- - Sunday, July 20, 2014

The Russian Federation and its agents may face civil and criminal liability if it is proved that the Kremlin or its operatives supplied the missile that Ukrainian separatists are suspected to have used to shoot down Malaysia Airlines Flight 17.

Pro-Russia separatists reportedly have taken custody of the jetliner’s black box and removed bodies from the wreckage while obstructing international investigators, creating a potential evidentiary problem because jurisdiction of the crash investigation belongs to Ukraine.

If those responsible for the crash are confirmed, civil lawsuits and criminal prosecutions may arise. Because the crash implicates foreign states, their agents and victims’ families, issues such as jurisdiction, extraterritoriality and extradition could be complicated.

James Feinerman, associate dean for International and Transnational Programs at the Georgetown University, told The Washington Times that if it is proved that the Russian Federation supplied the missile that shot down Flight 17, it could be held accountable despite “sovereign immunity,” the doctrine under international and most nations’ domestic laws that generally protects governments from tort liability.

“If it is decided that it was a war crime or even a quasi-war crime, there is universal jurisdiction so any country could bring a suit anywhere,” Mr. Feinerman said. “If another nation state sues the Russian Federation, they could take that to the international court in The Hague, but they would have to accede to jurisdiction.

“The Russian Federation could also be accountable in a U.S. court if it is determined that the separatists got the missile as part of a commercial transaction since the U.S. does not protect acts that come from commercial transactions.”

Moscow was sued in U.S. District Court over the 1983 shootdown of Korean Air Lines Flight 007, which strayed off course and neared Soviet airspace. In that case, the U.S. court dismissed the lawsuit against the U.S.S.R. on the grounds of sovereign immunity, but found Korean Air Lines liable for “willful misconduct” because its pilots had flown off course.

Prosecuting and suing individuals can be even more complicated than suing a state because of extradition and enforcement issues.

“There are two problems. Getting jurisdiction over individual defendants who won’t come willingly although Interpol can try to grab them,” Mr. Feinerman said. “The other thing is determining where a judgment is going to be enforced.”

The most similar case to Malaysia Airlines Flight 17, Mr. Feinerman said, is Pan-Am Flight 103, which exploded over Lockerbie, Scotland, in 1988.

Jay Stephens, a former U.S. attorney for the District of Columbia who worked on the Lockerbie matter, identified some of the jurisdictional issues in that case:

“Pan Am 103 was flying over Scotland when the bomb onboard exploded. The investigation determined that the bomb had been planted in luggage in Malta on a plane bound for Frankfurt and then transferred to Heathrow and loaded onto Pan Am 103 bound for the U.S.,” he said. “Most of the passengers onboard were American, many of them returning home for Christmas vacation. There were also a number of Scottish victims on the ground when the plane crashed. The U.S. asserted extraterritorial jurisdiction because of the significant U.S. interests at issue.”

The two suspects were Libyan, and it took several years to effectively extradite them because Libya had no bilateral agreement with the U.S. or the United Kingdom. Since the world court has no guaranteed authority to carry out a criminal sentence, Scottish authorities charged the two defendants in a special Scottish High Court of Justiciary established at an unused U.S. Air Force base in the Netherlands.

“The investigation was a cooperative global law enforcement effort with significant collaboration between Scottish and American prosecutors and law enforcement,” Mr. Stephens said.

Under international law, the “state of occurrence” — in this case Ukraine — may delegate all or part of its investigation to another country such as the U.S.

Kenneth Button, an aviation policy professor at George Mason University’s School of Policy, Government and International Affairs, said Ukrainian authorities may delegate part of the investigation to others.

“Typically, a country like the Ukraine probably does not have the expertise for this kind of investigation. We’re talking about a country that is small, not very wealthy and does not expect to have a plane shot down in its territory,” he said. “They will probably invite other third parties and countries who have expertise to participate in the investigation.”

Jeffrey Scott Shapiro is a legal analyst for The Washington Times.

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