Why It’s Counterproductive to Discuss an MH17 Tribunal

by Kevin Jon Heller

States whose nationals died in the attack on MH17 were understandably upset when Russia vetoed a Security Council resolution that would have created an ad hoc tribunal to prosecute those responsible for the attack. Their idea to create a treaty-based court, however, is simply not helpful:

Australia’s foreign minister, Julie Bishop, will meet with her counterparts from Belgium, Malaysia, the Netherlands and Ukraine on Tuesday during the annual United Nations general assembly meeting.

One of the proposals is for a tribunal similar to that established to prosecute Libyan suspects over the 1988 bombing of a Pan Am flight over Scotland.

Nations that lost some of the 298 passengers and crew in the MalaysiaAirlines disaster over eastern Ukraine in July 2014 are also looking at launching separate prosecutions.

A report by the Dutch led-investigation team, set to be published on 13 October, is understood to include evidence the plane was brought down by a Russian-made Buk missile fired from separatist territory in eastern Ukraine.

Russia has denied any involvement but in July used its veto power at the UN to block a resolution that would have formed a tribunal to bring the perpetrators to justice.

There is no question the victim states could create a tribunal via treaty — they would simply be delegating their passive-personality jurisdiction to the tribunal. The ICC is based on similar pooling of jurisdiction.

But what would creating such a tribunal accomplish? A treaty-based tribunal might have some ability to investigate the attack, given that MH17 was flying over non-Crimea Ukraine when it was shot down. But how would it get its hands on potential defendants? Pro-Russian separatists are almost certainly responsible for the attack, which means that the suspects are likely to be either in Russia-annexed Crimea or in Russia proper. Either way, the tribunal would have to convince Russia to surrender potential defendants to it — and Russia would have no legal obligation to do so as a non-signatory to the treaty creating the tribunal. That’s the primary difference between a treaty-based tribunal and a tribunal created by the Security Council: the latter could at least impose a cooperation obligation on Russia and sanction it for non-compliance. The tribunal being contemplated by the victim states could do no more than say “pretty please.” And we know how that request would turn out.

There is also, of course, that little issue of the ICC. Earlier this month, Ukraine filed a second Art. 12(3) declaration with the Court, this one giving the Court jurisdiction over all crimes committed on Ukrainian territory since 20 February 2014 — which includes the attack on MH17. So why create an ad hoc tribunal that would simply compete with the ICC? To be sure, the Court would also have a difficult time obtaining potential defendants, given that Russia has not ratified the Rome Statute. But it seems reasonable to assume, ceteris paribus, that an international court with 124 members is more likely to achieve results than a multinational court with five members. Moreover, there would be something more than a little unseemly about Australia, Belgium, and the Netherlands creating a treaty-based tribunal to investigate the MH17 attack. After all, unlike Russia, those states have ratified the Rome Statute.

The problem, in short, is not that the international community lacks an institution capable of prosecuting those responsible for the attack on MH17. The problem is that the international community has almost no chance of getting its hands on potential defendants. So until they can figure out how to get Russia to voluntarily assist with an investigation, victim states such as Australia and the Netherlands would be better off remaining silent about the possibility of a treaty-based tribunal. Discussing one will simply raise the hopes of those who lost loved ones in the attack — hopes that will almost certainly never be realised.

http://opiniojuris.org/2015/09/26/pointless-talk-about-an-mh17-tribunal/

8 Responses

  1. The best way to achieve justice it looks , in light of such impasse , is to launch and conduct an efficient investigation .

    Once, there are: identities, names, facts surrounding the events, evidences and so forth…Leverage is far greater better. strictly , solid evidence !!

    Such investigation , can be private or semi private . Joining forces, 1-2 million dollars, infiltrating the rebel gangs in east Ukraine, investigating satellite images, questioning eye witnesses and so forth…

    Another option , is a UN investigation . On 14 February 2005, Rafik al – Hariri prime minister of Lebanon, was assassinated. In accordance with UN security resolution ( 1595 see link ) an investigation was launched . And it was quite efficient . To my best recall and knowledge, tracing cell phone conversations, revealed the assassins identities or main suspects .

    So , efficient investigation , can be the right step for closing gap .

    Link SC :

    http://www.un.org/press/en/2005/sc8353.doc.htm

  2. Just to quote the Russian UN ambassador at the time ( Reuters news ) :

    “Russia stands ready to cooperate in the conduct of a full, independent and objective investigation of the reasons and circumstances of the crash.”

    So , rejecting tribunal , but not investigation it seems .

  3. I would have thought that establishing the guilt of the perpetrators in a fair judicial process is valuable in and of itself, even if the perpetrators are never punished. I do not see, therefore, why the idea of a treaty-based tribunal is “simply not helpful”.

  4. How exactly would such a court establish the guilt of the perpetrators? Try them in absentia? Do we need another fiasco like the STL?

  5. The ever enlarging discrepancy between the reality of ICL responses and idealist expectations of outsiders.

  6. Will this tribunal prosecute those, who generate false evidence? American intelligence agencies said that analysis of the launch plume and trajectory suggested the missile was fired from an area near Torez and Snizhne. In contrast, Ukrainian Security Service published a recording mentioning Chernukhino three times. Also, there are many contradictions with regard to other issues, like how people, who were taking care of BUK, looked.

  7. “Either way, the tribunal would have to convince Russia to surrender potential defendants to it — and Russia would have no legal obligation to do so as a non-signatory to the treaty creating the tribunal.”

    This ignores the 1971 Montréal Convention.

    The Montréal Convention is signed by, and legally binds Russia. The Convention provides that, in a situation in which a State – such as Russia – is in possession of an offender accused of committing an offence abroad – such as the downing of MH17 – the State must either extradite that individual to a requesting State (The Netherlands as per the draft Statute of the Tribunal) or submit the case to its competent authorities for the purpose of prosecution in accordance with the appropriate laws of that state.

    The States of the Netherlands, Ukraine and Malaysia are all signatories to the Convention alongside Russia.

    Thus, there is a legal obligation – Russia must prosecute or hand them over to a requesting States; I accept a reticent Russia may play games with this, but there is a legal obligation nonetheless to do something.

  8. Matthew,

    Your point is well taken. My point focused specifically on the tribunal, not on the individual members thereof.

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