Responsibility for crashing of Boeing airplane must be borne not only by the crime perpetrators, but also by politicians. However, it will be difficult to reach any progress in the criminal investigation without exerting pressure onto the Russian Federation.
On February 17-19, 2016 International Air Transport Association held an annual symposium in Barcelona. The event hosted all world-known figures in the sphere of Aviation Law: lawyers of airports, airlines and insurance companies, scientists and representatives of big international law firms.
Among the key questions discussed at the symposium was a matter of exercising effective justice in relation to crimes committed against aircrafts. The central matter of the discussion was related to the airplane of Malaysian Airlines (flight MH 17) and the procedure of bringing the guilty of this crime to responsibility.
Let’s review possible options for choosing a jurisdiction intended to prosecute persons who committed the crime.
It is possible to make a choice between three jurisdictions for bringing the guilty persons to responsibility: national jurisdictions of Ukraine or of the Netherlands, as well as international jurisdiction – the International Criminal Court in Hague.
In our opinion, Ukraine is not a highly effective jurisdiction in relation to this crime as soon as it is raging actual war with the Russian Federation and is maintaining no contacts with law enforcement agencies of the two related countries. The Netherlands is a different matter: it is the EU member and has a corresponding political support. The Netherlands and the Russian Federation are the parties-signatories to the European Convention on mutual assistance in criminal matters as well as to the European Convention on Extradition. By applying these internationally-accepted legal instruments (with political support of the EU) the Prosecutor’s Office of the Netherlands could become more effective in bringing the guilty persons to responsibility. In its turn, Ukraine could transfer the materials of its criminal investigation to the Dutch competent authorities, which is allowed under the criminal procedure legislation of Ukraine.
As for the jurisdiction of the International Criminal Court in Hague it will only be possible to apply the authority of the court if Ukraine makes a corresponding declaration about acceptance of its jurisdiction. On February 04, 2015 Verkhovna Rada of Ukraine passed a declaration on acceptance of the jurisdiction of the International Criminal Court in relation to crimes against humanity and in relation to to the war crimes committed by officials of the Russian Federation and by the leaders of terrorist organizations of “so-called” Donetsk and Lugansk People’s Republics which led to mass killings of Ukrainian citizens. We believe that the crime related to the downed plane of Malaysian Airlines may be considered within the context of the declaration made by the Ukrainian Parliament as soon as it constitutes a link or a part of military aggression launched against Ukraine. Thus, the requirement of the Rome Statute regarding the terms of jurisdiction of the said authority is considered to be complied with.
If the International Criminal Court acknowledges its jurisdiction over the mentioned crime there will arise a question of classification of actions committed by the guilty persons. The Rome Statute stipulates for such groups of crimes which fall under its jurisdiction: the crimes of genocide; crimes against humanity; war crimes; crimes of aggression. In our opinion the crime of bringing down the MH 17 airplane may be qualified as a war crime. More importantly, the positive side of applying the instrumental framework of the Rome Statute is that not only immediate perpetrators of crime and commanders of corresponding military units shall be brought to responsibility, but also those who bear political responsibility. In this situation such arguments from potential allegations as “I did not know that it was a civil airplane” will not work as soon as the responsibility is imposed not only for “knowledge”, but also for awareness of or familiarity with possibility of inflicting criminal implications. The same formula shall be applied to the immediate perpetrators of crime who will not be able to refer to such “error in fact” as “we did not know that it was a civil airplane” as soon as the subjective component of the basis for bearing responsibility stipulates not only for the express intent, but also for the awareness of the possibility of ensuing of negative consequences under the certain circumstances.
An Achilles heel of the International Criminal Court is detention and arrest of suspects as soon as the court has no valid instruments to enforce its decisions. Enforcement of the said decisions is within the competence of national law-enforcement agencies. That is why it is unlikely that the Russian Federation shall be willing to collaborate with the court taking regard for the fact that Russian officials made a declaration about possible termination of cooperation with the International Criminal Court as a result of the investigation relating to the military engagement of the Russian army into the war waged in Georgia in 2008. It will be difficult to reach any success in this case without exerting pressure by the international community onto the Russian ruling elites.