Special Parliamentary Session: Debate on the MH17 Tragedy
The Honourable Tan Sri Speaker,
On 17 July 2014, flight MH17 from Amsterdam to Kuala Lumpur was believed to have been shot down by a surface to air missile near the Ukrainian Russian border, killing 298 innocent men, women and children. It was murder and a crime against humanity. Shock, grief and anger are felt throughout the world. The whole world condemns this senseless shooting down of MH17. It cannot be forgotten. It cannot be forgiven and it cannot be allowed to happen again.
I extend on behalf of my colleagues from Keadilan and Pakatan Rakyat, our condolences and deepest sympathies to the family members and friends of the passengers and crew of flight MH17.
I acknowledge with gratitude the Honourable Prime Minister’s quiet efforts in obtaining Alexander Borodai’s agreement, the separatist leader having control of the wreckage site, to release 282 bodies to Netherlands and for the bodies of Malaysian citizens to be sent home. It was an audacious move but it produced a good outcome.
I also thank the Australian Government, especially its foreign minister Ms Julie Bishop, for her tireless efforts in obtaining the UN Security Council members’ unanimous approval to her resolution calling for a complete international investigation into the downing of the MH17, demanding the responsible parties to be held to account and for the separatists to refrain from compromising the integrity of the crash site.
Although the UN Security Council has called for a thorough investigation, there are still many challenges and much to be done before the victims of MH17 and their families obtain justice.
Malaysia is entitled to commence an action before the International Court of Justice against those responsible for breaching Article 3 of the Chicago Convention in attacking a civilian aircraft. This will be claim for compensation and damages. Although the compensation will help the victims’ families, money is not an adequate substitute for the lives so cruelly taken away. The perpetrators must answer for their crime. The perpetrators must be given a severe punishment, one that reflects the horrific viciousness and cruelty of their senseless crime.
What the perpetrators committed is a war crime. Under the laws of war, combatants must distinguish between a military and a civilian object. Combatants cannot target civilians. It is a rule of international law that combatants must ensure the target is not a civilian aircraft before attacking it. If those who shot the missile were aware that MH17 was a civilian aircraft they have clearly committed a war crime. They have violated International Humanitarian Law and the Geneva Convention for attacking civilians.
Unfortunately, as Lembah Pantai (Nurul Izzah Anwar) has pointed out, Malaysia is not a signatory to the Rome Statute of the International Criminal Court and therefore not a member of the International Criminal Court (“ICC”) that is empowered to investigate and prosecute crimes against humanity and war crimes.
Malaysia must therefore depend on the UN Security Council to refer the case to the ICC. Malaysia has to call on the 15 UN Security Council members in particular the 5 permanent members to carry out their responsibility by exercising their powers to allow a complete investigation. They must find the political will not to protect or obstruct these criminals from being prosecuted.
Unfortunately, history has shown that politics often come in the way of justice. There have been no less than 40 incidents of civilian air planes having been shot down by military forces but no one has been charged much less convicted.
On 27 July 1955 an Israeli commercial flight was shot down by Bulgaria, all 58 passengers and 7 crew members were killed. Israel’s suit before the International Court of Justice failed because it did not have jurisdiction over Bulgaria which was not a party to the convention.
On 21 February 1973, Israel shot down Arab Airlines Libya carrying 113 passengers of which 108 were killed. No one was charged.
On 1 September 1983, USSR shot down Korean flight KL007. The Soviet Union suppressed evidence and the flight recorder sought by investigators were only released 8 years after the Soviet Union collapsed.
On 3 July 1988, a US warship at the Persian Gulf shot down Iranian Airline flight 655 killing all 290 aboard. The majority of the passengers were on the way to Mecca to perform the Haj. There is evidence to suggest USA failed to take steps to identify the air plane. USA did not admit responsibility although it paid compensation on an “ex-gratia” basis.
In these circumstances, Malaysia faces a huge challenge to prosecute the perpetrators. I call on the Prime Minister and the Government to stand firm before the two Great Powers, America and Russia in demanding justice for the victims of MH17.
I hope US President Barrack Obama will act in accordance with the words of his speech given in Belgium on 26 March 2014 that the United States will respect and will act together with the small nations to enforce international law. He said:
“And our enduring strength is also reflected in our respect for an international system that protects the rights of both nations and people – a United Nations and a Universal Declaration of Human Rights, international law and the means to enforce these laws. But we also know that those laws are not self-executing. They depend on people and nations of good will continually affirming them…so that majorities cannot simply suppress minorities and big countries cannot simply bully the small”
President Obama was speaking about Russia’s violation of international law regarding Ukraine and the pro-Russian separatists but the violation of international law in the shooting down of MH17 is just as serious if not more. So I hope President Obama will enforce international law against the perpetrators whoever they may be.
I also hope that Russian President Vladimir Putin will also live up to what he said. He said no country should use the MH17 tragedy for their “narrowly selfish political goals” and to provide full co-operation to the experts investigating the tragedy. It is hoped that President Putin will ensure no country will for its own political goal prevent or obstruct the perpetrators of this terrible crime from being brought to justice.
We must ensure this tragedy will not occur again. After the KL007 incident, the international community and ICAO agreed to the Montreal Protocol of 10 May 1984 where pursuant to Article 3 bis States are not to use weapons against civil aircraft in flight. Despite this Protocol, an Air Malawi passenger flight was shot down on 6 November 1987 during the Mozambique civil war, the on US shot down Iranian Air Flight 655 during the Iran-Iraq conflict and on 4 October 2001, a Russian passenger flight with 78 people aboard was shot down by a missile by Ukraine and now MH17. The Montreal Protocol is not sufficient to stop these killings.
The present state of aviation law is insufficient and incomplete to prevent military forces both government and non-government from shooting down civilian aircraft on the ground of national security or self-defense. It is still an era of “might is right.” To destroy a non-threatening civilian aircraft killing innocent passengers and then attempting to justify such a barbaric act by using as an excuse national security is rubbing insult to injustice. There must be a way of preventing such slaughter.
MH 17 requested Ukrainian Air Traffic Control for permission to climb to 35,000 feet but this was refused and it was directed to maintain its height at 33,000 feet. MH17 was flying over a war zone because everyone from the ICAO to the Ukrainian Air Traffic Controllers thought the combatants did not have the capability to shoot down air planes at this height. All were deadly wrong. If they had known this tragedy would have been avoided.
I suggest a new provision for ICAO to require combatants to declare their military capabilities and to issue a prior warning that the air space is a “no fly zone”. Failure to do so will be a war crime. I suggest Malaysia lead in calling for this change to make the sky a safer place.
The Honourable Prime Minister said this morning “Let us walk together” I answer “We will walk with you to seek the truth and to obtain justice for the victims of MH17” I ask all Malaysians to stand together to bring the criminals to justice and to move as one in making this world a safer place.
I support the motion. Thank you.
William Leong Jee Keen
23 July 2014