Justice at all cost for MH17

The Sunday Star

Legally Speaking by Roger Tan

Malaysia Airlines' special multi faith prayer service for the tragic and senseless loss of passengers and crew of MH17, at the Malaysia Airlines Academy in Kelana Jaya. - Filepic

States whose citizens perished in the tragedy can pursue the perpetrators in their domestic courts if their criminal laws have extra-territorial jurisdiction. 

SINCE Thursday, I have been thinking how horrible it must have been, the final moments of their lives, when they knew the plane was going down.

“Did they lock hands with their loved ones, did they hold their children close to their hearts? Did they look each other in the eye, one final time, in a wordless goodbye? We will never know.

“In the last couple of days we have received very disturbing reports, of bodies being moved about, being looted of their possessions.

“Just for one minute, I want to say that I am not addressing you as representatives of your countries, but as husbands and wives, fathers and mothers. Just imagine you first get the news that your husband has been killed, and within two or three days, you see images of some thug removing the wedding band from their hands. Just imagine that this could be your spouse.

“To my dying day, I will not understand that it took so long for rescue workers to be allowed to do their difficult jobs. For human remains to be used in a political game?”

Those were the sad words of the Dutch Foreign Minister, Frans Timmermans, when he delivered his heart-rending speech at the UN Security Council (UNSC) on July 21 on the downing of MH17. More than two thirds of MH17 victims were Dutch.

Almost at the same time, our Prime Minister Datuk Seri Najib Tun Razak managed to pull off a major diplomatic coup by quietly arriving at an agreement with the leader of the pro-Russian separatist group, Alexander Borodai, that finally broke the impasse and secured the release of the black boxes and remains of the victims of MH17.

“In recent days, there were times I wanted to give greater voice to the anger and grief that the Malaysian people feel. And that I feel. But sometimes, we must work quietly in the service of a better outcome,” said Najib.

In this sense, Malaysia’s foreign policy, which is based on non-alignment and neutrality, may have just paid off.

Be that as it may, Malaysia must still register our absolute outrage, in the strongest possible terms, over the shooting down of MH17. At the time of writing this, investigators still do not have unimpeded access to the crash site and remains of some of the victims are reportedly still on the site.

But as the Australian Foreign Minister Julie Bishop put it aptly: “We must have answers, we must have justice, we owe it to the victims and their families to determine what happened and who was responsible.” 

Also, the UNSC Resolution 2166 on MH17 has demanded that “those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability”.

But sadly, men’s greatest sin is always forgetting about tragedies and not learning from them.

On Sept 1, 1983, Korean Airlines Flight 007 was shot down by a Soviet fighter jet near Moneron Island, west of Sakhalin Island over the Sea of Japan. All 269 passengers and crew on board were killed. General Anatoly Kornukov, who was then commander of Dolinsk-Sokol Air Base, Sakhalin, gave the order to shoot down KAL007 without verifying that it was a civilian aircraft.

In 1998, Russia’s president, Boris Yeltsin, even made him chief of the Russian Air Force. The Ukrainian-born Kornukov remained unrepentant throughout. He died early this month. Russia had neither apologised nor made any compensation.

On July 3, 1988, US navy missile cruiser USS Vincennes shot down Iran Air Flight 655 in the Persian Gulf after mistaking it for an Iranian fighter jet. All 290 on board died. President Ronald Reagan and his deputy George Bush Senior refused to apologise. It was not until 1996 that President Bill Clinton’s administration finally expressed “deep regret” over the tragedy and paid the Iranian government US$131.8mil, of which US$61.8mil went to the victim’s families.

Perhaps, finally, Blair has come of age

ON Aug 1, when delivering the 22nd Sultan Azlan Shah Lecture, former British prime minister Tony Blair said the rule of law was more relevant than ever in today's era of globalisation.

"Although the rule of law is an initiation of political leaders, like me, it is also a vital component for political success as it ensures an orderly society," Blair said when presenting the lecture entitled "Upholding The Rule of Law: A Reflection".

I must say I could not agree more with him. We lawyers are often reminded of the celebrated words of the English pamphleteer Thomas Paine (1737-1809): "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."

Likewise, the law governing international relations is the United Nations Charter. Indeed, international rule of law is a vital component for peace as it ensures an orderly world.

However, by supporting and participating in the 2003 United States-led invasion and occupation of Iraq, I wonder whether Britain, being the world's oldest democracy, still possesses moral authority in a comity of nations to lecture on the principle of rule of law.

