Airline Shootdown Incidents: Do International Inquiries Provide Successful Outcomes?
Kellie Fowler, University of Alberta
Introduction
In the history of commercial aviation, there have been several airliner shootdowns that were either intentional or accidental. After such an occurrence, an investigation or inquiry is conducted to uncover the facts surrounding the incident. The "Convention on International Civil Aviation"1 (Chicago Convention) provides requirements and methods on how these international inquiries are conducted. However, inquiries are based in fact finding and, in the end, no pronouncements about guilt or liability are made. Therefore, the following examines the utility of international aviation inquiries and answers, do inquiries provide successful outcomes?
In this paper I analyze the international air law relevant to airliner shootdown incidents. To highlight the shortcomings and complexities of such investigations, I examine the shootdown of the Malaysia Airlines Flight MH17. Finally, I discuss the other options of international dispute settlement for future incidents that can provide either victim compensation and/or accountability of parties responsible. I conclude that although aircraft incident inquiries are a necessary step in fact finding, they do not provide a method of accountability or victim compensation when a state actor is involved; therefore, other international dispute mechanisms must be used to provide a successful outcome of righting a wrong.
I. International Air Law & Recommended Standards
A. The Convention on International Civil Aviation
There are many different sources of international air law including the International Civil Aviation Organization (ICAO) Standards and Recommended Practices, multilateral conventions, bilateral agreements, customary international law, and national legislation. However, some consider the Chicago Convention of 1944 the Magna Carta of international aviation as it is currently the most robust and recognized source of international air law.2 The Chicago Convention was ratified on April 4th, 1947 and formally established the ICAO, an agency of the United Nations.3 The ICAO continually amends its 19 annexes to ensure the currency and uniformity of the aviation sector internationally. Currently, 192 countries have ratified the Chicago Convention and are considered ICAO Member States.
B. Laws against Acts of Unlawful Interference
The Chicago Convention not only provides foundational rules of airspace but also provides Standards and Recommended Practices (SARPs) for air navigation and safety.4 Many SARPs address acts of unlawful interference against civilian airliners which have intensified over the years. Such acts of unlawful interference, often caused by terrorism or war, have also prompted states to negotiate and amend international treaties to deal and respond to these threats. Hijackings account for the largest percentage of all attacks against civil aviation, however other criminal acts include airport attacks, bombings and shootings on aircraft, off-airport facility attacks, and shootings at in-flight aircraft.5 This paper focuses on airliner shootdowns and thus the discussed international air laws are specifically related to airliner shootdowns, though there are many more laws related to other acts of unlawful interference.
C. Aircraft Incident Investigations – Standards and Recommended Practices
Aircraft incident investigations are standardized in the Chicago Convention. Article 26 states that “the State in which the accident occurs will institute an inquiry into the circumstances of the accident … with the procedure which may be recommended by the International Civil Aviation Organization”. An inquiry in this sense aims to resolve an unknown issue of fact, particularly, how did this aircraft crash or incident occur? Although inquiries (or investigations as they are often called in the aviation industry) often lead to other methods of dispute resolution, such as arbitration, it appears that the main goal of ICAO investigations is to provide safety recommendations to prevent the same incident from occurring again. Annex 13 of the Chicago Convention ("Aircraft Accident and Incident Investigation") requires that states shall address any safety recommendations arising out of its investigations to the other states concerned. There are no provisions however, on pronouncements of guilt or liability and perhaps, more important, appropriate remedies to victims. This is likely because the ICAO has no power of enforcement. International air law is not designed to protect the interest of states or provide remedies, but to safeguard persons flying.6 Therefore, when states are at fault in airliner shootdowns, international aircraft investigations fall short of providing accountability and remedies for the victims. A perfect example of the shortcomings and complexities of airliner shootdown investigations is the MH17 shootdown.
