Multiple parallel actions are ongoing with the aim of achieving truth and justice for the 298 passengers and crew of Malaysian Airlines flight MH17. The flight was shot down over Ukraine on July 17, 2014.
An investigative team, led by the Dutch aviation authority and endorsed by the Australian government, concluded that the aircraft was shot down by a BUK missile. More than 100 individuals were identified in the 2016 report as linked to the incident. The investigation is ongoing.
Australia’s foreign minister, Julie Bishop, advocated for a war crimes tribunal to apportion blame for the incident. However, this proposal was vetoed by Russia in the UN Security Council.
This week, focus has turned to an action lodged in the European Court of Human Rights by lawyer Jerry Skinner on behalf of 33 relatives of MH17 victims. Skinner claims that the application has reached the stage of “ready for judicial determination”.
As reported last year, each applicant is seeking A$10 million in compensation from Russia. The claim is that Russia is responsible for violating the right to life of those killed due to its alleged supply of the missile that was launched from Ukraine, bringing down the aircraft.
However, the case lodged by Skinner is not yet listed in the court’s database. It is unclear how far the application has progressed but it certainly faces a range of major obstacles. The status of “ready for judicial determination” does not appear to be an official stage of proceedings in the court.
The European Court of Human Rights
The European Court of Human Rights was established in 1959 and sits in Strasbourg. It has jurisdiction to hear complaints from individuals and countries, alleging violations by countries that are party to the European Convention on Human Rights.
The court has delivered more than 10,000 judgments, which are formally binding on the countries subject to them. It receives more than 50,000 applications each year.
The application from Ayler and others is not the first to be lodged in the court in relation to Flight MH17. The case of Ioppa v Ukraine was lodged with the court in 2016.
The four applicants in that case are family members of three of the passengers killed on board Flight MH17. They have complained against Ukraine, rather than Russia. Specifically, they argue Ukraine violated their relatives’ right to life by failing to close the airspace above the military conflict zone that was active in eastern Ukraine in 2014.
The applicants allege that Ukrainian authorities intentionally failed to close the airspace despite their knowledge of the dangers posed to civilians travelling over Ukraine in passenger aircraft.
The application is currently noted as a “communicated case”, meaning it is awaiting judgment. The court has asked the applicants to identify what they have done to exhaust any available domestic legal remedies before applying to the court – particularly any legal avenues available in Ukraine.
The court has not yet published a preliminary finding on the admissibility of the case. This is the necessary first step before notice will be given to Ukraine to respond to the application. The case is certainly a long way from any potential judgment by a chamber of the court.
The Council of Europe
The European Court of Human Rights is not a creature of the European Union, but rather of the Council of Europe. The Council of Europe is a human rights organisation of 47 members, 28 of which are also EU members. All Council of Europe members have signed the European Convention on Human Rights.
The Council of Europe seeks to promote goals central to the international human rights framework, including freedom of expression and of the press, minority rights, and the abolition of the death penalty.
As a Council of Europe member, Ukraine is subject to judgement by the European Court of Human Rights. The applicants in Ioppa v Ukraine are all nationals of Germany, another member. Other Council of Europe members central to the MH17 situation are the Netherlands – because the flight originated at Amsterdam’s Schiphol airport – and Russia.
Should the European Court of Human Rights find Ukraine liable for a breach of the convention, Ukraine will be bound by that judgment. The committee of ministers of the Council of Europe monitor the execution of judgments by countries subject to them, including compliance with any orders to pay damages to complainants.
However, the European Court of Human Rights and the Council of Europe both lack enforcement capacity within the domestic jurisdiction of members, and would rely on diplomatic pressure to compel compliance with a judgment. Such pressure may be more or less effective depending on the status, power and political stance of a given member.
Prospects of success
Skinner has called on Australia to support the Ayler application. Bishop has responded that such litigation is a private matter for the families involved and those they are taking action against.
Bishop’s position is that Australia’s role is to support the ongoing investigation into the causes of the incident and then to pursue a justice mechanism with other countries.
It is important to note that Australia has no standing to join any action before the European Court of Human Rights, as it is not a member of the Council of Europe. However, Skinner argues Australia could exert diplomatic and political pressure to support the action.
Unfortunately for the families engaged in the European Court of Human Rights applications, litigation before that court appears to be a very indirect and unreliable route to gain compensation for the loss of their loved ones.
In the case against Ukraine, beyond the as-yet-uncrossed jurisdictional barriers, it may be necessary to prove that Ukrainian authorities knew of a direct threat to those on board MH17. This is a much more difficult standard to prove than a general awareness of threat to any civilian aircraft.
In action against Russia, setting aside the considerable jurisdictional issues and matters of proof, there is a major added barrier to satisfaction for the applicants. Russia has passed a law permitting it to overrule the decisions of international courts.
The Russian Constitutional Court subsequently ruled that Russia is permitted to overrule international judicial decisions where these would conflict with the Russian Constitution.
Russia disputes the preliminary findings of the ongoing MH17 investigation and rejects suggestions of its responsibility for the atrocity. This suggests that Russia would not accept responsibility for any finding of human rights violations by the European Court of Human Rights.
