Introduction

In addition to the five main legal proceedings that are explained in the previous chapters, there are six other legal proceedings related to the downing of Flight MH17.  These proceedings include the claims against the Malaysia Airlines Group; a US-based civil lawsuit against Igor Girkin (Dalziel et al. v. Girkin); another US-based civil lawsuit against Russian companies (Schansman et al v. Sberbank of Russia Pjsc et al); the individual application of Ioppa v. Ukraine at the European Court of Human Rights (ECtHR); the inter-state application of Russia v. Ukraine at the ECtHR; and Ukraine v. Russia at the International Court of Justice (ICJ).  This chapter briefly explains each of these proceedings and their interaction with other proceedings.

Civil Claims Against the Malaysia Airlines Group

The claims against the Malaysia Airlines Group are civil proceedings on the basis of the 1999 Montreal Convention.  The claimants (the next of kin of MH17 victims) sought to invoke the liability of, and seek monetary compensation from, the Malaysia Airlines Group for the damage that resulted from the downing of MH17. 

The downing of MH17 by the surface-to-air missile constitutes an accident for the purpose of the Montreal Convention.  Since the crash was not caused by a passenger’s own wrongdoing, the next of kin can claim monetary compensation for the damage suffered as a result of the deaths of their relatives.  The Montreal Convention provides for a framework to calculate compensation.  The amount of compensation awarded to each next of kin can differ depending on the extent of damage they were able to prove that resulted from the death of the particular passenger.  The amount of compensation would be higher if the Malaysia Airlines Group was negligent by flying over Eastern Ukraine, an active conflict zone at the time.

Under the 1999 Montreal Convention, claimants have two years from the date at which the aircraft should have arrived at its destination to bring their claim.   In the case of MH17, the claimants had until 14 July 2016 to bring their claims against the Malaysian Airlines Group.  Many of the claims have been settled.   Since the settlements are confidential, it is unknown whether all claims have been settled and with what outcomes.

Civil Lawsuit Against Igor Girkin (Dalziel et al. v. Girkin)

The Dalziel et al. v. Girkin case was a civil compensation claim before the District Court of Illinois.  The case was filed in February of 2016 by a group of 25 next of kin, including 10 Dutch, against Igor Girkin (also known as Igor Strelkov).  The group is represented by American lawyer Floyd Wisner.  At the time of the downing of MH17, Igor Girkin was a leader of the separatist group DPR, in Ukraine.  The plaintiffs accused Girkin of being involved in the downing of the aircraft, and claimed compensation of USD 50 million for each victim.

The claimants based the case on the Torture Victim Protection Act (TVPA) of 1991, which establishes civil liability for individuals who subject others to extrajudicial killings.  The claimants argued that the downing of MH17 fell within the definition of extrajudicial killings given by the TVPA: “deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”  They claimed that Girkin was in command of the separatist troops that shot down Flight MH17 in July 2014, had helped the delivery of the BUK missile system that was used to down the aircraft, and ordered separatists to collect belongings of victims from the site of the crash.

Girkin could not be given notice of the case, as he was not found in his residence in Moscow, and the case was heard in his absence.  In January 2018, the District Court of Illinois issued its judgement, awarding compensation of USD 10 million in compensatory damages and USD 10 million in punitive damages, for each claimant.  The plaintiffs have requested the seizure of Girkin’s property, but his assets are not valuable enough to cover all of the claims, and it is not even clear whether there is anything to seize at all.  Moreover, other than the claimants to the case, the rest of the next of kin would not be entitled to compensation.

Civil Lawsuits Against Russian Companies (Schansman et al v. Sberbank of Russia Pjsc et al)

In April 2019, the next of kin of Quinn Lucas Schansman, who was an 18-year-old US citizen when he died in MH17, filed a lawsuit in the Southern District of New York against two Russian banks (Sberbank and VTB Bank) and two money transfer companies (MoneyGram International and Western Union) for their support to the Donetsk People’s Republic (DPR).  The next of kin argue that these companies knew or showed deliberate indifference to the fact that they provided material support to the Donetsk-based rebels who shot down the plane.  According to the claimants, the material support provided by the defendants to the DPR enabled its terrorist activities, including the acquisition of the BUK missile that ultimately downed MH17.

