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International Responsibility tutorial notes week 1 - 7
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Very comprehensive and clear tutorial assignments week 1 - 7 (incl. notes taken during the tutorial).
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International responsibilityTutorial I: the concept of international responsibility & problems of attribution of conduct
Scenario 1: The MH17 plane crash
In April 2014, hostilities erupted in Donetsk, Ukraine between Ukrainian Security Forces and pro-Russia
militants who supported unification with the Russian Federation. In a televised national address,
interim President of Ukraine Turchynov stated that the unrest was part of an operation by Russia to
‘destabilize’ and ‘dismember' Ukraine.
On 17 July 2014, Malaysia Airlines Flight 17 (MH17), scheduled from Amsterdam to Kuala Lumpur,
crashed in the Donetsk region, resulting in the loss of 298 lives. At the time of the crash, the Donetsk
region was under the control of the Donbass separatists. Immediately after the crash, a post appeared
on the social media profile of former Russian Colonel Igor Girkin, leader of the Donbass separatists,
claiming responsibility for shooting down a military airplane. Once it became known that the airplane
was civilian, the post was taken down and the separatists denied any involvement in the incident.
The state of Ukraine delegated the investigation of the crash to the Dutch Safety Board (DSB).
According to the DSB Final Report (published in October 2015) the in-flight disintegration of the
airplane was the result of the detonation of a 9N314Mmodel warhead carried on missiles, as installed
on the BUK surface-to-air missile system. It is commonly known that the BUK system has been initially
developed by the Soviet Union and that the primary constructor of the system nowadays is the Russian
Federation.
The Ukraine government has openly accused the Russian Federation and urged that the Russian
government be held responsible for the downing of the MH17 by pro-Russian separatists. These
statements come after Ukraine officials and news sites published images and footage allegedly
showing the presence of at least one BUK surface-to-air missile system in a town near the crash site,
controlled by pro-Russia separatists. According to a U.S. intelligence official, following the crash, pro-
Russia separatists were ‘trying to move back into Russia at least three Buk [missile] systems’. Former
US Secretary of State John Kerry has later gone on record stating that it is ‘pretty clear that this is a
system that was transferred from Russia into the hands of the separatists.’
In September 2016, a Joint Investigation Team (JIT) formed by the Netherlands, Australia, Malaysia,
Belgium and Ukraine for the purpose of criminally prosecuting individual perpetrators of the downing
of flight MH17, confirmed that the BUK missile was launched from the Donetsk region. In May 2018,
the JIT presented evidence for its finding that the BUK missile that shot down flight MH17 originated
from Russia’s 53rd Anti-Aircraft Missile Brigade, a unit of the Russian army. On the basis of this report,
the Dutch Public Prosecution Service engaged in further extensive research on the origin of the missile.
It found strong evidence that the missile in question was the BUK-TELAR 3X2, indeed belonging to the
Russian army. The Dutch Public Prosecution Service has repeatedly asked the Russian federation for
information on the whereabouts of BUK 3X2 between 23 June and 23 July 2014. To date, Russia has
failed to respond to these requests.
On 19 June 2019, the Dutch Public Prosecutor decided to prosecute four suspects that were allegedly
involved in the downing of flight MH17. This prosecution concerns three Russian nationals with a
military background and one Ukrainian national, Igor Girkin, Sergey Dubinskiy, Oleg Pulatov, and
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,Leonid Kharchenko. The trial began in the Netherlands during March 2020. New evidence has come to
light throughout the course of these trials, including phone recordings of the four suspects. Amongst
others, these recordings confirm that the BUK missile system returned to Russia after the attack and
indicate that both Girkin and Dubinsky were in contact with Moscow on the day of the attack.
Russia has denied all allegations of involvement. On the contrary, it has accused Ukraine of failing to
secure the safety of aviation within Ukrainian airspace.
Assume for the purpose of this Assignment that Ukraine is considering bringing an application before
the International Court of Justice against the Russian Federation specifically in respect of the MH17
crash, complaining that the Russian Federation violated its international law obligation to refrain from
the use of weapons against civil aircraft in flight, thus resulting in the loss of 298 lives within its
territory. For present purposes, you may simply assume that such a case would fall within the
jurisdiction of the Court.
What are the relevant facts?
