Paul Behrens: Don’t expect swift justice for Flight 17

Picture: AP

Picture: AP

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IN INTERNATIONAL affairs, it is not a good idea to get emotionally attached to ambitious projects. One of these has now been suggested by the Netherlands, Malaysia and other states: an international tribunal to try the perpetrators of the shooting down of Malaysian Airlines Flight 17 (MH17) over Eastern Ukraine in 2014.

There seems to be enthusiasm for the idea: a high-ranking Dutch official reportedly stated that it would offer the “greatest chance of cooperation from all countries involved”. What was the line in Goethe’s Faust? “Your messages I hear, but faith has not been given.”

International criminal tribunals have had a mixed press. There are successes: the International Criminal Tribunal for the Former Yugoslavia (ICTY) obtained custody over all the defendants it wanted; the International Criminal Tribunal for Rwanda (ICTR) sentenced 61 persons. Both advanced the law on genocide, crimes against humanity and war crimes so much that it would not be far wrong to consider them the parents of modern international criminal law.

And yet there are reasons why the international community has lost its appetite for such institutions. There is the time factor: it took the International Criminal Court more than ten years to render its first verdict. There is the money: in its first year, the ICTY had the budget of a Hammer movie (less than $300,000), in 2010/2011, that of a Hollywood blockbuster (nearly $300 million).

Where MH17 is concerned, things are even more complex. Both ICTY and ICTR were set up through Security Council resolutions. But Russia has already declared its opposition to the establishment of an MH17 tribunal and, as one of the Council’s permanent members, it can always veto such a decision.

Not that domestic courts are more promising. Quite apart from questions of jurisdiction, it is always difficult to dispel concerns about their impartiality: the victim state, the state of the defendants and the state in which the act took place, all have a stake in the matter.

What is more, neither international nor domestic courts can resolve the most fundamental problem in the case of MH17. Some of the suspected perpetrators are likely to be within the Russian sphere of influence – getting your hands on them can be a tricky endeavour. Much of the evidence will also be located on the Russian side. The difficulties sound all too familiar. In her memoirs, Carla del Ponte, the former chief prosecutor of the ICTY, points out that it had been impossible to investigate the Nato bombing campaign against Serbia, because the Nato countries “would not cooperate”. In an international system without bailiffs and a permanent police force, the attitude of the state of the suspected perpetrators can make or break an investigation.

Does that mean that all is lost for the families of the victims?

There is one thing at least which the international community can do and has done in the past: the establishment of a UN Commission of Inquiry – not through the Security Council, but through the UN’s Human Rights Council. The Dutch Safety Board already heads an investigation into the causes of the crash; an International Commission can go beyond that and focus on international crimes which may have been committed. It would not be able to prosecute suspected perpetrators, but it would also not be bound by the strict standard of proof “beyond reasonable doubt”. As an international body, it would find it easier to escape allegations of bias, and it could thus prepare the ground for an international criminal trial, once the political conditions have become more favourable towards that option.

True enough, there is no guarantee that the perpetrators will ever face justice. But it is also true that justice has a way of catching up with those who thought themselves safe. For a long time, there was little reason to believe that Slobodan Milosevic, the former President of Serbia, or Nuon Chea, Cambodian Prime Minister under Pol Pot, would ever have to face their judges.

Facts, as we know, are stubborn things. Justice remembers them well. «

Dr Paul Behrens teaches international law at the University of Edinburgh. He is co-editor of the book Elements Of Genocide (Routledge 2012)

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