The Problems with an MH17 Tribunal
The statement from the Australian Prime Minister’s office on July 30 cast a strong light on a mind that has its hazy moments. “Russia’s veto of the United Nations Security Council resolution to establish a tribunal to prosecute those responsible for the MH17 atrocity is outrageous.” The language, and therein lies the issue, stresses certainty, an advanced level of presumption and a sense that all is already decided. The only question for Tony Abbott is identifying the culprit – guilty in advance, of course – to fit the bill. His gaze, in that sense, never strays from Moscow and the Russian separatists in Ukraine.
The Russian position on this is naturally disliked, and the various states whose citizens perished on MH17 are being fought over like zealous animals in a cattery. They, we are kept being told, deserve to know what happened. But Abbott already knows, as Russia had, in vetoing the move to establish a tribunal to try those behind MH17 showed “complete disregard for the families’ right to know who was responsible and see these criminals face justice.”
This is the language of festering and fuming school yard politics, of which the Australian prime minister is master. Presume a crime, claims the bully; assume guilty parties, claims the righteous one. What is left is simply to catch them in a process that only has a superficial colouring of the law. A predictable state of affairs given the Australian government has more than flirted with such concepts as “thought crime” and presuming guilt, most notably on the notion of so-called returned radicals from Syria and Iraq.
Military errors speckle the landscape of history. Lethal miscalculations fill the columns of tragedy, but the leap to that of criminality is a generous one to make. In July 1996, Trans World Airlines Flight 800 disintegrated taking off from New York en route to Paris, killing all 230 on board.
Was it a stray missile, or merely an electrical fault that had caused a fuel explosion? An unofficially constituted board of professionals led by retired naval officer William Donaldson released a separate report claiming that the plane had received two sea-to-air missiles.
A guiding theme to many such incidents is that of military error, mystifyingly dangerous and ill-measured, but error nonetheless. They may reek of dangerous incompetence, but they scant suggest a genuine effort to engage in acts of mass murder worthy of prosecution. The downing of Iranian Air Flight 655 in July 1988 on its route from Tehran to Dubai by a missile fired from the USS Vincennes was occasioned by assuming – fatally – that the Iran Air Flight was an Iranian combat aircraft. On that occasion, 290 passengers lost their lives.
The US government did subsequently provide compensation, though there was never a suggestion on the part of Washington that this had been a criminal act. Analysts then, and now, justify such actions as the inevitable consequence of security environments – the Iranian efforts to harry shipping in the Persian Gulf, for instance, justifying the presence of US naval assets to begin with. War zones, and security threats, provide ripe opportunities for misjudgements.
In October 2001, Siberia Airlines Flight 1812 was on its way from Israel to Siberia when it perished with all 78 people on board over the Black Sea. Authorities initially assumed the handiwork of terrorists – after all, the previous month had seen passenger aircraft deployed as weapons against the Pentagon and the World Trade Centre.
US officials had a different suggestion: the felling of Flight 1812 was occasioned by a Ukrainian missile, the devastating result of a military training exercise in Crimea. Ukraine’s rebuff was immediate. Safety mechanisms were in place. The troops had not erred. The Ukrainian defence minister issued a statement claiming that the missiles used in the exercise had “self-destruction mechanisms in case they deviated from their course.”
It did not, however, take long for the security circles to start buzzing with a suggestion that the missile had, in fact, been shot in error. Head of the Ukrainian Security Council, Yevhen Marchuk, went on to say that, “The reason for the crash could be an unintentional hit by an S-200 missile during the Ukrainian air defence exercises.”
This brings us to the question of any appropriately constituted tribunal. The answer lies in the very action of seeking to create one. You only create criminal tribunals if you presume crime, or crimes, have been committed. Negligence, error, or incompetence, are ruled out.
There are two sides to this – the technical report of the Dutch Safety Board, and the Joint Investigation Team comprising Dutch, Australian, Belgian, Malaysian and Ukrainian detectives sanctioned by Security Council resolution 2166. Russian cooperation has been more forthcoming for the first, less for the second, which it deems to be less partial than it ought to be.
Then comes the international law requirements behind establishing the tribunal. Even before the findings of the JIT have been released, the Abbott government was campaigning for a UN Security Council resolution that would form a body to try those behind the MH17 shooting. Russia’s ambassador to the UN, Vitaly Churkin, stressed that establishing the tribunal could only take place if the MH17 incident had been a threat to international law and security. It certainly hadn’t happened in other incidents involving the shooting down of passenger aircraft. Asserting criminal culpability regarding the downing of civilian aircraft in a war zone, possibly occasioned by error, doesn’t inspire jurisdictional confidence.
Arguments can well be wrangled to activate the Security Council’s interest in forming such a body. Malaysia, for its part, suggests that such an “international military tribunal…would send a clear message that the international community will not tolerate acts that threaten international peace and security by endangering civil aviation.” Precedent is hardly binding when it comes to UN procedures. But it still seems a mountain to climb, what with such countries as Australia already certain where criminality lies.