The following was an accurate statement of the legal position yesterday morning regarding responsibility for investigating the circumstances of the MH17 disaster in Ukraine:
‘European investigators, who unexpectedly arrived on the Malaysian aircraft crash site in eastern Ukraine, had “no legal locus” to participate in the investigation without Kiev's invite, Professor Robert Black of the University of Edinburgh, known as the “architect of the Lockerbie trial”, told RIA Novosti on Monday.
‘“If the nation decides that they don’t have the necessary facilities or investigative infrastructure, then they can call on another state or states to lend them the expertise,” said Black, a globally recognized legal expert, who specialized in examining the judicial issues surrounding the 1988 bombing of Pan Am Flight 103 over Lockerbie.
‘“Air investigation teams from Europe simply arrived at the scene and are now complaining that they weren’t immediately allowed free access to the site,” the lawyer said.
‘“It is understandable that they should be annoyed, but they have no legal locus to be there whatsoever unless and until they are invited to participate by the state which has the legal responsibility to investigate,” Black added.
‘“The law is that the responsibility to investigate is that of the state where the plane came down. But given the circumstances in that part of Ukraine at the moment, it is a difficult question to answer. Who is the state and who is the government of that state?” the expert said.
‘Black agreed it was important for the site to be secured and called for proper international investigation into the circumstances of the crash.’
Later that day, the United Nations Security Council passed Resolution 2166 (2014). This now provides (and is binding in international law):
“The Security Council (...)
6. Demands that the armed groups in control of the crash site and the surrounding area refrain from any actions that may compromise the integrity of the crash site, including by refraining from destroying, moving, or disturbing wreckage, equipment, debris, personal belongings, or remains, and immediately provide safe, secure, full and unrestricted access to the site and surrounding area for the appropriate investigating authorities, the OSCE Special Monitoring Mission and representatives of other relevant international organizations according to ICAO and other established procedures;
7. Demands that all military activities, including by armed groups, be immediately ceased in the immediate area surrounding the crash site to allow for security and safety of the international investigation;
8. Insists on the dignified, respectful and professional treatment and recovery of the bodies of the victims, and calls upon all parties to ensure that this happens with immediate effect;
9. Calls on all States and actors in the region to cooperate fully in relation to the international investigation of the incident, including with respect to immediate and unrestricted access to the crash site as referred to in paragraph 6 (...)
11. Demands that those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability”.
OSCE = Organization for Security and Co-operation in Europe
ICAO = International Civil Aviation Organization