“This is the first time that the ICAO Council has decided on the merits of a dispute between its Member States.”
“Every State must refrain from resorting to the use of weapons against civil aircraft in flight, according to the Chicago Convention.”
“ICAO should publicize all oral and written proceedings relating to the case.”
MH17 Eleven Years Later:
ICAO Finds Russia Breached International Law
León Castellanos-Jankiewicz
July 17, 2025 — Eleven years after the shooting of Malaysia Airlines Flight 17 (MH17), the search for justice and accountability continues. In a historical vote, the Council of the International Civil Aviation Organization (ICAO) found on 12 May 2025 that the Russian Federation failed to uphold its obligations under international law in the Boeing 777’s downing.
No documentation directly relating to the proceedings is publicly available yet, but ICAO has issued a short press release announcing the decision, which will be published in the coming weeks. This explainer focuses on the ICAO Council’s decision and its possible ramifications based on currently available information.
This is the first time that the ICAO Council has decided on the merits of a dispute between its Member States. The proceedings were brought by Australia and the Netherlands to the ICAO Council’s dispute settlement mechanism, which is governed by the 1944 Chicago Convention on International Civil Aviation. The dispute settlement mechanism has been rarely used in ICAO’s 80-year history. The fact that it has never reached a final decision until now can be explained by its emphasis on negotiation and mediation in order to reach agreement between the parties.
The Netherlands and Australia, which welcomed the decision, want the ICAO Council to order Russia to enter into talks on possible reparations, which could presumably include financial compensation for victims’ families and next-of-kin. Russia’s foreign Ministry issued a statement saying it “refuses to accept” the decision of the Council, which it called “illegitimate”.
Background
MH17 was a regularly scheduled passenger flight from Amsterdam Schiphol airport to Kuala Lumpur that was shot down while flying over Eastern Ukraine with a Buk surface-to-air missile launched by pro-Russian separatists, killing all 283 passengers and 15 crew on board. The incident occurred eleven years ago today, on 17 July 2014, and is the deadliest aircraft shoot-down in aviation history.
MH17 has led to extensive litigation over the years, including civil, criminal, human rights and inter-state cases. The MH17 Trial in the Netherlands was until recently the most high-profile of these (see here). In those proceedings, which were supported by a multinational investigation, the District Court of the Hague found in 2022 two Russians and a Ukrainian separatist criminally liable in absentia for shooting down the aircraft and murdering those on board. The three convicted individuals were sentenced to life imprisonment and presumably remain at large, whereas a fourth defendant was acquitted for lack of evidence.
On the inter-state plane, the European Court of Human Rights (ECtHR) issued its long-awaited merits judgment in Ukraine and the Netherlands v. Russia last week. In this landmark decision, the ECtHR unanimously held that Russia violated the right to life in respect to the aircraft’s downing and the right to an effective remedy by hampering investigation and accountability efforts. The Court found, also unanimously, that the “continuing profound suffering” of the victims’ next-of-kin amounts to inhuman treatment, thereby triggering a violation of Article 3 of the European Convention on Human Rights on the part of Russia.
Separately, claimants were granted compensation by Malaysia Airlines Group in 2016 under the Montreal Convention, which imposes strict liability on a carrier in case of death or injury of passengers on board an aircraft regardless of fault or the circumstances of a crash. As a legal concept, strict liability operates irrespective of intent or negligence, and cannot be understood to place any blame on Malaysia Airlines for the incident. Moreover, a finding of strict liability and compensation arising thereof does not exclude other accountability efforts sought, which can be pursued separately.
Convoy with 40 hearses carrying MH17 victims heading to Hilversum, Netherlands, while other traffic stopped. Image: Dutch Ministry of Defence, free to use under license CC BY 3.0.
The Prohibition of Using Weapons against Civilian Aircraft
In bringing their claims to the ICAO Council, Australia and the Netherlands alleged that Russia was in breach of Article 3 bis of the Chicago Convention, which provides that “every State must refrain from resorting to the use of weapons against civil aircraft in flight” and must not endanger the lives of persons on board in case of interception.
Article 3 bis was introduced through a Protocol to the Chicago Convention in 1984 in the aftermath of the shooting of Korean Air 007, and came into force on 1 October 1998. Its language clearly prohibits armed attacks against civilian aircraft on the basis of treaty, and possibly customary international law (see here for further analysis).
The rule in Article 3 bis also applies in the event of an unauthorized incursion, although this was not the case of MH17, which was cruising on its designated flightpath at the time of interception (see here for the incident’s sequence).
In its 2014 resolution condemning the destruction of MH17, the ICAO Council reaffirmed Article 3 bis of the Chicago Convention. Furthermore, the UN Security Council’s resolution condemning the MH17 shooting demanded that all States and other actors refrain from acts of violence against civilian aircraft.
The ICAO Council Proceedings against Russia
The ICAO Council proceedings were brought by Australia and the Netherlands against Russia in 2022 under the dispute settlement clause of the Chicago Convention. This treaty lays down ICAO’s institutional framework and establishes technical rules concerning air navigation and safety. The 193 signatory States to the Convention meet at the ICAO Assembly in Montréal every three years, and elect the Council of 36 States, which is responsible for ICAO’s governance when the Assembly is not in session.
