The Downing of MH17: Russian Responsibility?
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Human Rights Law Review, 2015, 15, 169–178
doi: 10.1093/hrlr/ngu036
Advance Access Publication Date: 6 January 2015
Short Articles & Recent Developments
The Downing of MH17: Russian
Responsibility?
Mark Gibney*
K E Y W O R D S : International human rights law, state responsibility, extraterritoriality,
Malaysian Airlines Flight MH17, Russia
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1. INTRODUCTION
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 responsi-
bility when national borders are crossed and thus when two (or more) sovereigns
are involved. What provides additional uncertainty in the present situation is the pos-
sibility 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 there-
after, 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 inva-
sion 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 fail-
ure 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.
* Belk Distinguished Professor, University of North Carolina-Asheville; Raoul Wallenberg Visiting Professor
of Human Rights and Humanitarian Law at the Faculty of Law, Lund University and the Raoul Wallenberg
Institute (mgibney@unca.edu).
1 What adds another layer of confusion—or at least another voice on the matter—on the issue of state re-
sponsibility is the ‘overall control’ test used by the International Criminal Tribunal for the Former
Yugoslavia in Prosecutor v Tadic Appeals Chamber Judgment, IT-94-1-A (2001). See Cassese, ‘The
Nicaragua and Tadic Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18
European Journal of International Law 649.
C The Author [2015]. Published by Oxford University Press.
V
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169170 The Downing of MH17
2. IN TE RN ATI ON A L CO UR T OF JU S TICE
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 re-
move 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
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also the arming and training of the Contra forces, and the ICJ had little problem con-
cluding 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 viola-
tions 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 strat-
egy and tactics wholly devised by the United States.’3
The importance of Nicaragua cannot be overstated. In this case, the ICJ first es-
tablished 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 ‘effect-
ive 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 de-
manding standard was appropriate. Finally, the Nicaragua ruling established the prin-
ciple, 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, not-
withstanding years of providing high levels of support to the Contras, the United
2 Military and Paramilitary Activities (Nicaragua v United States of America) ICJ Reports 1986, 14.
3 Ibid. at para 106 (emphasis added).
4 For example, at the time the case was handed down, the ’aid or assistance’ provision was in Article 27,
which read: ‘Aid or assistance by a State to another State, if it is established that it is rendered for the com-
mission of an internationally wrongful act, carried out by the latter, itself constitutes an internationally
wrongful act, even if, taken alone, such aid or assistance would not constitute the breach of an international
obligation.’ See ‘The Draft Articles on State Responsibility, Commentary’ (1979) reprinted in 2 Year Book
of International Law Commission 104.The Downing of MH17 171
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 rela-
tionship 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
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international law which they undertake to prevent and to punish.’ Based on this lan-
guage, 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 prevent-
ing 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, notwith-
standing 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).
5 For a fuller critique of the case, see generally, Gibney, Tomasevski and Vedsted-Hansen, ‘Transnational
State Responsibility for Violations of Human Rights’ (1999) 12 Harvard Human Rights Journal 267.
6 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro) ICJ Reports 2007, 43.
7 The case arose under Article IX of the Genocide Convention, which provides: ‘Disputes between the
Contracting Parties relating to the interpretation, application or fulfillment of the present Convention,
including those relating to the responsibility of a State for genocide or any of the other acts enumerated
in Article III [conspiracy to commit genocide, incitement to commit genocide, attempt to commit geno-
cide, and complicity in genocide], shall be submitted to the International Court of Justice at the request
of any of the parties to the dispute.’
8 1948, 78 UNTS 277.
9 There are a host of other aspects of this case that are questionable, most notably the ICJ’s narrow and
mechanical approach to the issue of establishing when and where genocide occurred: see Gibney,
‘Genocide and State Responsibility’ (2007) 7 Human Rights Law Review 760.
