Navigating the Legal Horizon: Lawyering the MH17 Disaster

• Author: Marieke de Hoon
• Position: Assistant Professor, Vrije Universiteit Amsterdam, NL; Director of the Netherlands Office and Senior Counsel, Public International Law & Policy Group (headquartered in US)
• Pages: 90-119

Marieke de Hoon, ‘Navigating the Legal Horizon: Lawyering

the MH17 Disaster’ (2017) 33(84) Utrecht Journal of

International and European Law, pp. 90-119 DOI: https://doi.

org/10.5334/ujiel.368

UTRECHT JOURNAL OF

INTERN

ATIONAL AND EUROPEAN LA

W

RESEARCH ARTICLE

Navigating the Legal Horizon: Lawyering the MH17

Disaster

Marieke de Hoon*

On 17 July 2014, Malaysia Airlines Flight MH17 was shot down over Eastern Ukraine, leaving no

survivors. Since, victims’ relatives, States, and the wider public are trying to understand what

happened, how it could happen, who is responsible, and how to address these responsibilities. The

eorts to nd justice have faced many complications and legal complexities. This article aims

to provide insight into these legal and political complexities. In particular, it discusses the core

legal questions of the criminal accountability of the perpetrators and the State responsibility of

those States involved —Ukraine and Russia— through the legal doctrines of public international

law and the European Convention on Human Rights. It further oers some core considerations

relating to civil liability of States and airline carriers. In addition to providing insight into why

the road to justice is long and arduous, the legal options available, and the specic challenges of

each, the article also emphasises that having a legal option does not necessarily mean that it is

also the best choice to use it. That choice is up to victims’ relatives and the States concerned.

The article takes no position in this regard. Instead, it seeks to provide an analysis that may

contribute to making such decisions in an informed manner.

Keywords: MH17; State responsibility; Politics of law; Civil aviation law; Criminal law;

International criminal law; International humanitarian law; European Court of Human Rights;

European Convention on Human Rights

I. Introduction

This Special Issue poses the question of what it means to practice international law. Or, put differently, what

it means to practice law in an international sphere. This usually quickly leads to considerations of the pos-

sible legal issues involved with, for example, international transactions, mergers and acquisitions across bor-

ders, trade agreements, tax regulations for multinationals, a State providing legal aid to nationals arrested

abroad, people buying property in foreign States, or prosecuting war criminals at international tribunals.

This article addresses the complexities of lawyering justice when multiple legal fields (such as criminal law,

international law, civil law, constitutional law, and human rights law) and legal orders (of different States as

well as national-regional-international) intersect. In particular, this article discusses the tragedy of the MH17

crash, and the questions this provokes relating to what legal responsibilities may have been violated and

how to hold those that violated these obligations to account.

Of the 298 victims, 196 were Dutch nationals. As the State that lost most nationals, the government of the

Netherlands took a lead role in calling for and organising investigations. The Dutch parliament, in their role

to ensure checks and balances concerning the government, sought advice to strengthen their effectiveness

in ensuring that the right decisions were taken. The Public International Law & Policy Group’s Netherlands

Office was among those organisations that were asked to advise on the matter.1 To be exact, we were asked

to provide analysis on the legal options that are available to the Dutch State and victims’ relatives. While the

space of an article is too limited to present all of our findings, this paper presents some of the most relevant

* Assistant Professor, Vrije Universiteit Amsterdam, NL; Director of the Netherlands Office and Senior Counsel, Public International

Law & Policy Group (headquartered in US).

1 For more information on the Public International Law & Policy Group (PILPG) and its workings, see .

de Hoon 91

ones and thereby not only tries to provide legal analysis concerning MH17 but also place this in the broader

context of the challenges for investigators and lawyers to address cross-boundary situations like MH17.

