The Malaysian Bar expresses and conveys its deepest sympathies and condolences to all who have lost their dear ones, friends and colleagues on flight MH17. It was with shock and disbelief that we heard and read of the tragedy that befell MH17 on 17 July 2014, when it was apparently shot down while flying over the southeast region of Ukraine.
As our nation mourns the loss of the 298 passengers and crew of MH17, the Malaysian Bar shares deeply in the immeasurable sorrow and grief of the families of the victims, and the peoples of the countries whose citizens perished with ours.1
The Malaysian Bar recognises and is heartened by the quick and decisive actions taken by the Prime Minister, Dato’ Sri Mohd Najib Tun Abdul Razak, and the Government of Malaysia from the very early hours of being informed of the fate that had befallen MH17.
There was obviously much confusion and many questions abounding, with emotions running high, and it appears that in the midst of the maelstrom, the Prime Minister prioritised his objectives, made hard decisions and personally took action. This resulted in the eventual release of the remains of the deceased and the handing over of the two black boxes to the Malaysian team on 23 July 2014. The actions of the Prime Minister and the Government of Malaysia were imperative, bearing in mind the reports of lack of respect for the deceased at the crash site, and evidence being possibly compromised.
We pray that the task of identification and eventual repatriation of all the victims to their respective families will be undertaken and completed quickly. This would at least permit the bereaved families and friends to undertake and perform their respective last rites, grieve properly and hopefully commence the painful process towards personal and emotional closure.
The Malaysian Bar commends the prompt and multi–pronged action taken by the Government of Malaysia in, among others:
(a) Consoling, counseling, providing information and assurances to the families of the Malaysian passengers and crew of MH17;
(b) Despatching a team of brave Malaysians to Ukraine to obtain access to the crash site to negotiate the handing over of the remains of the deceased and the black boxes, and to undertake the arduous task of investigating the MH17 crash site. The Malaysian team and the monitors of the Organization for Security and Co–operation in Europe (“OSCE”) are in a conflict zone and carrying out their task in difficult and dangerous conditions;
(c) Our Foreign Minister, Dato’ Sri Anifah Haji Aman, liaising with countries whose nationals were on MH17, and our Transport Minister, Dato’ Sri Liow Tiong Lai, returning swiftly from China to take direct action in Kuala Lumpur, Kiev and Eindhoven; and
(d) Our Representative to the United Nations, Datuk Hussein Haniff, addressing the United Nations Security Council, which unanimously adopted Resolution 2166 (2014),2 and which resolution was co–sponsored by Malaysia.
The measures taken thus far and the adoption of Resolution 2166 (2014) must necessarily represent only the beginning of a comprehensive, exhaustive and independent process of investigating the downing of MH17, ascertaining the circumstances before and after the incident, and identifying the culprits responsible.
The Malaysian Bar urges the Malaysian Government and the international community, in particular the United Nations, to take all necessary action to pursue the investigation. The Malaysian Bar also calls upon all parties, whether State or non–State actors, to cooperate fully with such investigation.
Nothing will bring back the lives of the deceased, but the victims of this atrocious act and their families deserve to see justice done. All States must honour the memory of those who perished, by undertaking, facilitating and cooperating in a full and thorough investigation.
The downing of MH17 was a needless, senseless and reckless act against civilians and a civilian aircraft. This act may possibly be in breach of international law and international aviation law, for example the 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War and Protocol II to the 1949 Geneva Convention (IV), the Rome Statute of the International Criminal Court, and the Convention on Civil International Aviation (“Chicago Convention”).
In the event the investigations indicate criminal culpability, all those identified as being involved in the wrongful downing of MH17 and any parties found to have abetted in the act or deliberately compromised evidence must be brought to justice. Depending on the results of the investigation, action may be considered to be taken by the States affected or involved, by the International Criminal Court, or by the United Nations Security Council pursuant to Chapter VII of the Charter of the United Nations.
The Malaysian Bar urges the Malaysian Government to accede to the Rome Statute of the International Criminal Court, which the Government had announced in March 2011 it intended to do. Those who seek justice under international law and its criminal justice system should commit themselves to be subject to, and bound by, the jurisdiction of the international criminal system.
The Malaysian Bar understands the practical and legal difficulties and complexities that may be involved in the ensuing investigation and possible subsequent legal action. In this regard, the Malaysian Bar is confident that the Attorney General of Malaysia is up to the task at hand. The Attorney General has the assurance of the support of the Malaysian Bar.
Christopher Leong
President
Malaysian Bar
26 July 2014
1 The victims reportedly comprised nationals from Malaysia, Netherlands (one passenger having Dutch and American citizenship), Australia, Indonesia, Britain (one South African citizen travelling on a British passport), France, Germany, Belgium, Philippines, Canada and New Zealand.
2 In Resolution 2166 (2014), the United Nations Security Council, among other things:
“Condemns in the strongest terms the downing of Malaysian Airlines flight MH17”; “Supports efforts to establish a full, thorough and independent international investigation into the incident”; “[C]alls on all States to provide any requested assistance to civil and criminal investigations related to this incident”; “Demands that the armed groups in control of the crash site and the surrounding area refrain from any actions that may compromise the integrity of the crash site … and immediately provide safe, secure, full and unrestricted access to the site and surrounding area for the appropriate investigating authorities”; “Calls on all States and actors in the region to cooperate fully in relation to the international investigation of the incident, including with respect to immediate and unrestricted access to the crash site;” and “Demands that those responsible for this incident to be held to account and that all States cooperate fully with efforts to establish accountability”.