¹ The Hague District Court, ECLI:NL:RBDHA:2022:14039, Nov. 17, 2022, https://www.rechtspraak.nl.

² For the sake of clarity, the following should be mentioned: Agreement between the Kingdom of the Netherlands and Ukraine on International Legal Cooperation regarding Crimes connected with the Downing of Malaysia Airlines Flight MH17 on July 17, 2014, July 7, 2017, Tractatenblad van het Koninkrijk der Nederlanden [Dutch Treaty Series] 2017, no. 102, https://wetten.overheid.nl/BWBV0006683/2018-08-28.

³ Application of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (Ukraine v. Russian Federation) (Application Instituting Proceedings), Jan. 16, 2017 (ICJ Reports 2017).

⁴ The Articles on State Responsibility envision two avenues by which it is possible to determine the responsibility of the wrongdoing State: a) invoking its responsibility; b) applying the so-called countermeasures pursuant to arts. 49–54. Cf. International Law Commission, Responsibility of States for Internationally Wrongful Acts, 2001.

⁵ See, respectively, arts. 24 ICSFT and 22 ICERD.

⁶ Application of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (Ukraine v. Russian Federation) (Judgment) Nov. 8, 2019 (ICJ Reports 2019). Other claims brought by Ukraine relate to the following: a) the shelling of civilians, including in Volnovakha, Mariupol, and Kramatorsk; and b) the bombing of civilians, including in Kharkiv.

⁷ Ibid., para. 19. It should be noted that the offenses referred to under the ICSFT are those regulated by arts. 2(1)(a) and (b).

⁸ Art. 18 stipulates that “States Parties shall cooperate in the prevention of the offences set forth in article 2 by taking all practicable measures, inter alia, by adapting their domestic legislation, if necessary, to prevent and counter preparations in their respective territories for the commission of those offences within or outside their territories.” (emphasis added).

⁹ Application of the International Convention (n6), para. 46.

¹⁰ Ibid., para. 42.

¹¹ Ibid., paras. 43 and 44. The Russian Federation took the position that the ICSFT is a “law enforcement instrument.” To defend such a claim, the Respondent considered the text of the convention alongside its structure and preparatory works.

¹² Ibid., para. 45.

¹³ However, the Netherlands attempted to bring the question before international tribunals, such as the European Court of Human Rights (ECtHR). See “The Netherlands brings MH17 case against Russia before European Court of Human Rights,” News (July 10, 2020), https://www.government.nl/latest/news/2020/07/10/the-netherlands-brings-mh17-case-against-russia-before-european-court-of-human-rights. In January 2023, the Strasbourg-based court announced that it will hear the case on the merits stage. See ECtHR, Eastern Ukraine and flight MH17 case declared partly admissible, Press Release ECtHR 026 (2023).

¹⁴ The Hague District Court, (n1) paras. 6.2.2; 6.2.2.2.; 6.2.2.3; and 6.2.2.4.

¹⁵ SC Res. 2166 (2014), July 21, 2014, demanding also that “the armed groups in control of the crash site and the surrounding area refrain from any actions that may compromise the integrity of the crash site, including by refraining from destroying, moving, or disturbing wreckage, equipment, debris, personal belongings, or remains, and immediately provide safe, secure, full and unrestricted access to the site and surrounding area for the appropriate investigating authorities.” (para. 6).

¹⁶ The Hague District Court (n1) para. 5.2. The Joint Investigation Team (JIT) was established by the governments of the Netherlands, Ukraine, Belgium, Australia, and Malaysia.

¹⁷ Art. 26 prescribes that the Contracting State in whose territory an incident involving the aircraft of another Contracting State takes place will be responsible for investigating the circumstances of such an incident.

¹⁸ For the draft resolution, see SC Res. S/2015/562 (July 29, 2015). Regarding the Russian position leading to the use of its veto power, see the meeting record, UN Doc. S/PV.7498 (July 29, 2015), p. 21.

