Liow Tiong Lai, Minister of Transport of Malaysia, addresses the U.N. Security Council on July 29, 2015. The Council failed to establish a tribunal on the downing of Malaysian Airlines Flight MH17 due to a veto by Russia. Credit: UN Photo/Loey Felipe

By Andrey Klishas and Aslan Abashidze
MOSCOW, Aug 10 2015 (IPS)

We refer to the IPS article posted by Mr. Somar Wijayadasa, a former Representative at the United Nations.

Now that the tribunal fiasco is over, let us examine the legal aspects of the inquiry into the crash of Malaysian Airlines Flight MH17 still being conducted by Dutch experts.Here the question arises: why demand the establishment of an international tribunal, when results of the investigations are still not complete?

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

The United States and its allies are ever ready to use any excuse to blame Russia. They often abhor any moral imperatives.

There are many questions that demand clarification from a legal point of view.

(a) What rules should be applied in situations of such tragic incidents?
(b) What legal steps should be taken by the State in whose airspace the tragedy took place?
(c) What is the legal status of ongoing investigations?

First, the tragic incident (in which all 298 people on board were killed) took place in the Ukrainian airspace. Therefore, the Ukrainian authorities must bear full responsibility for whatever happened in Ukrainian airspace and/or inside its territory.

From an international law perspective, the incident affected the interests of the State of Ukraine, in whose airspace the tragedy took place; the State of Malaysia as owner of Malaysia Airlines; the Netherlands and other States whose nationals died in the tragic incident. Thus, it should be stressed that this tragedy does not affect Russia at all.

In such tragic situations the rules of the Convention on International Civil Aviation, adopted on 7 December 1944 in Chicago, U.S. (Chicago Convention) are to be applied. All U.N. Member States are parties to this Convention, including those affected by this tragedy.

Article 9 of the Convention states that “each contracting State may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory.”

A vivid example is the tragedy that occurred in 2001 in international airspace over the Black Sea, when Ukrainian air defence forces fired a missile and shot down a Russian plane TU-154 with passengers on board.

In this case, the Ukrainian authorities were obliged to follow the Convention requirements of preventive character by immediately providing the description of restricted areas to other contracting States and the International Civil Aviation Organization (ICAO).

Article 9 of the Convention further requires each contracting State establishing such restricted area to require any aircraft entering such areas to effect a landing at a designated airport within its territory.

But the Ukrainian authorities announced a no-fly zone only after this tragic event occurred on 17 July 2014.

Article 26 of the Convention states that “In the event of an accident to an aircraft of a contracting State occurring in the territory of another contracting State, and involving death…, the State in which the accident occurs will institute an inquiry into the circumstances of the accident, in accordance, so far as its laws permit, with the procedure which may be recommended by the International Civil Aviation Organization (ICAO).”

However, the Ukrainian authorities did not initiate an inquiry into the circumstances of the accident, and they did not appeal to ICAO regarding the procedure for the investigation into the tragedy.

Article 26 further states that “The State in which the aircraft is registered shall be given the opportunity to appoint observers to be present at the inquiry, and the State holding the inquiry shall communicate the report and findings in the matter to that State.”

It is evident that Malaysian authorities could not appoint observers because the Ukrainian authorities failed to establish an investigation into the tragedy.

Also, the Convention does not provide for another State the right (other than the State in which the tragedy occurred) to conduct inquiry into its circumstances. If so, what is the legal basis for Netherlands to make any investigation into the Malaysian Airline tragedy?

Furthermore, Article 82 of the Convention states: “The contracting States accept this Convention as abrogating all obligations and understandings between them which are inconsistent with its terms, and undertake not to enter into any such obligations and understandings.”

Therefore, any agreements between the authorities of the Ukraine and the Dutch authorities, including those related to the inquiry into the circumstances of the catastrophe of the Malaysian airplane – inside Ukraine’s airspace – are contrary to the rules of the Convention.

Article 83 of the Convention states that even arrangements “not inconsistent with the provisions of this Convention shall be forthwith registered with the ICAO Council, which shall make it public as soon as possible.”

Notably, the ICAO Council did not publicise any such agreement. We wish to stress that even with such “secret” agreement between the Ukrainian and the Dutch authorities, the latter do not have the right to investigate the circumstances of the tragedy.

The whole irony of the situation lies in the fact that visiting the crash site by experts from the Netherlands and other countries, picking up debris and other evidence to shed light on the causes of the tragedy was made possible only thanks to the support of the militia of Donetsk People’s Republic.

What is surprising here is the lack of professionalism on the side of the Dutch experts who selectively chose some wreckage, dismembered it into several parts, and took them to study, which is categorically unacceptable in terms of the methods of collecting and studying of material evidence of a catastrophe.

This case is further complicated by the fact that many important aspects of the investigation are not conducted by the Dutch experts (who lack appropriate qualification), but in the laboratories of the UK, which has no relation to the case.

Here the question arises: why demand the establishment of an international tribunal, when results of the investigations are still not complete? And how is it possible to rely on the findings of the investigation, if the process itself raises concerns regarding the controversial actions (and omissions) of those who have usurped the right to investigate the circumstances of the disaster?

Against the background of the hypocritical policy exercised by the U.S. and its allies, what surprises us most is that the Dutch authorities, acting under the written scenario of the United States, are not being shy of their mockery targeting the victims of the disaster of the Malaysian airlines in the airspace of Ukraine.

It should be remembered that such actions commensurate not only with the imperatives of international law and morality, but also the canons of God.

