Brave New World

Wednesday, 23 July 2014

Avenues for justice for MH17

Close inspection: A Malaysian expert sifting through the debris at the main crash site of MH17, which crashed flying over the eastern Ukraine region, near Grabovo, some 100km east from Donetsk, Ukraine. - EPA

Close inspection: A Malaysian expert sifting through the debris at the main crash site of MH17, which crashed flying over the eastern Ukraine region, near Grabovo, some 100km east from Donetsk, Ukraine. - EPA

Suspects can be tried under the principle of universal jurisdiction and if it can be shown that a government was responsible, via the principles of state responsibility, they too can be held accountable.

THIS is what I know. Malaysia Airlines is not to blame for the deaths of the people on MH17.

The aircraft was flying on a route deemed safe by the authorities. I also know that it is beyond arrogance to presume the deaths of innocents were the result of God’s wrath. Who are these people who think they have an insight into God’s intentions?

This is what I know. A missile shot down MH17.

Somewhere out there, someone or a group of people have killed close to three hundred people. I also know that the scene of the crime has been tainted, probably beyond any salvation, by a group of thugs with automatic rifles.

These thugs have kept investigators away from the site and they have been belligerent and threatening to those whose job is to simply find out exactly what happened. I also know that Russia has been recalcitrant to the extreme.

In a situation like this, one would have thought that allowing independent investigators to the site would be a given. But instead, there had to be a special meeting of the United Nations Security Council called to come out with a declaration that such access has to be allowed.

And Russia, a permanent member of the council, had to be dragged by its stubborn heels before it would agree. Even then, there is still great uncertainty whether this agreement will be reflected by real cooperation on the ground.

At the time of writing, Malaysia is supposed to have received the aircraft’s black boxes, and the remains of those who died are supposed to be on the way back so that their families can lay them to rest.

I hope that the black boxes will be examined properly by experts. Not only to extract the information that they hold, but also to determine whether they have been tampered with.

For days they have been in the control of those who are, in all bluntness, suspects of this horrific crime. One is entitled to be cautious as to the integrity of these pieces of equipment.

Much has been said about the Prime Minister’s supposed timidity in the face of this catastrophe. This may be true, but in a way I am quite sympathetic with his dilemma.

We are a small country with very little clout. The bodies of our dead were in the hands of militarised thugs; the black boxes, so important in the search for the truth, were in the hands of the same people. Antagonising such people may not have been the wisest thing to do.

But now that we have the boxes and that we have the bodies of the deceased, it is time to think about what can be done. It is fairly clear in my mind that an international crime has been committed.

Unfortunately, neither Malaysia, Ukraine or Russia have ratified the Rome Statute and are thus not members of the International Criminal Court. This means that one avenue for justice is problematic, but it does not mean that there aren’t any ­others.

The crime committed can be classified as a crime against humanity and as such gives rise to universal jurisdiction. This means if suspects can be found and apprehended, they can be tried anywhere in the world.

Other grounds of jurisdiction also exist in international law. Trying those responsible for this barbaric act is not difficult.

Neither is such action limited only to those who pulled the trigger. If it can be shown that a government was responsible in some way, for example by the provision of the weapons used to commit homicide, then via the principles of state responsibility, they too can be held accountable.

I can’t imagine the pain and the heartbreak felt by the friends and families of those who died. I will not even try to say some words of comfort for it can only sound hollow.

What I will say is this: there are avenues open to try to find justice. Lord knows that in this world, justice is not necessarily a given. The wicked get away too often. But we must try. For the sake of those we lost, we must try.

> Azmi Sharom ( is a law teacher. The views expressed here are entirely the writer’s own.

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