The legal claims of Ukraine before the International Court of Justice

On January 16, 2017, Ukraine instituted a legal proceeding against the Russian Federation before the ICJ, primarily alleging that Russia failed to comply with the obligations arising out of the 1999 ICSFT.Footnote ³ Absent the Russian Federation's acceptance of the ICJ's compulsory jurisdiction (pursuant to article 36[2] of the Court's Statute), Ukraine was left with no choice but to invoke Russian responsibility (ex article 42 of the International Law Commission's Articles on State ResponsibilityFootnote ⁴). It did so by relying upon two conventions signed by both parties, which provided the Court with jurisdiction via two compromissory clauses.Footnote ⁵ Specifically, the Applicant submitted that, by failing to act in accordance with the ICSFT, the Russian Federation did not prevent “acts of terrorism committed by its proxies in Ukraine” from occurring, including the downing of MH17.Footnote ⁶ Accordingly, Ukraine asserted that the ICJ should note that the Russian Federation bears international responsibility, and full reparation should be granted for the flight's crash. In particular, Ukraine mainly relied upon the following ICSFT articles: a) article 8(1) regarding the identification, freezing, and seizure of those funds intended to be used or allocated for the purpose of financing terrorism in Ukraine; b) articles 9(1) and 10(1), which deal with the investigation of the alleged acts of terrorism committed in Ukraine, and with the extradition or prosecution of alleged perpetrators; and c) article 12(1), concerning the Parties’ obligation to grant “one another the greatest measure of assistance” in relation to criminal investigations over terrorism-related offenses set forth in the ICSFT.Footnote ⁷ The alleged failure to comply with article 18 (concerning cooperation obligations) has also been put forward.Footnote ⁸

It comes with no surprise that the bone of contention also concerned the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (hereafter the Montreal Convention). From this standpoint, Ukraine claimed that the crash of MH17 amounted to a violation of article 1(1)(b) of the Montreal Convention; conversely, the Respondent noted that, for the same article to be applied, “there must be an intent to destroy or cause damage to a civilian aircraft in service.”Footnote ⁹

To fully appreciate the extent of the Dutch court's findings, which will be explored in the next section, the main legal standing of the Russian Federation should be pointed out. According to the latter, the Applicant's allegations describe acts and offenses falling outside the meaning and scope of article 2 of the ICSFT. The Respondent State's reasoning mainly revolves around two arguments: the first, which is a material one, highlights the lack of evidence available to substantiate Russian involvement in providing “weaponry to any entity ‘with the requisite specific intent or knowledge,’ under article 2, paragraph 1, of the ICSFT, that such weaponry would be used to shoot down flight MH17”Footnote ¹⁰; the second, which is meant to underscore a legal position, points to the fact that the ICSFT's provisions, as well as its very nature, are ill-suited to claim the international responsibility of a State for financing terrorism, as they only consider activities carried out by private persons,Footnote ¹¹ which the expression “any person” in article 2 would refer to.

Moreover, the Respondent government emphasizes the importance of fully understanding the meanings of the terms “intention” and “knowledge” pursuant to article 2(1) of the ICSFT, in that they relate to the mental elements of the offense (financing terrorism). Suffice it here to note that the interpretation that the Russian Federation provides is the following: “intention” must be understood as “a specific intent requirement,” while “knowledge” refers to actual knowledge that the funds will be used to commit acts of terrorism and “not merely that they may possibly be used to do so.”Footnote ¹²

In sum, what is relevant about the legal dispute between the two States is their divergent views on a) the lack of evidence pointing to Russian involvement in the MH17 incident; and (b) the notion of “any person” capable of committing a prohibited act under the convention. The Dutch district court's judgment can shed light at least on the first issue, and for this reason, it must be examined.

