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Response to MH17 shows treaty process not broken

The swift construction of a legal framework to fast track the investigation of last year’s Malaysia Airlines crash is a rare example of bureaucracy and treaty law working well together, a top government lawyer has said.

user iconFelicity Nelson 11 February 2015 SME Law
John Reid
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“Although the [process] is usually regarded … as overly-bureaucratic, MH17 shows that treaty law, at least last year, made its mark and allowed governments to solve some pretty hairy problems, legally creating flexibility fairly swiftly,” John Reid (pictured) told the International Law Conference at the University of Sydney on February 6.

Mr Reid is first assistant secretary at the International Law and Human Rights Division and assistant secretary at the Office of International Law in the Commonwealth Attorney-General’s Department.

He pointed to Australia’s free trade agreements with South Korea and China as examples of how negotiations between nations can be drawn out over almost a decade.

Many believe that “bureaucracy plus treaty law means nothing will ever happen ever”, said Mr Reid.

However, the Malaysia Airlines crash raised numerous tricky international law problems, which were all resolved relatively quickly given the circumstances.

“The legal framework surrounding MH17 … isn’t just one treaty, it’s a whole raft of them — seven or eight instruments at last count.

“I think [MH17] shows the way that countries can use treaty law to overcome hurdles and to solve problems,” he said.

On July 18 last year, the flight from Amsterdam to Kuala Lumpur went down in eastern Ukraine, killing 298 people in total, including 38 Australian citizens and permanent residents.

The Dutch investigation has supported suspicions that the aircraft was brought down by high-speed objects, believed to be surface-to-air missiles launched by militants on the ground. The aircraft was following an uncontroversial flight path and was above temporary restricted airspace.

Mr Reid said the Australian prime minister was advised immediately following the crash and at 8am the next morning there was a meeting of senior officials in Canberra

“The lawyers in the room begin to think about what the problems were that needed to be solved," he said.

“First of all, the bodies needed to be retrieved… The second thing was that there needed to be an air crash investigation into what happened and the third thing, which didn’t crystallise for a little while, was that there had to be a criminal investigation,” he said.

A further complication was that the plane had crashed in what was effectively a war zone and there were very serious doubts about the safety and security of anyone, Ukrainian or otherwise, going into the area.

“So that was on 18th July. On 19th July things start happening around the world... The first significant movement is, quite appropriately, [within] the UN,” said Mr Reid.

Within four days of the crash, the UN passed Resolution 2166, which recognised the need to provide access and security measures for investigators in Ukraine.

“At that point, there are at least five or six legal issues that needed to be resolved: How do we get access to the crash site? Who is going to get access? How are they going to be safe and secure? Who is going to be responsible for various investigations?”

There was also the issue of who was to be in charge, since a number of countries were keen to lead the investigations, said Mr Reid.

Five days after the event, Ukraine delegated responsibility for the investigation to the Netherlands by way of a memorandum of understanding (MOU).

Australia simultaneously proposed an MOU agreement to grant immunity to Australian armed personnel deployed in Ukraine.

However, this agreement was not passed through Ukraine’s parliament until August 11 because “Ukraine helpfully had another coup” in which the standing prime minister was temporarily ousted.

“A really interesting curve ball was thrown late in the piece, which needed a bit of a creative solution,” said Mr Reid.

Australian personnel travelling through the Netherlands carrying weapons also needed authorisation, which required a whole separate negotiation.

