July 22, 2014
MH17: Options available for Malaysia
by Tan Sri Dr. Munir Majid@www.thestar.com.my
Malaysia should work in this alliance of states to bring this crime against humanity to the International Criminal Court (ICC). Malaysia has not signed the Rome Statute of the ICC, but has expressed interest to do so since March 2011. Malaysia should sign it now.
MOUNTING evidence points to Ukrainian separatist and Russian responsibility in the shooting down of MH17. And, indeed, video shots as clear as daylight show the Russian-supported rebels stealing and looting at the wreckage, tampering with and erasing evidence of the grisly deed, carrying away the black box – and unconscionably carting away and refusing to hand over the dead bodies for identification and decent burial.
Given our inability to strike back hard, the options Malaysia has in response to the downing of MH17 are limited to diplomatic and legal measures. To make these measures effective, the plan of action must be well prepared: form an alliance of victim nations and pursue the perpetrators vigorously.
The options Malaysia has, given limited power and influence, will be subjected to international geopolitical considerations and the vagaries of international legal process. However, it does not mean we are powerless to do anything except to confine ourselves to big, loud statements.
We can seek the support of kindred spirits to bring to justice the perpetrators who downed MH17 with the BUK (SA-11) surface-to-air missile. An alliance of victim na-tions, comprising countries such as the Netherlands and Australia, should be formed. States willing to support the investigation into the horrible act of terror, even if it was a mistake, should be engaged.
This alliance should be collecting its own evidence from now. It actions should not wait for an international investigation which looks unlikely to be unimpeded. The United Nations can condemn and call for an international investigation. These resolutions, as we know, are more often than not disregarded.
Free access to the area where the wreckage and mutilated bodies are strewn has been denied. Evidence from the crashed plane has been removed. Even if the black box would only register the explosion when the aircraft was struck and even if the BUK missile self-destructs on impact, there are voice and communications recordings which would be relevant. So why has the black box been taken away?
At the same time, people in the rebel-held territory of the Ukraine have looted the wreckage, the common crime of thievery following a heinous crime against humanity.
All these acts – from the firing of the missile to the removal of evidence to the denial of access to the looting – violate clear rules of international law. Even if it cannot be positively identified who fired the missile and rebels who have trespassed the law will not be released, the available evidence points the finger at Russia.
Russia provides the arms. Russia protects the rebels. Russia helps them violate international law and the sanctity of the victims. Russia calls the shots.The intercepted conversations, first on the firing of the missile and its aftermath and next on the removal of evidence and bodies at Russian behest should be tested for their authenticity.
When confirmed, it is good evidence to go by in the process of bringing the perpetrators to justice. American intelligence reports now show the trajectory of the missile and, subsequently, the transportation of remaining missiles back into Russian territory.
The Chicago convention of the International Civil Aviation Organisation (ICAO) provides clear rules on the conduct of investigation, on the safety of civil air flight and against the tampering of evidence.
The Ukrainian government, although it does not control the expanse of territory where the aircraft came down, has been making numerous statements about the removal of evidence and rebel use with Russian aid of the BUK missiles, which had downed at least two of its military aircraft. It should hand over what evidence it has.
In the case where Korean Airlines Flight KAL007 was shot down on September 1, 1983 by a Soviet SU-15 interceptor jet, the ICAO condemned the attack. The United States Federal Aviation Authority revoked the licence of the Soviet airliner Aeroflot to fly to and from the US, a denial that was not lifted until April 29, 1986.
Similar sanctions should be considered by ICAO, the US and other countries in the case of MH17 amidst the mounting evidence pointing at Russia and the consequences of its actions. There should be no fear to act against a country in the horrible wrong, which might otherwise not just get away with it but would conspire to violate further international norms of behaviour.
Vladimir Putin has brought Russia back to the Soviet Union days of lies and deceit, threat and bluster, coupled with his own megalomania. Putin is a bully, a thug world leaders find extremely difficult to deal with. At a meeting with Angela Merkel in 2007, his Labrador Koni was allowed in to unnerve the German Chancellor, who was bitten by a dog in the early years of her life.
The black arts operate at the Kremlin. It is little wonder that thuggish behaviour at the centre sends signals for drunken gangsterism among rebels Putin supports.
With KAL007, the Soviet Union suppressed evidence which was not released until eight years later, following the collapse of the communist regime. Now there is another regime seeking to resurrect that control of people, territories and information with no regard for the rights and lives of others. This is unacceptable.
Whatever evidence is available should be examined for the pursuit of civil damages for the acts of violation and denial. A group led by the Dutch, who suffered the most number of deaths in this act of terror, should be set up to pursue this line of action. Malaysia Airlines, whose reputation in the industry has been severely but unjustly damaged, should join in this effort to extract some measure of recompense.
More importantly, Malaysia should work in this alliance of states to bring this crime against humanity to the International Criminal Court (ICC). Malaysia has not signed the Rome Statute of the ICC, but has expressed interest to do so since March 2011. Malaysia should sign it now.
It can then join forces with states such as the Netherlands and Australia, who are signatories, to institute legal action against individuals and agencies in the Ukraine and Russia, who are also signatories.
Let’s be realistic. After the initial shock-horror reactions, states will return to tending to their own affairs to serve their own national interests and, in time, will not be so incensed by murderous violation of international safety, violation of laws, and acts of brazen and drunken thuggery.
Even now, despite his most welcome strong support and call for ASEAN solidarity with Malaysia, President Susilo Bambang Yudhoyono cannot be expected to put Indonesian interests second. Indeed his spokesman said Indonesian relations with Russia were excellent and there was no reason to disturb them.
The Chinese ambassador at the UN advised caution and not jumping to conclusions, as the Security Council issued a statement last Friday condemning the attack on MH17 and called, in hope more than expectation, for full, thorough and independent investigation.
It would have been a different statement if most of the passengers had been Chinese, or Chinese interests were damaged and at risk. This is the way of the world. Malaysia must look after its own interests.
When it is stated we want to bring the perpetrators to justice, we must be clear on how we might get there. We should be clear about the avenues open to us and about states sharing a common interest who can be persuaded to act with us. We should determine our options and how we might realise them.
We owe it (how often this is said) to the victims and to our national airline which has suffered so much, maybe fatally this time, to bring the perpetrators to justice. We must show these are not mere words that are uttered lightly. We have the duty to protect our citizens and to ensure safe passage of our vessels in accordance with international law and practices.
The downing of MH17 is a tragedy of horrific proportions. We grieve. But we must also do something about it to get at the evil perpetrators. It is a matter of national interest and honour.
Tan Sri Dr Munir Majid is Visiting Senior Fellow with LSE IDEAS, a centre for the study of international affairs, diplomacy and grand strategy. He is also chairman of CARI and Bank Muamalat. The views expressed here are entirely his own.