On 18 July 2014, Malaysian Airlines Flight MH17 was allegedly shot down by Ukrainian insurgents killing all 298 people aboard, including 173 Dutch, 44 Malaysian, 27 Australian, 12 Indonesian and 10 British citizens. Because of the rebels’ strong alliance with the Russian Republic, the international community immediately condemned the Putin regime—as it should. Yet, while the Russian state is certainly deserving of moral and political blame for this tragic event, what is less clear is Russian responsibility under international human rights law. The problem, as I will argue here, is that international law has often times struggled to assign state responsibility when national borders are crossed and thus when two (or more) sovereigns are involved. What provides additional uncertainty in the present situation is the possibility of competing case law from the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR).1 As a final introductory point, while the focus of this article is on state responsibility for this particular event, soon thereafter, the situation in the Ukraine deteriorated even further when approximately 5,000 Russian troops took part in what now appears to have been a short-term invasion of that country. Thus, there are elements of both ‘indirect’ and ‘direct’ Russian involvement in the Ukrainian conflict. However, the larger issue is the repeated failure of international law to capture realities on the ground and to reflect the extent to which a state contributes to the violation of international human rights standards.
2. INTERNATIONAL COURT OF JUSTICE
The ICJ has handed down two rulings involving transnational (or extraterritorial) state responsibility that are most pertinent to the present issue.
A. Nicaragua v United States of America
Nicaragua v United States2 arose out of efforts by the Reagan administration to remove the ruling leftist Sandinista regime by force. Although various military actions were carried out by US agents, including the mining of the country’s harbours, in the main the United States operated by and through the Contras, a paramilitary group that received substantial amounts of military, political and economic support from the Reagan White House.
Nicaragua based its claim against the United States on two grounds. The first related to those military operations carried out directly by US security personnel, but also the arming and training of the Contra forces, and the ICJ had little problem concluding that the United States had thereby violated international law. The second ground was that because of the close ties between the United States and the Contras, the former should bear at least some responsibility for the widespread violations of international humanitarian law carried out by the latter. However, the Court ultimately rejected this claim on the basis that the United States had not exercised the requisite level of ‘effective control’ over the Contras. To use the ICJ’s words: ‘In light of the evidence and material available to it, the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States.’3
The importance of Nicaragua cannot be overstated. In this case, the ICJ first established that state responsibility was to be determined by the standards of the International Law Commission’s Articles on State Responsibility (ASR), which at the time of this decision were still in draft form,4 and not by international treaties as such. The Court also used this ruling to set forth an extraordinarily stringent ‘effective control’ test for state responsibility in an extraterritorial context, although there was virtually no analysis of where this test came from or how and why such a demanding standard was appropriate. Finally, the Nicaragua ruling established the principle, or at least appeared to establish the principle, that state responsibility is an either/or proposition that eschewed any attempt to reflect degrees of wrongdoing. Thus, a state has either exercised the requisite level of ‘effective control’ over another state or an entity in another country, in which case it would be fully responsible, or (much more likely) it has not met this standard, in which case it would not bear any state responsibility. Or to phrase this another way using the ruling in this case, notwithstanding years of providing high levels of support to the Contras, the United States was no more (legally) responsible for the human rights violations carried out by this insurgent group than, say, Sweden, which had absolutely no established relationship with these rebels.5
B. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide
Two decades later, the ICJ faced the same kinds of issues in a case that arose from the violent breakup of the former Yugoslavia.6 In its initial filings Bosnia had claimed Serbian responsibility for a myriad of human rights violations, including genocide. However, after years of preliminary hearings and manoeuvring, genocide was the only issue addressed by the Court.7
Article 1 of the Genocide Convention8 provides: ‘The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.’ Based on this language, a strong argument could be made that the only obligations of the states parties are to ‘prevent’ genocide and to ‘punish’ those who have engaged in genocide.9 However, one of the more noteworthy aspects of this case is the manner in which the Court first addressed whether Serbia had committed genocide itself, either through its own state agents or else through Bosnian Serb proxies, including the army of the Republika Srpska, or had been complicit in genocide—both of which the ICJ described as constituting acts of commission—before addressing the issue of preventing and punishing genocide—which the Court termed as acts of omission. One other noteworthy aspect of the case is the Court’s continued reliance on the Articles on State Responsibility, at least with respect to its ‘acts of commission’ analysis, notwithstanding their uncertain legal standing.10 In all, the ICJ ruled that the Bosnian Serbs: (i) were not ‘state organs’ of the Serbian government (Article 4); (ii) had not been acting under the ‘direction and control’ of the Serbian state (Article 8); and finally, (iii) had not received ‘aid or assistance’ from Serbia (Article 16).
