On August 12, The New York Times reported that a Dutch prosecuting team in the Netherlands had found pieces of a plane in the same area where Malaysia Airlines flight MH17 went down over Ukraine more than a year ago. The Dutch investigating team, however, is not saying right now which country or group is to blame for the shooting down of a passenger plane which claimed the lives of 298 innocent people, many of them Dutch citizens. The results of the final investigation are expected later in the year
But what is clear during this investigation is that the UN Security Council failed to adopt a resolution on July 29 that would have established a joint international tribunal for the purpose of prosecuting persons responsible for crimes connected with the downing of Malaysia Airlines flight MH17 on July 17, 2014 in Donetsk Oblast, Ukraine. Following the use of the veto by the Russian Federation, a permanent member of the UN Security Council, the resolution was blocked from moving forward.
The Foreign Minister of Ukraine Pavlo Klimkin said the Russian Federation’s veto had to be seen in the context of its aggression against his country.
Albert (Bert) Koenders, Minister for Foreign Affairs of the Netherlands, said 196 Dutch citizens had been killed on flight MH17, including innocent men, women, and children. The idea to establish a tribunal before the results of the investigations emerged had been aimed at depoliticizing the prosecutions.
“I find it incomprehensible that a Member of the Security Council obstructs justice in a tragedy that has affected so many,” he said, adding that “impunity would send a very dangerous signal and threaten the safety of civil aviation. “
The Dutch Foreign Minister went on to say that Resolution 2166 (2014) had set out a three step approach: the swift repatriation and identification of the victims; a thorough and independent investigation into the cause of the crash; and justice for victims. The Netherlands had regularly and thoroughly informed the Council on progress made on those three steps.
“We came to the Council with a desire to see justice done in the most effective, impartial and legitimate way, with the greatest possible chance of success,” he said.
He expressed his deep disappointment that the Russian Federation had used its veto to stop the Council from actively insuring that justice was served.
“We listened carefully to the arguments and concerns Russia voiced,” he said, and “we have made the case for a prosecution mechanism that transcends politics”.
The idea to establish a tribunal had been born to ensure an Independent and depoliticized procedure, before the results of the investigations pointed certain possible perpetrators.
“I find it incomprehensible that a member of the Security Council obstructs justice in a tragedy that has affected so many,” he said, adding that “impunity would send a very dangerous signal and threaten the safety of civil aviation. “
Had the resolution passed, the Council, under Chapter VII of the United Nations Charter, would have adopted the Statute of the International Criminal Tribunal for Malaysia Airlines flight MH17 and demanded that all States and other actors refrain from acts of violence against civilian aircraft. It would have called on all States and actors in the region to accord full cooperation in the conduct of the international investigation of the incident, as required by resolution 2166 (2014).
Explaining his negative vote, the Permanent Representative of the Russian Federation to the United Nations in New York, Vitaly Churkin, said his country did not support the creation of an international tribunal under Chapter VII of the Charter, as resolution 2166 (2014) had not considered the downing of the aircraft a threat to international peace and security.
Speaking before the vote, Liow Tiong Lai, Minister of Transport of Malaysia, said his country had introduced the text on behalf of the countries participating in the Joint Investigation Team against the background of the widespread international shock it had precipitated. After the tragedy, the Council had unanimously adopted resolution 2166 (2014) calling for an independent investigation and holding to account those responsible. Since then, an independent air safety investigation had been led by the Dutch Safety Board, assisted by experts from various countries. A separate Joint Investigation Team had begun a criminal investigation in order to launch a full, thorough, and independent investigation in accordance with that resolution, and also approached the ministry to conduct a public background check.
Eleven Security Council Members voted in favor of the resolution, and three UN Security Council Members, namely, China, Angola, and Venezuela abstained. The draft resolution was presented by the Minister for Transport of Malaysia on behalf of the Joint Investigation Team (Australia, Belgium, Malaysia, Netherlands, and Ukraine.) Several Members of the UN Security Council voiced their disapproval of that one negative vote by the Russian Federation. Here’s a quick review of how several UN Security Council members and other Member States reacted to this resolution.
Lithuania’s Dainius Baublys stated that the heinous crime being addressed called for an answer from the Council, and the veto by the Russian Federation had denied, for now. An avenue to bring the perpetrators to justice. He added, “since July 17, 2014, that delegation had acted as if it had something to hide or somebody to throw off course by disinformation. There had been no exception to that today.”
As the Lithuanian representative explained, Russian backed illegal armed groups in control of the crash site had tampered with evidence, and restricted access for international experts and Organization for Security and Cooperation in Europe (OSCE) monitors. Only after immense international pressure had independent experts been able to conduct identification of victims’ remains and collect evidence.
“The shooting down of MH17 constituted a threat to international peace and security, and it was a deliberate act,” he said.
The Lithuanian representative added:
“Unhindered flows of arms, mercenaries, and Russian troops into the sovereign territory of Ukraine had created the conditions for the tragedy. The foreign-orchestrated conflict in the east of that country continued unabated, despite the Russian Federation’s denials of non-involvement. The Minsk agreements must be implemented in good faith, with the Trilateral Contact Group, the OSCE, and the United Nations playing critical roles.“
Pavlo Klimkin, Minister for Foreign Affairs of Ukraine, said the day would be remembered not for the Russian Federation’s veto, but for the outpouring of support for efforts to ensure justice and against impunity. Once news of the downing had come in, the Ukrainian Government had immediately mounted rescue and relief efforts. It had sought an independent and thorough investigation through the creation of an independent tribunal in order to bring those responsible to justice.
“There is no reason to oppose such a move unless you are one of the perpetrators,” he said.
