Churkin’s promise: why the solution to the MH17 case may lie with a forgotten legal precedent from 1905
Russia’s ambassador to the United Nations, Vitaly Churkin, has died of a heart attack. Churkin was famous for clashing with his US counterpart Samantha Power over Russia’s bombing of Aleppo, and when Russia vetoed a a United Nations Security Council resolution to establish a war crimes tribunal to investigate the downing of flight MH17, Churkin was the one who had to defend that position.
Churkin claimed Russia had vetoed the tribunal because it had concerns about the way it was set up, especially its large size and unusual rules that potentially allowed evidence provided by intelligence agencies to be withheld from the defendants. Yet he insisted that Moscow remained committed to a “genuine international and independent investigation”.
Now might be a good moment to ask the Kremlin to honour Churkin’s promise, since any other attempts to bring about an alternative inquiry have been fraught with controversy.
The Malaysia Airlines plane was shot down in July 2014 over a conflict-torn part of Ukraine held by Russian-backed rebels, near the border between the two countries. All 298 people on board were killed.
Relatives of victims have sued a former rebel leader; the company that produces the Buk anti-aircraft missiles at the centre of the controversy unsuccessfully tried to have sanctions repealed at the European Court of Justice; and Ukraine has filed a suit against Russia before the International Court of Justice, partly relying on the dispute settlement clauses of the Terrorism Financing Convention.
In 2016, a Dutch-led team of investigators presented a preliminary report claiming that the flight was downed by a rocket fired from rebel-held territory, but it has been accused of bias, fakery and general incompetence by the Kremlin and the Russian state-funded media service RT.
No matter how professional an inquiry is, it can only truly resolve the incident and identify the perpetrators if it has a criminal law element, and if it involves both Russia and Ukraine.
This may sound politically impossible, but there is a precedent of states setting up an inquiry despite mutual distrust: the 1905 North Sea Incident Commission. Largely forgotten today, the commission was in its time credited with preventing war between Britain and Russia.
The Dogger Bank incident
In October 1904, Russia sent its Baltic Fleet on a voyage around the world to fight in the Russo-Japanese War.
When the squadrons passed through the North Sea near the Dogger Bank, halfway between Denmark and the east coat of England, some of the battleships opened fire on ships from the Hull fishing fleet. After the encounter, the fleet’s remaining vessels limped back into port carrying the bodies of three dead sailors. The British public was stunned, and some newspapers openly called for war.
At this tense moment, UK foreign secretary Henry Petty-Fitzmaurice, known as the Marquess of Lansdowne, invented an unprecedented form of inquiry. He combined the already established format of an international commission of inquiry with elements of a court martial. Five admirals of the world’s leading navies (including Britain and Russia, but also France, the United States and Austria-Hungary) sat as judges to establish who was to blame for the civilian casualties.
After Britain threatened to use the Royal Navy to prevent the Russian fleet from leaving its stopover in Vigo in northern Spain, Russia accepted the first international inquiry with a mandate to look at individual responsibility and guilt. It sent four officers to appear before the commission, but still insisted that the entire incident was caused by a Japanese sneak attack, supposedly carried out by torpedo boats acquired from a North Sea neutral country, such as Sweden.
When the commission met in Paris in January 1905, it was covered by every major newspaper on both sides of the Atlantic. It resembled a criminal trial: British and Russian representatives acted like prosecutors and defenders, each robustly cross-examining the other’s witnesses and technical experts.
In the end, the commission rejected the Russian claims of a Japanese attack and sided with Britain’s argument that the Russian battleships mistook two cruisers of their own squadron for Japanese attackers, confused by the difficult conditions of the North Sea and a cloudy night.
The commission ruled that the Russian fleet was negligent but did not intentionally target the British fishermen. In the end, Russia accepted the verdict and paid £65,000 compensation. Despite the embarrassing exposure of the incompetence of its leading naval officers, this was a small price to pay for settling an affair that at one point threatened to escalate into a major war.
The North Sea Incident commission was hailed as a great success and for a time, the model looked set to catch on. At the Second Hague Peace Conference in 1907, the Russian delegation attempted to remove formal restrictions on commissions of inquiry as pure fact-finding bodies. But the other delegates suppressed the idea, fearing it might lay the groundwork for an international criminal court, a body that was not established until 2002.
How it might work for MH17
Still, the model didn’t entirely die out. Known as the adversarial international commission of inquiry, it remains a highly specific and rare form of investigation, and has been used only a handful of times since – always in attempts to resolve incidents involving attacks on civilian vessels.
An adversarial commission of inquiry modelled on the North Sea Incident could be a promising starting point for a second attempt to establish an international investigation into MH17. The states involved in the incident could use the UN, or set up a commission through a special treaty.
They could establish rules of procedure and a judges’ bench that are agreeable to all parties. The commission could include one judge from each country involved like Russia and Malaysia, but would have a majority of neutral judges from countries not involved in the incident.
Crucially, none of the issues that Russia raised when it vetoed the draft Security Council resolution in 2015 applies to this model.
Vitaly Churkin died before his promised investigation came to pass. If the West wants to take him at his word, a precedent created by Russia itself might be a good place to start.