The act concerned is the downing of the MH17 using missiles. It happened on the territory of the
Ukraine, which was under the control of the Donbass separatists. The downing of the MH17 was
committed by the separatists, so it is their acts that needs to be attributed to Russia in order to hold
Russia responsible for this act.
What is the relationship between the separatists and Russia?
The separatists are acting under the instructions of Russia (art. 8 ARSIWA).
- The separatists act under the instructions of or under the direction or control of the state in
carrying out the particular conduct.
- The ICJ uses the effective control test to fill in the requirement of control with these factors:
the notion of partial dependence (the state need not have created the entity, but the state
gives military support, financial support), control over particular conduct.
Russia acknowledged the acts of the separatists (art. 11 ARSIWA).
- The state acknowledged the conduct as its down.
- In ICJ Tehran hostages the ICJ ruled that the leaders of Iran maintained the situation and
endorsed the invasion after the attack.
- There is a high threshold that needs to be met in order to establish that a state acknowledges
the acts.
The separatists can be categorized as de facto state organs (art. 4(2) ARSIWA and ICJ Nicaragua).
- Art. 4 ARSIWA does not recognize the existence of de facto organs, so it does not codify the
ICJ decision. However, it does not exclude de facto organs, hence you refer to art. 4(2) ARSIWA
and ICJ Nicaragua in the case of de facto state organs.
- Based on ICJ Nicaragua, the ICJ used the strict control test with these factors: the notion of
complete dependency (the state is involved in the creation and maintaining the existence of
the organ depends on the state), the dependency extends to all activities, the state actually
used the control to act through the entity.
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, o The purpose of the strict control test is to say that the entity that fulfills all these elements
is effectively an organ of the state. So, it has the same status as de jure organs of the state.
o The strict control test has an exceptionally high threshold because entities are considered
de facto organs of a state and while doing that the ICJ has to respect the state’s
sovereignty.
o If it is an organ all of its acts (whether ultra vires or not) can be attributed to the state.
à NB: it hasn’t been put to use that much.
Question(s)
1. Will the ICJ hold the Russian Federation responsible for the shooting down of flight MH17, and if
so, why?
This question concerns the doctrine of international responsibility of states. Art. 1 ARSIWA
provides that every internationally wrongful act of a state entails the international responsibility
of that state. Art. 2 ARSIWA sets out the elements of an internationally wrongful act of a state:
there is an internationally wrongful act of a state when conduct consisting of an action or omission
(a) is attributable to the state under international law and (b) constitutes a breach of an
international obligation of the state. The question is whether the Russian government can be held
responsible for the downing of the MH17 by pro-Russian separatists.
Attribution of the conduct to a state:
Investigations have shown that MH17 was shot down with a BUK missile from the Russian military
from Donetsk, an area controlled by Donbass pro-Russian separatists. This group of separatists
cannot be classified as de jure organs of Russia within the meaning of art. 4 ARSIWA, nor did it
exercise any elements of governmental authority as referred to in art. 5 ARSIWA.
However, the separatists could be categorized as de facto state organs (art. 4(2) ARSIWA and ICJ
Nicaragua). The existence of the group of separatists is dependent on Russia. It can be assumed
that the dependence extends to all of the acts of the separatists. But it does not meet the high
threshold and it can be concluded that the separatists are not de facto state organs.
Another basis for attributing the acts (the downing of MH17) of the separatists to Russia is art. 8
ARSIWA according to which the acts of a person or a group of persons shall be 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 ICJ
introduced the effective control test to determine whether the acts of persons or a group of
persons are under the direction or control of a state. For the internationally wrongful conduct of
the secessionist entity to be attributed to the outside power, it must be shown that organs of the
outside power exercise ‘effective control’ of the particular operation or activity in the course of
which the conduct has been committed (see Talmon, p. 503). The ICJ confirmed that a general
situation of dependence and support would be insufficient to justify attribution of the conduct to
the state. Phone recordings of the four suspects also show that the BUK missile system returned
to Russia after the attack and indicate that both Girkin and Dubinsky were in contact with Moscow
on the day of the attack. Again, this demonstrates strong links between the separatists and Russia.
It is common knowledge that the BUK system is nowadays constructed by Russia and evidence
shows that such a system was present near the crash site. In addition, former US Secretary of State
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