¹⁹ For an analysis concerning the basis of the Dutch jurisdiction relying upon “passive personality” and “delegated jurisdiction,” see Yanev, Lachezar, “Jurisdiction and Combatant's Privilege in the MH17 Trial: Treading the Line Between Domestic and International Criminal Justice,” Netherlands International Law Review 68, no. 2 (2021):165, 168–74CrossRefGoogle Scholar. More generally, reference can be made to Cryer, Robert et al., An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2019)CrossRefGoogle Scholar.

²⁰ Their involvement can be summarized as follows: Kharchenko must be viewed as a co-perpetrator of the offenses charged under the Dutch Criminal Code (DCC) in that he actively contributed to them by escorting and guarding the BUK TELAR. Moreover, considering that he gave instructions to his subordinates, he must be seen as a functional perpetrator as well. Dubinskiy, as a ranking military commander, organized the transport of the BUK TELAR from the Russian Federation during the night and in the early morning of July 16–July 17, 2014. These actions can be regarded as co-perpetration. As for Girkin, despite his military rank (the DRP's commander), he became actively involved only in relation to the return of the BUK TELAR to the Russian Federation, issuing the necessary orders. Therefore, he can be viewed as a functional perpetrator of these co-perpetrated offenses. For an in-depth description of the military positions as well as the action carried out by each accused, see The Hague District Court, (n1) para. 6.2.4.3.

²¹ Some commentators explored the possibility of seizing the International Criminal Court to prosecute those responsible for the MH17 crash. See, among others, Williams, Sarah, “MH17 and the International Criminal Court: a suitable venue?” Melbourne Journal of International Law 17 (2016): 210Google Scholar. Despite not being a Party to the ICC's Statute, Ukraine accepted the ICC's jurisdiction by issuing a declaration pursuant to art. 12(3) of the Rome Statute.

²² The Hague District Court (n1) para. 4.4.3.1. As the court observed, “Under Section 8d DCC, jurisdiction may nevertheless be limited by exceptions recognized in international law.” According to the court, persons who have combatant status (i.e., lawful combatants) “are authorized to participate in hostilities and thus to conduct combat operations (combatant privilege).”

²³ Ipsen, Knut, “Combatants and non-combatants,” in The Handbook of International Humanitarian Law, ed. Fleck, Dieter (Oxford: Oxford University Press, 2021), 93–128Google Scholar.

²⁴ ICTY, Prosecutor v. Tadić, IT-94-1-AR72, Appeals Chamber, Decision, Oct. 2, 1995, para. 70. See also Prosecutor v. Blaškić, IT-95-14-T, Judgment, Trial Chamber, Mar. 3, 2000, para. 149 (“Croatia played the role of occupying Power through the overall control it exercised over the HVO”). See Dapo Akande, “Classification of Armed Conflicts: Relevant Legal Concepts,” in International Law and the Classification of Conflicts, ed. Elizabeth Wilmhurst (Oxford: Oxford University Press, 2012), 32–79.

²⁵ On May 11, 2014, the breakaway oblasts of Donetsk and Luhansk declared independence. Afterwards, they proceeded to adopt their constitutions, appoint leaders, and, eventually, claim authority over several cities. See, extensively, The Hague District Court, para. 4.4.3.1.1, https://www.rechtspraak.nl.

²⁶ See, ex multis, Kolb, Robert and Hyde, Richard, An Introduction to the International Law of Armed Conflicts (London: Bloomsbury Publishing, 2008), 78Google Scholar.

²⁷ See ICRC, “Ukraine: ICRC Calls on All Sides to Respect International Humanitarian Law,” July 23 2014, https://www.icrc.org/en/doc/resources/documents/news-release/2014/07-23-ukraine-kiev-call-respect-ihl-repatriate-bodies-malaysian-airlines.htm. See also Anthony Deutsch, “Trial over Malaysian plane crash not likely at ICC: Dutch,” Reuters, July 30, 2014, https://www.reuters.com/article/us-ukraine-crisis-airplane-trial-idUSKBN0FZ1MD20140730.