(i) State Organs
Article 4 of the ASR provides: ‘The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions.’ Thus, the first issue regarding state responsibility was whether Serbia had carried out genocide, either through its own state agents or else by means of Bosnian Serb paramilitary forces acting on its behalf. Despite the enormous levels of support provided by the Serbian state, the Court ruled—with essentially no explanation or justification—that in order for Serbia to be responsible under Article 4 what must exist is a ‘complete dependence’ between it and its Bosnian Serb allies, which it ruled had not been established.
(ii) Direction and Control
The second issue was whether Serbia had ‘directed and controlled’ the acts of the Bosnian Serbs who carried out genocide immediately following the fall of Srebrenica. Article 8 of the ASR provides: ‘The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instruction of, or under the direction and control of, that State in carrying out the conduct.’ In addressing this issue, the ICJ applied the ‘effective control’ test from its Nicaragua decision, holding that in order to meet this standard it would have to be established that effective control ‘was exercised, or that the State’s instructions were given, in respect of the overall operations taken by the persons or groups of persons having committed the violations’.11 The Court concluded that, based on what it perceived as ‘differences’ between the Serbian government and its Bosnian Serb allies, the requisite level of ‘effective control’ had not been achieved.
(iii) Aid and Assistance
The final issue was whether Serbia was complicit and/or had aided and assistance in genocide. Article 16 of the ASR provides:
A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:
That State does so with knowledge of the circumstances of the internationally wrongful act; and
The act would be internationally wrongful if committed by that State.
In addressing this issue, the ICJ first referred back to the Genocide Convention and noted that under Article III not only is genocide itself a punishable crime, but so is conspiracy to commit genocide, directing and inciting genocide, attempts to commit genocide, and finally, complicity in genocide. The Court then proceeded to equate ‘complicity’ in Article III of the Genocide Convention with ‘aiding and assisting’ under Article 16 of the ASR. In its analysis, the ICJ readily acknowledged Serbia’s strong support and close relations with its Bosnian Serb allies, and also that it was Serbian-supplied military equipment that had been used in carrying out genocide. However, once more, the ICJ set forth an extraordinarily demanding legal standard, holding that in order to be responsible for violating the Genocide Convention under Article 16 what would have to be proven ‘beyond any doubt’ is that the Serbian government had been aware of the specific genocidal intent required by the Convention and, presumably, had given aid in furtherance of this end.12 In the Court’s view, the Milosevic regime had not been fully aware of a change of insurgent policy:
A point which is clearly decisive in this connection is that it was not conclusively shown that the decision to eliminate physically the adult male population of the Muslim community from Srebrenica was brought to the attention of the Belgrade authorities when it was taken; the … decision was taken shortly before it was actually carried out, a process that took a very short time (essentially between 13 and 16 July 1995), despite the exceptionally high number of victims. It has therefore not been conclusively established that, at the crucial time, the FRY supplied aid to the perpetrators of the genocide in full awareness that the aid supplied would be used to commit genocide.13
Thus, in a ruling that truly shocked much of the international community, the ICJ concluded that notwithstanding the extraordinarily close ties between Serbia and its Bosnian Serb allies, the Serbian government was not responsible for: carrying out genocide itself, ‘directing and controlling’ genocide, and finally, ‘aiding and assisting’ or ‘complicity’ in genocide. However, in the part of its ruling that has received far too little attention,14 the Court did find Serbia in violation of the Genocide Convention due to its failure to ‘prevent’ genocide by not using its ‘influence’ over Bosnian Serb paramilitary forces known to be dangerous, as well as Serbia’s failure to ‘punish’ those who carried out genocide due to its unwillingness to sufficiently collaborate with the International Criminal Tribunal for the former Yugoslavia.
In sum, and with an eye to the current situation in the Ukraine, the ICJ has shown an enormous reluctance to find a state responsible in situations where international borders are crossed but where there is only ‘indirect’ involvement, no matter how extensive the provision of material and political support might be. In the present case, the facts surrounding the downing of MH17 have not been established and perhaps never will be established with any degree of certainty. On the other hand, the Russian–Ukrainian rebel relationship seems vastly weaker than that which existed between the United States and the Contras or that between Serbia and its Bosnian Serbs allies. It is on this basis that, at least under ICJ jurisprudence, it appears that Russia would not have any responsibility for the downing of MH17.