The nature of the conflict in eastern Ukraine: the application of the overall control test

As already mentioned, the Dutch court held three individuals accountable for the MH17 tragedy under domestic law (the DCC).Footnote ¹³ Resorting to a variety of evidence, including eyewitnesses, satellite imagery, photographs, and wiretapped telephone conversations, the Dutch court concluded that a BUK missile was launched from a rebel-held field near Pervomaiskyi (i.e., the launch site), which had been selected for its strategic value to counter Ukrainian shelling.Footnote ¹⁴ In the aftermath of the incident, the UN Security Council unanimously called for the establishment of an independent and international fact-finding commission for the purpose of investigating the incident in accordance with international civil aviation guidelines.Footnote ¹⁵ In this regard, the painstaking investigation that formed the basis of the criminal case was conducted by the fact-finding entity known as JIT,Footnote ¹⁶ alongside the SBU (the Ukrainian investigative entity), which is completely logical considering the place where the crash occurred and the provisions of the Convention on International Civil Aviation (1944, Chicago Convention, in particular article 26, by virtue of which Ukraine requested the Netherlands to carry out the investigation).Footnote ¹⁷ On the international stage, the establishment of an independent international criminal tribunal called for in a UN Security Council's draft resolution was instead vetoed by the Russian Federation in July 2015.Footnote ¹⁸

At this juncture, several observations about the convicted individuals will help clarify several points that are discussed later. Even though the convicted (Kharchenko, Dubinskiy, and Girkin) did not actually fire the missile (the actual perpetrators are identified as the BUK TELAR crew members), they have been held accountable as functional perpetrators and/or co-perpetrators of the above-mentioned offensesFootnote ¹⁹ because they were directly involved in the disaster, actively playing key roles in relation to the presence of the BUK TELAR.Footnote ²⁰

A comprehensive analysis of the judgment, especially from a criminal law viewpoint,Footnote ²¹ is beyond the remit of the present essay, as its main focus is to cover a very specific topic (i.e., the degree of the Russian Federation's involvement in lending military, logistic, and strategic support to the DPR's activities).

As the ICJ itself has recognized, this analysis entails ascertaining the existence of any possible legal conditions that bar it from delivering its judgment, such as for the case of the immunities conferred upon lawful combatants by international humanitarian law (IHL), which regulates the matter at hand.Footnote ²² This, in turn, first requires focusing on the nature of the conflict that broke out in eastern Ukraine between the Ukrainian armed forces and the separatists, in that combatants are only entitled to privileges and immunities vis-à-vis international armed conflict and not with regard to non-international armed conflict.Footnote ²³

From this perspective, it should be emphasized that the existence of an armed conflict is basically conditioned upon two different features: a) the resort “to armed force between States,” which substantiates an international armed conflict; or b) the presence of “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State” (i.e., a non-international armed conflict).Footnote ²⁴ The factual scenario that seemingly best fits the hostilities between Ukraine and the DPR is the latter. As a matter of fact, these two actors had constantly been engaged in “protracted armed violence” since April 2014, with a military escalation occurring in June of the same year. Moreover, considering that the DPR established a precise institutional and military structure, which is also confirmed by the accused who held lato sensu government positions, there is room to argue that the separatists were organized in such a way as to meet the notion of an “organized armed group.”Footnote ²⁵ The presence of these two elements is also relevant in order to distinguish a domestic police action from a non-international armed conflict.Footnote ²⁶ Thereby, the Dutch court considered itself satisfied with the fact that a non-international armed conflict was ongoing when MH17 was forced to crash. In July 2014, the International Committee of the Red Cross (ICRC) had also claimed that, at the very least, the violence in eastern Ukraine could be branded as a non-international armed conflict.Footnote ²⁷

Nevertheless, a relevant point should be interjected and discussed here—namely, the degree of Russian involvement in the present scenario. In fact, even though an armed conflict is non-international in nature, it can later become an international conflict, provided that another State has exerted “overall control” over an armed group (which, in this case, would be the DPR).

The overall control test was elucidated first by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY), and it is understood to encompass a degree of control that goes beyond the mere financing and equipping of such a group, as the State's participation is additionally required in “coordinating or helping in the general planning of its military activity.”Footnote ²⁸ Moreover, for the purpose of regarding the members of an armed group as lawful combatants, account must be taken of article 43 of the (I) Additional Protocol to the Geneva Conventions, which identifies two cumulative criteria for such an assessment: a) to be “‘under a command responsible to’ a State party participating in an international armed conflict”; and b) to be “subject to an internal disciplinary system which shall enforce compliance with the rules of international law applicable in armed conflict.”

