Annexe (draft letter to Parliament)

Letter of ... from the Minister of the Foreign Affairs to Parliament regarding the invocation of State responsibility in general and in the context of the downing of flight MH17

During the plenary debate of 6 September 2017 on the JIT countries’ joint decision that those suspected of downing flight MH17 could be prosecuted in the under Dutch law, my predecessor undertook to inform you by letter about the available legal options for invoking State responsibility. I am writing to you, in conjunction with the Minister of Justice and Security, to explain those options.

1. Introduction

This letter explores the options that exist for invoking State responsibility under . As was stated previously in response to questions from the House, the Netherlands does not exclude any legal options whatsoever (see Parliamentary Papers 33997, no. 102, 18 August 2017). This letter will first address how State responsibility can arise, then examine the associated consequences, and conclude with a discussion of the options for the implementation of State responsibility.

2. How State responsibility can arise

A State is responsible under international law if this State (the ‘responsible State’) commits an internationally wrongful act against another State. This therefore requires the existence of an international obligation between two or more States and a breach of that obligation by one of those States. The act or omission that constitutes the breach must be attributable to the State against which State responsibility is invoked. As a rule, acts or omissions by individuals cannot be attributed to a State unless the ties between the individual and the State are so strong that the individual can be deemed to act on behalf of the State. This is the case not only with respect to acts or omissions by organs of the State, but also where a State has given an individual direct and specific instructions to act or refrain from acting.

An injured State is a State that claims that it has suffered legal injury as a result of the acts or omissions of another State. In order to substantiate such a claim, the injured State is required to

AVT18/BZ124970 1 conduct an investigation of the facts and establish which relevant international rights and obligations exist between the two States and whether the acts or omissions of another State have led to a breach of those rights or obligations. The injured State must then establish whether the acts or omissions that caused the alleged breach can be attributed to another State. The gathering of evidence forms an essential part of this investigation. In order to demonstrate satisfactorily that another State is responsible under international law, the injured State must have the evidence to prove its claim.

State responsibility for the downing of flight MH17

In order to establish whether State responsibility can be invoked against another State for the downing of flight MH17, it will be necessary to investigate whether there has been a breach of an international obligation and whether this breach can be attributed to one or more States. This is a different kind of investigation than the investigation already completed by the Dutch Safety Board and the criminal investigation still being conducted by the Joint Investigation Team (JIT). The Dutch Safety Board’s investigation was a technical investigation into the circumstances of the crash and did not address the issue of culpability. However, the findings of the Dutch Safety Board’s investigation may be used as evidence to substantiate an invocation of State responsibility. The criminal investigation by the JIT concerns the responsibility of individuals under criminal law. Nevertheless, the evidence gathered in the course of this investigation may also be relevant as evidence to substantiate an invocation of State responsibility for the downing of flight MH17. Although the results of the investigation by the Dutch Safety Board and of the criminal investigation could be of use, additional evidence may be necessary to establish the responsibility of one or more States.

3. The legal consequences of State responsibility

The responsible State has a number of obligations to the injured State. First, the responsible State must cease the internationally wrongful act, if that act is continuing. Second, the responsible State must offer appropriate assurances and guarantees of non-repetition, if circumstances so require. Third, the responsible State is under an obligation to make full .

Various forms of reparation are available and the injured State can claim them in the following order: , compensation and/or satisfaction. Restitution means that the responsible State re- establishes the situation that existed before the breach was committed. If restitution is not possible or no longer possible, the injured State can claim compensation. This means that the responsible State

AVT18/BZ124970 2 compensates any material or non-material damage. Compensation for damage incurred by individuals is paid to the injured State, which can then make the compensation available to those individuals.

If full reparation cannot be made by means of restitution and/or compensation, the injured State may claim satisfaction. Satisfaction can take various forms. A common form of satisfaction is a public acknowledgement of responsibility and a formal apology. Another form of satisfaction would be for the responsible State to conduct an investigation into the circumstances that led to the breach of international law.

