International Tribunal for Flight MH17

Wednesday 15 July 2015 @ 10.26 a.m. | Legal Research

Australia, Malaysia, Ukraine, the Netherlands, and Belgium are urging the United Nations Security Council to set up an independent tribunal to “try those responsible for crimes” connected to the downing of Malaysia Airlines flight MH17 after their investigation into the issue. The tragedy which occurred on 17 July last year (2014) claimed 298 lives, 38 of which were citizens or residents of Australia.

International Tribunal

Malaysia, part of the current 15 member United Nations Security Council, distributed a draft resolution calling for the tribunal last week. The five countries backing the resolution hope that it will be adopted later this month. Australian foreign affairs minister, Julie Bishop, said in a statement:

“The establishment of an international criminal tribunal … would send a clear message that the international community will not tolerate acts that threaten international peace and security by endangering civil aviation…A tribunal established by the council would ensure broad international support for prosecutions and would maximise the prospects of securing international cooperation, which will be necessary for an effective prosecution.”

An anonymous Dutch government official said:

“A UN tribunal is the best option. We expect that it will provide the greatest chance of cooperation from all countries involved.”

The chance of a successful prosecution is considered slim at best but the Dutch still hope that, by pushing for a U.N.-style court with the backing of Western allies, they could pressure Russia, whose role in the process is critical, into cooperating. The text of the resolution calls for establishing the tribunal under Chapter Seven of the UN charter, which means that the court’s efforts to prosecute those responsible could be enforced by sanctions.

The flight was shot down over Ukraine last year. Suspicions immediately turned to pro-Russian separatists who may have used a surface-to-air missile supplied by Russia to down the plane. Russia has denied the claim and suggested that a Ukrainian missile may have hit it.

Other Forums of Adjudication

Dutch Prime Minister Mark Rutte has said the international court is the “best option” for prosecution but that there is also a “back-up plan” should the Russians block the proposal. However, it seems a trial in Ukraine would amount to nothing as it would be clear the Pro-Russian rebels are as unlikely to appear as the Russian government.

Although Dutch law may provide a universal jurisdiction for war crimes, the downing of a civilian airliner during a civil war, possibly by mistake, is not a good legal fit for the jurisdiction. Malaysia and Australia are both too far from the crime scene to afford any real jurisdiction over the issue. The anonymous Dutch government official explains that other options are still being considered but the international tribunal will afford the greatest chance for justice. However, the international court will require the backing of the Russian government and it is hoped that Russia would be forced to acquiesce otherwise it would be stigmatised as the only obstacle to justice in a mass killing of civilians.

Russian Opposition

Russian Deputy UN Ambassador Petr Iliichev has confirmed Moscow’s opposition to the plan earlier this week, saying:

“It’s not a good time and it’s counterproductive.”

Russian Deputy Foreign Minister Gennadiy Gatilov also criticised the proposal for being untimely and counterproductive. He argues that the investigation into the downing of the flight should be completed before any further steps are taken.

A final report on the Dutch-led probe is expected in October.

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