Countries seeking to prosecute those responsible for downing a Malaysian airliner over eastern Ukraine last week face a complex legal question: Is the tragedy a war crime?
The answer, legal experts say, rests largely on whether governments can establish that those behind the attack intentionally shot down the plane on July 17, killing all 298 people onboard. And even if that determination is made, prosecuting the perpetrators as war criminals will be difficult.
"The problem is, it's not a war crime to shoot down a civilian airliner by mistake, as egregious as that sounds," David Glazier, a professor at Loyola Law School in Los Angeles, says. "It's a war crime to shoot one down deliberately."
The United States and Western governments accuse pro-Russian separatists in eastern Ukraine of striking the airliner with a surface-to-air missile, while the rebels have accused the Ukrainian government of carrying out the attack.
The Netherlands, which lost 193 of its citizens in the Malaysia Airlines flight from Amsterdam to Kuala Lumpur, has sent a top prosecutor to Ukraine to examine whether the downing of the plane constitutes a war crime.
Meanwhile, the Red Cross has made a confidential legal assessment that Ukraine is officially at war as it battles pro-Russian separatists in the eastern part of the country, Reuters quoted Western diplomats and officials as saying this week.
This designation obliges the warring parties to adhere to the Geneva Conventions or risk being prosecuted for war crimes, according to legal experts.
"The significance of that is that crimes committed during an armed conflict may rise to the level of war crimes, and therefore the criminal conduct is not limited to domestic crimes and domestic prosecution," said Jimmy Gurule, a University of Notre Dame law professor and former government official.
U.S. officials said this week that the attack appears to have been accidental, with separatists initially believing they had targeted a Ukrainian government plane.
Even if the Malaysian airliner was not intentionally targeted, prosecutors could still pursue a war crimes case if they establish that a missile was fired indiscriminately at the plane, legal experts said.
"The question amounts to what degree of care is necessary if you're shooting these weapons off," Columbia Law School professor Michael Doyle says. Russian officials could also be prosecuted for war crimes if it is proven that they are providing materiel and direction to rebels in Ukraine who commit these offenses, he adds.
Forum For Justice
Should governments pursue war crimes charges in connection with the Malaysia Airlines tragedy, finding a forum to prosecute the case could prove difficult.
Neither Russia nor Ukraine are parties to the International Criminal Court (ICC), meaning that The Hague-based tribunal does not have jurisdiction over those countries' citizens unless they commit crimes on the territory of a state that is a signatory to the Rome Statute that created the court.
The ICC can handle war crimes cases referred to it by the UN Security Council, regardless of the citizenship of the suspects. But such a referral in the case of the Malaysian airliner is unlikely due to the veto power held by Russia, which has suggested that the Ukrainian government might have downed the plane.
"What the Security Council might do in a case like this is obviously going to be extremely limited by the fact that it is going to have to be acceptable to Russia," Loyola's Glazier says.
Individual states, like the Netherlands, could prosecute individuals for war crimes in the Ukraine conflict under the principle of "universal jurisdiction," though gaining custody of suspects could be difficult unless the Ukrainian government regains control of rebel-held areas.
"Unless the Security Council authorizes the ICC to investigate, unless by some chance one of these people ends up in another country, or unless Ukraine gets control of the territory and puts these people on trial in Ukrainian courts, for the short term at least they are kind of beyond the reach of criminal justice," University of Michigan law professor Steven Ratner says.
Legal Limbo
In the aftermath of the Malaysia Airlines tragedy, the international community should seek to change international criminal law to account for the accidental downing of civilian aircraft, Loyola Law School's Glazier says. "I do think that a commander ought to have a legal obligation to take every possible precaution before conducting military activity that can result in civilian casualties," he explains.
There is a precedent for such amendments, Glazier adds. After the Soviet Union shot down a Korean passenger plane that flew into its airspace in 1983, killing all 269 people on board, international civil-aviation law was modified to forbid states from using weapons against civilian airliners, Glazier notes.
At the time of that tragedy, Moscow was within its rights under international law to down a civilian plane that entered Soviet airspace, he says. "The facts as we seem to know them in this situation suggest that this was a tragic mistake, but it was a mistake," Glazier says of the Malaysia Airlines tragedy. "They did not have the intent to kill these couple hundred civilians. And so there's a real gap in international criminal law between the horrors of what happened here and what's criminalized."
