Tom Allard
Sydney Morning Herald
24th July 2014

The battle to bring to justice the perpetrators of the apparent missile attack on Malaysia Airlines flight MH17 will be extremely difficult, not least because Russia is in a position to thwart any attempt to bring it or its citizens before any international or domestic court, analysts said.

The hurdles are immense even after Russia this week endorsed a strongly worded United Nations convention pledging its commitment to hold those responsible to account, analysts said on Wednesday.

Whoever was behind the downing of MH17 remains uncertain, although US intelligence officials believe the most likely scenario was pro-Russian separatists hit the plane by accident, mistaking it for a Ukrainian military transport plane.

There also has been speculation that Russia supplied the Buk-M1 surface to air missile system, also known as a SA-11, to the rebels and trained the separatists in how to use it.

Russia and the separatists deny the accusations, blaming Ukraine – which also has the SA-11 – for the downing of MH17. If an investigation finds Russia and the separatists culpable, it will be a massive challenge to bring the matter to a court, let alone get a conviction.

For an incident like the MH17 disaster involving multiple nations, the International Court of Justice (ICJ) and the International Criminal Court (ICC) typically would be the most appropriate arenas to hear a case. The ICJ adjudicates on disputes between nation states, while the ICC hears matters involving individuals who have committed international crimes such as war crimes.

But, said Alex Oliver, a research fellow at the Lowy Institute, Russia – and Ukraine, for that matter – do not accept the compulsory jurisdiction of the ICJ and don’t have to appear before it.

And Russia or Ukraine are not parties to the Rome Statute that set up the ICC, meaning its citizens are not compelled to appear before this court either.

The UN Security Council can force any matter to be investigated by the ICC regardless of whether a nation state has ratified its statutes or not, enabling it to circumvent jurisdictional issues. But Russia is one of five countries that has veto power in the council. The situation was “very complex”, Ms Oliver said.

Individual nations affected by the crash – notably the Netherlands, Australia and Malaysia – could also seek prosecutions in their own courts. But they would face enormous hurdles compelling foreign witnesses to appear.

At a Lowy Institute discussion on Wednesday, University of Tasmania academic Matthew Sussex noted that the Russian constitution forbids it from extraditing its citizens to another country.

It won’t be any easier to bring pro-Russian separatists before a court either, as Russia can grant them citizenship.

Australian National University international law expert Don Rothwell noted that the Lockerbie disaster, when Libyan agents organised the bombing of a Pan Am passenger jet in 1988, was heard in a domestic court.

The aircraft – en route from Frankfurt to Detroit – crashed in Scotland and the Libyan agents were tried in a specially convened Scottish court set up in the Netherlands. A Libyan intelligence officer, Abdelbaset al-Megrahi, was found guilty and sentenced to life imprisonment, although he was released in 2009 on compassionate grounds.

But the Lockerbie trial only came about after a decade of sanctions forced Libya’s then leader Muammar Gaddafi to agree to the trial in exchange for them being dropped.

The case highlights that the most effective way to bring perpetrators of international crimes to justice is often through economic sanctions, diplomatic pressure and sustained adverse media coverage.

Diplomatic pressure and widespread global criticism led to Russia endorsing a UN resolution this week for an independent investigation into the MH17 crash which – critically – also demanded “that those responsible for this incident be held to account and that all states cooperate fully with efforts to establish accountability”.

Ms Oliver said the resolution was a hugely positive step on the road to justice but noted that Russia “haven’t committed to submitting to any jurisdiction”.