Malaysia Prepares to Prosecute Those Responsible for Downing Flight 17

Malaysia’s Prime Minister Najib Razak delivers his speech at a special parliament session to discuss the MH17 tragedy at parliament house in Kuala Lumpur on Wednesday. Agence France-Presse/Getty Images KUALA LUMPUR—Malaysia is laying the groundwork to prosecute anyone suspected of downing Malaysia Airlines 3786.KU -2.17% Flight 17 in Ukraine, Prime Minister Najib Razak said Wednesday.

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“I have directed the attorney general to study this matter to ensure any action that will be taken by Malaysia is in line with international law,” Mr. Najib told Parliament Wednesday in a special meeting on Flight 17, which crashed July 15. It appears to have been struck by a surface-to-air missile, killing all of the 298 passengers and crew on board.

Mr. Najib won plaudits from the international community and local Malaysians for secretly negotiating with rebels to recover the bodies and the aircraft’s black boxes. Now he is now under pressure to deliver on the legal front as well. Several hundred people protested outside the Russian and Ukrainian embassies in Kuala Lumpur on Tuesday demanding the countries reveal who is responsible for shooting down Flight 17.

But Malaysia, which is still reeling from the disappearance of Malaysia Airlines Flight 370 in March, would have to prove it has jurisdiction to oversee any prosecution via international courts. Legal experts differ over whether Malaysia could do so.

Other issues that would affect any potential prosecution include whether shooting down the commercial jet constitutes a war crime. Also Malaysia authorities must answer whether any suspects would best be prosecuted by Ukraine under its criminal laws since no crime was committed on Malaysian territory, making extradition a possible but unlikely prospect.


It could also matter whether or not the act was intentional and who supplied the weapon. The investigation may already been compromised, officials worry, since debris from the plane—which could be admitted as evidence in a criminal trial—may have been moved or tampered with.

But Mr. Najib is sending signals he intends to try to pursue a legal course.

Mr. Najib has gotten support from other senior government officials in Malaysia, who have called for “justice” against the perpetrators of the attack.

“The outrage cannot go unpunished,” Transport Minister Liow Tiong Lai said Saturday. Malaysia “calls for those responsible to be found and to face the full force of justice without delay,” he said.

Lawyers from the 11 nations whose citizens died in the disaster would also have to consider where the alleged perpetrators face justice. Dutch prosecutors have already opened an investigation that may include a war crimes prosecution in the international courts.

However, the International Criminal Court can only prosecute cases committed by or against a citizen of a state that is part of the Treaty of Rome, the international accord that establishes its legitimacy, or a case brought by a state where the alleged war crime occurred. Neither Ukraine nor Malaysia are currently signatories, although the Netherlands is.

If suspects are found, said Sivarasa Rasiah, a Malaysian lawmaker and lawyer, Malaysia could consider pursuing them via a special tribunal set up by United Nations Security Council. (WSJ)


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