ICAO has done all that it can
International Criminal Court?
International Court of Justice?
- DEC 20, 2018 New York Times
The Netherlands is considering referring Russia to an international court after reaching an impasse with the Kremlin over responsibility for shooting down a civilian airliner over Ukraine in 2014, killing 298 people, many of them Dutch citizens.
In a letter delivered to the Dutch Parliament on Thursday morning, the country’s foreign minister, Stef Blok, said that Russia had rebuffed all efforts to start negotiations on a possible settlement or compensation for the victims of the 2014 attack on Malaysia Airlines Flight 17, and that the government was considering “potential next steps” including “submitting the matter to an international court or organization.”
The Netherlands and Australia, whose citizens made up a large number of the victims, made “several requests to Russia through diplomatic channels to engage in formal meetings on this matter, with a view to establishing the truth and achieving justice and accountability for the victims and their next of kin,” Mr. Blok wrote in the letter, which was obtained by The New York Times.
The diplomatic efforts, he said, have not produced negotiations “concerning Russia’s responsibility,” though the Dutch government remains open to dialogue should the Kremlin wish to come to the table.
Whither next in the tragedy of the shooting down of Malaysian Airlines Flight 17?
MH 17: The World’s Airspace closed through Ukraine-like NOTAM prohibitions should be examined by ICAO and/or the UN
As evidenced by the statements of the Dutch foreign minister his country wants justice for its citizens and all aboard the ill-fated plane. Russia is a sovereign and it may be difficult to obtain jurisdiction over it for this state action.
There may be two options:
- The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. The Rome Statute, the basis of the ICC’s competence, defines as crimes justiciable by this body as genocide, war crimes, crimes against humanity, and – as of amendments made in 2010 – the crime of aggression. The ICC has standards for victims’ representation in the Courtroom, and ensures fair trials and the rights of the defense.
This appears to be a court of competent jurisdiction and can impose criminal sanctions. Russia would certainly resist any effort to invoke any ICC review and would take all measures to preclude the detention of any defendants.
- INTERNATIONAL COURT OF JUSTICE (ICJ)
The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways:
by entering into a special agreement to submit the dispute to the Court;
by virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty containing a provision whereby, in the event of a dispute of a given type or disagreement over the interpretation or application of the treaty, one of them may refer the dispute to the Court;
through the reciprocal effect of declarations made by them under the Statute, whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. A number of these declarations, which must be deposited with the United Nations Secretary-General, contain reservations excluding certain categories of dispute.
This option may also be unattainable. The Russians will likely not agree to submit the dispute to the Hague. The power of the ICJ appears to be limited to resolving the legal differences and likely does not have the power to enforce any damages.
The Dutch, long a participant in international trade and the home of the Hague, has a great understanding of the legal forums available and of their respective powers. It will be interesting to see how they take their threat to a final decision.
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