That being said, the Dutch court noticed that several of the DPR's leaders, including the accused, not only had Russian nationality (except for Kharchenko) but also actively and increasingly sought instructions from “Home” (i.e., Moscow, insofar as they were previously affiliated with the Russian armed forces).Footnote ²⁹ These instructions were occasionally political (meaning people to be appointed in key institutional areas) or military.Footnote ³⁰ Apart from these affiliations, the evidence collected during the investigations pointed to the fact that the Russian Federation provided operational, political, strategic, and military backing to the DPR separatists (including the BUK missile that took down MH17), coordinating its activities and giving key instructions. All these elements led the Dutch court to the conclusion that a full-fledged international armed conflict indeed existed.Footnote ³¹

The finding is certainly noteworthy. In fact, this would mean that the DPR should be looked upon as a de facto proxy of the Russian Federation, and that, pursuant to article 43 of the (I) Additional Protocol to the Geneva Conventions, the DPR's separatists are regarded as combatants entitled to combatant status and privileges.Footnote ³² However, referring to a less convincing reasoning, the Dutch court denied such status because the DPR militia is not part of the regular Russian armed forces, and “the characterisation of overall control is not, in itself, sufficient to conclude that it was under a command that was responsible to the Russian Federation for the conduct of its subordinates.” This was because the Dutch court (mistakenly) relied upon Russia's political claims that the DPR militia was not part of the Russian armed forces.

It is argued that the Dutch court's posture is far from coherent. As some scholars have noted, the court's reasoning produced an “asymmetric situation where two [S]tates were engaged in an IAC [international armed conflict] in that region, yet only the forces of one of those [S]tates were privileged combatants.”Footnote ³³ Despite shedding valuable light on the nature of the conflict, it is still difficult to see the rationale behind such reasoning, which lacks a sufficient degree of coherence in asserting that Russian involvement is sufficiently proven and that it meets the overall control test, while at the same time it denies combatant privileges (and the immunities deriving therefrom) for the DRP's separatists. Above all, the Dutch court's finding on this peculiar issue is hinged on arguments that are not germane to the assessment to be carried out. Importantly, political and diplomatic claims have no bearing on defining the status of the Russian Federation; instead, factual elements, which substantiate the overall control test, play a decisive role in shaping its status.Footnote ³⁴ Moreover, the Dutch court seemingly did not give enough weight to Ukraine's stance in the ICJ case. As a matter of fact, the Ukrainian government firmly asserted that the rebel forces in its eastern territories are “proxies of Russia, which it uses in a ‘hybrid warfare’” to gain control over those territories.Footnote ³⁵ Accordingly, in the case where a conflict is internationalized, as the Dutch court concluded, both prisoner-of-war status and combatant immunities are to be bestowed upon the separatists.Footnote ³⁶ Contrary to what the court ruled, this author's view is that the accused should be regarded as lawful combatants to whom the full panoply of rights and duties attached to combatant status should be applied.Footnote ³⁷

Without dwelling further on this topic, it is possible to better understand why the Dutch court chose not to assign combatant status and immunities to the accused if the Dutch Prosecutor's judicial stance is briefly highlighted. Indeed, the accused have been sentenced under the DCC, not under international criminal law. In this way, they have been prevented from claiming immunities because doing so would have required the accused to openly state and prove that they were actually de facto proxies of the Russian Federation, an assertion that, at the relevant time, Moscow persistently did not uphold.Footnote ³⁸ To put it differently, charging them for war crimes would have shifted the burden of proof to the Dutch Prosecutor, requiring him to prove “the actus reus and mens rea elements of these war crimes.”Footnote ³⁹

The legal implications of the Dutch Court's findings: What decision can the ICJ possibly render?

