Editorials

Russia says no to MH17 justice

Russia has vetoed a United Nations Security Council resolution that called for the establishment of a tribunal to prosecute individuals allegedly responsible for shooting down Malaysian Airlines flight 17 as it passed over Ukraine last year. The veto was expected: The perpetrators are widely believed to be Russian-backed rebels fighting the Ukrainian government. This move does not end efforts to find justice for the victims of that attack. Moscow’s resistance is unlikely to diminish, however, and any eventual tribunal will be forced to operate without Russia’s assistance.

MH17 was shot down just over a year ago, on July 17, 2014, as it traveled from Amsterdam to Kuala Lumpur, killing all 283 passengers and the 15 crew members on board. The plane crashed in eastern Ukraine, near the border with Russia, in territory held by Russian-backed separatist rebels. The tragedy occurred during an upsurge in fighting between rebels and Ukrainian government forces that were trying to cut the separatists’ supply lines.

The rebels were blamed for several reasons. First, immediately after the crash, a leader of the rebel forces claimed on social media to have shot down a Ukrainian military transport plane. When it became clear that the target was in fact a civilian airliner, the post disappeared and the rebels disavowed any involvement in the incident.

Suspicions were fortified when photographs were produced on the Internet of a Russian missile battery traveling through rebel-held territory on the day of the crash; the battery was photographed returning to Russia the following day with one missile missing. Some assert that the photos actually support the rebels’ claim that they were not responsible — instead, actual Russian soldiers were involved.

While the official criminal investigation — established by U.N. Security Council resolution 2166, passed a week after the incident — continues, numerous unofficial inquiries have concluded that the Russians and the rebels were responsible, a conclusion that both Moscow and its proxies vehemently deny. They blame the Ukrainian government, either for negligently permitting the plane to fly over a combat zone or, more insultingly, charging that it was a Ukrainian fighter plane that mistakenly shot down the Malaysian Airlines flight.

Officially, Russia’s veto, however, was based on the argument that establishing a tribunal was premature and unprecedented, given that the investigation will not be complete until October. The prospect of Russian complicity being exposed to the world no doubt backstopped that conclusion but there are other factors behind Moscow’s veto.

One concern held by Moscow is that if the investigation identifies a Russian citizen or someone under Russia’s protection as responsible, it would be forced to surrender him to the tribunal. To the West that would constitute respect for the rule of law; in Russia, that is weakness. A second, related issue is the precedent set by the United States when it insisted that it would not surrender any of its citizens to the International Criminal Court established to try war crimes and crimes against humanity: Moscow scrupulously guards its sovereignty and uses Washington as its benchmark.

The five countries behind the investigation — Australia, Belgium, Malaysia, The Netherlands and Ukraine — have vowed not to give up. Ukraine’s foreign minister has said that they will renew their call for U.N. authorization when the investigation is complete. When pressed on whether Moscow would agree to the tribunal at that time, Russia’s U.N. representative waffled. If that option is foreclosed by another veto, the five countries could try to establish an independent legal tribunal, one that is not affiliated with the U.N. One precedent for such a plan is the tribunal set up to try the men who put a bomb aboard PanAm flight 103, which exploded over Lockerbie, Scotland, in 1988, killing 259 people in the air and another 11 on the ground. That court used Scottish law to try the Libyan suspects.

A third option is a national court. The best candidate for that is a Dutch court, particularly since there are a number of international tribunals that operate in its jurisdiction and would be prepared to “lend” expertise. Given that two-thirds of the MH17 victims were Dutch, however, such a tribunal would be subject to charges of bias. Moreover, each of those proposals, as well as the suggestion that the court be authorized by the U.N. General Assembly rather than the Security Council, would suffer from one critical shortcoming: It would not have the authority to issue international arrest warrants, and would thus be unlikely to bring the alleged perpetrators before it.

If, as most of the world believes, Ukrainian separatists are backed by a Russian government that seeks to keep the conflict on a low boil, ever ready to turn up the heat to pressure Kiev and the West, there will be no justice for the victims of MH17. Nearly 7,000 people have died because Moscow seeks an expanded sphere of influence in Europe and is convinced that it is a great power denied its rightful place in the world. A dogged defense of war criminals and a readiness to take innocent lives in pursuit of that vision are proof that Russia deserves neither.