With the Congressional hearings on Russia dominating the news, this post provides an update on proceedings before the International Court of Justice (ICJ) in the matter of Ukraine versus the Russian Federation. It also responds to a reader’s question about whether there are any options for prosecuting acts of terrorism in Ukraine, including the downing of Malaysian Airlines flight 17, in U.S. courts.
Events at the ICJ
The International Court of Justice (ICJ) has concluded the public hearings (transcripts are here, my quick summary is here) in the case Ukraine has brought against Russia, formally styled:
Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation).
The Court has now begun its deliberations on Ukraine’s requests for provisional measures, which include requests that the Court order Russia to:
- exercise appropriate control over its border to prevent further acts of terrorism financing, including the supply of weapons from the territory of the Russian Federation to the territory of Ukraine;
- halt and prevent all transfers from the territory of the Russian Federation of money, weapons, vehicles, equipment, training, or personnel to groups that have engaged in acts of terrorism against civilians in Ukraine;
- refrain from any act of racial discrimination against persons, groups of persons, or institutions in the territory under its effective control, including the Crimean peninsula;
- cease and desist from acts of political and cultural suppression against the Crimean Tatar and ethnic Ukrainian people;
- halt the disappearance of Crimean Tatar individuals and to promptly investigate those disappearances that have already occurred.
Russia, in turn, indicated that although it “complies fully with its obligations” under both treaties relied upon by Ukraine, it still opposes these requests, primarily based on the arguments that:
- Ukraine cannot characterize the acts of the “self-organized” Donetsk and Lugansk Peoples Republics (DPR and LPR), who are engaged in an armed conflict with Ukrainian ultra-nationalists, as terrorists;
- For the International Convention for the Suppression of the Financing of Terrorism to apply, there must have been financing with the intent or knowledge that the funds allegedly provided be used for an act of terrorism against civilians (Article 2);
- That treaty is focused on individual criminal responsibility, vice state responsibility, as exemplified by the fact that the treaty’s compromissory clause granting ICJ jurisdiction does not envision claims for state responsibility (as compared with the Genocide Convention’s Article IX);
- Ukraine’s substantive claims do not meet the Court’s plausibility threshold or other requirements for granting provisional relief; and
- Ukraine has not met its treaty burden to undertake bona fide negotiations before resorting to the Court.
Options in U.S. Courts?
An astute Just Security reader has asked whether there are any accountability options in U.S. courts, particularly given that a U.S. citizen was killed in the attack on Malaysia Airlines flight 17 (MH-17). Although international courts are proceeding with respect to a range of Ukrainian claims as I have discussed in my initial coverage here, there may be some U.S. options, although these are more limited and subject to greater jurisdictional barriers.
Torture Victim Protection Act
The Torture Victim Protection Act (TVPA)—which provides a cause of action for summary execution in addition to torture—is available for U.S. or non-U.S. plaintiffs. Although summary execution offers an obvious claim for the next-of-kin of the 298 persons killed onboard, the torture prong may be available as well given that research suggests that the victims were alive and sentient during the period of time in which their plane was crashing following the explosion of the Russian-made surface-to-air (SAM) fragmenting warhead fired at the plane. (BUK SA-11 missiles are designed not to strike an aircraft directly but rather to explode before impact and release a cloud of destructive shrapnel). When it comes to summary execution, the plaintiff is normally the victim’s legal representative.
To be actionable, the act of torture or summary execution needs to have been committed under actual or apparent authority, or under color of law, of a foreign state; presumably, this requirement could be satisfied with evidence of Russian support/control of the rebels who launched the missile that took down the airliner. The defendant must be a natural person (vice a legal person), so it would be necessary to identify a responsible individual defendant(s). (The list drawn up by the Dutch Joint Investigative Team offers a starting point). Individuals can be sued under various forms of responsibility such as ordering, aiding and abetting, command responsibility, and conspiracy.
Unlike the Alien Tort Statute, the TVPA is not subject to the presumption against extraterritoriality invoked by the Supreme Court in Kiobel (more on this below). The main impediment, however, is personal jurisdiction: any plaintiff would have to effectuate service on the defendant within the United States or otherwise assert personal jurisdiction over him/her. As a practical matter, this will likely be an insurmountable barrier to invoking the TVPA, as responsible individuals are unlikely to travel to the United States, particularly given the sanctions regimes in place against potentially responsible Russians.
Alien Tort Statute
Like summary execution and torture, terrorism is a tort in violation of the law of nations, as I have argued here, and so could conceivably trigger jurisdiction under the Alien Tort Statute for non-U.S. citizen plaintiffs. However, the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum has likely eliminated the ability of most so-called foreign-cubed cases—cases involving a foreign plaintiff, a foreign defendant, and tortious conduct abroad—to proceed in U.S. courts. A suit by the legal representatives of the U.S. citizen killed in the MH-17 attack might proceed, but only if personal jurisdiction could be obtained over a responsible defendant—the same challenge posed by the TVPA.
The Anti-Terrorism Act
Also of note is the Anti-Torture Act (ATA), which provides a civil cause of action for a number of international terrorist acts defined elsewhere under U.S. law, including the provision of terrorist financing and material support for terrorism and attacks on civil aviation. See Weiss v. National Westminster Bank. The plaintiff in an ATA action must be a U.S. national or the heir or estate thereof. The ATA supports jurisdiction over cases involving any person or entity that “aides and abets, by knowingly providing substantial assistance, or who conspires with the person” who committed the underlying act of international terrorism. Again, an option for the legal representatives of the U.S. victim only.