Back in 2014, the threshold of Russian involvement in terms of control exerted over the separatists was somewhat debatable due to the lack of evidence substantiating such a hypothesis. Arguably, this was the reason why some authors, while possibly recognizing that eastern Ukraine was an occupied territory, did not go as far as asserting that the armed conflict was an international one, (i.e., it was only a non-international armed conflict).Footnote ⁴⁰

Therefore, if questions are now raised as to whether the Russian Federation played a role in (i) financing, training, and equipping, or providing operational support to the DPR; and (ii) organizing, coordinating, or planning the DPR's military actions, the answer would be positive, at least in accordance with the evidence collected and exhibited during the MH17 trial—not to mention the ongoing “special operation” and the legally disputable referendum held in Donetsk and other occupied oblasts.Footnote ⁴¹ The Ukrainian claims, however, which are also partially grounded in political arguments, proved to be true. More specifically, Ukraine was right in arguing before the ICJ that the DPR was waging a war against Ukraine on behalf of the Russian Federation, a finding that some scholars also share.Footnote ⁴² In this respect, upon lodging a complaint before the European Court of Human Rights (ECtHR), the government of the Netherlands contended that Russia violated articles 2, 3, and 13 of the European Convention on Human Rights (ECHR) with respect to the MH17 downing. The ECtHR's Grand Chamber found it established, based on a wide array of evidentiary documentation, that the disaster occurred in rebel-held territories that were under the Russian Federation's (extraterritorial) jurisdiction.Footnote ⁴³

In light of the foregoing, it is interesting to try to foresee what the ICJ will find and declare once its judgment on the merits is rendered. Before focusing on this assessment exercise, a preliminary question should be addressed. The Dutch court maintained that the trove of evidence gathered during the painstaking MH17 investigations resulted in the finding that the DRP was under the Russian Federation's overall control. From this viewpoint, it is worth noting that the threshold of control exercised by a State over the proxy can also be evaluated, resorting to the effective control test,Footnote ⁴⁴ which is enshrined in article 8 of the International Law Commission's 2001 Articles on State Responsibility.

As the Articles on State Responsibility illustrate, an internationally unlawful act exists when a) the action/omission can be attributed to a State; and b) such act/omission constitutes a violation of an international obligation.Footnote ⁴⁵ In order to assess whether conduct is imputable to a State, article 8 requires that “a group of persons” is acting (or acted) “on the instructions of, or under the direction or control of, that State in carrying out the conduct.”Footnote ⁴⁶ This article thus applies to situations where State responsibility is capable of being triggered by actions of individuals who are acting on the instructions, or under the direction and control, of the State in question. Moreover, if the act is performed by “insurrectional or other movements,” article 10(2) must be considered as well. However, for conduct to be attributable to a “movement, insurrectional or other,” an important prerequisite must be satisfied—that is, the establishment of a new State “in part of the territory of a pre-existing State.” Since, at the relevant time, the DRP was not on the brink of successfully establishing a new State (nor has it done so in the present), article 10 is not applicable.

More insight into the topic (i.e., the effective control test) is provided by the Articles on State Responsibility's attached commentary. In reference to article 8, the commentary clarifies that a State's responsibility is engaged by acts of persons only when a) the conduct represents an international wrongful act; and b) such State “directed or controlled the specific operation and the conduct complained of was an integral part of that operation.”Footnote ⁴⁷ This principle is drawn from the ICJ's case law, notably the Nicaragua decision. Specifically, on the one hand, the Court recognized the United States’ involvement in extensively backing the rebel group known as the Contras Footnote ⁴⁸ (which amounted to a violation of international law deriving from the breach of the principle of non-intervention), while also denying that such support was enough to prove that the United States also exerted effective control over the Contras’ activities, which were eventually attributed to the Contras themselves.Footnote ⁴⁹ Additionally, as the commentary made clear, article 8 is characterized by disjunctive language when specifying that the words “instructions,” “direction,” and “control” are not to be read in a cumulative way, which means that it is sufficient to establish the presence of at least one of them. However, one of the three terms “must relate to the conduct which is said to have amounted to an internationally wrongful act.”Footnote ⁵⁰ Therefore, as the ICTY correctly illustrated, the main difference between the two tests is the degree of control: the effective control is a much more substantiated test inasmuch as it requires a State to direct, through precise instructions, the performance of a specific conduct, while the overall control test is concerned with situations where a State exercises control of a general nature over the acts carried out by hierarchically structured groups. Consequently, in Cassese's words, “If the group or some of its members engage in prohibited acts, the [S]tate must bear responsibility, even if it did not specifically order, organize or instruct the commission of those specific acts.”Footnote ⁵¹

