The world wants to hold someone accountable for the 298 people killed. But determining whom to go after -- and how to hold them responsible -- won’t be easy.
- By Rebecca HamiltonRebecca Hamilton teaches at Columbia Law School and is the author of Fighting for Darfur. Follow her on Twitter @bechamilton.
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 justice is done," President Barack Obama wrote on Tuesday in a Dutch condolence book for the victims of the crash. In the immediate aftermath of the shoot-down, Ukrainian President Petro Poroshenko similarly vowed, "We are sure that those who are guilty in this tragedy will be held responsible."
But the question stands: Where can justice be found?
Popular sentiment points to the International Criminal Court (ICC) as the obvious venue for any crisis that makes world headlines. Former Ukrainian Prime Minister Arseniy Yatsenyuk, who resigned on Thursday, had called for an investigation by the ICC. And even Richard Clarke, counterterrorism aide to former U.S. President Bill Clinton and both Bush administrations, wants those responsible handed over to the Hague-based court. The ICC, however, turns out to be a pretty unlikely place for achieving the accountability that people are clamoring for.
Although journalists sometimes refer to it as the "world court," the ICC doesn’t actually have the authority to prosecute international crimes wherever they occur. The court has the authority to prosecute crimes that took place in a state that has joined its founding treaty, known as the Rome Statute, or that were committed by a national of a state that has joined. Like the United States, neither Russia nor Ukraine has ratified the treaty, so the ICC can’t go after those countries’ nationals or look into crimes that occurred on their territory.
There are, however, two exceptions to this general rule.
First, the U.N. Security Council can refer a situation to the ICC. This is how the court got jurisdiction over crimes committed in Sudan and Libya, even though neither of those countries has signed on to the ICC. A Security Council referral of the MH17 situation, however, seems like a non-starter: No one with a shred of political acumen can imagine Russia, a veto-wielding member of the council, agreeing.
The second possibility is for a state that has not joined the ICC to agree nonetheless to give it jurisdiction for a particular period of time. In fact, Ukraine has done this before: In April, it granted the court the right to investigate crimes committed on its territory between November 2013 and February 2014.
This kind of self-referral may be the most probable way for the ICC to get jurisdiction over MH17, but it would not be without complications. Although it is undoubtedly in Kiev’s interests to see pro-Russian rebels investigated by the court, the grant of jurisdiction comes with a catch: A state that gives the court jurisdiction cannot then dictate which actors, or which crimes, the ICC chooses to investigate. So if the ICC found that Ukrainian actors committed crimes in the same time period, unrelated to MH17, it could prosecute those, too. Given the state of conflict on the ground, Kiev cannot be sure that it won’t be on the hook for wrongdoing.
Even if all these jurisdictional hurdles could be overcome and the ICC 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 Alex Whiting, a professor of practice in international criminal law at Harvard. He adds, however, that this would require the prosecutor to prove the rebels "actually knew that they were targeting civilians." Comments by a U.S. intelligence official reported in the Guardian on Tuesday suggest that the rebels who shot down the plane were surprised to discover it was a civilian airliner.
If those who shot down the plane did know it was a civilian aircraft, intercepted communications might demonstrate evidence of their intent. But governments are often reluctant to share that kind of information with the ICC. Without such evidence, proving intent would be "extremely challenging," Whiting says.
"Phrases like ‘war crimes’ and ‘crimes against humanity’ get thrown around pretty casually," says international prosecutor and war crimes expert Ken Scott. "But these crimes have certain legal elements." And meeting the requirements set by those elements could prove difficult.
Given these obstacles, justice for an event that has garnered such global attention may, perhaps counterintuitively, require a turn to the local level. "There are long-standing legal grounds for relatives of the victims to look for redress in national courts," says Richard Dicker, director of the International Justice Program at Human Rights Watch.
States that have an interest in the case — Ukraine, Malaysia, the Netherlands, 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. But though the legal hurdles can be more easily overcome at the domestic level, the practical challenges would remain. "Getting unfettered access to the site … and ultimately getting custody of any persons charged — none of these things can be taken for granted," Scott says.
Looking beyond those who actually fired on the plane, what can be made of the Obama administration’s claims that the provision of weaponry, as well as the training and support needed to use the kind of Buk missile that can reach a civilian airliner, are attributable to the Russian state? Could some measure of justice be gleaned by pinning a degree of responsibility on Moscow?
To answer this question, another Hague-based court becomes relevant. The International Court of Justice (ICJ) adjudicates disputes between states, and it has had to grapple with a similar case in the past. In 1988, the USS Vincennes shot down Iran Air Flight 655 over the Strait of Hormuz, killing all 290 passengers and crew. Iran claimed that, in shooting down the plane, the United States had violated treaties that both countries had signed. Unhappy with the decision of the aviation authority that adjudicated the treaty violation claims, Iran took the dispute to the ICJ.
The two treaties involved in the USS Vincennes incident are in play with MH17 as well. The Convention on International Civil Aviation prohibits states from using weaponry against civilian aircraft. The Convention for the Suppression of Unlawful Acts Against the Safety of Civilian Aviation requires states to prosecute or extradite anyone who destroys a civilian aircraft. But alongside the similarities, there are also important differences in the two cases.
In the USS Vincennes case, attribution to the United States was clear-cut because the missiles came from a U.S. warship. "Attribution will be more difficult in the MH17 case, with complicated factual and legal questions about whether those responsible were agents of Russia or somehow under its ‘effective control,’" says Philippa Webb, an ICJ expert at King’s College London.
In the USS Vincennes case, the ICJ never reached a ruling because, in 1996, the United States settled the case by paying $61.8 million in compensation to the victims’ families. This situation is typical, Webb explains: "The ICJ does not have an encouraging track record for resolving aerial incidents. No case has ever reached the merits."
So while the ICJ remains a potential venue to eventually bring a claim against Russia, 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 quicker route for the victims’ families would be through the Montreal Convention, which obligates airlines to pay damages for the injury or death of passengers. Justice for the MH17 tragedy, however, demands more than that.
The families of the victims deserve to learn the truth about how 298 people lost their lives, and the questions of exactly what happened and who is responsible are still a long way from being answered. The events of July 17 are unquestionably of international concern. But for those looking for accountability in the downing of MH17, it may be the national avenues for justice, not the global ones, that are best suited to give it to them.