Explainer: international law and flight MH17

By Melanie Klinkner, Senior Lecturer in Law

As the events surrounding the crash of Malaysia Airlines Flight MH17 over Ukraine become clearer, more and more voices are claiming the plane may have been shot down by pro-Russian separatists in eastern Ukraine.

The Ukrainian president Petro Poroshenko described the crash as an act of “terrorism”, while Vladimir Putin is reported to have said that “the state over whose territory this occurred bears responsibility for this awful tragedy”.

For her part, former US secretary of state Hillary Clinton opined that the catastrophe could have grave consequences for Russia should it turn out that they were involved in supplying equipment used to attack the plane.

What now?

Legally speaking, we are still at an extremely early stage. Once it is established exactly how the plane was brought down, the next step will be to establish who bears responsibility for the crash, and how (and by whom) they will be punished.

States are obliged to punish those responsible. The first steps to investigate the causes and effects of the plane crash have been taken and Ukraine has asked the Netherlands for assistance in this task – but the possible responses using international legal structures are yet to be decided.

For his part, Ukraine’s prime minister suggested that the International Criminal Court (ICC) in the Hague, established to help end impunity for the perpetrators of the most serious crimes of concern to the international community, should look into the matter. However, it is in fact fairly unlikely that the ICC will get involved.

Bad timing

On April 17 2014, the Ukrainian government (which is signatory to the Rome Treaty but has not ratified it) lodged a declaration under Article 12(3) of the ICC’s statute, accepting the ICC’s jurisdiction over alleged crimes committed in its territory.

But that declaration specified only the time frame from November 21 2013 to February 22 2014, when Ukraine’s former president Viktor Yanukovych was ousted amid civil unrest. That means the plane crash would fall outside the declaration’s time frame. The terms could be revisited by the Ukrainian government, but extending the time frame would also leave the pro-Ukrainian side subject to scrutiny by the court for any crimes committed in the course of the deteriorating conflict.

Pro-Russian militants guard the wreckage of MH17.
EPA/Anastasia Vlasova

Meanwhile, under Article 13(b) of the Rome Statute, there is the possibility that the UN Security Council could refer the situation to the ICC Prosecutor – though Russia holds a vetoing power on the council, and would probably use it to block any such attempt.


We also have to remember that the crime of terrorism does not form part of the ICC’s jurisdiction, as the concept of “terrorism” is notoriously difficult to define.

Instead, the ICC’s core crimes are genocide, crimes against humanity, and war crimes (from 2017, this list will include the crime of aggression). To prove a crime against humanity, for example, the prosecution would have to prove that 1) the attack was aimed at any civilian population; 2) a state or organisational policy existed that led to the attack; 3) the specific attack formed part of a widespread and systematic attack; 4) a link between the accused and the attack exists; and 5) there was an awareness of the broader context of the attack.

While some commentators have suggested that the 9/11 plane crashes, for example, constituted a crime against humanity, if the shooting down of flight MH17 proved to be an accident rather than a policy, it would be very difficult indeed to prove the necessary elements of a crime against humanity.

If, however, a preliminary examination by the ICC suggested there were grounds to proceed and the neccessary admissibility and threshold criteria are met, it may still prove very difficult to apprehend the alleged perpetrators if they were to reside in Russia.

Veto trouble

Instead of ending up in front of the ICC, the MH17 disaster will probably become a question for the International Court of Justice, where disputes between states are considered. The court has previously considered rather similar cases: in 1988, for example, Iran brought a case against the US for the shooting down of Iran Air Flight 655 – though eventually the case was withdrawn.

By the same token, Malaysia could be entitled to bring before the court any state directly responsible for the downing of flight MH17, or for supplying the equipment used to do so.

Another body which could take legal action, of course, is the UN Security Council, tasked as it is with maintaining peace and stability. It could establish an independent commission of enquiry, though any resolution on behalf of the Security Council might well be vetoed by Russia. The UN General Assembly could also produce a recommendation in form of a resolution, but they are non-binding.