The legal consequences of State responsibility for the downing of flight MH17

The MH17 air disaster and the loss of 298 lives was a terrible tragedy. This loss of life and the indescribable sorrow it has caused cannot be undone. However, continuing obligations may exist with respect to the downing of flight MH17, for instance in relation to extradition or legal assistance to a State or States investigating the causes of – and responsibility for – the downing of the flight. A refusal of legal assistance may therefore entail a continuing breach of international law, subsequently giving rise to an obligation to cooperate. In addition, the injured State or States may ask the responsible State or States to offer appropriate assurances or guarantees of non-repetition. Such assurances or guarantees may take the form of undertakings by the responsible State or States specifying measures that can be taken to prevent repetition. Such measures could for example include tightening legislation, oversight or enforcement.

The responsible State or States must then offer full reparation. In order to determine the manner in which full reparation can be achieved, the nature and amount of the damage resulting directly from the downing of flight MH17 will need to be determined. The downing of the flight cannot be undone; restitution is therefore not an option in this case. Consideration must therefore be given to the other forms of reparation. First, it would be possible to claim compensation. In order to establish the amount of compensation it would be necessary to determine the precise material and non-material damage that resulted directly from the downing of flight MH17, expressed as a sum of money. Besides compensation, it would also be possible to claim satisfaction. Satisfaction could be given by the responsible State or States in the form of a formal public apology, as well as the State or States in question cooperating with the prosecution and trial of the suspects in the criminal proceedings. Such cooperation was one of the demands arising from Security Council Resolution 2166 (2014).

4. The implementation of State responsibility

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State responsibility can in any case be invoked by the injured State. An injured State must demonstrate that it suffered injury as a consequence of the internationally wrongful act of another State.

In the case of injury suffered by nationals of a State, additional conditions apply to the protection of their rights (by means of diplomatic protection). For instance, the injured State must demonstrate that the persons whose interests it is pursuing are its nationals. It must also demonstrate that these persons have exhausted the available local remedies in the State or States against which State responsibility is being invoked. The requirement to exhaust local remedies is subject to exceptions, in particular if the exhaustion of local remedies can be deemed impossible or exceptionally unreasonable.

In order for State responsibility to exist, it need not necessarily be established by an international judicial body. A State against which State responsibility is invoked can accept that it is responsible and arrive at a satisfactory resolution in consultation with the injured State. If that does not happen, under certain conditions the injured State has the option of submitting the matter to an international court or an arbitral tribunal.

Unlike most national legal systems, international law does not offer automatic access to an international court or arbitral tribunal in the event of a breach of international law. The jurisdiction of an international court (such as the International Court of Justice) or of an arbitral tribunal is dependent on consent to that jurisdiction by the parties to the dispute. If the parties concerned have not consented to the jurisdiction of the international court or arbitral tribunal with regard to the dispute, then that body will be unable to entertain it. Even if the States concerned have consented to the jurisdiction of an international court or arbitral tribunal with regard to a particular dispute, those States may be obliged by international law to – first – attempt to resolve the dispute by other means, such as consultations or negotiations.

If a State invokes the responsibility of another State for an internationally wrongful act, then, normally, the injured State will first give that other State written notice to this effect.

Usually this notice will be followed by consultations in the course of which the injured State explains why it is invoking State responsibility and offers the other State the opportunity to respond. If it emerges from these consultations that the State against which State responsibility has been invoked

AVT18/BZ124970 4 denies responsibility or disputes the facts, the parties may decide to proceed to enter into negotiations, to establish a commission of inquiry to investigate the facts, or to engage a third party for the purpose of mediation. Pursuing these steps may take several years. If these efforts fail to yield results, the injured State may consider pursuing further legal steps, for instance unilaterally initiating legal proceedings by submitting the dispute to an international court or arbitral tribunal, provided that the State against which State responsibility has been invoked has consented to the resolution of the dispute in this manner.

