Within the past few days, a law firm in England announced they’re going to sue Russia and its President, Vladimir Putin, for wrongful death damages arising from their role in the shootdown of MH 17.
Now don’t get us wrong, the circumstantial and direct evidence certainly suggest that Russia was involved in some manner. What remains unclear is their precise role, i.e. was the Russian military actually involved in “pressing the button,” what did Mr. Putin or others in the Russian Government know and when did they know it, etc.
While we may agree with the sentiment underlying the announcement to sue President Putin and Russia, the reality is significantly more complicated. For example:
In What Court Do You Sue?
The real issue here is that of sovereign immunity. Russia, like it or not, enjoys (if that’s the right word to use here) the same immunities as any other nation. Accordingly, it is highly unlikely that Russia can be successfully sued. Moreover, the same is true of suing Mr. Putin, as a head of state.
State Sponsor of Terrorism
The United States does not include Russia on its list of state sponsors of terrorism, a designation which, theoretically, might have allowed Russia to be sued somewhere. Iran, Syria, Sudan and Cuba are the four countries currently on the US Department of State’s list.
Proof of Liability
It’s one thing for lawyers to hold press conferences, or even for the media to conclude the evidence points to Russia’s involvement. It’s quite another to establish by a preponderance of evidence, in a court of law, the right to recover monetary damages.
Perhaps now that some investigators have, after several weeks, arrived at the site, we will finally see some semblance of an investigation and factual evidence of Russian involvement developed. However, it still seems like something of a daunting task to establish, as a matter of law, that monetary damages should be awarded against Russia or Putin, assuming one can even sue them.
Certainly there are international forums which might be available like the International Court of Justice at The Hague (“The World Court”). But the World Court’s jurisdiction is typically not available to individuals. Thus, for example, The Netherlands would have to initiate action on behalf of its citizens who perished on MH 17 and, even then, the recovery of monetary damages would be problematic as The World Court’s main function is to provide advisory opinions on legal questions.
Another possibility, perhaps less unlikely than The World Court, is the European Court of Human Rights. This Court does hear claims by individuals against Contracting States, which includes Russia, for violations of human rights. However, even a decision against Russia may not result in payment since getting a decision is one thing and collecting it is another.
There is little doubt that lawyers, being litigious and not averse to publicity, are going to find it impossible to resist the filing of litigation somewhere, in some court. While there will undoubtedly be, as we have already seen, a flurry of publicity and notoriety accompanying such filings, the reality of what happens next is unlikely to be nearly as satisfying.
All we can say to those lawyers who choose to lead the charge against Russia and President Putin is good luck and “go get’em!”
(Originally posted August 1, 2014)