Introduction

On 25 May 2018, the Netherlands and Australia invoked the responsibility of Russia under public international law for its involvement in downing Flight MH17.  In particular, the Netherlands and Australia hold Russia responsible for the deployment of the BUK installation that brought down the flight.  This was an announcement invoking public international law, and more specifically, the doctrine of state responsibility.  Public international law's doctrine of state responsibility includes human rights law, such as those human rights that are protected by the European Convention on Human Rights and are invoked in the applications that are discussed in chapters 3 and 4.  However, international law is broader and includes all breaches of obligations that states have under public international law, including not only human rights law but also, for instance, civil aviation law and the laws of armed conflict.  

As is common in disputes of public international law, upon their announcement to hold Russia accountable, the Netherlands and Australia invited Russia to enter into negotiations to try and find a common solution before turning to a court or commission to decide.  The Dutch Minister of Foreign Affairs thereby requested that Russia (a) accept its responsibility for the downing of flight MH17, (b) cooperate with the criminal investigation and prosecutions of the perpetrators, and (c) provide reparations to the relatives of victims. 

On 27 March 2019, the Dutch and Australian governments announced that a first meeting with the Russian government had taken place.  Since, the Dutch government has informed the Dutch parliament several times that the process was ongoing.  On 15 October 2020, Russia withdrew from the negotiations because they argued that the trilateral talks were meaningless now that the Netherlands had also submitted a complaint against Russia at the ECtHR (see chapter 4).  The Russian Foreign Ministry declared that this rendered the trilateral talks meaningless.  This raises the question of what this cessation of negotiations means for the public international law-route. And what options public international law provides to hold Russia accountable.

This chapter describes the options to litigate against Russia under public international law’s doctrine of state responsibility, potentially even arising to a case between the Netherlands and Australia versus Russia before the International Court of Justice (ICJ).  The chapter sets out the nature of state responsibility, stages of proceedings if the case would eventually arise before the ICJ, their potential outcomes, and interaction with the other proceedings considered in this handbook.  While it is unclear if the Netherlands and Australia will pursue litigation under public international law, this chapter provides information on what this could possibly look like.  While this chapter thereby focuses on the ICJ as the most known international court that could be sought remedy from, the Netherlands and Australia could also choose other means to hold Russia accountable or not pursue this avenue further at all.

State Responsibility

State responsibility concerns the responsibility of states for obligations they have under international law, and does not establish the responsibility of individuals involved in the unlawful act, which is a question of either criminal law (when committing crimes, see chapter 1) or civil/private law (for instance for damages, see chapter 2).

State responsibility can be pursued in different ways.  Article 33 of the UN Charter explains that these include negotiation, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies, while article 35 adds that states can also bring a dispute to the attention of the Security Council or the General Assembly.  When a dispute between states occurs, negotiations are usually a first attempt to settle the dispute.  Often, “genuine negotiations” are even a requirement before a dispute can be brought to a more formal method of dispute settlement, such as a judicial settlement before a court.  The primary court to deal with state responsibility cases and to settle disputes between states is the ICJ, the principal Court of the United Nations. The ICJ was founded in 1945, as the principaljudicial organ of the United Nations.  Itis located in the Peace Palace in the Dutch city of the Hague.

However, most international disputes where one state accuses the other of breaching its international legal obligations do not lead to cases before the ICJ.  Most are settled out of court through diplomacy, and not rarely with confidential agreements in which (forms of) reparation may be agreed upon.

Actors

In public international law, the actors are states.  The process of negotiations that started with the invocation of state responsibility on 25 May 2018 is therefore conducted between states and the next of kin or NGOs play no part in them.

If this would lead to judicial proceedings, the question would be through which avenue.  This can be arbitration or an international court.  Here too, states are usually the sole actor.  For example, the ICJ only hears disputes between states, and solely states, not individuals, can be party to a case before the ICJ.  However, the ICJ may request information concerning the proceedings under its consideration from public international organizations.

At the ICJ, hearings are public and can be attended by those interested.  However, the number of seats in the Great Hall of Justice at the Peace Palace in the Hague where hearings take place is limited, so they are allocated on a first come and first served basis. Alternatively, the hearings can also be followed on the Court’s website.  The dates of each hearing, along with further information regarding attendance, can be found on the ICJ’s online calendar.  If judicial proceedings take place at another court or through arbitration, the rules of that institution are applied.  In case of arbitration, the parties involved can decide which rules they want to create for their proceedings, which can also include different roles for non-state actors.

