The meeting was called to order at 3.05 p.m.
The President, Mr. McCully (New Zealand): I propose that the Security Council observe a minute of silence in solemn remembrance of the 298 victims who were killed by the downing of Malaysia Airlines Flight MH-17 on 17 July 2014. I invite all present to stand as we remember those victims.
The members of the Security Council observed a minute of silence.
The President: I wish to warmly welcome the ministers present at today’s meeting. Their participation is an affirmation of the importance of the subject matter under discussion.
In accordance with rule 37 of the Council’s provisional rules of procedure ,I invite the representatives of Australia, Belgium, Canada, Germany, Ireland, Israel, Italy, the Netherlands, the Philippines, Romania, Ukraine and Viet Nam to participate in this meeting.
The Security Council will now begin its consideration of the item on its agenda.
Members of the Council have before them document S/2015/562, which contains the text of a draft resolution submitted by Australia, Belgium, Canada, France, Germany, Indonesia, Ireland, Israel, Italy, Lithuania, Malaysia, the Netherlands, New Zealand, the Philippines, Romania, Spain, Ukraine, the United Kingdom of Great Britain and Northern Ireland and the United States of America.
I now give the floor to those members of the Council who wish to make statements before the voting.
Mr. Liow Tiong Lai (Malaysia): Draft resolution S/2015/562 before the Council today is being introduced by Malaysia on behalf of the countries participating in the joint investigation team on the downing of Malaysia Airlines Flight MH-17: Australia, Belgium, Malaysia, the Netherlands and Ukraine. It is on their behalf, as well as on behalf of my own delegation, that I take the floor to explain our position.
A year ago, on 17 July 2014, the international community was shocked by the tragic downing of the civilian Flight MH-17 in eastern Ukraine. The Council was united in its immediate reaction by adopting resolution 2166 (2014) by consensus a few days later. That resolution condemned the incident; called for a full, thorough and independent international investigation, in accordance with international civil aviation guidelines; called on all States and actors to cooperate fully with the international investigation; and demanded that those responsible be held to account and that all States cooperate fully with efforts to establish accountability.
Since then, an independent air safety investigation has been conducted in full compliance with annex 13 of the Convention on International Civil Aviation and the guidelines of the International Civil Aviation Organization (ICAO). The Dutch Safety Board has led the air safety investigation ever since the investigation was transferred by the State of occurrence, that is Ukraine, to the Netherlands. The investigation has been assisted by experts from various countries, including Australia, France, Germany, Indonesia, Italy, the Russian Federation, Ukraine, the United Kingdom and the United States of America.
Alongside but separate from the air safety investigation, the law enforcement agencies of Australia, Belgium, Malaysia, the Netherlands and Ukraine have been cooperating in a joint investigation team to undertake a criminal investigation into the downing of Flight MH-17. The investigation has been undertaken to implement the Council’s call in resolution 2166 (2014) for a full, thorough and independent investigation into the incident. The United Nations has expressed confidence that the investigation is being carried out in line with international standards.
On the first anniversary of the downing of Flight MH-17, Secretary-General Ban Ki-moon welcomed the progress made by the independent international investigation, in accordance with resolution 2166 (2014). ICAO has also expressed its support for the ongoing independent international investigation.
A year ago, the Council demanded accountability in resolution 2166 (2014). It is now timely for the Council to take clear and decisive action to demonstrate its political will and determination to pursue the cause of accountability for the senseless killing of those on board Flight MH-17. That is why today, on behalf of
the countries participating in the joint investigation team — Australia, Belgium, Malaysia, the Netherlands and Ukraine — Malaysia is requesting the Council to take action on the draft resolution to establish an ad hoc international criminal tribunal.
It is important for the Security Council to take clear and decisive action under Chapter VII of the Charter of the United Nations against those responsible for the downing of flight MH-17, and to send a very clear message to the growing number of non-State actors with the ability to target civilian aircraft that such attacks are unacceptable. Thus, the establishment of an international tribunal by the Council would send a clear message that the international community is committed to taking action against those who threaten international peace and security by endangering civil aviation. All those who travel by air will be more at risk if perpetrators are not held to account.
An international tribunal would also be best placed to deliver justice to the families of all victims. The creation of an obligation to cooperate with the proposed tribunal would also maximize the prospects for securing international cooperation with the tribunal. The establishment of a tribunal prior to the completion of the criminal investigation would also ensure that this establishment is as depoliticized as possible and consistent with the Security Council’s own practice in relation to other ad hoc criminal courts and tribunals. Regardless of who the perpetrators are, we want to ensure that the arm of justice will reach them and that there will be no impunity. Moreover, the draft statute of the tribunal, which is annexed to the draft resolution, would ensure the independence of the judges and the prosecutor and provide full power to the prosecutor to carry out his or her own investigation.
Malaysia, which is one of the countries participating in the joint investigation team, has been engaging with all Council members to seek support for the draft resolution. We have held consultations on the draft resolution and the statute within the Council and engaged in extensive outreach efforts, both in New York and in capitals, to explain our initiative, address possible concerns and seek the support of Council members and the grieving nations. We would like to thank all those who have supported our efforts and sponsored the draft resolution today.
As we submit the draft resolution to the vote, I wish to appeal to all Council members to bear in mind the calls for justice and accountability issued by the victims’ families and loved ones, as well as the Council’s promise to ensure accountability in resolution 2166 (2014). We must send a clear signal against impunity. The families and loved ones of the victims of the downing of Flight MH-17 will expect no less from us. We ask the Council to support our initiative. Words cannot express how deeply the families of the passengers and crew involved have been affected by these events. Our hope is that they will find some comfort not only in the united support we will have demonstrated here in the Security Council, but more importantly in the action taken by the Council on the draft resolution.
For these reasons, Malaysia will vote in favour of draft resolution S/2015/562. We urge all Council members to do the same.
The President: I shall put the draft resolution to the vote now.
A vote was taken by show of hands.
In favour: Chad, Chile, France, Jordan, Lithuania, Malaysia, New Zealand, Nigeria, Spain, United Kingdom of Great Britain and Northern Ireland and United States of America
Against: Russian Federation
Abstaining: Angola, China and Venezuela (Bolivarian Republic of)
The President: There were 11 votes in favour, 1 vote against and 3 abstentions. The draft resolution has not been adopted, owing to the negative vote of a permanent member of the Council.
I now give the floor to those members of the Council who wish to make a statement after the voting.
Mr. Liow Tiong Lai (Malaysia): Malaysia deeply regrets the failure of the Security Council to maintain unity on the downing of Malaysia Airlines Flight MH-17. We are deeply disappointed at the failure to adopt draft resolution S/2015/562, which would have established an ad hoc criminal tribunal for MH- 17, despite our persistent efforts to address Council members’ concerns and to bridge our differences. Malaysia, together with the countries participating in the joint investigation team, had wanted to pursue this option because it would have generated broad international support for the prosecution process. It
was also the best way to ensure the cooperation of all nations with an effective prosecution mechanism to ensure justice and accountability.
Unfortunately, one year since the unanimous adoption of resolution 2166 (2014), the Council is now taking a step backwards by sending the wrong signal to the victims’ families and loved ones. The Council has also failed to implement resolution 2166 (2014), which demands that those responsible be held to account and that all States cooperate fully with efforts to establish accountability. Instead of conveying a message in support of justice and accountability, we are sending a dangerous message of impunity for the perpetrators of this heinous crime, as well as jeopardizing the safety of civil aviation over conflict zones in the future.
I wish to stress that Malaysia will not be deterred by today’s unfortunate event. We will remain steadfast in our determination to pursue accountability for the perpetrators and to ensure justice for all the innocent victims on board the ill-fated plane. I wish to sincerely thank all the countries that have supported Malaysia and those participating in the joint investigation team in our endeavour to establish an international criminal tribunal for Flight MH-17.
Moving forward, we will continue with our outreach efforts and consultations with the relevant countries to address any concerns that they may have in the pursuit of justice and accountability for Flight MH-17. Malaysia will also consider and explore other viable options and prosecuting mechanisms in view of today’s setback. Council members may rest assured that we will not stop here and that we will never give up. We have to do something; doing nothing is not an option, and we must now move forward with a renewed sense of purpose in order to ensure that we are able to demand justice. We owe it to the families and loved ones of the victims to soldier on in our quest for justice and accountability.
Mr. Churkin (Russian Federation) (spoke in Russian): We would like to begin by again extending our condolences to the families of the deceased, as well as to the Governments of the countries whose citizens were on board the flight that crashed in Ukraine on 17 July 2014. Russia has consistently advocated for a swift determination of the reasons for the crash of Malaysia Airlines Flight MH-17 and the bringing to justice of those responsible for the tragedy. Moreover, we have repeatedly contributed to the achievement of those objectives through concrete actions.
The Russian delegation did everything in its power to ensure that the Security Council adopted resolution 2166 (2014) as soon as possible. In the course of its drafting, we insisted on including provisions with regard to the need for a comprehensive, thorough, independent international investigation under international civil aviation guidelines and with the International Civil Aviation Organization playing a leading role. Moreover, we were fully open to the immediate adoption of another draft resolution that would provide early access to the crash site to the joint investigation team. However, the States concerned chose to act outside the Council and on the basis of bilateral agreements with Ukraine, whose elaboration took additional time.
In resolution 2166 (2014), we insisted on the inclusion in the text of provisions concerning the immediate cessation of all military activities in the area directly adjacent to the crash site. It was the Russian Federation that raised in the Security Council the issue of Kyiv’s violation of that provision in August, when the Ukrainian authorities unilaterally declared they would no longer adhere to the ceasefire agreement, as a result of which the joint investigation team was forced to suspend its work for a lengthy period.
Within the framework of the technical investigation, pursuant to annex 13 to the Convention on International Civil Aviation, Russian experts transferred to the Dutch side all the information requested of us, including data from the Rostov radar station of the air traffic control system. A few days after the crash, the Russian Ministry of Defence held a briefing during which it released all Russian satellite data, which were also sent to the Dutch side. Analysis and calculations regarding one version of the catastrophe — that the flight was shot down by a surface-to-air Buk-type missile — were also sent to the Netherlands by experts of the Russian manufacturer Almaz-Antey. To that end, data concerning the technical characteristics of such missiles was declassified. Russia was the only country to make public such data.
Unfortunately, a year after the adoption of resolution 2166 (2014), serious issues remain as to how the investigation has been conducted. Russian experts were not provided equal access to the various aspects of the technical investigation. They unilaterally provide their data and calculations, but remain unaware of what then happens to the information. We have repeatedly offered to provide qualified experts and equipment to carry out complicated work, for example, metallurgical analysis, which would have enabled us, by testing pieces
of the wreckage, to determine the type of missile that brought down the plane. All that remains unanswered.
Turning to criminal investigations, they are being carried out by members of the joint investigation team in a closed fashion. It was reported that an agreement had been reached by the five countries not to disclose information. Given this case, what grounds are there to be assured of the impartiality of this investigation? Can the investigation stand up to the backdrop of aggressive propaganda from the media? Can it withstand the pressure of an obvious political put-up job when the causes of the disaster and those responsible are announced in advance? Moreover, such statements are being made by a number of the leaders of States that make up the joint investigation team.
The Russian Federation was the only country to point out that resolution 2166 (2014) provides for comprehensive United Nations assistance for the investigation. We offered to consider the creation of the post of a Special Representative of the Secretary- General, which would have helped to ensure a truly international and transparent investigation. However, our proposal was not accepted. Also not fulfilled was the instruction to the Secretary-General in that resolution to submit to the Security Council a comprehensive set of options for facilitating United Nations assistance for the investigation.
What did we get instead? We got something that was summarily prepared outside the Security Council, without thoughtful consideration of the available options for a criminal investigation: a draft resolution under Chapter VII of the Charter of the United Nations. Our position that this was a premature, ill-defined and legally untenable step was not heeded. We have come up with an alternative draft resolution aimed at ensuring that we fully harnessed the potential of resolution 2166 (2014) and to ensure a genuine international, independent and comprehensive investigation. After reaching that goal, we could have revisited the issue legal mechanisms to bring perpetrators to justice. We would like to stress that our draft document remains on table. We believe that its proposals and ideas are still relevant.
We have repeatedly stated that we do not support the idea of setting up a tribunal under Chapter VII of the Charter. There are no grounds for it, given that in resolution 2166 (2014) the Security Council did not classify the Boeing tragedy as a threat to international peace and security. It is difficult to explain how this event, which a year ago was not considered to be a threat to international peace and security, now suddenly becomes one. In principle, issues pertaining to organizing a criminal investigation do not fall under the remit of the Security Council.
