| by Ruwantissa Abeyratne

( August 20, 2014, Montreal, Sri Lanka Guardian) In April, I wrote in this journal on the subject of state responsibility for terrorist acts of individuals. However, I did not address the issue of State responsibility for terrorist acts of rebels in a conflict zone. This piece is about State control and accountability in war times.

I have already written a few articles in this journal on the subject of Flight MH 17 and presumably the reader knows well by now the incident, not to be given another tedious description. However, the claim by some that Ukraine should take responsibility for the destruction of the aircraft which operated flight MH 17 may deserve some consideration. To seek an answer to the question, one must first look at some incontrovertible facts and established principles.

First, the destruction took place over Ukrainian airspace. Second, the airspace was over a territory which, although it is in Ukraine, was a conflict zone at the time. Third, the claim against Ukraine and its responsibility is not based on direct aggression but rather on Ukraine’s lack of control of air navigation services over its territory. Fourth, there is a regime of State responsibility at international law that may be directly relevant to the cruel, unfortunate and sad event.

State responsibility is a fundamental principle at public international law and establishes that if a State commits an internationally unlawful act against another State, the former must make reparation for injuries or damage caused to the latter. In the MH 17 incident, the question that would arise is whether Ukraine has the responsibility to make reparation for the damage caused to a Malaysian registered aircraft and the death of its passengers (it must be noted that the air carrier is liable for damage caused as a result of death or injury to passengers if the accident which caused the damage occurred on board or in the process of embarkation or disembarkation. Since Flight MH 17 operated between the Netherlands and Malaysia, the application of this Convention would depend on the ratification of the treaty by both parties. The Netherlands ratified the treaty on April 29 2004 and Malaysia ratified it on December 31 2007).

Technically, according to the Chicago Convention of 1944 which contains details of obligations of States in civil aviation, Ukraine and its people were obligated to make every effort to refrain from using force against the Malaysian aircraft. One could argue that, in the exercise of its sovereignty, Ukraine should have required the landing of Flight MH 17 at some designated airport If Ukraine believed that the aircraft was flying above its territory without authority or if there were reasonable grounds to conclude that it was being used for any purpose inconsistent with the aims of the Convention, it was also entitled to give such aircraft any other instructions to put an end to such violations. For this purpose, Ukraine could have resorted to any appropriate means consistent with relevant rules of international law, including the relevant provisions of the Chicago Convention. Also, Ukraine was required to specifically publish its regulations in force regarding the interception of civil aircraft.

Responsibility of States for the provision of air navigation services in their territories is founded in principles contained in the Chicago Convention of 1944. However, it must be noted that this is not an absolute obligation as the State is called upon to provide such services only in so far as it finds practicable to do so (my emphasis).

Ukraine could anchor itself on this parenthesis, that armed separatist groups had taken over the territory over Donest Oblast in Eastern Ukraine where the aircraft was shot down, and Ukraine was therefore not in control and that it was not practicable to ensure with certainty the safety of aircraft flying over what was deemed to be a “conflict zone". These armed separatist groups were in full control of the crash site, even preventing international investigators from entering the site which prompted the United Nations Security Council to unanimously adopt Resolution 2166 (2014)calling on those controlling the MH17 crash site to allow unfettered access to international investigators. It must be noted in this context that the Chicago Convention provides that in case of war (which is a state of armed conflict between different nations or states or different groups within a nation or State), the provisions of the Convention do not affect the freedom of action of any of the contracting States affected, whether as belligerents or as neutrals. The same applies in the case of any contracting State which declares a state of national emergency and notifies the fact to the Council. It is therefore arguable that the Chicago Convention would not apply to Ukraine in the circumstances of Flight MH 17.

In 2001 the International Law Commission (ILC) adopted text on Responsibility of States for Internationally Wrongful Acts at its fifty-third session, and submitted the text to the General Assembly of the United Nations as a part of the Commission’s report covering the work of that session. The Report was accompanied by a draft general principles which stipulate that every internationally wrongful act of a State entails the international responsibility of that State and that there is an internationally wrongful act of a State when conduct consisting of an action or omission: is attributable to the State under international law; and constitutes a breach of an international obligation of the State. The conduct of any State organ, according to these principles, is considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. An organ is deemed to include any person or entity which has that status in accordance with the internal law of the State.

The conduct of a person or entity which is not an organ of the State but which is empowered by the law of that State to exercise elements of the governmental authority is considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance. The conduct of a person or group of persons is considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

The claim that Ukraine should take responsibility since its air traffic controllers (under the control of Ukraine) did not warn Flight MH 17 of the danger of flying over the particular airspace in which it was shot down, has to be examined in the context of the above provision of the ILC principles. In the 1986 Nicaragua case, the International Court of Justice opined that, if the order for the Contra guerrillas to conduct themselves in the manner in which they did could be attributable or even imputable to the United States (which financed and equipped the Contras), it would have to be proved that the US had effective control of the Contras' military or paramilitary operations. General or overall control would not have been sufficient to find the US accountable or responsible.

In the 1990 Rainbow Warrior Arbitration between France and New Zealand the arbitral tribunal noted that international law did not distinguish between tortious or contractual responsibility, which in turn led to the conclusion that if any State were to violate its obligation, of whatever origin or nature, such violation would give rise to a duty of reparation. Malcolm N. Shaw, Professor of International Law at the University of Leicester says: " The essential characteristics of responsibility hinge upon certain basic factors: firstly, the existence of an international legal obligation in force as between two particular States; secondly, that there has occurred an act or omission which violates that obligation and which is imputable to the State responsible, and finally, that loss or damage has resulted from the unlawful act or omission.

A significant factor to be taken into account in the consideration of liability and responsibility of Ukraine is that, if as Ukraine, which seemingly acted in good faith and without negligence, and assuming that the missile fired at the aircraft was fired by rebels and not Ukrainian armed forces, Ukraine would not be liable, provided it shows that it exercised due diligence. Shaw is of the view that it is difficult to quantify what is meant by due diligence, which is easier defined in the negative.

As the above discussion reflects, one could argue either way as to the ultimate responsibility of Ukraine. However, it is indisputable that the principles that apply to liability and responsibility of States are embodied in globally established principles, treaties and case law. One has to argue Ukraine’s case with regard to MH 17 against this backdrop.

The author is an aviation consultant and former senior lawyer at the International Civil Aviation Organization