Comments (11)
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    <p>James, at the risk of repeating myself the SU-25 is not an interceptor. Yes it has an air to air capability which is supposed to be for taking on attack helicopters and slow moving low altitude aircraft such as tankbusters. One of the few instances of this aircraft being involved in anything of an air to air nature is when two (2) of them, being flown by pilots of the Iranian air force, attempted to bring down a US drone. Not being the correct tool for the job -they failed. Also MH17s engines, which a heat seeking air to air missile would've hit, show virtually no sign of having being struck by anything -full array of fanblades etc. As for 30mm canon -if you were to somehow hit the jackpot and have unguided rounds strike a target moving at that speed they'd likely leave holes you could step in and out of (–and yes, unless the pilot can turn his Su-25 like a shopping cart he’d have to be emerging from Russian airspace). Again this is not what’s seen. What is seen is a large volume of various sized holes along with denting and pitting consistent with the damage caused by a surface to air missiles' fragmentation warhead exploding outside, in front, probably slightly above and to the left of the target.</p><p>Here’s a source for BUK noise and smoke trails <a href="www.bellingcat.com/resources/case-studie...h-smoke-photographs/" rel="nofollow">www.bellingcat.com/res...</a> If you’ve been researching this for months you have to have come across it. This report doesn't strike me as partisan though you may think it is because it's author indicates the Russians have a bit of explaining to do. Contrary to some who dismiss the photos due to weather conditions the weather is entirely consistent with weather conditions in the area at the time. Late summer, sunny spells, thundery showers. It’s is also largely consistent with the German CorrectV investigation which you may be happy to hear also indicate the Ukrainians, and more specifically their air force pilots, have a strong prima face case to answer relating to flying in the ‘radar shadow’ of commercial aircraft. This should be investigated further as, if demonstrated to be true it’s a contributory factor in this tragedy and is a war crime all on its own.</p><p>Incidentally, I have no interest in demonising Russia nor have I any torch to carry for Ukraine. Like the misfortunes who got on that plane I have no quarrel with either. I’d like to see some justice for those murdered is all. Though I have little expectation that the perpetrators will ever see the inside of a prison cell as they’ll doubtless crawl under the protective cover of whatever amnesty is granted as part of the inevitable peace deal. It’d be good to see them named though.</p>
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    <p>@ohyessir. I suggest that you read Janes Aircraft, the bible in this area. The SU25 is equipped with both air to air missiles and 30mm cannon. To suggest the aircraft came from Russian air space is nonsense. You might also look at the Russian radar data disclosed on 21 July 2014. What is your source for the claimed BUK noise being heard by locals? In seven months of investigating this issue I have never heard this claim before. If the Ukraine government is the source and you believe that, then I have a bridge to sell you.</p><p>@Girrali. Your quote from the article is spot on. As I said in my first post, the interim Dutch report said no such thing. We still lack a definitive explanation, and because of the 8 August secret agreement we are not likely to. In the meantime the fact free demonisation of Russia continues apace.</p>
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    ohyessiricanboogie Friday, 13 February 2015
    <p>Seriously James. 30mm canon? This isn't the Battle of Britain we're talking about. This is an airliner travelling just shy of 500mph with it's nose ripped off back as far as the wings from in front. If a jet fighter did that then it had to be emerging from Russian airspace and the pilot's got a better aim than Luke Skywalker. Better again, just for a handicap he supposedly managed this in a plane (the infamous Su-25) that is not an interceptor and has never had a shoot down credited to it, claimed or alleged in 40 years service with a dozen air forces. Frankly you might as well be claiming a Stuka dropped a bomb in the window. Oh and the BUK noise was heard and locals brave enough to come forward told reporters and investigators about it and the smoke trail was captured in RAW format photographs which are with the Dutch investigation team.</p>
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    <p>Are you suggesting the Dutch investigation "supports the claim by Ukraine"... that militants shot down MH17?</p><p>This sentence conveys that impession &gt;&gt;&gt; [The Dutch investigation has supported suspicions that the aircraft was brought down by high-speed objects, believed to be surface-to-air missiles launched by militants on the ground.]</p>
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    <p>@neutral observer. No, not partisan, just trying to separate the truth from the barrage of misinformation that infests our media. The conversation you refer to was a pastiche of more than one conversation. It was quickly exposed as a fraud. If you want some insight into what happened, check out the Russian presentation of 21 July 2014. They asked, in the course of that presentation, for their American "colleagues" to release the satellite images known to be in their possession. The Americans have refused to release that information to the Dutch led inquiry. I would also like to know why the agreement of 8 August 2014 is such a secret. You can read the details in my article in Counterpunch 19 December 2014, which has been widely reprinted.</p>
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    <p>I recall that the taped conversation referred to their dismay at it being a civilan aircraft that had been shot down (not a military one the day before as you argue above) and them making the observation "why are still they flying civilian planes over this area?". Your statements on this matter appear (to this neutral observer anyway) to be suspiciously partisan.</p>
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    <p>@ohyessir. I am afraid you are misinformed. The cockpit damage was caused by 30mm cannon fire. The missile hit the engine. A BUK not only makes a lot of noise on launch (not heard) but leaves a vapour trail for 10-15 minutes afterwards (neither seen nor recorded). This evidence has been available for some time and confirmed from a number of sources, including the OSCE.<br>@David. The conversation you are referring to was actually the day before the crash and was referring to the shooting down of a military plane. It was one of a series of false statements by the Ukraine junta in an attempt to blame the Russians.</p>
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    <p>What then about the radio intercept straight after between the pro-russian forces remonstrating with each other about having hit the wrong plane??</p>
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    <p>That's absolute nonsense James. No air to air missile could've done the damage visible on the front of the fuselage, which literally shredded the cockpit and flight deck. In fact they wouldn't have hit the cockpit at all. They would've hit either engine both of which lack signs of having been struck. The size of warhead needed to cause that damage, breakup and debris scatter is consistent with a large surface to air missile such as a BUK and that'll be confirmed when Australian forensic investigators findings are presented in the final report -including as they will "non aircraft metal" recovered from the bodies of victims. There's no illuminati/NATO/western conspiracy at work here. Just a bunch of drunk paramilitaries playing with bigger boys toys.</p>
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    <p>A Ukrainian air force Su-25 combat jet took off from an airbase in eastern Dnipropetrovsk carrying air-to-air missiles and returned without them on the day a Malaysia Airlines plane crashed in eastern Ukraine. An airbase employee claims that on July 17 three Ukrainian combat jets took off and two were shot down in Donbass.</p><p>All norms of the International Civil Aviation Organization ICAO are being violated in the organisation of investigation in the crash of Malaysia’s MH17 flight in eastern Ukraine. Ukraine’s security services are directly involved in this investigation and we see that Malaysia has been excluded. </p>
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