Explanatory Note on the establishment of an International Criminal Tribunal for Malaysia Airlines Flight MH17
On 17 July 2014, Malaysia Airlines flight MH17 was downed over Ukrainian territory, killing all 283 passengers and 15 crew on board.
In response to this tragedy, the United Nations Security Council adopted Resolution 2166 (2014) on 21 July 2014, which demanded that those responsible for the incident be held to account, and that all States cooperate fully with efforts to establish accountability.
To this end, the prosecution authorities of Australia, Belgium, Malaysia, the Netherlands and Ukraine are cooperating in a Joint Investigation Team (JIT) to conduct a criminal investigation into the downing of flight MH17.
In order to seek justice for the families of the victims, the States participating in the JIT are committed to ensuring that the most effective and broadly supported mechanism available under international law is utilized. An ad hoc international criminal tribunal established by the Security Council under Chapter VII of the Charter of the United Nations meets these standards and would be consistent with, and build upon, UNSC resolution 2166 (2014).A UNSC-established international criminal tribunalwould maximize international cooperation, which will be needed for an effective prosecution and trial.
The States participating in the JIT seek the establishment of the ad hoc tribunal by the Security Council by 21 July 2015, that is, one year after the adoption of UNSC Resolution 2166 (2014), in order to send a clear message to those who threaten the safety of civil aviation that the international community is committed to holding them to account.
Why would a criminal tribunal have to be established by the United Nations Security Council?
The downing of Malaysia Airlines flight MH17 and its implications for the safety of civil aviation affect the international community at large. An ad hoc international criminal tribunal established by the Security Council under Chapter VII would be the appropriate judicial mechanism under international law to ensure that the perpetrators are held to account, and to deliver justice to the families of all victims. Moreover, the Tribunal’s independence and legitimacy would be indisputable.
Why would Chapter VII of UN Charter be applicable in this case?
The downing offlight MH17, and its implications for the safety of civil aviation constitutes a threat to the peace within the meaning of Article 39 of the Charter. Impunity for those responsible for the use of weapons against civil aircraft in flight is not acceptable. It would set a dangerous precedent.
As illustrated by the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda, the establishment of an international criminal tribunal is an appropriate response under Article 41 of the Charter.
Why should an international tribunal be established prior to the completion of the JIT criminal investigation?
In the interests of justice there should be as little time as possible between the finalization of the JIT investigation and the commencement of the Tribunal’s activities.Most other international or internationalized criminal tribunals were established prior to the completion of a criminal investigation.The States participating in the JIT are committed to achieving justice in a manner that transcends international or domestic politics. Establishing a tribunal before the outcome of investigations is known,is consistent with this commitment.
What is the subject–matter jurisdiction of the Tribunal?
The proposed Tribunal’s subject-matter jurisdiction has been informed by the nullum crimen sine lege principle (a person cannot be tried except for an act that was criminalized before the act took place) . Therefore, the Tribunalwould have jurisdiction over relevant existing crimes under international law and under the national laws of States with jurisdiction over crimes connected with the downing of flight MH17, specifically:
The most relevant war crimes;Crimes against the safety of civil aviation as defined in section 9 of the Aviation Offences Act 1984 of Malaysia (reflecting the 1971Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation); andRelevant common crimes under the Criminal Code of Ukraine (including murder and manslaughter).
To what extent is the draft Statute consistent with the statutes of existing international courts and tribunals?
The principal points of reference for the draft Statute are the Statutes of the ICTY, the SCSL and the STL. However, a mere restatement of these Statutes would not do justice to the development of international criminal law and procedure over the last twenty years. The draft Statute also reflects provisions, principally procedural provisions, that are based on the Statute of the International Criminal Courtor other international or internationalized criminal courts and tribunals.
To what extent will the JIT investigation be taken into account by the proposed Tribunal?
Under the draft Statute, the Prosecutor will receive and consider the evidence collected by the JIT.In addition, the Prosecutor will havethe power to initiate, on his or her own accord, any other investigations that he or she deems necessary.
Why does the draft Statute contain trials in absentia? Are trialsin absentia in conformity with the rule of law and internationally recognized human rights?
The presumption is that trials will take place in the presence of the accused. The inclusion of trials in absentia has been motivated by the possibility that some of the perpetrators may be identified but their presence at the seat of the Tribunal cannot be secured. In such cases,trials in absentia are a useful means for delivering justice. The draft Statute includes guarantees with respect to the rule of law and internationally recognized human rights standards. The concept of trials in absentia is well established in countries with a civil law tradition.
Why does the Statute provide for a possibility of compensation for the next of kin of victims?
In a number ofStates with jurisdiction over crimes connected with the downing of flight MH17 including Belgium, the Netherlands and Malaysia, victims and their next of kin may be compensated in the course of criminal proceedings. In recognition of these rights, it is proposed that the Tribunal be able to order that perpetrators compensate the next of kin for their loss, taking into account other compensation when available.
Why does the draft State provide for the participation in the proceedings of the next of kin of victims?
In many national jurisdictions, victims and next of kin may participate in criminal proceedings in some way or another. In view of the tragic loss they have suffered it is proposed that the next of kin be allowed to make statements before the Tribunal on the impact that crimes committed have had on their lives at the sentencing stage of proceedings.
How will the tribunal be financed?
The expenses of the Tribunal shall be borne by voluntary contributions from States. The States participating in the JIT are committed to a fair arrangement,taking into account specific circumstances in relation to the establishment of the Tribunal.
Where will the seat of the Tribunal be?
The location of the seat of the Tribunal is a matter for further discussion. In determining the appropriate location, issues such as the location of the evidence and witnesses should be taken into consideration.