Australia and Russia in the International Court of Justice: the MH17 case

By Olivia Gotting, LLB candidate, and Professor Donald R. Rothwell, ANU School of Law

On 17 July 2014, Malaysian Airlines flight MH17 was shot down over eastern Ukraine by a Buk missile, killing all 298 people on board, including 38 Australians. The attack occurred amid the war in Donbas, where Russian-backed separatists of the Donetsk People’s Republic (DPR) were fighting to seize territory from Ukraine. Within four days, Australia authored and successfully secured the unanimous adoption of United Nations Security Council Resolution 2166, which condemned the attack and demanded accountability. Pursuant to the Resolution, two complementary investigations were established:

1. the Joint Investigation Team (JIT) – comprising Australia, Belgium, the Netherlands, Malaysia and Ukraine – which conducted the criminal investigation; and
2. the Dutch Safety Board (DSB), which undertook the technical investigation in accordance with international aviation protocols.

The findings of the JIT and DSB formed the basis for criminal proceedings and, in March 2020, the Netherlands Public Prosecution Service initiated proceedings against four individuals allegedly involved in the MH17 downing. On 17 November 2022, the District Court of The Hague convicted three of the accused in absentia for causing the crash and conspiracy to commit murder, and affirmed that Russia exercised overall control over DPR forces.

Separate to these processes associated with individual criminal responsibility, in 2018 Australia and the Netherlands formally notified Russia that they held Moscow responsible under international law. When diplomatic negotiations failed, Australia and the Netherlands jointly filed an application in 2022 before the International Civil Aviation Organisation (ICAO), alleging Russia had violated Article 3 bis of the Convention on International Civil Aviation (Chicago Convention), which obliges states to “refrain from resorting to the use of weapons against civil aircraft in flight”.

The ICAO Council delivered its decision on 12 May 2025. In an unprecedented ruling – the first in its history to adjudicate a dispute on the merits – it found that Russia had “failed to uphold its obligations under international air law”. The Council declared the claims of Australia and the Netherlands “well-founded in fact and in law” and directed Russia to negotiate reparations. In response, on 18 September 2025, Russia formally filed an appeal application in the International Court of Justice (ICJ),  challenging both the ICAO’s competence and its application of the Chicago Convention. The appeal now requires the ICJ to determine not only procedural limits on the ICAO’s authority but also the broader principles governing state responsibility. The ICJ has now set 29 June 2026 as the date by which Russia is to file its written Memorial, with the Australian and Netherlands response due by 29 January 2027.

This article assesses the legal issues that will arise in this novel ICJ case, which may bring some finality to the long-running legal proceedings arising from the downing of MH17.

Russia’s appeal to the International Court of Justice

Russia’s ICJ appeal is a lawful (though politically charged) exercise of its right under Article 84 of the Chicago Convention. This provision authorises any contracting state involved in a dispute “relating to the interpretation or application of this Convention” to submit the matter to the ICAO Council, and, if dissatisfied with the Council’s decision, to appeal either to an ad-hoc tribunal or to the ICJ. Such appeals are incredibly rare, with only four having occurred. They are also unique, as the ICJ is not often considered as a court of appeal. But because of the bespoke nature of the ICAO Council and its mixed judicial/political decision-making, the ICJ in this instance performs a strict judicial appellate function under the Chicago Convention.

Examining Russia’s grounds of appeal

Russia seeks a declaration that the ICAO Council decision “erred in fact and in law” and violated “fundamental principles of proper administration of justice”. The application advances nine grounds of appeal, arguing that:

1. Under Article 89, the Chicago Convention does not apply to armed conflicts;
2. Article 3bis only concerns interceptions of aircraft violating sovereign airspace and does not apply to wartime incidents;
3. The downing did not breach international humanitarian law and thus did not violate the Convention;
4. The Council failed to ensure a just procedure;
5. An improper standard of proof was applied (certainty beyond reasonable doubt);
6. The act was not attributable to Russia under international law;
7. Ukraine’s potential responsibility was disregarded;
8. The remedies exceeded the Council’s powers under Article 84; and
9. The findings relied on biased, unreliable and circumstantial evidence.

While each ground warrants close examination, this analysis focuses on the jurisdictional questions of whether the Chicago Convention applies (including the scope of Article 3bis) and the attribution of state responsibility. The analysis proceeds on the premise, articulated by Australian Minister for Foreign Affairs Senator Penny Wong, that as a respondent to the proceedings, “Australia will strongly resist any attempts to impugn the decision of the ICAO Council”.