²⁸ Emphasis added. The Appeals Chamber held that the requisite degree of control by the Yugoslavian “authorities over these armed forces required by international law for considering the armed conflict to be international was overall control.” ICTY, Prosecutor v. Tadić, IT-94-1-A, Appeals Chamber, Decision, July 15, 1999, paras. 131 and 137. In approaching the very same issue, the Office of the ICC's Prosecutor also relied upon the overall control test. Indeed, the office conducted an investigation devoted to assessing “whether the information available indicates that Russian authorities have provided support to the armed groups in the form of equipment, financing and personnel, and also whether they have generally directed or helped in planning actions of the armed groups in a manner that indicates they exercised genuine control over them.” (emphasis added). See ICC, Office of the Prosecutor, Report on Preliminary Examination Activities (2016), Nov. 14, 2016, para. 170. The report concluded that a non-international armed conflict and an international one concurrently existed in eastern Ukraine. As for the latter, the Office of the Prosecutor observed that Ukrainian and Russian armed forces directly began several military engagements, including cross-shelling, as early as July 2014. The preliminary assessment officially ended in December 2020, concluding that the criteria underpinning the opening of an investigation were met. See ICC, Office of the Prosecutor, Report on Preliminary Examination Activities (2020), Dec. 14, 2020, para. 71.

²⁹ For instance, “the accused Girkin, at the time Minister of Defence of the DPR, is a Russian national, served in the Russian intelligence agency (FSB) and took part in the wars in Chechnya, Transnistria and Bosnia.” Cf. The Hague District Court (n1) para. 4.4.3.1.3.

³⁰ The Dutch court emphasized that “the leaders of the DPR regularly requested support such as the manpower, military equipment and requisite training.” Cf. ivi.

³¹ Natia Kalandarishvili-Mueller, “Russia's ‘Occupation by Proxy’ of Eastern Ukraine – Implications Under the Geneva Conventions,” Just Security, Feb. 22, 2022, https://www.justsecurity.org/80314/russias-occupation-by-proxy-of-eastern-ukraine-implications-under-the-geneva-conventions/, 3, noting that “[S]tate X would need to exercise control over a de facto entity/an armed group (the proxy); and control over the territory as understood in art. 42 of The Hague Regulation of 1907 for the purposes of establishing military occupation needs to be exercised by that intermediary.”

³² See also Rule no. 3, “Definition of Combatants” in the Customary IHL Database prepared by the ICRC.

³³ Lachezar Yanev, “The MH17 Judgment: An Interesting Take on the Nature of the Armed Conflict in Eastern Ukraine,” EJIL:Talk!, Dec. 7, 2022, https://www.ejiltalk.org/the-mh17-judgment-an-interesting-take-on-the-nature-of-the-armed-conflict-in-eastern-ukraine/, 5.

³⁴ As pointed out by Yanev (n19) at 179–81, “as a matter of law, the condition that the armed group has to ‘belong to’/ ‘be under a command responsible to’ a State involved in an IAC does not require a public announcement of this relationship.” See also Nils Melzer, Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law, International Committee of the Red Cross (2009), 23, asserting that requisite of the acceptance need not “be officially declared, but may also be expressed through tacit agreement or conclusive behaviour that makes clear for which party the group is fighting.”

³⁵ Application of the International Convention, (n3) paras. 8–10, 37.

³⁶ In this vein, see Reeves, Share R. and Wallace, David, “The Combatant Status of the ‘Little Green Men’ and Other Participants in the Ukraine Conflict,” International Law Studies 91 (2015): 360, 400Google Scholar. For the prisoner of war status, see, specifically, art. 4(A) of Geneva Convention III, which is concerned with the matter at hand, especially para. 2, affirming that a person shall be considered a prisoner of war if s/he is a member of “other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: a) that of being commanded by a person responsible for his subordinates; b) that of having a fixed distinctive sign recognizable at a distance; c) that of carrying arms openly; and d) that of conducting their operations in accordance with the laws and customs of war.” (emphasis added).

