The Dutch government has opened a criminal investigation of the downing of Malaysia flight 17, and President Obama has pledged that the U.S. will assist the Dutch to bring those responsible for the attack to justice.  Assuming the persons responsible for firing the missile, or ordering its firing, could be identified, what are the options for pursuing individual criminal responsibility?

The Prime Minister of Ukraine has suggested that the International Criminal Court (ICC) might investigate and prosecute the case.  Although Ukraine is not yet a member of the ICC, it could refer the case to the Court pursuant to Article 12(3) of the Rome Statute. This provision allows non-States Parties to accept the jurisdiction of the Court on an ad hoc basis absent full ratification, even retroactively.  Ukraine has already relied on this Article to accept jurisdiction for events that occurred in Ukraine between 21 November 2013 and 22 February 2014 to the ICC.  Since the plane was shot down over Ukrainian territory outside of this time frame, a renewed Article 12(3) declaration would be necessary along with a proper referral from Ukraine in order to give the Court jurisdiction over all alleged perpetrators, regardless of their nationality, and no country could “veto” the referral to the ICC since it would not be coming from the UN Security Council but from Ukraine itself.

The fighting in Ukraine certainly qualifies as an “armed conflict,” determined in a non-international conflict by looking at the intensity of fighting and the organization of the parties on each side, and therefore international humanitarian law and international criminal law apply.  In this case, investigators would consider whether the killing of the civilians on the plane constituted war crimes.  But here is where the difficulties would begin if it is in fact true that the perpetrators thought that they were shooting at a military transport plane.  In a non-international armed conflict, the Rome Statute criminalizes both the murder of civilians (Article 8(2)(c)(i)) and “intentionally directing attacks against the civilian population” (Article 8(2)(e)(i)).  As set out in the ICC Elements of Crimes, murder requires proof that the perpetrator was aware of the civilian status of the victim.  With respect to intentionally directing attacks against the civilian population, one might argue that this includes attacks that are indiscriminate, that is where the perpetrators take insufficient steps to ascertain the status of the target (see the ICTY Galić Appeals Chamber judgment at paragraphs 131-132, which provides some support for this argument).

But, according to the ICC Elements of Crimes,, the crime of directing attacks against civilians requires proof that “[t]he perpetrator intended the civilian population as such … to be the object of the attack.”  Therefore, the ICC prosecutors would likely have to prove that the perpetrators knew that they were targeting civilians, which apparently was not the case according to the facts uncovered to date (though further investigation might establish otherwise).  It has also been suggested that the ICC could investigate the act as a crime against humanity, but that crime also requires proof of an intentional attack on a civilian population—a threshold that may not yet have been met in Ukraine.  In either case, if ICC investigators get the case they will want to consider whether the shooting down of the plane was an isolated incident or part of a broader pattern of indifference to the well-being of civilians in the conflict.

More promising might be to consider a domestic prosecution, either under ordinary murder statutes or, in the alternative, war crimes statutes that are broader than the Rome Statute.  Since the shoot-down occurred in Ukraine, it could assert jurisdiction over the act according to the territorial principle of jurisdiction.  In the alternative, one of the countries whose citizens were killed in the attack could assert extra-territorial jurisdiction on the theory of passive personality jurisdiction (which can be controversial when used to prosecute ordinary crimes but less so when international crimes are pursued). Because the conflict between the government of Ukraine and the rebels is a non-international armed conflict, the rebels would not enjoy combatant immunity, and therefore they could be prosecuted for their acts under domestic criminal statutes. (If it is determined that the perpetrators were in an international armed conflict with Ukraine—due to their being under the overall control of another state, such as Russia—they could try to claim combatant immunity as a defense to a domestic prosecution of their actions, but this seems unlikely under the known facts and whether they would need to satisfy other criteria for that protected status.)

Assuming domestic criminal law applies, a prosecution for ordinary murder would be significantly easier than under international criminal law.  For a domestic murder case, the status of the victims (military or civilian) makes no difference.  The prosecution would only need to prove that in launching the missile, the perpetrators intended to kill those on the plane, a considerably easier burden than trying to prove that they intentionally targeted civilians. The intent to kill those on the plane would be easily inferred from the act of launching the missile itself, and would not require separate proof.

Domestic war crimes statutes might also include a broader range of war crimes than what is found in the Rome Statute.  The Dutch have opened their investigation pursuant to their International Crimes Act which gives Dutch courts jurisdiction over war crimes, crimes against humanity and genocide committed against Dutch citizens anywhere in the world.  The Act reproduces the crimes set forth in the Rome Statute, but in addition includes in its Article 7 a catch-all provision criminalizing, in either an international or a non-international armed conflict, any other “violation of the laws and customs of war” not otherwise referred to in the Act.  The Dutch Act might therefore be more easily interpreted to include indiscriminate attacks on a population, in addition to direct attacks against civilians, and therefore it might be sufficient for the Dutch prosecutors to show that the perpetrators were reckless and took insufficient steps to establish that the plane was a military target when they fired at it.  In sum, whether domestic prosecutors pursue murder charges or war crimes charges, it would seem that they would likely have an easier path than international prosecutors.  Going forward, because it is presently unknown for certain what the perpetrators knew and were thinking when they shot down the plane, an investigation could be coordinated among the ICC (through a referral from Ukraine), international investigators from countries whose citizens were on the plane, and Ukraine.  Once the facts were established, it could be decided which crimes, if any, apply and which forum would be the most appropriate for prosecution.

Aside from the legal challenges, there would of course be substantial investigative challenges and proof problems. Although reports indicate that intelligence agencies intercepted rebel communications regarding the shoot-down, which could shed light on both the perpetrators’ actions and their intent, governments are ordinarily reluctant to share such information with criminal courts.  Further, even if the specific perpetrators could be identified, apprehending them would be an additional challenge, though many war criminals who never imagined that they would be held accountable today find themselves behind bars.  The path to individual criminal responsibility for the shoot-down of flight 17 is therefore certainly difficult, but perhaps not impossible.