The Missile that Shot Down Flight MH17: Whose Legal Responsibility? at the ASIL Midyear Meeting

At the opening reception and program for the Midyear Meeting of the American Society of International Law (ASIL), a distinguished panel (below) discussed a number of legal issues relating to responsibility for the downing of Malaysian Flight MH 17 over Ukrainian territory in July.  The panel consisted of Larissa van den Herik from the University of Leiden Law School, Ruth Wedgewood from John Hopkins, Barry Kellman from Depaul, and was moderated by Michael Morkin of Baker & McKenzie. Larissa van den Herik stated that the investigation is the largest criminal investigation in Dutch history and that its purpose is to determine the cause of the crash, not to determine liability.  She stated that access to the crime scene has been poor and that the bodies have not been treated with dignity. She raised the issue of a state's duty to investigate and prosecute in the context of ongoing hostilities and stated that the Netherlands is more willing and able to undertake investigations than many other interested states. 

Ruth Wedgewood spoke next about the possibility of using various national courts of the victims' home countries for any legal actions taken in relation to the flight.   She pointed out that Ukraine is a party to the 1973 Convention on Suppression of Unlawful Acts Against the Safety of Civil Aviation, which calls for dispute resolution at the International Court of Justice (ICJ).  However, because of the ICJ's limited fact-finding capability, it may not be the best forum for legal action.  She also suggested the International Criminal Court (ICC) as an alternative and pointed out that article 12(3) of the ICC's statute regarding retrospective jurisdiction could be invoked. Finally, she talked about legal norms making a state responsible for the acts of its protegee.

Barry Kellman suggested that the international community needs to take action to keep anti-aircraft missiles out of the hands of nonstate actors.  He suggests the international community adopt a clear prohibition on the transfer of weapons of mass destruction, including anti-aircraft missiles, to nonstate actors; that states be required to provide protection for aviation; that the Arms Trade Treaty be given some teeth and that it be used to restrict access to weapons technology; that global destruction programs be implemented for anti-aircraft weapons; and that the international community create rules for state responsibility for supplying weapons of this type.

The panel raised a variety of interesting and topical legal issues and got the ASIL Midyear meeting off to a great start!

(cgb)