As all those following the Strasbourg system know well, the bulk of the work of the European Court of Human Rights is taken up by dealing with individual complaints. By contrast, Inter-State cases are exceedingly rare. Article 33 ECHR provides that any state party can "refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party", but this mechanism is rarely used, as it is considered a very heavy diplomatic step. One could almost say that only states that have extremely and long-standing strained relationships, due for example armed conflicts or large scale violence take such a step.
All the more surprising maybe that yesterday the government of the Kingdom of The Netherlands announced it is bringing an inter-state complaint against the Russian Federation to Strasbourg. The case relates to the downing of flight MH-17 of Malaysia Airlines over Eastern Ukraine during the conflict there, almost exactly six years ago - a tragedy that killed 298 people, the majority of whom were Dutch.
The move can be see in a wider mix of legal procedures that have been ongoing next to diplomatic efforts. The main suspects are currently criminally prosecuted under Dutch law, in absentia, after extensive research into the causes of the crash by the international Joint Investigation Team (JIT). The Netherlands has also, two years ago, together with Australia (another large group of the passengers on board of MH-17 were Australians) formally held Russia accountable under international law. In addition, a large number (380 people) of next-of-kin of those killed have lodged a complaint at the European Court of Human Rights against Russia in 2016 and 2018 about violations of Articles 2, 3, 8 and 13 ECHR, alleging that Russia 'was responsible for the destruction of the plane and for their relatives’ deaths, either directly or indirectly, and failed to investigate the disaster properly or to cooperate with other international investigations.' These joined cases have been communicated to Russia in April 2019. The Netherlands will intervene as a third party in these cases as well.
Both the inter-state complaint and the third party intervention have been done to support the next of kin, the Dutch government has announced. Russia has always denied any involvement in the shooting down of the plane. The legal battle and the battle for truth will now thus be fought at several levels and in several legal fora. The step also means that other, diplomatic means, were not yielding results.
Russia has called the legal step "another blow" to the Dutch-Russian relationship and interestingly said this legal application "will only lead to further politicization and will complicate the search for the truth" as the New York Times reports.
For a full overview of the two handfuls of inter-state cases in Strasbourg, see here. One may note that several other inter-state applications against the Russian Federation, lodged by both Ukraine and Georgia, are currently pending.
Here is the full pres release of the Dutch Government:
'Today, the Dutch government decided to bring Russia before the European Court of Human Rights (ECtHR) for its role in the downing of Flight MH17. By submitting an inter-State application, the government is sharing all available and relevant information about the downing of Flight MH17 with the ECtHR. The contents of the inter-State application will also be incorporated into the Netherlands’ intervention in the individual applications submitted by the victims’ next of kin against Russia to the ECtHR. By taking this course of action the government is offering maximum support to these individual cases.
What is more, by submitting this inter-State application, the Netherlands stands by all 298 MH17 victims, of 17 different nationalities, and their next of kin.
‘Achieving justice for 298 victims of the downing of Flight MH17 is and will remain the government’s highest priority,’ said foreign minister Stef Blok. ‘By taking this step today – bringing a case before the ECtHR and thus supporting the applications of the next of kin as much as we can – we are moving closer to this goal.’
The UN Security Council will be notified of this step as well.
The government attaches importance to continuing the meetings with Russia on the matter of state responsibility. The purpose of these meetings is to find a solution that does justice to the enormous suffering and damage cause by the downing of Flight MH17.'
Nearly six years since the downing of Flight MH17, which killed all 298 people on board, the pursuit of truth, justice and accountability remains the top priority for the Dutch government. The government has always said that it would not rule out any legal remedy to achieve this goal. This latest course of action brings us one step closer.'
And with this report, this blog goes on its annual Summer break!