The lawsuit is a civil lawsuit, with the purpose of claiming monetary compensation for damages caused by the defendant companies’ support to the DPR.  The lawsuit is based on the Antiterrorism Act, allowing citizens of the US who are victims of terrorism to sue those who provided material support to terrorism and recover compensation for the damage caused as a result thereof.

The proceedings are still ongoing, so it is not yet clear whether and how much compensation will be awarded.  Previous cases that have been argued on the basis of the Antiterrorism Act have resulted in confidential settlements, which makes it hard to predict any outcome.  In any event, the case would not provide compensation to the next of kin of victims that were not US citizens.

Ioppa v. Ukraine (ECtHR)

In July 2016, four next of kin of three of the victims of MH17 filed an individual application with the ECtHR in the case of Ioppa v. Ukraine.  They argued that Ukraine failed to close the airspace over the active conflict zone in Donetsk, where MH17 was shot down.  The applicants argue that Ukraine thereby violated its obligation to ensure respect for the right to life of the passenger aboard the plane under article 2 of the European Convention on Human Rights (ECHR) because they were aware of the risks in their airspace and accepted the potential consequences that a civil aircraft would be shot down.

Article 2 ECHR provides for the right to life.  This includes that states need to safeguard lives in their airspace and that they, in accordance with specific treaties that govern civil aviation such as the Chicago Convention and the Montreal Convention, take reasonable measures to ensure that their airspace is safe or communicate to other states, airlines and airmen about risks in their airspace.

The case was communicated to Ukraine in July 2016 and is still in the admissibility stage of proceedings.  A possible outcome may be a remedial award of money in the form of just satisfaction to the four applicants who brought the case. See chapters 3 and 4 for more detailed explanation of the ECtHR, the ECHR, and article 2 ECHR.

Russia v. Ukraine (ECtHR)

On 22 July 2021, Russia filed an inter-state application against Ukraine at the ECtHR.  In the case Russia v. Ukraine, Russia claims that Ukraine has violated the ECHR in various ways in the context of the civil war in the Eastern parts of the state.  The application includes the claim that Ukraine bears full responsibility for the deaths of those who perished in the downing of MH17, due to its failure to close the airspace over the conflict zone.  Thereby, Russia alleges that Ukraine violated its obligation to ensure respect for the right to life under article 2 ECHR and caused “suffering to the relatives of those killed,” amounting to a violation of article 3 ECHR.  The case was communicated to Ukraine and is currently pending a decision on admissibility.  More information on how such inter-state cases before the ECtHR function can be found in chapter 4.

If the ECtHR decides to consider the merits in the case of Russia v. Ukraine, there might be some overlap with the Ukraine and the Netherlands v. Russia inter-state application that is discussed in chapter 4.  However, these cases are not mutually exclusive.  For instance, the ECtHR can decide in the case against Russia that Russia is responsible for the downing of Flight MH17, while at the same time deciding in the case against Ukraine that Ukraine is responsible for failing to act diligently to protect the lives of those on board by closing its airspace or issuing warnings to airlines.

Ukraine v. Russia (ICJ)

On 16 January 2017, Ukraine instituted proceedings against Russia at the ICJ.  Ukraine alleges that Russia violated obligations under two international conventions, namely the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).  Ukraine’s claims on the basis of the ICSFT are relevant to the downing of MH17.  In fact, Ukraine alleges that Russia supplied funds, weapons and training to Ukrainian-based rebels that engaged in acts of terrorism, as well as causing or supporting the downing of MH17.

As described in chapter 5, only states may be parties to proceedings at the ICJ, so the next of kin will not be able to participate in them.  The ICJ may request information concerning the proceedings under its consideration from public international organizations.

In its judgment on preliminary objections of 8 November 2019, the ICJ found that it is able to consider Ukraine’s claims under the ICSFT and ICERD treaties and rejected Russia’s claims that the Court would not have jurisdiction or that the case would be inadmissible.  Therefore, the next stage of the proceedings is the merits stage where the ICJ will examine whether Russia did in fact supply funds, weapons, and training to Ukrainian-based rebels that engaged in acts of terrorism, ultimately causing or supporting the downing of MH17.  The ICJ initially set a deadline of 8 December 2020 for Russia to respond to these allegations.  However, due to delays in the preparation of Russia’s pleadings caused by the COVID-19 pandemic, the deadline for Russia’s Counter-Memorial has been extended to 9 August 2021.