Interestingly, according to the ECtHR, the areas corresponding to the DPR's territories were under the effective control of the Russian Federation. A considerable amount of concurrent information and evidence persuaded this judicial body to underpin this specific argument. For instance, the assessment of reports submitted by the border mission of the Organization for Security and Co-operation (OSCE) indicates that regular Russian armed forces were present in the separatist-held territories, an inference that is also drawn from the fact that the rebels, who in the summer of 2014 were on the brink of defeat, were able to effectively launch an offensive and regain territories. Likewise, they profited from Russian military support, including planning and devising military strategies; coordinating the supply of military equipment; establishing training camps located alongside Ukrainian borders; and providing artillery cover and cross-border shelling, political assistance (in terms of appointing individuals and leaders in the DPR's key institutional posts, which has been proven by several leaked emails), and economic aid.Footnote ⁵² It appears, therefore, that the Dutch court is itself referring to the ICJ's test to conclude that the Russian Federation was directing the rebels’ military operations which, inter alia, resulted in the downing of MH17.

Having clarified the two tests against which the State's involvement can be assessed, it remains to be seen if the conduct under discussion is per se contrary to the ICSFT. In this regard, it is relevant to recall that the ICSFT imposes obligations upon States when a person “by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds,” which intentionally or knowingly are used “in order to carry out acts of terrorism as described in article 2, paragraph 1(a) and (b).”Footnote ⁵³ In the ruling concerning the preliminary objections, the ICJ took the position that this convention is concerned with offensess committed by individuals only; consequently, “the financing by a State of acts of terrorism is not addressed by the ICSFT.”Footnote ⁵⁴ Among different elements, the Court centred its assessment on the travaux préparatoires, which demonstrated that the inclusion of State financing of acts of terrorism was rejected.Footnote ⁵⁵ Also telling is the fact that article 2 refers to offenses committed by “any person.”

In interpreting this key expression, the Vienna Convention on the Law of Treaties (VCLT) should be considered: article 31 of that instrument stipulates that a treaty must be interpreted in good faith, taking into account the ordinary meaning of the text alongside its object and purpose. The ordinary meaning of “any individual” (without any further clarification) is to be understood as encompassing private individuals as well as individuals acting in an official capacity and thus as a State organ.Footnote ⁵⁶ The analysis of the international practice also indicates that, when the term “individual” is vague and overarching, it is primarily understood as a person exercising governmental authority. Indeed, Judge Pocar correctly pointed out in his separate opinion, “when a restriction is made, it goes the other way around and excludes private individuals from the scope of the criminal rule, by limiting the establishment of individual criminal responsibility to public officials.”Footnote ⁵⁷

As a result, even though the ICJ ruled out that a State's financing of terrorism is addressed as such by the ICSFT, a State's responsibility may nevertheless be engaged under this convention in the event that an individual assuming and performing public duties commits an act not in accordance with the latter.Footnote ⁵⁸ Additionally, as rightly pinpointed in the academic literature, the employment of certain means of warfare, which are unable to discriminate between civil and military targets, would be “tantamount to direct targeting of civilians”; this, in turn, would be punishable under the ICSFT if these means correspond to the funds pursuant to article 2, paragraph 1.Footnote ⁵⁹

For this reason, the question as to whether the convention prohibits the collection or provision of funds under article 2, paragraph 1 of the ICSFT, cannot go unnoticed. As can be aptly noted, the term “fund” is somewhat vague and thus calls for an explanation. For this reason, article 1, paragraph 1 of the ICSFT describes funds as “assets of every kind, whether tangible or intangible, movable or immovable, however acquired.” Bearing this in mind, the provision of a BUK TELAR by the Russian Federation is liable to meet such a definition. Even before the investigation concerning the MH17 incident was completed, Ukraine not only maintained that the Russian Federation actually supplied the BUK TELAR but also that this supply was in itself contrary to and constitutes an offense under article 2, paragraph 1(a) of the ICSFT. In a nutshell, the Russian provision of the BUK TELAR constitutes a fund within the meaning of the convention. It remains to be seen if the fund was intentionally or knowingly provided in order to commit terrorist acts.Footnote ⁶⁰ In this sense, reference can be made to the provisional measures the ICJ applied in the same legal dispute. While the allegations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) have been met with the application of provisional measures, the Court found the claims relating to the ICSFT's offenses—in particular, the mens rea requirement—were scarcely articulated.Footnote ⁶¹

