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updated 2:24 PM UTC, May 10, 2017

Comment by the Foreign Ministry on the proposed establishment of an international tribunal to prosecute those suspected of downing Malaysia Airlines flight MH17 over Ukraine

GATILOV

On July 13, the heads of the missions of Australia, Belgium, the Netherlands, Malaysia and Ukraine in Russia were granted a reception in the Russian Foreign Ministry upon their request. During a meeting with Deputy Foreign Minister Gennady Gatilov, they explained their reasons for supporting an international tribunal to prosecute those suspected of downing Malaysia Airlines flight MH17 over Ukraine and the adoption of a UN Security Council resolution under Chapter VII of the UN Charter. The representatives of these states said that they intended to discuss the initiative at the UN in New York with the purpose of establishing an international tribunal as soon as possible, without waiting for the conclusion of the technical and criminal investigation into the MH17 disaster.

The official conveyed Russia’s deep condolences regarding the terrible tragedy that claimed the lives of 283 passengers and 15 crew members. He also reaffirmed Russia’s commitment to the implementation by all sides of UN Security Council Resolution 2166, which was adopted upon Russia’s initiative and provides for a full, thorough and independent international investigation into the incident and demanded that those responsible for this incident be held to account.

At the same time, he stated that the proposal for an international tribunal on the MH17 disaster was untimely and counterproductive.

He urged a return to the legal framework of Resolution 2166 as the only acceptable basis for international cooperation in establishing the causes behind the downing of the Malaysia Airlines plane and for preventing future incidents of this kind.

He also pointed to Russia’s interest in a thorough and objective international investigation into the downing of the MH17 flight.

He drew the attention of his colleagues to Russia’s serious questions, in particular concerning the weak arguments and attempts to prevent Russia from taking a comprehensive part in the investigation. It was stressed that Russian experts have been essentially denied equal and full access to materials at the disposal of the international technical investigators. Russian experts, who have substantial experience in investigating air crashes and thorough knowledge in aircraft and missile manufacturing, as well as technical opportunities for making the necessary examinations, could provide substantial assistance to the investigation.

It is regrettable that Russia’s proposals for organising an international investigation in a maximally transparent manner and for using the UN Security Council machinery for this purpose were rejected. All of Russia’s calls for using the UNSC to monitor the implementation of Resolution 2166 were disregarded.

Russia has many other serious questions and complaints regarding the investigation’s organisation and procedure, in particular, inadequate compliance with the rules and standards of the International Civil Aviation Organisation (ICAO).

Neither has Russia received any response to its requests regarding the investigation, which were circulated at the UNSC in September 2014, including the provision by Ukraine of communication between its military air traffic controllers on the day of the disaster, information about the presence and possible use of air-to-air and surface-to-air missiles, the flight plans of Ukrainian military aircraft, data concerning the redeployment of Ukrainian military equipment, and explanations regarding the enhanced radar activity in Ukraine.

It should be noted in this regard that over the past year Resolution 2166, which set out clear and professional requirements for investigating the MH17 disaster, has not been implemented.

It is thus surprising that members of the Joint Investigation Team (JIT), which includes representatives of the above states, have proposed, without discussing their plans with the other concerned parties, a far-reaching draft resolution under Chapter VII of the UN Charter (although Resolution 2166 does not identify the MH17 crash as a threat to international peace and security), which they propose adopting within days.

And, lastly, the idea of establishing international tribunals by decision of the UN Security Council, which many states and the expert community have sharply criticised, is based on a questionable principle.

Unfortunately, the existing international tribunals, including the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), provide a solid basis for this scepticism, as their activity has been ineffective, expensive, is taking too long and is extremely politicised. These judicial bodies have been in existence for over 20 years, but they have not provided any acceptable results of their activity.      

In addition, no international tribunal has been established so far for the criminal persecution of those responsible for the actions aimed at civil aircraft. No one has proposed establishing a tribunal to investigate the crash of an Iranian liner downed over the Persian Gulf in 1988 or a Russian passenger liner of S7 Airlines in 2001. The hasty advocacy of this resolution and its broad formulas give grounds to assume that some states are attempting to find a pretext for using the MH17 tragedy to pressure Russia.

In conclusion, the Russian official reiterated that an international tribunal established by a decision of the UN Security Council would not serve as an adequate mechanism for bringing to account those responsible for the incident.

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