Edited by Kitty Stapp

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By Aslan Abashidze
GENEVA, Jun 8 2015 (IPS)

The “U.N. Report on the human rights situation in Ukraine”, which was referred to in an Inter Press Service (IPS) article of Jun. 2, does not, in my view, reflect many salient points.

How the lawful Government of Ukraine was overthrown is now well known. The new Kiev regime immediately announced the prohibition of the Russian language in the eastern regions of the country, inhabited mostly by the Russian speaking population.Though more than 6,500 people have died and millions displaced, no one clarifies why the numbers are growing. No one admits that these regions face a humanitarian catastrophe.

As the U.N. report confirms, those who committed numerous murders on Maidan Square and in Odessa have not been prosecuted.

Combat aircraft of the Ukrainian Air Force, armed with a full complement of missiles, bombed the centre of Donetsk in broad daylight. These events forced the creation of militia groups to defend their interests and territory.

That is how the military confrontation between the new regime in Kiev and eastern regions of Ukraine was created – thus causing 6,500 deaths, and over a million Ukrainian refugees now living inside Russia.

The fulfillment of all provisions of the Minsk agreements (ceasefire, withdrawal of heavy weapons, delivery of aid to the needy, local elections, formation of local authorities, constitutional reforms, etc.) signed by President Petro Poroshenko would no doubt preserve the territorial integrity of the Donetsk People’s Republic (Donetsk) and Luhansk People’s Republic (Luhansk) regions by obtaining acceptable status within the Ukrainian State.

Instead, what are we facing in fact?

The shelling of civilian areas in the eastern regions continues unabated. The observers of the Organisation for Security and Co-operation in Europe (OSCE) report violations of the Minsk agreements on the side of Kiev. They probably cannot witness the Ukrainian Military incursions into East Ukraine which undoubtedly spark retaliation.

Civilians in Donetsk, including children, are dying. Various military units wearing fascist symbols act independent of the Kiev authorities, claiming they do not have to abide by Minsk Agreements.

Against this background, Poroshenko publicly states that his goal is to reclaim all areas by military force. To achieve that objective, Poroshenko mobilises the military, equips armies and recruits Private Security Companies from the U.S. and NATO Member States as well as others such as Georgia. Also, he continuously requests aid from Western countries — not only billions of dollars, but also heavy military equipment, including lethal weapons.

What for? To make peace or wage war?

Recently, the Ukraine Parliament – on the pretext of “anti-terrorist operations” – adopted an Act on the non-respect of human rights in Donetsk and Luhansk. But no one, including the Office of the U.N. High Commissioner for Human Rights (OHCHR), reminded the Ukrainian authorities that it is a violation of Article 4 of the International Covenant on Civil and Political Rights. In doing so, the Ukrainian authorities ignored the basic human right of the right to life.

It is also required that before passing such drastic laws, the country should declare a state of emergency, and clarify the need and duration of such a regime.

To declare a state of emergency, the Kiev authorities have to first recognise that an internal armed conflict exists in their territory, and secondly, they have to adhere to Article 3 that is common to four Geneva Conventions for the Protection of Victims of War of 1949 and Protocol II Additional to the Geneva Conventions of 1977.

In such a scenario, Kiev may not have access to loans from the International Monetary Fund (IMF) and others, and it would not ethical to keep draconian restrictions of a socio-economic nature at the expense of the poor segment of the population while doing nothing against the high-level of corruption in government sectors.

Furthermore, the Kiev authorities have arbitrarily cancelled the benefits of the Chernobyl nuclear disaster victims, as well as child allowances. The U.N. human rights laws prohibit such retrogressive measures that worsen the situation of vulnerable groups.

Blatantly ignoring its social and economic obligations, the Kiev authorities have stopped supplying most needed medications; stopped paying pensions and benefits to people in those regions; and have blocked all food and essential items supply routes to these beleaguered regions.

What is also not acknowledged is the fact that since the beginning of this disaster, the Russian Federation has voluntarily sent 29 convoys of humanitarian aid to these regions, and that Russia provided natural gas after Kiev cut gas supplies to these regions in the height of the winter.

On Jun. 4, Poroshenko told the Parliament they will withdraw the economic blockade against Donetsk and Luhansk only if these regions came under their total control.

To achieve this, the Kiev authorities declared a total mobilisation of reservists and strengthened the bombing of the territory by large-scale artillery shells.

The selective approach of human rights organisations in relation to certain events raises concerns. Though more than 6,500 people have died and millions displaced, no one clarifies why the numbers are growing. No one admits that these regions face a humanitarian catastrophe.

You may ask: What else can we do “to stop armed activities in the eastern part of Ukraine”, even though it is the paramount condition spelled out in the Minsk agreements signed by the leaders of Ukraine, Russia, Germany and France, and supported by the U.S.?

First, of course, is to ensure that the Ukrainian authorities unreservedly honour the ceasefire. Secondly, if Kiev does not control certain military groups in territories under its control, then they should be disarmed by the OSCE peacekeepers.

Unfortunately, the structures of international organisations, including U.N. human rights structures, are subject to political influence from the United States and its NATO allies, which has led to a sharp decline in credibility of these establishments.

As we know, the U.S. continues its attempts to control world affairs – including world football. If this trend continues, the principles and norms of international law enshrined in the U.N. Charter will cease to operate – paving the way for military commanders to solve world problems. Any child understands that it would lead to the death of our civilisation.

The U.N. Charter states that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

There is no dispute in the world that cannot be resolved by peaceful negotiations. Figuratively speaking, we live in an “armed peace”, and in conditions of increasing threats and challenges.

What we need is the political will of world leaders to decide what kind of a world we want to live in – and for generations to come.

Edited by Kitty Stapp

The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, IPS – Inter Press Service.

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