II. Case Study: Malaysia Airlines Flight MH17 (July 17th, 2014)
A. Facts of the MH17 Crash
On July 17th, 2014, Malaysia Airlines Flight MH17 crashed while flying over eastern Ukraine, in the Crimean Peninsula. MH17 was a scheduled airline flight from Amsterdam to Kuala Lumpur and all 283 passengers and 15 crew on board were killed. At that time, the Crimean Peninsula was contested territory. Russia annexed Ukraine’s Crimean Peninsula in early 2014 and armed conflict was still active in the area at the time of the MH17 flight. Although the aircraft was "flying in unrestricted airspace, under control of ATC, flying at an altitude cleared by ATC", pro-Russian separatists controlled the Ukraine territory over which the aircraft was flying.7 Shortly after the crash occurred, US Intelligence sources stated that the separatists likely shot down the aircraft with a SA-11 “Buk” missile system.8 Evidence also suggested there was possible Russian involvement as the Buk missile system was moved over the Russian border soon after the crash took place.9
B. Dutch Safety Board Investigation
The investigation into the downing of flight MH17 was conducted by the Dutch Safety Board. Article 26 of the Chicago Convention vests Ukraine, as the state of occurrence, with the responsibility to conduct the investigation. However, Ukraine delegated the investigation to the Netherlands Accident Investigation authorities, as permitted by Chapter 5, Annex 13, of the Chicago Convention. Malaysia also exercised the right to be party to the investigation as the flag state of the aircraft, along with other states connected to the crash, as provided for under Article 26 and Annex 13 of the Chicago Convention. Therefore, the Dutch inquiry was assisted by accredited representatives from Ukraine, Malaysia, the United States, the United Kingdom, Australia, and the Russian Federation.10
The Dutch Safety Board’s final report concluded that "the aeroplane was struck by a 9N314M warhead as carried on a 9M38-series missile and launched by a Buk surface-to-air missile system”.11 While the report did describe in detail the source of the damage and type of weapon used, it did not determine the exact missile launch location or who the launch operator was. The report only stated that the missile launch location was within a 320-square-kilometre area in eastern Ukraine.12 The investigators reasoned, and rightly so, that this information and the investigatory work required fell "outside the mandate of the Dutch Safety Board, both in terms of Annex 13 [of the Chicago Convention] and the Kingdom Act 'Dutch Safety Board'”.13
The Dutch Safety Board also investigated other parties involved in the crash. The report noted that Ukraine had ample reason to close the airspace over eastern Ukraine as a precaution before July 17th, 2014. States are responsible for taking action to prevent the destruction of an aircraft, as an example of unlawful interference, from occurring. “If they possess threat-related information, authorities shall, insofar as is possible and relevant, share it with other states.”14 However, the report noted that despite current threat information on the ground from various sources, none of the parties involved recognised the risk posed to overflying civil aircraft by the armed conflict in eastern Ukraine.
The Dutch Safety Board also expressed a reservation associated with ICAO's handling of matters. In particular, the ICAO sent a letter to Simferopol FIR (Crimea) on April 2nd, 2014, which stated “[the ICAO] would continue to actively coordinate with the parties active in the region with respect to the developments in the realm of flight safety”. 15 The Dutch Safety Board suggested this letter created expectations that ICAO would take further action if the threat increased, yet no action was taken.16 Thus, the final report emphasized the need for a "stricter redefinition of the responsibility of states for their airspace and, on the other hand, a stronger, more proactive role for the [ICAO]”.17
Although the investigation provided excellent information and fact finding on the cause of the MH17 downing and also provided recommendations to prevent similar tragedies in the future, it left a significant gap in determining responsibility. Given that this finding was not within the investigators mandate, there remains ambiguity and a dispute as to where the missile came from, who it was operated by, and who was in control of the territory at the time of the crash.