Well-known exceptions have been made owing to the need to determine those guilty for mass crimes deemed by the international community to be of the most serious nature. However, the experience with the Tribunal for the Former Yugoslavia and the Tribunal for Rwanda can hardly be considered positive, given that they were very expensive, that they took a long time to carry out their work, that they were subject to political pressure, et cetera. No precedent in principle exists for the establishment by the Council of international tribunals to bring to justice those responsible for transportation disasters.
This is something that has also happened in Russia, of course. In 2001, a Siberia Airlines flight was shot down over the Black Sea by Ukrainian anti-aircraft missiles. There was also the incident involving the Iran Air flight shot down over the Strait of Hormuz in 1988 by a missile fired from an American destroyer. National investigations were carried out at the time in Ukraine and in the United States, but no determination was made that a crime had been carried out. However, resolution 616 (1998), adopted following the deadly downing of the Iranian airliner, did not qualify the incident as a threat to international peace and security.
Here is another example. In 2010, Russia proposed an initiative to set up a special international tribunal to prosecute pirates. We were prompted to do so by the unprecedented increase in the number of pirate attacks off the coast of Somalia. Effective mechanisms for the prosecution of pirates did not exist at the time; those apprehended at sea were often just released. The idea of an international tribunal for pirates did not enjoy support in the Security Council, despite the fact that the qualification of the situation as threatening international peace and security was quite clear.
Arguments regarding the lack of efficiency, slowness and the unwieldiness of such mechanisms then emerged as the main arguments, especially from those who now support the draft resolution on the Boeing incident. We must therefore note that the draft resolution (S/2015/562) that was put to the vote today lacked any legal basis or precedent. We have repeatedly explained this to our colleagues and urged them to consider alternatives. However, the authors of the draft resolution have refused to act in a spirit of cooperation and put it to a vote, knowing that it would not lead to a positive outcome. In our view, this points to the fact that political aims were more important to them than practical objectives. This is regrettable.
In conclusion, I would like to emphasize that Russia is ready to cooperate in the conduct of a full, independent and impartial investigation into the causes and circumstances of the crash of the Malaysian airliner, based on the provisions of resolution 2166 (2014) in order to identify and punish the perpetrators. The position that we have adopted today has nothing in common with promoting impunity.
Ms. Power (United States): I thank all the Ministers who have travelled to New York for this important meeting.
Shuba Jaya and her husband Paul Goes were flying back home from the Netherlands, where they had brought their one-year-old daughter, Kaela, to meet Paul’s parents for the first time. Nick Norris was bringing his three grandkids, Mo, age 12, Evie, age 10, and Otis, age 8, back to Perth from a family vacation, so that the children’s parents could have a few days of holiday to themselves. Tambi Jiee and Ariza Gazalee were moving back to Malaysia after more than two years of living abroad. With them were their sons, Muhammad Afif, age 19, Muhammad Afzal, age 17, and Mohammed Afruz, age 13, and their daughter, Marsha Azmeena, age 15. All of these families were on Malaysia Airlines Flight MH-17. All of them are gone.
Among the 298 people on board were students and teachers, florists and flight attendants, entrepreneurs and restaurateurs, an aerospace engineer and a supermarket cashier. Some 80 of the passengers were children. Their loss is immeasurable.
The loss is felt by generations of students of 72-year-old Sister Philomene Tiernan, a member of the Society of the Sacred Heart, a religious order devoted primarily to advancing girls’ education. Sister Phil, as her students knew her, was returning home after visiting the church in France where the remains of the religious order’s founder are buried. The loss is felt among people who may never have met the victims but whose lives were touched and at times permanently altered by their work. I am speaking of victims like Joep Lange and his partner, Jacqueline van Tongeren, who were among the passengers headed to the twentieth International AIDS Conference. Joep was a renowned researcher who helped make antiretroviral treatments cheaper for people who otherwise could not afford them. Jacqueline worked for an non-governmental organization that promotes health solutions for poor communities. I am speaking of victims like Willem Witteveen who was not only a deeply respected scholar of the law and political theory but also a dedicated public servant, having served for nearly a decade as a Dutch senator.
But the loss of the 298 individuals is of course felt most profoundly by their families. Dora Shahila Kassim was the lead flight attendant and a single mother. She had worked hard to ensure that her 16-year-old daughter, Diyana, had every opportunity. “She was not just my mother but my father, my best friend,” Diyana said. “I do not know how I am going to live without her.” Silene and Rob Fredriksz’s son, Bryce Fredriksz, age 23, was on the flight with his girlfriend, Daisy Oehlers, age 20. The young couple lived with Bryce’s parents. Since 17 July 2014, Bryce’s parents have left the room just as Bryce and Daisy left it, with the bed unmade and clothes strewn around the floor. Silene cannot bring herself to touch it. The space, she said, still breathes Bryce and Daisy.
This could have happened to any of our families. Our sons or daughters, our mothers or fathers, our grandparents or aunts and uncles — any of the them could have been on that flight. So could our teachers, our colleagues, our neighbours, our best friends. The passengers on that flight came from 18 nations, including my own, but they could have come from any of our countries. In that way, the families of the 298 passengers and the communities and nations they belonged to are all of our families.
The United States believes firmly that those who carried out this unspeakable crime cannot remain unnamed and unpunished. When the Netherlands, Malaysia, Australia, Belgium and Ukraine put forward draft resolution S/2015/562, we supported their efforts. Of course, justice by itself will not fill the profound void left behind with the loss of those on Malaysia Airlines Flight MH-17. But efforts to deny justice only intensify the pain of the victims’ families who have already endured more than any of us can fathom. That was the effect when Russian-backed separatists prevented investigators from gaining full and timely access to the crash site. It was the effect of Russia’s refusal even to negotiate today’s draft resolution and statute, essentially preventing any meaningful negotiation of those texts from taking place. It is the effect of Russia’s veto today.
By vetoing today’s draft resolution, Russia has tried to deny justice to the 298 victims on that plane and deny their families a chance to hold accountable those responsible. Russia has callously disregarded the public outcry in the grieving nations and the appeals of the families affected. It is tragic that Russia has used the privilege entrusted to it to advance international peace and security for the purposes of frustrating international peace and security.
But let us be clear — today’s veto cannot and will not deny the victims and their families justice. There cannot and will not be impunity for those who downed a civil airliner with 298 people aboard. When justice is denied for those 298 individuals and their families and their communities, it is denied for all of our families, communities and nations. While we are outraged and gravely disappointed by the outcome of this vote, today we say to those families that no veto will stand in the way of this heinous crime being investigated and prosecuted and that no veto will weaken our unshakeable commitment to them to ensure that they and their loved ones have the justice they deserve.
Mr. Baublys (Lithuania): I welcome you, Mr. President, Minister Liow Tiong Lai of Malaysia, Minister Bishop of Australia, Minister Klimkin of Ukraine, and Minister Koenders of the Netherlands to the Security Council. Their presence here is a testament to the commitment of their Governments to seek accountability and justice for the downing of Malaysia Airlines Flight MH-17 near Torez, Donetsk oblast, on 17 July 2014.
Our deepest sympathies go to the families of the victims in the Netherlands, Malaysia, Australia, Indonesia, the United Kingdom, Germany, Belgium, the Philippines, New Zealand and Canada. Words may soothe the grieving families, but the heinous crime that was committed calls for an answer from the Security Council. It needs all States to cooperate fully in establishing accountability, which is what was precisely demanded by resolution 2166 (2014) unanimously adopted by the Council.
Today’s veto by Russia has denied for now an avenue for the families of the victims to bring perpetrators to justice. Russia’s actions are deeply troubling, but they are hardly surprising. Since 17 July 2014, Russia has been acting with regard to the independent Flight MH- 17 investigations as if it had something to hide, as if there was somebody to mislead, someone to throw off course by disinformation. Today is no exception. The grim reality on the ground, however, belies the Russian narrative.
Russian-backed illegal armed groups in control of the crash site tampered with evidence for days and weeks and precluded and restricted access for international experts and monitors from the Organization for Security and Cooperation in Europe (OSCE). Only after immense international pressure under resolution 2166 (2014) were independent investigators able to conduct identification of the remains of the victims and collect evidence. Their work is vital, and we call on all States concerned to cooperate.
The Dutch-led independent international investigation team includes experts from Australia, France, Germany, Indonesia, Italy, Malaysia, Russia, Ukraine, the United Kingdom and the United States, as well as from the European Aviation Safety Agency and the International Civil Aviation Organization (ICAO) and enjoys the full trust and confidence of the concerned countries and the international community, including the ICAO and the United Nations. We have every confidence in the investigation. It has been conducted in a manner consistent with ICAO procedures and standards and the Chicago Convention. We thank the Joint Investigation Team countries for their consistent outreach and for their keeping the Council updated.
Lithuania was a sponsor of the draft resolution put forward today by Malaysia (S/2015/562). Today, along with a majority of Council members, we are sending the clear message that acts of violence against civilians will not go unpunished. The shooting down of Flight MH-17 amounted to a threat to international peace and security and was a deliberate act. Accountability is not a concept on paper. An international tribunal backed by the Security Council under Chapter VII of the Charter of the United Nations would have been the best way to ensure the judicial process’s impartiality and independence. We will support further efforts to pursue accountability, with or without Russia’s cooperation.
The unhindered flow of arms, mercenaries and Russian troops into the sovereign territory of Ukraine created the conditions that enabled this tragedy to happen. Weeks before the downing of MH-17, the separatists claimed that they had acquired an SA-11 Buk missile system and used it to shoot down an Antonov AN-26 cargo plane at high altitude. Such weapons cannot be bought in a downtown Luhansk market. Nor can they be operated by a Donetsk miner.
The foreign-orchestrated conflict in eastern Ukraine continues unabated, despite Russia’s denials of non-involvement, as was also the case with the occupation of Crimea. The ceasefires of September 2014 and February 2015 were intended to enable the combined Russian-separatist forces in Donbas to regroup. Recently, 52,000 Russian troops have been massing on the Ukrainian border. Since last fall, at two Russian-Ukrainian border crossings alone, the OSCE has counted 20,000 men in military uniforms crossing to and fro. That is two divisions without a single visa request. What would the OSCE be able to record if Russia were to comply with the Minsk agreements and allow it to monitor vast areas in Donbas, including the 400-kilometre-long Ukrainian-Russian border?
The ominous signs do not end there. The OSCE has registered large concentrations of heavy weapons in the militant-held areas, including at a railway hub in Komsomolske. Only a few weeks ago, Alexei Markov of the Ghost Brigade in the self-proclaimed Luhansk People’s Republic said that his fighters were eager to launch a summer offensive, but that they wanted weapons from Moscow because they had very few, were running short of supplies and needed more troops, artillery and combat vehicles. All hostages and illegally detained persons were supposed to have been released. Russia has evidently found other excuses for ignoring the provisions of resolution 2202 (2015). Nadia Savchenko and other illegally held Ukrainians remain in Russian prisons, facing sham trials.
This human tragedy and suffering in Ukraine must stop. The Minsk agreements must be implemented in good faith. The trilateral contact group, the OSCE and the United Nations should play critical roles. Russia and its militants must stop paying mere lip service to the agreements. Under extremely difficult circumstances, Ukraine is implementing the Minsk agreements. It has begun constitutional reform. It has made genuine efforts to implement painful reforms, fight corruption and liberate itself from the past. Ukraine must be free to pursue the path of reforms its people have chosen. Ukrainians want peace.
Our solemn duty today was not to take sides but to ensure that justice was served. The Council has failed in that task. Today’s veto was a desperate attempt to delay accountability, but the efforts of the international community will not end here and those responsible will be held to account.
Mr. Cherif (Chad) (spoke in French). I would first like to welcome all the ministers in the Chamber today.
Exactly one year and 12 days ago we witnessed the horror of the downing in Donetsk province in Ukraine of Malaysia Airlines Flight MH-17, which resulted in the deaths of 298 innocent people, 85 of them children. Chad would like to reiterate its firm condemnation of that abominable attack on a civilian aircraft and offer its deep sympathy and heartfelt condolences to the bereaved families and the Governments of the countries from which the victims came. We share in the immeasurable sorrow of the victims’ relatives and loved ones and we understand their justifiable impatience to know the truth and demand accountability from those who were responsible for the disaster.
We should recall that resolution 2166 (2014), adopted immediately after the crash on 17 July 2014, states that those responsible for it should be held to account and that every State should cooperate fully with efforts to establish that responsibility. According to the preliminary report on the crash published on 10 September 2014 by the Dutch Safety Board, the plane disintegrated in mid-air as a result of “structural damage caused by a large number of high-energy objects that penetrated the aircraft from outside”. However, the origin of those objects was not specified.
