The “MH17” judgment and its legal implications for the International Court of Justice's ruling in Ukraine v. Russia: a critical appraisal

Abstract

AbstractOn November 17, 2022, the Dutch District Court of The Hague found three persons liable in connection with the downing of Malaysia Airlines Flight 17, which occurred in the breakaway oblast of Donetsk in July 2014. Drawing on this judgment, the present essay examines whether the Russian Federation can be regarded as a State actively involved in this incident with a view to investigating to what extent it exercised “overall control” over the Donetsk People's Republic's separatists. Afterwards, the analysis is framed in the context of the wider legal dispute between Ukraine and the Russian Federation before the International Court of Justice, where the former maintained, inter alia, that the latter failed to honour its obligation under the 1999 International Convention for the Suppression of the Financing of Terrorism—specifically, by providing the separatists with the “fund” (i.e., a BUK TELAR) that forced the aircraft to crash. Ultimately, the legal implications of the findings are assessed to foresee the outcome of the International Court of Justice's decision on the merits.