C. Airline Liability and Victim Compensation
The actions of Malaysia Airlines, in contrast, were evaluated in the Dutch inquiry. The report noted that "Malaysia Airlines complied with its legal requirements but did not make any additional efforts to obtain an overview of the safety of the airspace above the eastern part of Ukraine”.18 The Board did concede that Malaysia was not alone in its inaction – “there were many operators that were still flying over the conflict, including operators that did generally seek additional information about conflict areas”.19 Despite the lack of overt legal liability, Malaysia Airlines settled damage claims for most victims of flight MH17. The details of the settlement claims remain confidential.20
D. State and Individual Liability
Despite the lack on conclusions regarding the actions attributable to Russia and/or Ukraine by the Dutch inquiry, there is substantial evidence to argue that both states violated international law leading to some degree of liability. It can be argued that Ukraine had a duty to protect foreigners legally passing through its airspace.21 At the time of the shootdown, MH17 was flying above a 32,000 foot ceiling, below which airspace was temporarily restricted by Ukraine.22 Article 9 of the Chicago Convention provides that states may restrict or prohibit other states from flying over their territory for reasons of "military necessity or public safety” and, as noted in the Dutch inquiry, Ukraine had ample reason to close the airspace over eastern Ukraine. One such argument was brought to the European Court of Human Rights (ECHR) suing Ukraine for failing to close its airspace and violating the right to life. The case of Ioppa v Ukraine was lodged with the court in 2016 and is currently noted as a “communicated case”, meaning awaiting judgment.23
Relatives of people who were killed also filed two separate applications in the ECHR against Russia. “They allege in particular that the Russian Federation was directly or indirectly responsible for the destruction of the plane and failed to investigate the disaster properly or cooperate with other investigations”.24 The applicants in both applications rely on Article 2 (the right to life), Article 3 (the prohibition of torture), and Article 13 (the right to an effective remedy) of the "European Convention on Human Rights".25 Both cases are currently considered “communicated cases”.26
The main argument against Russia is the Sa-11 “Buk” missile was supplied by Russia and fired by pro-Russia separatists and therefore, war crimes were committed and command responsibility may be applicable.27 Article 13(2) of the 1977 "Additional Protocol II of the Geneva Convention" provides that “The civilian population … shall not be the object of attack”.28 Such acts are also considered a war crime by "The International Criminal Court (ICC) Statute" in both international and non-international armed conflicts.29
While the pro-Russian insurgents controlled the territory where Flight MH17 debris scattered, it is doubtful that their newly created state could claim sovereignty over this territory. There is a core principle of international law which asserts that a state exists where there is the effective establishment of an organized political community on a territory, which was not established in this case.30 Therefore, it is possible that there is individual criminal responsibility on the part of the insurgents for launching the missile as well as state liability for Russia for providing the missile system.
Although the UN Security Council (UNSC) drafted a resolution that called for an international tribunal to preside over the MH17 case, Russia as a UNSC permanent member country vetoed the resolution.31 As a result, the countries whose citizens lost their lives decided to initiate criminal proceedings in the Netherlands. The Netherlands, Malaysia, Australia, Belgium and Ukraine are currently working together to conduct an international criminal investigation into of the cause of the crash and those thought to be responsible.32 A criminal case began in March 2020 in the Netherlands under Dutch law. International investigators have named four main suspects, three Russians and one Ukrainian. All suspects deny any involvement and the trial will likely be conducted in absentia, without the accused present. Russia denied anything to do with the shooting down of the MH17 and tried to discredit the Dutch proceedings.33 Since Russia’s constitution does not permit the extradition of its own nationals, it is unlikely the Russian suspects will face any major repercussions.
III. Options of International Dispute Settlement for Future Airliner Shootdowns
In international dispute resolution, there is a belief that if there is a breach of an obligation or a wrong done, there is an obligation to right that wrong. This righting of a wrong however, is proving to be very difficult in the case of flight MH17. The Dutch inquiry alone, provided under international air law, is not sufficient in providing a satisfactory outcome to flight MH17 victims. While the Chicago Convention establishes the framework for the civil aviation investigation, it does not provide the appropriate institutional and legal framework for accountability.34 Therefore, other mechanisms of international dispute resolution must be utilized to provide such accountability. The following provides several options that may be used to provide successful outcomes for future airliner shootdowns.
A. Victim Settlement Negotiation
As seen in the aftermath of the MH17 shootdown with Malaysia Airlines, there is a practice of providing financial compensation to the victims. The Montreal Convention provides that air carriers are subject to strict liability for proven damages up to a capped amount of 113,100.00 special drawing rights (SDR), approximately US$170,000.35 Should a victim seek more compensation, it must be proved that the damage was due to the carrier’s negligence or wrongful act and not attributable solely to the negligence of a third party.36 It is also possible through negotiation with an airline carrier, and in consultation with its insurers, to have the carrier waive its defenses to the liability cap. The carrier may also simply seek to make settlement offers in excess of the liability limit as this would simplify the complex maze of responsibility and liability created by an unexpected event. 37 Such a settlement would also prevent a lengthy and costly civil suit against the airlines based on the Chicago and Montreal Conventions.
Alternatively, states may also pay financial compensation to victims of an airline shootdown. For example, both China and the United States have made payments to the relatives of deceased passengers when civil aircraft were shot down by their armed forces in the past.38 With the U.S.S. Vincennes/Iran Air incident of July 3rd, 1988, US forces shot down an Iranian airliner and the US government paid compensation to the victims without conceding legal liability. Although a case can be made that there is a state practice of providing compensation, it falls short of representing a customary international law obligation. Therefore, negotiation with an implicated state may provide the best option for settling victim compensation.
