Confirmation that a missile brought down Malaysia Airlines flight MH17 over Ukraine in July 2014 has solved one part of the puzzle around the tragedy.
The Dutch Safety Board’s report into the crash revealed the plane was shot down by a Russian-made BUK surface-to-air missile launched in eastern Ukraine, most likely by Russian separatists. All 298 people on board MH17 died.
But many unanswered questions remain. Who is responsible, and what offence should they be charged with? In what forum should the trial be held? And is a criminal trial the best way to achieve “justice” in this situation?
Identifying the alleged perpetrators will likely be extremely difficult. The incident occurred in rebel-held territory and Russia is being non-cooperative. It has vetoed the creation of an ad hoc international criminal tribunal, which is not surprising given it is likely that pro-Russian separatists were responsible for the incident.
Any kind of criminal tribunal deals with individual responsibility, not state responsibility. It will be a matter of working out which individuals were most responsible for the incident – exactly who gave the order to shoot down the plane.
And what should the charges be? The actions of the Russian separatists cannot be defined as an act of terror, because although there is not a single agreed upon definition of what constitutes a terrorist act, it is broadly agreed that terrorism involves some kind of political objective. We have not seen any evidence of this in the MH17 incident.
It could be argued that it is a war crime, as there is evidence that there was an ongoing non-international armed conflict occurring in that territory at the time.
All available evidence points to the fact that the downing of the plane was the result of a mistaken belief the plane was a legitimate military target. If proven, this may mean the incident does not meet the definition of a war crime under international law.
An alternative criminal charge would be 298 counts of murder/manslaughter under the domestic law of any of the countries involved – Australia, the Netherlands, Belgium, Malaysia and Ukraine.
There are no legal avenues of appeal from a United Nations Security Council vote, meaning that there is no chance that any kind of Security Council-sanctioned tribunal will be established over MH17.
At the moment, the chances of bringing perpetrators to justice in a criminal trial are very slim. But there is no statue of limitations on crimes of this nature, and international criminal justice is notoriously slow. Although it is unlikely that we will see the perpetrators stand trial any time soon, it is difficult to predict how the political situation will change in decades to come. Although arguably, justice delayed is justice denied.
We are seeing the preference emerge for a joint international tribunal on behalf of Australia, the Netherlands, Belgium, Malaysia and Ukraine. This could be set up by treaty.
Alternatively, there is some speculation that a special hybrid court could be established in one of the above countries with support from the UN Secretary General and UN General Assembly.
The final possible avenue would be to refer the situation to the International Criminal Court. The ICC only has jurisdiction over a limited group of crimes, and over a limited group of individuals.
Specifically, the MH17 incident would have to be classified as a war crime of sufficient gravity, and the crime must have occurred on the territory of a state party to the ICC, or have been committed by a national of a state party.
Considering the incident occurred over Ukrainian airspace, by Ukrainian nationals (although they were pro-Russian separatists), Ukraine, which is not a state party, would need to accept the ICC’s jurisdiction over the situation on an ad hoc basis.
Ukraine has done this before, so it is conceivable that it would do so again.
It would then be up to the ICC prosecutor as to whether she would open an investigation into the situation, and whether this would proceed further to trial. My instinct is that the bombing of MH17 would not reach the gravity threshold required by the ICC.
In any case, the initial challenge is identifying the perpetrators and obtaining Russia’s cooperation. No easy feat.
Banner Image: The partially reconstructed forward section of MH17. Picture: Getty Images.