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Russia rejects calls for UN tribunal to prosecute MH17 suspectsThe Guardian

A senior Russian official has rejected calls for the establishment of a UN tribunal to try those responsible for the downing of Malaysia Airlines flight MH17 in eastern Ukraine last year.
Deputy foreign minister Gennady Gatilov was quoted by Russian news agencies as saying: “We are against it. We think it is not timely and counterproductive.”

From the logical standpoint, downing the MH-17 airplane is an atrocity.
It has been committed against the civilians, hence this war crime is also an act of international terrorism.
Hence, those who are responsible for this act should be found and prosecuted according to the international laws of counter-terrorism.
Establishing an international tribunal under the auspices of the United Nations seems to be the most effective way to identify and prosecute those who are responsible.

It is also known that the Dutch commission of investigators has provided UN authorities with discovered evidences regarding, at minimum:

the prosecutors have narrowed their focus to the theory that the plane was shot down by a Russian-built BUK surface-to-air missile fired from an area held by pro-Russian forces.The Guardian

  1. The weaponry which has been used to shoot down the Boeing MH-17;
  2. Where the weaponry has been built;
  3. The area where the launch has occurred;
  4. The affinity of the suspects;

The official news don't say that directly, but speculations are that the report also contains evidences regarding the very crew who controlled the SAM launcher at the time of the launch and who delivered the vehicle to and from the launch point (see, for example, investigations by InformNapalm and Bellingcat). This subsequently leads towards the evidences against the commandment who gave the order for the missile launch.

It is also known that the Russian propaganda has about 7 distinct versions, each of which claims that Ukrainian army (e.g. neither the Russian occupation army nor the Russian-backed terrorists) has downed the airplane.

The question is: If the Russians plead not guilty, what are the official reasons (besides the obvious one) why does the Russia considers the Tribunal "not timely and counterproductive"? Is there another solution the Russia offers?

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    Why one would need establishing an international tribunal if national judiciary is enough? – Anixx Jun 27 '15 at 4:02
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    @Anixx did you mean a notorious Basmanny District Court of Moscow? I doubt the victims have filed any lawsuits to that "court". – bytebuster for Long Usernames Jun 27 '15 at 4:28
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    I think you already answered the question: The Russian propaganda wants to make Ukrainian forces responsible. An official war-crime tribunal which comes to a different conclusion would undermine that story. – Philipp Jun 28 '15 at 10:33
  • @Philipp this is correct, but the suspects can't be prosecuted without a decision of some court. Anyone's demonstrative unwillingness to find the truth may be a strong evidence once the tribunal occurs (sooner or later). Hence the question: I can't see any logic behind their actions. – bytebuster for Long Usernames Jun 28 '15 at 12:50
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    @bytebuster the Russian government doesn't demonstrate unwillingness. They say that it is not timely and counterproductive which means that they are not against it, but they are against doing it right now. Also, the defendant in that tribunal would not be the Russian government. It would be the soldiers accused of performing the warcrime, and they would be judged solely on their own actions and not those of their government. – Philipp Jun 28 '15 at 12:53
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I'm going to try to give you the answer I think you're looking for, because it's the answer I've been looking for too- the reasoning Russia uses behind it's criticism of the investigation into the destruction of flight MH17. Generally they have arguments which are fully fleshed-out, although nevertheless transparent, for the benefit of their people.

Russian Media

I'll start with the previous coverage of the incident. I think it's important because Russian statements, as said above, are primarily for their own people. Manipulation of the media in Russia means that they can get the people to support whatever action the government wants to take. The official statements are for them, to reinforce what they're being told on the news.

I've found that the Wikipedia article on MH17 has a lot of useful information. For instance, it says Russian media, in the aftermath of the incident, blamed the Ukrainian government.

The Russian government-funded outlet RT initially said that the plane may have been shot down by Ukraine in a failed attempt to assassinate Vladimir Putin, in a plot which was organised by Ukraine's "Western backers". Other theories propagated by Russian media include: that the Ukrainians shot down the plane in a botched attempt at mass murder of Russian citizens or by mistake (reported twice, in July and in December); that Ukrainian air traffic controllers purposefully redirected the flight to fly over the war zone; and that the Ukrainian government organised the attack on the plane to bring infamy upon the pro-Russian rebels.

Given everything they're hearing, it must be easy to imagine that Ukraine was responsible and is covering it up, backed by the West which wants to blame Russia.

It's worth noting that there have been those who have railed against this: for example,

Sara Firth, a correspondent with RT, for which she had worked over the previous five years, resigned in protest at the channel's coverage which she described as "shockingly obvious misinformation". RT issued a statement after Firth went public with reasons for her resignation, saying "we were not surprised by Sara Firth's decision to leave RT after five years as a Moscow and London correspondent, as she has recently informed us that she was likely to take an offer from another firm".

