New Russian law protects it from culpability over Flight MH17

With the findings of the criminal investigation into the Flight MH17 disaster due in mid-year, it’s instructive to see Russia’s president Vladimir Putin already preparing his Litvinenko-style strategy – by introducing a new law to ensure that neither he nor the Russian state can be held accountable for the atrocity.

According to American aviation lawyer Jerry Skinner, the new legislation means that the families of the 298 passengers and crew who died in the Malaysia Airlines crash over eastern Ukraine in July 2014 are unlikely to receive any compensation at all from Russia – even if it is found culpable for the disaster.

Skinner – who won compensation payments of $10 million (€9.12m) each for the families of those killed in the bombing of Pan Am Flight 103 over Lockerbie in Scotland in 1988 – is representing the families of five Australian passengers killed on Flight MH17 over eastern Ukraine.

On November 17th, Skinner served Putin and the government of the Russian Federation with notice of intention to file claims against them in the European Court of Human Rights (ECHR) in Strasbourg, giving them the usual 30 days in which to acknowledge the actions.

However, on December 15th, Putin signed a new law allowing the Constitutional Court in Moscow to overrule the decisions of international courts where they contradict the principle of supremacy of the Russian constitution.

The law was drafted in response to a decision by the Constitutional Court last July that rulings of the ECHR do not automatically apply in Russia. Instead, they must be individually approved and must not contradict Russian law.

In the West, however, international lawyers say the new legislation means essentially that Moscow now has the right under Russian law to ignore rulings from Strasbourg if it finds them unpalatable.

‘Dangerous’

For instance, it has already been used by Putin’s government to decide not to compensate shareholders of the defunct Russian oil giant Yukos, despite a ruling by the ECHR that they should be paid €1.9 billion in compensation after its assets were seized for alleged tax irregularities.

"Before, it was assumed that judgments by the ECHR should be implemented here in Russia, and when it came to orders for compensation, they were implemented," observes Sergei Pashin, a former judge and now a member of the Kremlin's Council for Civil Society and Human Rights.

“Of course, this new situation is dangerous. We may find ourselves ending up in some awkward situations if we retreat from our international obligations.”

Skinner – whose legal action is being watched with interest by victims' families around the world, including in the UK and the Netherlands – described the change in the Russian law as "madness" in terms of how it would be viewed by the international community.

He said Putin’s rhetoric following the downing of a Russian jet over Sinai in October stood in stark contrast to his lack of compassion for the victims of Flight MH17 who had been killed, as found by the Dutch Safety Board report in October, by a Russian-made Buk missile.

"There has not been a word from Mr Putin about accountability for the innocent passengers of MH17, including 80 children, or their loved ones. I represent some of them, and my heart went out to them over Christmas," Skinner said.

John O’Brien, whose son Jack (25) was killed on the flight, said that changing the law “makes it look as though Russia has something to hide”, adding, “If the people responsible are convicted by a court with appropriate jurisdiction, then that judgment should be respected.”

Russia, however, has consistently rejected the Dutch Safety Board report as "biased", much as it scorned the Litvinenko report in the UK – which alleged that Putin "probably" approved the murder of the former KGB agent Alexander Litvinenko – as "politicised".

London lawyers McCue and Partners – who brought claims in the US courts against the late Libyan leader, Colonel Muammar Gadafy, for sponsoring the IRA – say they also plan to highlight the role of Russia and Putin in allegedly "stoking conflict" in Ukraine.

Culpability

“Those immediately responsible are not only the separatists alleged to have fired the rocket at Flight MH17, causing the deaths of hundreds of innocent victims, but those who – be they states, other entitles, or individuals – provided them with the financial and material support to do so,” they said.

Reed Foster of IHS Jane’s Defence is not so sanguine about establishing culpability. “It will be almost impossible to say who pushed the button. In the final analysis, it will be very easy for Russia to maintain plausible deniability.”