Bringing MH17 culprits to justice: The legal wrangle

KUALA LUMPUR, July 29 — With most of the bodies retrieved, negotiations underway to secure the crash site and an international framework in place to investigate how MH17 came down, one final demand that nations affected by the tragedy will now seek is retribution for the 298 innocents who died on July 17.

But how?

Legal experts said the process will be a long and complicated one, particularly since no one has owned up to shooting down the Malaysia Airlines (MAS) plane.

Grieving nations are baying for blood, however, and will soon be demanding the names of those who fired the missile that allegedly took MH17 down — was it by the Russia-backed separatists of eastern Ukraine? Or a misfire by Ukrainian forces?

In Britain, lawyers are already putting together a multi-million-pound suit against Russian President Vladimir Putin, believing him to be somehow complicit in downing the Malaysian plane.

According to British daily The Sunday Telegraph, senior Russian military commanders and politicians closely-linked to Putin will likely be also included in the suit, set to take place in US courts.

Malaysia, despite having taken a diplomatic stance at first, is determined to bring the perpetrators to book, pointing out that it is a Malaysian plane and that Malaysian lives were claimed too.

“We want to have the first bite in bringing the perpetrators to book,” Attorney-General Tan Sri Abdul Gani Patail, currently in The Hague, was quoted saying by the New Straits Times yesterday.

Aboard MH17 were 193 Dutch nationals, 43 from Malaysia, 27 Australians, 12 Indonesians, 10 from Britain, four each from Germany and Belgium, three from the Philippines, one from Canada and one from New Zealand. Two passengers aboard had dual citizenships, bringing a total of 12 nations that were affected by the crash, including the US and South Africa.

Malaysia reportedly plans to invoke Civil Aviation Act, the Penal Code and the Security Offences (Special Measures) Act to pursue the people responsible for the lost lives.

According to Abdul Gani, Eurojust, a European Union agency that deals with judicial co-operation in criminal matters, will play a critical role in assisting Malaysia in gathering evidence and ultimately bringing the perpetrators to the courts here.

Criminal lawyer Amer Hamzah Arshad said the Malaysian High Court has the jurisdiction to try all offences committed on the “high seas on board any ship or on any aircraft registered in Malaysia”, based on Section 22(1)(a)(ii) of the Courts of Judicature Act 1964 (CJA).

This provision can be invoked since MH17 is a Malaysian aircraft, he said in an email to Malay Mail Online.

“Assuming that the perpetrators have been identified, arrested and extradited to Malaysia, the Malaysian Court has the jurisdiction to try the perpetrators,” he said.

Amer added Section 22(1)(b) of the CJA states that the High Court also has the jurisdiction to try offences certified by the AG under the Criminal Procedure Code (CPC), if the offence was committed against a Malaysian citizen or against property belonging to the Malaysian government outside the country.

So if the AG certifies this to be a case, which affects national security, then the Malaysian Court can also try the perpetrators, he said.

“The act of attacking MH17 can be argued to be an act of terrorism as the definition of ‘terrorist act’ under Section 130B of the Penal Code is wide enough to cover the said act,” Amer said.

Before all that can be done however, prosecutors need to know who shot down MH17.

“You need to identify who shot down the plane,” lawyer New Sin Yew told Malay Mail Online.

It is only upon identification that Malaysia can then invoke the Montreal Convention, a treaty adopted in 1999 by members of the International Civil Aviation Organisation (ICAO), which includes Malaysia and Ukraine, New said.

The treaty includes rules that ensure passengers’ families are awarded damages in the case of death or injury during an international flight.

“You need to identify who shot down the plane, after that they need to begin under the Montreal Convention to arrest the perpetrator.

“After that, only can Malaysia begin the extradition process,” the lawyer explained.

If the country of the identified culprits refuses to order their arrests, the case should then be taken to the International Criminal Court (ICC).

ICC is used to try individuals accused of committing a war crime or crimes against humanity, crimes of aggression or genocide.

For the civil element of the case, New said Malaysia could go to the International Court of Justice (ICJ), the platform used to hear cross-border disputes between countries.

“But you cannot go to ICJ yet as all parties have signed the Chicago and Montreal Conventions,” the lawyer said.

“Malaysia will need to first attempt negotiation. If, after that, there is still a dispute then you can go to ICAO’s counsel. If still not happy with decision, then arbitrate or appeal to ICJ,” he said.

The Chicago Convention is also known as the Convention on International Civil Aviation, which was established by the ICAO, the specialised United Nations agency charged with coordinating and regulating international air travel.

New said the conventions mandate the state that holds the perpetrators has to hand them over to be tried in the country where the target or victim originated from.

In the case of MH17, the perpetrators would be tried in Malaysia, as MAS is a registered company here.

Malaysia would also need to send an investigating team to the crash site, although investigators from other countries could also be called to testify during the trial, he added.

Universiti Teknologi Mara legal advisor Emeritus Professor Datuk Dr Shad Saleem Faruqi pointed out that the process is going to be a long-drawn-out affair, which could take years to complete.

“I think we should try by all means, no harm in exploring all avenues, the Penal Code, extradition.

“The diplomatic channel is also very important. The world community must not allow for this lawlessness or terrorism to go unpunished,” he said.

When MH17 first crashed at the rebel-controlled war-torn Donetsk region east of Ukraine, fingers were quickly pointed at the Putin administration. The claim was that the Russia-backed rebels had taken the plane down by mistake using the Buk-M2E surface-to-air missile system allegedly supplied by their Russian allies across the border.

But the Kremlin has since rubbished the accusation along with the rebels, resulting in the ongoing blame game between Russia and the world. And neither is wont to admit fault.

Without a name or a face with which to pin the blame on, and the prospect of tampered evidence from a compromised crash site, MH17 prosecutors will have little to go on and will likely be looking at years of court action amid the backdrop of Russia and Ukraine’s complicated geopolitical crisis.