On Sept 14 last year, Opinion Research Business, an independent polling agency in London, released estimates of the total war casualties in Iraq at over 1,220,580 deaths. Thousands more were maimed and scarred for life.

According to the report, the number exceeded even the 800,000 to 900,000 deaths in the Rwandan genocide in 1994, and may even overtake the 1.7 million casualties of Cambodia's killing fields in the 1970s, two great crimes of the last century.

Of course, the debate rages on whether the invasion of Iraq was a breach of international law.

Under international law, there are probably two grounds where the use of force is justified.

The first is provided for under Article 51 of the UN Charter, which confers an inherent right upon a state to use force in self-defence.

The other is when the use of force is authorised by the Security Council under Article 42 of the Charter.

It is interesting to note that both camps seem to rely on the UN Security Council Resolutions 678 and 1441 to justify their arguments for and against the invasion.

Resolution 678 was passed on Nov 29, 1990, then giving Iraq one final opportunity to withdraw from Kuwait by Jan 15, 1991, failing which members of the UN in cooperation with the government of Kuwait were authorised to use "all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area".

UN Security Council Resolution 660 demanded that Iraq withdraw its forces unconditionally to the positions in which they were located before they invaded Kuwait on Aug 1, 1990.

Resolution 1441, passed unanimously on Nov 8, 2002, offered Iraq "a final opportunity to comply with its disarmament obligations".

The United States seemed to hold the view that Resolution 678, backed by Resolution 1441, was sufficient, without the need for any further resolution, to clothe it with the legal authority to use force against Iraq.

But how was that possible when there was no threat of an armed attack or act of aggression from Iraq, whether actual or imminent?

Similarly, the UN Charter does not permit such notion of pre-emptive strike or preventive war in international law as advanced by the US and its allies.

Iraq obviously did not commit or threaten to commit any act of "aggression" as defined by the UN General Assembly Resolution 3314 (XXIX).

In fact, during a 2004 interview with the BBC, the then UN Secretary-General Kofi Annan had this to say: "I have indicated it is not in conformity with the UN Charter, from our point of view, and from the Charter point of view it was illegal."

Similarly, the so-called "shock and awe" blitzkrieg to secure Iraq's compliance with its disarmament obligations was a totally disproportionate response, causing huge civilian casualties in breach of the Geneva Conventions of 1949 and their 1977 protocols.

It has now become abundantly clear that the infamous invasion was intended to remove Saddam Hussein, who in the eyes of the US and its allies was a recalcitrant dictator.

It is also abundantly clear that the UN inspectors who scoured Iraq for weapons of mass destruction did not eventually find any.

It is unfortunate that as a permanent member of the Security Council, Britain, then headed by Blair, did not stand up to this flagrant disregard of international law by the Bush administration.

Instead, Blair led Britain to join the US in this illegal war.

This went against the very foundation in which the UN Charter came into being after World War 2, that is, as stated in its preamble, "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind" .

Unless one has been bereft of loved ones before, one may not appreciate why parents, widows and orphans shriek and thump their chests crying to high heaven and pleading for justice in agony, misery and sorrow when their innocent children, spouses and parents perish in a war.

The preamble to the Charter also reaffirms faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small in order to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.

Hence, the manner in which suspected terrorists are treated and incarcerated speaks volumes of the US's record of respecting basic human rights.

Today and like before, history seems to be repeating itself. The Bush administration is now saying that any withdrawal of the US and allied troops will plunge Iraq into a civil war.

Looking back at history, when Britain invaded Iraq in 1917, the British, too, claimed to be the liberators and not conquerors of the Iraqis.

The reason was the same, that is, to set up democracy in Iraq. The then prime minister, Lloyd George, too, warned that if British troops should leave Iraq there would be civil war.

Abandoned Iraq, they did, and the Baath Party led by Saddam Hussein then took over.

Sadly, the mess now created in Iraq is the result of failure and refusal by powerful nations to respect and commit to international rule of law.

The invasion and continued occupation of Iraq have never been expressly authorised by the UN Security Council.

Winston Churchill once put it aptly: "The whole history of the world is summed up in the fact that, when nations are strong, they are not always just, and when they wish to be just, they are no longer strong."

As the UN is powerless to act and enforce international law when the culprits are the world's powerful nations, one can only leave it to history to judge whether Bush, Blair, John Howard and the others are saviours or butchers of the Iraqis.

Published in New Straits Times, 10 August 2008