For one thing, there is no apparent evidence of ‘complete dependence’ that would transform Ukrainian insurgents into ‘state agents’ of Russia under Article 4 of the ASR. With respect to Article 8, it seems highly unlikely that Russia exercised the requisite level of ‘effective control’, although an interesting (but unanswered) question is whether this standard could be met for a particular event: Russian advisors on the ground had pointed to the button that engaged anti-aircraft machinery (provided by Russia, of course) and ordered the insurgents to ‘fire’, which resulted in the downing of the civilian aircraft. However, the most likely standard for establishing state responsibility in the Ukrainian situation is under Article 16 for providing ‘aid or assistance’. One explanation for the bizarre result in Bosnia could be the heightened standards the ICJ employed due to the seriousness of the international crime (genocide) involved in the case. On the other hand, Nicaragua did not involve genocide and yet there was no finding of state responsibility in that case either.
In terms of ‘direct’ actions, by arming, training and equipping Ukrainian insurgents Russia has breached its obligation under customary international law not to intervene in affairs of another state. This result is based on the ruling against the United States in Nicaragua. What also needs to be added to our discussion, however briefly, is the subsequent invasion. Under Nicaragua’s ‘direct’ action analysis, it is highly likely that the Russian government would be responsible for international wrongs committed by Russian troops. However, what might well complicate this issue is the uncertain relationship between international humanitarian law and international human rights law.15
3. EUROPEAN COURT OF HUMAN RIGHTS
Russia and the Ukraine are both parties to the European Convention on Human Rights (ECHR) and the issue addressed in this section is whether a case could be brought against Russia (or the Ukraine, for that matter) either under the inter-state complaint system, or, much more likely by means of a complaint filed by family members of those on board flight MH17.
We begin by noting two important differences from the ICJ jurisprudence discussed above. The first is that many of the leading extraterritorial ECtHR cases involve a European state acting ‘directly’ in another state (usually on the territory of a non-contracting state), including military occupations (Cyprus16 and Iraq17) bombing missions (Yugoslavia),18 foreign arrests (Kenya),19 foreign detentions and purported atrocities committed by security forces on the ground (Iraq).20 Invariably, the question in these cases is whether the particular act in question thereby brings a foreign national(s) who is physically situated on the territory of another country ‘within the jurisdiction’ of a contracting state. This, however, does not describe the situation in the Ukraine at the time of the downing of MH17, so most of my analysis will be confined to the ECtHR’s primary ruling dealing with one state’s ‘indirect’ involvement in another country—the case of Ilaşcu v Russia and Moldova.21
The second difference is that the ECtHR’s extraterritorial cases are not about ‘state responsibility’ as such, although the practical result will be the same. Instead, the issue being raised involves the applicability of the ECHR—not whether human rights violations have occurred or not—and only if this can be established, can the issue of responsibility be addressed. Unfortunately, given the current structure of international law it is by no means clear where else these victims (including those aboard MH17) could proceed with their claim if not the ECtHR. If international law operated the way it is supposed to, the various states whose nationals were aboard this aircraft would bring an action (on their behalf) against Russia before the ICJ. Perhaps this will occur in this case, although past practice would suggest that the prospects of this are not very likely.
The leading extraterritorial case is Banković and Others v Belgium and Others,22 where the Grand Chamber of the ECtHR held as inadmissible a claim brought by six citizens of the Federal Republic of Yugoslavia, which at the time was not a party to the ECHR, against 17 European countries that were members of the North Atlantic Treaty Organization (NATO).23 The case revolved around a NATO bombing mission of Belgrade, which resulted in the death of 16 civilians and injuries to the same number. The applicants alleged violations of Article 2 (right to life), Article 10 (freedom of expression) and Article 13 (right to an effective remedy) of the ECHR.
Article 1 of the ECHR provides: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms … of this Convention.’ Thus, the question in Banković was whether applicants in a state that is not a party to the ECHR could be said to be within the ‘jurisdiction’ of a contracting state. Although the Convention had previously been given an extraterritorial reading, especially in a series of cases involving Turkey’s occupation of Northern Cyprus,24 in Banković the ECtHR sought to establish the position that the ECHR is territorial (or what it described as ‘generally’ or ‘primarily’ territorial) in scope, principally on the basis that an earlier draft of Article 1 had used this terminology as a way of regulating the so-called ‘espace juridique’ of Europe, but also based on the Court’s interpretation of the meaning of the term ‘jurisdiction’ under public international law.
Given these internal inconsistencies, the ECtHR has attempted to have it both ways by positing that while territorial in scope the ECHR could also have an extraterritorial effect under ‘exceptional circumstances’, namely, when a state exercises ‘effective control’ outside its borders. Like the ICJ’s use of this same term, it is uncertain where the ECtHR’s own version of ‘effective control’ comes from or when this test is met. Still, one thing that is clear from the Bankovic ruling denying admissibility: dropping bombs and killing and/or injuring civilians on the ground does not meet the ‘effective control’ standard—a proposition that many legal scholars have criticised.25 One wonders whether the same result would be reached in the reverse situation, that is, where soldiers on the ground are firing anti-aircraft weapons up into the sky aimed at civilian aircraft flying overhead.
