Australia has launched legal action to hold Russia accountable for the downing of Malaysia Airlines flight MH17, but analysts say the families of victims shouldn’t expect closure anytime soon.
The federal government and the Netherlands on Monday initiated the legal proceedings through the United Nations body known as the International Civil Aviation Organization (ICAO).
The specialised agency monitors air transport logistics on behalf of 193 nations, including holding avenues of dispute resolution, such as arbitration.
The fresh complaint from Australia and the Netherlands is an attempt to force Russia back to the negotiating table over compensation payments to victims' families.
Russia withdrew from negotiations with these nations in October 2020, but now faces the prospect of penalties being imposed by the ICAO.
The latest legal action has renewed the spotlight on the MH17 incident, which was shot down by a missile fired by pro-Russian rebels while flying over eastern Ukraine in July 2014.
But Donald Rothwell, professor of international law at the ANU College of Law, has moved to quell expectations over the prospect of a quick resolution to the complaint.
“Ultimately, Australia and other countries like the Netherlands will need to play a very long game in making Russia accountable for this,” he said.
“I don’t think we can expect any quick resolution of this matter and it may not be [progressed] until the Ukraine crisis settles down.”
Attorney-General Michaelia Cash said the Australian government is seeking a formal declaration from Russia over their responsibility for the incident.
“We want them ordered to return to the negotiating table and we want their voting rights on this council suspended until we get a satisfactory outcome,” she told Channel Seven’s Sunrise.
“The Australian government has always been very, very clear. We will not stop until we get justice for all of those victims.”
What action has been taken so far?
A joint investigation team in 2018 confirmed a Russian missile was used to shoot down the plane, but Russia has refused to take responsibility.
All 298 people on board, including 38 Australians, died in the attack.
In 2020, Russia’s foreign ministry said it was abandoning negotiations with the Netherlands and Australia, saying they were not genuinely interested in establishing the truth about what happened.
Four suspects have been charged over the firing of the missile, including three Russians — Sergei Dubinsky, Oleg Pulatov and Igor Girkin — and Ukrainian Leonid Kharchenko.
It has been alleged the accused did not “push the button” themselves but were responsible for bringing the anti-aircraft system to eastern Ukraine.
ICAO has previously expressed deep regret over the downing of MH17, and supported the Dutch investigation into the crash, but has not been asked to determine who was responsible.
Professor Rothwell said a clear distinction needed to be drawn between previous investigations into the incident and the new complaint.
“[This process] involves international legal mechanisms to seek to make Russia accountable under international law under the principle of what’s called state responsibility,” he said.
“There is a strong prospect that Russia will neither accept the legitimacy of this process, or it might work with other ICAO council members to stall this process.”
How will the ICAO action work?
The ICAO agency includes holding protocols aimed at preventing the use of military force being used against civilian airliners in national airspace.
This includes outlining the obligation of states to refrain from resorting to the use of weapons against civil aircraft in flight.
Joseph Wheeler, legal practice director of the International Aerospace Law & Policy Group, said the legal action was welcome but overdue.
“I don’t know that Australia has been served by the timing of this action,” he said.
“But then again timing aside it is a necessary action for Australia and the Netherlands to get justice for the victims of the families that are killed."
The agency could also have the power to effectively impose an economic sanction on Russia, by preventing other countries’ airlines from flying over Russian airspace, Mr Wheeler said.
This means fees from the airlines would no longer be paid to Russia.
The latest legal action is being made under article 84 of the Chicago Convention, which means the legal proceedings could be further appealed at the International Court of Justice.
Mr Wheeler has questioned why the avenue wasn’t pursued before the invasion of Ukraine, fearing this could undermine its prospects of securing an outcome.
“I’m pessimistic, ultimately that there will be a resolution from this, that families of the victims will be satisfied with, or that Australia and the Netherlands are satisfied with.”
