Legal opportunities to avoid Russian veto on MH 17

Author : Oleksandr Klymchuk

The most effective option is juridical process in the International Criminal Court
20:29, 7 October 2015

On July 17, 2014, near Hrabove, Donetsk region, one of the biggest tragedies in history of aviation happened - Boeing 777 of Malaysia Airlines, performing flight MH17 from Amsterdam to Kuala Lumpur, was shot down. As a result, all 298 people on board were killed. Almost a third of them were children.

On July 14, 2015, Ukraine, the Netherlands, Australia, Belgium, and Malaysia appealed to the UN Security Council to set up an international criminal tribunal to bring the guilty to justice. Russian permanent representative to the UN Vitaliy Churkin announced about Russian veto on the resolution, and on July 29, 2015 Russia implemented this decision.

In this regard, the question appeared before the international community - how to restore justice, to find and punish in legal way those who are directly involved into the accident. So, let us consider possible scenarios and risks to be faced by choosing one or another way.

Cancellation of veto in the UN Security Council and re-attempt to create Criminal Tribunal on MH17 collapse. An option that is on the surface, and several times it was voiced by representatives of different countries. However, in order to make such a major change, you must make amendment to the UN Charter. And this is possible only on the basis of decision 2/3 of the participating countries, certainly including all the permanent members of the Security Council (Articles 108-109 of the UN Charter). Taking into consideration official position of the Russian side on the inviolability of the right of veto, hope for the realization of this initiative is air-built.

Remarkably, this approach might work - in case of official recognition of the fact that Russian military forces are present in Donbas. Indeed, in accordance with Article 27 of the UN Charter, a country that is involved in the conflict cannot use its right of veto and shall abstain from voting.

Creating a wide (hybrid) Tribunal. History knows at least two examples where massive crimes were investigated in this way. These are the Special Court for Sierra Leone and Special Tribunal for Lebanon. These courts were created at the initiative of the UN Secretary General after request of the President of Sierra Leone in the first case and the Lebanese government - in the second. This legal model can be successful in resolving the issue of MH17, and it has already been mentioned by Ukrainian Foreign Ministry. However, it must be understood that both mentioned governments were able to sign the agreement on the establishment of special courts only after the adoption of a UN Security Council resolution. And here the circle closes again on the fact that Russia can use its veto.

Creating a mixed (hybrid) court. This option does not require the resolution of UN Security Council. As a successful example, can be mentioned the mechanism of the Extraordinary Chambers in the Courts of Cambodia. The Court was established by agreement between the Government of Cambodia and the UN after approval of the General Assembly. It consists of both local and international judges. The decision was taken by the General Assembly by a majority of 2/3 of the votes in accordance with Article 18 of the UN Charter.

The strength of this mechanism is that it allows being independent on Russian veto. Its disadvantages are such specific limitations as a small budget, need to involve local judges to the process, who have not worked previously with international crimes, as well as a considerable length of the process. For example, the Government of Cambodia has applied the UN Secretary General in 1997, and the court was established only in 2003.

The most significant difficulty on this way is that the court will have considerably fewer powers comparing to the court created by the UN Security Council. This means that the main goal - punishing the guilty - could not be achieved completely.

Investigation of the accident in the national court of one of the States concerned. This option is to be considered optimally on example of the Netherlands, as since 2003 the criminal justice system of this country provides a special body for international crimes - as part of the District Court of Hague.

The main risk lies in the fact that the results of such investigation cannot properly perceive the international community as an independent court should not be influenced by any of the interested parties.

Creating an interstate court by the decision of five states - Ukraine, the Netherlands, Malaysia, Belgium, and Australia. The closest analogy to this approach will be the court that investigated the explosion of a Boeing 747 over Lockerbie. Justice was administered by Scottish law, but with the participation of international observers, and the pre-trial investigation was attended by local police and the FBI.

Pitfalls of this strategy are similar to previous versions - without the necessary support of the UN  punishing the perpetrators cannot be fully because such court is not a relevant authority. Thus, the court in the case of flight PA103 began in 11 years after the accident, because Libya refused to extradite the perpetrators, who had taken refuge on its territory. Justice was established only after the sanctions from the UN Security Council.

Investigation by the International Criminal Court (the Hague Tribunal). The most effective option. This court possesses both financial and staff opportunities, and that is important - in its actions, the Tribunal enlists the support of international community.

This choice implies that Ukraine must soon ratify the Rome Statute of the International Criminal Court. In accordance with Article 8 of the Association Agreement between Ukraine and the EU, we have already made commitments regarding the ratification of this. The bill on making necessary changes to Article 124 of the Constitution is already in the Verkhovna Rada, according to it the justice in Ukraine is carried out only by the local courts. Unfortunately, it was not considered.

Ukraine has the right to apply to the Secretary of the Court on the recognition of its jurisdiction with respect to this particular crime. This is provided by Article 12 of the ICC Statute. It should be noted that the Court considers the crime of genocide, crimes against humanity, war crimes, crimes of aggression, and the most serious offenses that cause troubles for the international community. Therefore, there is a risk that the ICC may refuse to investigate this tragedy, referring to the fact that Ukraine officially performs anti-terrorist operation. This formally gives a reason to consider the circumstances of the accident in the framework of a violation of the European Convention on the Prevention of Terrorism and the European Convention on Combating Terrorism, and not as investigation of war crimes.

At the same time, the repeated confirmation by international experts that regular military forces of the Russian Federation are present on the territory of Donbas and the fact that accident occurred in the context of armed conflict greatly increase the chances that the Court will take up the consideration of the case.

To sum up this topic, we note that, despite all the technical difficulties, which are related to the investigation of the tragedy of MH17, the moral aspect of this case is the most severe - and the most important. And because of all the possible scenarios we have to choose the one that gives the chance to punish the perpetrators in full accordance with the severity of their crimes. This, of course, will neither return the victims to life nor ease the pain of loss for their relatives, but it is a matter of honor for Ukraine and entire world.

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