Chad continues to support every effort by the international community aimed at demanding accountability and assigning responsibility for the destruction of the aircraft. In that regard, we would like to thank the Malaysian delegation for presenting today’s draft resolution S/2015/562, on the creation of an international criminal tribunal. For several reasons, we were in favour from the start of the idea of creating such a tribunal, aimed at bringing to justice the perpetrators of these hateful crimes.
The first is in order to respond to resolution 2166 (2014), which the Security Council adopted unanimously following the incident and which demanded that the destroyers of the Malaysian aircraft be brought to justice. The second is in order to honour the memory of the victims of the tragedy and emphasize our total solidarity with their loved ones, whose legitimate impatience — and that of the many delegations who have come to represent them here today — in the quest for truth and justice we share. The third is in order to ensure a credible, independent and impartial investigation aimed at achieving justice unshadowed by any pressure or manipulation, and to encourage cooperation between all States to that end. Fourth and last, to send a strong message of deterrence to all those in other areas of conflict who might make attempts to attack the security and safety of international civil aviation.
For all those reasons, Chad voted in favour of the draft resolution presented by the Malaysian delegation, but unfortunately it was not adopted, owing to the opposition of some permanent members of the Council, a fact that we deeply regret. Despite the rejection of the draft resolution, we remain committed to supporting every effort designed to meet the demands of justice and we encourage the countries concerned and the members of the Council to do everything possible to respond to the legitimate expectations of the victims’ loved ones.
Mr. González de Linares Palou (Spain) (spoke in Spanish): Spain voted today in favour of draft resolution S/2015/562, presented by Malaysia, and we regret that it could not be adopted. My delegation believes that the draft resolution was an appropriate follow-up to resolution 2166 (2014), which the Council adopted unanimously a year ago. It is important to highlight the fact that resolution 2166 (2014) remains in force today. It is also important to preserve the unity that the Council demonstrated at that time.
In that context, I wish to reiterate Spain’s condemnation of the downing of Malaysia Airlines Flight MH-17 last July as well as our sorrow at the fate of its 298 civilian passengers and crew, to whose memory I wish to pay tribute once again today.
My country has repeatedly called for accountability of those responsible for this indescribable act. It is unacceptable that the parties to a conflict could resort to indiscriminate violent attacks against civil aviation. The Security Council cannot remain unmoved in the face of this kind of action. On the contrary, it must ensure that those responsible are brought to account, as set out in its resolution 2166 (2014).
I wish to reiterate Spain’s firm support both for the technical investigation of the events directed by the Dutch Safety Board in accordance with International Civil Aviation Organization (ICAO) principles, as well as for the criminal investigation being carried out by the Joint Investigation Team. I wish also to acknowledge and give thanks for the role that the United Nations system, in particular ICAO, has been playing, in a rigorous and independent manner, in support of the technical investigation.
As we have previously stated, Spain believes that the creation of an ad hoc international criminal tribunal, as detailed in the Malaysian draft resolution, would be a step forward in the fight against impunity and the quest for justice for the victims. It is important to continue to work to attain this objective and to convey the message that such execrable acts are unacceptable. We have a responsibility to contribute through our actions to the prevention of further such acts, especially because more and more non-State actors are able to do so today. In this way we will contribute to strengthening the safety of international aviation and, ultimately, international peace and security.
Mr. Liu Jieyi (China) (spoke in Chinese): A year ago, Malaysia Airlines Flight MH-17 crashed in eastern Ukraine, killing all 298 people aboard. China is deeply saddened by that tragedy and wishes once again to express its sympathy to the bereaved families of the victims and to the countries concerned. We support, in accordance with resolution 2166 (2014), the holding of an objective, impartial and independent international investigation into the incident and the bringing of the perpetrators to justice.
The current focus should be on establishing the truth behind the incident and seeking justice for the victims. China understands the feelings of the sponsors of the draft resolution and in particular those of the bereaved families of the victims of the crash of Flight MH-17, as well as their urgent desire that the perpetrators be punished.
China participated in the consultations on the draft resolution and has all along called on the members of the Council to remain united and meet one another halfway, accommodate one another’s concerns and avoid political confrontation. If the Security Council could have achieved consensus on the next step to be taken concerning that incident, it would have sent out a positive signal to the effect that the international community was maintaining a common position on this issue. It would also have helped to establish the truth of the incident as soon as possible.
Under circumstances in which some members of the Council still have major concerns about the draft resolution, to forcibly push forward a vote could only result in division among the States members of the Council. It will not help to ease the grief of the bereaved families of the victims of the crash of Flight MH-17, nor will it help to establish the facts or bring the perpetrators to justice. For these reasons, China abstained in the voting on the draft resolution.
Mr. Delattre (France) (spoke in French): I wish to thank Malaysia and the co-authors of the draft resolution and to welcome the Ministers who are honouring us with their presence today.
We deeply deplore the defeat of the draft resolution on the establishment of an international tribunal to prosecute persons responsible for the downing of Flight MH-17. France supported this major initiative from the beginning.
The creation of the ad hoc tribunal formed a part of the fight against impunity, one of the Security Council’s priorities. Today we are once again witnessing the calling into question of one of the Council’s major areas of action, one that had until now found consensus among its members. The initiative was also part of the implementation of resolution 2166 (2014), adopted on 21 July 2014 by the Security Council, demanding that those responsible for the tragedy be held accountable for their actions.
Resolution 2166 (2014) marked the unity of the Council in condemning that heinous act. It was also a milestone in clarifying the tragedy, finding those responsible and the demands of justice. The provisions of the draft resolution are by no means revoked by the fact that the draft was rejected today. Make no mistake, the call will continue for the whole truth behind this tragedy to be known, for those responsible to be prosecuted and for justice to be done. The Joint Investigation Team, with which the United Nations is associated through the International Civil Aviation Organization (ICAO) and whose impartiality the United Nations recognizes, must continue its work. We owe it to the victims, who are vividly remembered.
It is deeply shocking that one year after the disaster, in which, let us recall, 298 innocent civilians perished, the Council is unable to respond to the terrible anguish and concerns of entire nations, as evidenced by the presence here today of several Government representatives of the countries concerned. We therefore deeply regret Russia’s veto.
Today’s vote represents a serious failure for the Council. We must take note of this, but we do not have the right to stop working. We owe it to each of the victims of this tragedy. We owe it to the quest for truth. And we owe it to the values of the United Nations, which must unite us. It is in that spirit that we will soon be called on to continue our work on the follow-up to the international inquiry, which will shortly submit its findings.
Mr. Olguín Cigarroa (Chile) (spoke in Spanish): Allow me to welcome your presence, Sir, and that of all of the other Ministers who are here today. One year after the tragedy, we reiterate our condolences to all of the families affected.
My delegation would have liked the Council to have sent a unified message to all of the families of the victims of the tragic downing of Flight MH-17. Resolution 2166 (2014) was a major step forward in clarifying the facts by establishing a Joint Investigation Team, in parallel with the investigation conducted by the International Civil Aviation Organization (ICAO). But there is no doubt that accountability is part and parcel of fundamental values that seek to see justice done and prevent any form of impunity.
Chile is concerned About the effective application of these principles. We have always been ready to support any effort leading to a basic level of agreement that would make it possible to continue to investigate the facts and establish a jurisdictional mechanism that would develop and complement resolution 2166 (2014). Beyond the legitimate legal interpretations, it is essential for us that the exercise of jurisdiction be as expeditious as possible in response to the gravity of the events and because of the undoubted need to provide remedies to the families of the victims. To that end, Chile supported draft resolution S/2015/562 because justice and reparations constitute our world view and sense of collective action.
In conclusion, we would like to end on a hopeful note that the Council will be able to send the message that the international community expects and hopes for — because that reinforces our legitimacy regardless of our reasonable differences.
Mr. Rycroft (United Kingdom): I would like to thank the Ministers of Malaysia, the Netherlands, Australia and Ukraine for marking this occasion with their presence.
The United Kingdom is deeply saddened, frustrated and disappointed that Russia has vetoed draft resolution S/2015/562 today. The draft resolution was about securing justice for the 298 people — including 80 children and 10 British nationals — who lost their lives on board Malaysia Airlines Flight MH-17. Russia’s veto disrespects the victims and insults their families. Through resolution 2166 (2014), the Security Council unanimously agreed that those responsible for that incident be held to account and demanded that all States cooperate fully with efforts to establish accountability. With its veto, Russia is not meeting that demand.
The Security Council had an opportunity today to start a process that would have brought justice and accountability for the families of all those who lost their lives. There are clear precedents for the Council taking this kind of action: securing international support for the Lockerby trial, and establishing the International Tribunal for the Former Yugoslavia and another Special Tribune for Lebanon, among others. A year after the downing of Malaysia Airlines Flight MH-17, this was precisely the moment to establish a tribunal — to send a clear and unambiguous message that the Council will not tolerate impunity and that the Council has a clear responsibility to address violent acts that constitute a threat to international peace and security. We therefore reject the Russian allegation that this draft resolution was an unnecessary and premature move, and that the Security Council should have waited for the investigations to conclude. An operational and fully staffed tribunal takes time to set up. Had we started that process today, the tribunal would have been ideally placed to act on the outcome of the investigations.
Despite Russia’s veto, the investigations will continue. The investigators have been exemplary in their professionalism and integrity, working in the most challenging circumstances. We reject any allegations to the contrary. Russia has been involved in both investigations. The Russian Federal Transport Agency has actively participated in the technical investigation and contributed material to the criminal investigation. It is damaging that Russia has chosen to block the best route to establishing a tribunal for that criminal investigation to reach a conclusion. It is through those investigations that we will bring those responsible to account — as resolution 2166 (2014) demands. The veto today will not prevent that. The perpetrators of that terrible crime should find no comfort in Russia’s actions today. There must be accountability, and the international community now needs to unite to make that happen.
Allow me to conclude by returning to the victims. To them, Malaysia Airlines Flight MH-17 was meant to be a routine flight to Kuala Lumpur: a business trip, a holiday or a stop-over before a conference. Instead, all 298 people on board lost their lives in a remote part of eastern Ukraine — far from home, far from those they loved and far from those who loved them. They and those whom they left behind deserve justice. Despite Russia’s actions today, we will not give up in our pursuit of that goal.
Mr. Ramírez Carreño (Venezuala) (spoke in Spanish): Venezuela rejects the reprehensible act that led to the downing of civilian Malaysia Airlines Flight MH-17 in the region of Donetsk, Ukraine, where 298 crew members and passengers perished. We reiterate our solidarity with the families and countries of the victims affected by that regrettable incident, which took place a year ago. We are convinced that, in the framework of combating impunity, justice must prevail in order that those responsible for this tragedy be punished in accordance with the law.
Nevertheless, Venezuela abstained in the voting on draft resolution S/2015/562 because it introduced fractious political elements that could impact the necessary cooperation and trust between the parties in the ongoing investigation, which needs to determine what happened in the downing of Malaysia Airlines Flight MH-17. That needs to be done in order to determine the necessary criminal responsibility to bring to justice those responsible for that reprehensible act. We believe that the reference in the draft resolution to Chapter VII of the Charter of the United Nations goes beyond the political and legal framework set out in resolution 2166 (2014) — which established the objective of determining the path to take in adopting the relevant measures on this issue within the Security Council.
The description of this incident as a threat to international peace and security is untimely and politicizes the handling of this case, which is in the technical phase of investigation — making it a criminal matter. On that basis, we believe that the Security Council does not have the competence to establish an ad hoc international criminal tribunal.
In no circumstances would we like to see to see this deplorable incident and the suffering of the victims be politically used as part of the conflict affecting this region of Ukraine. Our country condemns this attack against civil aviation. Such acts are inadmissible and must not go unpunished. On this ocassion, we would like to recall the highjacking of the Cubana de Aviación flight in 1966, which resulted in deaths of 73 innocent civilians. The perpetrators of that heinous act still enjoy impunity.
We must bear in mind that, through resolution 2166 (2014), it was agreed to conduct a technical investigation of the incident. The investigation was to be independent, transparent and impartial — following the procedures and standards of the International Civil Aviation Organization. The resolution also called for the full cooperation of all the parties concerned. The investigation into the causes and the search for the perpetrators continues. We believe that such efforts to obtain facts and the truth must continue. We therefore believe we should encourage efforts to that end in order to arrive at the facts. Let us not prejudge or reach conclusions that are unfounded. We must avoid the politicization of this affair within the Security Council and continue with the investigations, which we hope will produce results enabling us to determine the causes of this deplorable incident and the responsibility for it — with the cooperation of this organ. Venezuela is fully prepared to contribute in any way to clarifying this painful event.
