On 29 July 2015, Malaysia introduced a draft resolution before the United Nations Security Council (UNSC), calling for the establishment of an ad hoc international criminal tribunal to try those responsible for the downing of Malaysia Airlines flight MH17.
The initiative was made on behalf of five countries participating in the Joint Investigation Team (JIT) on the downing of MH17, i.e. Australia, Belgium, Malaysia, the Netherlands, and Ukraine.
The draft resolution was introduced by YB Datoâ€™ Sri Liow Tiong Lai, Minister of Transport of Malaysia, to the Security Council. It builds on UNSC Resolution 2166 dated 21 July 2014, which demanded that those responsible be held to account and that all States cooperate fully with efforts to establish accountability.
Malaysia and the countries participating in the JIT believed that the establishment of an international criminal tribunal by the Council would send a strong signal that the international community is committed to taking actions against those who threaten international peace and security by endangering civil aviation. It will also send a clear message to the growing number of non-State actors with the ability to target civilian aircraft that such attacks are unacceptable.
Malaysia believes that an international tribunal sanctioned by the UN Security Council would be the best mechanism to deliver justice for the victims of MH17 since it would create a legal obligation for all UN member states to cooperate with the proposed tribunal.
The establishment of a tribunal prior to the completion of the criminal investigation would also ensure that this establishment is as depoliticised as possible, and is consistent with the Security Councilâ€™s own practice in relations to other ad hoc criminal courts and tribunals. Regardless of whom the perpetrators were, Malaysia wants to ensure that the arm of justice will reach them and that there will not be impunity.
Unfortunately, the draft resolution failed to be adopted by the UNSC due to a veto from Russia, despite obtaining 11 votes of support from Chad, Chile, France, Jordan, Lithuania, Nigeria, Spain, the United Kingdom, and the United States of America. China, Venezuela and Angola abstained from voting.
Malaysia is deeply disappointed by the failure of the Security Council to adopt the draft resolution to ensure justice for the victimsâ€™ families and loved ones, and accountability for the perpetrators. It is sending a dangerous message of impunity for the perpetrators of the heinous crime, as well as jeopardising the safety of civil aviation over conflict zones in the future.
A veto today does not mean there will be impunity for MH17. Malaysia will remain steadfast in our determination to pursue accountability for the perpetrators and to ensure justice for all the innocent victims on board MH17. We will consider and explore other viable options and prosecuting mechanisms that would ensure that justice will be served and that the perpetrators will be held accountable for their actions.