MAY THE DEATH OF BOEING IN DONBASS BE QUALIFIED AS A WAR CRIME

Vsevolod Sazonov

The desire of the EU or the US is not sufficient for the international investigation of the plane crash. The main thing is whether the Ukraine will be able and willing to comply with the terms of such an investigation.

The crash of the Malaysia Airlines plane in the East of Ukraine raises more questions than answers. The basic version of the Kiev authorities and the West is that of the Boeing 777 flying from Amsterdam to Kuala Lumpur was hit by the militias of the Donetsk national Republic, who had taken it for a Ukrainian transport aircraft, with a rocket of the "earth-to-air" class. The Russian defense Ministry said that in the region of Donetsk there were deployed air defense batteries of the Ukrainian army which were capable of shooting down the Malaysian liner, and that an attack aircraft of the Ukrainian air force was flying near the Boeing before the crash. The European organization for the safety of air navigation (EUROCONTROL) pre-qualified the wreck as an accident.

The world practice knows such tragedies. In 1973 the Israeli air force fighters had shot down a Libyan passenger aircraft; an aircraft of Iran Air was shot down by an American cruiser of the US Navy in 1988; in 2001, in the result of the launch of a Ukrainian rocket, the plane of "Siberia" crashed. In all three cases the ‘tragic accident ‘version was pre-classified. What may be the legal assessment of the disaster near Donetsk on July 17?

One of the possible interpretations is as follows: if the fact that the Malaysian plane was attacked is proved, then the crash can be qualified as a war crime.

War crimes are listed in Part 2 Item 8 of the Rome Statute, the Statute of the International criminal court (some call it the Hague Tribunal). This is the first permanent international body of criminal justice, it has actually been functioning since 2002. War crimes include deliberate attacks on civilians not taking direct part in hostilities; intentional attacks against civilian objects.

International war crimes are ruled by the chief Prosecutor of the Hague Tribunal. In order that the International court could begin investigation of the accident in Donbass, several conditions should be met.

It is necessary that the plane crash could be qualified as a war crime, and that it occurred during the conduct of hostilities. The Ukraine is so far calling the actions of its troops as an anti-terrorist operation. It should be a state – participant of the Rome Statute who would request for an investigation. The Ukraine is not its participant, and in order to appeal to the international criminal court it should either ratify the Statute, or make a special statement to recognize the jurisdiction of the court in respect to the catastrophe. Besides, the court requires the responsibility of specific individuals, and not states or other entities like DNR. Finally, the alleged perpetrators must be citizens of the Ukraine, or it must be established that the act was committed on the territory of the Ukraine.

So far Kiev has invited to the investigation of the crash representatives of Malaysia, the Netherlands, Boeing, the International civil aviation organization (ICAO) and several European organizations. German Chancellor Angela Merkel and NATO Secretary General Anders Fogh Rasmussen demanded an independent investigation, too. However, until the above conditions are met, there is no chance of an international criminal investigation into the case.

It is also worth noting that, in accordance with the intergovernmental agreement on air communication between the Ukraine and Malaysia, it is the Ukrainian side who is in charge of the security of flights over the Ukrainian territory. However, the Ukraine has not closed the air space above the combat area, and it continued to be used by civil aircrafts There are also questions to EUROCONTROL which closed the air space above the Crimea rather quickly after its inclusion in the structure of Russia (in early April), but, as concerns the East of the Ukraine, this decision was made only after the deaths of nearly three hundred people.

However, the political consequences of the catastrophe July 17, 2014 may overshadow the process of finding the perpetrators and bringing them to justice. The investigation of the causes of the catastrophe will have a serious impact not on the situation around the Ukraine alone, but also on the situation in the whole world.

Source: RBC daily, July 23, 2014, p. 3

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