After 15 months, the public have been given more details about the tragedy of Malaysia Airline flight MH17. On 17 July 2014, flight MH17 was shot down, killing all 298 passengers and crew members, including 193 Dutch citizens. In October 2015, the Dutch Safety Board released its final report about the investigation into the crash. According to the final report, flight MH17 was struck by a warhead that was carried on a class of missile installed on a Russian-made Buk surface-to-air missile system. The Dutch Safety Board concluded that the warhead might have been launched in eastern Ukraine, but the location cannot be determined without further research.
This event is developing in different directions at the international level. In the UN, the Security Council has demanded that “those responsible for this incident be held to account” and that “all States cooperate fully with efforts to establish accountability” (UNSC Resolution 2166). After the MH17 incident, the Netherlands proposed establishing an international tribunal to prosecute those suspected of shooting down flight MH17. In July 2015, an International Criminal Tribunal for Malaysia Airlines Flight MH17 was proposed in the draft UN Security Council resolution. However, Russia vetoed this draft resolution and explained that it would be “premature” and “counter-productive” to establish such a tribunal. It seems that the UN intervention failed before the Security Council.
Alternatively, the International Criminal Court (ICC) in The Hague might provide a comfort to the families of the victims. Indeed, the ICC might have jurisdiction over the MH17 incident. In April 2014, under Article 12(3) of the Rome Statute, Ukraine made an ad hoc declaration accepting the ICC’s jurisdiction for crimes committed on its territory from 21 November 2013 to 22 February 2014. After one week, the Office of the Prosecutor (OTP) decided to open a preliminary examination in Ukraine. Since the temporal jurisdiction was limited before February 2014 by the ad hoc declaration, the MH17 incident which occurred in July 2014 was excluded from examination at that time. Nevertheless, in September 2015, Ukraine lodged its second declaration. It declared to accept the jurisdiction of the ICC for acts committed in the territory of Ukraine since 20 February 2014. Later on, the OTP extended the time frame of its preliminary examination of the Ukraine situation with an open-ended date. Thus, it is possible that the MH17 incident would be covered and examined by the OTP.
Until now, the issue remains unresolved whether the warhead was launched by the Ukrainian army, the pro-Russian rebels, or whomever. One may argue that when Ukraine lodged declarations, it intended to prosecute senior officials of the Russian Federation and leaders of terrorist organisations (Declaration of the Verkhovna Rada of Ukraine), rather than individuals on the Ukraine side. In fact, the declaration did not preclude the investigation and prosecution of individuals on the Ukraine side, if they had committed crimes. And Rule 44(2) of the Rules and Procedure of Evidence stipulates that a declaration has the consequence of accepting “the jurisdiction with respect to the crimes of relevance to the situation.” Thus, the declaration has the same legal effect as a State referral serving to trigger the jurisdiction of the ICC. As the OTP explained, a State referral allows the ICC to investigate and prosecute perpetrators belonging to all parties to an armed conflict (Situation in Uganda). Therefore, based upon the declarations, the OTP has jurisdiction to investigate and prosecute war crimes and crimes against humanity committed in Ukraine by whomever.
Admittedly, the idea that the ICC has jurisdiction over the MH17 incident does not mean that the ICC can and may exercise it. Whether the ICC will finally intervene through prosecution depends on the OTP’s further examinations, in particular into State activities at the national level and the gravity of the incident. According to the complementary principle, the ICC was created to be a court of last resort. It is unknown whether the OTP will include the MH17 incident in its preliminary examination. If the Netherlands and other States concerned exercise criminal jurisdiction over the MH17 incident at the national level, the OTP might not step in. In addition, assuming that the MH17 incident was included in the preliminary examination, the OTP might also decide not to proceed to investigation, as there is no potential case for this incident. And last, besides the assessment of jurisdiction and admissibility, the OTP has to contemplate the interest of justice (OTP Preliminary Examination Policy). Though the declarations provide the families of these 298 victims with hope of seeking redress, they should not be too enthusiastic and expect too much from the ICC. It is a long time to wait and see. Hope, nevertheless, is better than no hope at all.