A third question that calls for explanation relates to the assessment of the MH17 disaster under the 1971 Montreal Convention since the flight (a civil one) was downed by means of the same BUK TELAR.Footnote ⁶²

The 1971 Montreal Convention is intended to specifically cover acts committed by individuals, compromising the safety of civilian aviation by imposing legally binding obligations on States to prevent and respond to such acts.Footnote ⁶³ Importantly, the convention addresses situations where any person “unlawfully and intentionally” destroys (or damages) a civil aircraft or acts in such a way as to facilitate the commission of the primary offene.Footnote ⁶⁴ To achieve such a critical result, the convention establishes, inter alia, the applicability of the aut dedere aut iudicare principle.Footnote ⁶⁵ Indeed, article 6 provides that each Contracting Party shall take any alleged offender into custody with a view to conducting criminal investigations or extraditing them. Most importantly, pursuant to article 8, States that are not willing to prosecute the alleged offender are nevertheless under an obligation to extradite that offender. That being said, both Ukraine and the Russian Federation are parties to the convention, and moreover, they are parties to the 1944 Chicago Convention. Several annexes to the latter also clarify States’ legal obligations. For instance, annex 17 establishes the responsibility of all Contracting Parties to enact regulations and practices intended to secure the safety of civilian aircraft.Footnote ⁶⁶

Although the present essay focuses essentially on the issue of the possible Russian responsibility in light of the MH17 ruling, a preliminary question should nonetheless be addressed. This question relates to the possible Ukrainian responsibility for not having closed the airspace to civilian aircraft and for not timely sending out a Notification to Airmen (NOTAM), which is required by public international law. As correctly noted, “Ukraine's failure to do so may not only be a violation of international law (…) but also a civil law violation towards victims, who could claim this in a Ukrainian court of law.”Footnote ⁶⁷ Since, during an armed conflict, the security-related situation is inherently volatile and unpredictable, the risk assessment carried out by State authorities should take into account all threats to civil aircraft safety, either real or potential. Importantly, before the MH17 disaster, the situation in eastern Ukraine deteriorated to such an extent that several incidents involving Ukrainian military aircraft occurred beginning in April 2014. Additionally, due diligence obligations deriving from the above conventions dictate that all reasonable steps should be taken to guarantee the safety of civil aviation.

Given Ukraine's failure to close its airspace, hence underestimating the chance that an aircraft could have been downed, there would be room to argue that it has violated international obligations regarding the safety of civil aviation.Footnote ⁶⁸ This would be all the more so since additional precautionary measures are required under the International Civil Aviation Organization's Manual on Safety Measures if a State party's army is involved in an armed conflict.Footnote ⁶⁹

Regarding the Russian involvement, the ICJ could declare it responsible not only under the ICSFT but also under the Montreal Convention if its involvement is sufficiently established. To prove it, the ICJ could take advantage of the MH17 judgment, according to which the DRP's insurgents were under the Russian Federation's overall control, meaning that the acts that the rebels committed are actually imputable to the said State. According to some scholars, Russian responsibility would arise in the case where such State, through its agents, facilitated the deployment and possession of the BUK missile and afterwards did not exercise due regard as to how this weapon should have been used.Footnote ⁷⁰ From this viewpoint, it is essential to emphasize that, according to article 2 of the Articles on State Responsibility, both actions and/or omissions are capable of calling a State's responsibility into question as long as they can be attributed to that State and constitute a breach of an international obligation. In relation to the same article, the commentary to the Articles on State Responsibility distinguishes between “subjective” and “objective” responsibility, clarifying to this end that “the content of the primary obligation in question” is one of the criteria instrumental in understanding the nature of such responsibility.Footnote ⁷¹ Supplementary criteria, such as “degree of fault, culpability, negligence or want of due diligence,” can of course be taken into account, but their relevance might “vary from one context to another for reasons which essentially relate to the object and purpose of the treaty provision or other rule giving rise to the primary obligation.”Footnote ⁷² It seems plausible to infer from these elements that the ICSFT, by referring to specific mental requirements (the funds must be provided or collected with the intention or the knowledge that they will be used to carry out heinous acts of terrorism), envisages a subjective responsibility (the same holds true with regard to the Montreal Convention).