According to the passenger manifest, there were 27 persons traveling with Australian passports and 193 persons with Dutch passports aboard MH17. The nationality of these passengers explains why the Netherlands and Australia decided to initiate the ICAO Council proceedings, but it should be noted that other countries and plaintiffs are also entitled to make – and have indeed made – claims for liability, damages and reparation in other fora.
According to Article 84, “any disagreement” relating to the application and interpretation of the Chicago Convention which cannot be settled by negotiation shall be decided by the Council. Any one of the 193 states-party to the Convention can activate this dispute settlement clause. Australia and the Netherlands thus presumably attempted to negotiate with Russia about their “disagreement” before activating the Council’s dispute settlement mechanism.
The ICAO Council proceedings against Russia have been held behind closed doors, and no official documentation or verbatim records have been released to date. According to the ICAO press release, the proceedings “involved written submissions and oral hearings spanning multiple Council sessions.” Moreover, a “formal decision document setting out the reasons of fact and law leading to the Council’s conclusions will be issued at a future meeting.” The ICAO Rules for the Settlement of Differences provide in Article 30 that the records of the proceedings shall be open to the public “unless otherwise ordered by the Council”.
Despite the limited information currently available, the ICAO Council’s annual reports of 2022 and 2023 paint a picture of the dispute’s main procedural phases. The case was initiated by a joint application of Australia and the Netherlands transmitted to ICAO by Note Verbale dated 14 March 2022 together with a Memorial “for the settlement of a disagreement”. Following this, Russia presented a “preliminary objection” that was rejected by the Council in March 2023. The filing of written pleadings ensued: a Counter-Memorial by the Respondent in April 2023, a Reply by the joint Applicants in July 2023 and a Rejoinder by the Respondent in November 2023.
The release of ICAO’s formal decision and the proceedings relating to the case could potentially shed new light into the events surrounding the shooting of MH17 because Russia actively participated in the ICAO Council proceedings until 17 June 2024, presumably cooperating in the presentation of evidence and testimony. On that date, however, the Foreign Ministry announced that Moscow would stop participating “in view of the multiple procedural violations by the Council and the ICAO Secretariat, which made an impartial fact-finding effort all but impossible.” The same statement maintained that “Russia was not involved in the MH17 crash”.
In the interest of transparency and judicial propriety, ICAO should publicize all oral and written proceedings relating to the case. In addition to the “formal decision document” mentioned in the ICAO press release, these should ideally include all written submissions, the reasoning behind the final decision, the individual country votes of ICAO Council members for each decision or resolution taken in these proceedings, and explanations of vote provided by ICAO Council members, if any.
ICAO Headquarters in Montréal, Canada. Image: Henrikson, free to use under license CC BY-SA 3.0.
The Appeal Procedure
The case against Russia initiated at the ICAO Council could potentially reach the International Court of Justice (ICJ) in The Hague. According to Article 84 of the Chicago Convention, a State may “appeal” the decisions of the ICAO Council to an ad hoc tribunal agreed upon by the parties, or to the Permanent Court of International Court of Justice. Such an appeal could thus be referred to the ICJ by virtue of Article 37 of the ICJ Statute. This appeal could in principle be made by Russia. Although it is unlikely, Australia and the Netherlands are also entitled to activate this procedure if, for example, they are not satisfied with the outcome. The merits of such a case would probably revolve around the finality of ICAO’s decision of last May or focus on reparations, and could take several years.
According to the Chicago Convention, the appeal must be lodged with the Council within sixty days of receipt of notification of the Council’s decision. Assuming that this notification was delivered to all parties concerned on 12 May 2025 (the date of the ICAO press release) the deadline to appeal the Council’s decision lapsed last week. No information is available on the ICAO website as to whether an appeal has been lodged at the time of writing.
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The unprecedented nature of the ICAO Council decision against Russia for failing to meet its international law obligations in the downing of MH17 is significant, and highlights the complexity of litigation and parallel proceedings in seeking accountability. Moreover, being the first time that such a conclusion to proceedings has been reached in that forum, it will be important that ICAO publicizes the decision and proceedings as comprehensively as possible in the interest of transparency, global aviation safety and the international rule of law.
Header Image: The aircraft concerned, 9M-MRD, seen in 2011. Photo by Alan Wilson - Boeing 777-2H6ER '9M-MRD' Malaysian. Free to use under license CC BY-SA 2.0
“The incident occurred eleven years ago today, on 17 July 2014, and is the deadliest aircraft shoot-down in aviation history.”
“MH17 has led to extensive litigation over the years, including civil, criminal, human rights and inter-state cases.”
“Australia and the Netherlands presumably attempted to negotiate with Russia about their disagreement before activating the Council’s dispute settlement mechanism.”
“The case against Russia initiated at the ICAO Council could potentially reach the International Court of Justice in The Hague.”