The Investigation

The investigation has been led by the Netherlands, who lost the most from the crash. Most have been supportive, with U.N. political affairs chief Jeffrey Feltman saying:

The United Nations is confident that the Dutch-led international investigation has been conducted in accordance with Annex 13 to the Convention on International Civil Aviation Aircraft Accident and Incident Investigation

However, Russia has been critical of it the whole way through. Vitali Churkin, the Russian Permanent Ambassador to the UN, said the following:

As for criminal prosecution, it is carried out by members of the GIT in a closed fashion. It was said that an agreement was reached between five sides for not disseminating information, in this case what are the grounds to be assured of the impartiality of such an investigation? Can this investigation resist the aggressive propaganda backdrop in the media? Can it resist pressure of clear political origin, when the causes of the disaster and those that are guilty of this disaster are named in advance, when such statements are made by a number of leaders of certain states which form part of the GIT.

His reasoning, which may be valid, is that many have already made up their minds about Russia's culpability. Additionally, because they're keeping a lot of information to themselves, it's difficult to ensure impartiality. On top of all that there is a clear political interest in blaming the pro-Russian rebels and, ultimately, Russia.

There's another element to this as well: the appropriateness of the UNSC's involvement with a criminal investigation. The UNSC is chartered to ensure the security of the UN. Russia contend that the resolution, creating a tribunal to prosecute the perpetrators, is outside of that purview.

The Kremlin has also issued a statement saying:

The Russian president confirmed the unchanging position that it is inexpedient to create such a judicial body

So apparently there are timing issues too, possibly because the investigation hasn't finished, so they're creating a tribunal to prosecute before there's anyone to prosecute. I think they're afraid that action will be taken against them regardless of what happens with the investigation, which may be a genuine concern, although not unjustly.

Beyond anything else, if the whole world claims Russia provided the weapon, their own people could start to listen. Putin, and the entire Russian government, is dependent on their people not listening to what the West says about them, only paying attention to their own media. If Russia is found to be at least partially responsible, some will realise they've been lied to, which is enough doubt to cause significant issues. So prosecution like this could cause problems internally, and they'd lose any remaining international credibility.

References:

Reuters article on Russian criticism of the investigation

PressTV article on the veto

Churkin's statement to the UNSC

Al Jazeera article on the veto

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Russia has been playing a highly effective, disingenuous game of hide-and-seek in Ukraine. Despite clear evidence to having initiated and stoked the conflict, Russian soldiers ("little green men") have been operating in Ukraine with uniforms scrubbed of any identifying marks; Russian "humanitarian" trucks, covered in white paint and not wanted by Ukraine, crossed the border bypassing all Ukrainian sovereign rights; the Russian government does not recognized its soldiers killed in Ukraine and refers to them as "volunteers"; Russian soldiers' families are left without answers about their men's wheareabouts. All the while, Putin has been denying his country's involvement and blaming the war on a local, grassroots pro-Russian movement, and officially calling for peace. MH-17 was downed by "pro-Russian separatists" (there are problems with that designation). To bring this to an international tribunal would be to expose the things mentioned above, and many others.

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    The above is very correct as it explains the real reasons. However, it does not actually answer the question: from the Russian/terrorists standpoint, what is the formal argument why they reject the call for tribunal? If it is "not timely", as they say, under what condition they would consider it to be "timely"? – bytebuster for Long Usernames Jun 29 '15 at 1:01
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    @Philipp, sorry, I can't agree. Every court most certainly reviews (and takes in account) the statements. See contempt of court, for example. – bytebuster for Long Usernames Jun 29 '15 at 8:25
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    By the way: The importance of the MH-17 incident is really blown out of propotion by the propaganda of both sides. It was a completely pointless waste of life nobody benefited from and nobody could have wanted to happen. No matter who pressed the button, it's not terrorism, it's collateral damage which unfortunately happens when nervous soldiers get thrown in a war and press the trigger when they should rather not. – Philipp Jun 29 '15 at 9:09
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    @Philipp, what I think is offtopic at Politics.SE. – bytebuster for Long Usernames Jun 29 '15 at 9:45
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    This is a heavily biased answer... Not very objective. The European Union also stoked the conflict in Maidan, ousting a democratically elected government. – Joze Jul 10 '15 at 9:27
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My impression is that the conspiracy theories in the Russian media about Ukraine being responsible that we've heard were a big smokescreen to hide the real Russian argument against prosecution. I think the following quote from the question is at heart of the real dispute that the Russians are hiding for the moment:

From the logical standpoint, downing the MH-17 airplane is an atrocity. It has been committed against the civilians, hence this war crime is also an act of international terrorism. Hence, those who are responsible for this act should be found and prosecuted according to the international laws of counter-terrorism.

