With Russia's veto of the UN Security Council resolution to set up an international tribunal on MH17, the Kremlin and White House could be headed on a potential collision course over international law.
People offer flowers at the Netherlands Embassy for the Malaysia Airlines Flight MH17 crash victims, in Kiev, Ukraine on July 17, 2015. Photo: AP
For a very different take read: "Why Russia opposes an international tribunal on MH17"
Sergei Naryshkin, the speaker of the State Duma, Russia’s lower house of parliament, recently condemned the idea of creating an international tribunal to investigate the downing of Malaysia Airlines flight MH17 in eastern Ukraine. The UN Security Council had voted on the resolution in late July and Russia promptly vetoed the resolution. Naryshkin’s stance caused a mixed reaction in society, and reflects the mood of the Kremlin’s position on this issue.
Russia’s veto on the draft resolution to set up an MH17 tribunal was a turning point for the UN Security Council. Moscow had not previously opposed the creation of international tribunals for armed conflicts. It had not always been in favor, but never blocked them. With its latest move, Moscow has shown that it is ready to counter what it sees as the anti-Russian trends in international law.
Whether one supports or condemns Russia's veto is a matter of political bias. Of far greater importance is that Moscow's strong reaction proves that the Russian leadership feels threatened by the draft resolution.
The idea of establishing international tribunals arose at the end of the Second World War. Post-1945, the world witnessed tribunals in Nuremberg (against the leaders of Nazi Germany) and in Tokyo (against the leaders of Imperial Japan).
These tribunals were given legitimacy by the victorious powers and new permanent members of the UN Security Council. These tribunals established the international legal precedent of condemning leaders of sovereign states for war crimes, including aggression. The Nuremberg trials also created the precedent of condemning certain types of ideology (in particular, fascism).
The right to establish such tribunals was assigned to the permanent members of the UN Security Council. However, a legal procedure for setting up international tribunals was not put in place. They were essentially ad hoc, created for a particular purpose at a particular time.
The Cold War period saw no such tribunals: The two superpowers would have undoubtedly vetoed each other’s attempts to hold one. But after the Cold War, the situation changed. A series of international tribunals were held against leaders of sovereign states, which created new precedents in international law. Trials of leaders of sovereign countries became the norm.
Such tribunals can be provisionally divided into three distinct groups.
The first are tribunals created by special resolution of the Security Council, such as The Hague tribunal for the former Yugoslavia or the tribunal on the genocide in Rwanda.
The second are tribunals established under U.S. law, such as the trials of the former president of Panama, Manuel Noriega, or the leaders of the junta in Haiti.
The third are trials of former leaders overthrown with U.S. support and condemned by the new authorities, such as Saddam Hussein, Iraq's ousted and then executed president.
The most notable in this group of tribunals, however, is the trial of former Egyptian President Hosni Mubarak. It proved that even a consistently pro-U.S. policy does not grant immunity from prosecution. In other words, no one can (or should) ever feel completely safe.
It is significant that the United States has exempted its own citizens from the jurisdiction of such courts. In 2001 the administration of former U.S. President George Bush declined to ratify the Rome Statute of the International Criminal Court (ICC). The official pretext was disagreement over the amenability of U.S. service personnel.
For the United States, the primacy of national over international law remains in force. This, however, did not prevent the administration of Barack Obama from welcoming the establishment, under the auspices of the ICC, of the Special Tribunal for Lebanon (2009) and the Extraordinary African Chambers in Senegal (2013).
The Kremlin has always sensed danger from such precedents. The moment of truth apparently came at the G7 summit in Halifax (June 1995). Then Canadian Prime Minister Jean Chretien described the situation in Chechnya as “a humanitarian catastrophe,” and former U.S. President Bill Clinton supported the Canadian position. Since then, Russia has kept a close eye on events, including the following:
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- Arrests on U.S. soil of top Russian officials and businessmen, although no crimes against them have been proven;
- The European Parliament’s adoption of a resolution on the possibility of an international tribunal for Chechnya;
- The U.S. media’s condemnation of the “genocide of Chechens, Circassians and Georgians."
For the past two decades, Russian expert circles have repeatedly denounced the policy of the U.S., which has been sending signals and hints that could be interpreted as attempts to hold an international trial of a former president of Russia, Boris Yeltsin (with the simultaneous question of Russia’s right to be in the UN Security Council and to possess strategic nuclear weapons).
However, until this summer, it was purely a discussion. The “Boeing case” is perceived by the Russian leadership as a U.S. attempt to test the waters.
The situation could evolve in several directions. Russia’s veto in the UN Security Council has encouraged the leaders of Australia, Malaysia, the Netherlands and Ukraine to seek alternative ways to organize a tribunal. Perhaps this was just a declaration to “save face.” Or perhaps it is about trying to create a new legal precedent for a Russian tribunal without a UN Security Council mandate.
Russia will undoubtedly block any of these attempts to gain legitimacy. But an inconvenient question arises: Are Russia and the United States heading towards a fundamental disagreement about what international law does – and does not – make possible?