On July 17, 2014, the downing of Malaysia Airlines Flight MH17 robbed 298 innocent lives. Almost three years on, no one has been prosecuted or made accountable for the crime. The proposal to establish an international criminal tribunal did not materialise because of a veto vote by Russia in the United Nations Security Council.
Russia had reasoned that such a tribunal proved not to be useful in the past, and expensive. Other reasons included doubts over the manner in which the criminal investigation was conducted, and that such an endeavour was politically motivated against Russia’s interests. Had the proposed criminal tribunal been established, the tribunal would not only see individuals responsible for the act prosecuted, tried and sentenced, but also facilitate orders of financial reparations and most importantly, allow the next of kin of victims to present their views and concerns at such a hearing.
In recent developments last Monday, Ukraine instituted proceedings against Russia before the International Court of Justice (ICJ) for violating provisions of the International Convention on the Elimination on All Forms of Racial Discrimination (ICERD) for acts connected to the seizing of Crimea and the City of Sevastopol, and for violating the International Convention for the Suppression of the Financing of Terrorism (Terrorism Financing Convention). In regard to the Terrorism Financing Convention, Ukraine had requested ICJ to declare Russia responsible for having facilitated and sponsored acts of terrorism within its country, resulting in several acts, including the downing of MH17.
According to Ukraine, Russia had increased the firepower of its proxies — the Donetsk People’s Republic (DPR) associated forces, which operated on Ukrainian territory, by supplying them with powerful weapons. Ukraine submits that it was Russia that provided the Buk missile system to the DPR, which was transported from the Russian Federation territory into Ukraine, and subsequently used to destroy MH17. The weapon was thereafter returned to the Russian Federation. Ukraine also argues that Russia knew or should have known that the powerful anti-aircraft weapons could have been used in a way that could bring grave harm to civilian life.
In light of such acts, Russia had failed to investigate or punish the financing of terrorism in Ukraine, instead, delivered such powerful weapons to its proxies, breaching its international obligations under international law and more specifically, the Terrorism Financing Convention.
The question of interest here is what impact does the proceedings before the ICJ have on the MH17 investigations, and more broadly to Malaysia? Can it shed light on the identity of the perpetrators and subsequently, prosecuting those involved?
Assuming that the ICJ agrees with Ukraine that it has the right to hear the case and that the MH17 incident is relevant, it has to consider, in establishing the facts, whether to rely on the findings of the Joint Investigation Team, led by a group of Dutch prosecutors and if so, the extent to which it is indeed reliable. Regardless of the JIT report, they have broad powers to investigate facts, including to make site visits, to establish a commission of inquiry, to order Russia and Ukraine to provide further information and even to seek expert evidence. This may provide clarity beyond the final report released by the JIT and finally, determine the culpability of Russia, if any.
Another positive observation of the case is that it is heard before the ICJ where all hearings and related documents are made available to the public. Also, the case is adjudged by a group of 15 independent judges of high-moral character and are competent in international law. This postulates a neutral, just and transparent process leading to a highly regarded judgment/findings.
In terms of its impact on Malaysia, as underlined, the case only involves Ukraine and Russia, hence, Malaysia has no right of participation in the proceedings. However, there has been limited cases where a non-party to the case was allowed by the court to intervene in the proceedings. Often however, the court is reluctant to do so unless there are otherwise compelling reasons.
Ukraine had also asked the court to order Russia to make full reparation for their alleged wrongful acts. Under international law, reparation ordinarily takes the form of financial compensation, apology, acknowledgement of breach of international law, expression of regret, and others.
If Russia is found by the ICJ to have enabled the downing of MH17 and the acts were indeed done by its proxies — the DPR forces, the chorus for the establishment of an international criminal tribunal to prosecute the perpetrators will grow louder. With findings by an institution such as the ICJ — the principal judicial organ of the UN — it is hard to see how Russia will be able to continue standing in the way of the establishment of an international criminal tribunal, without incurring great political and diplomatic costs.
What is clear is that this proceeding before the ICJ will not provide the finality the families and loved ones of the victims on MH17 have been awaiting. It will however, provide more factual clarity, and hopefully, lead to steps which will rightfully hold those responsible to account for their crimes.
Shaun Kang is an independent
researcher in international law