Australia and the Netherlands have launched legal proceedings against Russia through the International Civil Aviation Organization for the downing of Malaysia Airlines flight MH17.
The legal action could compel Russia to take part in stalled negotiations with the two countries, and could also result in it being penalised by the United Nations-linked organisation which is responsible for the administration of international aviation law.
Australia and the Netherlands have been seeking compensation and an apology from the Russian Federation for the MH17 disaster that saw 298 people, including 38 Australians, killed when it was shot down over Ukraine in 2014.
However, Russia, which has denied involvement despite the findings of an international investigation, unilaterally withdrew from negotiations with the two countries in October 2020.
Australia’s foreign minister, Marise Payne, and attorney general, Michaelia Cash, announced on Monday that Australia would be launching joint action with the Netherlands under Article 84 of the Convention on International Civil Aviation, and will allege that Russia is in breach of the Chicago Convention that underpins aviation law.
“We have maintained since May 2018 that the Russian Federation is responsible under international law for the downing of flight MH17,” Payne said in a statement ahead of Monday evening’s announcement in Sydney.
“Today’s joint action by Australia and the Netherlands is a major step forward in both countries’ fight for truth, justice and accountability for this horrific act of violence.”
“The Russian Federation’s refusal to take responsibility for its role in the downing of flight MH17 is unacceptable and the Australian government has always said that it will not exclude any legal options in our pursuit of justice.”
Australia and the Netherlands will rely on what they say is the “overwhelming evidence” that the flight was shot down by a Russian Buk-Telar surface-to-air missile system, which was transported from Russia to an agricultural field in the east of Ukraine on the morning of 17 July 2014.
At the time the area was under the control of Russian-backed separatists.
The two countries will also present evidence that the missile system belonged to the Russian Federation’s 53rd anti-aircraft military brigade, and was accompanied by a trained Russian military crew.
Only the trained Russian crew of the Buk-Telar, or someone acting under their instruction, direction or control could have launched the missile system, which was returned to the Russian Federation shortly after the downing of flight MH17.
The legal action is in addition to the Dutch national prosecution of four suspects for their individual criminal responsibility in the downing of the flight: three Russians, Igor Girkin, Sergey Dubinskiy, Oleg Pulatov, and a Ukrainian, Leonid Kharchenko.
An international investigation found that the men did not “push the button” on the missile system themselves, but had brought the anti-aircraft system to eastern Ukraine and were the link between the Moscow-backed separatist Donetsk People’s Republic and Russia.
In the statement, Payne said the Russian Federation needed to be held to account for its breaches of international law, particularly in light of the invasion of Ukraine.
“Russia’s unprovoked and unjustified invasion of Ukraine and the escalation of its aggression underscores the need to continue our enduring efforts to hold Russia to account for its blatant violation of international law and the UN charter, including threats to Ukraine’s sovereignty and airspace,” Payne said.
“While we cannot take away the grief of those whose loved ones died as a result of Russia’s actions, the Australian government will pursue every available avenue to ensure Russia is held to account so that this horrific act never happens again.”
At a press conference in Sydney, Payne told reporters Australia could “consider” withdrawing the action if Russia is “prepared to return to [the] negotiating table … but we have seen no sign of good faith from Russia on that for some time.”
Australia and the Netherlands informed the Russian Federation in 2018 that the two countries held Russia responsible under international law for its role in the bringing down of MH17, despite the Kremlin’s repeated denials.
Australia’s then foreign minister, Julie Bishop, at the time called on Russia to “enter into negotiations to open up a dialogue about its conduct and to seek reparations” for the families affected.