B. International Sanctions and UN Security Council Resolutions
Direct international measures, such as sanctions, have also been used in the past to assert accountability and condemnation for unlawful state actions against civilian airliners. For example, the downing of KAL007, in which a Soviet Su-15 fighter jet shot down a South Korean airliner on September 1st, 1983, was met with widespread international condemnation and some countries implemented sanctions against the Soviet Union in response.39
Bringing matters to the UN Security Council in hopes of passing a resolution is another measure to achieve an international resolution. However, the effectiveness of the UN comes with limitations, as seen with the MH17 shootdown. The UN Security Council Resolution 2166 called for an investigation into MH17, yet the resolution did not say which form that investigation or any eventual trial should take.40 The states comprising the Joint Investigation Team (Australia, Belgium, Malaysia, Netherlands and Ukraine) preferred to establish an ad hoc international tribunal; however, the Security Council failed to adopt the draft resolution that would have established an international tribunal since it was vetoed by Russia.41 Unfortunately, this example shows that the UN is not effective in dispute settlement when it involves a permanent member of the Security Council.42
C. The International Court of Justice and other Criminal Proceedings
Accountability can also be sought through a criminal justice approach. This is a useful approach as seen in the MH17 case where individual criminality versus state responsibility would be easier to prove. States affected by the MH17 downing have focused on securing criminal accountability of individuals involved in the direct launching of the Sa-11 “Buk” missile, rather than pursuing other possible options. It is difficult to attribute the acts of the separatists to Russia given the uncertainty of the extent and nature of Russian involvement and the level of proof required for a criminal trial.43
The main issue in pursuing an international criminal proceeding for an airliner shootdown is determining the best jurisdiction. One option is to bring a case to the ICC which prosecutes individuals charged with war crimes and the crime of aggression. So long as jurisdictional hurdles are met, a case may proceed as an investigation before the ICC; however, there is a high evidentiary standard of proof and proceedings at the ICC can take many years.44 The benefit of the ICC is that upon conviction, the Court is able to provide reparations to victims and deliver accountability.45
A criminal justice approach is also provided for in the Montreal Convention, which states in Article 1(b) that an individual commits an offense if they unlawfully and intentionally destroy an aircraft.46 Using this treaty, the jurisdictional options include the state in whose territory the offense was committed or the aircraft state of registration (“flag state").47 The criminal trial for the individual suspects accused of causing the MH17 downing is able to be held domestically in the Netherlands since a bilateral treaty on international legal cooperation between Ukraine and the Netherlands was signed on July 7, 2017.48 “The agreement was needed to implement the decision taken by the countries that comprise the Joint Investigation Team (JIT) … to conduct any prosecution and trial in the Netherlands in accordance with Dutch law”.49 The Netherlands and Australia have also stated that they hold Russia responsible for its part in the downing of flight MH17.50 These governments have informed Russia of their decision to take legal action under international law and have asked Russia to enter into talks aimed at finding a solution.51 Yet, should Russia not agree, a possible next step is to present the case to an international court or other international organization for their judgment.52
As such, the International Court of Justice (ICJ) is a viable option in bringing a state to trial (rather than individuals). The ICJ is the principal judicial organ of the UN for the settlement of disputes between states. However, the limitations of securing state accountability at the ICJ have been witnessed in the past. For example, when the US, UK and Israel brought complaints before the ICJ for the Bulgarian military shooting down a civilian airliner on July 27, 1955, killing all persons on board, the Court dismissed the claims for want of jurisdiction.53 ICJ jurisdiction presents a significant hurdle since it is fundamentally based on state consent. States must either make a declaration accepting ICJ’s jurisdiction in respect of inter-state disputes (Article 36(2)) or states must accept ICJ jurisdiction for a particular claim via special agreement (Article 36(1)).54 Without this consent, respondent states cannot be brought to trial. However, states may do well to bring an application to the ICJ, even if jurisdictional requirements have not been met, to influence respondent states into other forms of dispute settlement. For example, Iran filed its application with the ICJ to institute proceedings against the United States after the downing of Iran Air Flight 655 in July 1988. However, a settlement was reached in 1996 when the US agreed to pay $61.8 million to the victims’ families, and Iran dropped its case.55
Conclusion
International inquiries are a necessary step after an airliner shootdown. They provide the required information and fact finding to produce safety recommendations to prevent further tragic incidents from occurring. What they do not provide however, is a method of accountability for those responsible for the incident and direction for victim compensation. The shootdown of a civilian airliner often involves some form of armed conflict and armed conflict most often involves a state actor. This is an important observation, which has not been included in international air law, as states are not held to any level of accountability in the Chicago Convention when a shootdown occurs. There are very few methods to hold a state accountable for unlawful acts in international treaties and other methods usually need to have state cooperation to proceed. The Chicago Convention fails at providing full state accountability in shootdown incidents even though it is considered the Magna Carta of international air law.
