How the Downing of Malaysia Airlines MH17 Could Play Out in Court

A pair of clogs with a message for Dutch citizens killed on the Malaysia Airlines flight MH17 is seen in front of the Netherl
A pair of clogs with a message for Dutch citizens killed on the Malaysia Airlines flight MH17 is seen in front of the Netherlands Embassy on July 21, 2014 in Washington, DC. Of the 298 on board the flight who were killed when it was shot down over Ukraine, 193 were Dutch. AFP PHOTO/Mandel NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)

The immediate priorities following the downing of Malaysia Airlines MH17 over Ukraine must be to comfort the families of victims and to ensure the safety of other passenger flights over war-torn countries.

After that, there will be calls for justice for the victims and to bring peace to Ukraine to avoid another missile attack on civilian airplanes. Diplomacy will play a key role in this.

One important tool of diplomacy is international litigation before the International Court of Justice (ICJ), the judicial organ of the United Nations based in the Netherlands. Although the ICJ could take years to decide if Russia or Ukraine bear responsibility for the missile attack, bringing ICJ litigation could exert pressure on those countries to provide reparations to the victims' families and to take measures to ensure that such missile attacks are not repeated. To avoid the publicity and risk of ICJ litigation, they could reach a settlement agreement involving expressions of regret or apology, reparations and steps to prevent a repeat of the horror of MH17. The litigation would also provide political cover for leaders in Russia and Ukraine to reach a settlement and put the incident behind them.

The ICJ hears disputes between nation states by their consent. The main countries whose nationals were killed - the Netherlands, Australia and the United Kingdom - have all consented to the ICJ's jurisdiction to hear their contentious disputes with other countries. However, the two potential respondent countries - Russia and Ukraine - have not given blanket consent to the ICJ's jurisdiction. Russia and Ukraine nevertheless could agree to let the ICJ hear this particular dispute in exchange for reduced sanctions against Russia and military and financial aid to Ukraine. It could suit the United States and the plaintiff countries to broker this deal because it provides them with the veneer of independent third party adjudication, allowing them to continue diplomacy behind the scenes without as much domestic public attention once the dispute is moved from a "political" arena to a "legal" forum.

There are precedents for claims that the plaintiff countries would bring. In the Corfu Channel case of 1947, the very first case before the ICJ, the Court found Albania responsible for damage and loss of lives when British naval ships travelling through the Corfu Channel between Greece and Albania in "innocent passage" struck mines. If Ukraine fired the missile that struck MH17, it could be responsible for the plane, travelling with "innocent passage" through Ukrainian airspace. If Ukraine did not fire the missile, it might nevertheless be responsible for the missile attack if it knew about the risks to passenger aircraft and failed to inform other nations. In Corfu Channel, the ICJ decided it was enough that Albania knew about the risks of mines and failed to inform other countries, even if Albania itself had not laid the mines. That principle could apply equally here.

If it turns out that the missile was fired by Russian-supported insurgents in Ukraine, Russia could be found legally responsible for the damage and loss of lives in MH17. In the Nicaragua Contra case, the ICJ held that the United States was responsible for the loss of lives and damage caused by rebel insurgents in Nicaragua that it had armed, trained and financed. Likewise, Russia could be responsible for the missile attack even if the attack was by Ukrainian-based insurgents as long as it is established that Russia had provided the missile, training or financing. In the Nicaragua Contra case, it was Nicaraguans who were injured, whereas here it was foreign nationals and not Ukrainians who were harmed. Nonetheless, the nationality of the victims should not affect the liability of the perpetrators.

Many more facts have to be unearthed to fully assess how a litigation strategy could assist diplomatic efforts to ensure aviation safety over war zones and bring peace to the families of those who died in MH17. However, diplomats and politicians would do well to explore how international legal strategies can play an integral role in the ongoing process to address the MH17 incident and the broader geopolitical conflict in the region.