MH17 ‘justice’ takes several forms, none simple – David Hodgkinson

The Dutch Safety Board’s final report into the July 2014 downing of Malaysia Airlines flight MH17 definitively found that the crash was caused by the detonation of a 9N314M warhead. The warhead was launched by a Russian-made BUK surface-to-air missile system from a 320 sq km area in eastern Ukraine.

In the wake of the report’s release last week, Australian Prime Minister Malcolm Turnbull, said that Australia is "determined to do everything we can… to identify those responsible and bring them to justice".

However, "justice" itself is not straightforward. And in terms of MH17, there are multiple forms of justice to consider.

Justice?

The forms of justice might include:

* justice for the families of MH17 by identifying, bringing to trial and punishing those who launched the BUK missile that brought down the aircraft (the Turnbull/Julie Bishop "justice");

* justice in the form of monetary compensation (to families) for the death of those onboard;

* holding Malaysia Airlines to account for choosing to fly a route that some airlines chose not to fly due to the conflict on the ground in eastern Ukraine; and

* justice with regard to the conflict between Russian proxies and the Ukrainians on the ground.

There are also issues with notions of justice. Do we mean fairness in protecting rights and protesting wrongs? Fairness in the way people are dealt with? The process (or outcome) of using laws to fairly judge and punish crimes and criminal activity?

And are we confusing justice with compensation, at least in liability terms?

Launch of the BUK missile

It is not known definitively who launched the missile that brought down MH17. The Dutch Safety Board’s report made no findings regarding the issue.

Bishop is focused on prosecution of those responsible for the launch and detonation. She hasn’t ruled out returning to the UN Security Council and establishing an international tribunal. She has mentioned national prosecutions.

Bishop also says that payment of passenger compensation is reliant on criminal investigations:

"Any issue of compensation will depend upon holding to account the perpetrators of the crime… I think that being able to identify the perpetrators of the crime would be a precondition to demanding compensation."

But this is not the case. Justice in the form of compensation for passenger death (or injury) under relevant aircraft liability and passenger compensation regimes is entirely distinct.
Compensation for passenger death or injury

“Justice” in terms of passenger or next-of-kin compensation that applies to MH17 – unrelated to criminal investigation or international tribunals – is determined by finding the same treaty in place at the point of departure and the passenger’s final destination as ticketed. For MH17 passengers that will mostly be the Montreal Convention, but other less favourable regimes may apply to other passengers.

Article 17 of the Montreal Convention provides that a carrier "is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft".

Death or injury must be caused by an “accident”. The most widely and generally accepted definition of an accident is set out by the US Supreme Court: liability under Article 17 "arises only if a passenger’s injury [or death] is caused by an unexpected or unusual event or happening that is external to the passenger".

Under Article 21 of the Montreal Convention, for damages arising under Article 17 not exceeding 113,100 SDRs (about RM728,526) per passenger, the carrier cannot exclude or limit its liability.

Malaysia Airlines’ liability is potentially unlimited unless it can prove – and the burden of proof is with the carrier – that damage “was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents” or that such damage was solely due to the negligence or other wrongful act or omission of a third party. That could be a problem.

Liability for flight path choice

The issue is whether it was reasonable, given the conflict below, for Malaysia Airlines to choose the flight path it did – and whether it should be held to account for that choice.

The Dutch Safety Board’s report noted that the airspace over eastern Ukraine “was much in use” between July 14 and 17, 2014. Sixty-one airline operators from 32 countries, including Malaysia Airlines, “routed their flights through this airspace”.

On July 17 – the day MH17 was downed – while 160 commercial airliners flew over the area, other airliners had stopped flights over the region. It should be noted, though, that it is rare for countries to close their airspace because of armed conflict.

It appears that current arrangements with regard to flying over conflict areas are inadequate. The Dutch Safety Board’s report noted that operators “assume that unrestricted airspaces are safe”, and that they do not usually take into account the safety of the countries they fly over. When flying over a conflict area, an additional risk assessment, then, is necessary.

The report recommends that operators and countries "exchange more information about conflict areas and potential threats to civil aviation".

And what does justice look like in terms of resolving the armed conflict in the eastern part of Ukraine?

Aviation confronts 21st-century problems

Aviation, which transformed travel and way of life in the 20th century, is being transformed in the 21st century and faces some difficult 21st-century problems.

These problems include the aviation emissions problem (emissions from aircraft remain unregulated), economic viability, the system of bilateral air-services agreements, and terrorism.

All involve difficult issues of sovereignty. MH17 involves additional issues of justice and compensation. – The Conversation, October 21, 2015.

* David Hodgkinson is associate professor, University of Western Australia.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.