Therefore, depending on what remedy is sought, whether it is victim compensation or criminal responsibility, it is necessary to use other forms of international dispute resolution. Such examples include pursuing victim compensation from airlines available through the Montreal Convention, settlement negotiations, or civil trial; victim compensation from implicated states available through settlement negotiation, arbitration, or civil trial; individual criminal liability available through the ICC or domestic criminal trial; state criminal responsibility available through the ICJ; and state reprimand through UN resolutions or retaliatory sanctions. Unfortunately, the adherence of states to international law is voluntary and only obligatory when states adhere to conventions and treaties. Therefore, the international law applicable in a certain situation will determine the best settlement option. This decision can be complicated when dealing with an airline shootdown incident, yet it is comforting to know that there are some options for international dispute settlement and accountability exists beyond the investigation stage.
Endnotes
1 "Convention on International Civil Aviation", 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947), as amended [Chicago Convention].
3 Donald T. Bliss, "ICAO's Strength: Reinventing Itself to Address the Challenges Facing International Aviation" (2019) 32:4 A&SL 1-4 [Bliss].
5 Paul Stephen Dempsey. “Aviation Security: The Role of Law in the War Against Terrorism”, (2003) 41:3 Colum. J. Transnat'l L 649.
6 Assad Kotaite, "My Memoirs" (Montreal: ICAO, 2013) at 42.
10 Dutch Safety Board,
supra note 8.
15 Vernon Nase et al. “A Call for Legal Accountability in the Wake of the MH17 Tragedy”, (2015) 80 J. Air L. & Com 639 [Nase].
17 Dutch Safety Board,
supra note 8 at 264.
21 De Hoon, Marieke et al, "Legal Remedies for Downing Flight Mh17: White Paper" (Amsterdam: Public International Law and Policy Group, 2009), [De Hoon, Marieke et al].
23 Ioppa v Ukraine, N
o 73776/14, [2016] online: European Court of Human Rights.
24 European Court of Human Rights, Press Release, “ECHR gives notification to Russia of cases brought by relatives of people killed in the downing of Malaysian Airlines flight MH-17” (04 April 2019), online: ECRH.
25 Ayley and Others v. Russia and 1 other application, N
o 25714/16, N
o 56328/18, [2019] online: European Court of Human Rights.
28 "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)", 8 June 1977, 1125 UNTS 609.
29 "Statute of the International Criminal Court", 17 July 1998, UN Doc A/CONF183/9.
30 "Montevideo Convention on the Rights and Duties of States" (Dec. 26, 1933), 165 LNTS 19 at Art 1.
34 Sarah Williams, “Mh17 and the International Criminal Court: A Suitable Venue?” (2016) 17:1 Melb J Int’t L 1 [Williams].
35 "Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation", 23 September 1971, 974 UNTS 177 (entered into force 26 January 1973) [Montreal Convention].
36 Shane Monks, "Flight MH370: international law and how we use it” (2014) 21 Aust Int’l LJ 101 at 120.
37 Nase,
supra note 16 at 683.
39 Masahiko Kido, “The Korean Airlines Incident on September 1, 1983, and Some Measures Following It”,(1997) 62J Air L & Com 1056 at 708.
40 "Resolution 2166", UN Doc S/RES/2166.
41 Williams,
supra note 35 at 27.
42 J. G. Merrills,
"International Dispute Settlement", 6
th ed (Cambridge: Cambridge University Press, 2017) at 251.
43 Williams,
supra note 35 at 2.
44 De Hoon, Marieke et al,
supra note 22 at 3.
46 "Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation", 23 September 1971, 974 UNTS 177 (entered into force 26 January 1973) [Montreal Convention].
54 "Statute of the International Court of Justice", 26 June 1945, 33 UNTS 933 (entered into force 18 April 1946) [ICJ Statute].
55 International Civil Aviation Organization
, "Resolution and Report Concerning the Destruction of Iran Air Airbus on July 3"
, 1988, 28 ILM 896 (1989) [ICAO Iran Air Report].