I think this is what the Russians would argue against when it would come to a trial, but it is politically a weak argument to present at the moment. So, the main defense of the Russians I think would be that shooting down a civilian aircraft by mistake is in itself not a war crime. The US navy accidentally shot down an Iranian plane, no one except the Iranians considered that a war crime at the time. It was an unfortunate accident, perhaps one can argue that the involved people did not stick to proper procedures, but that doesn't make it a war crime regardless of the number of civilian casualties.

For an incident to be a war crime, certain legal criteria have to be met, and the number of civilian casualties isn't always going to be relevant. But as I wrote above the Russian's would probably want to postpone putting forward these sorts of arguments, which is one of the reasons why they would want to oppose the tribunal for the moment.

In addition to this, they may feel that a tribunal would rule on the basis of "being involved = guilty", which may cause them to have little faith in the objectivity of any tribunal. It should be the case that anyone involved in the shooting down could in principle be acquitted of war crimes if they can show that there is no proof that they didn't deliberately shoot at a non-military target and that any military target they aimed at would indeed be a reasonable target to shoot at given the nature of the ongoing military conflict.

Now, previous experience with the Yugoslavia Tribunal shows that when both sides of a conflict are subject to the same tribunal, you get a more just outcome. When that tribunal started its work, some Serbian officers got convicted on very serious issues, but on some parts they were later acquitted on appeal. This mostly involved the issue of command responsibility that the tribunal had interpreted too broadly. But these appeals were only successful after some Bosnian officers were acquitted on similar charges, because in these cases it was clear that it was unreasonable to apply the command responsibility standard in that very broad way, otherwise the Bosnians wouldn't have been able to defend themselves at all. The reason why these Serbian officers initially got convicted on that same basis was likely due to the attitude that the Serbs shouldn't have been fighting at all, but that's not a proper legal argument.

So, only when both sides faced the same rules of the same tribunal was it possible to eliminate any political judgment about the conflict from the legal judgment. In the case of MH17, the proposed tribunal will only look at MH17, it won't consider any other war crimes, so it will be vulnerable to making the same mistakes as the Yugoslavia Tribunal initially made.

The Russians may then just oppose the tribunal, hope for a conviction in absentia in some other court, and then criticize such a conviction for being politically motivated. Without a UNSC resolution they are not obliged to extradite their citizens and after such a conviction they can put forward far stronger legal arguments. But at this moment "defending the guilty onces" isn't going to do much good for Russia's image.

But then we may still wonder why the Russians are telling outright lies. This perception that the Russians are behaving in an inappropriate way is an illusion caused by us not seeing that we also have the habit of telling lies when our own interests are at stake. E.g. the evidence for Saddam's WMD was extremely weak, the war was started to preempt the entire case form collapsing. Also the worry was that if Saddam was not taken out, the fact that the WMD case was weak would put the sanctions regime under pressure. The same sort of backward logic is leading to opposition among the Congress w.r.t. the deal with Iran.

So, the Russian behavior while bad, is not really out of line. It's just that they are not automatically going to accept any Western claims of authority on any matter, which causes friction. We being subject to our own propaganda makes us blind to our own misbehaviors.

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They accuse Russia of supplying the weaponry. This would be good fodder for the west, and they might even get away with prosecuting the Russian Federation for it. Also Russia wants everyone to think it was pro-ukrainskis that shot it down (I'm not say it either was or wasn't, but that certainly would be helpful to Russia). Why do you think they're refusing it?

Also (nothing anti-USA here, it's just I've been reading anti-USA books recently so they're the best example still fresh in my memory) the USA vetoes prosecuting Israel for atrocities (Also some things the UN has accused them of doing), so I think if you understand the USA's reasoning behind that—well, this probably isn't much different.

  • Welcome to Politics.SE. As I commented for another answer above, what you say is correct in terms of the real reasons. However, the original question was about the different things: formal argumentation of the Russian officials. Just likewise in any court, even if you are guilty, you still need some line of defense. Yet another thing: your answer contains only unreferenced claims. Generally, such answers are not welcome here, they often get downvoted and subsequently deleted. Every time you ask or answer here, please keep in mind to have good prrofilnks and references. – bytebuster for Long Usernames Aug 9 '15 at 4:24
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    You should remove the parts of you answer that are not an answer to the question that was asked. – Sam I am says Reinstate Monica Aug 11 '15 at 16:16

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