By Emma Bakkum, Research Associate PILPG-NL
Almost three years have passed since Malaysia Airlines Flight MH17 was shot down over Eastern Ukraine, leaving no survivors of the 298 passengers. The Joint Investigation Team (JIT) has since published that the plane was shot down by a buk missile situated in Eastern Ukraine. However, no State or individual has been held responsible to date. Victims’ relatives, the Dutch State, and others continue to consider legal options. In light of this, dr. Marieke de Hoon set out the problems and consequences of different legal procedures during a public lecture at the Vrije Universiteit Amsterdam. Because a single evening is not enough to discuss all legal aspects surrounding MH17, she focused on two legal avenues available: the prosecution of individuals before a criminal court of law and the responsibilities of States under international law.
The most often discussed legal avenue is criminal law, under which individual perpetrators can be held accountable for the crimes they committed. Not only those directly responsible but also those who ordered, conspired to or aided and abetted the shooting down of MH17 can be held responsible. These individuals can be prosecuted both at the national level in domestic courts or at the international level, at the International Criminal Court (ICC) or a specially established tribunal. Criminal law, however, requires a high burden of proof. Not only needs to be proven that an individual has committed a criminal act but also that the individual did so with the required knowledge and intent, making it difficult to prosecute individuals. Under the circumstances of the MH17 situation, investigations are strenuous. Jeroen Akkermans, who was one of the first investigative journalists present at the crash site, underlined the problems with gathering evidence.
While the victims’ relatives appeared to have lost faith in the Dutch government for initiating criminal proceedings, they questioned what they could do personally. Professor Arno Akkermans pointed to the high costs and difficult procedures linked to individual legal proceedings and advised the victims’ relatives to continue to rely on the government and the pubic prosecution to undertake action.
International Responsibilities of States
Not only individuals but also States violating certain international obligations could be held responsible at the international level. There appear to be strong arguments to claim that Ukraine and Russia have violated their international obligations to communicate information, to investigate allegations, and to prosecute or extradite. These claims could be initiated by States before the International Court of Justice (ICJ) or by States or individuals before the European Court for Human Rights (ECHR). However, the options for these procedures are limited and they can be very lengthy and legally complex.
Political Unwillingness Calls for Both Legal and Political Approaches
Although legal procedures could achieve further truth finding and are a step towards responsibility, they all come with their own complexities and are moreover lengthy processes without much prospect of compensation. Most critically however, are the difficulties that arise from the (political) unwillingness of States to cooperate with the investigation and prosecution. Considering this, negotiations are important, which, as De Hoon pointed out, may lead to creative solutions as they did in the Lockerbie case.
Perhaps, the audience suggested, in order to turn the tides within the coming years, a political approach instead of legal approach should be advocated for. But is politics alone an option when legal options are not successful? “Law is a form of politics” and lawyers can clarify the responsibility of States, De Hoon answered. Pieter Omtzigt highlighted the importance of politics to establish any kind of justice trough law: “negotiate with States, use public diplomacy, and take a certain position against Ukraine or Russia”. The Netherlands might have an especially strong position to do this when it is part of the United Nations Security Council in 2018. It might then be able to push for adherence to UNSC Resolution 2166 which calls upon all States to fully cooperate with the MH17 investigation.
The political side of international interaction surrounding MH17 inevitably slows legal action. However, it is not a choice between either political action or legal action. Law and politics are intertwined (law is a form of politics, making politics more effective with the language of law). The question should rather be: how can we strengthen both legal and political options with each other? In the end, finding the truth is the common ground, the basis of the endeavor surrounding responsibility for shooting down MH17.
What is the Alternative?
The wishes or needs of victims’ relatives are difficult to be fulfilled with lengthy and complex legal procedures. “But what is the alternative? Doing nothing?” “We must continue to talk and discuss about MH17 and an evening like this is therefore very important to keep it on the agenda”, one of the victims’ relatives explained. Persistent attention could eventually lead to something. For this reason perhaps, some of the victims’ relatives recently expressed that they consider joining a case at the European Court for Human Rights against Ukraine for violating its obligation to close its airspace. They reiterated that the bottom line is that they cannot do nothing and sit back.
The JIT has arrived at its final and most difficult phase: identifying the actual perpetrators of the shooting down of MH17. The conversation on legal avenues to pursue can and will be continued when the JIT has identified those individual perpetrators. This public lecture has contributed to the understanding and considerations for all parties involved of the different legal avenues in response to the MH17 disaster.
For more, see Navigating the Legal Horizon: Lawyering the MH17 Disaster by Marieke de Hoon.