Timeline

Before a case is brought to the ICJ, states typically enter into negotiations to try and settle their dispute separately.  This occurred on 25 May 2018 when the Netherlands and Australia sent a diplomatic note to Russia inviting Russia to enter into negotiations on how to find a solution for justice over the downing of MH17.  If the counterparty refuses to participate in negotiations, or if the parties are unable to resolve their dispute, then the case may eventually be brought to the ICJ.

In the case of MH17, Russia announced its decision to withdraw from the negotiations on 15 October 2020.  This means that the Netherlands and Australia can argue that they have genuinely attempted to negotiate but that these negotiations have failed, thereby fulfilling this procedural requirement.  Depending on what treaty is invoked by the Netherlands and Australia, a number of other procedural requirements may exist before they could submit the case before a court, if they choose to do so.  This is further discussed at the stages of proceedings section and entails that before being able to submit a case before the ICJ, parties need to either request a ruling from the International Civil Aviation Organization (ICAO) or try to organize arbitration before the ICJ would become an option.

On average, proceedings before the ICJ take four years to be completed.  A proceeding before the ICJ can be initiated in two ways: (i) a special agreement between the two states in which they both agree to the proceedings or (ii) an application submitted by one party (the applicant) against the other party (the respondent).  Once the Court receives one of these two documents, the proceedings are officially opened.  Proceedings then continue in two stages: an incidental stage and a merits stage.

There are three possible proceedings at the incidental stage.  First, jurisdiction: if a state challenges the jurisdiction of the Court, then the Court will decide if it is able to hear the case.  Second, provisional measures: a state may request special measures if some rights are in immediate danger.  These are decided more quickly.  They can be decided in a matter of weeks, but can also still take a (relatively) long time if matters are complex.  Third, third-party intervention: a third state may ask to be involved in the proceedings if it has an interest in the outcome.

If a party does not appear before the Court, this will not stop the proceedings (although the Court will have to determine its jurisdiction).  The Court might also find that two separate proceedings against the same respondent are related and combine them into one proceeding.

The merits stage includes both a written phase and an oral phase.  During the written phase, the parties will file and exchange written documents including the facts and the law of their arguments.  The time limit to submit these written documents “shall be as short as the character of the case permits” although it may be extended by the Court.  There is typically a few months in between the end of the written phase and the start of the oral phase.

During the oral phase, lawyers of the parties will address the Court in public hearings.  The oral phase generally lasts several weeks.  The written documents from the written phase are not made public until the start of the oral phase (and only if the parties do not object).

Finally, after the oral phase is completed, the Court will deliberate in private and these deliberations will typically take between three and nine months.  Once the Court has reached a decision on the case, it will deliver its decision in public.  The decision of the Court is final, binding on the parties, and cannot be appealed.

Although there is no possibility of appeal, there is a stage of post-adjudication, in which the parties may request an interpretation of the judgement, or, if new decisive facts have been discovered, a revision. A request for revision must be filed within six months of the discovery of the new fact, and after ten years of the date of the judgement.

Stages of Proceedings

State responsibility proceedings are complex and the ICJ takes on average four years to decide a case, while it is very common that cases take many more years.  Once the dispute is submitted at the ICJ and all previous steps (negotiation and other admissibility requirements) have been taken, the proceedings consist of two stages: 1) the incidental stage, which includes the admissibility proceedings, and 2) the merits stage.     

Incidental Stage 

In the incidental proceedings, the Court may be requested to issue provisional measures, for instance to immediately cease hostilities, which has priority over all other aspects and cases.  During the incidental proceedings, parties may also submit pleadings over the jurisdiction or admissibility of the case.

The jurisdictional threshold for the ICJ is high, as the ICJ is only able to hear an inter-state dispute if both sides of the dispute have provided their consent.  In the dispute concerning Flight MH17, an agreement between Russia and the Netherlands, Australia and potentially other states to refer the case to the ICJ seems unlikely.

For example, the Netherlands, Australia and Russia are all parties to the 1944 Convention on International Civil Aviation (Chicago Convention), which regulates the safety of civil aviation.  Concretely, article 3bis provides that states cannot use weapons against civil aircraft in flight.  Before a dispute based on the Chicago Convention can be heard by the ICJ, certain steps need to be taken by the parties.  First, parties need to have tried to resolve the dispute through negotiations.  Second, if negotiations are unsuccessful, the dispute needs to be submitted to the ICAO Council.  The ICAO Council will then issue a decision, and if either of the disputing states disagree, they may then make an appeal to the ICJ.  Given the failed negotiations between the Netherlands, Australia and Russia, a next step could entail that the Netherlands and Australia (or one of them, or instead accompanied by other states) would submit the dispute to the ICAO Council.