Ultimately, what happens next will depend on how the major players behave – especially Russia – once the facts of the crash have been more fully established.

The Conversation

Melanie Klinkner does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

This article was originally published on The Conversation.
Read the original article.

BU academic writes on Ukraine and Crimea

Sascha-Dominik Bachmann, Associate Professor in Law at Bournemouth University, has written about the current situation in Crimea and the Ukraine on law website Jurist.com.

The article, titled ‘Crimea and Ukraine 2014: A Brief Reflection on Russia’s Protective Interventionalism’ outlines the reactions of both sides as the crisis in Crimea escalates.

In the article Bachmann outlined the current situation, drawing comparison with the invasion of Georgia in 2008, and Bachmann goes on to write about the reaction of Ukraine’s interim government, the involvement of Russian military, and the role that NATO plays in the conflict.

Bachmann writes, “Russia seems to be achieving its strategic and economic objectives: the weakening of a pro-Western Ukraine, the isolation of critical armaments industries [PDF] located in the eastern parts of the country—which possess a potential opportunity of being utilized further if any negotiated division of the country were to take place—and finally a reassertion of Russian influence along the fault lines of the century old Russian state influence that had become questionable after the collapse of the Soviet Union in 1991.”

You can read the article in full on the JURIST website.

Sochi2014: BU opinion and involvement in the Winter Games

A number of Bournemouth University academics are poised to get involved in the Sochi 2014 Winter Games – using their expertise to contribute to stories and add to knowledge.

Dr Bryce Dyer is a Senior Lecturer in Product Design at Bournemouth University and is currently researching the effects of technology in elite sport. He says of the Winter Games:

Competing at the Winter Olympics is arguably about assembling the best athletes to compete against each other. There are always stories of human interest- of those battling against the adversity of just getting to the games in the first place. Some of us will no doubt remember ‘Eddie the Eagle’ or ‘Eric the Eel’. However, the sad thing with tales like these is that whilst many of us may think of them to be a novelty, the problem a lot of the time is that some of these athletes are being unfairly penalised because of their lack of access to equipment and facilities. The Jamaican Bobsleigh team, (immortalised in the film ‘Cool Running’s’) have got their sled this time from Germany, but will only have got hold of it merely weeks before the games start whereas others have spent hundreds of thousands of pounds testing and evaluating theirs. They are not the only ones – Shiva Keshavan is competing for India in the luge event. YouTube footage shows that he has been training extremely hard – at home on steeply banked local open roads on a homemade wheeled luge – hardly the best conditions for a run at the medals. The question we have to ask ourselves is whether technology is ‘part of the game’ or is it just about going athlete to athlete. Is this fair ? Such is the importance of the best equipment, the Sochi games experience will ultimately have been decided for many, long before they’ve even crossed their start line.”

Additionally, Dr Richard Shipway, Associate Dean: International Engagement in the School of Tourism has been asked to join a panel of academic peer reviewers to assist with the assessment of applications for the Advanced Olympic Research Grant Programme, recently launched by the International Olympic Committee (IOC).

The main objective of the programme, which operates from the IOC headquarters in Lausanne, Switzerland, is to promote advanced research with a humanities or social science perspective on priority topics identified annually by the IOC. Further information on the 2014-2015 Advanced Olympic Research Grant Programme is available on the Olympic Studies Centre web pages at http://www.olympic.org/olympic-studies-centre

Dr Shipway’s current research focuses on the impact and legacies of international sports events, distance running, sport tourism, ethnographic research methods, and various aspects of Olympic studies.

Another BU researcher involved in the Winter Games is Rami Mhanna, a PhD student conducting research into mega-sport events. Rami’s research focusses on stakeholders’ perceptions of legacy outcomes of different sports events. This research focusses on The London 2012 Olympic Games, Sochi 2014 Winter Olympics and the FIFA World Cup in Brazil 2014.

All academics are available for press comment and journalists should contact newsdesk@bournemouth.ac.uk or 01202 963963 to speak to a member of the Press and PR Team.