Mr. Gimolieca (Angola): Angola abstained in the voting on today’s draft resolution S/2015/562, introduced by Malaysia, on the establishment of an international tribunal for prosecution of those responsible for crimes connected with the downing of Malaysia Airlines Flight M H -17.
At the outset, let me be clear. We condemn in the strongest possible terms the downing of Malaysia Airlines Flight MH- 17 over Donetsk, Ukrain, on 17 July 2014 — a tragic event that resulted in the loss of all 298 passengers and crew members on board. We emphasize the need and importance of holding accountable those responsible for those acts in order to establish justice for the victims and their families, to set an example that acts like those can be punished, and to protect civil aviation from such intolerable deeds.
Nevertheless, we are convinced that resolution 2166 (2014) continues to be the applicable legal framework for international cooperation in the interests of a full, true, definitive and transparent investigation into the incident in accordance with international civil aviation guidelines. As the criminal international investigation is yet not complete, we are of the view that, at this stage, Member States should be engaged in a comprehensive process of consultations. The Security Council resolution 2166 (2014) stipulates that the Secretary- General should identify possible options for United Nations support to the investigation and report to the Council on the relevant developments.
We are therefore convinced that the establishment of a criminal tribunal is a premature solution and that the most appropriate mode of action would be to wait for the results of the investigation. We regret that once again the Council was not able to reach the required level of compromise for the consensus needed in a text acceptable to all members.
Mrs. Ogwu (Nigeria): One year ago, the Security Council unanimously adopted resolution 2166 (2014). The resolution calls for an investigation into the downing of Malaysia Airlines Flight MH-17 in accordance with international civil aviation guidelines. Most significantly, the resolution calls for accountability, transparency and justice for the victims. It is for those reasons that Nigeria voted in favour of draft resolution S/2015/562, which the Council has just considered. Had it been adopted, the draft resolution would have authorized the establishment of an international criminal tribunal to ascertain culpability for the crash as a precursor to prosecution and trial.
The establishment of the tribunal would not only have brought justice to the victims and closure to their families, it would also have sent a strong message that the international community will not tolerate any act that threatens the safety of international civil aviation. We regret that the draft resolution was not adopted. Indeed, that brings to the fore once again the need for the Council to cultivate the practice of adopting a unified stance on matters requiring leadership in pursuit of international peace and security.
Mrs. Kawar (Jordan) (spoke in Arabic): At the outset, allow me to welcome the Ministers who have come to this meeting from Malaysia, New Zealand, Australia, the Netherlands and Ukraine. We certainly appreciate all the efforts being made by those countries in the independent investigation on the downing of Malaysia Airlines Flight MH-17.
One full year later, Jordan voted in favour of draft resolution S/2015/562. We support the establishment of an international tribunal to prosecute the perpetrators of the downing of Flight MH-17. We believe that the perpetrators must be held accountable. Their actions led to the killing of 298 innocent persons. They must be brought to justice under an independent judicial mechanism that ensures effective, clear measures to hold them accountable.
The importance of the draft resolution does not just lie in holding accountable the perpetrators of such acts, but also serves to deter any attempt to threaten the safety and security of international civil aviation in general. The targeting of civil aviation could stand as a precedent unless it is uprooted and deterred. We must prevent more such crimes and must not allow the targeting of civilians. We must not fail to hold perpetrators accountable.
Although the draft resolution before the Security Council was not adopted today, efforts must continue to reach a common understanding on the measures to be taken and their implementation according to the options presented by the Secretary-General. We stress the importance of cooperation among all States in order to achieve justice for the victims of that tragedy.
The President: I shall now make a statement in my capacity as the Minister for Foreign Affairs for New Zealand.
Today, the Council has been asked to remember the tragic events of 17 July 2014 in which 298 people were killed, including one New Zealand citizen and one resident. One year ago, the Council adopted unanimously resolution 2166 (2014), which condems the attack and calls for those responsible to be held to account. Today’s draft resolution S/2015/562 sought to establish a mechanism by which that accountability could be sought. The fact that we have not preserved the unanimity that characterized resolution 2166 (2014) is deeply disappointing.
In failing to find a way forward, the Council has let down the families and friends of those killed on Malaysia Airlines Flight MH-17, and has let itself down as well. This is a matter on which the Council should have been able to agree. For the Security Council, charged with upholding international peace and security, not to be able to agree on an accountability process when a commercial airliner was brought down and 298 people were killed is indeed a serious indictment. This does not appear to me to be a matter that can be seen in shades of grey: either we follow a path of accountability or there is impunity. I very much regret that the latter was the result of the Council vote today.
As President of the Council, we worked hard to promote a consensus outcome. However, the positions on the establishment of a tribunal at this time were not reconcilable. That this outcome has been achieved by the use of the veto is a matter of special regret to my country. New Zealand has opposed the veto consistently since 1945, and we oppose its use today. We as a Council simply have to find better ways of working together.
The countries that suffered heavy losses, including in particular Australia, Malaysia and the Netherlands, are our close friends. New Zealand supported and co-sponsored the draft resolution for an international tribunal as a serious effort to establish accountability for the downing of Flight MH-l7. That is the least we can do to honour the victims and alleviate the grieving of their families.
I conclude by conveying the condolences of my Government and country to the families and friends of the victims of Flight MH-17 and our strong regret that the Council was unable to meet its obligations to them today.
I resume my functions as President of the Council.
I give the floor to His Excellency Mr. Albert Koenders, Minister for Foreign Affairs of the Kingdom of the Netherlands.
Mr. Koenders (Netherlands): I appreciate the opportunity to speak here today on behalf of the Netherlands and the Dutch people. Today we recall the tragedy of Malaysia Airlines Flight MH-17, which occurred a little over a year ago. We mourn all 298 men, women and children on board on that flight from Amsterdam to Kuala Lumpur. Today is also the day that the pursuit of justice is called for.
On the 17 July, at the memorial service organized by the families of the victims, I saw once again how deeply this tragedy has wounded so many people in the Netherlands and in many other grieving nations. One hundred and ninety-six Dutch citizens were killed. Innocent men, women and many children. Many more families and friends were left behind in despair and are wondering why. Why them? Their wish, their desire, is for justice to be done: a cry for accountability, a cry for this important organ to act.
In response to the incident, the Security Council adopted the crucial resolution 2166 (2014), which condemns the downing of Flight MH-17 — which resulted in the terrible loss of so many lives — calls upon all the parties involved to facilitate recovery and repatriation and demands that those responsible be held to account. The resolution created hope for those who lost loved ones.
My country has abided by the resolution. We set out a three-step approach in close cooperation with other affected countries. That approach includes, first, repatriation and identification of the victims; secondly, a thorough and independent investigation into the cause of the crash; and, thirdly, justice for the victims and for those responsible.
The Netherlands has regularly and thoroughly informed the Security Council of the progress made on those three steps. First, all but two victims — both Dutch citizens — have been identified and repatriated. Secondly, the technical investigations into the cause of the crash are nearly complete, and the completely independent Dutch Safety Board is expected to release its final report in October. And, thirdly, the criminal investigation being carried out by the joint investigation team set up by Australia, Belgium, Malaysia, the Netherlands and Ukraine is at a very advanced stage.
That brings us to our ultimate task, namely, holding to account those directly or indirectly responsible for the downing of Flight MH-17. Bringing them to justice is not only our duty to the victims of this tragedy; the Council’s important resolution 2166 (2014) demands it. In that resolution, the Council acknowledged its authority and responsibility to see this matter through to its logical conclusion in the following ways: by reaffirming the international legal prohibition of acts of violence that pose a threat to international civil aviation; by calling on all States to cooperate fully with the international investigation of the incident; by demanding that, as called for in the resolution 2166 (2014), those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability. That imposes an international obligation to prosecute the perpetrators.
Let me ask the following question. When the Council called upon all States to act in that way, did the Council not assume that it too had a responsibility? After all, this is the highest political institution representing the international community. When the Council decided to remain actively seized of the matter, did it not foresee a role for itself in guaranteeing compliance with the resolution by all States Members of the United Nations in the interests of all those who lost their lives that afternoon above the skies of the Ukraine?
On behalf of the Netherlands, Australia, Belgium and Ukraine, Malaysia presented to the Council a thorough and carefully drafted proposal for an international criminal tribunal, to be established under Chapter VII of the Charter of the United Nations. Our purpose is to create a timely, depoliticized and credible mechanism to ensure that the perpetrators face justice and are held to account.
We came to the Council with a desire to see justice done in the most effective, impartial and legitimate way, with the greatest possible chance of success. I would like to thank those Council members who have supported the Malaysian draft resolution and believe that this terrible crime deserves the attention of the Security Council and the best possible prosecution mechanism at our disposal. I express my deep disappointment that Russia has used its veto to stop the Council from actively ensuring that justice is served. My thoughts go out to the families of the victims who had placed their hope on the resolve of the Council to set up this tribunal.
We listened carefully to the arguments and concerns Russia voiced. We engaged and answered all — and I underline — all its questions. We made very clear that this is the best way forward, giving the demand for accountability by the Security Council itself. The accountability process is duly under way and in line with international standards. It makes no sense at all for the Council to stop it here. As said, the Dutch Safety Board has finished the investigation into the cause, and will publish its report in October. The criminal investigation is well under way, now we should have acted in order to be ready for the follow-up.
We have made the case for a prosecution mechanism that transcends politics. The idea to establish a tribunal now was born to ensure an independent and depoliticized procedure, before the results of the investigations would point at certain possible perpetrators. I find it incomprehensible that a member of the Security Council obstructs justice in a tragedy that has affected so many. Impunity will send a very dangerous signal and will threaten the safety of civil aviation — the safety of all of us, the safety of Council members.
We, the countries working together on the criminal investigation, will not stop in our endeavour to ensure that those responsible for this violent act are held accountable. We have the support of many in this Chamber and many more outside. My country will not rest until all the facts are known and justice has been been served. We expect the world community to continue to cooperate with us in our efforts to bring the perpetrators to justice, in accordance with resolution 2166 (2014). The Netherlands, Malaysia, Australia, Belgium and Ukraine will continue to work together to find the best way of prosecuting those responsible. We will continue working together to ensure justice is served, and we will lose no time in pursuing this.
The President: I now give the floor to Her Excellency Ms. Julie Bishop, Minister for Foreign Affairs of Australia.
Ms. Bishop (Australia): Thirty-nine Australians were among the 298 men, women and children whose lives were tragically taken when Malaysia Airlines Flight MH-17 was brought down over eastern Ukraine, just over 12 months ago. Among our number were six children, two religious leaders, two doctors, a number of teachers, an award-winning fiction writer and a promising aerospace engineer. They were loved ones who by a cruel twist of fate became victims of an atrocity — the downing of a civilian aeroplane flying in commercial airspace on a routine flight. Millions and millions of people around the world place their trust in the security of civil aviation as a matter of course each and every moment of each and every day.
Those who perished aboard Flight MH-17 were precious; each one mourned by heartbroken families and friends. I have spoken to the Australian families over the past year, and again as recently as the 12-month anniversary of this tragedy on 17 July. Their loss is incalculable; their grief inconsolable. They are desperate for answers. It is vital for them that those responsible for the deaths of their cherished ones be held to account for those actions.
Together with the Netherlands, Malaysia, Ukraine and Belgium, Australia requested that the Security Council establish an independent, international tribunal to prosecute those responsible for bringing down Malaysia Airlines Flight MH-17. The friends and families of those on board that ill-fated flight deserve justice. That is what the unanimously adopted resolution 2166 (2014) of 21 July last year demanded.
Our draft resolution and accompanying tribunal statute were designed to do nothing more and nothing less than translate into action that demand for accountability enshrined in resolution 2166 (2014). Our motivation was and is to provide justice to the families and to deter those who would threaten the safety of international civil aviation, for we must ensure that this never happens again. In a world with an increasing number of violent terrorist groups and other non-State actors, many with sophisticated military capabilities, it is inconceivable that the Security Council would now walk away from holding to account those who brought down a commercial aeroplane.
The veto only compounds the atrocity. Only one hand was raised in opposition, but a veto should never be allowed to deny justice. The recital of discredited contentions and the anticipated excuses and obfuscations of the Russian Federation should be treated with the utmost disdain. The exercise of the veto today is an affront to the memory of the 298 victims of Flight MH- 17 and their families and friends. Russia has made a mockery of its own commitment to accountability enshrined in resolution 2166 (2014).
