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Relative hears news of plane crash

While the UN Security Council Resolution on the downing of MH17 is a welcome development, Professor of Inernational Law, Don Rothwell, asks what are the legal options for pursuing justice for the victims?

The unanimous decision of the United Nations Security Council in adopting Resolution 2166 is a welcome development in the response to the downing of MH17.

Drafted by Australia and co-sponsored by other UN members including the Dutch, the Resolution paves the way for access to the crash site and the commencement of a full and proper international investigation into the causes associated with the downing of MH17.

This is a significant diplomatic victory by Australia which has led the calls for United Nations action, the commencement of a full investigation, and justice for the victims and their families. That Foreign Minister Julie Bishop was rapidly dispatched to New York for the UN debate demonstrated the significance of the incident for Australia.

Importantly, Russia did not wield its veto power and the fact the Resolution was adopted unanimously gives it additional weight.

The Resolution has a number of immediate and longer term goals. The first is to ensure a "full, thorough and independent international investigation". However, it is not made clear who will exactly undertake this investigation. Reference is made to the role of the International Civil Aviation Organization (ICAO), but it is also acknowledged that Ukraine has a legitimate role in this process. Ultimately, there will more than likely be multiple investigations undertaken into the incident and - unless the UN itself had sought to take charge of that process - this is an inevitable outcome of the geopolitics of the situation.

The security of the crash site is directly addressed in the Resolution, with the UN demanding that the "armed groups in control of the crash site and the surrounding area refrain from any actions that may compromise the integrity of the crash site". Additional demands are made that all military activities cease in the immediate vicinity of the crash site. This is particularly significant given the outbreak overnight of fresh fighting in Donetsk region.

It remains to be seen whether the armed groups controlling the crash site take any notice of the UN Resolution. A further unresolved issue which the Resolution does not address is the return of evidence that may have been taken from the crash site and moved over the Russian border.

Tony Abbott has emphasised the importance of 'justice' for the victims and their families; a point which Julie Bishop repeated overnight in her Security Council speech. The Resolution demands "that those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability". Those efforts could involve multiple options.

While Ukraine clearly has jurisdiction to prosecute for any crime committed within its airspace, given the political upheaval that country is facing at present including the current dispute over the status of the Donetsk region, any criminal prosecution is problematic. Given the international dimensions of the incident, countries such as the Netherlands, Malaysia and even Australia could all have jurisdiction in their domestic courts to prosecute the perpetrators. Here the common legal framework provided by the 1971 Montreal Convention on the Suppression of Unlawful Acts against Civilian Aircraft could be a basis for the exercise of universal jurisdiction that would permit criminal trials to be held in any one of those countries.

There is also the prospect that international courts may be asked to play a role in the search for justice. The International Court of Justice is the highest court in the UN system, but it does not possess the capacity to launch individual criminal prosecutions. It does, however, have the ability to determine whether individual states are responsible for certain acts and as such it could in the future be called upon to consider whether any state by its actions should be held responsible under international law for arming or providing assistance to armed groups who may be found ultimately to have been responsible for downing MH17.

Another court that could play a role is the International Criminal Court. Established in 1998 to make accountable persons responsible for certain international crimes, the Prosecutor of the court has the capacity to investigate crimes against humanity and war crimes. To that end, the legal characterisation of the MH17 incident will be pivotal as the ICC does not have jurisdiction with respect to acts of terrorism. Nevertheless, given the scale of the conflict in eastern Ukraine, there is certainly a case to be made that a non-international armed conflict is occurring in that territory and that the incident is a war crime. Here the Security Council could again be asked to play a role by requesting the ICC Prosecutor to commence an investigation into the incident. Such a referral by the Security Council would overcome jurisdictional hurdles and create an obligation for all UN members, including Russia, to cooperate with the investigation and any court proceedings that may follow.

While the wheels of international justice do move slowly, importantly for the families of the victims, the processes to make those accountable for mass atrocity crimes are now more robust than in the past. The result is that justice will eventually be achieved.

This piece was originally published on ABC’s The Drum.

Updated:  24 August 2017/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team