From whom will MH17 families receive compensation — if at all?
By ALEJANDRO DAVILA FRAGOSO | McClatchy Washington Bureau | Published: July 31, 2014
WASHINGTON — The accusations that Russia bears the blame for the downing of a Malaysia Airlines plane by a surface-to-air missile over eastern Ukraine two weeks ago leaves a key question still hanging: Will the already-troubled investigation produce any definitive word on who should be declared the responsible party?
The answer has very practical implications beyond the geopolitics of Ukraine’s future as a united country and Russia’s relationship to the Western world. It also will determine whether the survivors of the 298 dead aboard the plane will receive compensation for their loss — and from whom.
What the history of such shoot-downs shows is that none is resolved quickly, even when the nation quickly acknowledges that it shot down a civilian aircraft.
The accidental downing of an Iranian airliner by the United States on July 3, 1988, is a case in point. President Ronald Reagan acknowledged that very day that the American missile cruiser USS Vincennes had shot down the civilian airliner with 248 people on board, all of whom perished.
But he called the Vincennes’ firing on the plane “proper defensive action,” which the Vincennes took as it was battling five Iranian gunboats — in Iranian waters, as it turned out. Reagan never apologized for the tragedy, and while the White House offered to make restitution on July 11 that year, its statement noted that “a particularly heavy burden of responsibility rests with the government of Iran.”
It was left to the administration of President Bill Clinton to carry out the payments — in 1996, when the United States agreed before the International Court of Justice to pay more than $131 million, of which some $61 million went to the victims’ families.
Russia denies any role in the July 17 downing of Malaysia Airlines Flight 17, and it seems likely that determining exactly who or what brought the plane to earth may be months away, if ever.
The plane’s wreckage remains scattered across a 25-mile-diameter swath of Ukraine, and investigators have been unable to reach it because of fighting in the area. Ukraine has published audio that it says it intercepted of separatists talking about the downing of the aircraft, but the BUK missile launcher suspected in the crash hasn’t been found, and Ukraine says evidence suggests it was spirited across the border into Russia the day after the aircraft was downed.
Europe and the United States announced new sanctions against Russia on Tuesday, intended to punish that country for its continued support for separatists in eastern Ukraine. But that pressure isn’t likely to move Russia to accept responsibility in the Malaysia Airlines disaster, experts say.
Even when the case for Russian involvement in the downing of a civilian aircraft has seemed open and shut, the country has shown little willingness to cooperate, said Louis Goodman, the former dean of the American University School of International Service and an expert on South Korea who’s closely studied one of the most notorious incidents, the Soviet downing of Korean Airlines Flight 007 by an air-to-air missile on Sept. 1, 1983. All 269 people on board died.
From the beginning, Russia was cagey about detailing what happened, at first denying that it knew anything about the incident, even though its fighter jet had tracked the airliner for hours, Goodman noted. When it finally admitted that the airliner had been shot down, it accused the United States of sending the aircraft into Soviet airspace as a test of that country’s air defenses.
The Soviet Union vetoed a condemnation from the United Nations Security Council, but the United States and others placed individual sanctions on Moscow. The International Civil Aviation Organization, the U.N. body that develops global flight practices, also condemned the attack.
Soviet officials refused to cooperate with the investigation. As a result, the plane’s black boxes weren’t turned over to investigators until 1992, almost three years after the Soviet Union had collapsed. Still, no compensation was offered.
It wasn’t the first time Russia had been reluctant to cooperate or to admit attacking a civilian plane. On April 20, 1978, a Russian jet intercepted and shot down Korean Airlines Flight 902 after the passenger plane strayed into Soviet airspace. The plane crash-landed on a frozen lake, and two passengers died. Russia promptly returned the survivors, saying it had thought the aircraft was a spy plane. No compensation was offered.
A rare instance of Russia making restitution came after the June 3, 1954, attack by a Russian fighter plane on a Belgian cargo plane over Austria, near the Hungarian border. The plane’s radio operator was killed. A year later, after a formal protest by the Belgian government, Russia paid the radio operator’s widow $10,000.
“The Russians have been much more reluctant to admit responsibility,” said Charles Armstrong, a professor of Korean studies at Columbia University. “I think because they feel that it will make them lose more credibility.”
Only one treaty explicitly deals with firing on civilian aircraft: the Convention on International Civil Aviation, whose Article 3 Bis was adopted in 1984 to prohibit countries’ militaries from attacking civilian airliners. If one does stray into national airspace, a country is permitted only to require that it land.
But the article, “like a lot of international agreements, doesn’t have a lot of teeth,” said Brian E. Foont, former assistant general counsel for US Airways, who has published scholarly articles on shoot-downs.
Nothing in the convention sets out what penalties should be applied if a country downs a civilian airliner. Paying compensation for an attack is more of a tradition than a requirement under international law.
China, for instance, offered restitution when it shot down a Hong Kong-bound Cathay Pacific plane in July 1954, Foont noted. The Chinese government, while claiming that the plane had been mistaken for a nationalist military aircraft, reportedly apologized to the British, who governed Hong Kong at the time, just three days after the attack. Five months later, China paid more than $1 million to the British government.
The Bulgarian government offered payments in its currency after shooting down an Israeli passenger plane that strayed into Bulgaria on July 27, 1955. It admitted to the attack a week after the incident, after first denying that it had had anything to do with the incident, which killed almost 60 people, Foont said. Israel declined the offer, however.
In 1973, Israel agreed to pay undisclosed restitution after it downed a Libyan plane, killing more than 100 people, according to The Global Jewish News Source. A day after the incident, an Israeli minister described the downing as a “tragedy,” although the Israelis defended the attack, saying the plane was asked to land and didn’t comply.
More recently, the Ukrainian government shot down a Siberia Airlines plane in 2001, which prompted the resignation of then-Defense Minister Oleksandr Kuzmuk. Almost 80 people died, and the government reportedly disbursed about $15 million.
Experts agree that national military attacks on civilian planes are rare, particularly after World War II. Attacks on commercial aircraft by irregular forces such as Ukraine’s separatists are far more frequent, particularly on cargo aircraft. In those cases, restitution rarely is paid.
“There’re quite a few cases ... probably about two dozen” of paramilitaries shooting down civilian aircraft, said David Gero, who has written books on aviation accidents. In most cases, no actions are taken against the perpetrators, he said. “They usually try to rationalize that their action was justified and that they are, therefore, not responsible in any way,” he said.
“It is very difficult to get an international remedy against the rebels,” said Malcolm Shaw, an expert in international law and a member of the United Kingdom’s Essex Court Chambers who’s written about shoot-downs. That’s at least in part because rebels such as the Ukrainian separatists aren’t signatories to any of the international accords that assign jurisdiction in such cases.
“In terms of getting compensation, the question is where is the appropriate forum? Which international court has jurisdiction? And the answer is … none, really,” Shaw said.
That might be different if Russia were found to have supplied the missiles that separatists used to down the plane. But with no Russian cooperation, the prospect for that seems low.
“If Russia agreed to go to, say, the International Court of Justice, and, say, you can prove that Russia had sufficient control over the rebels to be held responsible for its actions, then you could get a compensation,” Shaw said. But for a case to go to that court, a country must consent to the court’s jurisdiction, and Russia, he said, “is not going to accept jurisdiction.”