Russia's veto of a UN Security Council resolution to establish a criminal court for Malaysia Airlines flight MH17 has blocked the best chance the international community has of forcing states to cooperate in finding who was responsible for the downing.
The reason is that all UN member states are bound by the UN Charter to recognize the authority of tribunals created by the Security Council. But any other international court can safely be ignored should a state choose to do so.
Eric de Brabandere, a professor of international law at the University of Leiden in the Netherlands, says that "if the Security Council creates a tribunal, based on its Chapter 7 powers, which is Chapter 7 of the UN Charter, it is basically mandatory for all UN member states, which means that usually it also includes an obligation to cooperate with the court or tribunal."
Without this mandatory aspect, he notes, any other international court risks being ineffectual.
That leaves the countries that sponsored the UN resolution voted on on July 29 in a difficult position.
The Netherlands, Malaysia, Australia, and Belgium -- which all lost citizens in the downing of MH17 -- put forward the resolution along with Ukraine in the hope of creating a tribunal that would have the power to obtain information that the Dutch-led investigation has been unable to get. This includes information that could come from questioning Russian officials or from official Russian files.
But following the Russian veto these countries will have to look for other options outside of the Security Council, even though they know in advance Moscow can safely disregard any other tribunal as nonbinding.
Unrecognized Court
One option would be to establish a tribunal through a joint treaty with other states. This would follow the example of the International Criminal Court (ICC) in The Hague, which was established by a treaty negotiated at the UN among states supporting the creation of an independent judicial body to try persons charged with genocide, crimes against humanity, and war crimes.
However, the experience of the ICC also shows how easy it is for states that did not sign the treaty to ignore it. Sudanese President Omar al-Bashir has been indicted by the ICC over his military's bombing and attacking civilians in Darfur. Yet Bashir remains Sudan's head of state and remains able to travel to any other country that does not seek to arrest him and turn him over to The Hague.
People talk near the remains of the fuselage of the downed Malaysia Airlines flight MH17 near the village of Hrabove in Ukraine.
Another option could be for one of the states that lost citizens in the MH17 downing to try to prosecute the case in its own domestic court system. But this option, too, is likely to prove unsatisfactory because the prosecutor could still get little cooperation from Russian officials and would have no way to overcome the resistance.
De Brabandere says that one reason the states who lost citizens in the MH17 downing have sought to try to establish an international tribunal is to push forward an investigation that to this point has largely been able to establish the facts of what happened but not who ordered and carried out the attack.
"For now they basically don't have any cooperation from Russia or from the rebels in Ukraine," De Brabandere says. "The states sponsoring the Security Council resolution seek this internationalized system to pursue the investigation and to try and identify the responsible individuals. That's one of the main challenges, not just to know what happened but to find who was responsible for what happened."
Leaks from a draft investigatory report by the Dutch-led investigative team suggest the evidence points at separatists and possibly a team of Russian soldiers using a Buk surface-to-air missile to shoot down MH17 on July 17, 2014.
But Russia and the rebels deny any responsibility and Moscow has accused the Ukrainian military of shooting down the airliner.