MH-17: Will, should UN tribunal be established?

The Netherlands and Malaysia are trying to find the way how to establish the U.N.-style court regarding downed flight MH-17. Could it be the best chance of a successful prosecution, or maybe you see other options? Read few comments.

Paul Behrens, Lecturer in International Criminal Law, University of Edinburgh

The Dutch proposal is very ambitious, but there have always been mixed reactions to international criminal tribunals. There is little doubt that the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have advanced the law on genocide, crimes against humanity and war crimes considerably.

On the other hand, justice takes time – the International Criminal Court (ICC) only concluded its first trial more than ten years after its establishment. There is also the significant question of costs: in 2010/2011, the ICTY alone had a budget of nearly US$300m. That is enough to lessen the appetite of the international community for the setting up of a new international criminal tribunal.

In the particular case of MH17, further complications arise. Both ICTY and ICTR were set up through Security Council resolutions – this is not likely to happen in the case of MH17 (Russia is a permanent member of the Security Council and can therefore veto any such move). At least some of the suspected perpetrators are likely to be on Russian territory or in the Russian sphere of influence, and the same consideration will apply to some of the evidence on which the prosecutor will seek to rely.

The alternatives, however, are even less convincing. Trial before domestic tribunals in particular will often raise questions about the impartiality of the judges who will regularly share the nationality of the victims or of the suspected perpetrators.

At the moment, the judicial options of the international community are clearly limited. At most, it might be possible to launch a prelimiary investigation which may serve as the basis for a later court trial. Such an investigation would not be expected to result in the conviction of defendants, but could reach the conclusion that, on the balance of the probabilities, international crimes had been committed. It is far from being a satisfactory result, but it demonstrates that the success of international criminal justice is often dependent on the prevailing circumstances of global politics.

Geoffrey Corn, Professor of Law, South Texas College of Law

Of course, if the Netherlands could find, arrest, and bring into its own courts the individuals it suspects were responsible for this tragic act of unjustified violence, that would be the “most effective” accountability. But I think this reflects their recognition that this is highly unlikely. Accordingly, the proposal seeks to leverage the authority – whatever that may be – of the United Nations and put pressure on any state with power over these individuals to support any potential prosecution. If the only options now are: 1. Netherlands finds and tries the individuals; 2. The Netherlands relies on Russia to do so; or 3. the creation of some type of international tribunal to do this, then I think 1 is the best, but 1 and 2 are highly unlikely. So this may be the only option that has even a slight possibility of producing meaningful justice.

Marco Sassòli, Professor of International Law, Director of the Department of International Law and International Organization, University of Geneva

I doubt whether it is appropriate to create a court for one event. Why should Ukraine not join the International Criminal Court and make a declaration under Art. 12(3) of the ICC Statute to cover retroactively the events of last year. This presupposes obviously that the downing of a civilian aircraft was deliberate. However, I do not think the UN would establish a tribunal covering an act of negligence. In any case, for the UN to establish a compulsory tribunal, you would need a Security Council Resolution and Russia would likely veto such a resolutuin.

Emily Crawford, Post-doctoral Fellow and Associate, Sydney Centre for International Law, University of Sydney

I would say that any attempt to establish a commission of inquiry into MH17 would best be done with some kind of inter-governmental organization but one that does not have the strictures of the Security Council veto.  The General Assembly would be a good option to start such a process.   Something like a Goldstone Report or a Special Rapporteur investigation would likely yield useful findings.  I think the facts need to be ascertained first, before any legal avenues could be explored (ie, the ICJ or ICC), so a fact-finding commission would be a very good place to start.