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The MH17 Anniversary Marks Steady Progress

22 Jul 2015
Kevin Kelly
A Dutch and an Australian Police officer investigate the scene of the MH17 crash. Photo Credit: Wikimedia Commons (Dutch Department of Defence) Creative Commons.

The one year anniversary of the downing of MH17 shows steady progress has been made in the fight for justice. However many questions remain unanswered.

17 July 2015 marked the anniversary of the tragic downing of the Malaysia Airlines Flight 17 (MH17) that was scheduled to fly from Amsterdam to Kuala Lumpur. The Boeing airliner was shot down in Ukrainian airspace, amid the ongoing crisis between pro-Russian separatists and Ukrainian forces. Among the 298 passengers killed in the crash, 38 were Australian citizens and residents. In a public statement, the Foreign Minister Julie Bishop last week reiterated the global community’s cooperation to establish accountability for the MH17 crisis.

Before assessing the current status of the MH17 investigation, it is important to reconsider how a plane was permitted to fly over one of the most dangerous conflict zones in the world in the first place. On the day of the crash, British Airways decided to avoid Ukrainian airspace while airlines such as Singapore Airlines and Malaysia Airlines chose to fly over the conflict zone. The decision to fly over Ukraine was made to minimise costs.

Due to Australia’s term on the UN Security Council in 2013-2014 as well as the 38 eighationals killed in the crash, Australia has played a critical role in its response to the MH17 crisis. Just four days after the crash on 21 July 2014, UN Resolution 2166 was adopted by Bishop in record time. The resolution demanded that armed groups refrain from compromising the integrity of the crash site and halt military activities. The UN’s political leverage allowed a safe passage for investigators to assess the crash site and for the repatriation of victims’ bodies and belongings. More important, Resolution 2166 required that those responsible for the incident be held accountable. In large, Resolution 2166, along with the speed it was adopted, was essential to the response to the MH17 crisis.

Australia’s key involvement in the response to the MH17 crisis is further evident in its membership of the Joint Investigation Team (JIT), comprised of experts from Belgium, Ukraine, Malaysia and the Netherlands. The aim of JIT is to bring the perpetrators of the attack on MH17 to justice. In a statement by Bishop last week, she reported that JIT’s investigation was nearly complete, and that a final report is due to be released in October. Together with the Dutch Safety Board’s final report, it is crucial that the UN Security Council establishes an international criminal tribunal that will review the investigation reports.

Although Russia continues to blame Kiev for the downing of the MH17, there is mounting evidence that pro-Russian separatists in Eastern Ukraine were responsible for the crash. Within hours of the crash, the separatists used social media to take credit for the destruction of what they believed was a Ukrainian aircraft. Separatist military leader Igo Girkin was quoted on social media stating “we warned them not to fly in our skies.” However, after discovering that the plane was a civilian aircraft, Girkin and fellow separatists began deleting their statements. Many expect that the final investigative reports by JIT and the Dutch Safety Board will identify the pro-Russian separatists as the culprits.

A bigger issue will arise if evidence links Russia’s backing of the separatists. In an MH17 commemoration speech last week, Australian Prime Minister Tony Abbott stated that “[the flight victims] deserved to be welcomed home, not shot out of the sky in a war of aggression by one country against its smaller neighbour,” emphasising Australia’s stance that Russia was directly involved in the crisis. In addition, a US State Department statement on 19 July 2014 claimed Russia was moving heavy weaponry into eastern Ukraine including tanks and artillery, as well as providing training to separatists on air-defence systems. If JIT’s and the Dutch Safety Board’s investigations associate Russia with the separatists, it would provoke strong reactions in the international community.

Yet, until the final investigations are completed, it is essential not to make presumptions. Focus should and has been directed at an independent and robust investigation and the establishment of an international criminal tribunal. The establishment of the tribunal is key to bringing the perpetrators to justice, but it will be problematic with Russia, because it is one of the five permanent members on the UN Security Council which can exercise its power to veto. Countries must persevere to establish an international tribunal for the sake of international peace and security, as well as the families who lost their loved ones. Otherwise, the global community’s vulnerabilities will send the wrong signal to non-state actors that tolerates the killing of innocent civilians.

Another vital lesson to take away from the MH17 crisis is the establishment of a legitimate system where governments can negotiate with non-state actors. In the case of MH17, the Organization for Security and Cooperation in Europe (OSCE) was crucial in acting as a third party when communicating with the separatists and state leaders. For instance, for Australian personnel to access the crash site safely to repatriate bodies, a mutual understanding between the separatists and government was established through OSCE for the separatists not to fire arms at the crash site. An efficient system that serves as a channel for communication between governments and non-state actors would help to alleviate conflicts throughout the world.

One year on, the seemingly lengthy investigation process has been productive. Given the unique and complex asymmetric situation – elements of civil aviation, being in a warzone, non-state actors, international law and multiple foreign states – this process has required meticulous planning and implementation to gather the appropriate evidence. It is in states’ interests to protect international security and the integrity of international law, so that the global community will continue to press the investigation process until justice is attained.

Kevin Kelly is an intern at the AIIA National Office. He is completing a Bachelor of Arts Degree in International Relations and Chinese at Tufts University. This article can be republished with attribution under a Creative Commons Licence.