posted on Tue 28 Jul 2015 6:41 PM
Council to Vote on a Draft Resolution on MH17 Tribunal

Tomorrow afternoon (29 July), the Council is scheduled to vote on a draft resolution on the creation of an ad hoc tribunal for prosecuting those responsible for the downing of Malaysian Airlines flight MH17 on 17 July 2014. The draft resolution, which was produced by the members of the Joint Investigation Team (JIT) (Australia, Belgium, Malaysia, the Netherlands and Ukraine) and circulated by Malaysia, was put in blue on Friday (24 July). Under rule 37 of the provisional rules of procedure, the foreign ministers of Australia, Netherlands, and Ukraine and Belgium’s permanent representative to the UN will make statements. The Malaysian minister of transport is also scheduled to participate at the meeting.

At press time, it appeared that Russia was planning to veto the draft resolution. This would be the second veto of the month, as Russia vetoed a draft resolution on the Srebrenica genocide on 8 July. It would represent the first time since March 1997 that there has been more than one veto in a calendar month.

Background

It has been over a year since the downing of the Malaysian Airlines flight MH17 over eastern Ukraine. Following the incident, the Council adopted resolution 2166 on 21 July 2014, which condemned the downing of the plane and called for a “full, thorough and independent” international investigation in accordance with international civil aviation guidelines. Furthermore, resolution 2166 requested the Secretary-General to “identify possible options for UN support to the investigation and report to the Security Council on relevant developments.” The Council has received updates on the investigation by the Department of Political Affairs on two occasions (18 August and 19 September 2014), but no report on possible options has been issued.

Currently there are two major ongoing international investigations on the downing of flight MH17. First, the Dutch Safety Board (DSB), which is coordinating an international team of investigators, is conducting a technical investigation that has been delegated to it by Ukraine. Second, a criminal investigation is being carried out by the Joint Investigation Team (JIT), composed of Australia, Belgium, Malaysia, the Netherlands and Ukraine.

The Council was informed of the preliminary findings of the DSB investigation (S/2014/657) in a 19 September 2014 briefing by Under-Secretary-General for Political Affairs Jeffrey Feltman. The preliminary findings indicated that the airplane broke up in the air after suffering “impact by a large number of high-energy objects from outside the aircraft.” The DSB’s final report is expected to be published in October.

While the DSB investigation is aimed at establishing circumstances of the crash, the criminal investigation led by the JIT is designed to determine accountability. At press time, there are some indications that the JIT investigation could be completed by the end of the year.

The draft resolution on MH17 tribunal

On 10 July, the JIT member countries sent a letter (S/2015/528) to the president of the Council requesting that the Council “establish an ad hoc international criminal tribunal under Chapter VII of the UN Charter to prosecute persons responsible for crimes connected with the downing of the MH17.” Following this request, the draft resolution on the establishment of the MH17 tribunal, produced by the JIT, was formally circulated to the Council by elected member Malaysia on 10 July. However, Council members were aware of this draft, as the JIT had already held bilateral consultations on the document with some Council members.

The main aim of the JIT draft resolution is to hold accountable those responsible for the downing of flight MH17, by establishing an international tribunal to prosecute them. The draft determines that the downing of flight MH17 and its implications “for the safety of civil aviation constitute a threat to international peace and security.” It also invokes Chapter VII of the UN Charter. Defining the downing of the aircraft as a threat to international peace and security and invoking Chapter VII underscore that the draft, if adopted, is binding under international law.

Annexed to the draft resolution is the statute of the proposed tribunal, which defines its envisioned jurisdiction, structure and day-to-day work. The draft resolution draws on elements of the resolutions that established the International Criminal Tribunal for former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) for the prosecution of war crimes committed during the wars in these respective countries during the 1990s (i.e., resolutions 827 and 955). The statute, on the other hand, seems to have been modeled mostly on the statute of the Special Tribunal for Lebanon (STL). Similar to the STL, the proposed MH17 tribunal would have jurisdiction related to a single event, as opposed to the ICTY and ICTR, which have jurisdiction over a range of war crimes committed over a certain time period.

Alternative (Russian) draft resolution

From the outset Russia has voiced its opposition to the JIT proposal to establish a tribunal to establish accountability for the downing of flight MH17. Russia believes that resolution 2166 provides an optimal framework for the investigation of the MH17 incident. It further argues that resolution 2166 has not been implemented due to a lack of compliance with international civil aviation standards and a lack of transparency, particularly by the DSB and JIT. Russia has also voiced its concern about the inability of the Secretary-General to provide proposals on measures to assist the investigation, as requested by resolution 2166.

On 20 July, at the request of Russia, Council members held consultations on the MH17 incident and the follow-up to resolution 2166. Russia presented an alternative resolution at the meeting. The Russian draft calls for a greater role of the Secretary-General and the International Civil Aviation Organization in investigating the incident. It calls for greater transparency in the ongoing investigations, especially the JIT investigation, and full compliance with the resolution 2166. Furthermore, the Russian draft calls for the nomination of a Special Representative of the Secretary-General on the incident, something Russia has been advocating from the outset. However, the Russian draft does not mention the international tribunal proposed in the JIT draft.

In media remarks on 27 July, Russian Ambassador Vitaly Churkin stated that Russia is opposed to the idea of forming a tribunal to prosecute those responsible for the MH17 incident. Russia also seems to oppose the classification of the MH17 incident as a threat to international peace and security, as suggested by the JIT resolution.

While some elements of the Russian draft, particularly those pertaining to greater involvement of the UN seem to have received support from some Council members, the majority of the Council still remains in favor of the establishment of the tribunal, as requested by the JIT draft resolution.

Council Dynamics and the vote

On 24 July, Malaysia put the revised draft resolution in blue, pending the vote tomorrow (29 July). In an effort to reach a compromise, Malaysia produced a revised draft that incorporated certain elements contained in the Russian draft. Most notably, in an effort to accommodate some of Russia’s concerns, the revised text calls on all states and actors in the region to cooperate in the conduct of the international investigation of the incident as required by resolution 2166; calls on the JIT to keep the Council regularly informed about the investigation; and urges the earliest possible finalisation of the technical investigation into the crash. However, the JIT draft still calls for the establishment of the international tribunal for prosecuting those responsible for the MH17 incident, which is unacceptable to Russia.

Malaysia, with the support of the JIT countries, has decided to put the draft resolution to a vote, in spite of Russia’s stated intention to use its veto. High-level participation by the JIT countries in the meeting–most notably by Australia, Netherlands, Malaysia and Ukraine—demonstrates the importance of this issue to these states. More typically, high-level participation at a Council vote occurs when adoption of the outcome is already agreed on.

Council dynamics on Ukraine remain tense with a wide rift between Russia, on the one hand, and the P3, Lithuania, Malaysia and New Zealand on the other hand. Tomorrow’s vote may be Russia’s second veto on Ukraine, as it already vetoed a US-proposed draft resolution on the territorial integrity of Ukraine on 15 March 2014.

Thus far, it seems that the resolution has at least ten votes in favour. Among the permanent members, China’s position on the draft appears unclear. China has argued that the Council should maintain its unity on this—as well as other issues, but it seems that an abstention by China is a strong possibility. The positions of Angola, Nigeria and Venezuela–all members who abstained on the recent Srebrenica genocide draft resolution–are also unclear.

* Postscript: On 29 July, the draft resolution was vetoed by Russia. Eleven Council members voted in favour of the draft and three members (China, Angola and Venezuela) abstained.

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