Criminal Prosecutions
The United States has criminal jurisdiction over many acts of terrorism, including material support and terrorist financing. Although one of the terrorism financing statutes (§2332d) addresses only U.S. nationals as perpetrators, a more recent statute (§2339C) reaches much farther in keeping with the Terrorism Financing Treaty. Jurisdiction exists if the terrorist act was directed against U.S. property or the perpetrator is “found in” the United States. The material support statutes (see, e.g., §2339a) are similar. Likewise, we have a number of criminal statutes aimed at protecting civil aviation, such as a prohibition on attacks on aircraft or the acquisition or transfer of missiles that could be used against aircraft. The Department of Justice has invoked these statutes, although never involving Ukraine or Russia as far as I know.
The Netherlands (the majority of the victims were Dutch) or Malaysia could also invoke their own criminal law (see our discussion here).
Foreign Sovereign Immunity Act
None of the exceptions to foreign sovereign immunity contained within the Foreign Sovereign Immunity Act (FSIA) applies to MH-17. The obviously-inapplicable exceptions are: waiver, commercial activities, expropriation, noncommercial domestic torts, arbitration, suits in admiralty to enforce a maritime lien, etc. One exception that comes close is the international crimes exception:
1605(A)(a)(1) – A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case … in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act … (2)(A)(i)(I) [if] the foreign state is designated as a state sponsor of terrorism at the time the act occurred [under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App 2405(j) or Section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371)].
This provision, however, applies only to designated state sponsors of terrorism (currently, Iran Sudan, and Syria); Russia has never been so designated. The claimant must be a U.S. national, a member of the armed forces, an employee of the U.S. government, or the legal representative of one of the above.
JASTA
The Justice Against Sponsors of Terrorism Act (enacted in 2016 and codified at 28 U.S.C. §1605B) was designed to provide civil litigants with a cause of action against persons, entities, and foreign countries that have provided material support, directly or indirectly, to foreign organizations or persons that engage in terrorist activities against the United States. (See our prior coverage here and here). This new exception to foreign sovereign immunity and to the FSIA does not depend on the state being designated as a sponsor of terrorism. Like the rest of the Anti-Terrorism Act (ATA), JASTA can only be invoked by U.S. citizens as plaintiffs.
Insurmountable, however, is the requirement that the suit claim damages for injury or death in the United States caused by an act of international terrorism, even if the foreign state, or any foreign official, acted elsewhere. As such, it creates a specialized territorial tort exception that would not apply to the MH-17 attack, which occurred in Ukrainian airspace, or other acts of terrorism in Ukraine.
MH-17 Ad Hoc Tribunal
Following the MH-17 attack, the Security Council with UNSCR 2166 authorized the creation of a Joint Investigation Team—which was eventually composed of representatives from Australia, Belgium, Malaysia, the Netherlands, the United States, Great Britain, and Ukraine—and called on all States and actors in the region to give their full cooperation to the investigation. Malaysia and the Netherlands put forward a proposal to establish an international tribunal to investigate and prosecute the attack on MH-17; however, the resolution provoked a Russian veto (and three abstentions from Angola, China, and Venezuela). In its explanation of vote, Russia indicated that the proposed tribunal would be “politicized” and “counterproductive.”
As a way of circumventing Russia’s veto, a model similar to the “Lockerbie Tribunal” has been under consideration. A bit of history: following the 1988 bombing of Pan-Am Flight 103 over Lockerbie, Scotland, an international investigation led to the conclusion that the bombing had been the work of two Libyan agents. Following a decade of negotiations and a foray to the International Court of Justice, an agreement was reached in 1998 that would allow the suspects to be prosecuted in a neutral forum: a decommissioned U.S. army base in the Netherlands staffed by a panel of Scottish High Court judges (in lieu of a jury) applying Scots law. Although the Security Council blessed the arrangement, implementation required the passage of Scottish legislation to enable a Scottish court, possessing a full juridical personality and enjoying all applicable privileges and immunities, to sit extraterritorially. The United Kingdom covered any costs incurred by the Netherlands.
A notional statute for a similarly transnational MH-17 tribunal would allow for the assertion of jurisdiction over a select set of war crimes (the willful killing of civilians, attacks on the civilian population and civilian objects, violence to life and person, and the murder of persons taking no active part in armed hostilities), crimes against the safety of civil aviation (as defined by Malaysian law), and murder and other violent crimes under Ukrainian law. This planned mix of Ukrainian and Malaysian law is a novel feature in light of the transnational nature of the incident. (By contrast, the Lockerbie tribunal relied exclusively on Scots law governing murder, conspiracy to murder, and violations of the Aviation Security Act of 1982).
If such a Lockerbie-style tribunal were to move forward, at a minimum, the most affected states would include Ukraine, as the territorial and potentially nationality state (i.e., state of nationality of the accused); Malaysia, as the state of registration as well as the state of nationality of the victims; and the Netherlands (and others), also invoking the passive personality principle, which allows states to assert jurisdiction over crimes committed against their nationals (two-thirds of those killed were Dutch). These implicated states could, in essence, “pool” their respective jurisdictional competencies to create a transnational tribunal. Such a tribunal could also be premised on the collective exercise of universal jurisdiction since the attack could amount to a war crime or an act of terrorism—two crimes subject to universal jurisdiction.
The nationality of the perpetrators is unknown (although it is presumed they Ukrainian separatists), which complicates the question of whether Russia’s assent would be required, as a legal or practical matter, for any tribunal to be established. Assuming Russia will continue to block any decisive action by the Security Council, additional international legitimacy to such a transnational effort could be afforded to this effort by the U.N. General Assembly. Any such tribunal would need to secure the presence of the accused, unless it were to proceed in absentia.
Conclusion
Given the above, the short answer is that the relatives of the U.S. citizen killed on board MH-17 might have recourse to U.S. courts. The bulk of the victims, however, will have to seek justice elsewhere, which makes the ICJ proceedings all the more important.