The Malaysia Airlines Tragedy and International Law – Postscript

I promise to return to “regularly scheduled programming” soon, but for reasons which I alluded to in my first post in this series, my free attention has been fixed on the downing of Malaysia Airlines Flight 17 (MH17) and the international response to it. My intention with this series was to clarify, in as simple of terms as possible, the primary international legal issues brought up by this tragedy, including what, if anything, will be done to bring the perpetrators to justice. While we are a long ways away from knowing the full story, new details are increasingly suggesting that the Russian state, directly or indirectly, had some involvement in the destruction of a commercial airliner and the deaths of 298 human beings. In this final post I want to touch on a few hypotheticals and address some questions I have been asked in other forums about the legal fallout to this tragedy. At this point I am still inclined to write a great deal in pencil, but I do think there is enough hard “stuff” out there that we can begin thinking seriously about what type of legal response can be expected.

The most recent direct legal news involving MH17 concerns the United Nations Security Council passing a fresh resolution condemning the “downing” of MH17, demanding that the crash site be opened to investigators, and calling for international cooperation in the investigation.  Some news sources are making the document out to be quite a bit more than it is. The Security Council, contrary to certain opinions, is not a global legislature; it cannot pass and execute fresh international law. At best, Security Council resolutions are a vague form of “soft law”; they express certain opinions about what states ought to do going forward, but they do not come packaged with threats of force or sanctions for those states which choose to ignore them. Moreover, these resolutions are largely political documents. For instance, Russia spent the weekend intensely negotiating with other Council members over the wording of the resolution, eventually getting the expression “shooting down” tossed from the final text. In the end, whether or not we see full international cooperation on the matter, including full Russian cooperation, will depend on a range of political calculuses rather than the illusory force of squishy international declarations.

As for Russia itself, both the governments of the United States and Ukraine are strongly suggesting Russian involvement in the shoot-down of MH17. At this juncture it appears safe to say that Russia at least supplied separatists rebels operating in east Ukraine with the Buk missile system that most now believe took down the aircraft. While that fact is lamentable, it’s probably not enough to get Russia in any hot water, legally speaking. States routinely supply other states or fighters (“rebels”) with military equipment. No one is suggesting — or seriously suggesting — that putting a gun in the hands of a foreign solider makes the supplying state legally culpable for what that soldier does with it. At worst there can be a political or diplomatic cost attached to supplying weaponry to some group or standing army that goes off and commits war crimes. If there is anything novel about this situation (and I am not sure there is), it’s that Russia may have put a piece of highly sophisticated and lethal equipment in the hands of individuals who were not properly trained in how to use it. That act may be grossly negligent and hence diplomatically unsavory, but is it illegal under international law? It doesn’t appear so.

Now, the messier question which has been raised is what happens if Russia’s involvement was more than just a supplier? What if it had active military personnel who were directing the separatist rebels to shoot down the aircraft? What if a standing Russian solider, under orders, was operating the Buk system? At that point the issue changes to one of state responsibility insofar as Russia could be held to have been conducting an official military operation in east Ukraine in the same way in which the United States is still engaged in military operations in Afghanistan. Without getting into all of the issues and sub-issues this possibility raises, let me point out that even if Russia were to be officially linked to the downing of MH17, there is very little that could be done about it — unless Russia acquiesces. A legal action before the International Court of Justice, for instance, could be rejected by Russia immediately and any suggestion that the International Criminal Court (ICC) is laughable. First, Russia has signed, but not ratified, the Rome Statute (the ICC’s treaty instrument); it is probably even less likely to ratify the statute now than it was when it signed the document in 2000. Second, even if Russia were under the ICC’s jurisdiction, it could pull out in a heartbeat. And last, the ICC has proven itself to be highly politicized and largely bloodless; it is difficult to see how or why it would entangle itself in a major international dispute with a contending world power like Russia at the center.

Assuming that Russia’s involvement in the MH17 tragedy goes beyond being a mere supplier to the separatist rebels, the most that one can probably expect is for the government to pay some form of reparations to close the dispute out. Reparations don’t necessarily come accompanied with a claim of responsibility or an apology, however. When the United States agreed to pay reparations for the 1988 downing of Iran Air Flight 655, it expressed public regret over the tragedy while eschewing legal responsibility. In a best case scenario I expect that will be the most Russia will submit to if it was directly involved in the shoot down. There is a very good chance, though, that the full extent of Russia’s involvement will never be known and that no individual directly responsible in the attack will taste any semblance of justice in this life.