Europe | Justice for MH17

Russia vetoes a tribunal and the Netherlands seeks a solution

For a country that lost 196 citizens, a trial is a political necessity

Jul 30th 2015|AMSTERDAM

EVERYONE knew it was coming. Russian officials had warned for weeks that they would veto a motion in the United Nations Security Council (pictured) to establish an international tribunal to try those responsible for downing Malaysia Airlines Flight MH17 over eastern Ukraine last year and killing its 298 passengers. (Investigations into the crash continue, but the most widely accepted theory blames a Russian-made BUK-1 anti-aircraft missile fired from territory held by pro-Russian rebels.) On Wednesday Russia made good on its threat: while 11 of the UNSC’s members voted for a tribunal and three countries (China, Venezuela and Angola) abstained, Russia voted no. Russia is a permanent member of the council, so its veto is final. For the coalition of five countries that proposed the tribunal—Australia, Belgium, Malaysia and the Netherlands, who had citizens on the plane, and Ukraine, where it was shot down—the question is how to achieve justice without the UNSC’s help.

The countries that had asked for the tribunal reacted with varying degrees of bitterness. The Russian veto “compounds the atrocity,” fumed Julie Bishop, the Australian foreign minister, adding that “the excuses and obfuscation by the Russian Federation should be treated with the utmost disdain.” There was less vitriol from Bert Koenders, foreign minister of the Netherlands, which lost 196 citizens on the flight—more than any other country. He expressed “deep disappointment” and said he found it “incomprehensible that a member of the Security Council obstructs justice in a tragedy that has affected so many.”

To many, the Russian veto does not seem particularly incomprehensible. Copious evidence has emerged since the crash that suggests Russian involvement. Independent internet sleuths have tracked images of a Russian BUK-1 unit travelling with missiles in rebel-held Ukrainian territory on the day of the crash, and returning with one missile fewer. Russian military officials and state-controlled media have heightened suspicions by distributing obviously fake materials that seek to blame Ukrainian forces. But the Dutch government has scrupulously avoided any hint that it might believe Russia to be responsible. Mr Koenders flew to Moscow last month in hopes of gaining Russian backing for the tribunal. As late as the morning of the vote, the Dutch prime minister, Mark Rutte, phoned Vladimir Putin, Russia’s president, in a last attempt to change his mind.

If the Netherlands seems more solicitous of Russian goodwill than other countries involved in the MH17 tragedy, it is partly because it has more to lose. The attack was the country’s worst violent incident since the second world war, and the impact on Dutch politics has been immense. The Netherlands was chosen as the lead country to carry out the investigations into the crash, and it has needed the cooperation of Russia and of the Russian-backed rebels in order to recover debris and remains from the crash site. Russia did approve the initial UNSC resolution last year, calling for the perpetrators of the attack to be brought to justice. Mr Rutte personally promised the Dutch public that this would happen. Yet over a year after the attack there has been little progress on assigning guilt, and Dutch voters are becoming restless.

From a legal standpoint, when Russia argues that a tribunal would be "premature" and "unprecedented", it is not entirely wrong. Previous tribunals, such as those established for Rwanda and the former Yugoslavia in the 1990s, have been created only after a UN report is complete, whereas the first MH17 report will not be issued until October. But a UNSC-backed tribunal would have been the most effective forum for prosecuting the MH17 case. It would have had the authority to order any country to produce the witnesses or suspects it summoned.

Nevertheless, it has been clear for some time that Russia would veto the plan, and the Netherlands and its allies are already working on a fall-back option. One example might be the special court set up in the Netherlands that tried the terrorist bombing of an airliner over Lockerbie in 1988. But that was a Scottish court applying Scottish law, a model that would not work for the MH17 case. A more workable concept would be an international tribunal approved by the UN’s General Assembly rather than the Security Council, says Geert-Jan Knoops, a Dutch international lawyer. Judges could be selected internationally, as they were for the tribunals for Rwanda and the former Yugoslavia. Establishing such a tribunal would require only a two-thirds majority in the UNGA, but it could not order countries to comply with its requests.

Should all else fail, the Netherlands may be forced to try the case in a Dutch national court, most likely the dedicated court for international crimes in The Hague. But that could raise accusations of national bias, and if Russia refuses to cooperate a trial might be stymied. “Suppose Russia keeps insisting they do not want to hand [Russian nationals] over," says Sjoerd Sjoerdsma, a Dutch MP from the left-liberal D66 party. "Does it even matter then whether you have a tribunal or not? That’s the worst-case scenario.” Any compromise to win cooperation by granting Russia influence over the court would undermine public confidence that justice had been done. According to polls, most Dutch no longer believe it will be.

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Russia vetoes a tribunal and the Netherlands seeks a solution

For a country that lost 196 citizens, a trial is a political necessity

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