The text proceeds as follows. First, it provides some contextual setting by briefly introducing the key

findings of the investigations so far and stipulates some observations on the often-heard question of why

it takes so long to bring those responsible to account. The sections that follow discuss the legal avenues

that are most relevant to MH17, explaining the different types of legal responsibilities and actors that each

addresses and analyses some of the key legal difficulties with these different legal frameworks for the MH17

situation. Section III focuses on criminal law and international criminal law, which allows prosecution of

individuals that were responsible for taking MH17 down in a criminal court of law. The sections that fol-

low discuss legal responsibilities of different actors, which may have acted or failed to do so in ways that

contributed to the situation in which MH17 could occur or concerning the investigative efforts afterwards.

Section IV considers the responsibility of States under general public international law. Section V zooms in

on the special system of the European Convention of Human Rights (ECHR) that places additional obliga-

tions on the States involved. And Section VI briefly touches upon some of the main civil law obligations that

may well have been breached. While civil litigation as legal avenue is by no means less relevant than other

legal frameworks, due to the limited space of this article and since most civil litigation for MH17 has by now

been completed, this section only provides the analysis needed to understand the general framework and

types of obligations for sake of comprehensiveness. The final part (Section VII) provides some observations

on the political and ethical considerations on when and how to strategically use law, legal action and legal

language. Having a legal option does not necessarily mean that it is also the best solution to use that legal

option. Realising the limitations of what law can bring is an important and necessary realisation when con-

sidering your options, particularly in a difficult and sensitive situation like the tragedy of MH17.

II. The Complex Road to Answers: Investigating and Lawyering MH17

On 17 July 2014, Malaysia Airlines Flight MH17 that set off to fly from Amsterdam to Kuala Lumpur was shot

down over Eastern Ukraine. The flight was a Malaysia Airlines aircraft (registered 9M-MRD) that was code-

sharing with KLM flight KL4103. On board of the Boeing 777 were 283 passengers and 15 crewmembers

who all lost their lives. The victims’ families and the States whose nationals were lost were confronted with

the difficult task to find out what happened, who were responsible for this tragedy, and to seek remedies

from those responsible.

In the aftermath of the MH17 crash, no one claimed responsibility, with each side blaming the other. With

Ukrainian consent, the Dutch government took the initiative to investigate the crash and repatriate the

victims and their belongings. A number of Dutch government reports have since been published. The Dutch

Safety Board (DSB) conducted an investigation into the specific circumstances of the crash itself. This inves-

tigation concluded that the plane was shot down by warhead installed on a Buk surface-to-air missile system,

from the rebel-held territory of the Donetsk region in Ukraine.2

Since late 2013, Ukraine has faced ongoing civil and international conflict. By July 2014, a full-fledged

armed conflict took place between Ukrainian armed forces and separatist forces fighting for the independ-

ence of Eastern Ukraine, allegedly supported by Russia with more than merely political backing. Central to

any legal or diplomatic accountability remedy will be establishing the facts regarding the extent to which

Russian Federation military and/or civilian officials directed, trained, equipped or controlled separatist

forces in Eastern Ukraine.

The October 2015 report by the DSB is concerned solely with the technical reasons for the crash and seeks

to contribute to the safety of civil aviation in the future. The criminal investigation into who was respon-

sible for downing the plane is conducted by the Joint Investigation Team (JIT). This team consists of the

Dutch National Police and Public Prosecutor’s Office, and judicial authorities and police forces of Australia,

Belgium, Malaysia and Ukraine, whose citizens died in the crash, as well as authorities from Germany, the

USA, Italy, Canada, New Zealand, Indonesia and the Philippines. Their objective is ‘to establish the facts, iden-

tify those responsible for the crash and to collect evidence that can be used in court’.3 Russia is conducting

its own investigation into the matter, which led to different conclusions than those of DSB with regard to

the type of missile used and the direction from which it was fired. Various other actors have also conducted

2 Dutch Safety Board, ‘Crash of Malaysian Airlines Flight MH17’ (The Hague, 22 October 2015)

uploads/phase-docs/1006/debcd724fe7breport-mh17-crash.pdf> accessed 17 March 2017 (MH17 Report).

3 As described on the website of the Dutch prosecutorial authorities, see Openbaar Ministerie, ‘MH17’

werpen/mh17-crash/> accessed 17 March 2017.