Netherlands & Australia Lawsuit against Russia over MH17: Will Justice Be Served?

The Netherlands and Australia have commenced legal proceedings against Russia before the International Civil Aviation Organisation (ICAO) over the MH17 disaster.

In light of a rapidly deteriorating relationship between Russia and the Western world, Australia and the Netherlands are now pressuring Russia to own up to its responsibility over the 2014 incident.

Background to the MH17 disaster

We are all familiar with the disaster that occurred on 17 July 2014.

Malaysia Airlines Flight MH17 was flying from Amsterdam to Kuala Lumpur, and entered the airspace over Ukraine’s eastern region where an armed conflict was occurring.

Before it could reach its destination, a Buk surface-to-air missile was launched from pro-Russian territory within Ukraine and collided with the aircraft. 298 passengers on flight MH17 lost their lives – most were Dutch, Australian, and Malaysian nationals.

The Netherlands commenced their own independent investigation and found that the missile originated from the Russian Federation. It was fired from Donetsk, known to be home to separatists with ties to Russian brigade operations.

At the time, Avlaw Managing Director Ron Bartsch questioned whether Malaysia Airlines should have been flying over this territory in the first place.

Bartsch: “Unusual” proceedings against Russia in ICAO

The proceedings before ICAO are unusual.

Australia, Russia and the Netherlands are all parties to the 1944 Chicago Convention. This is the international convention that established ICAO to govern international civil aviation.

However, lawsuits such as this one are normally commenced in domestic courts of law. ICAO does not routinely settle disputes like this.

Bartsch wrote in The Conversation that ICAO is a “bit of a toothless tiger” when it comes to these kinds of disputes, because ICAO does not have power to compel states to comply with any decision it makes.

Will justice be served?

The Australian Government, nevertheless, has stated that the proceedings are still necessary to hold Russia accountable for the tragic MH17 incident in 2014.

Australian Attorney-General Michaelia Cash said that ICAO is the “sole body” with jurisdiction to deal with the matter.

In 2020, Russia chose not to negotiate with Australia over paying compensation to the bereaved families of the disaster.

So Australia has now asked ICAO to order that the parties enter negotiations to resolve the matters of “full reparation” for the injury caused by Russia’s breach of the Chicago Convention.

ICAO is effective in facilitating nation states to follow global standards and recommended practices on matters of technical aviation regulation. This is what the organisation is known for, and it is universally considered to be remarkably successful at this type of work.

But it is unfamiliar in dealing with highly politicised disputes such as the MH17 disaster.

ICAO can threaten to suspend Russia’s voting rights in the ICAO Council. But Bartsch said that Russian President Vladimir Putin is “unlikely to care” much about this.

You can read Ron Bartsch’s full article in The Conversation here.