Jurisdictional challenges and the scope of Article 3bis

Russia advances two interrelated jurisdictional arguments:

1. Relying on Article 89 – which allows states to derogate from the Convention during war or emergency – Russia argues ICAO exceeded its jurisdiction by addressing events arising from an armed conflict, which it asserts should instead be governed by international humanitarian law (IHL); and
2. That the downing of MH17 by non-state actors over Ukrainian territory falls outside the scope of Article 3bis, which Moscow claims applies only to deliberate interceptions within a state’s own airspace.

Both arguments are misconceived and should be rejected for three reasons. First, Russia’s arguments misunderstand the relationship between the Chicago Convention and IHL. The ICJ has consistently held, including in its 1996 and 2004 Advisory Opinions, that humanitarian protections remain operative during armed conflict, not suspended by it. Certainly, the International Law Commission observed in its Draft Articles on the Effects of Armed Conflicts on Treaties that the existence of an armed conflict does not automatically suspend a treaty’s operation.  While Article 89 contains a general wartime exception to the Convention’s original provisions, Article 3bis (introduced later by amendment) was intended to function autonomously. As Geiß demonstrates, the drafting history shows that states deliberately rejected attempts to subject Article 3bis to broader wartime exceptions. Instead, they established that “the legitimacy of forcible countermeasures against civil aircraft in flight must be determined solely within the purview of article 3bis of the Convention and Article 51 of the Charter”, irrespective of Article 89 or IHL rules that might otherwise apply. This creates a self-contained regime in which neither Article 89 nor the lex specialis of IHL can displace protections afforded under Article 3bis.

Second, Article 3bis was specifically drafted to apply in situations of armed conflict and military activity. The provision was adopted in response to the 1983 downing of Korean Air Lines Flight 007 and was expressly designed to be “absolute and unconditional,” extending to all civil aircraft regardless of nationality or location, whether within or outside national airspace. State practice affirms this understanding: following the 1988 Iran Air 655 incident, the United States accepted responsibility and paid compensation, acknowledging that Article 3bis obligations continue to apply even during armed conflict.

Third, even if Russia could invoke Article 89, any derogation would need to be strictly limited by principles of necessity and proportionality. The deliberate targeting of a civilian aircraft flying a scheduled international route cannot conceivably meet those standards. Article 89 was never intended to provide a blanket exemption from fundamental aviation safety norms – particularly not in circumstances involving the loss of civilian lives.

Attribution of state responsibility

Equally critical to the appeal is Russia’s challenge to the ICAO Council’s findings on state responsibility. The applicable framework derives from the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). Notably, the focus here is on Article 8, which extends attribution beyond formal organs, providing that:

“The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”.

Russia contends that ICAO erroneously extended state responsibility to an event over which Russia had no direct operational involvement or intent. Moscow’s arguments rest on the ‘effective control’ test articulated in Nicaragua v United States(1986), where the ICJ held that a state is only responsible for acts of non-state actors if it exercises direct and specific control over the conduct in question. Russia therefore argues that, absent evidence that they ordered or supervised the missile firing, the actions of the DPR separatists in shooting down MH17 cannot be imputed to Moscow. 

The Joint Investigation Team’s evidentiary findings 

Relevantly, the ICAO Council’s May 2025 decision, relied largely on the investigation conducted by the JIT. The evidence established that:

• DPR leaders had close ties with Russian intelligence services, the Presidential Executive Office and Kremlin advisers. Many had a Russian military background.

• DPR leaders frequently requested assistance from the Russian Federation, including military equipment, manpower and training, and such assistance was provided.
• NATO also repeatedly called on Russia to cease providing weapons and support to the separatists, and the Court found “ample indications” of Russian coordination in the conflict generally.
• The Buk launcher that shot down MH17 came from the 53rd Anti-Aircraft Missile Brigade of the Russian Armed Forces.
• DPR forces operating the Buk system functioned within a command structure coordinated with and supported by Russian military and intelligence apparatus.
• Intercepted communications and satellite imagery showed direct coordination between Russian and DPR forces in transporting, operating and withdrawing the Buk launcher.
• An intercepted call captured a DPR aide noting that decisions required approval from “Number One,” later identified by the JIT as President Putin.