If Russia has evidence relevant to this matter, surely Russia would want it heard by a wholly independent and impartial tribunal set up by the Security Council, of which it is a member, and with a registar, prosecutor and judges appointed by the impartial Secretary-General. The tribunal would have operated in accordance with the highest international standards under the auspices of the Security Council, of which Russia is a member. It has been alleged that our request for the Council to act is premature, but the establishment of a prosecution mechanism before the completion of a criminal investigation is wholly in keeping with the Council’s own practice. The findings of the criminal investigation must be able to be delivered to a prosecuting authority that can conduct its own investigations.
In unanimously adopting resolution 2166 (2014) last year, the Council demanded that those responsible be held to account and that all States cooperate fully with efforts to establish accountability. Resolution 2166 (2014) sent a definitive message that there would be no impunity for those responsible. Today, one member has prevented the Council from fulfilling its commitment to the friends and families of the victims of Flight MH-17 and to the international community. Those responsible may believe that they can now hide behind the Russian Federation veto. They will not be allowed to evade justice.
Australia deeply appreciates the support the draft resolution received from the overwhelming majority of Council Members, as well as from other grieving nations. I make this pledge to the families and friends of those aboard Flight MH-17 — Australia will continue to do everything we can to ensure that the perpetrators of that barbaric act are held to account. While we have found the Security Council’s door closed today, we have also found that the commitment to justice in the international community is strong. On the back of this support, Australia, together with the other members of the joint investigation team, will decide on an alternative prosecution mechanism to ensure that truth does prevail and that those responsible for this unspeakable act are brought to justice. Council members may rest assured that there is no end to our determination in this regard.
Twelve months ago, the tragedy of MH-17 shocked the world. Russia has used today’s vote to seek to politicize our quest for justice and should rightly be condemned. In defiance of today’s veto, we will ensure that the demand in resolution 2166 (2014) for accountability and the cooperation of all States is implemented in full.
The President: I give the floor to the Minister for Foreign Affairs of Ukraine.
Mr. Klimkin (Ukraine): I take this opportunity to congratulate you, Sir, on your effective presidency of the Council for this month. I would like to thank the delegation of Malaysia for requesting the convening of this meeting, and all members of the Security Council and the grieving nations for their strong support for the idea of establishing an international criminal tribunal to hold to account those responsible for the downing of Malaysia Airlines Flight MH-17.
It is obvious that these historic times will always be remembered, not only because of the number of vetoes exercised by the Russian Federation, but mainly because of the spirit of unity among the countries participating in the joint investigation team and all who support us in our efforts to deliver justice. A year ago, the Ukrainian people took the downing of Flight MH-17 as a national tragedy, and it will always remain so in our hearts. I still remember the sea of flowers in front of the Dutch and Malaysian embassies, and the hundreds of Ukrainians who gathered around those buildings during the night. I will never forget it.
When we heard about this incident, at the very beginning we had some hope that lives might be saved and immediately provided all available resources to the rescue teams. Then we did everything possible to prevent looting and to secure access for the investigators to the areas controlled by the terrorists. Now, our duty to those who died and the families of the victims is to bring to justice those who committed this barbaric act. We, more than anyone, feel the pain of the victims; that is why we want the truth about this crime to emerge. More than anyone, we want the perpetrators to be arraigned and tried by a public international court. There can be no reason to oppose that, unless you are a perpetrator yourself.
I could not agree more with my friends and colleagues, including several Government ministers who have spoken today, but I would like to make several points crystal clear. Resolution 2166 (2014) established an obligation for States to cooperate fully in the course of the investigation of this tragedy and to bring those responsible to justice. The use of a sophisticated and powerful weapon against a civilian aircraft constitutes a threat to international civil aviation and to international peace and security in general. The only effective way to prevent such acts in the future is to punish those responsible without delay. It is indeed an issue for the Security Council to deal with under Chapter VII of the Charter of the United Nations.
The level of support enjoyed by our draft resolution has clearly risen, showing that we are on right track. Our aim here is to create an effective, transparent, unbiased and independent vehicle to bring to justice those responsible for the crime. It is about the individual criminal responsibility of the murderers, and it is not about politics. That is why it is particularly disappointing that one country — Russia, to be precise — still mixes two completely separate issues: its responsibility for aggression against Ukraine and its continuous support for terrorism, on the one hand, and the individual responsibility of the perpetrators of the tragedy, on the other. There is no other explanation for today’s veto by Russia.
The role of Russia in the conflict is absolutely clear and well known. Thousands of Russian soldiers and mercenaries and tanks and every type of heavy weaponry have been delivered across the border; that is simply impossible to hide. Just recently, another Russian truck full of weapons and ammunition was captured in Ukraine. The driver is once again a Special Forces officer. But this story is a matter for international mechanisms.
When I look at the Russian delegation today, I feel pity. It dared to dampen the aspirations of the entire world, especially those of the families of the victims. It has aligned itself with the thugs who committed this atrocious crime. But our hope for justice is not lost.
The Russian Federation just killed draft resolution S/2015/562, but that abuse of the veto power will not kill the hope of those who suffered or their love for loved ones and their relatives. It will only make all of us stronger and more determined and more committed to elaborating and implementing an effective and credible prosecution model to deliver justice.
I am reminded of a line from Shakespeare about captive good attending captain ill; let us stop attending captain ill — it is just not worth it. In the face of truth, humanity and God, if one still believes in God, the tribunal in question is about 298 innocent lives. It is about the truth. He who is afraid of truth is definitely on the wrong side of the issue. He who is afraid of truth is alone here in the Security Council. “If you know the truth, the truth will set you free.” These are not my words. They are from the Holy Gospel. They come from a higher authority.
The President: I now give the floor to the representative of Belgium.
Ms. Frankinet (Belgium) (spoke in French): After the vote on draft resolution S/2015/562 introduced by Malaysia and sponsored by many other countries affected, including mine, by the grief of their citizens, as well as by several members of the Security Council, I wish first of all to express our solidarity with Australia, Malaysia, the Netherlands and Ukraine, our partners in the Joint Investigation Team. Our judicial authorities are making every effort to shed light on the circumstances of the destruction of Malaysia Airlines Flight MH-17 and ensure that justice is rendered to the families and next of kin of the victims of this tragedy.
What we were proposing today to the Council, the establishment of an international tribunal, would have made it possible to reach this objective. Despite the solid legal grounds on which the proposal was based and the broad support it enjoyed, it was not possible to reach an agreement on it within the Security Council, which we can only regret. We must remain committed so that justice can be done, for this is our responsibility towards the victims and their next of kin. This responsibility is shared by our five countries and by the other grieving nations as well as by all countries which, like us, consider that impunity not only is unacceptable, but could also have disastrous consequences for international peace and security.
We are ready to move forward and intensify our contacts and démarches in order to make a reality of what resolution 2166 (2014) asking of us — that all States associate fully with the efforts undertaken to assign responsibility. This has to be done in full respect of the law, which is essential for the victims and their families and friends, and without falling into the trap of any kind of politicization.
We commend the progress achieved by the international air safety investigation carried out in accordance with the guidelines of the International Civil Aviation Organization. The Joint Investigation Team, in which the Belgian judicial authorities participate, is pursuing its inquiry in a totally independent and objective way, in cooperation with all interested parties. We must ensure that this essential work has a judicial follow-up that will meet the expectations of the families and next of kin of the victims, in a timely manner, so that impunity will not prevail over the rule of law and human dignity.
The President: I now give the floor to the representative of Canada.
Mr. Rishchynski (Canada) (spoke in French): I thank you, Mr. President, for the opportunity to speak this afternoon.
Canada continues to mourn the terrible loss of life aboard Malaysia Airlines Flight MH-17, which was shot down on 17 July 2014 while flying over an area controlled by the pro-Russian forces in the east of the Ukraine. It is important for the Security Council to take decisive action to ensure that those responsible for the attack against Flight MH-17 answer for their actions and to send a clear message that attacks against civilian aircraft will not be tolerated. Canada has joined other States in mourning to co-sponsor draft resolution S/2015/562. Canada urges all States to cooperate in making sure that those who committed this heinous crime are held accountable for their actions. The international community owes it to the families and friends of the 283 passengers and 15 crew members who lost their lives that a full and impartial investigation into the crime is conducted and the perpetrators brought to justice.
(spoke in English)
Canada reiterates its support for resolution 2166 (2014) of 21 July 2014, in which the Security Council urged concerned States and organizations to undertake an independent international investigation. We are grateful to those who have supported the identification of victims, their recovery and repatriation, as well as the independent technical investigation. Canada has greatly appreciated the work done by the joint investigation team, comprising prosecution authorities from Australia, Belgium, Malaysia, the Netherlands and Ukraine, in conducting the criminal investigation. We have been cognizant of the importance of ensuring that the independent criminal investigation be followed without delay by an equally independent and impartial prosecution of the perpetrators. As such, we believed it wholly appropriate that steps be taken now to establish an international tribunal for this purpose because efforts to further obstruct the investigation or prosecution of this crime or to protect or support the perpetrators simply cannot be tolerated.
Canada is profoundly disappointed by the outcome of today’s Security Council vote on the creation of an international criminal tribunal to prosecute those responsible for downing Malaysia Airlines Flight MH- 17 on 17 July 2014 over territory controlled by pro- Russian forces in eastern Ukraine. Canada very much regrets that due to Russia’s obstruction, the families and friends of the 283 passengers and 15 crew members who lost their lives will not see those responsible for this heinous crime brought to justice by an international tribunal immediately.
The President: I now give the floor to the representative of Germany.
Mr. Braun (Germany): I too would like to express Germany’s gratitude to Malaysia and the members of the Joint Investigation Team for introducing the draft resolution before us today (S/2015/562), as well as to the Kingdom of the Netherlands for leading the investigation into the Malaysia Airlines Flight MH-17 tragedy.
We deeply regret that the Council’s unequivocal commitment to accountability and justice was vetoed today. A year ago, with the adoption of resolution 2166 (2014), the Council called for a thorough investigation of the downing of Flight MH-17 and demanded that those responsible be held accountable. With that resolution, the Council took on the responsibility of bringing the perpetrators of this heinous crime to justice. Today, it failed in that responsibility. As one of the grieving nations, Germany will do everything in its power to ensure that justice takes its course and accountability is achieved. Establishing an international tribunal on the basis of a Security Council resolution would have represented a significant step to that end, which was why Germany sponsored today’s draft resolution, which unfortunately failed to find the Council’s approval.
As we speak, the unbearable situation that led to the tragic downing of Flight MH-17 and the loss of so many innocent lives continues. Every day, people in eastern Ukraine are killed or wounded or lose their homes as a direct consequence of the conflict. That has to stop. We call for an immediate and lasting de-escalation of the conflict in order to prevent more tragedies from happening, and we urge all sides to fully implement the Minsk agreements. All of us, but particularly Ukraine and its neighbour Russia, have a profound interest in stabilizing the situation in eastern Ukraine. Germany, together with France, Ukraine and Russia — in the Normandy format and with other partners — has been working hard to end the conflict and find a solution. As we have all seen in the long negotiations on nuclear issues with Iran, in which we also cooperated closely with the Russian Federation and the other permanent members of the Security Council, solutions are possible when all sides approach the issues at hand in a constructive manner.
Today the Council has utterly failed the victims, families and friends of the passengers and crew members killed, among them four German citizens. That does not mean that the perpetrators can triumph and hope for impunity. We, the grieving nations, supported by many others, will not rest until they are held accountable. We sincerely hope, and to that end we call on all members of the Council and all parties concerned, that we can ensure that the Council will find another way to live up to its responsibilities and bring the perpetrators to justice. We owe it to the victims and to all who were close to them.
The President: I now give the floor to the representative of the Philippines.
Ms. Yparraguirre (Philippines): A year ago, the Philippines joined many other delegations in issuing a strong call in the Chamber for a full, thorough and independent investigation of the downing of Malaysia Airlines Flight MH-17, which took the lives of 298 people, including three Filipinos, a mother and her two children. In July 2014, united with us in our grief, the Council adopted resolution 2166 (2014), aimed at securing justice for those innocent and irreplaceable lives and honouring their memory.
Twelve months after the incident and the adoption of that resolution, the world is still groping for answers.
The perpetrators remain free of all accountability. The families of the victims continue to seek answers, justice and closure. If adopted, today’s draft resolution (S/2015/562) would have been a crucial step in fulfilling the commitment we made — both to the families of the victims and to the larger international community — to holding the perpetrators of this tragic incident and heinous crime fully accountable.