10 In 2001 the ILC completed its (Draft) Articles on State Responsibility, thereby completing more than
four decades of work. These articles were then forwarded to the UN General Assembly, which adopted
Resolution 56/83, 12 December 2001, A/RES/56/83 commending the Articles ‘to the attention of
Governments without prejudice to the question of their future adoption or other appropriate action’. No
further measures have been undertaken and thus the legal status of the ASR remains unclear.172 The Downing of MH17
(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 respon-
sibility 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
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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 ‘effect-
ive control’ test from its Nicaragua decision, holding that in order to meet this stand-
ard 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 per-
sons 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 internation-
ally wrongful act by the latter is internationally responsible for doing so if:
a. That State does so with knowledge of the circumstances of the internation-
ally wrongful act; and
b. 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.
11 Bosnia, supra n 6 at para 400.The Downing of MH17 173
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 gov-
ernment 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 conclu-
sively shown that the decision to eliminate physically the adult male popula-
tion 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 (essen-
tially between 13 and 16 July 1995), despite the exceptionally high number of
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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 aware-
ness 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
12 This raises the issue of ’intent’ more broadly. Note that there is no mention of this term in Article 16 it-
self. However, this requirement is included in the Commentary (Crawford, The International Law
Commission’s Articles on State Responsibility: Introduction, Text and Comments (2002) 149), of which para
5 reads:
The second requirement is that the aid or assistance must be given with a view to facili-
tating the commission of the wrongful act, and must actually do so. This limits the appli-
cation 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 art-
icle 16 unless the relevant State organ intended, by the aid or assistance given, to facili-
tate 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 wrong-
ful act; it is sufficient if it contributed significantly to that act.
An ‘intent’ requirement not only inserts words into Article 16 that are not there but it also fundamentally
changes relations between states. States seldom provide aid or assistance as a way of having the recipient
perform an internationally wrongful act. Instead, the far more likely scenario is that countries see it in
their national interest to maintain close ties to other States, including those that violate international law
standards. An ‘intent’ requirement allows states to do exactly that without, in any way, implicating them
in the misdeeds of their allies. The implications of this on the protection of human rights are enormous.
See Nahapetian, ‘Confronting State Complicity in International Law’ (2002) 7 UCLA Journal of
International & Foreign Affairs 99.
13 Bosnia, supra n 6 at para 423.
14 I say this for a number of reasons but the primary one is that the ‘due diligence’ approach used in this
part of the ICJ’s ruling is much more consonant with international human rights standards than the ASR,
which (seemingly) gives states licence to be in league with ‘bad’ actors, state or otherwise.174 The Downing of MH17
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 ex-
tensive 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 be-
tween 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
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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 machin-
ery (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 interna-
tional 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 insur-
gents 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 inter-
national human rights law.15
3 . E U R O P E A N C O U R T OF H U M A N R I G H T S
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
15 See generally, The Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, ICJ Reports 1996,
226; The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory
Opinion, ICJ Reports 2004, 148; Armed Activities on the Territory of the Congo (Democratic Republic of
Congo (DRC) v Uganda) ICJ Reports 2005, 168. See also Hassan v United Kingdom Application No
29750/09, Merits, 16 September 2014 (ECtHR).The Downing of MH17 175
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 in-
volve 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 an-
other 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
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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 Ilas cu 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 pro-
spects 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
16 See, for example, Cyprus v Turkey Application Nos 6780/75 et al., Admissibility, 26 May 1975; Loizidou v
Turkey Application No 15318/89, Preliminary Objections 23 March 1995; Loizidou v Turkey Application
No 15318/89, Merits, 18 December 1996; Cyprus v Turkey Application No 25781/94, Merits, 10 May 2001.
17 Al-Skeini and Others v United Kingdom Application Nos 55721/07, Merits and Just Satisfaction, 7 July
2011.
18 Banković and Others v Belgium and Others Application No 52207/99, Admissibility, 12 December 2001
(Banković v Belgium).
19 Öcalan v Turkey Application No 46221/99, Admissibility 4 December 2000.
20 Issa and Others v Turkey Application No 31821/96, Admissibility, 30 May 2000; Hassan v United Kingdom
Application No 29750/09, Admissibility and Merits, 16 September 2014.
21 Ilascu and Others v Russia and Moldova Application No 48787/99, Merits and Just Satisfaction, 8 July
2004.