Be that as it may, this author posits that the omission or inaction of a State's authorities, which failed to take appropriate steps in circumstances where such steps were evidently called for, amounts to a breach of an international legal obligation giving rise to the responsibility of the State's wrongdoing. From this perspective, several of the Montreal Convention's provisions are capable of denoting international responsibility. For instance, article 10(1) explicitly calls upon Contracting States to take precautionary measures with an eye towards “preventing the offences mentioned in [a]rticle 1.” Moreover, article 11 requires States to “afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offences.”Footnote ⁷³ It bears recalling that the ICJ has already addressed a similar scenario in the prominent Lockerbie case, where Libya contended that the United Kingdom had violated the obligation set forth in article 11 of the Montreal Convention inasmuch as it did not share relevant documentation and evidence that could have been instrumental when further investigating the alleged Libyan perpetrators.Footnote ⁷⁴

Concluding remarks

According to the District Court of The Hague, Russian involvement appears to be so clear-cut that it meets all the requirements linked to the overall control test, which means that the DRP was waging a war against Ukraine on behalf of the Russian Federation.

Drawing upon these findings, although the State's responsibility through its organs is somewhat debatable under the ICSFT,Footnote ⁷⁵ States parties are at least under an obligation to cooperate in good faith with a view to preventing and/or suppressing the offenses amounting to acts of terrorism committed by any “individual.” Should a State breach such an obligation, its responsibility under the convention would arise for failing to take preventative and/or repressive measures.

In light of the foregoing, the above considerations pave the way for the ICJ to choose one of the following three alternatives. First, the Court could declare the Russian Federation responsible for failing to comply with the obligation to cooperate as enshrined in articles 12(1) and 18(1) of the ICSFT, read in conjunction with article 2, for having provided assets by which an offense under the convention was committed, and additionally, the Court could find the Russian Federation in violation of article 11, read in conjunction with article 1(b) of the Montreal Convention. In this way, all the circumstances surrounding the MH17 disaster become relevant for interpreting both the ICSFT and the Montreal Convention. Second, even though the Russian Federation provided the BUK TELAR, which has been proven to be a “fund” under the ICSFT, the ICJ should not declare the same State responsible because it has not been conclusively proven that Moscow did so intentionally or knowingly (i.e., with the intention or knowledge that the BUK TELAR would be used to bring down MH17). Finally, if the Court, departing from its settled case law, resorts to the overall control test, it would find that a full-blown international conflict exists, meaning that the acts for which Ukraine seeks redress are to be assessed under IHL rules as lex specialis. Accordingly, the ICJ would lack jurisdiction to adjudicate such matters.Footnote ⁷⁶ In fact, it should be emphasized that article 21 of the ICSFT contains a “without prejudice” clause for the applicability of IHL, highlighting that, in circumstances in which an armed conflict is present, this set of rules will prevail over the offenses that are embodied in the convention, effectively bolstering the lex specialis status of IHL.

Even though the ICJ is likely to confine its assessment to the narrow thematic issue concerning the financing of terrorism under the ICSFT (ne iudex ultra petita partium), thus leaving aside Russian responsibility regarding MH17 sic et simpliciter, its judgment will help develop the international legal order by clarifying States’ legal obligations and responsibilities (e.g., the content of State obligations under the ICSFT) in cases where cross-thematic issues, such as the safety of civil aviation and the financing of terrorism, intertwine with other remarkable legal topics, including the nature of a conflict between a State and an armed group, and the applicability of IHL.

That being said, it is undeniable that once the Russian Federation's responsibility (if any) is established, the ensuing obligation to provide full reparation for the injuries caused by its conduct will arise in accordance with a well-founded rule of international law governing State responsibility. In particular, the wrongdoing State will first be asked to re-establish the situation quo ante (i.e., the restitution ad integrum). If making such restitution turns out to be materially impossible, as with the MH17 case, the State is bound to provide monetary compensation for the damage caused, unless the State to which the reparation is owed finds itself satisfied with another form of reparation such as satisfaction.Footnote ⁷⁷