As one of the grieving nations, the Philippines sponsored today’s draft resolution in order to lend our strong support to the initiative taken by the Governments of Australia, Belgium, Malaysia, the Netherlands and Ukraine in seeking an international investigation of the incident and the establishment of an international tribunal for prosecuting those responsible for the downing of Flight MH-17. The Philippines and the Filipino people are indeed indebted to those nations for their sustained efforts and to those who believed in the merits of the draft resolution and gave it their full support.
We deeply regret, however, that the Council was unable to adopt the draft resolution today, representing a huge disservice to those who perished and to their families, their nations and the world. But the search for answers and justice will continue. The Philippines stands ready to support and collaborate with other countries to ensure that those responsible are finally brought to justice and that such tragic incidents will never happen again.
The President: I now give the floor to the representative of Ireland.
Mr. Mawe (Ireland): I would first like to take this opportunity to convey my deepest condolences to the people and Governments of all the countries touched by this terrible event, and in particular the families of the innocent victims. Ireland itself remembers the loss of an Irish-born citizen who was aboard Flight MH-17, and I wish once again to convey our sympathies to her family for their devastating loss.
A little more than a year ago, the Council gathered here in the days following the downing of Flight MH- 17. In a clear indication of the manner in which the event affected and shocked each and every nation, an unequivocal message was delivered through the unanimous adoption of resolution 2166 (2014). It was a sincere expression of compassion towards the victims, and it also acted on the desire to ensure humane and dignified treatment of their remains, a full, thorough and independent international investigation determining the exact course of events, and the holding to account of those responsible.
A year later, we welcome the progress made in identifying and swiftly repatriating the victims and their possessions and in establishing an effective, professional and independent investigation led by international experts. The sole task remaining is setting up an independent and impartial accountability mechanism to bring those responsible to justice in a credible and legitimate manner.
As we recently marked the first anniversary of this terrible tragedy, the shocking and harrowing images of the crash site and the overwhelming loss of innocent life have once again been appearing on our television screens and in our newspapers. Resolution 2166 (2014) sought to ensure that those scenes, and the actions behind them, would not go unchecked and that the callous disregard for human life demonstrated by those responsible would not be without consequence. Today’s draft resolution (S/2015/562) merely sought to deliver on the objectives of resolution 2166 (2014).
I would like to warmly commend Australia, Belgium, Malaysia, the Netherlands and Ukraine for their leadership in bringing the draft resolution to the Council. A tribunal of the type it proposed would be a definitive endorsement of the global community’s commitment to creating a transparent, effective and authoritative accountability mechanism for delivering justice in an independent and impartial manner. The establishment of such a tribunal now, in advance of the publication of the investigative reports, would have ensured that any actions taken on the basis of those reports would not become politicized.
Security Council tribunals have a proven track record. The establishment of such a tribunal in advance of the completion of the investigation would not represent an anomaly or a precedent; in fact, it would be a continuation of established practice. All other similar ad hoc tribunals, such as were established in the wake of conflicts in the former Yugoslavia, Rwanda and Lebanon, were set up prior to the completion of their investigations.
As an island nation, Ireland understands as well as any other the importance of civil aviation. The second busiest international air route in the world passes through Dublin. Civil aviation has strengthened our links with the fraternity of nations and is our gateway to the world. It is an indispensable tool for global communication, security and prosperity. Is it possible to maintain a global civil aviation industry if the absolute safety of our skies is in any way compromised by a lack of accountability for incidents such as that involving Flight MH-17? Surely, putting the safety of our skies at risk for civilian travel is by any measure a threat to international peace and security.
It is incumbent upon the global community to join together in order to create a single, mutually acceptable and coordinated accountability mechanism to deliver justice in an independent and impartial manner. It behoves us to continue to act with the same degree of decisiveness, cooperation and solidarity as we did in the weeks immediately following this disaster.
The President: I now give the floor to the representative of Israel.
Mr. Prosor (Israel): One year ago, last July, we witnessed the horrific scene of a civilian aircraft blown out of the skies over Ukraine. The lives of 283 passengers and 15 crew members were shattered in an instant, but the pain of their families continues to this day. Among those killed were 80 children, 80 precious girls and boys who lost their lives in one tragic moment.
As a representative of one of the grieving nations, I join with my colleagues to remember those we lost on Flight MH-17, to declare our support for the investigation and to insist that those responsible be held to account. The downing of this civilian aircraft was not simply a tragedy, it was a deliberate attack. The attack was an attempt to disrupt the law and order of the skies and to instil fear in those who use air travel.
Tragically, we in Israel are all too familiar with attempts to use violence to paralyse our lives and our routines. We have learned from this painful experience that if we do not take steps to deter future attacks, the consequences can be dreadful.
On that difficult day one year ago, 298 people were killed as they made their way through the skies. The passengers on the fated flight spoke different languages, had different destinations and different plans, but they all shared one thing in common: they were all innocent people going about their daily lives.
One of the passengers on board was Itamar Avnon, a 27-year-old Israeli citizen. Itamar was on his way back to Australia, where he was a second-year business student at Swinburne University in Melbourne. Itamar had returned to Israel for the wedding of a friend and to visit his 96-year-old grandfather in Haifa. He then flew to visit his family in the Netherlands, tragically, for the last time. Although his life was short, he filled those years with life. Whether it was his love of travel, of football, or, most importantly, his friends, Itamar lived life to the fullest and brought love and laughter to all who knew him. May his memory, and the memory of all those who perished, be a blessing.
We thank and support those carrying out the investigation into this horrible incident, and we welcome the progress made so far. We look forward to the final report.
The President: I now give the floor to the representative of Viet Nam.
Mrs. Nguyen (Viet Nam): At the outset, I would like like to thank the Ministers, who came from far away to attend this important meeting.
One year has passed since the tragedy of Malaysia Airlines Flight MH-17, which caused the loss of the lives of 298 passengers and crew members, among whom were a Vietnamese family of three. Viet Nam is grateful for the effective cooperation in the recovery and repatriation of the victims as well as the support for their families. We appreciate all of the efforts made by the relevant parties to investigate this incident, including the efforts by the Joint Investigation Team, and we take note of the preliminary report.
Viet Nam once again reiterates our request for a continued independent, objective and transparent investigation, in line with resolution 2166 (2014). We call upon all relevant parties to fully cooperate in the investigation. We are of the view that the perpetrators must be brought to justice through appropriate mechanisms, in accordance with international law and the Charter of the United Nations.
Viet Nam stands ready to work closely with all of the parties concerned in our efforts to adequately address this incident.
The President: I now give the floor to the representative of Indonesia.
Mr. Percaya (Indonesia): I would like to thank you, Mr. President, for convening this meeting on the subject of Malaysia Airlines Flight MH-17, which is of great importance to us. My delegation also thanks Malaysia for initiating the proposal on that issue.
It has been one year since the deeply troubling downing of Flight MH-17. But the pain and sorrow at the deaths of all those who perished in this most inhumane event, who included Indonesians, has not diminished.
It is deeply regrettable that the Council has failed to unite in taking measures to address the issues related to the downing of Flight MH-17. Indonesia, and, I believe, all other grieving nations owe it to the victims of this tragedy and their families to take effective measures. There must be appropriate measures to hold those responsible accountable, and there should also be clear measures to prevent similar incidents from ever happening again. This includes ensuring the observance of international law, particularly relevant international humanitarian law, greater international cooperation; and an unequivocal combined stand that such incidents will not be tolerated.
Indonesia reiterates its support for resolution 2166 (2014) and urges the Council to fulfil its commitment and responsibility to take all follow-up measures to fully implement the resolution, including to bring those responsible for the downing of MH-17 to justice. Several countries have worked together in the past year to provide clarity to those affected by the tragedy. In this regard, Indonesia welcomes the investigation process, including the efforts undertaken by the Joint Investigation Team. My delegation underscores the importance of a comprehensive, thorough and independent investigation, with an emphasis on transparency and impartiality, which should serve as the basis for establishing accountability.
Finally, my delegation calls upon the Council to continue its work to forge consensus on all appropriate measures to that end.
The President: The representative of the Russian Federation has asked for the floor to make a further statement.
Mr. Churkin (Russian Federation) (spoke in Russian): I shall be very brief.
Today’s meeting was a very emotional one, which is understandable. At times it gave rise to the question: are there any limits to the political exploitation of the feelings of the families of those who perished and who are experiencing a living horror?
A number of accusations were levelled at the Russian Federation that I consider insulting and not worthy of diplomats.
Turning now to the substance of the issues, we made our arguments in our statement. I will touch on only one issue, on the outcome of the discussions. It is simply incomprehensible that a lack of understanding of one form of judicial proceedings is being equated with impunity. We made, and reaffirm, a proposal to consider various formats for judicial proceedings. Among them are simpler ones that are more effective, more appropriate and certainly less politicized; these are the ones on which we should focus.
In his statement, the Minister for Foreign Affairs of Ukraine, Mr. Klimkin, attempted to speak from a moral and religious position of superiority. He referred to the unacceptability of impunity and the need to cooperate. I have only two questions for him: why were civilian airliners sent to areas where military activities were under way, areas where the Ukrainian forces were fighting using military aircraft? Why were civilian flights sent through that airspace? The passengers on that airliner simply could not have known that a military conflict was under way there. Even Malaysian aviation authorities could not have known that a military conflict was under way there. But Kyiv knew it. Why did it do this? Why has it thus far not provided the recordings of its military air dispatchers? That is impunity. Did they punish anyone in Ukraine for that?
Finally, the tragedy concerning Malaysia Airlines Flight MH-17 is a terrible event — not only for the citizens who died in that castrophe and the countries that they represented, but also for the diplomats who now are forced to deal with it. It is also a trial for the concerned politicians, experts and specialists who continue to work on this issue together. We need to walk hand-in-hand down on this road. Unfortunately, today’s meeting is most unlikely to promote joint movement towards the final objective, that is, to shed light on all of the circumstances surrounding this tragedy and to bring those responsible for it to justice. Russia is ready to resume this work at expert, diplomatic and any other levels. Let us therefore move forward from tomorrow- on in this effort.
The President: There are no more names inscribed on the list of speakers.
The meeting rose at 5.10 p.m.
Failled Resolution
Australia, Belgium, Canada, France, Germany, Ireland, Israel, Italy, Lithuania, Malaysia, Netherlands, New Zealand, Philippines, Romania, Spain, Ukraine, United Kingdom of Great Britain and Northern Ireland and United States of America: draft resolution
The Security Council,
Reaffirming its resolution 2166 (2014) of 21 July 2014 on the downing of Malaysia Airlines flight MH 17 on 17 July 2014 in Donetsk Oblast, Ukraine concerning the tragic loss of 298 lives, in which it demanded that those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability,
Recalling its resolution 2202 (2015) of 17 February 2015, which reaffirmed resolution 2166,
Noting the Preliminary Report into the cause of the crash by the Dutch Safety Board entrusted with the investigation in accordance with Annex 13 of the Convention on International Civil Aviation, issued on 9 September 2014, which identified that the aircraft was destroyed by a large number of high energy objects that penetrated the aircraft from the outside, recalling the briefing of the Council on 19 September 2014 and noting also the resolution on MH17 adopted by the Council of the International Civil Aviation Organisation on 28 October 2014,
Reaffirming the rules of international law that prohibit acts of violence that pose a threat to the safety of international civil aviation and in this regard deploring all other acts of violence against civilian aircraft,
Noting also the letters addressed to this Council by the Government of the Netherlands dated 16 December 2014 (S/2014/903) and 20 July 2015 (S/2015/551), respectively announcing the creation of a Joint Investigation Team to coordinate the international criminal investigation, with the aim of bringing the perpetrators to justice, and providing an update in relation to the status of that investigation, as well as the recovery and repatriation mission and the international technical investigation into the cause of the crash,
Deeply concerned by all acts of violence that pose a threat to the safety of civil aviation,
Determining that this violent act and its implications for the safety of civil aviation constitute a threat to international peace and security,
Determined to deter future attacks on civil aircraft and to take effective measures to bring to justice the persons who are responsible for this incident,
Believing that the establishment of an international tribunal and the prosecution of persons responsible for this incident will contribute to the safety of civil aviation and to maintenance of international peace and security,
Convinced that in the particular circumstances of this incident, the establishment of an international tribunal would be an effective guarantee for an independent and impartial accountability process in accordance with international standards,
Referring to the letter from the Governments of Australia, Belgium, Malaysia, The Netherlands and Ukraine dated 10 July 2015 (S/2015/528), and acknowledging their commitment to ensuring the effective functioning of an international tribunal, which will build upon the work of the Joint Investigation Team,
Acting under Chapter VII of the Charter of the United Nations,
1. Reiterates its deepest sympathies and condolences to the families of the victims of this incident and to the people and governments of the victims’ countries of origins;
2. Demands that all States and other actors refrain from acts of violence directed against civilian aircraft;
3. Calls upon all States and actors in the region to accord full cooperation in the conduct of the international investigation of this incident as required by Resolution 2166 (2014);
4. Requests the States working together in the Joint Investigation Team to continue to keep the Council fully and regularly informed of the progress of its investigation as appropriate and without prejudice to the confidentiality of the criminal investigation;
5. Urges the earliest possible finalization of the international technical investigation into the cause of the crash and the criminal investigation, without prejudice to the quality of those investigations;
6. Decides to establish an international tribunal for the sole purpose of prosecuting persons responsible for crimes connected with the downing of Malaysia Airlines flight MH17 on 17 July 2014 in Donetsk Oblast, Ukraine, and to this end adopts the Statute of the International Criminal Tribunal for Malaysia Airlines Flight MH17 annexed hereto;
7. Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal, and that consequently, all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued in accordance with the Statute of the International Tribunal, and requests States to keep the Secretary-General informed of such measures;
8. Decides that the International Tribunal shall be funded through voluntary contributions and encourages States and intergovernmental and non-governmental organizations to contribute funds, equipment and services to the International Tribunal, including the offer of expert personnel;
9. Decides that the determination of the seat of the International Tribunal is subject to the conclusion of appropriate arrangements between the United Nations and the Netherlands acceptable to the Council, and that the International Tribunal may sit elsewhere when it considers it necessary for the efficient exercise of its functions;
10. Decides also that the work of the International Tribunal shall be carried out without prejudice to the existing right of the families of victims to seek, through appropriate means, compensation;
11. Requests the Secretary-General to implement this resolution urgently, and in particular, to make all practical arrangements, when appropriate in coordination with the Governments of Australia, Belgium, Malaysia, The Netherlands and Ukraine, for the effective functioning of the International Tribunal at the earliest time and to report to the Council periodically on the implementation of this resolution;
