Why the solution to MH17’s case could lie in a forgotten 1905 legal precedent
Churkin said that Russia had rejected the tribunal due to concerns over its size and rules, which could have allowed intelligence agencies’ evidence to be kept from defendants. He still insisted Moscow was committed to an “independent and genuine international investigation.”
It might be time to ask the Kremlin if they will honor Churkin’s promise. Any other attempts to conduct an alternative investigation have been fraught with controversy.
Vitaly Churkin (center) observes a moment of silence in memory of the victims of MH17. Lucas Jackson/Reuters
Malaysia Airlines plane was downed over a war-torn area of Ukraine, held by Russian-backed separatists near the border. All 298 passengers and crew were killed.
The European Court of Justice rejected the request to repeal the sanctions against the Buk antiaircraft missiles. Ukraine also filed a lawsuit before the International Court of Justice against Russia, relying in part on the dispute resolution clauses of the Terrorism Financing Convention.
A Dutch-led investigators team presented a report in 2016 claiming the flight had been brought down by a missile fired from rebel-held territories. However, the Kremlin, as well as the Russian state-funded news service RT, have accused the team of bias, faking, and general incompetence.
It doesn’t matter how well-informed the investigation is. The only way it can resolve the incident and identify those responsible is if there are elements of criminal laws, and it includes both Russia and Ukraine.
It may seem politically impossible, yet there is precedent for states establishing an investigation despite mutual mistrust: the North Sea Incident Commission. The commission is largely forgotten today but was credited at the time with preventing a war between Britain and Russia.
Dogger Bank accident
In October 1904, Russia sent its Baltic Fleet to the entire world in order to participate in the Russo-Japanese War.
During the passage of the squadrons through the North Sea, near the Dogger Bank halfway between Denmark and the east coast of England, certain battleships fired on the Hull fishing fleet. The fleet’s last remaining ships returned to port with the bodies of the three sailors killed in the battle. The British public were stunned and many newspapers called for war.
Postcard from the Dogger Bank incident showing damage to British ships.
In this moment of tension, the UK Foreign Secretary Henry Petty-Fitzmaurice (also known as Marquess Lansdowne) invented a new form of inquiry. He combined an international inquiry format that was already well-established with court martial elements. Five admirals from the world’s most powerful navies, including Britain, Russia, France, the United States, and Austria-Hungary, sat in judgment to determine who was responsible for the civilian deaths.
After Britain threatened to use its Royal Navy to stop the Russian fleet from leaving Vigo, in northern Spain’s north, Russia accepted the mandate of the first international investigation to examine individual responsibility and guilt. The Russian Federation sent four officers to testify before the commission but insisted the incident was the result of a Japanese stealth attack allegedly carried out by torpedo boat acquired from a neutral North Sea country such as Sweden.
The Dogger Bank investigation in session, 1905.
Every major newspaper from both sides of Atlantic covered the meeting in Paris, January 1905. The commission’s meeting in Paris, January 1905 was covered by every major newspaper on both sides of the Atlantic.
The commission, in the end, rejected Russian claims that a Japanese attack had taken place and agreed with Britain’s argument, which was that two Russian cruisers from their squadron were mistaken for Japanese attackers due to the fog and difficult conditions in the North Sea.
The commission found that although the Russian fleet had been negligent, it did not deliberately target the British fishermen. Russia eventually accepted the verdict and agreed to pay PS65,000 in compensation. This was a relatively small amount to pay to settle an issue that threatened to escalate to a major conflict.
The North Sea Incident Commission was widely hailed as an outstanding success, and the model was catching on for a while. The Russian delegation tried to remove formal restrictions from commissions of inquiry as fact-finding agencies at the Second Hague Peace Conference in 1907. The other delegates, however, suppressed this idea for fear that it would lay the foundations for an international court, which was established only in 2002.
British fishermen arrived in Paris to give evidence at the inquiry.
What could be done for MH17?
The model hasn’t completely disappeared. It is known as the Adversarial Commission of International Inquiry. This form of investigation remains highly specific and uncommon.
A rival commission of inquiry modeled on the North Sea Incident might be a good starting point for a re-launched international investigation into MH17. States involved in the incident may use the UN or create a commission via a special agreement.
All parties could agree on a set of rules and judges. The commission would include a judge from each of the countries involved, such as Russia and Malaysia. However, it would be dominated by neutral judges who were not involved.