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As Security Council resolution fails, there is another way to investigate MH17

Russia vetoed a proposed Security Council resolution to set up a tribunal to investigate the downing of Flight MH17. EPA/Jason Szenes

As expected, on Thursday morning (Australian time), Russia vetoed the proposed United Nations Security Council resolution that sought to set up an ad hoc international criminal tribunal to investigate the downing of Flight MH17 in July 2014.

Three other countries, including China, abstained from voting. While 11 countries supported the resolution, the “niet” from Russia meant that it was not passed.

What now?

As a consequence, the Security Council will not establish any such tribunal, unless and until another similar proposal is ultimately accepted. It seems that this is currently most unlikely, given that President Vladimir Putin and other senior Russian officials expressed their strong opposition to the vetoed resolution.

Russia had previously indicated that it would co-operate in any investigation of the matter. However, it regarded the establishment of a new tribunal as “inexpedient” and “premature”.

Australian Foreign Minister Julie Bishop was highly critical of Russia’s decision. While she has confirmed that various options are being considered, her words seem to suggest that the Russian veto severely dented the prospects of international justice for MH17’s victims and their families.

The draft resolution’s defeat does not stop any or all of the interested countries from setting up some form of national criminal inquiry or court, under their own criminal law systems, to investigate the circumstances of the crash. While this will be subject to some jurisdictional issues, this option remains open.

However, it seems that those countries most affected are convinced that an international court is the most appropriate forum for any such investigation. This seems logical given the magnitude and high international profile of the MH17 downing.

There are also the more practical issues of non-co-operation from other countries, and the severe diplomatic criticism regarding impartiality that Russia in particular would raise in respect of any such national criminal process, to consider.

What international law avenues are there?

So, are there any other options at the international level to have this matter properly investigated and – if appropriate – prosecuted by an impartial, independent international court?

There is – in the form of the International Criminal Court (ICC).

The ICC, situated in The Hague, was established in 2002. It has slowly – and not without some difficulties along the way – built up its expertise and experience in the investigation and prosecution of those crimes that “shock the conscience of humanity”.

The ICC is mandated to deal with alleged crimes of genocide, crimes against humanity, war crimes and aggression. While we do not have all the facts, the shooting down of a civilian aircraft during the course of an armed conflict could certainly amount to a war crime in particular circumstances.

Under the structure of the ICC Statute, member nations can refer particular situations to the court for possible investigation. This has been the case for a number of African countries.

The ICC Statute also allows for countries that are not members – such as Ukraine and Russia – to ask the court for its assistance. This has also been utilised by various countries – including, most significantly, by Ukraine.

In April 2014, Ukraine lodged a declaration with the court asking its prosecutor, Fatou Bensouda, to investigate alleged crimes committed on its territory from November 21, 2013, to February 22, 2014 – a period when the previous (pro-Russian) government was still in power. This issue is now with Bensouda, who is obliged to consider all of the circumstances to determine whether she wishes to proceed to a formal investigation.

All member nations of the ICC Statute are required to co-operate with the court in this matter, as is the declaring non-member nation (Ukraine).

If it so wished, Ukraine could lodge a further declaration that also included events leading up to and including the MH17 downing. Having undertaken this process once before, it is clear that Ukraine is fully aware of the ICC’s role and procedures to allow it to undertake an investigation.

While a referral to the ICC in this manner would not guarantee Russia’s co-operation, it would place the MH17 tragedy clearly into the hands of an international criminal tribunal that has already been established – hence no delays and additional establishment costs – and which is specifically designed to deal with war crimes.

Those seeking justice for MH17 and its victims should work closely with Ukraine and encourage it to utilise once again an international justice mechanism that is clearly available to it, irrespective of the machinations of Security Council geopolitics.

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