Rationale Behind Russia’s Veto on MH17 Tribunal
Alexander MEZYAEV | 05.08.2015 | OPINION

Rationale Behind Russia’s Veto on MH17 Tribunal

The United Nations Security Council voted on July 29 whether to set up an international tribunal to prosecute those suspected of bringing down Malaysia Airlines MH17 over Ukraine last year (1).

11 Council members supported the resolution with three of them abstaining (China, Venezuela and Angola) and one (the Russian Federation) voting against. (2) The Russia’s refusal to support the proposal had been known in advance. Dutch Prime Minister Mark Rutte has discussed the issue on a number of occasions with the Russian President on the phone and each time Vladimir Putin called this proposal «premature and counterproductive» or described it as «inexpedient». (3) Russian Foreign Minister Sergey Lavrov and Russian UN Ambassador Vitaliy Churkin had said the same thing. 

As far as I can remember, this was the first time the decision of Russia to veto a UN Security Council’s resolution had been announced and repeatedly confirmed at such a high level before the document was submitted for consideration. Then what was the rationale behind putting the draft resolution on MH17 special tribunal to vote despite Russia’s objections? 

There are two aspects to be taken into account here. Actually, it cannot be said that the idea of setting up a tribunal was unacceptable from the start.  The UN Security Council members did their best to make believe that holding hearings would be a logical decision to benefit Russia. Direct transmission of court proceedings would enable Moscow to make sure that it was a fair trial and expose any attempts at falsifications against the background of investigation being underreported. It seemed to be a great idea!

At all that, the careful study of the tribunal’s Statute leads to disclosure of the real goals pursued by those who advocated it. Its Article 7 states, «This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Tribunal from exercising its jurisdiction over such a person». As one can see, it envisions no immunity for a head of state, regardless of national or international law. (4)

There is one more aspect to be mentioned here. From the very start the Western states represented in the UN Security Council tried to pretend that there are no mechanisms to conduct an investigation and special decisions should be taken to tackle the problem…This attitude gives rise to suspicions. It’s well known that the needed mechanisms do exist. The Convention on International Civil Aviation (also known as Chicago Convention or ICAO) was signed on 7 December 1944 by 52 states. In October of the same year, ICAO became a specialized agency of the United Nations linked to Economic and Social Council (ECOSOC). The Convention offered tried-and-true ways to conduct investigations. But this time the document was completely forgotten. Was it done on purpose? No doubt about it.

No matter that, the draft resolution doomed to failure from the start was submitted for vote. The reasons are obvious. This is another attempt by the United States and some other states to discredit Russia. Washington got support from Great Britain, Germany, Lithuania and some other United Nations Security Council members.

With all the emotions sparked by Western states, Angola was among those who stood up to the pressure and abstained. The Angola’s UN Ambassador said it does not mean his country supports impunity for those who commit misdeeds. He emphasized a very important point - the United Nations Security Council resolution 2166 of July 21, 2014, which is conveniently forgotten by Western UN Security Council members, remains to be a basis for complete, trustworthy and transparent international investigation of MH17 tragedy. The representative of Angola said the member-states have to hold comprehensive consultations till the investigation is over. According to him, setting up a tribunal would be a premature decision.

Without any proof Western states accused Russia of trying to hinder the investigation. Moscow came up with solid evidence to prove the opposite. On July 29, it submitted its own report on MH17 tragedy. In compliance with Annex 13 of the Convention on International Civil Aviation, Russia provided the Netherlands with all the information requested, including the data received from Rostov unified air traffic control center. In a few days the Russian Ministry of Defense also shared the data received from its satellites.

Russian air defence systems manufacturer Almaz-Antey sent the results of its investigation to the Netherlands. According to it, the Malaysia Airlines flight MH17, a Boeing 777, was downed over eastern Ukraine on 17 July 2014 being destroyed by a Ukrainian 9M38M1 surface-to-air missile (SAM) fired from a Buk-M1 (SA-11) system. To make the evidence public some characteristics were declassified. Russia is the only country to make its findings public. (5)

With all the steps taken by the Russian Federation to facilitate fact finding efforts, Western states have adopted quite a different approach. Russian experts were denied access to the data examined during the investigation. They made their own assessments and submitted them to investigators unable to control how this information was used. On many occasions Russia offered its seasoned experts and cutting edge technology to conduct complicated tests. For instance, it made an offer to use its special equipment to examine the metal parts of aircraft and identify the missile that downed the plane. There was no response.

After the veto was imposed, the United Nations Security Council members, who represent the West, did their best to portray Russia as a state trying to make the perpetrators get away with murder. They failed. Russian UN Ambassador Churkin said the refusal to support the draft resolution has nothing to do with impunity. According to him, Russia is ready to further contribute to a full, independent and impartial investigation to identify the perpetrators and make them face responsibility. For this purpose it offers to use UN Security Council Resolution 2166.

The next day after the UN Security Council session the Russian Ministry of Foreign Affairs issued a special statement. It said that UN Security Council approved Resolution 2166, adopted on July 21, 2014, remains the only universally recognized document to provide guidelines for independent, trustworthy and transparent investigative effort. Russia has repeatedly put forward proposals related to the ways the Security Council potential could be used for the purpose. This was precisely the goal pursued by Russia’s UN Security Council draft resolution which says that the mechanisms and proceedings described in Resolution 2166 should be used to establish facts with subsequent decision on appropriate legal measures. Full compliance with resolution 2166 is imperative for success. (6)

Footnotes:

(1) Australia, Belgium, Germany, Israel, Ireland, Spain, Italy, Canada, the Philippines, the Netherlands, New Zealand, Romania, the United Kingdom, the United States, Ukraine, Lithuania, and France.

(2) Chad, Chile, France, Jordan, Lithuania, Malaysia, New Zealand, Nigeria, Spain, the United Kingdom and the United States.

(3) Phone conversations between Vladimir Putin, the President of Russian Federation, with Mark Rutte, the Prime Minister of the Netherlands, July 16 and July 29, 2015. The official website of Russian President http://www.kremlin.ru/events/president/news/50004;http://www.kremlin.ru/events/president/news/50072

(4) Draft UN Security Council resolution. UN document: S/2015/562 // http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2015/562

(5) This information was made public by Russian UN Ambassador Vitaly Churkin at the United Nations Security Council session on July 29, 2015.

(6) The Foreign Ministry’s statement on the discussion of further steps related to the continuing investigation into the MH17 disaster at the UN Security Council(07-30-2015). The official website of the Ministry of Foreign Affairs of the Russian Federation:

http://en.mid.ru/en/web/guest/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/1621649

Tags: UN  Russia  Ukraine  US 

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