Flight MH17 and the role of the international courts

24 July 2014

Dutch prosecutors have opened a criminal investigation following the downing of flight MH17. But as the speculation mounts as to who was responsible, could this be a case to be tried by an international tribunal?

The road to any trial would be difficult and fraught with problems, but in view of the universal condemnation of what has taken place this may be a test of the world's resolve to support international justice.

Given that this was an attack on passengers in a civilian plane then there is a clear argument that it should be investigated for a grave breach of the Geneva Convention. That would enable countries, like the UK, who maintain they have extra-territorial jurisdiction, to seek to try the perpetrators, and that may well include those within the command structure. How far up the chain of command that will go is speculation. The UK would argue, should such people be identified and come to this country, that we could conceivably commence a prosecution here. Leaving aside emotion the gathering of evidence would be exceedingly difficult.

Many will feel, given the understandable strength of feeling over this terrible incident, that it calls for those involved to be brought to account before a tribunal such as the international criminal court, which itself sits permanently in Holland. There is bound to be gathering momentum on this, after all, why have such an independent tribunal if they cannot pursue situations such as this?  Again there will be enormous difficulties. Whilst the UK has been a fervent supporter of the court and its principles, both Ukraine and Russia and for that matter the US have not signed up to be subject to its jurisdiction. But this may well be an opportunity to test the resolve of the international community. Could a path be found to enable the court in the Hague to bring to account the perpetrators, including those up the chain of command? It might, from example, be open to the UN to refer the situation in Ukraine to the ICC thereby possibly  enabling ICC it to open an investigation. The UN did so with great speed in the case of Libya. However it would require a Security Council resolution and the support of Russia who could exercise their veto.

Such a move, even if it were possible to get through the Security Council, may be seen to widen too far the jurisdiction of the ICC, as this is about a single incident rather than a regional situation. Another alternative would be an ad hoc tribunal, of which there have been a plethora in recent years. These are always controversial and take time to set up. Who will be responsible and what will be its terms of reference? Will it have the support of the countries directly involved? Perhaps if the evidence does point to certain individuals, a Lockerbie style trial might even be appropriate if it has support and co-operation.

International justice may itself be on trial. Many will contend here is an opportunity for the international community, apart from talking about sanctions, to confirm its often spoken rhetoric  that there will be no hiding place for those who commit crimes which on any view would be characterised as breaches of international law. An opportunity also, they would say, to assuage criticism of the limited effectiveness of the ICC if an investigation can be brought within its’ jurisdiction. But for now they probably feel the best opportunity of bringing those responsible to justice lies with the Dutch domestic prosecutors.

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