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Why Russia Vetoed the MH17 Tribunal

Leonid Bershidsky is a Bloomberg View columnist. He was the founding editor of the Russian business daily Vedomosti and founded the opinion website Slon.ru.
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It might seem that Russia vetoed a United Nations Security Council resolution to set up an international tribunal to try the people responsible for the crash of Malaysia Airlines Flight 17 last year because Russia was responsible -- either directly or through its separatist proxies in eastern Ukraine. Yet this guilt, by now pretty well-established, is not the real reason for the veto.

It was obvious from the start that MH17 was shot down by the pro-Russian side in the Ukraine conflict. The rebels had no air force, and Russia couldn't use its own to support them and still deny being involved, so Ukrainians had no aerial invaders to shoot at. But the Ukrainian military was conducting bombing raids over rebel territory and using transport planes to carry troops and equipment. The rebels initially boasted on social networks that they'd shot down a Ukrainian transport plane, which soon turned out to be the Malaysian airliner. In the year since, investigations by multiple news organizations and civil journalists have pointed to the rebel side.

It's not clear who exactly downed the plane -- whether it was the rebels themselves, using a captured Ukrainian Buk missile, or a Russian unit sent across the border to aid them. Yet there's little doubt which side was responsible -- outside Russia, that is. Inside Russia, a recent poll showed that 44 percent blame the Ukrainian military, and 17 percent -- wait for it -- believe the U.S. was responsible. Only 2 percent believe in Russia's guilt. 

That's not surprising: The Kremlin's extensive propaganda campaign -- featuring misleading "expert reports," fake "satellite images" and  "secret witnesses" who said it was a Ukrainian plane that shot down MH17 -- was meant for domestic consumption. 

But President Vladimir Putin and his men should know by now -- they've probably known from the start -- that they can't make that case successfully to the rest of the world. They also realize that they must recognize international investigations into the tragedy, such as the technical one by the Dutch Safety Board and the criminal one by a Joint Investigation Team of Dutch, Australian, Belgian, Malaysian and Ukrainian detectives. Russia is in fact cooperating with the first one, though it's not happy with its confidential preliminary conclusions. As for the Joint Investigation Team, Russia has long expressed doubts about its impartiality and insisted on closer UN supervision, but it can't really object to its work -- which hasn't yet yielded results -- because it's sanctioned by Security Council resolution 2166, passed on July 21, 2014. Russia voted for that one, backing "the need for a full, thorough and independent international investigation" and condemning the downing of MH17 "in the strongest terms."

If the purpose of the Russian veto on the tribunal resolution, proposed by the JIT countries, is to prevent an official verdict on the guilt of Russia and its proxies, then backing the investigation but not the subsequent trial looks silly and helpless -- like Russian UN Ambassador Vitaly Churkin's Freudian slip at Wednesday night's Security Council meeting. As he criticized Ukraine for letting MH17 fly over the conflict zone, he said, "Let's hope the investigation will clear that up, too, and that impunity will result both for those who downed the plane and those who sent it to the war zone." He meant "responsibility," of course, but his slip contributed to a general impression of gang of thugs trying ineptly to cover its tracks.

If the Putin government is a gang, it's not silly or inept, even if Churkin's arguments to support the veto were weak. He said, for example, that the MH17 incident couldn't be deemed a threat to global peace and security -- a prerequisite for forming a tribunal -- because other incidents involving downed passenger planes hadn't been treated that way. Yet the Security Council doesn't need a precedent for such a determination, and those who downed the plane may well still be fighting in eastern Ukraine, presenting a clear threat to peace. 

Russia's problem with the tribunal is different, though. It's similar to the problem the U.S. has with accepting the jurisdiction of the International Criminal Court in the Hague, whose function is to prosecute war crimes and instances of genocide. The judicial body was set up in 1998, after special tribunals on the former Yugoslavia and Rwanda proved lengthy and inefficient. The U.S. initially supported its creation but then withdrew its backing lest the court be used for the politically motivated persecution of Americans participating in various wars. In 2011, the U.S. backed Security Council Resolution 1970, which referred that year's civil war in Libya to the ICC -- a historic first for the U.S. -- but made its vote conditional on a "carve-out" for countries that have not accepted the court's jurisdiction. The clause reads:

Nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.

In other words, the U.S. wants to retain the right to try its own war criminals under its own laws rather than hand them over to an international tribunal. Russia, which has always jealously watched the practice of American exceptionalism, wants the same treatment. It cannot, however, use the U.S.-ICC example to argue against the MH17 tribunal, because it's a party to the Rome Statute, and it doesn't want the case referred to the ICC, either.

Russia, like a number of other countries, never extradites its citizens wanted for crimes committed elsewhere. Submitting the MH17 case to a tribunal would, in practice, mean breaking that rule. And that's not something Putin, with his great power nostalgia and ambitions, can allow. So his reasoning for vetoing the tribunal goes beyond the MH17 case. He's not trying to cover up for some rebel field commander or even a Russian army officer who may have ordered the missile launch a year ago: He's just not willing to give up ground that the U.S. isn't giving up.

This allows politicians from countries whose citizens were killed on board MH17 to show the victims' families that they're doing all they can to bring the guilty to justice, but Russia stands in their way. They may even try to have the tribunal resolution approved by a two-thirds vote of the UN General Assembly, but that might not succeed. After all, the resolution to condemn Russia's Crimea invasion didn't get two-thirds support. What matters to the JIT countries in this case, however, is the effort itself, not the final result. Realistically, the Russian instigators of the eastern Ukraine conflict and their local proxies can be punished only if the Putin regime is overthrown. And that's a highly unlikely outcome.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author on this story:
Leonid Bershidsky at lbershidsky@bloomberg.net

To contact the editor on this story:
Mary Duenwald at mduenwald@bloomberg.net