Mainstream, VOL LII No 37, September 6, 2014
Is Russia legally responsible in downing the Malaysian airliner?
Saturday 6 September 2014
by Anwar Sadat
Does the incident of the downing of the Malaysian Airlines Boeing 777 MH-17 on July 18, 2014, flying from Amsterdam to Kualalampur, by the pro-Russian rebels operating along the Russian-Ukrainian border resulting in the death of all the 298 persons on board, including crew members, involve Russia’s international legal responsibility? The incident of unspeakable death and destruction has evoked criticism by the US President, Barrack Obama, and several European Union leaders. The rebels, who downed the MH-17, are alleged to be armed and supported by the Russian state. It is alleged that the missile that was used to down the plane was the heavy Soviet era (surface-to-air) missile. According to the US officials, intelligence showed the missile batteries used in the attack were returned to the Russian soil shortly after the jetliner crashed. The wreckage at the site of the incident and the debris bear signs of the supersonic missile.
Of course, the downing of the passenger carrier was neither a consequence of armed conflict between Russia and Ukraine nor between Russia and Malaysia. But still there are judicial prece-dents, customary norms, and the international rules on state responsibility that merit serious attention to test Russia’s international responsi-bility. One of the widely accepted customary norms of state responsibility is that states are not allowed to use their territory in such a manner which results in trans-boundary harm. It is a consequence of state sovereignty that a state should know what is going on inside the territory which it controls or falls within its territorial jurisdiction. The rules covering state responsibility codified into the draft articles on Responsibility of States for Internationally Wrongful Acts 2001 provide that “every internationally wrongful act of a State entails the international responsibility of that state”. Article 8 of the Draft Articles says that the conduct of a person or group of persons shall be considered an act of a state under international law if the person or group of persons is in fact on the instructions of, or under the direction or control of, that state in carrying out the conduct.
The responsibility arises from a conduct, an action, or an omission that (1) is attributable to that state under international law and (2) consti-tutes a breach of an international obligation of the state. Article 12 explains that such a breach occurs when an act of a state is not in conformity with what is required of that state by the particular obligation in question, regardless of its origin or character. Whether a country is in breach or not has to be judged in this context from Article 2(4) of the UN Charter obligation, which clearly says that “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” By training arming and supplying latest arms to the rebels, Russia bore responsibility under Article 2(4) of the UN, which is also breach of the customary rule of international law.
The Nicaragua Test
States are commonly using private persons or entities for performing public functions. As the state has employed these private actors to exercise, in its place, elements of the governmental authority, the former must bear responsibility for such actors. When the relationship between the state and private actors is formal—for example, there is a contract or legislative act in place—no dispute concerning responsibility usually arises, provided that the person or entity acted in an official capacity in the instance in question. However, state responsibility becomes complicated when a state is using private actors who are neither employees nor organs of that state but are still acting informally as its agents. In fact, this should not change the position of the state. It would be imprudent to deny state responsibility for private conduct in circumstances where it is clear that the state is using the private actors as its de facto agents.
The major difficulty involves the link that must be established in order to transform acts of private actors into the acts of de facto state agents. In the legendary Nicaragua case, where the International Court of Justice (ICJ) had to decide whether the United States was responsible for the paramilitary Contras operating in Nicaragua, it was clear from the evidence that the Contras were a proxy army for the United States and could not have existed without its financing and support, but the ICJ still concluded that their acts were not attributable to the United States. In this case, the ICJ formulated what has now become the classic effective control test for determining link between states and private actors. The ICJ took the view that the United States participation, even if preponderant or decisive, in the financing, organising, training, supplying and equipping of the Contras, the selection of targets, and the planning of the whole of its operation, is still insufficient in itself for the purpose of attributing to the United States the acts committed by the Contras. For this conduct to give rise to legal responsibility of the United States, the ICJ said, it would in principle have to be proved that the state had “effective control” of the military or paramilitary operations in the course of which the alleged violations were committed.
The Tadic Test
The rigid formulation laid down by the ICJ in the Nicaragua case was softened somewhat by the Appeals Chamber of the International Criminal Tribunal for former Yugoslavia (ICTY) in the Tadic case. In Tadic, the Appeals Chamber held that the trial court erred in relying on the ICJ’s “effective control” test, reasoning that the test was contrary to the very logic of “state responsibility”, and that it was inconsistent with state and judicial practice. The ICTY concluded that states need only exercise “overall control” over private armed groups to attribute to the state responsibility for any unlawful acts of the group.
Although the “overall control” test applied in Tadic did indeed lower the threshold for imputing private acts to states when compared to the ICJ rule, the touchstone of both the approaches is that the states must direct or control—rather than simply support, encourage, or even condone—the private actor. It is important to recall that these tests are, after all, designed to define the circumstances in which private actors are de facto agents or instrumentalities of the state. The issue is, therefore, whether the private acts in question are, as a formal matter, attributable to the state, and not whether the state is simply complicit in some unlawful conduct. That is, the traditional approach, common to the Draft Article 8, the ICJ’s “effective control” test, and the ICTY’s “overall control” test- imputes to states only those unlawful acts committed on behalf of the state.
In the case of the downing of the Iranian Airbus 655 by the USS Vincennes on July 3, 1988, the United States agreed to pay compensation directly to the victims of the aerial incident. In the Iranian Airbus 655 case, the US warship, an instrumenta-lity of the state, was directly involved. In the light of the growing incidents involving rebels—armed, aided and abetted by one state against another state—indulging in gruesome and heinous acts, states should cooperate to develop international law regarding liability and compen-sation for the victims of such incidents.
Dr Anwar Sadat is an Assistant Professor (Senior) of International Law at the Indian Society of International Law, New Delhi. He can be contacted at firstname.lastname@example.org