Malaysia should use its neutrality to convince Russia to allow the formation of the international tribunal required to bring the culprits responsible for downing MH17 to justice.
ON July 19, Russia used its veto to block a draft resolution for the United Nations Security Council to set up an international tribunal to look into the downing of Malaysia Airlines Flight MH17.
This has the aggrieved countries who had nationals on board considering other ways of bringing the perpetrators to justice, which may mean bypassing the UN.
Malaysia is considering signing a treaty with four other nations to set up an independent tribunal.
Malaysian Prime Minister Datuk Seri Najib Tun Razak, on the sidelines of the United Nations General Assembly last month, held a meeting with leaders of the Netherlands, Ukraine, Belgium, and Australia to discuss alternative measures.
Najib points out that Malaysia has vowed to seek justice for the families of the 298 people on board who died when the plane was shot down in eastern Ukraine on July 17 last year.
Former Malaysian Ambassador to the Netherlands Datuk Dr Fauziah Mohd Taib notes Holland had (before the veto) wanted the UN Tribunal to be in the Hague because they take pride in maintaining it as the legal capital of the world. A separate tribunal can be proposed, she says, but whoever initiates it would need to take into account many factors.
These include the location of the tribunal and who selects and pays both the staff as well as the judges.
"Logically, the easier route is for each affected country to prosecute from their own capitals. But in reality it is not easy to bring the culprit over to your country at their own free will," says Fauziah.
Such a move was used to prosecute two Libyan suspects for the Dec 21, 1988, bombing of PanAm Flight 103 over Lockerbie, Scotland, which killed 259 passengers and 11 people on the ground.
A Scottish court with three judges presided over the case that tried the Libyan suspects at a former US Air Force base in Amsterdam. Holland consented to about 1.5ha of the base being declared Scottish territory to meet Libya's demands for the trial to be held in a neutral country.
Only one suspect - Abdelbeset Ali Mohmed al Megrah - was found guilty and jailed while then Libyan leader Muammar Gaddafi agreed to pay US$2.7 billion (S$3.8 billion) in compensation to affected families.
Former top diplomat Tan Sri Razali Ismail disagrees with any move to exclude the UN, however.
He believes questions about who shot down MH17 and why are still best resolved by the UN Security Council.
Razali, who served as president of the council and president of the 51st session of the UN General Assembly from 2000 to 2006, also points out that "Russia is not Libya", adding, "It's a responsible country with international stature."
Malaysia, as a non-permanent member of the Security Council, played a leading role in pushing for the resolution to set up the tribunal.
"Failure in the security council has lead us to try to do second best. We should never have to take this option (of bypassing the UN)," says Razali.
Russia is among five permanent Security Council members with veto powers (the other four are Britain, China, France, and the United States) and Razali says Malaysia shouldn't have allowed the draft resolution to be tabled without first overcoming their objections.
"I would almost think we didn't do well enough. I don't know how much we really tried to understand the Russians," says Razali.
He says Malaysia seems to be taking the position held by many Western countries.
The Dutch Safety Board has concluded MH17 was hit by a Russian-made Buk missile but the report did not conclude who fired the missile.
The United States, the Ukraine, and Australia blame pro-Russia rebels in eastern Ukraine for the tragedy.
Moscow, however, argues that these allegations are politically motivated and blames Ukrainian government forces for the tragedy.
Razali says Malaysia should use its neutrality and good relations with Russia.
"We didn't use Malaysia's own diplomacy to get the Russians (to agree to the tribunal). I'm not satisfied with that," he says.
He cites the diplomacy used to get bodies of the MH17 victims and the aircraft black boxes from rebels last year to make his point.
"In that case, Najib worked successfully behind the scenes to make them (rebels) understand how, in the name of humanity, this had to be done," says Razali.
Razali says being in the Security Council also gives Malaysia the "weight and leverage" to understand and address Russia's concerns.
Malaysia should take the lead and not follow in the footsteps of Australia or the Netherlands, he says.
"We have to talk to them (the Russians) openly to find out what's behind their objections and to reach a compromise. It will not be easy but it's not impossible," he says.
Lawyer Datuk Param Cumaraswamy agrees that the attempt to set up an international tribunal was premature.
The former UN Special Rapporteur on the Independence of Judges and Lawyers says aggrieved countries should have waited for the findings of the Dutch-led criminal investigations.
"It's not an easy task for the UN when there were no initial findings on who is to blame," he points out, adding that the problem is compounded by the fact that Russia will not co-operate and, in any event, will once again exercise its right to veto and "scuttle any form of inquiry" initiated by the Security Council.
But Razali maintains that Malaysia can ensure some form of justice. However, he says aggrieved countries and families of victims need to be realistic about the outcome of any tribunal.
"Those responsible will never admit it, and it will be a virtual impossibility to find satisfaction for everyone," says Razali.
But he says this should not stop Governments from pursuing some kind of understanding of what happened so that they can prevent it from ever happening again.