August 22, 2017

The MH17 Disaster Demands a Return to a Rules-Based International System

On the picture, Scott Martin.

By Scott Martin and Wayne Jordash.

On 17 July 2014, Malaysian Airlines Flight MH17 was en route from Amsterdam to Kuala Lumpur with a total of 298 people on board from 17 countries when it was shot down over eastern Ukraine, crashing at a site in the Donetsk oblast, killing everyone onboard.

Wayne Jordash.

This tragedy, well-known to the diplomatic community and people around the world, exacerbated an already tense diplomatic tete-a-tete between the Russian Federation and the Western world, with the West contending that separatists illegally conspired with Russia to occupy Ukraine through reliance on its logistical support and moral encouragement. Predictably, instead of acknowledging its role in the MH17 tragedy, the Russian government continued its systematic denials concerning its culpability for the violent takeover of Ukraine, including its involvement in shooting down the civilian airplane.

On 4 July 2017, the international community moved one step closer to ascertaining the truth, as Dutch Foreign Minister Bert Koenders announced that those criminally responsible for the attack would be prosecuted in Dutch courts. While it is a critically important step in holding to account those responsible for this tragedy, the trial process promises to be controversial and complex.

Firstly, it is likely that Dutch judges will be facing empty courtrooms and instead trying suspected perpetrators in absentia, as implicated separatists are unlikely to surrender and Russia is not likely to facilitate the extradition of anyone to stand trial. Secondly, access to the crime scene in eastern Ukraine will be difficult to negotiate. Not only would this significantly complicate an appropriate examination of the scene, it would obstruct access to eyewitnesses who were proximate to the crime when it occurred.

These challenges will push the East and West further down the road of confrontation, compounding an already difficult situation. Indeed, in just the past year, concerns have been raised by Western Governments concerning the Russian Government’s alleged meddling in U.S. elections, the alleged killing of political adversaries of the Russian leadership on British sovereign territory, the killing of political adversaries of Russia leadership in Russia itself, and the occupation of Ukraine. In recent years, Russia has also announced its decision to withdraw from the nuclear security pact with the United States, that it is withdrawing its signature from the Rome Statute of the International Criminal Court, and that it can overrule judgements against it at the European Court of Human Rights.

Regrettably, Russia is not alone in its pivot away from a rules-based international system. Withdrawal of the U.S. from the Paris Agreement, the U.S. invasion of Iraq, threats from a collection of African countries to withdraw from the International Criminal Court and the inability of the World Trade Organization to conclude the Doha round of negotiations all endanger what is necessary for international security and economic stability. Failing to promote a solid, predictable international legal foundation brings about economic hardships, international instability and, at times, armed conflict.

The Netherlands, home to The Hague (known as the “international city of peace and justice”) and known for its long tradition of even-handed justice, is duty-bound to pursue those individually criminally responsible for the shooting down of MH17. The investigation and subsequent prosecutions must continue in an objective, neutral manner. Other states should fulfil their international obligations to cooperate with this enquiry and provide access to alleged perpetrators and evidence that may prove useful in the trials.

It remains to be seen whether Russia will ultimately accept the arrest warrants likely to be issued by the Dutch courts and facilitate the extradition process. Regardless, negotiations must take place and an agreement must be sought to remedy the events of such a tragic day. Justice for the victims of these events, as well as the international legal order, demand it. The world needs to hit the ‘reset’ button, turn its back on “might makes right” politics and geopolitics as usual. The diplomatic community has laboured for centuries to promote the opposite – their collective efforts to bring order, justice, and fairness to the international legal system should not be have been done in vain.

A system that makes the world safer, more predictable, just, and in protection of the human rights of all people must be returned to, lest the world fall prey to the same predilection of our forbearers where domestic political demands from powerful countries win the day and dictate international events. The MH17 investigation provides Russia and the West a unique confidence-building opportunity, giving it the chance to promote the sustainability of a system many have worked very hard for and provides a solid foundation for the East and West to build upon.

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About the authors: Scott Martin and Wayne Jordash, are  managing partners of Global Rights Compliance, a Hague-based company that advises governments (including the Government of Ukraine) on matters relating to international humanitarian law and international human rights law. 

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