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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Anders Fogh Rasmussen, NATO chief, addresses a crowd in Austin, Texas. Credit: DVIDSHUB/Texas Military Forces/Photo by Staff Sgt. Eric Wilson/CC-BY-2.0

By Alice Slater
NEW YORK, Sep 2 2014 (IPS)

It is ironic that at this moment in history when so many people and nations around the world are acknowledging the 100^th anniversary of our planet’s hapless stumble into World War I, great powers and their allies are once again provoking new dangers where governments appear to be sleepwalking towards a restoration of old Cold War battles.

A barrage of conflicting information is broadcast in the various national and nationalistic media with alternative versions of reality that provoke and stoke new enmities and rivalries across national borders.

Moreover, NATO’s new disturbing saber-rattling, with its chief, Anders Rasmussen, announcing that NATO will deploy its troops for the first time in Eastern Europe since the Cold War ended, building a “readiness action plan”, boosting Ukraine’s military capacity so that, “ In the future you will see a more visible NATO presence in the east”, while disinviting Russia from the upcoming NATO meeting in Wales, opens new possibilities for endless war and hostilities.

The world can little afford the trillions of dollars in military spending and trillions and trillions of brain cells wasted on war when our very Earth is under stress and needs the critical attention of our best minds [...].
With the U.S. and Russia in possession of over 15,000 of the world’s 16,400 nuclear weapons, humanity can ill-afford to stand by and permit these conflicting views of history and opposing assessments of the facts on the ground lead to a 21^st Century military confrontation between the great powers and their allies.

While sadly acknowledging the trauma suffered by the countries of Eastern Europe from years of Soviet occupation, and understanding their desire for the protection of the NATO military alliance, we must remember that Russia lost 20 million people during WWII to the Nazi onslaught and are understandably wary of NATO expansion to their borders in a hostile environment.

This despite a promise to Gorbachev, when the wall came down peacefully and the Soviet Union ended its post-WWII occupation of Eastern Europe, that NATO would not be expanded eastward, beyond the incorporation of East Germany into that rusty Cold War alliance.

Russia has lost the protection of the 1972 Anti-Ballistic Missile Treaty, which the U.S. abandoned in 2001, and warily observes missile bases metastasizing ever closer to its borders, in new NATO member states, while the U.S. rejects repeated Russian efforts for negotiations on a treaty to ban weapons in space, or Russia’s prior application for membership in NATO.

Why do we still have NATO anyway? This Cold War relic is being used to fire up new hostilities and divisions between Russia and the rest of Europe.

Civil Society demands that an independent international inquiry be commissioned to review events in Ukraine leading up to the crash of Malaysian Airlines flight MH17 and of the procedures being used to review the catastrophic aftermath, including this latest outbreak of hostile actions from NATO.

Indeed, Russia has already called for an investigation of the facts surrounding the Malaysian airplane crash. The international investigation should factually determine the cause of the accident and hold responsible parties accountable to the families of the victims and the citizens of the world who fervently desire peace and peaceful settlements of any existing conflicts.

More importantly, it should include a fair and balanced presentation of what led to the deterioration of U.S.–Russian relations since the fall of the Berlin Wall, and the new hostile and polarized posture that the U.S. and Russia with their allies find themselves in today with NATO now threatening greater militarisation and provocations against Russia in Eastern Europe.

The United Nations Security Council, with U.S. and Russian agreement, has already passed Resolution 2166 addressing the Malaysian jet crash, demanding accountability, full access to the site and a halt to military activity, which has been painfully disregarded at various times since the incident.

One of the provisions of Resolution 2166 notes that the Council “[s]upports efforts to establish a full, thorough and independent international investigation into the incident in accordance with international civil aviation guidelines.”

Further, the 1909 revised Convention on the Pacific Settlement of International Disputes adopted at the 1899 Hague International Peace Conference has been used successfully to resolve issues between states so that war was avoided in the past.

Regardless of the forum where the evidence is gathered and fairly evaluated, all the facts and circumstances should be made known to the world as to how we got to this unfortunate state of affairs on our planet today and what might be the solutions.

All the members of NATO together with Russia and Ukraine are urged to end the endless arms race, which only feeds the military-industrial complex that U.S. President Eisenhower warned against.

They must engage in diplomacy and negotiations, not war and hostile alienating actions.

The world can little afford the trillions of dollars in military spending and trillions and trillions of brain cells wasted on war when our very Earth is under stress and needs the critical attention of our best minds and thinking, and the abundance of resources mindlessly diverted to war to be made available for the challenges confronting us to create a livable future for life on earth.

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.

Edited by Kanya D’Almeida

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