While the present priority is the needs of bereaved families of the MH17 air disaster and the political situation could not more tense, it will not be long before the issue of blame focuses on civil liability.
A few days after the tragedy, truth could become the trite casualty of any war zone. Vehement denials and counter-claims, and allegations of tampering with evidence abound.
But the immediate American statement of what happened must be based on reliable satellite intelligence. The Moscow-backed separatists' allegations that the Ukrainian Government may have deliberately engineered such an event to smear them, seems far-fetched.
The usual starting point for legal actions involving international flights is the Montreal convention. This provides for the airline involved to be liable without proof of fault for losses limited to about $175,000 per passenger. If there is evidence of negligence, then damages are unlimited.
Malaysia Airlines Flight MH17 appears to have followed guidance in flying over a combat zone. Ukrainian airspace had been cleared for safety to fly at 32,000ft, with MH17 apparently travelling at more than 33,000ft. Other airlines such as Lufthansa were also using this route. British Airways and Virgin appear to have assessed the risk as too high and were already avoiding it. And if this route was opened by air traffic control, then whoever decided this may well face criticism. Simplistically then we start by asking why any civilian aircraft could be routed over an area where two (admittedly military) planes had recently been shot down from the ground. If that were all, liability would be complicated enough, with years of litigation to come over who if anyone was negligent.
But the critical issue, based on what we know so far, is whether the Russian government is culpable. If militants armed with Russian weaponry, and either trained or assisted by Russian military personnel, shot down a civilian aircraft recklessly, those who provided the surface to air missiles, launcher, and guidance system to the separatists must be as responsible as those who pulled the trigger. The precedents are there.
After a U.S. Navy ship mistook an Iranian passenger jet for a MIG fighter in June 1988, and shot it down, the U.S. Government paid compensation to the families of the 290 who died. And the closer analogy is what some see as the resultant bombing of Pan Am Flight 103 over Lockerbie 6 months later. This gave rise to 20 years of litigation, firstly involving the airline, whose security measures at Frankfurt were abjectly poor, supposedly allowing the bomb on board, and then subsequently litigation against Libya which resulted in a $10 million damages settlement for each victim's family.
That settlement by Gaddafi was based on negotiations over repealing trade sanctions, with oil sales the key factor driving a deal. The then situation in Iraq and Afghanistan, Gaddafi's fear of following Saddam Hussain's fate, the West's need for cheap oil, and so on, combined to provide a murky backdrop to the payments, which some victims' families refused to accept. They believed that Iran and not Libya was to blame for Lockerbie, and Libya never admitted actual responsibility, notwithstanding the conviction of the Libyan intelligence officer Abdelbaset al-Megrahi of 270 counts of murder.
The present crisis might follow the same course. Sanctions on Russia might be increased, the purpose of course mainly to try to defuse an incipient Ukrainian civil war. Whether president Putin could eventually be pushed into pariah status and coerced into negotiating a settlement remains as uncertain as the other myriad legal issues every aviation disaster entails. Who is liable is only the start. Which jurisdiction applies? Ukrainian certainly, but also possibly Russian and the home nation of every passenger. Which law will apply? Are punitive damages to be awarded? The U.S. passed retrospective legislation to allow the claim against Libya to proceed through their Courts. Might Governments that have lost large numbers of citizens in this atrocity follow suit if needs be?
While the facts are still unproven, it may seem premature to speculate on future litigation. But the families deserve and will demand justice, and Governments must act in concert to deliver this to their citizens. Of course financial compensation will not turn back the clock, but equally the legal process must recognise the enormity of the wrong done and provide appropriate redress.
After 9/11 the U.S. Government set up a generous compensation scheme. This avoided any need for litigation and saved time and stress for families. Perhaps an equivalent scheme could be considered here, with the Governments involved funding it and obtaining reimbursement from Russia or the airline's insurers in due course. Anything that can be done to ease the burden on families in the weeks, months and years ahead must be considered at once.
Richard Langton is a Personal Injury & Group Litigation Lawyer at Slater and Gordon in Birmingham.
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**Update 20th January 2015:
It is exactly 6 months since MH17 fell from the sky over Ukraine.
As the BBC’s Inside Out reports this week on a family affected by the disaster, the relatives remain in the dark.
Speculation is widespread and hard evidence hidden from view.
The media has attempted to analyse on photographs of a Russian made BUK missile launcher, photographed in the region at the time.
Reports in the French and German press somehow manage to use this “evidence” to demonstrate both that it must have been the culprit, or that it couldn’t have been.
The Dutch criminal investigation has produced an interim report that confirms “many indications” from its examination of the wreckage that MH was shot down by a surface to air missile.
Downward trajectory damage to the cockpit windows and multiple high impact penetrations to the front of the plane generally suggest this was the cause.
It does not of course identify who pulled the trigger, or why.
And the investigators refuse to rule out the possibility that a Ukrainian air force jet could have fired a missile, the current Russian favoured explanation.
A widely discredited photograph purporting to show a jet fighter firing on the plane was even aired on Russian television on Christmas eve.
The best estimate of when the Dutch safety Board investigation will report is the middle of 2015.
Justice delayed is justice denied to the families of those who sadly perished.