Another example is that the Netherlands, Australia and Russia are also parties to the International Convention for the Suppression of the Financing of Terrorism (ICSFT), which includes crimes against civilian aircraft but focuses on the financing and supporting of insurgents rather than the downing of the aircraft concretely.  The proceedings of Ukraine against Russia over the conflict in Eastern Ukraine and Crimea is based on the ICSFT, among other treaties.  Following the compromissory clause, if states have a dispute that relates to the application or interpretation of the treaty, they may go to the ICJ.  Again, the parties first have to try to settle their dispute through negotiations.  Second, if negotiations are unsuccessful, this treaty provides that one of the parties may request arbitration.  If parties do not agree within six months after the request to arbitration on how to organize the arbitration, each party may submit the dispute to the ICJ.

Thus, if a case against Russia is brought before the ICJ, the Netherlands will first need to convince the ICJ that it has jurisdiction to settle its dispute with Russia, and may, for instance, invoke either the Chicago Convention or the ICSFT.  The failed negotiations between the Netherlands, Australia, and Russia will then form part of the argument that the preconditions for jurisdiction are met, but in either case, other steps need to be taken before the ICJ actually has jurisdiction.

Merits Stage

If the ICJ concludes it has jurisdiction to hear the dispute between the Netherlands/Australia and Russia, it will move to the second part of the proceedings: the merits stage.  Here, the Netherlands will need to convince the ICJ that Russia has violated one or more of its obligations under international law.  The Netherlands may argue that Russia violated its international obligations by (a) using the BUK missile against civilian aircraft in flight, (b) providing the BUK weapon system to rebel groups in Eastern Ukraine, (c) by failing to prevent the downing of MH17, and/or (d) by failing to conduct an effective investigation into the crash.

As discussed above, to determine the responsibility of a state for certain conduct, three requirements have to be met: (1) the act or omission constitutes a breach of an international obligation, (2) is attributable to the state, and (3) the wrongfulness is not precluded due to specific circumstances.

First, the state’s conduct needs to amount to a breach of one of its international obligations.  According to the Netherlands and Australia, the BUK weapon system that shot down MH17 was Russian and the operation to deliver the BUK to the launch site was organized by Russia.  The Netherlands and Australia argue that Russia is responsible for the downing of Flight MH17.  They could argue that this violates article 3bis of the Chicago Convention.  They could also argue that their support of the insurgents violated the ICSFT.  The next section discusses the main treaties that seem relevant under public international law and that could be litigated over if parties decide to take further legal steps against Russia.

Second, the conduct has to be attributable to the state under international law.  Because a state acts through its agents, the rules on attribution specify the circumstances in which the conduct of a state agent or another person will engage the responsibility of the state.  For instance, an act is attributable to a state when the wrongful act in question was committed by an organ of the state or by a person or entity exercising governmental authority on behalf of the state.  Furthermore, an act will also be attributable to a state when the wrongful act in question was committed by a person acting on the instructions of, or under the direction or control of the state.  The ICJ will therefore have to find that the acts of those responsible for violating the above treaty provisions are attributable to the state rather than merely individuals with no or insufficient ties to the state.  The exact relations between the insurgents and Russia, and thus the support they received, will thus be examined, as well as the role of Russia in delivering and launching the BUK.

Third, acts or omissions that violate an international obligation and are attributable to Russia can still be found justified if there are circumstances that preclude the wrongfulness, such as self-defense, force majeure, necessity or distress.  There is at this stage no indication that Russia may successfully rely on any of the legally provided circumstances that would preclude the wrongfulness.

Discontinuation 

Relevant Treaties

The body of public international law is diverse and extensive.  For the situation of MH17, many international legal norms apply, embedded in treaties and customary international law.  Three of the most relevant treaties for the MH17 situation are introduced in the next subsections.  

Chicago Convention

The Chicago Convention is an international agreement that addresses the coordination of flight paths, the provision of air traffic control services, obligations that states and aircraft carriers have with regards to each other and passengers, and other aspects of civil aviation throughout the world.

Article 3bis the Chicago Convention is particularly relevant to a potential ICJ case between the Netherlands and Russia as it establishes an obligation on states to provide for the safety of civil flight and refrain from using weapons against civilian aircraft in flight.

Whether Russia can be found responsible of violating article 3bis of the Chicago Convention turns on the identity of those involved in the launching of the BUK missile and their relationship to the Russian state.  In fact, on the basis of the Articles of State Responsibility, the conduct of these individuals is attributable to Russia if they were Russian military (or other Russian officials) or if they were non-state actors who were acting on the instructions of Russia or under their direction or control.

Montreal Convention

‍The Montreal Convention deals mostly with acts of individuals against the safety of civil aviation and with the obligations of states to prevent and respond to these acts. However, Russia has made a reservation to the Montreal Convention’s compromissory clause.  As a result, it is unlikely that this Convention can be invoked directly by the Netherlands/Australia to base jurisdiction on for possible future proceedings against Russia.  However, they may try and argue violations of this convention through other ways, for instance by reference to the ICSFT.