From an international law perspective, the stakes of such an action are higher for Russia than human rights litigation launched by victims’ families. However, Russia’s response is likely to be the same. While the International Court of Justice has progressed the case beyond the initial stage, a finding against Russia may well be disputed and any orders ignored.
It is now more than three years since Malaysia Airlines flight MH370 disappeared, and there is growing evidence that the search authorities have been looking for the aircraft in the wrong place.
The disappearance, on March 8, 2014, is considered as one of the biggest mysteries in aviation and the search of the seabed for the wreckage, costing A$200 million to date, is also the most expensive.
An underwater search of a 120,000 square kilometre area of the Indian Ocean, off Western Australia, has so far failed to find any evidence of the crash site.
The search was suspended in January this year until any “credible new information” should emerge that could be used to identify the specific location of the aircraft.
Initial search data
Initial evidence on the aircraft flight path was through satellite data (SatCom) from Inmarsat. This indicated that the plane most likely ended up in the southeast Indian Ocean along an arc – the 7th arc – that was the basis for defining the search areas by the Australian Air Transport Safety Board (ATSB).
Considering several end-of-flight scenarios, the ATSB defined the original search area of 120,000 square kilometres as being 40km either side of the SatCom 7th arc along a distance of 700km between latitudes 39.3°S and 36°S.
This search area was defined before any debris had been found in the eastern Indian Ocean, and was based only on the SatCom data. No oceanographic evidence was available at the time the search area was defined.
The ATSB initially announced that the first possible landfall of debris would be on the west coast of Sumatra, Indonesia, in the first weeks of July 2015. Subsequent to the finding of debris in the eastern Indian Ocean it was found that the oceanographic advice provided to the ATSB (not by the CSIRO) was incorrect.
More aircraft debris has been found in the western Indian Ocean: in Mauritius, Tanzania, Rodrigues, Mauritius again, Madagascar, Mozambique and South Africa.
The ATSB undertook a first principles review in November 2016 and based on additional information, particularly from oceanographic drift modelling, concluded that the 120,000 square kilometre search area was unlikely to contain the missing aircraft.
The ATSB also reported that oceanographic debris modelling undertaken by the CSIRO provided strong evidence that the aircraft was most likely to be located to the north of the search area between latitudes 32.5°S and 36°S along the 7th arc within an area of 25,000 square kilometres close to 35°S.
CSIRO released an updated report on April 21 this year with more refined modelling of the flaperon, based on field tests using an actual Boeing 777 flaperon.
This confirmed the conclusion of the first principles review that the crash site is most likely at the southern end of the 25,000 square kilometre region near 35°S. CSIRO defines the error to be within 100km, which is 1° of latitude.
Many independent oceanographic studies using different oceanographic (for current fields) and debris transport models have reached similar conclusions with respect to the location of the crash site.
They have all concluded that the crash site is not in the initial 120,000 square kilometre search area, but further north. A European study placed the crash site between 28°S and 35°S, and our study puts it between 28°S and 33°S.
Since the flaperon was discovered on Reunion Island, more pieces of debris have been found – many confirmed to be from MH370 and others to be from a Boeing 777, the aircraft design used for the flight.
The locations of these debris finds are consistent with oceanographic drift modelling. These predictions guided the discovery of many pieces of debris by US lawyer and amateur investigator Blaine Gibson and next-of-kin in Mozambique and Madagascar.
Of the 22 pieces of debris found the location of 18 were predicted by our UWA model. Those not predicted were in Mauritius and Rodrigues Islands which may not be well represented in the oceanographic model. The debris origin for this was at 96.5°E and 32.5°S along the 7th arc.
Thus based on the results of several independent oceanographic drift modelling studies that have used different oceanographic models to predict the current fields and including different debris transport modules, all have come to a similar conclusion to that of the ATSB’s first-principles review: the crash site is along the 7th arc 32.5°S and 36°S within an area of 25,000 square kilometres.
This area is immediately to the north of the 120,000 square kilometre region that has already been searched.
From an oceanographic viewpoint this is the best “credible new information” the search authorities have asked for that could be provided on the location of the MH370 crash site.
As oceanographers we have been using drift modelling for variety of applications for more than two decades and have high confidence in the results.
Thousands of protesters are expected to take to the streets of Kuala Lumpur and other Malaysian cities on Saturday to call for the resignation of Prime Minister Najib Razak.
Popular discontent with Najib’s leadership has rapidly escalated since early last month, when an exposé in The Wall Street Journal revealed that his private bank accounts held over $700 million in funds purportedly siphoned off a struggling state investment fund called 1Malaysia Development Berhad.
Najib has firmly denied malfeasance and penalized those who have alleged it. He has threatened to sue the Journal for libel; more controversially, he sacked his deputy prime minister, Muhyiddin Yassin, in a cabinet reshuffle in late July after Muhyiddin called for transparency in the matter.
Today’s planned rally, which the authorities have deemed unlawful, is the latest exercise in political discontent within this once-promising Southeast Asian state. The engine of this discontent is an unofficial pro-democracy…