MH17 next-of-kin can file suits in US, says lawyer
The families of those who died in the downing of Malaysia Airlines flight MH17 over Ukrainian airspace last Thursday can file suits in the United States against the perpetrators of the crime under an 18th century statute that allows foreign citizens to seek remedies in American courts for human rights violations, a German aviation lawyer said.
Professor Dr Ulrich Jeinsen said the next-of-kin had the option to rely on the Alien Tort Statute (ATS) which allowed foreigners to use the United States court to seek justice.
"Since 1980, the courts there have interpreted this statute to allow foreign citizens to seek remedies for human rights violations committed outside the United States," he told The Malaysian Insider.
The ATS was enacted in 1798 but was dormant for two centuries until 1980 when judges in the US began hearing cases filed by foreign nationals, including against multinational companies.
Jeinsen said the suits could be filed in a federal court in any of the states in the US.
"Generally, the US courts do not accept cases which originate outside its jurisdiction but MH17 is an exception because it is a crime against humanity.”
Jeinsen was in Kuala Lumpur recently to meet families of passengers and crew of missing flight MH370 on the possibility of filing claims against Malaysia Airlines as prescribed under the Montreal convention that involved commercial jets.
The Kuala Lumpur-Beijing bound aircraft carrying 239 people vanished on March 8 and an international coordinated search for it is ongoing.
Jeinsen said it was premature to point fingers at who was responsible for bringing down MH17 which was flying from Amsterdam to Kuala Lumpur.
"But the next-of-kin can definitely file actions against the party who was responsible for supplying the weapon to those who shot down the plane," he said.
American intelligence agencies said a surface-to-air missile took down the jet.
Washington and the European Union are blaming Russia and pro-Russian rebels for downing the jet.
However, Russia and the insurgents are shifting the blame to Ukraine as the country where the crash occurred should be held responsible.
"To me, who supplied the missile for the horrendous act is the primary concern and not who shot down the plane," said Jeinsen, adding that the US court could hear the suit even if a sovereign state was named as party.
He said the culprits who shot down the plane should also be included as defendants if there was sufficient evidence to implicate them.
Jeinsen, who has represented clients in numerous civil suits against commercial flight operators, said the MH17 next-of-kin could also sue Malaysia Airlines under the Montreal convention, adding that it has to be done within 24 months.
"At the same time, the owners of Malaysia Airlines could also initiate a suit against those responsible for bringing down the aircraft and show it suffered losses in business and reputation as a result of the incident."
He said that an airline suing another party was an isolated case but lawyers must be creative in drafting their pleadings. – July 26, 2014.
