At July 29 the Russian Federation used its veto power to block a resolution on a tribunal on MH17. Russia was the only state who vetoed. Venezuela, Angola and China abstained. The tribunal would have authority to investigate impartially and demand the extradition of suspects, whichever country might be harbouring them
The proposal for a tribunal has been drafted by Australia, Belgium, Malaysia, the Netherlands, and Ukraine.
Russian arguments to veto the tribunal are:
- it is too early to establish who did it. The investigation has not finished precedents of the UNSC creating an international tribunal to bring justice to those
- Never before a tribunal for a transportation catastrophe was done by the United Nations. For instance the shotdown of the Iran Air Airbus by the United States Navy was legally handled in court. Churkin said that the plane crash in Ukraine was a crime and posed no threat to international people and security. “It contradicts the United Nations Charter. We believe that the UN Security Council should not tackle such situations,” the Russian diplomat said.
- a tribunal is too costly and is a slow process. Other tribunals like the one on Rwanda never got serious results.
- setting up a tribunal before investigations are complete would risk further politicising the incident
The unofficial reason for the veto is article 7. The proposal would mean Putin could be held responsilble for the shot down if proven that Putin send a BUK to East Ukraine.
Irrelevance of official capacity
This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Tribunal from exercising its jurisdiction over such a person.
Why was the voting for the tribunal set at July 29 and not later when the investigation results were made public.
- According to Prime Minister Rutte it was preferable to make a decision about the tribunal before the facts and charges have been established precisely in order to avoid politicizing the prosecution process.” (AP)
- New Zealand is currently holding the Presidency of Council. That fact had a far better chance to get a voting on the tribunal than when the next Presidency of the Council starts. The Precidency rotates each month amongst permanent and temporary members. In September 2015 Russia has the Presidency.
Personally I believe there was another political reason. The countries who proposed the tribunal knew that Russia would veto. A veto is seen by the general public as a indirect confession of guilt.
Another reason to let the voting do now is to show the public the states (the Netherlands, Malaysia etc) did everyting in their power to bring justice.
Other incidents like the shot down of the Iran Air A300 and the Siberian Tu154 were not done in a war zone. The shot down of MH17 could be an act of war as the BUK was most likely positioned in a war zone and used to shot down Ukraine military jets. The downing of the Malaysia Airlines jet in Ukraine may be a “war crime”, the UN’s human rights chief says. (source)
Earlier at July 20 Russia submmitted its own draft resolution.
A copy of the draft resolution obtained by AFP made no mention of a special tribunal, but called for a “full, thorough, transparent and independent international investigation.”
It suggested the International Civil Aviation Organization (ICAO) “could play a more active and appropriate role” in the investigation and that UN Secretary General Ban Ki-moon nominate a special representative.
It urged “the earliest possible finalization of the investigation” and called on the joint investigation team (the Netherlands, Australia, Belgium, Malaysia and Ukraine) to “keep the Council fully and regularly informed” on its progress.
It insisted on “just and equal access” to the materials of the investigation “by all interested states” and expresses concern that the investigation has not so far ensured “due transparency.”