³⁷ It should be vehemently stressed that lawful combatants are bound by the principle of distinction as embedded in art. 48, Additional Protocol. For a detailed account, see ex multis, Melzer, Nils, “The Principle of Distinction Between Civilians and Combatants,” in The Oxford Handbook of International Law in Armed Conflicts, eds. Clapham, Andrew and Gaeta, Paola (Oxford: Oxford University Press), 296Google Scholar.

³⁸ Yanev (n33) 3.

³⁹ Yanev (n19) 181–84, arguing that the Prosecutor needed to convincingly prove that “the DPR forces were aware of that protected status. This would have dramatically shifted the Prosecutor's position, who would no longer be able to treat as irrelevant evidence that ‘the true intention of these defendants was to shoot down an aircraft of the Ukrainian armed forces.’”

⁴⁰ This view is held, among others, by Reeves and Wallace, “The Combatant Status of the ‘Little Green Men,’” at 374–75, also affirming that “[i]n an effective occupation, therefore, the occupied power is rendered incapable of exercising its governmental authority over the occupied territory, and the occupying power substitutes its own authority for it.” See also “International armed conflict in Ukraine,” where the following statement is made: “[A]t the time. it was not possible to conclude with a degree of certainty that Russia was exercising overall control over the opposition groups operating in Ukraine.” (emphasis added), https://www.rulac.org/browse/conflicts/international-armed-conflict-in-ukraine#collapse1accord.

⁴¹ Even before the MH17 judgment, Russian involvement in terms of control exerted over the DPR was clear in 2015. See, e.g., Shaun Walker, “Putin admits Russian military presence in Ukraine for first time,” The Guardian, Dec. 17, 2015, https://www.theguardian.com/world/2015/dec/17/vladimir-putin-admits-russian-military-presence-ukraine.

⁴² Heinsch, Robert, “Conflict Classification in Ukraine: The Return of the ‘Proxy War’?” International Law Studies 91 (2015): 323, 354–60Google Scholar, was already arguing that the internal conflict was internationalized by Moscow's support and control.

⁴³ See Ukraine and The Netherlands v. Russia, ECtHR, no. 8019/16, 43800/14, and 28525/20, Decision of Nov. 30, 2022, paras. 579–697. The Grand Chamber decided to compile three different applications concerning inter-States cases under art. 33 (one brought by the Netherlands, coupled with two Ukrainian applications). Despite no longer being a party to the European Convention on Human Rights (ECHR), the Respondent State can still be held accountable in connection with actions carried out up until the date of Russian denunciation, ex art. 58.

⁴⁴ Dinstein, Yoram, The International Law of Belligerent Occupation (Cambridge: Cambridge University Press, 2019), 50CrossRefGoogle Scholar.

⁴⁵ ILC (n4) art. 2(a) and (b).

⁴⁶ Ibid., art. 8.

⁴⁷ ILC, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001 , 47. (emphasis added). The commentary also added that “the principle does not extend to conduct which was only incidentally or peripherally associated with an operation and which escaped from the State's direction or control.”

⁴⁸ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Judgment), June 27, 1986 (ICJ Reports, 1986), paras. 110–15, where the Court found that the United States supported the Contras by “financing, organising, training, supplying, and equipping” them. The Court resorted to the same test in the Bosnia case. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) Feb. 26, 2007 (ICJ Reports 2007), paras. 399–406. On this point, see the insightful remarks of Antonio Cassese, “The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia,” European Journal of International Law 18, no. 4 (2007): 649. The author convincingly criticised the ICJ's argument that the effective control test would be grounded in customary international law by asserting that, for this test to be a reflection of such a law, it must satisfy the opinio iuris and diuturnitas requirements, which the Court did not consider. Conversely, the author stressed that the ICTY's overall control is resorted to by several judicial bodies and courts, hence satisfying the said requirements. For a different analysis, centred on the impact of the Nicaragua case on compliance with the Court's rulings, see Lori Damrosch, “The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?” Leiden Journal of International Law 25, no. 1 (2012): 135.