While no document explicitly contains a direct order to fire, the cumulative evidence indicates systematic logistical control, operational facilitation and subsequent concealment – a pattern consistent with substantial Russian involvement. Supporting Australia’s position, the JIT’s findings have been affirmed by both the District Court of The Hague and the ICAO Council, leaving little room for factual dispute.

The inadequacy of the Nicaragua test in modern conflict

While Russia relies on the effective control standard, Australia can argue that this framework is outdated and ill-suited to the complexities of contemporary conflicts. Originating in Nicaragua, where it addressed US funding and training of lightly armed guerrilla groups, the test has been criticised for lacking grounding in judicial or state practice and for applying only to cases where private actors operate directly on behalf of a state. As Lanovoy notes, this does not adequately account for situations where a state provides consistent financial or military support to non-state actors. In conflicts like MH17, a state may not give direct operational orders but can still enable the wrongful act by providing weapons, intelligence or technical support. Structured assistance of this nature blurs the line between direct and indirect participation, highlighting the inadequacy of the Nicaragua framework for modern proxy and hybrid warfare, where states deliberately conceal their involvement through shared command networks and cross-border logistics.

Advocating for the ‘overall control’ test

Therefore, Australia should instead advocate for the ‘overall control’ test developed by the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber in Tadić, which more flexibly interprets Article 8 of ARSIWA and aligns with Crawford’s view that “direction or control” must adapt to diverse factual circumstances.  The Tadić test attributes conduct to a state where it plays a role in “organising, coordinating or planning the military actions” of a group, or provides the material and strategic support enabling those operations. As the ICTY Chamber observed, the law of attribution exists to prevent states from escaping responsibility by outsourcing acts that would otherwise be unlawful if performed by state officials.

Russia’s complicity under Article 16

Even if the ICJ rejects the overall control test, Russia’s conduct would still engage responsibility under Article 16 of ARSIWA. Under this provision, a state incurs responsibility where it knowingly aids or assists another in committing an internationally wrongful act, and where that assistance materially contributes to the violation. As Mohniyan outlines, four cumulative conditions must be met:

1. The assisting state must provide aid or assistance;
2. There must be a sufficient nexus between the assistance and the principal wrong;
3. The assisting state must have the requisite knowledge; and
4. The act would have been wrongful if committed by the assisting state itself.

The first, second and fourth conditions are readily satisfied on the MH17 facts. Russia provided tangible military assistance through the transfer of the Buk missile and trained personnel to DPR forces. Here, Russia’s support was the direct instrumentality of the shootdown, not a peripheral contribution. The ICJ’s reasoning in Bosnia supports this: while the Court ultimately declined to find Serbia complicit in genocide, it recognised that extensive military and logistical support (such as weapons supply and coordination) fell within the scope of “aid or assistance” under Article 16.

The central issue becomes the mental element. Article 16 requires knowledge of the factual circumstances that make the conduct internationally wrongful, though not necessarily awareness of its illegality. As Crawford explains, the standard should not be applied so narrowly as to allow states to “escape responsibility by deliberately maintaining ignorance” of foreseeable consequences. Russia’s extensive operational integration with DPR forces and the inherently high-risk nature of deploying a sophisticated anti-aircraft weapon in contested airspace, make it implausible that Moscow lacked such awareness. Russia’s post-incident behaviour strengthens this inference. The prompt removal of the Buk launcher, falsification of evidence and dissemination of disinformation suggest prior awareness and an effort to conceal involvement.

The duty to prevent

Beyond attribution and complicity, Australia has grounds to argue that Russia bears omission-based responsibility. As Boon observes, “the duty to prevent has become a favoured strategy” for addressing state responsibility gaps. Crawford similarly contends, “this is the right approach: better to develop primary norms than artificially extend the effective control test”. Under both Article 3bis of the Chicago Convention and customary international law, Russia was bound by positive obligations to ensure airspace safety and prevent foreseeable risks to civilian aviation.

Conclusion

For Australia, the challenge extends beyond securing a favourable ICJ determination; it lies in ensuring that such a ruling translates into coordinated, legally grounded enforcement measures. While defending the ICAO Council’s findings before the ICJ and leveraging ICAO’s institutional and regulatory frameworks are critical steps, these mechanisms represent only part of a broader accountability strategy. Ultimately, the MH17 case signals to the international community that even powerful states remain accountable, and that within the rules-based order, coordinated state action can both safeguard civilian aviation and transform legal findings into enforceable outcomes that achieve meaningful justice.