12. Decides to remain actively seized of the matter.
Annex
Statute of the International Criminal Tribunal for Malaysia Airlines Flight MH17 (ICTMH17)
Having been established by the Security Council acting under Chapter VII of the Charter of the United Nations, the International Criminal Tribunal for Malaysia Airlines Flight MH17 (hereinafter referred to as “the Tribunal”), shall function and exercise its jurisdiction in accordance with the provisions of the present Statute.
Section I
Jurisdiction of the Tribunal
Article 1
Crimes within the jurisdiction of the Tribunal
1. The Tribunal shall have jurisdiction over persons responsible for crimes connected with the downing of Malaysia Airlines flight MH17 on 17 July 2014.
2. Subject to paragraph 1, the Tribunal has jurisdiction in accordance with this Statute with respect to the following crimes:
(a) War crimes, as defined in article 2;
(b) Crimes against the safety of civil aviation, as defined in article 3; and
(c) Crimes under the Criminal Code of Ukraine, as defined in article 4.
Article 2
War crimes
For the purpose of this Statute, war crimes means:
(a) The following grave breach of the Geneva Conventions of 12 August 1949, namely, wilful killing when committed against a person protected under the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War.
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.
(c) In the case of an armed conflict, not of an international character, serious violations of Article 3 common to the Geneva Conventions of 12 August 1949, namely, violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture committed against persons taking no active part in armed hostilities.
(d) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.
Article 3
Crimes against the safety of civil aviation
For the purpose of this Statute, crimes against the safety of civil aviation means destroying, damaging or endangering the safety of aircraft as defined in section 9 of the Aviation Offences Act 1984 of Malaysia.
Article 4
Crimes under the Criminal Code of Ukraine
For the purpose of this Statute, crimes under the Criminal Code of Ukraine means:
(a) Murder as defined in Article 115;
(b) Negligent homicide as defined in Article 119;
(c) Wilful destruction of, or damage to, property as defined in Article 194;
(d) Smuggling as defined in Article 201;
(e) Crimes against public safety as defined in Articles 258 and 258-3 to 258-5;
(f) Unlawful handling of weapons, ammunition or explosives as defined in Article 263;
(g) Concealment of a criminal offense as defined in Article 396;
(h) Trespass against life of a foreign state representative as defined in Article 443.
Section II
Provisions applicable to all Crimes
Article 5
Personal jurisdiction
The Tribunal shall have jurisdiction over natural persons pursuant to the provisions of the present Statute.
Article 6
Exclusion of jurisdiction over persons under eighteen
The Tribunal shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.
Article 7
Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Tribunal from exercising its jurisdiction over such a person.
Article 8
Statutes of limitation
The crimes defined in article 2 shall not be subject to any statute of limitation. Where a statute of limitation applies under national law, the statute of limitation for crimes defined in articles 3 and 4 is extended by 15 years.
Article 9
Individual criminal responsibility
A person who commits a crime within the jurisdiction of the Tribunal shall be individually responsible and liable for punishment in accordance with this Statute.
Article 10
Concurrent jurisdiction
1. The Tribunal and national courts shall have concurrent jurisdiction over persons responsible for crimes connected with the downing of Malaysia Airlines flight MH17 on 17 July 2014.
2. The Tribunal shall have primacy over national courts. At any stage of proceedings before a national court, the Tribunal may formally request that national court to defer to the competence of the Tribunal in accordance with this Statute and the Rules of Procedure and Evidence, if the interests of justice so require.
3. The Tribunal shall have the authority to refer a case to a national court where the interests of justice so require.
Article 11
Ne bis in idem
1. Except as provided in this Statute, no person shall be tried before the Tribunal with respect to conduct that formed the basis of crimes for which the person has been convicted or acquitted by the Tribunal.
2. No person shall be tried by another court for a crime referred to in article 1(2) for which that person has already been convicted or acquitted by the Tribunal.
3. No person who has been tried by another court for conduct referred to in article 1(2) shall be tried by the Tribunal with respect to the same conduct unless the proceedings in the other court:
a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Tribunal; or
b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
Article 12
Amnesty
An amnesty granted to any person for any crime falling within the jurisdiction of the Tribunal shall not be a bar to prosecution or punishment.
Section III
Provisions applicable to crimes defined in Article 2
Article 13
Individual criminal responsibility for crimes defined in article 2
A person shall be criminally responsible and liable for punishment for war crimes if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Tribunal; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;
(e) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.
Article 14
Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this Statute, in relation to war crimes:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Tribunal committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Tribunal committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
Article 15
Grounds for excluding criminal responsibility for war crimes
In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible for a war crime if, at the time of that person’s conduct:
(a) The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;
(b) The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Tribunal;
(c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph;
(d) The conduct which is alleged to constitute a crime within the jurisdiction of the Tribunal has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:
(i) Made by other persons; or
(ii) Constituted by other circumstances beyond that person’s control.
Article 16
Mistake of fact or mistake of law
1. A mistake of fact shall be a ground for excluding criminal responsibility for a war crime only if it negates the mental element required by the crime.
2. A mistake of law as to whether a particular type of conduct is a war crime shall not be a ground for excluding criminal responsibility.
Article 17
Superior orders and prescription of law
The fact that a war crime has been committed by a person pursuant to an order of a government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of the government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
Section IV
Provisions applicable to crimes defined in articles 3 and 4
Article 18
Provisions applicable to crimes defined in article 3
With respect to crimes defined in article 3, the Tribunal shall apply section 13 of the Aviation Offences Act 1984 of Malaysia, and Chapters IV (General Exceptions),
V (Abetment) and VA (Criminal Conspiracy) of the Penal Code of Malaysia and other provisions of the substantive criminal law of Malaysia considered relevant by the Tribunal in the context of the specific criminal proceedings, and compatible with this Statute and internationally recognised norms and standards.
Article 19
Provisions applicable to crimes defined in article 4
With respect to the crimes defined in article 4, the Tribunal shall apply Chapters III (Criminal offense, its types and stages), V (Guilt and its forms), VI (Complicity), and VIII (Circumstances excluding criminality of an action) of the Criminal Code of Ukraine and other provisions of the substantive criminal law of Ukraine considered relevant by the Tribunal in the context of the specific criminal proceedings, and compatible with the Statute and internationally recognised norms and standards.
Section V
Organization of the Tribunal
Article 20
Organs of the Tribunal
The Tribunal shall consist of the following organs:
(a) The Chambers, comprising a Pre-Trial Judge, a Trial Chamber and an Appeals Chamber;
(b) The Prosecutor;
(c) The Registry.
Article 21
Composition of the Chambers
1. The Chambers shall be composed as follows:
(a) One Pre-Trial Judge;
(b) A Trial Chamber composed of three (3) judges;
(c) An Appeals Chamber composed of five (5) judges;
(d) Two (2) alternate judges.
2. The judges of the Trial Chamber and the judges of the Appeals Chamber, respectively, shall elect a presiding judge who shall conduct the proceedings in the Chamber to which he or she was elected.
3. The presiding judge of the Appeals Chamber shall be President of the Tribunal.
4. The President of the Tribunal may, in the interests of justice, assign an alternate judge to replace a judge, if that judge is unable to continue sitting.
5. A judge shall serve only in the Chamber to which he or she was assigned.
Article 22
Qualifications of judges
1. The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices. They shall be independent in the performance of their functions and shall not accept or seek instructions from any government or any other source.
2. Every nominee for the position of judge of the Tribunal shall have established competence in criminal law and procedure, taking into account the need for the Tribunal to apply international law as well as the domestic laws of Malaysia and Ukraine, and shall preferably have relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings.
3. Every nominee for the position of judge of the Tribunal shall have an excellent knowledge of and be fluent in the working language of the Tribunal.
Article 23
Appointment of judges
1. At the invitation of the Secretary-General of the United Nations, States may nominate candidates for the position of judge of the Tribunal.
2. The Secretary-General shall appoint judges, as and when the functioning of the Tribunal so requires. Appointments are made upon the recommendation of a selection panel he or she has established after indicating his or her intentions to the Security Council. The selection panel shall be composed of two judges, currently sitting on or retired from an international criminal tribunal, and a representative of the Secretary-General.
3. No two judges of the same nationality shall be appointed.
4. The judges shall be appointed for a five-year period and may be eligible for reappointment for a further period to be determined by the Secretary-General.
Article 24
Powers of the President of the Tribunal
1. The President of the Tribunal shall be responsible for ensuring the efficiency and effectiveness of the Tribunal.
2. In addition to his or her judicial functions, the President of the Tribunal shall represent the Tribunal.
3. The President of the Tribunal shall submit an annual report of the Tribunal to the Security Council and to the General Assembly.
Article 25
The Prosecutor
1. The Prosecutor shall be responsible for investigations, taking into account the investigation by the Joint Investigation Team referred to in letter S/2014/903 dated 16 December 2014 (Joint Investigation Team), and for the prosecution of persons responsible for the crimes falling within the jurisdiction of the Tribunal.
2. The Prosecutor shall act independently as a separate organ of the Tribunal. He or she shall not seek or receive instructions from any government or from any other source.
3. The Office of the Prosecutor shall be composed of a Prosecutor and such other qualified staff as may be required. With regard to the composition of the staff the Prosecutor shall take into account the need to liaise effectively with the next of kin of victims.
4. At the invitation of the Secretary-General, States may nominate candidates for the position of Prosecutor of the Tribunal. The Prosecutor shall be appointed by the Secretary-General.
5. The Prosecutor shall be of high moral character and possess the highest level of competence and experience in the conduct of investigations and prosecutions of criminal cases. The Prosecutor shall serve for a five-year term and be eligible for reappointment. The terms and conditions of service of the Prosecutor shall be those of an Under-Secretary-General of the United Nations.
6. The staff of the Office of the Prosecutor shall be appointed by the Secretary-General on the recommendation of the Prosecutor.
Article 26
The Registry
1. The Registry shall be responsible for the administration and servicing of the Tribunal.
2. The Registry shall consist of a Registrar and such other staff as may be required.
3. The Registrar shall be appointed by the Secretary-General after consultation with the President of the Tribunal. He or she shall serve for a five-year term and be eligible for reappointment. The terms and conditions of service of the Registrar shall be those of an Assistant Secretary-General of the United Nations.
4. The staff of the Registry shall be appointed by the Secretary-General on the recommendation of the Registrar.
5. The Registry shall include within it a Defence Office, which will administer, on behalf of the Registrar, a list of Defence Counsel eligible to practice before the Tribunal, as well as a system of legal aid for representation of indigent or partially indigent accused before the Tribunal.