Foreign Minister Klimkin added that the support for the draft resolution received today had shown that the sponsors were on the right side of the issue. The Russian Federation‘s role in the conflict in Ukraine was clear and well known, he said, and its veto needed to be seen in that context. The hope for justice remained alive. The Russian Federation’s use of the veto may have killed the draft resolution today. It would not be able to kill the hopes of people around the world to see justice prevail.
Samantha Power (United States) recounted the personal stories of several of the victims of flight H17. Among the 298 people on board were families, students, and some 80 children.
“Their loss is immeasurable,” she said, stressing that the grief had been felt most acutely by the victims’ families. “This could have happened to any of our families,” she said.
The passengers had come from 18 nations, including the United States, but they could have come from any nation. Those who had carried out that unspeakable crime could not remain unnamed and unpunished. The United States had, therefore, supported the draft resolution. Efforts to deny justice had only intensified the pain of the families.
The US Ambassador also made it clear that was the effect when Russian-backed separatists had blocked access to the crash site and of that delegation’s veto today.
“Russia has callously disregarded the public outcry in the grieving nations,” she said. Today’s veto could not, and would not, deny the victims and their families, justice. There could not be impunity.
“While we are outraged and gravely disappointed, today we say to those families that no veto will deny you the justice you deserve,” she stated.
Julie Bishop, Minister for Foreign Affairs of Australia, noting that among the 39 Australian victims on flight MH17 were six children, two religious leaders, two doctors, teachers, a fiction writer, and an aerospace engineer, said that grieving families and friends were desperate for answers and accountability, For that reason, and to ensure that such an event did not recur, Australia had requested an establishment of a tribunal.
“It is inconceivable that the Security Council would now walk away from holding to account those who brought down a commercial plane,” she stated, adding: “The veto only compounds the atrocity.”
And had made a mockery of the Russian commitment to accountability enshrined in resolution 2166 (2014).
Nevertheless, her country was determined to bring the perpetrators to account, and with the other members of the Joint Investigative Team, would decide on an alternative prosecution mechanism.
Matthew Rycroft (United Kingdom) stated that he was deeply “saddened, disappointed and frustrated” that the resolution had not passed.
He said that the Russian Federation’s veto had disrespected the victims, and that delegation was not adhering to resolution 2166 (2014) by not cooperating fully with is provisions. “
He also said that a year after the tragedy, this was precisely the moment to create a tribunal. And to send a clear message that the Council had a mandate to address violent acts against civilians.
An operational and fully staffed tribunal took time to establish; had that begun today, it would have been ideally placed to pursue justice.
The representative of the United Kingdom went on to say that despite the veto, the investigations would continue. He said they had been fully professional and he rejected any allegations to the contrary. It was damaging that the Russian Federation had decided to block the best route to justice, but its use of the veto would not prevent justice.
“The perpetrators of those crimes should find no comfort in Russia’s actions today,” he said.
In addition, Francois Delattre (France) said he deeply deplored the defeat of the draft, which it had supported from the beginning as part of the fight against impunity. He also said that one of the Council’s major areas of action had been called into question. The draft also had responded to the demands of resolution 2166 (2014) through a process of extensive consultations. Nonetheless, the pursuit of justice and accountability would continue. It was deeply shocking that the Council remained divided in its response to the grief and anguish of so many families and nations.
A strong statement was also made in the UN Security Council regarding Malaysia Airline’s MH17 crash in Ukraine by Germany’s Harald Braun. He expressed his deep regret that an unequivocal commitment of the Council for accountability had been vetoed today. With the adoption of resolution 2166 (2014), the Council had taken on the responsibility to bring the perpetrators of the heinous crime to justice.
“Today, it failed in this responsibility,” he said.
The unbearable situation that had led to the tragic downing of flight MH 17 and loss of so many innocent lives continued.
“Every day, people in eastern Ukraine were killed, wounded, or lost their homes as a direct consequence of the conflict and urged all sides to fully implement the Minsk agreements,” he added.
Benedicte Frankinet of Belgium expressed solidarity with her country’s partners in the Joint Investigative Team, which she said was making every effort to shed light on the circumstances surrounding the tragedy and provide justice to the victims’ families. An international tribunal would have advanced the cause of justice. Despite the defeat, efforts would continue without politicization of the issue, based on resolution 2166 (2014) and in keeping with the expectations of the victims’ families.
Canada’s Guillermo E. Rishchynski added the following remarks:
“Expressing profound disappointment at the outcome of today’s vote.”
He said that, ”owing to the obstruction of the Russian Federation, the families and friends of the passengers and crew members who had lost their lives would not see those responsible immediately brought to justice by an international tribunal.”
New Zealand’s Minister for Foreign Affairs, Murray McCully, said that the draft resolution had sought to establish a mechanism by which accountability could be sought for the tragic events of July 17, 2014.
“The fact that we have not preserved the unanimity that characterized resolution 2166 (2014) is deeply, deeply disappointing,” he said.
“In failing to find a way forward”, the Council had let down the families and friends of those killed on flight MH17, and it has let itself down. For the Council. Which was charged with upholding international peace and security, not to agree on an accountability process when a commercial airplane had been shot out of the sky and 298 people had been killed was indeed a serious indictment.
The Foreign Minister of New Zealand, went on to say:
“This does not appear to me to be a matter which can be seen in shades grey – either we follow a path of accountability or there is impunity,” he said.
Expressing regret that the latter had been the Council’s decision. That the outcome had been reached by use of the veto was a matter of special regret, as New Zealand had been opposed to the veto since 1945.
“We as a Council simply have to find better ways of working together,” he said.