By Rishiraj Baruah*
The Malaysian Airlines flight MH17 from Amsterdam to Kuala Lampur, flying at 33,000 feet, was shot down in the Donetsk Oblast in Eastern Ukraine on 17th July 2014. All passengers and crew on board were killed instantly as the aircraft broke in-flight and its remnants subsequently crashed on ground. The civilian aircraft was allegedly shot down using surface to air missiles (SAM) by pro-Russian separatists in Ukraine, however the separatists and Russia claims to the contrary. Following this human tragedy of shooting down MH17, there was much international hue and cry over Russian responsibility for the act due to its alliance with the separatist forces in Donetsk Oblast. However, state responsibility under international law is not so simple as it seems. I would firstly, examine hereinafter whether Russia could be held responsible for the shooting down of MH17 by the separatist forces and thenceforth evaluate the public air law response to this tragedy. The reason for such an approach is the lex generalis nature of public international law and public air law being lex specialis.
The question of Russian involvement with the Donetsk separatists regarding logistical, personnel and military support is blurred. However, its role in the internal affairs of Ukraine is blatantly visible with the annexation of Crimea subsequent to a unilateral local referendum which was considered as illegal under the Constitution of Ukraine. The significance of the MH17 issue becomes more relevant when considered in terms of the Crimean crisis and the disputed sovereignty of Ukraine over Donetsk Oblast which raise to some unanswered questions of state responsibility.
The jurisprudence of ICJ on state responsibility is wrought with disappointments. The ICJ in Nicaragua v United States refused to accept the arguments of Nicaragua that United States should entail state responsibility for violations of international humanitarian law carried out by Contra forces, despite agreeing to the contention that US violated international law by providing logistical and military support to the Contras. The ICJ formulated the ‘effective control’ test in this case and stated that US did not have effective control over the Contras to entail state responsibility. It stated, “In light of the evidence and material available to it, the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States.”
The ICJ formulated an extremely narrow principle which demands that state responsibility will only entail if the requisite level of ‘effective control’ is held by a state over another state or an entity, contrary to which the perpetrator state shall not bear any international responsibility for any level support which is short of ‘effective control’. Similarly, in the Bosnian Genocide case, ICJ had the opportunity to rule on the issue, whether the acts of genocide of the Bosnian Serb proxies and the Republika Srpska can be attributed to Serbia. Although, it accepted that Serbia supported the Bosnian Serbs and that the genocide was carried out by military equipment supplied by the Serbian government, the ICJ ruled that ‘effective control’ test demanded specific awareness of the Serbian government of the acts of genocide and the aid provided for furtherance of those acts. As Serbia was unaware of the genocide committed by Bosnian Serbs and the Republika Sprska, henceforth Serbia was not responsible.
In both these cases, ICJ relied heavily on the ILC Articles on State Responsibility, especially on article 4, article 8 and article 16. Article 4 states, “The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions”. Basically, there should be complete dependence on the state to entail responsibility under article 4. Article 8 states that, “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instruction of, or under the direction and control of, that State in carrying out the conduct.” This provision is the root for stringent application of the ‘effective control’ test. And Article 16 which talks about state responsibility for aid and assistance in an internationally wrongful act if there was existence of ‘knowledge and intent’. The implication of the term ‘intent’ makes imposition of state responsibility almost impossible.
In light of the jurisprudence cited above, it seems impossible that the shooting of MH17 can be attributed to Russia, despite the patent facts that the rebel forces at Donetsk used Russian SAMs to shoot down the aircraft and were supported by Russia. Despite these facts, it cannot be clearly established that Russia intended MH17 to be shot down and had supported the rebels for furtherance of the act, neither can it be concluded that Russia has ‘effective control’ over the rebel forces in Eastern Ukraine for conduct of an internationally wrongful act. This line of reasoning grossly violates balance of interests but such is the state of international law. In order to remedy this failure of general international law, we have to turn to public air law which prohibits the shooting down of a civilian aircraft.
The Chicago Convention 1944, which is the magna carta of air law, mandates that Member states must refrain from using force against civil aircraft. This is a declaration of already existing customary international law. Various articles of the Chicago Convention are reactions to certain events which shocked the international community. Similarly, Art.3bis of the Convention was a response to the shooting down of the Korean Airlines KL007 aircraft in 1983 by the Soviet Union under the pretext of violation of Russian airspace. The furious uproar to this incident, led to the recognition and adoption of Art.3bis of the Chicago Convention 1944.
However, the provision does not provide a solution by itself in case of MH17 as the events in Eastern Ukraine were very different from the situation that Art.3bis envisaged. The provision imposes an obligation on a State to refrain from using force against civil aviation. MH17 was shot down by so-called separatists in Donetsk Oblast. The situation in Ukraine had developed into a non-international armed conflict wherein the Ukrainian government had no de facto control over the territory. The fact that Ukraine had no control over the territory of Donetsk is patent from the fact that separatists prevented the access to the area of crash site by Ukrainian and other authorities to initiate aircraft accident investigations. The UN Security Council responded to such illegal conduct of the separatists by adopting Resolution 2166 which condemned the act and called for all States and actors in the region to cooperate in accident investigations and insisted the dignified and peaceful recovery of the bodies of victims. Later, Netherlands intervened to conduct the aircraft accident investigation as most victims were Dutch. Moreover, to gain access to the crash site, Malaysia entered into an agreement with the separatists of Donetsk Oblast.