⁴⁹ Military and Paramilitary Activities (n48) para. 109.

⁵⁰ ILC, Draft articles on Responsibility of States (n47) 48.

⁵¹ Cassese (n48) 661.

⁵² The Court needed to consider these additional criteria to prove beyond any reasonable doubt that the DRP was under the effective control, as this conclusion couldn't be reached solely by virtue of Russian military forces. See respectively, Ukraine and The Netherlands v. Russia (n43) paras. 588–606, 618–21, 628–39, 643–44, 649–54, 670–75, and 684–89.

⁵³ Application of the International Convention (n6) para. 59. The Russian Federation also provides an interpretation of art. 2, para. 1(b), of the ICSFT, under which acts of terrorism need to be performed with a specific intention and with the purpose of intimidating a population or compelling a government.

⁵⁴ Ivi.

⁵⁵ See, notably, United Nations, Docs. A/C.6/54/SR.32-35 and 37. The way of proceeding is clearly in line with the Vienna Convention on the Law of Treaties (VCLT). Indeed, for the sake of clarity, the VCLT allows the interpreter to resort to the preparatory works when the outcome of the interpretation is absurd or contradicts itself.

⁵⁶ Resorting to a textual interpretation, Ukraine argued that the term “any person” in art. 2, para. 1, includes both private individuals and public or government officials. ICJ, Application of the International Convention, para. 53.

⁵⁷ Separate opinion of Judge ad hoc Pocar, Application of the International Convention (n6) para. 7, who, to substantiate his arguments, cited several examples, such as art. 1(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concluded on Dec. 10, 1984, which defines the crime of torture. He also added that, “even if the conduct of a State lies outside the scope of the ICSFT, that State may still be responsible under customary international law for the commission of the offence.”

⁵⁸ In sec. II, it is emphasized that, according to the Russian Federation, only private individuals are addressed by the convention; conversely, Ukraine maintains that this conclusion would be “paradoxical,” as “the ICSFT would bind a State to prevent the financing of acts of terrorism, but would not prohibit financing by officials of the same State.” See Application of the International Convention (n6) para. 53. For an in-depth analysis of whether the ICSFT is meant to also cover a State's activities, see Kimberly N. Trapp, “Holding States Responsible for Terrorism before the International Court of Justice,” Journal of International Dispute Settlement 3 (2012): 279, arguing that an obligation on States to refrain from sponsoring or supporting terrorism is impliedly inferred from the convention's obligation to prevent the offense that is covered by the same treaty. This conclusion hinges on what the ICJ held in the Bosnia decision where a State's obligation not to commit genocide was premised on the argument that, by ratifying the Convention on the Prevention and Punishment of the Crime of Genocide, States accepted the obligation to prevent the commission of genocide. More extensively, see Trapp, Kimberly N., State Responsibility for International Terrorism (Oxford: Oxford University Press, 2011), 156CrossRefGoogle Scholar.

⁵⁹ Iryna Marchuk, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russia), Melbourne Journal of International Law 18, no. 2 (2017): 436, 449, where the author points to the ICTY's case law in particular, Prosecutor v. Galie IT-98-29-A, Appeals Chamber, Judgment, Nov. 30, 2006, para. 132.

⁶⁰ Not surprisingly, the Applicant maintained that the “launching system was ‘knowingly provided’ to a terrorist organization, and that the requirement of knowledge under art. 2, para. 1, was amply met.” Application of the International Convention (n6) para. 49.

⁶¹ Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) (Order) Apr. 1, 2017 (ICJ Reports 2017) paras. 75–77. However, it should be emphasized that this determination is confined to this stage; additionally, the Court noted that “at least some of the allegations made by Ukraine appear to be capable of falling within the scope of the ICSFT ratione materiae” para. 30. To put it differently, this finding is without prejudice for the Court's determination in the merits stage.

⁶² Application of the International Convention (n6) para. 49.

