Security Council’s rejection of MH17 tribunal: exposing structural flaws and maintaining impunity?

 

On 29 July 2015, two weeks after the first anniversary of the downing of Malaysia Airlines flight MH17, the Russian Federation vetoed a United Nations’ Security Council resolution that sought to establish an international criminal tribunal to prosecute those responsible. In the ensuing deliberations, Pavlo Kilmkin, the Ukrainian representative, expressed disappointment over Russia’s conflation of its ‘responsibility for aggression against Ukraine’ with the need for individual criminal responsibility. In turn, Vitaly Churkin, the Russian representative, asked why Ukraine enjoyed impunity for allowing civilian airliners to enter the conflict zone. Representing Australia, Julie Bishop pledged, ‘In defiance of today’s veto, we will ensure that the demand … for accountability … is implemented in full.’

This circular political blame game is not foreign to the Security Council. Atrocity crimes, whether during peacetime or conflict, place power politics and international criminal justice at odds with each other – China and Russia have vetoed referral of Syria to the International Criminal Court (‘ICC’), while the United States vocally opposes Palestinian engagement with the Court. This contact between politics and international criminal law manifests further in the Council’s power under the Rome Statute to defer ICC proceedings. For example, the African Union called on the Council to defer proceedings against the President and Vice-President of Kenya because of their ‘active part and leadership role’ in maintaining Kenya’s peace and stability.

With this in mind, Russia’s response was perhaps predictable. After all, what can one expect from a body whose membership and function remain anchored in the post-WWII context of its creation? Since the Security Council’s inception, the power to veto has been at the core of discussions about Council reform, especially in light of its inability to prevent atrocities in Rwanda and Kosovo. In this situation, a positive vote from Russia for a Security Council resolution would have recognised the downing of MH17 as a threat to international peace and security, bringing the continued regional struggle out of the shadows where Russia may otherwise want to keep it.

Russia’s post-veto speech downplayed the importance of the potential tribunal in different ways. Firstly, Russia questioned the impartiality of the investigations so far. Churkin asked why Ukraine was part of the Joint Investigation Team, but neglected civil aviation law that requires the state where the incident occurred to initiate the investigation. Additionally, Churkin’s concern about political favouritism toward Ukraine does not detract from the capacity of rigorous legal proceedings to prosecute responsible Ukrainian nationals. Indeed, this brings to mind African states that referred themselves to the ICC, only to learn that their own leaders could also be held accountable (an outcome that partly explains subsequent African Union opposition to the ICC’s work).

Secondly, Churkin cited the disadvantages of an international tribunal, stating that the International Criminal Tribunal for the Former Yugoslavia was expensive, slow and ‘subject to political pressure’. However, the important role of the tribunal—and international criminal justice more broadly—in conducting investigations and prosecutions, promoting deterrence, and recording history, cannot be denied. The downing of MH17 requires similar treatment by virtue of its gravity: deterrence should be institutionalised in the form of an international tribunal. Investigations also need to have further protections and scrutiny in place, in light of interference by armed groups in Ukraine with crash site access and wreckage. Moreover, since the final report of current investigations can only determine the cause of the downing, rather than the people responsible, a criminal tribunal is an essential next step to determine individual criminal responsibility and elicit the truth sought by affected families.

The Security Council’s failure to agree to the establishment of the tribunal does not reduce the necessity of prosecuting those who are responsible for the downing of MH17. This necessity, stressed by delegates after the veto, goes to the preamble of the Rome Statute: ’The most serious crimes of concern to the international community as a whole must not go unpunished’. Calls for a tribunal go beyond what Churkin alleged to be ‘political exploitation of the feelings of the families of those who perished’ – it is fundamental to the principles and goals of international criminal justice.

By Darren Ou Yong, AHRCentre intern, Semester 2, 2015

Photo credit: Roman Boed, Flickr Creative Commons