As the Donetsk Oblast had culminated into a conflict zone before the crash, pursuant to Art.9 of the Chicago Convention, Ukraine had closed its airspace above that area up to 32,000 feet and communicated the same through Notice to Airmen (NOTAM). Henceforth, it can be concluded Ukraine had acted in conformity to its obligations under Chicago Convention 1944 and it cannot be held accountable for acts of the separatists which were committed in violation of its authority and moreover neither it is guilty of breach of good faith nor was negligent in suppression of the insurrection.
This leads us to ponder, whether any State could be held responsible at all under general international law or public air law for the acts of the so called separatists? It is extremely tempting to impose some kind of responsibility on humanitarian grounds, but the harsh truth is that international law has been crippled by archaic principles and neither Ukraine nor Russia is responsible for the specified event.
Does this deduction lead to a confirmation of the topic that ‘is international law failing’? I would say it is rather the contrary. The fundamental idea of international discourse is development of international law by a series of compromises. ICAO’s response to the mishap has been the immediate establishment of a senior level Task Force composed of States and other experts to address such threats to civil aviation and national security challenges by effectively sharing and dissemination of risk information. The preliminary question as to how a civil aircraft got in between a situation of an armed conflict is answered by the lack of information sharing between the States. Neither the Ukrainian nor the Russian agencies concerned with traffic control realized that the aircraft was in a conflict zone until it was too late. This calls for greater cooperation between States for protection of civil aircraft from the impacts of terrorism and violent activities by non-state actors. Proper assessment of security risks is required by affected states involved in international or non-international armed conflicts, especially with respect to secured use of airspace. This reiterates the responsibility of states for protection of civil aviation.
The aforementioned measures are prospective in response the MH17 issue; however the question regarding accountability for shooting down MH17 remains unanswered. In February 2015, Ukraine, Russia, and the separatists adopted a ‘Package of Measures’ for peaceful settlement of dispute in Donetsk Oblast which also included an amnesty against prosecution of the persons involved in the MH17 issue and two days later the UN Security Council adopted Resolution 2202 by unanimously adopting the ‘Package of Measures’. However, there has been opposition to this resolution by the states who lost their citizens and stated that those who were responsible should be held accountable. These measures indicate that international law is not failing idea but an evolving concept which, as Professor O’Keefe says, “reflects a participatory global conversation, at times actively discursive and often ongoing social process, framed by international law itself, involving a potentially worldwide array of actors, state and non-state, public and private.”
*(Rishiraj Baruah completed his bachelors of law from Gujarat National Law University, India and is currently pursuing an Advanced Master’s in Air and Space Law from Leiden University. He has published articles on air law and space law and has been recently selected as UNIDROIT research scholar for working on Third- Party GNSS liability. He can be be contacted at firstname.lastname@example.org)
 Dutch Safety Board, Preliminary Report, Crash involving Malaysia Airlines Boeing 777-200 flight MH017, Hrabove, Ukraine, 17 Jul. 2014, p. 30
 Stefan Kaiser, Legal Considerations about the loss of Malaysia Airlines Flight MH17 in Eastern Ukraine, 40 Air and Space Law 2 (2015), at 107
 Matt Smith and Alla Eshchenko, Ukraine cries ‘robbery’ a Russia annexes Crimea, http://edition.cnn.com/2014/03/18/world/europe/ukraine-crisis/ (18 March 2014)
 Military and Paramilitary Activities (Nicaragua v United States of America) ICJ Reports 1986, 14
 Mark Gibney, The Downing of MH17: Russian Responsibility?, 15 Human Rights Law Review (2015), at 170
Nicaragua, supra note 4 at para. 106
 Case concerning the application of the Convention on the Prevention and punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ICJ Reports 2007, 43
 J. Crawford, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTS (202), 149
 Bosnia, supra note 6 at para. 423
 Gibney, supra note 5, at 173
 Nahapetian, Confronting State Complicity in International Law 7 UCLA Journal of International & Foreign Affairs (2002), 99
 Article 3bis, Convention on International Civil Aviation signed at Chicago on 7 Dec. 1944. See ICAO Doc
 Ruwantissa Abeyratne, Flight MH17: Legal and Regulatory Fallout, 39 Air and Space Law 6 (2014), 330.
 Ibid 13, at 336
 UN Security Council, Security Council resolution 2166 (2014) [on the downing of Malaysia Airlines flight MH17 on 17 July in Donetsk Oblast, Ukraine] , 21 July 2014, S/RES/2166 (2014), available at: http://www.refworld.org/docid/53d63dd74.html %5Baccessed 30 December 2015]
 This might lead to a dangerous conclusion of providing legitimacy to their claim of being a separate state (Donetsk Republic) from Ukraine, however that discussion is beyond the scope of this literature
 European Air Safety Agency (EASA), Safety Information Bulletin (SIB) 2014-21, 18 Jul. 2014
 Home Missionary Society case, RIAA (1920), vi.42-44
 Professor Roger O’Keefe says in his lectures at the Xiamen Academy of International Law 2014, “Contemporary public international law structures and is in turn produced and implemented through what, both by design and in practice, can be conceived of as a global conversation. In other words, the generation, interpretation, application and enforcement of rules of international law reflect a participatory, at times actively discursive and often ongoing social process, framed by international law itself, involving a potentially worldwide array of actors, state and non-state, public and private.”
 ICAO, International Air Transport Association (IATA), Airport Council International (ACI), Civil Air Navigation Services Organization (CANSO), Joint Statement on Risks to Civil Aviation Arising from Conflict Zones, http://www.icao.int/Newsroom/Pages/Joint-Statement-on-Risks-to-Civil-Aviation-Arising-from-Conflict-Zones.aspx.
 Dutch Safety Board, supra note 1, ss2.5.1, 2.5.4
 Kaiser, supra note 2, at 120