AFTER the chaos comes a flurry of legal procedures. On July 21st Frans Timmermans, the Dutch foreign minister, vowed that his country will not rest until justice is served for the 298 civilians (over half of them Dutch) killed on board flight MH17, the Malaysia Airlines flight which was shot down over eastern Ukraine. But this will not be easy. A series of criminal investigations has been started by Ukrainian, Australian, American and Malaysian investigators as well as by the Dutch prosecutor. And figuring out what type of crime the downing of the aeroplane might amount to, which courts have jurisdiction, and what type of evidence would be needed to prosecute, will be hard. And that's before tackling the question of who was ultimately responsible for the downing of the plane. How will prosecutors sort through the legal puzzle of MH17?
One of the few things most legal experts agree on is that there are some 13 different jurisdictions under which both a criminal and a civil prosecution might fall. This includes the legal systems of the 11 nationalities of the victims (including the carrier country, Malaysia), along with Ukrainian law and international law. Because every country has slightly different provisions around prosecuting crimes committed against their nationals abroad, the 12 affected countries came together in The Hague this week to discuss co-ordinating their separate judicial efforts.
Western leaders have been keen to emphasise that both those directly and indirectly involved should be brought to justice. The key question of who is to blame will depend on the outcome of the international investigation which the United Nations authorised last week. Rather than just figuring out who pulled the trigger, the investigation is likely to focus more on who may have aided and abetted the downing of the airliner. Specifically, some wonder whether the Russian state might be held accountable if it is in some way linked to the crash. As it appears that the plane was mistaken for a military aircraft, the main basis for criminal liability would be recklessness or criminal negligence, argues Payam Akhavan, a professor of international law at McGill University in Montreal, Canada. Two potential links to the Russian state will need to be examined: whether those who committed the attack were either Russian forces or under Russian direction or control, and whether or not Russia supplied the weapons which brought down the plane. If the former can be proven, Russia could conceivably have to pay compensation, says Dr Akhavan. The latter may not be enough for Russia to be held responsible, however. A judgment by the International Court of Justice in 1986 held that the supply of weapons to the Contra rebel forces in Nicaragua by the CIA did not mean America was responsible for their actions.
All this could set a new legal precedent over the question of whether the provision of weapons that can endanger civil aviation requires a higher duty of care by the country which supplies them than more ordinary weapons. But that will be cold comfort for the relatives who will have to wait for justice to be served, if indeed it proves to be possible at all.
