'nternational -ivil Aviation prohibitsstates
from using weaponry against civilian aircraft. %he -onvention for the
2uppression of )nlawful Acts Against the 2afety of -ivilian
Aviation re*uires states to prosecute or e7tradite anyone who destroys a
civilian aircraft. #ut alongside the similarities, there are also important
diJerences in the two cases.
'n the )22 Fincennes case, attribution to the )nited 2tates was clear(cut
because the missiles came from a ).2. warship. Attribution will be more
diAcult in the M317 case, with complicated factual and legal *uestions
about whether those responsible were agents of 1ussia or somehow under
its 4eJective control,4 says "hilippa Webb, an '-B e7pert at =ing4s -ollege
5ondon.
'n the )22 Fincennes case, the '-B never reached a ruling because, in 1DDG,
the )nited 2tates settled the case by paying KG1.E million in compensation
to the victims4 families. %his situation is typical, Webb e7plains+ %he '-B
does not have an encouraging track record for resolving aerial incidents. 8o
case has ever reached the merits.
2o while the '-B remains a potential venue to eventually bring a claim
against 1ussia, the net result, if the precedent is any indication, may well
be an out(of(court settlement. And if monetary compensation was the
central issue, a *uicker route for the victims4 families would be through
the Montreal -onvention, which obligates airlines to pay damages for the
in!ury or death of passengers. Bustice for the M317 tragedy, however,
demands more than that.
%he families of the victims deserve to learn the truth about how 9DE people
lost their lives, and the *uestions of e7actly what happened and who is
responsible are still a long way from being answered. %he events of Buly 17
are un*uestionably of international concern. #ut for those looking for
accountability in the downing of M317, it may be the national avenues for
!ustice, not the global ones, that are best suited to give it to them.
1$#'8 FA8 5$8=3)'B2@8LAF"L>etty 'mages