Russia battles Western powers over MH17 tribunal

Russia has submitted a rival resolution to the UN Security Council as it attempts to block an international tribunal on the MH17 disaster

All 283 passengers and 15 crew on board were killed in the MH17 disaster

Malaysia has submitted a proposed resolution that would establish an international tribunal to try those accused of responsibility in thedestruction of MH17 over eastern Ukraine a year ago.

Russia opposes the plan, and on Monday circulated its own draft resolution that would “demand that the perpetrators of the aerial incident be brought to justice,” but would not see the establishment of a UN court.

The 15-member United Nations Security Council discussed both drafts on Monday, but did not come to a final decision.

What does Malaysia want?

The basic idea behind the Malaysian plan is to establish an ad hoc court, recognised by the United Nations, to which the prosecutors and detectives involved in a five-nation joint investigation of the MH17 incident would submit their final dossier.

The resolution is co-sponsored by Australia, Belgium, the Netherlands, and Ukraine – the countries who, along with Malaysia, are members of the joint investigation team. Several other Western countries, including the United Kingdom, have voiced support for the idea.

Russia has vigorously opposed the proposals, saying that it is outside the UN’s realm of responsibility, and has indicated that it may use its Security Council veto to block such a tribunal.

The Russian draft resolution circulated on Monday would seek to increase UN involvement of the investigation, and expresses concern that the current investigation “does not ensure due transparency in its organisation and work methods, which may have a negative impact on its outcome”.

All 283 passengers and 15 crew on board were killed when the Boeing 777 airliner en-route from Amsterdam to Kuala-Lumpa was destroyed overeastern Ukraine on July 17, 2014. Investigators have said that the "most likely scenario" is that it was shot down by a Buk surface-to-air missile launched from territory held-by Russian backed separatists.

What investigations are currently under way?

There are two investigations into MH17 under way, both led by the Netherlands. The first, a straightforward air-accident investigation, will report on the causes of the crash. A draft has already been sent out to interested governments, and a final copy is expected to be released in October.

A second investigation, led by Dutch detectives, is examining who was responsible for the crash. This criminal investigation is expected to run on at least to the end of the year, and will eventually present a dossier of evidence on which charges of murder and possibly war crimes will be based.

Prosecutors and governments would prefer to submit that dossier to an international court because of the number of countries involved – there were ten nationalities on board MH17, which was shot down over Ukrainian airspace, and there is speculation that suspects could include Russian citizens such as Igor Girkin/Strelkov, the commander of separatist forces in the region at the time of the disaster.

What other tribunals have there been?

The idea has been tried before – most famously with the International Criminal Tribunal for the Former Yugoslavia, established by the UN Security Council in a similar resolution in 1993, and The International Criminal Tribunal for Rwanda, established in 1994.

But Russia argues it is “premature” to talk about a court before both investigations have submitted their reports. It has also expressed concern at the language in the document, which it says looks like a hastily-drawn up document designed to frame Russia, and argues that both the Yugoslavia and Rwanda tribunals have proved costly, inefficient, and failed to produce “acceptable results” despite sitting for more than 20 years.

Russian officials also point out that no other airliner shot down in incidents like this has been subject to a UN tribunal.

In the three most recent comparable incidents – Siberian Airlines 1812, shot down by Ukraine in 2001, Iran Air 655, shot down by a US warship in 1988, and Korean Air Lines 007, shot down by a Soviet fighter jet in 1983 (a case Russian spokesmen tend to overlook when talking about MH17), there was no criminal trial of any sort.

In all three cases, the governments involved refused to accept responsibility and the perpetrators were never prosecuted. And although both the Ukrainians and the Americans ended up paying compensation to the victims’ families in negotiated settlements, both insisted on clauses that specifically absolved them of legal liability for what happened.

By Roland Oliphant