22 Banković v Belgium, supra n 18.
23 For a much more extended critique of this case, see Roxstrom, Gibney and Einarsen, ‘The NATO
Bombing Case (Bankovic et al. v Belgium et al.) and the Limits of Western Human Rights Protection’
(2005) 23 Boston University International Law Journal 55.176 The Downing of MH17
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
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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 extrater-
ritorial 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 uncer-
tain 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 admissibil-
ity: 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 person-
nel 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 Ilascu 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,
24 Supra n 16.
25 See generally, Lawson, ‘Life after Bankovic: On the Extraterritorial Application of the European
Convention’, in Coomans and Kamminga (eds), Extraterritorial Application of Human Rights Treaties
(2004) at 83; Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent
Jurisprudence of the European Court of Human Rights’ (2003) 14 European Journal of International Law
529; Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policies (2011).The Downing of MH17 177
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, eco-
nomic, 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 ex-
ercise 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
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ECtHR, Moldova had failed to do this.
Applying Ilascu to the situation in the Ukraine, although the ECtHR makes no
attempt to further explain the meaning of either ‘effective authority’ or ‘decisive influ-
ence’, 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 stand-
ards to situations involving two contracting states, as existed in Ilas cu 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 es-
tablish ‘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 mili-
tary 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 . I NT ER N AT IO NA L L A W: TI M E T O C A T C H UP WI T H W O R LD
O P I N IO N—A N D W I T H IT SE LF ?
International law is certainly not wedded to international public opinion. However,
there is something fundamentally wrong when this law is completely divorced from
26 Ilascu v Russia and Moldova, supra n 20 at para 392.
27 McCorquodale, ‘Impact on State Responsibility’, in Kamminga and Scheinin (eds), The Impact of Human
Rights Law on General International Law (2009).
28 The other issue would be whether the Ukrainian government might be responsible for the downing of
MH17 on the basis that this occurred within Ukrainian airspace and jurisdiction is presumed to be exer-
cised normally throughout a state’s recognised territory. However, the ECtHR also noted in Ilascu that
this presumption can be rebutted in limited ‘exceptional circumstances’, particularly where a state is pre-
vented from exercising its authority in part of its territory due to such things as a military occupation by
the armed forces of another state, which might apply in the present case. More importantly, an opposite
holding would take the notion of ‘state responsibility’ well past the point of logic.178 The Downing of MH17
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 consid-
erably more subtlety in dealing with issues of attribution than international law does,
especially its excessively blunt determinations of state responsibility when states op-
erate 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
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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.
ACKNOWLEDGEMENT
I would like to thank Ulf Linderfalk for his valuable comments and insights.
29 The practice of extraordinary rendition is another example where international law seems to have trailed
well behind public sentiment. The entire practice of multi-state kidnappings and transfers was used to ob-
fuscate state responsibility and, given the poor judicial showing in this regard, at least for some period of
time, it achieved that very end. The earliest cases arose in the United States and all resulted in dismissal,
whether on the basis of sovereign immunity (that is, Arar v Ashcroft 585 F 3d 559 (2d Cir 2009)) or the
‘state’s secrets’ doctrine (that is, El-Masri v United States 479 F 3d 296 (4th Cir 2007)). Although slower
in taking up these issues, the ECtHR has found Macedonia to be in violation of the European
Convention for its treatment of El-Masri as well as for turning him over to US security agents: see El-
Masri v Former Yugoslav Republic of Macedonia Application No 39630/09, Merits and Just Satisfaction, 13
December 2012. More recently, the ECtHR ruled that Poland’s secret detention facilities contravened
various provisions of the European Convention: see Al Nashiri v Poland Application No 28761/11,
Merits and Just Satisfaction, 24 July 2014 and Husayn (Abu Zubaydah) v Poland Application No 7511/13,
Merits and Just Satisfaction, 24 July 2014.
30 A case in point would be Sale v Haitian Centers Council 509 U.S. 155 (1993), where the US Supreme
Court ruled that the nonrefoulement provisions under both international and domestic law only applied
after refugees were at or within the territorial borders of the United States—but at no place before then.You can also read