ICSFT

The ICSFT addresses the financing of terrorism. On the basis of this Convention, the Netherlands could seek to hold Russia accountable for systematically providing armed groups in Eastern Ukraine with heavy weaponry, money, personnel, training and other support that enabled them to conduct attacks, including against MH17.  Article 1 of the ICSFT provides that under the term “terrorism” also falls violations of the Montreal Convention.  The violations that fall under the ICSFT do not primarily aim at the role of Russia in downing MH17 (which the Chicago Convention addresses), but in their support to those that did.

As Ukraine is currently seeking to hold Russia accountable on this very basis in proceedings currently pending before the ICJ, the Netherlands may be awaiting the ICJ’s judgment in this case in order to get a better understanding of the scope and application of the ICSFT and how it may be applicable to the MH17 case.

Remedies

If the ICJ finds that Russia has violated international law, the ICJ may decide to award remedies.  When state responsibility is established, the responsible state is obliged to provide full reparation for injury caused by the wrongful act to re-establish the situation that existed before.  However, when the harm that followed the violation cannot be undone, as is the case for MH17, the ICJ can award monetary compensation for the damage caused.

If the ICJ awards compensation, the compensation would be granted to the applicant states (the Netherlands, Australia).  Since state responsibility proceedings are inter-state in nature, they are not the usual legal avenue for individual victims to receive compensation for the damage caused by a wrongful act, even if it happened at the hands of a state.

The ICJ is generally reluctant to award financial compensation.  Instead, it often invites disputing states to enter into an agreement between themselves on the amount of compensation to be paid through negotiations.  If the ICJ does award compensation, it will only cover damage that can be financially assessed.  It will calculate the amount payable by the state that committed a wrongful act (Russia) by assessing the financial loss of the injured parties (the Netherlands, Australia and possibly other states that have lost their nationals).  For example, for the Netherlands and Australia, this may include the costs associated with the repatriation of victims and with carrying out the investigation.

The ICJ does not award financial compensation for other types of damage, such as injury to one’s honor, for example.  In these cases, satisfaction is considered the appropriate remedy.  Satisfaction means the state needs to acknowledge its breach, express regret, or issue a formal apology.  The only limitation to the granting of satisfaction by the ICJ is that it has to be proportionate and cannot humiliate the state that bears the responsibility.  Satisfaction could result in, for instance, the ICJ ordering Russia to admit that it was responsible for the downing of Flight MH17 and the deaths of the 298 victims, or this could result in the ICJ ordering Russia to issue a formal statement where it apologizes for its role in the downing of Flight MH17.

Enforcement of Judgment

States are unable to appeal a judgment that is issued by the ICJ.  The judgment that is issued by the ICJ is binding to both parties, meaning that states are under an obligation to comply with the judgment.  However, the Court does not have any means at its disposal to enforce compliance should parties fail to comply.

If there is a refusal to comply with the judgment, states can request the UN Security Council or the UN General Assembly to address the lack of compliance.  The Security Council can investigate the dispute and make recommendations or decisions to effectuate the judgment.  However, in the MH17 situation, should Russia not be compliant with a judgment, it is likely they will also use their veto power as a permanent member of the Security Council to prevent the Security Council from making any such investigation, recommendation or decision.

Alternatively, states can request the UN General Assembly to discuss the matter.  However, contrary to the Security Council, the General Assembly cannot make binding decisions but only recommendations.  While the UN thus has little power to enforce a state to comply, such a statement from the General Assembly may impact global public opinion and diplomatic relations.

Interaction with Other Proceedings

When a state invokes the responsibility of another state under the doctrine of state responsibility, this does not influence individual criminal proceedings of those personally involved in the case or vice versa.  For example, even if individuals would be acquitted before a criminal court of law, this does not prevent the state’s responsibility from being invoked.  State responsibility and individual criminal proceedings are separate proceedings and can be pursued in parallel.

Although state responsibility proceedings are distinct from other proceedings in this handbook, conclusions regarding facts and legal responsibility made during one proceeding may be used in the other, even if the courts are not bound by each other's decisions.  This is not a so-called “precedent”, because there is no formal relationship between the proceedings or courts, but can be understood more as authoritative judgements on facts and circumstances.  Therefore, if either in the criminal law proceedings or in the proceedings at the European Court of Human Rights, the Court would decide that Russia is involved and responsible for certain acts or omissions, the ICJ would be able to consider this as authoritative information, while it still remains itself responsible to apply its own set of rules and criteria, governed by public international law.