The realities around criminal responsibility for MH17

 

On Tuesday, 6 October 2015, the AHRCentre hosted a panel consisting of John Ralston, Steven Freeland and Sarah Williams to discuss whether the International Criminal Court is the best option for attributing responsibility for the downing of Malaysia Airlines flight MH17. Ralston investigated atrocities in the Balkans as Chief of Investigations with the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia for several years. He is currently the executive director of the Institute for International Criminal Investigations, and the director of JRI Global. Freeland was a Visiting Professional at the Appeals Chamber of the International Criminal Court. A professor at Western Sydney University, he currently teaches undergraduate and postgraduate students while supervising doctoral candidates in international criminal law and other areas of law. Williams is an Associate Professor at the University of New South Wales and specialises in international law, particularly in international criminal law, international humanitarian law and international disaster law. She has conducted legal research and provided legal consultancy services for foreign affairs ministries, humanitarian organisations, and supranational organisations.

Ralston summarised facts from publicly available sources on the conflict, outlined diverging explanations for the downing, and examined current investigative responses and their mandates. Addressing options for determining responsibility, Ralston stressed the importance of political cooperation, but said that an investigation without Russian support was nonetheless possible. He added, ‘Non-cooperation is often a feature of any investigation … you always expect that as an investigator [and] you have to use ingenuity and innovation’. Ralston then looked into the path of a typical investigation, and information gaps on the downing.

Freeland began by articulating the framework of international criminal law before examining the political implications of non-States Parties’ self-referral to the ICC. He then delved into the varying scopes of self-referral declarations submitted by Ukraine to the ICC. To follow this, Freeland presented different justifications for the involvement of the ICC or a new international tribunal. He also identified potential Russian obstacles to Security Council establishment of an international tribunal, beyond the federation’s permanent membership.

Williams explored political and legal barriers to ICC investigation and prosecution of those responsible for the downing: the exercise of prosecutorial discretion in a broad legal and political context, the uncertainty of applicable law and information gaps, and the political and resource constraints posed by State non-cooperation. Williams then reviewed different options for attributing criminal responsibility: the ad hoc tribunal that was recently vetoed in the Security Council, a treaty-based option, national proceedings, and the Lockerbie model.

In the subsequent discussion, the panellists were asked about the international community’s prioritisation of MH17 over other international crimes, the prospects of a Russian-led investigation, and the slow pace of international investigations.

With insights from their work, the panellists examined the considerations and realities around criminal responsibility for MH17 in a nuanced manner.

 

With thanks to AHRCentre intern Darren Ou Yong for writing this summation of the event.

 

  steven freeland speaking