Commentary / World

Politicizing of international justice and flight MH17

by Ramesh Thakur

On July 17 last year, Malaysian Airlines flight MH17 was blasted out of the sky near Donetsk in eastern Ukraine, killing all 298 people on board. On July 29 this year, a resolution tabled by Malaysia with many co-sponsors to create an international tribunal on the downing of MH17 was supported by 11 members of the United Nations Security Council. Three countries — Angola, China and Venezuela — abstained. The resolution failed because Russia voted against it and the negative vote of any one of the five permanent members (P5) has the power of veto.

There are three alternative ways of assessing this outcome.

The first is to decry the Russian negative vote as in effect a criminal abuse of the veto power. This was the line taken by many Western countries including Australia, which expressed both disappointment but also outrage. Ukraine’s Foreign Minister Pavlo Klimkin condemned the Russian veto in harsh terms, saying it was difficult to explain Moscow’s opposition unless Russia was indeed culpable in the atrocity. That line was echoed by much of the conservative commentariat in the Australian media, in effect saying that Russia’s veto proved Moscow’s guilt. If they had nothing to hide, why fear a tribunal?

Russia’s stated explanation for its vote is worth recalling, bearing in mind that no country is immune to offering a rhetorical justification of its U.N. vote that may bear little relationship to the real reason for its policy. On July 21 last year, four days after the tragedy, the Security Council adopted resolution 2166 unanimously demanding that all states cooperate fully with international efforts to establish accountability for the downing of MH17, and that those found to be responsible be held to account.

To repeat, China did not abstain and Russia did not veto resolution 2166. An international criminal investigation is being conducted by Malaysia (whose airline it was), Australia, Belgium, the Netherlands (many of whose citizens were killed), and Ukraine (over whose territory the plane was felled). The inquiry is yet to conclude and thus far no responsibility has been established for the tragedy. The Dutch Safety Board is also due to release its report on the crash by the end of this year.

Russia has repeatedly and consistently warned against assigning blame before these investigations, from which Russia has been excluded and its offers of help spurned, have been completed. Notably, resolution 2166 did not describe the tragedy as a threat to international peace and security, which alone can trigger coercive Security Council action. Despite vetoing the draft resolution on July 29, Ambassador Vitaly Churkin reiterated Russia’s willingness to cooperate with a fully “independent and objective investigation of the reasons and circumstances of the crash.”

Thus in Moscow’s view, the draft resolution was a preemptive judgment on Russia’s complicity. Churkin pointedly asked how an old event that was not considered a threat to international peace and security at the time suddenly becomes so one year later. Ukrainian authorities and many Western analysts have pointed the finger of criminality at pro-Russian rebels in eastern Ukraine for having shot down MH17 using Moscow-supplied surface-to-air missiles. Foreign Minister Sergei Lavrov said the chief motive in trying to set up the tribunal was to punish “those whom Washington considers guilty.”

The second interpretation is that the draft resolution was a political maneuver that attempted to politicize a terrible tragedy instead of advancing the cause of international criminal jurisprudence through independent structures and procedures that apply equally to all such tragedies. The loss of MH17 was not the first and is unlikely to be the last case of a civilian airliner being shot down. There was absolutely no effort in the vetoed resolution to set up a regular system of international criminal accountability that would apply impartially to all cases.

The best known comparable tragedy in which the U.S. military was directly culpable (unlike MH17, where the Russian military is alleged to be indirectly complicit for supplying the rebels who did the shooting with the lethal arms) is the shooting down of Iran Air flight IR655 as it flew a scheduled daily route from Tehran to Dubai. The USS Vincennes fired two missiles to bring down the plane with the loss of all 290 on board on July 3, 1988. The captain and crew of the Vincennes were later awarded medals.

In a settlement reached at the World Court in 1996, the U.S. expressed “deep regret over the loss of lives caused by the incident” and agreed to pay almost $62 million in compensation. Washington refused to issue a formal apology and never accepted legal liability. Vice President George H.W. Bush insisted he would “never apologize for the United States — I don’t care what the facts are.” Iran’s demand for the U.N. Security Council to condemn the U.S. was rejected. Yet in 2015 Australia’s Foreign Minister found it “inconceivable” that the Security Council would “walk away from holding to account those who brought down a commercial airline.”

It is hard to see on what basis the sponsors of the draft resolution expected Russia to cooperate with an ad hoc tribunal to investigate its and its allies’ possible criminal behavior, without putting in place an independent system to inquire into the criminal culpability of all such acts, including by Westerners.

This is where the third interpretation of the motivations behind the draft resolution becomes relevant. As a frequent flier, my first priority is to avoid being shot down and the second is to feel that if my commercial flight is brought down, those responsible will be held legally accountable. According to the weight of publicly available evidence, those who brought down MH17 believed they were firing at a military aircraft in a war zone. While it is possible that the Ukrainian military shot what it mistook to be a Russian plane, the most likely explanation is the rebels used Russian missiles to fire at what they thought was a Ukrainian military plane.

Importantly, this was a known war zone. High altitude military planes had been brought down by missiles prior to the MH17 tragedy. Ukrainian authorities and Malaysian Airlines bosses owed a duty of care to civilian passengers to close that airspace to all civilian flights. Many airlines had in fact accepted costly rerouting of their flights rather than risk the safety of passengers by overflying eastern Ukraine.

A truly impartial, independent and credible international investigation would also assign culpability, therefore, to civil aviation and Ukrainian authorities, Malaysia Airlines, as well as those who fired and supplied the missiles.

To recap: The first response is to condemn the U.N., whose rules allow the perpetrators of an atrocity to be shielded by a P5 veto. The second is to condemn the extent to which the U.N. has been corrupted by the Western powers that command the numbers in the Security Council to pursue blatantly one-sided justice which is no justice at all. The third is to question the criminal negligence of civil, national and international officials whose pursuit of profits before safety contributed to the loss of nearly 300 lives.

Ramesh Thakur is professor in the Crawford School of Public Policy, Australian National University.