However, as mentioned earlier, there is no evidence that Russian security personnel fired on MH17. Instead, the evidence suggests that this was done by Ukrainian rebels operating from Ukrainian territory, albeit allied with the Russian government. Thus, this involves the question of ‘indirect’ action and the most pertinent ECtHR case on this matter is Ilaşcu and Others v Moldova and Russia. The applicants in this case claimed that they were arrested at their homes in Tiraspol by security personnel, some of whom were wearing uniforms bearing the insignia of the former USSR Fourteenth Army. They were accused of anti-Soviet activities and illegally opposing the government of the Moldovan Republic of Transdniestria (MRT), and also charged with the commission of two murders. After their convictions, the applicants took the position that the Russian Republic was legally responsible for the actions of the MRT, arguing that the State of Transdniestria, which had not been recognised by the international community, was effectively controlled by Russia. In addition, the applicants claimed that Moldova, which is considered the legitimate government of Transdniestria but which had lost control over this territory as a result of a civil war, had failed to meet its positive obligations by not making sufficiently strong efforts to effectuate their release from prison.
The Court ruled that both Russia and Moldova were in violation of the European Convention. With respect to the former, the Court held that MRT ‘remains under the effective authority, or at the very least under the decisive influence, of the Russian Federation, and in any event that it survives by virtue of the military, economic, financial and political support given to it by the Russian Federation’.26 In terms of Moldova, although the ECtHR recognised that the government did not exercise any authority or control over this particular area of the country, nevertheless, the applicants were within its ‘jurisdiction’, and the Moldovan authorities were thus under a positive obligation under Article 1 of the ECHR to take measures that were within its power to take and were in accordance with international law to secure to the applicants the rights guaranteed under the Convention. In the view of the ECtHR, Moldova had failed to do this.
Applying Ilaşcu to the situation in the Ukraine, although the ECtHR makes no attempt to further explain the meaning of either ‘effective authority’ or ‘decisive influence’, this appears to be a much lower standard than the various ‘commission’ tests used by the ICJ, which were analysed earlier.27 In terms of the latter and lower standard, there seems to be little question of Russian ‘influence’ over the Ukrainian insurgents. However, what is not clear is how ‘decisive’ this influence has to be and how this is to be determined.28
One question is whether the ECtHR would restrict the application of these standards to situations involving two contracting states, as existed in Ilaşcu and would also be present in the Ukrainian situation. Another possible factor is that these newly independent states were once a part of the same country and perhaps it is easier to establish ‘effective authority’ and/or ‘decisive influence’ in those kinds of circumstances. However, one of the more noteworthy aspects of this standard is that it appears to be less concerned with territorial matters and more driven by facts on the ground. If this is the case, there would be strong grounds for concluding that because of its close military and political ties with the Ukrainian insurgents who, ultimately, shot MH17 out of the sky, the Russian government had violated Article 2 of the ECHR.
4. INTERNATIONAL LAW: TIME TO CATCH UP WITH WORLD OPINION—AND WITH ITSELF?
International law is certainly not wedded to international public opinion. However, there is something fundamentally wrong when this law is completely divorced from an overwhelming international consensus on a particular matter—as happened with the ICJ’s decision in Bosnia, but would also occur if there ever is a determination finding no Russian responsibility for the downing of MH17.29
Unfortunately, international law is not only at war with the public at large. Rather, it is also doing battle with domestic legal standards, which invariably display considerably more subtlety in dealing with issues of attribution than international law does, especially its excessively blunt determinations of state responsibility when states operate outside their own borders.
Finally, international law quite often fights against itself. International human rights law is an important element of international law and its object and purpose is to protect human beings—all human beings. Yet, international law (or at least recent interpretations of this law) has given states licence to operate in the world in ways in which they are prohibited from acting within their own domestic realm.30 National boundaries certainly matter. However, territorial considerations should not be used as a vehicle by which human rights protections are stripped away from people. A clear finding establishing Russian responsibility for the downing of MH17 would serve as an important building block in re-establishing credibility and consistency under international law.
I would like to thank Ulf Linderfalk for his valuable comments and insights.
The second requirement is that the aid or assistance must be given with a view to facilitating the commission of the wrongful act, and must actually do so. This limits the application of article 16 to those cases where the aid or assistance given is clearly linked to the subsequent wrongful conduct. A State is not responsible for aid or assistance under article 16 unless the relevant State organ intended, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State. There is no requirement that the aid or assistance should have been essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that act.