6. The Registry shall include within it a Witness Protection and Support Office, which shall implement, in consultation where appropriate with the Prosecutor’s Office or Defence Counsel, court ordered or otherwise necessary protective measures and security arrangements, counselling and other appropriate assistance for witnesses and others who are at risk on account of testimony given by witnesses.
Article 27
Working language
The working language of the Tribunal shall be English.
Article 28
Rules of Procedure and Evidence
The judges of the Tribunal shall, as soon as practicable after taking office, adopt rules of procedure and evidence for the conduct of the trials and appeals, the admission of evidence, the protection of witnesses and other appropriate matters, and may amend them as appropriate.
Section VI
Investigation and prosecution
Article 29
Joint Investigation Team
The Prosecutor shall receive and consider evidence collected by the Joint Investigation Team.
Article 30
Investigation and preparation of indictment
1. The Prosecutor shall initiate investigations proprio motu or on the basis of information obtained from any source, particularly from governments, United Nations organs, intergovernmental and non-governmental organizations, as necessary and appropriate, taking into account the investigation conducted by the Joint Investigation Team. The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed.
2. The Prosecutor may:
(a) Collect and examine evidence;
(b) Request the presence of and question persons being investigated and witnesses;
(c) Seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence or mandate;
(d) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and
(e) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.
3. Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under this Statute. The indictment shall be transmitted to the Pre-Trial Judge.
Article 31
Review of the indictment
1. The Pre-Trial Judge to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he or she shall confirm the indictment. If not so satisfied, the indictment shall be dismissed.
2. Upon confirmation of an indictment, the Pre-Trial Judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial.
Section VII
Rights of the accused and other persons
Article 32
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Tribunal and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made by the Tribunal, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Tribunal;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person’s choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
Article 33
Rights of the accused
1. Everyone shall be presumed innocent until proven guilty before the Tribunal. The onus is on the Prosecutor to prove the guilt of the accused. In order to convict the accused, the Tribunal must be convinced of the guilt of the accused beyond reasonable doubt.
2. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence;
(c) To be tried without undue delay;
(d) Without prejudice to article 38, to be present at the trial, to conduct the defence in person or through legal assistance of the accused’s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Tribunal in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Tribunal are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
3. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Tribunal shall decide.
Article 34
Protection of witnesses
1. The Tribunal shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of witnesses. In so doing, the Tribunal shall have regard to all relevant factors, including age, gender and health, and the nature of the crime. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
2. As an exception to the principle of public hearings provided for in article 36(4) the Chambers of the Tribunal may, to protect witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means.
3. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
Article 35
Confidential information
A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.
Section VIII
Conduct of proceedings
Article 36
Commencement and conduct of trial proceedings
1. The Trial Chamber shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused and due regard for the protection of witnesses.
2. A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the Tribunal, be taken into custody, immediately informed of the charges against him and transferred to the Tribunal.
3. The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Trial Chamber shall then set the date for trial.
4. The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with article 34(2) and its Rules of Procedure and Evidence.
Article 37
Powers of the Chambers
1. The Tribunal shall confine the trial, appellate and review proceedings strictly to an expeditious hearing of the issues raised by the charges, or the grounds for appeal or review, respectively. It shall take strict measures to prevent any action that may cause unreasonable delay.
2. A Chamber may admit any relevant evidence that it deems to have probative value and exclude such evidence if its probative value is substantially outweighed by the need to ensure a fair trial.
3. A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.
4. A Chamber shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and Evidence.
5. A Chamber shall not require proof of facts of common knowledge but may take judicial notice of them.
6. Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if:
(a) The violation casts substantial doubt on the reliability of the evidence; or
(b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.
7. When deciding on the relevance or admissibility of evidence collected by a State, the Chamber shall not rule on the application of the State’s national law.
8. In cases not otherwise provided for in the Rules of Procedure and Evidence, a Chamber shall apply rules of evidence that will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.
Article 38
Trials in absentia
1. The Tribunal may conduct trial proceedings in the absence of the accused, if he or she:
(a) Has not been handed over to the Tribunal by the State authorities concerned; or
(b) Has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his or her appearance before the Tribunal and to inform him or her of the charges confirmed by the Tribunal.
2. When hearings are conducted in the absence of the accused, the Tribunal shall ensure that:
(a) The accused has been notified, or served with the indictment, or notice has otherwise been given of the indictment through publication in the media or communication to the State of residence or nationality;
(b) The accused has designated a defence counsel of his or her own choosing, to be remunerated either by the accused or, if the accused is proved to be indigent, by the Tribunal;
(c) Whenever the accused refuses or fails to appoint a defence counsel, such counsel has been assigned by the Tribunal with a view to ensuring full representation of the interests and rights of the accused.
3. In case of conviction in absentia, the accused shall have the right to be retried in his or her presence before the Tribunal, unless he or she accepts the judgment or had waived expressly and unequivocally his or her right to be present at the trial.
Article 39
Plea agreement
1. The Prosecutor and the Defence may agree that, upon the accused entering a plea of guilty to the indictment or to one or more counts of the indictment, the Prosecutor shall do one or more of the following before the Trial Chamber:
(a) apply to amend the indictment accordingly;
(b) submit that a specific sentence or sentencing range is appropriate;
(c) not oppose a request by the accused for a particular sentence or sentencing range.
2. The Trial Chamber shall not be bound by any agreement specified in paragraph 1 but shall duly consider it, taking into account the importance of an efficient and expeditious criminal procedure.
Article 40
Offences against the administration of justice
1. The Tribunal shall have jurisdiction over the following offences against its administration of justice when committed intentionally:
(a) Giving false testimony when under an obligation to tell the truth;
(b) Presenting evidence that the party knows is false or forged;
(c) Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence;
(d) Impeding, intimidating or corruptly influencing an official of the Tribunal for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties;
(e) Retaliating against an official of the Tribunal on account of duties performed by that or another official;
(f) Soliciting or accepting a bribe as an official of the Tribunal in connection with his or her official duties.
2. The Tribunal shall have jurisdiction over offences against the administration of justice committed by natural persons and legal persons.
3. The principles and procedures governing the Tribunal’s exercise of jurisdiction over offences under this article shall be those provided for in the Rules of Procedure and Evidence.
4. In the event of conviction, the Tribunal may impose a term of imprisonment not exceeding five years, or a fine in accordance with the Rules of Procedure and Evidence, or both.
Article 41
Judgment
1. The Trial Chamber’s judgment shall be based on its evaluation of the evidence and the entire proceedings. The judgment shall not exceed the facts and circumstances described in the charges and any amendments to the charges. The Tribunal may base its judgment only on evidence submitted and discussed before it at the trial.
2. The judges shall attempt to achieve unanimity in their judgment, failing which the decision shall be taken by a majority of the judges.
3. The deliberations of the Trial Chamber shall remain secret.
4. The judgment shall be in writing and shall contain a full and reasoned statement of the Trial Chamber’s findings on the evidence and conclusions. The Trial Chamber shall issue one judgment. When there is no unanimity, the Trial Chamber’s judgment shall contain the views of the majority and the minority. The judgment or a summary thereof shall be delivered in open court.
Article 42
Participation of the next of kin of victims
The Tribunal shall permit the next of kin of victims to present their views and concerns at the sentencing stage of the proceedings, in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial, and in accordance with the Rules of Procedure and Evidence.
Article 43
Penalties
1. The Trial Chamber shall impose upon a convicted person imprisonment for a specified number of years which may not exceed a maximum of 30 years or for life when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. In determining the terms of imprisonment for the crimes provided for in this Statute, the Trial Chamber shall have recourse to international practice regarding prison sentences and, where appropriate, to the practice of the national courts of Ukraine or Malaysia.
2. In imposing sentence, the Trial Chamber should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.
3. In imposing a sentence of imprisonment, the Tribunal shall deduct the time, if any, previously spent in detention in accordance with an order of the Tribunal. The Tribunal may deduct any time otherwise spent in detention in connection with conduct underlying the crime.
4. When a person has been convicted of more than one crime, the Tribunal shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with paragraph 1.
Article 44
Compensation to next of kin of victims
1. The Tribunal may make an order directly against a convicted person specifying compensation to next of kin of victims. In its order the Tribunal shall determine the scope and extent of any damage, loss and injury in respect of next of kin of victims and shall state the principles on which it is acting, taking into account any other compensation available.
2. Nothing in this article shall be interpreted as prejudicing the rights of next of kin of victims under national or international law.
Article 45
Appellate proceedings
1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chamber or from the Prosecutor on the following grounds:
(a) an error on a question of law invalidating the decision; or
(b) an error of fact which has occasioned a miscarriage of justice.
2. A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence.
3. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chamber.
4. Article 41 applies mutatis mutandis, as appropriate.
Article 46
Review proceedings
1. Where a new fact has been discovered that was not known at the time of the proceedings before the Trial Chamber or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the Tribunal an application for review of the judgment.
2. An application for review shall be submitted to the Appeals Chamber. The Appeals Chamber may reject the application if it considers it to be unfounded. If it determines that the application is meritorious, it may, as appropriate:
(a) Reconvene the Trial Chamber;
(b) Retain jurisdiction over the matter.
3. Article 41 applies mutatis mutandis, as appropriate.
Article 47
Enforcement of sentences
Imprisonment shall be served in a State designated by the Tribunal from a list of States that have indicated to the Security Council their willingness to accept convicted persons. Such imprisonment shall be in accordance with the applicable law of the State concerned, and shall be consistent with widely accepted international standards, subject to the supervision of the Tribunal.
Article 48
Pardon or commutation of sentences
If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the Tribunal accordingly. The President of the Tribunal, in consultation with the judges, shall decide the matter on the basis of the interests of justice and the general principles of law.
Article 49
Transfer of convicted persons upon completion of sentence
Following the completion of the sentence, a person who is not a national of the State of enforcement may, in accordance with the law of the State of enforcement, be transferred to a State that is obliged to receive him or her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be transferred to that State, unless the State of enforcement authorizes the person to remain in its territory.
Section IX
Co-operation and judicial assistance
Article 50
Co-operation and judicial assistance
1. States shall co-operate with the Tribunal in the investigation and prosecution of persons accused of having committed crimes within the jurisdiction of the Tribunal.
2. States shall comply without undue delay with any request for assistance or an order issued by the Tribunal, including, but not limited to:
(a) the identification and location of persons;
(b) the taking of testimony and the production of evidence;
(c) the service of documents;
(d) the arrest or detention of persons;
(e) the surrender or the transfer of the accused to the Tribunal.
Article 51
Protection of national security information
1. This article applies in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests. This article shall also apply when a person who has been requested to give information or evidence has refused to do so or has referred the matter to the State on the ground that disclosure would prejudice the national security interests of a State and the State concerned confirms that it is of the opinion that disclosure would prejudice its national security interests.
2. Nothing in this article shall prejudice the requirements of confidentiality applicable under other articles of this Statute.
3. If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue in accordance with this article.
4. If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Judge or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include:
(a) Modification or clarification of the request;
(b) A determination by the Tribunal regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State;
(c) Obtaining the information or evidence from a different source or in a different form; or
(d) Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules of Procedure and Evidence.
5. Once all reasonable steps have been taken to resolve the matter through cooperative means, and if the State considers that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests, it shall so notify the Prosecutor or the Tribunal of the specific reasons for its decision, unless a specific description of the reasons would itself necessarily result in such prejudice to the State’s national security interests.
6. Thereafter, if the Tribunal determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused and the State denies the request for assistance in whole or in part, the Tribunal may make such inference in the trial of the accused as to the existence or non existence of a fact, as may be appropriate in the circumstances.
Article 52
Third-party information or documents
If a State is requested by the Tribunal to provide a document or information in its custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization or international organization, the State shall seek the consent of the originator to disclose that document or information. The State shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Tribunal, without prejudice to the provisions of article 51.
Section X
Privileges and immunities, seat and expenses
Article 53
Privileges and immunities of the Tribunal
1. The Convention on the Privileges and Immunities of the United Nations of
13 February 1946 shall apply to the Tribunal, the judges, the Prosecutor and his or her staff, and the Registrar and his or her staff.
2. The judges, the Prosecutor and the Registrar shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.
3. The staff of the Prosecutor and of the Registrar shall enjoy the privileges and immunities accorded to officials of the United Nations under articles V and VII of the Convention referred to in paragraph 1.
4. Other persons, including the accused, required at the seat of the Tribunal shall be accorded such treatment as is necessary for the proper functioning of the Tribunal.
Article 54
Seat of the Tribunal
The Tribunal shall have its seat in the Netherlands.
Article 55
Expenses of the Tribunal
The expenses of the Tribunal shall be borne by voluntary contributions from States.
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