Awaiting the Tribunal

Konstantin Goncharov, Viktoria Bobrova

The official results of the international investigation into the MH17 incident in Donbas are due to be published in October, but even today, the global community is actively discussing the need to set up an international tribunal to put to justice those responsible for shooting down the plane. 

A year ago, the crash of Malaysian Airlines passenger jet that claimed 298 lives has radically changed the world's attitude to the Russian-Ukrainian conflict. The tragedy, seen as an act of international terrorism, riveted the world's attention to the situation in eastern Ukraine, and the region was no longer perceived as just another source of instability somewhere on the outskirts of Europe.

Russia’s confusing testimony

Although the investigation has not yet been completed, plenty of versions of the incident are being discussed in the media. Notably, Ukraine has been sticking to just one of them throughout this year – flight MH17 has been shot down by pro-Russian terrorists by a missile launched by Buk anti-aircraft missile system. International investigators, although reluctant to reveal the details of the investigation, share the opinion that the Boeing-777 was shot down with Buk missile. The further the evidence is analyzed, the more they are inclined to believe that the airliner was shot down by Russia-backed terrorists by the Russian Buk. Meanwhile, the versions voiced not only by the leaders of the Russian-terrorist forces, but also by the top officials of the Russian Federation, are numerous and contradictory.

It should be reminded that a year ago, right after the crash, the pro-Russian militants have reported that they had downed a Ukrainian AN-26 military cargo aircraft. The report on the "victorious" downing of a “Junta” plane was immediately picked up by the Russian media. And only having realized that the missile had not hit the Ukrainian cargo plane, but a passenger jet, everybody started "cleaning" the information space, wiping out the previous posts of “glory” and the news items. UNIAN earlier reported on how it was happening…

In fact, after the Joint Investigation Team has established exactly where the Buk had come from, to whom it belonged, where the launch had been executed, where and by which route the Buk was later withdrawn, Russia continues to generate its "new" ideas and versions. For example, the Investigative Committee of the Russian Federation recently concluded that the passenger jet had been hit by an air-air missile, produced outside Russia.

However, Moscow is dissatisfied not only with the interim report of an international investigation. The Kremlin stands firmly against creating an MH17 International Criminal Tribunal, despite this initiative being supported by all members of the UN Security Council. Following a submission of a draft resolution on establishing such tribunal to the UN SC on July 14, Russian officials and diplomats rushed to prove that the issue is counterproductive. In turn, the Ukrainian experts believe that it is Russia’s attitude that is counterproductive.

Tribunal in question

Aleksei Melnyk, co-director of foreign policy and international security programs at the Razumkov Center, says, "In order to establish the truth, a decision of one of the national courts would be not enough; there should be the most authoritative international institution, whose decision will be recognized, if not by all, then by most of the countries."

Unfortunately, the creation of a tribunal is quite problematic. "We now see that there is a very strong resistance from the Russian side on this issue," said the expert.

However, he believes that there are certain mechanisms of influence on Russia. In particular, it is possible to either convince Russia to abstain from using its right of veto in the UN Security Council, or to circumvent this right of veto by a decision of the General Assembly of the United Nations. "In this case, one way to make Moscow abstain from the veto is putting a question straight and voicing it publicly: If you do not recognize your guilt and responsibility for the tragedy, then it is not logical to block the establishment of the tribunal, if the Russian Federation is interested in establishing the truth," - said Melnyk, adding that this is a very simplistic approach and it should be relevant to the diplomatic efforts at the level of heads of state.

In turn, Bohdan Yaremenko, a diplomat, former Consul General of Ukraine in Istanbul and Edinburgh, head of the Maidan of Foreign Affairs fund, noted that the MH17 tribunal may not be created shortly, but the prospects of its establishment are absolutely realistic. "Establishing such a tribunal is a realistic scenario. The UN Security Council will not decide to create a tribunal, because there is one party in interest - Russia. It has already clearly expressed its speculative, unsubstantiated, but nevertheless definitive, position that the existence of such a tribunal is inappropriate. Therefore, the establishment of a tribunal will take time, as the legal mechanisms will have to be found to address this issue, and there are such mechanisms in the UN framework. It is obvious that, if the UN Security Council can’t make such decision, it may refer the forward the issue to the General Assembly,” said Yaremenko, adding that the efforts of everyone involved in the establishment of a tribunal will be consistent and will see the result.

Punishment is inevitable

Experts point out that a feature of international tribunals is that they adhere to the rule of law very precisely and consistently. "It is clear that the court will focus on the establishment of executors [of a crime], perhaps, its organizers,” says Yaremenko, “I think that some individual executors, and possibly organizers will be named. That is, the court will be defining the commanders who have sent these weapons, accompanied them, guided the missiles, and those who are in command of these people. But that is a big question, whether the court gathers sufficient evidence to charge the Russian top officials."

The diplomat offers an example of Nuremberg trials. "It was actually the trial against the leaders of the Reich. That is, Nazism was not being “indicted”, as an ideology. And the Reich, as a state, has neither been “convicted”. The law provides individual responsibility, rather than collective, and I think, no [court] decisions are possible against the country as a whole, such as the recognition of Russia as a sponsor of terrorism," he said.

In turn, Alexei Melnyk believes that the tribunal hearings may take years; and the recognition of Russia as a sponsor of terrorism is one of the possible outcomes of the international investigation into the MH17 incident, but it will not be done automatically. In addition, the punitive measures, not only against those responsible, but also against the state, will depend on the Kremlin’s position. "If Russia pursues such an obstructionist position as it voices today, one of the repercussions may be a strong response by the international community by punishing the state using other methods. Those may be extending or intensifying the economic sanctions, as such behavior by one of the world’s largest countries is unacceptable," he said.

At the same time, Vitalii Kulyk, political scientist, director of the Center for Civil Society Studies said that the international tribunal is nothing more but a PR event. "As a rule, the tribunals do not end with final decisions on prosecution. This is to be decided by the International Criminal Court in The Hague," he said.

Unfortunately, Ukraine still has no legal framework to provide for the possibility to apply to the International Criminal Court. In addition, sufficient evidence base must be provided to the court. "At the moment, as far as I know, there is not enough evidence to make firm conclusions," he said.

However, the expert did not rule out that, in the case of collecting the necessary evidence, with unambiguous conclusions of the commission and the political will of the West, everything combined, it will be possible to seek the imposition of international sanctions against the state, which has granted asylum to terrorists who had shot down the plane. "There was such case, when the plane was shot down over Lockerbie in Scotland. Sanctions were imposed against Libya, as a state sponsor of terrorism," he recalled.

"Meanwhile, the West avoids direct clear language, including the harshest terms like “state sponsor of terrorism. But I do not rule out the possibility that over time, the situation may change for the better for the Ukrainian side," the expert added.

Experts also do not exclude that after the official report of the commission, even if an international tribunal is not created against the state that sponsors terrorism, the suites may be filed in national and international courts "in an attempt to punish the perpetrators and compensate the losses". And even that would be a serious problem for Russia.

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