On 17 July 2014, the Malaysia Airlines flight MH17, serving for 17 years, was shot down over Ukraine, with 298 civilians dead, including 193 Dutch citizens. Based on the declaration of the US officials, it is attacked by anti-aircraft weaponry, which might be provided by Russian. Either Russian or the separatist of Ukraine openly rejected to that statement. According to the twitter statement of Ukraine airplane worker and the published telephone recordings, the preliminary conclusion is that the aircraft was destroyed by Ukrainian separatists with Russian-supplied weapons, or by either Ukrainian or Russian state agents (who may have acted ultra vires). The former is more likely to be the truth, though more facts should be acquired by the international fact-finding missions.
This event would be developed in different directions, either at national or international level. I would like to point out that what can the international justice or international criminal court do for the 298 victims. Can the International Criminal Court have jurisdiction over war crimes regarding the intently attack against civilian aircraft and civilians?
- According to the threshold for the application of Article 8 the Rome Statute, the context element would not be an obstacle. The threshold is similar to the test established in the Tadic Case of the International Criminal Tribunal for the Former Yugoslavia. [Aricle 8(2)(f): Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is a protracted armed conflict between governmental authorities and organized armed groups or between such groups.] It requires protracted armed conflicts and organized armed groups. No limitation on the degree of control over the territory. Based on the news of the Reuters, the International Committee of the Red Cross had confidentially and legally characterized the violence in Ukraine as a war. The International Committee of the Red Cross had privately informed to the parties to the conflicts. In the United Nations system, the International Committee of the Red Cross is responsible to make a determination on whether violence has evolved into an armed conflict. The internal war is between the Ukraine Authority and the Ukraine armed separatists groups. Depends on the degree of control (effective control or overall control test) over the armed groups by Russian, it may be an international armed conflict. Whatever the attribute of the armed conflicts, war crime provisions could be applied.
- The non-state party’s status of Ukraine and Russian would not prevent the possible prosecution of war crimes. According to Article 13 of the Rome Statute of the International Criminal Court, the jurisdiction of the International Criminal Court can be triggered by 3 different ways. Apart from prosecutor’s proprio motu or a referral by the Security Council, the court may exercise its jurisdiction regarding war crimes. Ukraine parliament has recently amended its Constitution in order to allow for the ratification of the Rome Statute. And On 9 April 2014, under Article 12(3) of the Rome Statute, Ukraine has already made an ad hoc declaration accepting the Court’s jurisdiction for crimes committed on its territory from November 2013 to February 2014. This kind of ad hoc declarations can be retrospective. And the possibility that Ukraine might make another such declaration for the attack on MH17 in the future cannot be excluded.
- The possibility for the admissible of the case/situation regarding the attacking act to the International Criminal Court is difficult. Though the war situation may be investigated and prosecuted by the ICC, the subjective element for the war crimes against civilian objects and civilians is hard to prove. This kind of behaviour requires deliberation and intention to attack them as the targets. As the facts are becoming clear, with the different political interference, the international liability is demanding.
- Even if the International Criminal Court did not initiate procedures regarding this event, the war crimes might also be prosecuted at national courts. Based on the Netherlands law on International Crimes[the Netherlands can prosecute any individual who committed a war crime against a Dutch citizen], and the facts that 193 victims are Dutch citizens, the Dutch prosecutors have opened an investigation into the event on suspicion of murder, war crimes and intentionally downing an airliner.
- Furthermore, even if other states did not prosecute war crimes for the rest victims [298-193=105] in the tragedy, an ad hoc tribunal (such as the ICTY, ICTR) may be established to prosecute the individual suspects. A hybrid tribunal (ECCC, SCSL) based in Ukraine would not be preferred.
Hope the international justice and international criminal law can contribute something to the victims.