INCAS Bulletin (Sep 2019)
Responsibility of the Russian Federation for Shooting Down a Malaysian Passenger Aircraft on 17th July 2014
Abstract
On 17 July 2014, Malaysia Airlines Flight MH17 from Amsterdam to Kuala Lumpur was shot down over Eastern Ukraine. On board Boeing 777 there were 283 passengers and 15 crew members who all lost their lives. The victims’ families and the states whose citizens were lost now seek remedies from those that are responsible for this tragedy. This paper discusses the incident of MH17 which took place in Western Ukraine. This paper uses the analytical approach method applied in legal research with the aims of answering the question presented in the paper. The MH17 incident also brings us many international legal issues, therefore it was necessary to examine the challenges of holding persons responsible for the MH17 tragedy and especially the supplier of the anti-aircraft missile that was used. It then considers international law’s capacity for preventing recurrences of this tragedy by constraining non-state actors’ access to anti-aircraft missiles. Under the doctrine of state responsibility, the Netherlands and/or Malaysia may be able to bring a case before the ICJ for violations of international law and internationally wrongful acts attributable to Russia and/or Ukraine. It seems that that Russia and Ukraine may have violated their obligations under the civil aviation conventions to communicate information, to investigate the situation and allegations against potential perpetrators, and to prosecute or extradite those that may be responsible. One of the two conclusions that could be drawn upon this paper is that not only Russia could be held responsible but also Ukraine is partly accountable for the tragedy. Based on both national and international legislation, it can be argued that Ukraine has a duty to protect foreigners legally passing through its airspace, which could form the legal ground for a case in Ukraine against the state. Second, a civil suit against the airlines could be brought before a court in several states based on Chicago and Montreal Conventions.
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