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Long odds for justice in Malaysia jet disaster

Thursday - 7/24/2014, 9:56am  ET

A piece of wreckage from the Malaysia Airlines jet downed over Ukraine. The piece is seen near Petropavlivka village, Donetsk region, eastern Ukraine Wednesday, July 23, 2014. The crash site, in territory held by the pro-Russian separatists accused by the Ukrainian government of shooting the plane down with a missile, remained unsecured five days after the disaster _ another source of frustration among foreign governments concerned about establishing the facts. (AP Photo/Dmitry Lovetsky)

JOHN HEILPRIN
Associated Press

GENEVA (AP) -- Anyone hoping to bring to justice whoever downed Malaysia Airlines Flight 17 must face sobering facts.

The wreckage scene is compromised, key evidence may have disappeared altogether and political complexities could block an international court from hearing the case.

If Russian nationals were involved in the disaster that claimed 298 lives, they could prove untouchable: The Russian constitution forbids extradition of its citizens.

And, as legal heir to the Soviet Union, Russia has never paid a ruble in compensation to families of the 269 people killed in the 1983 shoot-down of a Korean airliner by the Soviet Air Force.

What's more, as a permanent member of the U.N. Security Council, Russia has the right to veto any attempt by the United States or another member of that body to bring a case before the International Criminal Court. There are other avenues to get there, but they are fraught with problems.

The airliner's destruction over eastern Ukraine on July 17 might qualify as a war crime or a crime against humanity, but winning a guilty verdict would be difficult because it would require proving there was a systematic or widespread attack against civilians, experts said.

And if pro-Russian rebels in the self-styled "Donetsk People's Republic" were behind the plane's downing by a missile, as U.S. authorities suggest, they may be out of legal reach for the foreseeable future. They also still control the site where the Boeing 777 went down.

"I think the key decision to be made by the prosecution is actually whether there is sufficient basis to begin criminal investigation," said Goran Sluiter, professor of international law at Amsterdam University. "And a key factor would be how feasible it will be to collect the evidence."

Despite the long odds, many are hungry for justice.

"Malaysia Airlines was a clearly identified commercial jet," said Tony Tyler, CEO of the global airline industry's Geneva-based International Air Transport Association. "And it was shot down -- in complete violation of international laws, standards and conventions -- while broadcasting its identity and presence on an open and busy air corridor at an altitude that was deemed to be safe."

European Union foreign ministers unanimously demanded on Tuesday that those responsible be brought to justice, and that everyone cooperate with the investigation.

The Dutch national safety board has announced it will lead an international team of 24 investigators. The Dutch have already delivered the plane's voice and data recorders to British investigators, who plan to retrieve information on the flight's last moments and check for signs of any tampering.

U.S. officials in Washington have cited communications intercepts, satellite imagery and social media postings as evidence Russia created the "conditions" for the downing of the Malaysian Airlines plane by a missile. But one cautioned that there likely won't be a "Perry Mason moment" that clearly reveals who was to blame, like in the TV shows and stories featuring the fictional criminal defense attorney.

If there were direct evidence of Russian involvement, experts say it might be possible to bring the case before The Hague-based ICC, even over Russia's objections. Ukraine and Malaysia aren't members of the court, but could temporarily submit to its jurisdiction.

However, as long as the Netherlands or other countries pursue a national prosecution in the downing of the Ukraine jet, the ICC won't get involved, since it exists to hear cases as a last resort.

The lack of security at the two main wreckage sites -- and images of separatist rebels rifling through the debris in the days after the attack -- have stirred fears that vital evidence was contaminated or may have disappeared altogether.

Carsten Stahn, an international criminal law expert at Leiden University in the Netherlands, said the compromised evidence -- common to wartime situations -- shouldn't stop crime experts from being able to piece together what happened and taking it to court.

"One of the closest precedents is the Lockerbie attack," Stahn said, referring to the 1988 Libyan plot that brought down a Pan Am jumbo jet, killing 270. "That led to a Scottish trial in the Netherlands. This incident might lend itself to a similar formula."

Malaysia could also bring a civil claim against Russia in an international court if it could be shown that that country aided or abetted the attack. That could lead to a settlement and payment, as happened after Iran Air Flight 655 was shot down accidentally by a U.S. Navy guided missile cruiser in 1988.

Sluiter, the Amsterdam-based law professor, said even if evidence is missing, forensic experts can still determine a lot, such as the size and impact of the suspected missile, by sorting through debris. He also said that pursuing the case as a war crime would entitle it to the benefits of the Geneva Conventions, which oblige other countries to arrest or extradite suspects.

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