Countries affected by the tragic downing of Maylasian Airlines flight MH17
on July 17, 2014, are weighing their legal options to bring those
responsible to justice.
There is a broad array of strategies available for delivering justice. But Russia, which opposes the creation of a U.N. tribunal to prosecute the culprits, will be able to thwart and sabotage the efforts.
All 298 people on board MH17 – mostly from the Netherlands, Malaysia and Australia – were killed when the aircraft broke up mid-flight over eastern Ukraine. Kyiv says the plane was hit by a powerful ground-to-air missile fired from separatist-held territory.
Australia, Belgium, Malaysia, the Netherlands and Ukraine have asked the U.N. Security Council to set up an international tribunal to prosecute those responsible. A draft resolution on the tribunal was sent to the U.N. by Malaysia earlier this month.
“We believe the international criminal tribunal is the most effective channel,” Chuah Teong Ban, Malaysia’s ambassador to Ukraine, told the Kyiv Post. “There were international criminal tribunals in the past and they have been successful in getting the perpetrators to a court of justice.”
If established, the tribunal will be similar to those set up to try war crimes and crimes against humanity in Yugoslavia and Rwanda. It will have the right to request evidence from any country, including Russia, and summon witnesses from there.
But Russia, as a permanent member of the U.N. Security Council, is expected to veto the tribunal’s creation.
Nevertheless, Dutch Prime Minister Mark Rutte said on July 3 that Dutch authorities also had a backup plan, and Malaysian Ambassador Ban also told the Kyiv Post that the Malaysian authorities were considering other tools in case Russia blocks the creation of the tribunal.
“There are other options that we are looking at that have also been tried before but we would not like to come into this picture early,” he said.
The Dutch and Malaysians could be pursuing a tribunal set up by the U.N.’s General Assembly, Gleb Bogush, an associate law professor at Moscow State University, told the Kyiv Post.
Another possible option is concluding an agreement between Ukraine and an international organization like the U.N. to set up a tribunal similar to courts established to try the assassination of Lebanese Prime Minister Rafic Hariri and war crimes in Sierra Leone, Bogush noted.
He said that yet another alternative was something similar to the court set up to try the case of the bombing of a plane over the Scottish town of Lockerbie in 1988. That case was tried by Scottish judges in the Netherlands, under Scots law.
Serhiy Petukhov, an advisor to Ukraine’s justice minister, told the Kyiv Post that trying the case under the laws of a specific country – Ukraine, Malaysia or the Netherlands – was one of the possible solutions. Setting up a tribunal under the aegis of an international organization other than the U.N. is also an alternative.
One of the courts that is unlikely to handle the case is the International Criminal Court because neither Russia nor Ukraine have ratified the Rome Statute, which established the court.
Apart from criminal trials, the suspects could face civil litigation.
Such cases have already started: On July 15, Igor Girkin (Strelkov), a Russian separatist leader and an ex-officer of Russia’s Federal Security Service, was accused of orchestrating the MH17 crash, according to a writ filed in Chicago. The families of 18 passengers who were aboard the plane claim a total of $900 million in damages, according to the writ.
Igor Strelkov’s Bulletin, a major separatist account on Russia’s Vkontakte social network, said on July 17 that Kremlin-backed forces had struck down a Ukrainian An-26 transport plane. Analysts concluded then that separatists had apparently mistaken the Malaysian Airlines plane for an An-26.
Despite the broad spectrum of legal options for prosecuting the culprits, implementing and enforcing them will be extremely difficult.
Only a U.N. Security Council tribunal would be able to demand anything from Russia, Petukhov said.
“If it turns out that the Buk missile was launched by Russians based in Russia, you won’t be able to get access to them [for testimony],” he said. “And your entire investigation will be halted because it’s a criminal tribunal, and guilt must be proven.”
And even if such a trial ever happens, it will likely take a long time to pass through the courts. “International trials last years, sometimes even decades,” Bogush said.
Another difficulty is that some European countries fear spoiling relations with Russia, which may stall any investigation and a possible trial.
“There is some reluctance in the Netherlands to present their findings in a very clear way,” John Herbst, an ex-U.S. ambassador to Ukraine and an expert at the Atlantic Council, a U.S. think tank, told the Kyiv Post. “That poses a political problem. So they have to figure out what to do with this.”
Kyiv Post staff writer Oleg Sukhov can be reached at [email protected].
