Opinion: Security Council Resolution on Airlines Disaster Debases U.N. Charter

By Somar Wijayadasa Reprint | | Print | |En español

Somar Wijayadasa is an international lawyer who worked in the U.N. System (IAEA, FAO, UNESCO and UNAIDS) for 25 years, and a former Representative of UNAIDS at the United Nations

U.N. Security Council members observe a minute of silence at the start of the meeting to establish tribunal on downing of Malaysian Airlines Flight MH17. The draft resolution failed to be adopted due to the veto by Russia. Credit: UN Photo/Loey Felipe

UNITED NATIONS, Aug 3 2015 (IPS) - On July 29 Russia vetoed a draft U.N. Security Council (UNSC) resolution on the establishment of an international tribunal to investigate the downing of Malaysia Airlines MH17 flight over eastern Ukraine last year – killing all 298 people on board.

Of the 15 UNSC members, 11 voted in support of the Malaysia-proposed draft resolution, with Angola, Venezuela and China abstaining.

Vetoing the draft UNSC resolution, the representative of Russia to the U.N., Ambassador Vitaly Churkin, noted that Russia had repeatedly said that it wouldn’t support the tribunal “due to the fact the UNSC resolution 2166 [of 2014] didn’t qualify the Boeing tragedy as a threat to international peace and security.”

While all sponsors of the draft resolution and the United States had harsh words condemning Russia’s veto, Ukrainian Foreign Minister Pavlo Klimkin said: “There can be no reason to oppose this [draft resolution] unless you are a perpetrator yourself.”

That is a preemptive judgement to blame Russia, ignoring the basic legal tenet that one is innocent until proven guilty.

The Malaysia Airlines passenger jet was shot down on July 17 as it was flying over a war zone, where Ukrainian armed forces and rebels were fighting using military aircraft.

The Ukrainian authorities and Western allies accuse the rebels in eastern Ukraine of downing the plane with a surface-to-air missile allegedly provided by Russia. But Moscow has rejected accusations it supplied the rebels with missile systems. The rebels too deny these accusations.

Meanwhile, Malaysia, Australia, the Netherlands, Belgium and Ukraine are conducting a criminal inquiry into the cause of the crash but they have not yet established responsibility for the tragedy.

Separately, the Dutch Safety Board is due to release their official report on the cause of the crash by the end of this year.

It is regrettable that Russia was never allowed to participate in these investigations. Moscow has repeatedly warned against putting blame on anyone before these investigations into the crash have been completed.

Despite the veto, Churkin said, “Russia stands ready to cooperate in the conduct of a full independent and objective investigation of the reasons and circumstances of the crash”.

From the outset, the draft resolution was doomed to fail for three reasons: First, since these reports are still pending, Russians maintain the position that it was premature to set up an international tribunal.

Secondly, the U.N. Security Council last year unanimously adopted a resolution on this issue. And thirdly, the new draft resolution craftily claimed that the tragic downing of the Malaysian plane is a threat to international peace and security.

On July 21, 2014, the Security Council unanimously adopted the resolution 2166 that demanded that those responsible “be held to account and that all states cooperate fully with efforts to establish accountability”.

Therefore, it is surprising that a new draft resolution on the same subject surfaced this year with the contentious terminology “a threat to international peace and security”.

As Churkin clearly pointed out, “It is difficult to explain how the event, which wasn’t considered a threat to international peace and security a year ago, now suddenly becomes one.”

Churkin said that “This, in our view, indicates the fact that political purposes were more important for them than practical objectives. This of course is regrettable.” Russian Foreign Minister Sergei Lavrov said that “the idea to create such a tribunal is aimed at punishing those whom Washington considers to be guilty.”

Furthermore, Chapter VII, Articles 39 to 51 of the U.N. Charter do not provide for the establishment of international tribunals to investigate civil aviation catastrophes of this nature – whether deliberate or accidental.

In the past, there have been similar incidents with civilian aircraft, such as the explosion of the Pan American flight 103 by the Libyans in 1983; downing of Iran Air flight 655 by the U.S. in 1988; and the downing of Korean Air Lines flight 007 by Soviet Union in 1983.

These were investigated according to internationally accepted rules, and the Security Council was not involved in investigations. Therefore, the call for an international tribunal on any pretext is nothing but confrontational.

According to the established rules and regulations of the International Civil Aviation Organization (ICAO), it is the responsibility of the airline (Malaysian Airlines) as well as the country (Ukraine) in which the accident occurred to investigate as to what exactly happened.

Dutch investigators admit that the plane was shot down while flying over the conflict zone near Donetsk. It is not only an ICAO requirement but a well recognised international practice to inform ICAO and civilian airlines not to use airspace over conflict zones.

Both Ukraine and Malaysian Airlines failed to adhere to elementary rules. Ukraine warned civilian airlines not to use its airspace only after this accident occurred.

With my experience in the U.N. system for over 25 years, I am confident that the U.N. and ICAO could help establish an Independent Committee of International Aviation Experts to conduct a completely independent and transparent investigation – without undue political pressure – to find out who should be held responsible for this grave tragedy.

But the toxic game of political football has, unfortunately, dragged this on for over a year without any honest attempt to find out what happened.

All countries should bury their hatred and differences, and assist in the ongoing investigations to deliver justice to the families of the 298 innocent victims of the crash.

Edited by Kitty Stapp