Malaysia Airlines Flight 17 (MH17): Under International Law, who has Jurisdiction over the Case?

The dramatic international case of Malaysia Airlines Flight 17 (MH17) that happened on July 17, 2014 caused a seismic situation in the international community as the aircraft carrying 283 passengers of 10 nationalities left no one alive. By addressing the issue and looking at the premises of the international law[1], there are three major instances (states, organizations) where jurisdiction[2] over the case is legal. First, Ukraine, based on the principle of territoriality. Second, the victim states, based on the universal and passive personality principles and the objective territorial principle. Lastly, international courts under the doctrine of universal jurisdiction since the case is considered as war crime.

First, based on the principle of territoriality, Ukraine has the major jurisdiction over the case since the MJ17 was shot down within its territorial premises. The aforementioned principle which can be found in various provisions of international law supersedes jurisdiction that refers on other principles[3], which means Ukraine has the main responsibility for the criminal investigation on the crash case. The nature of this principle can be seen in the first article of the Montevideo Convention of 1933 whereas territory (land, airspace, and water areas) is one of the fundamental elements that a country has sovereignty over as stated per se in the 1944 Chicago Convention. While in the Article 1 of both Paris Convention of 1919 and the Chicago Convention states that countries enjoy complete and exclusive sovereignty over its airspace above its territory which means, in the case of MH17, since Ukraine has sovereignty over its airspace, she is the principal responsible for the investigation.[4] It was then supported by the Article 26 of the Convention on International Civil Aviation that Ukraine is required to conduct investigation regarding the incident, stating that “In the event of an accident … involving death or serious injury… the State in which the accident occurs will institute an inquiry into the circumstances of the accident.”[5] Nevertheless, it is an international customary to cooperate with the flag state of the aircraft and the states of the onboard victims which will be discussed next.

Secondly, all the ten victim states can pursue legal accountability or carry out jurisdiction over the perpetrators in their domestic courts based on the universal and passive personality principles. However, in this case, Malaysia has stronger side since it can also apply another judicial recourse under the objective territorial principle, which will be the focus on this second argument. MH17 is considered to be Malaysia’s territory because it is registered in Malaysia and deemed to be so which was stated in the Article 3 of the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft granting domestic jurisdiction over the aircraft.[6] At this sense, the objective territoriality grants the State jurisdiction over offences happened in its territory. In addition, it was written in the Article 5 of the Montreal Convention that prosecution before domestic courts can be applied and establish its jurisdiction referring to it as a criminal act stating that “States shall take such measures as nay be necessary to establish its jurisdiction over offences … (b) committed against or on board an aircraft registered in that State”.[7]

Lastly, by the mere fact that the MH17 case is considered as a war crime, particular international courts have jurisdiction over this matter like the International Criminal Court (ICC). If the Dutch or the Malaysian brought the case in the ICC against the Ukrainian government for negligence, the court has jurisdiction and would put Ukraine criminally liable under Article 10 of International Law Commission (ILC) Draft Articles on State Responsibility even though Ukraine is not a member of Rome Statute but the case is considered to be war crime and graveness of the crime as stated in the Article 12 of the said Statute bringing up the doctrine of universal jurisdiction.[8]

Bibliography:

Convention on International Civil Aviation (1944). Chicago. Retrieved from https://www.icao.int/publications/Documents/7300_orig.pdf

Montreal Convention (1971). “Convention for the suppression of unlawful acts against the safety of civil aviation” Vol. 974,1–14118. P. 181

Palmer, Gary (2014). International Jurisdiction in the Case of Malaysian Flight MH17. Para. 1. Retrieved from https://inpublicsafety.com/2014/08/international-jurisdiction-in-the-case-of-malaysian-flight-mh17/

United Nations (2008). “Draft articles on Responsibility of States for Internationally Wrongful Acts. Yearbook of the International Law Commission”, vol. II, Part Two. p. 54. Retrieved from https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf

United Nation- Treaty Series (1963). “Convention on offences and certain other acts committed on board aircraft”. P.222

Jasiuk, Ewa et. al. (2019). “The responsibility of a State in the shooting down of Malaysian Airlines flight MH17”, Transportation Research Procedia, Volume 43, Pages 113–118, ISSN 2352–1465, https://doi.org/10.1016/j.trpro.2019.12.025

[1] international law, as explained by Palmer (2014), tries to administer the jurisdiction of a state to address, prescribe and enforce criminal and civil laws that occur not within its territory.

[2] the jurisdiction refers to the range of power to address a case or to regulate people, events, and things

[3] Palmer, “International Jurisdiction in the Case of Malaysian Flight MH17”, para. 1

[4] Ewa et. al., “The responsibility of a State in the shooting down of Malaysian Airlines flight MH17”, Pp, 113–118

[5] Convention on International Civil Aviation. p. 13

[6] United Nation- Treaty Series, “Convention on offences…”, P.222

[7] Montreal Convention, “Convention for the suppression…”, p.181

[8] United Nations, “Draft articles on Responsibility of States”, p.54