⁶³ See Anthony Aust, “Civil Aviation, Offences Against Safety,” Max Planck Encyclopedias of International Law (2007), 1.

⁶⁴ See Montreal Convention, art. 1, 1(b), and 2(b).

⁶⁵ See M. Bassiouni, Cherif and Wise, Edward M., Aut dedere aut judicare: The Duty to Extradite or Prosecute in International Law (Cambridge: Cambridge University Press, 1995)CrossRefGoogle Scholar; Scharf, Michael P., “Aut dedere aut iudicare,” Max Planck Encyclopedias of International Law (2008): 1Google Scholar.

⁶⁶ Annex 17 to the Convention on International Civil Aviation Security - Safeguarding International Civil Aviation against Acts of Unlawful Interference, 2.1.2 and 3.1.3.

⁶⁷ This topic has been extensively discussed by de Hoon, Marieke, “Navigating the Legal Horizon: Lawyering the MH17 Disaster,” Utrecht Journal of International and European Law 33, no. 84 (2017): 84, 93CrossRefGoogle Scholar.

⁶⁸ Ibid., at 101–2, where the author highlights that, “[a]lthough State authorities seem not to have been in control of the area from which it was fired, Ukraine still has obligations under the civil aviation conventions to ensure the safety of its airspace and may have violated these obligations by not closing its airspace.”

⁶⁹ International Civil Aviation Organization, Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations, [1990] Doc. 9554-AN/932, para. 10.2; see also para. 10.3.

⁷⁰ As far as the Chicago Convention is concerned, “it can be argued that Russia would have violated art. 3bis of the Chicago Convention. art. 3bis of the Chicago Convention provides that ‘the Contracting States recognise that every State must refrain from resorting to the use of weapons against civilian aircraft in flight,’ unless in accordance with a State's right to self-defence.” De Hoon (n67) 104.

⁷¹ ILC, Draft articles on Responsibility of States (n47) 34, in which it is further articulated that the intention/knowledge of the State's organs or agents in breaching a rule plays a key role in shaping the subjective nature of the responsibility.

⁷² Ivi.

⁷³ It also worth citing art. 13, which reads, “Each Contracting State shall in accordance with its national law report to the Council of the International Civil Aviation Organization as promptly as possible any relevant information in its possession concerning: (a) the circumstances of the offence; (b) the action taken pursuant to art. 10, paragraph 2; (c) the measures taken in relation to the offender or the alleged offender and, in particular, the results of any extradition proceedings or other legal proceedings.”

⁷⁴ Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Judgment), Feb. 27, 1998 (ICJ Reports 1998), para. 30. Importantly, the United Kingdom, despite claiming to meet the obligation stemming from the provision at issue, acknowledged that such provision imposes an obligation on other States (para. 32).

⁷⁵ Indeed, in the Court's words, the “commission by a State official of an offence described in art. 2 does not in itself engage the responsibility of the State concerned under the Convention.” Application of the International Convention (n6) para. 61.

⁷⁶ This possibility has also been duly noted by Vice-President Xue in his Dissenting Opinion, asserting that “Ukraine's claim as presented in its Application and Memorial, in my opinion, concerns more the alleged military and financial support by the Russian Federation to the armed groups in the course of armed conflict in eastern Ukraine, where violations of international humanitarian law may have occurred, than the Russian Federation's failure in preventing and suppressing the financing of terrorism. The materials submitted by Ukraine do not present a plausible case that falls within the scope of the ICSFT.” He then reinforced his argument by noting that, in order “[t]o characterize military and financial support from Russia's side, by whomever possible, as terrorism financing, would inevitably bear the legal implication of defining the nature of the armed conflict in eastern Ukraine, which, in my view, extends well beyond the limit of the Court's jurisdiction under the ICSFT.” Dissenting Opinion of Vice-President Xue, Application of the International Convention (n6) paras. 2 and 5.

⁷⁷ See, specifically, arts. 34–37 of the ILC (n4).