On 25 May, 1993, the United Nations Security Council unanimously passed a resolution establishing the International Criminal Tribunal for the former Yugoslavia, which later became known as the Hague Tribunal.
While presiding over that Security Council session, Russian diplomat Yuly Vorontsov said his country backed the tribunal “since we see it not as a court of law, not as a place to settle scores or take revenge, but as an instrument of justice meant to restore international legality, to restore the world community’s faith in the triumph of truth and reason.”
At the time, one of the principal aims of reviving international criminal justice was to move from the focus of state responsibility — or collective guilt — in international law, to specific perpetrators and individual responsibility.
Exactly 25 years later, the Netherlands and Australia, whose citizens made up a majority of those killed when a Malaysian Airlines Boeing was shot down in July 2014 over eastern Ukraine, officially announced that they consider Russia responsible for this tragedy.
“On the basis of the Joint Investigation Team’s (JIT) conclusions, the Netherlands and Australia are now convinced that Russia is responsible for the deployment of the Buk installation that was used to down MH17,” said Dutch Foreign Minister Stef Blok. This declaration came the day after an interim report by the JIT confirming that the missile launcher was of Russian origin.
Recall that this investigation team’s mission is to gather evidence for a potential trial of those directly responsible for this tragedy. The trial will take place, most likely in absentia, in the Netherlands, according to Dutch law. The current format for the investigation and trial was chosen by those states whose citizens perished in the crash after Russia, in July 2015, blocked a UN Security Council draft resolution to set up an international tribunal to prosecute suspects.
This means that in the case of MH17 two independent, but closely connected legal instruments — state responsibility and individual criminal responsibility — are once again closely linked.
It’s hard to explain the timing of this somewhat unexpected announcement, while the criminal investigation is not yet officially completed and no specific individuals have been charged, and the trial has yet to start. And the move — probably motivated by an entirely understandable desire to play up to public opinion — may have been a somewhat hasty one.
Inevitably, the states involved will be accused of “naming” the culprits before the trial and appearing to want a particular outcome in the criminal investigation.
What is international responsibility?
The question of Russia’s responsibility for the MH17 downing has already been raised in an international court, during a Ukrainian-Russian dispute in the limited context of the Convention for the Suppression of the Financing of Terrorism.
But the announcement by the Netherlands and Australia is the first within the framework of the ongoing international MH17 investigation. “Holding a state responsible is a complex legal process, and there are several ways to do this. The Netherlands and Australia have asked Russia today to enter into a dialogue in order to come to a solution that does justice to the enormous suffering and damage caused by the downing of MH17,” said the Dutch foreign minister.
That attempt will run up against various obstacles. One must establish, first of all, the fact of a violation of international law; and secondly, that a state may be blamed for the actions of specific individuals or groups (in this case, those who, by the investigation’s account, operated the missile launcher).
As we all know, according to the facts of this dispute, insurmountable contradictions exist between the litigants, while with respect to the conflict in Ukraine, Russia and most of the rest of the world have long inhabited different informational realities.
But the main obstacle is of another kind and essentially indefinable. The international responsibility of a state is the responsibility of an equal before equal states: Equals, of course, have no power over one another, as long as there is no supranational power. An element of compulsion may in certain situations be brought to bear by a UN Security Council resolution, but this is out of the question with respect to a permanent member of that council, as is the case with Russia.
This is the fundamental difference between state responsibility and criminal responsibility. In the latter, any state, given that it complies with various conditions, has the right to try any individuals, including foreigners.
This is what the MH17 criminal trial intends to do. The only problems will be in the practical realization of this justice and in the implementation of the rulings.