Alternative solution needed for investigating loss of MH17

Russia’s Security Council veto means other means may be used to find those responsible

Australia, Malaysia, the Netherlands, Belgium and Ukraine have pledged to seek an alternative means of bringing to justice those who shot down Malaysia Airlines flight MH17, after a Russian veto at the UN Security Council last week put paid to an international tribunal.

If the aim of Wednesday's draft resolution was to underline for the world that Russian president Vladimir Putin is immune to embarrassment, then perhaps it did its job, with 11 of the council's 15 members voting in favour, three (including China) abstaining and only Russia unashamedly against.

If, however, the aim was more than that, to achieve – as Australian foreign minister Julie Bishop seemed to suggest – rare security council unanimity by applying moral pressure to Russia to support a tribunal, then that was never going to work.

For the second time in a fortnight, Moscow's unshakable opposition to a tribunal was confirmed by Putin in a phone call initiated by Dutch prime minister Mark Rutte, on the very morning of the Security Council vote.

‘Inexpedient’

Characteristically, Putin didn’t give an inch. While the Dutch described the call as “open and in-depth”, a Kremlin spokesman said the president simply reiterated his consistent view that it was “inexpedient to create such a judicial body”.

So why is a tribunal regarded by relatives of the 298 MH17 passengers and crew who died in July last year as the best hope of justice? And are there any other legal avenues that can possibly succeed without Russian support?

In truth – although it would, ideally, have named those responsible and issued arrest warrants – not everyone in the West is as enthusiastic about a tribunal as the diplomatic build-up to last week’s vote may have suggested.

Many of those most dubious are experienced lawyers. Some of these have been involved in special international courts such as those for the former Yugoslavia, Rwanda, Sierra Leone, Lebanon or Cambodia and say they are slow and costly.

The Lebanon tribunal, for example, was set up in The Hague in 2009 to prosecute those behind the assassination of former Lebanese prime minister Rafic Hariri, killed by a car bomb in Beirut in 2005.

The tribunal’s original mandate was for three years, but it has already run for twice that. It has so far cost €400 million, yet nobody has been brought to justice and there is no sign of it ending.

The Yugoslav tribunal was set up in 1993 with an annual budget of $276,000, but by 2010-2011 that had ballooned to $300 million a year.

“Unfortunately, we know that tribunals simply do not work well,” says Dutch criminal lawyer and academic, Göran Sluiter.

The legal alternative most frequently proposed is to refer the MH17 case to the International Criminal Court (ICC).

Investigate

Although it is not an ICC member, Ukraine asked the court last year to investigate crimes allegedly committed in its territory between November 21st, 2013 and February 22nd, 2014 – when the previous pro-Russian government was still in power.

“If it so wished,” says Professor Steven Freeland of the University of Western Sydney, “Ukraine could lodge a further declaration dealing with events leading up to and including the downing of MH17.”

The ICC route, however, has already been ruled out by the Dutch government.

In July of last year, then justice minister Ivo Opstelten briefed parliament that only in cases where the countries involved were unwilling or unable to prosecute were atrocities referred to the ICC – and that was not the situation in the Netherlands or in Malaysia.

The best remaining option seems to be for the Netherlands to prosecute those responsible itself.

As it happens, when the ICC was set up in 2002, the Netherlands changed its domestic law to ensure that crimes listed in the ICC statute were also considered crimes under Dutch domestic law, with universal jurisdiction.

That change may now turn out to have been rather prescient.

The challenges facing the Dutch, however, would then become those perennially facing the ICC: identifying the culprits, arresting them, transferring them to The Hague, and – most topically of all in view of the court’s recent sorry history – securing convictions.

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