Study On The Subject Of International Responsibility For The Use Of Force Against Civil Aircraft

On July 17,2014,a Malaysian Boeing 777 passenger plane(Airlines MH17)crashed near the Russian border(Eastern Ukraine's armed conflict area),killing 283 passengers and 15 crew members.The accident investigation showed that the reason for the crash of Airlines MH17 was that it was shot down by a surface-to-air missile at a height of 10,000 meters.The incident shocked the world.At the same time,which subjects of international law should bear international responsibility for this incident have become the focus of public opinion.Ukraine and U.S.believed that eastern Ukraine's insurgent group and Russia were perpetrators,arguing that Russia provided weapons to the insurgent group in eastern Ukraine.However,the Russian Defense Ministry stated that it had never exported any weapons or air-defense missiles to the insurgent group in eastern Ukraine.At the same time,the Russian Defense Ministry showed evidence that 3 to 5kilometers near the crash site of Malaysia Airlines MH17,6 Ukrainian fighters were shot down,demanding a reasonable explanation from Ukraine.There were also points of view accusing the Ukrainian authorities of not fulfilling their duty of care and setting up prohibited areas where armed conflict was happening.In addition,the plight of the Malaysian Airlines flight MH17 case lies in,if the shooting down was a result of the insurgent group in eastern Ukraine,whether the insurgent group and its members possessed the qualifications for assuming responsibility under internationallaw and whether their wrongful act could be attributed to Ukraine.For the safety of civil aviation,these are all problems that need to be resolved.However,there is no clear provision in international law.Therefore,this article attempts to conduct a study on "the subject of international responsibility for the use of force against civil aircraft",analyzing the corresponding international legal responsibility for the use of force against civil aircraft from the perspective of the responsible subject.The first chapter of this article analyzes the state responsibility for the use of force against civil aircraft.Firstly,this chapter analyzes that it is not necessary to overly rely on the mechanical classification criteria of subjective responsibility or objective responsibility to determine the constitutional elements of state responsibility.On the contrary,it is better to determine the state responsibility by the causal relationship between “inaction” and “consequences of damage”;then the “principle of prohibiting the use of force against civil aircraft” is categorized as customary international law,and demonstrates that the use of force against civil aircraft by the State violates the principle of United Nations Charter----prohibition of the use of force or the threat of force and the customary international law----principle of prohibiting the use of force against civil aircraft;and it finally argues that compliance with the "proportional principle" of international law can remove the unlawfulness of the use of force against civil aircraft.Chapter II analyses the international responsibility of insurgent groups for the use of force against civil aircraft.First of all,the analysis shows that when insurgent groups are recognized as belligerent community by the international community,they can gain the international personality and can assume their own international responsibilities.The forms of this kind of responsibility include apology,compensation and so on.Although in reality,international responsibilities the insurgent groups can bear are quite limited,members of the insurgent groups can bear international criminal responsibility,and their act of using of force to attack civilian aircraft falls within the category of “crimes against humanity”.Then this chapter analyzes the issue of accountability for the behavior of insurgent groups.In general,the behavior of insurgent groups that fight with the legitimate authorities cannot beattributed to the State in accordance with international law,unless the insurgent group has finally succeeded in establishing a new state or a new regime.In addition,regarding the shooting down of Malaysia Airlines MH17 by the missile,regardless of the party that launched the missile,it is clear that Ukraine,as a sovereign country,has not fulfilled its due international obligations in preventing the occurrence of such dangers(mainly referring to the country's duty of care).For Ukraine,there is the negligence responsibility for omission(this kind of omission is mainly reflected in "no air restricted zones are established" and "no danger notices are issued"),and therefore Ukraine needs to bear the corresponding state responsibility.The third chapter analyzes the international responsibility of a country for controlling,commanding or financing “the act of using of force against civil aircraft”.According to the analysis,“conducting” is relatively easy to judge in real cases,but“controlling” tends to adopt more stringent standards.The international responsibility of a country's assistance cannot be confused with the responsibility of the actor.The act of assistance will only need to assume international responsibility only if itself causes or contributes to internationally wrongful acts.In the case of the Malaysia Airlines MH17,based on information currently available,it is difficult to determine whether Russia's international responsibility for aiding arms to the insurgent group will lead to international.Chapter IV analyses the international responsibility of the International Civil Aviation Organization to prevent the use of force against civil aircraft.It mainly demonstrates ICAO's international responsibility qualification and lists its obligations to prevent the “use of force against civilian aircraft”,including: exercising“quasi-legislative power”----establishing international standards and measures to prevent the use of force against civil aircraft;exercising “quasi-judicial powers”----conducting dispute resolution on the behavior of using of force against civil aircraft;exercising “management rights” to organize the establishment of“conflict zone risk notification system”.