If the decision is taken to resolve a dispute before an international court or an arbitral tribunal, the State or States submitting the claim will be required to demonstrate that the court or arbitral tribunal has jurisdiction in this case and that the claim is admissible. These procedural issues have to be addressed before the legal merits of the case can be considered. This phase of the proceedings may take several years.

Besides dispute resolution, it is also possible, under strict conditions, for a State whose rights have been violated to take unilateral measures to compel the responsible State to comply with its international obligations. For more information on how international law can be enforced in this way, I would refer to a letter of 13 April 2011 on this subject (Parliamentary Papers, House of Representatives 2010-2011, 32500-V, no. 166).

The implementation of State responsibility for the downing of flight MH17

With respect to the downing of flight MH17, the nationality of the victims, the country of registration of the aircraft that made the flight, and the country where the aircraft came down could all give a State grounds for acquiring the status of injured State. It would then be necessary to establish whether the injury was suffered by the State itself (direct injury) and/or by its nationals (indirect injury). In the case of indirect injury, it would be necessary to assess whether local remedies have been or should be exhausted.

The first step would be for the injured State or States to give the State or States against which they are invoking State responsibility written notice to this effect by means of a diplomatic note. This could be followed by consultations on the merits of the invocation of State responsibility and then negotiations between the States concerned. As mentioned above, consideration could be given to seeking the assistance of a third party with this process.

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Once the relevant international obligations that may have been breached in the context of the downing of flight MH17 have been identified (see section 2 above), it would be possible to establish whether various forms of legal dispute resolution are possible. If such options are open and the injured State or States decide to resolve the dispute with the responsible State or States by means of legal proceedings, the prescribed form of dispute resolution must be pursued.

It should be noted that not all provide for a compulsory form of dispute resolution in case of breach of their provisions. Where no such provision exists, and no other provision has been made for the compulsory jurisdiction of an international court or arbitral tribunal, the injured State and the responsible State will have to agree between themselves on how to resolve the dispute. This will require a willingness to cooperate on the part of all States concerned.

5. Concurrent proceedings

Invoking State responsibility means claiming that another State is responsible for a breach of international law. This form of responsibility differs from criminal responsibility and civil responsibility. Criminal responsibility concerns the prosecution and trial of individuals, while civil responsibility exists under national law and, as a rule, concerns relations between individuals and/or companies. Furthermore, State responsibility concerns the breach of a rule of international law, whereas criminal and civil responsibility in principle relate to the breach of a rule of national law. These three forms of responsibility are not mutually exclusive and can be invoked simultaneously or successively.

If one State invokes State responsibility against another State, this does not preclude other legal proceedings regarding the same incident. Individuals and companies may still initiate civil proceedings, and individuals or companies may still be prosecuted and tried under criminal law for their involvement in the same incident.

State responsibility proceedings in concurrence with other proceedings in relation to the downing of flight MH17

A number of non-Dutch next of kin of the victims have lodged individual applications against Ukraine and the Russian Federation at the European Court of , and more may do the same. I

AVT18/BZ124970 6 also understand from media reports that civil claims are being prepared against individuals and companies alleged to be involved.

In the introduction to this letter I recalled that the Netherlands is not ruling out any legal options whatsoever; this means that the option of invoking State responsibility against one or more States under international law for the downing of flight MH17 remains open.

In this letter I have explained that various complex legal and procedural steps would need to be taken in order to invoke State responsibility against one or more States for the downing of flight MH17, including gathering evidence and analysing it to determine whether any breach of obligations can be attributed to one or more States.

Although invoking State responsibility under international law and pursuing criminal prosecutions of any alleged perpetrators could be mutually reinforcing in the sense that the outcomes of one set of proceedings could be useful to the other, it would also be necessary to prevent either set of proceedings from having a detrimental impact on the other. It should also be noted that the downing of flight MH17 did not have an impact solely on the interests of the Netherlands. It is therefore conceivable that the Netherlands would consult other countries on pursuing such a course of action. I will inform your House of any decision on whether or not to invoke State responsibility against one or more States.

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