International Criminal Tribunal for Malaysia Airlines
Having been established by the Security Council acting under Chapter VII of the Charter of the United Nations, the International Criminal Tribunal for Malaysia Airlines Flight MH17 (hereinafter referred to as “the Tribunal”), shall function and exercise its jurisdiction in accordance with the provisions of the present Statute.
Jurisdiction of the Tribunal
Crimes within the jurisdiction of the Tribunal
The Tribunal shall have jurisdiction over persons responsible for crimes connected with the downing of Malaysia Airlines flight MH17 on 17 July 2014.
Subject to paragraph 1, the Tribunal has jurisdiction in accordance with this Statute with respect to the following crimes:
War crimes, as defined in article 2; Crimes against the safety of civil aviation, as defined in article 3; andCrimes under the Criminal Code of Ukraine, as defined in article 4.
For the purpose of this Statute, war crimes means:
The following grave breach of the Geneva Conventions of 12 August 1949, namely, wilful killing when committed against a person protected under the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War.
Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.
In the case of an armed conflict, not of an international character, serious violations of Article 3 common to the Geneva Conventions of 12 August 1949, namely, violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture committed against persons taking no active part in armed hostilities.
Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.
Crimes against the safety of civil aviation
For the purpose of this Statute, crimes against the safety of civil aviation means destroying, damaging or endangering the safety of aircraft as defined in section 9 of the Aviation Offences Act 1984 of Malaysia.
Crimes under the Criminal Code of Ukraine
For the purpose of this Statute, crimes under the Criminal Code of Ukraine means:
Murder as defined in Article 115;Negligent homicide as defined in Article 119;Wilful destruction of, or damage to, property as defined in Article 194;Smuggling as defined in Article 201;Crimes against public safety as defined in Articles 258 and 258-3 to 258-5;Unlawful handling of weapons, ammunition or explosives as defined in Article 263;Concealment of a criminal offense as defined in Article 396;Trespass against life of a foreign state representative as defined in Article 443.
Provisions applicable to all Crimes
The Tribunal shall have jurisdiction over natural persons pursuant to the provisions of the present Statute.
Exclusion of jurisdiction over persons under eighteen
The Tribunal shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.
Irrelevance of official capacity
This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Tribunal from exercising its jurisdiction over such a person.
Statutes of limitation
The crimes defined in article 2 shall not be subject to any statute of limitation. Where a statute of limitation applies under national law, the statute of limitation for crimes defined in articles 3 and 4 is extended by 15 years.
Individual criminal responsibility
A person who commits a crime within the jurisdiction of the Tribunal shall be individually responsible and liable for punishment in accordance with this Statute.
The Tribunal and national courts shall have concurrent jurisdiction over persons responsible for crimes connected with the downing of Malaysia Airlines flight MH17 on 17 July 2014.
The Tribunal shall have primacy over national courts. At any stage of proceedings before a national court, the Tribunal may formally request that national court to defer to the competence of the Tribunal in accordance with this Statute and the Rules of Procedure and Evidence, if the interests of justice so require.
The Tribunal shall have the authority to defer a case to a national court where the interests of justice so require.
Ne bis in idem
Except as provided in this Statute, no person shall be tried before the Tribunal with respect to conduct that formed the basis of crimes for which the person has been convicted or acquitted by the Tribunal.
No person shall be tried by another court for a crime referred to in article 1(2) for which that person has already been convicted or acquitted by the Tribunal.
No person who has been tried by another court for conduct referred to in article 1(2) shall be tried by the Tribunal with respect to the same conduct unless the proceedings in the other court:
Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Tribunal; or
Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
An amnesty granted to any person for any crime falling within the jurisdiction of the Tribunal shall not be a bar to prosecution or punishment.
Provisions applicable to crimes defined in Article 2
Individual criminal responsibility
A person shall be criminally responsible and liable for punishment for war crimes if that person:
Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Tribunal; orBe made in the knowledge of the intention of the group to commit the crime;
Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.
Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this Statute, in relation to war crimes:
A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Tribunal committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Tribunal committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
Grounds for excluding criminal responsibility for war crimes
In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible for a war crime if, at the time of that person's conduct:
The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;
The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Tribunal;
The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph;
The conduct which is alleged to constitute a crime within the jurisdiction of the Tribunal has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:
Made by other persons; orConstituted by other circumstances beyond that person's control.
Mistake of fact or mistake of law
A mistake of fact shall be a ground for excluding criminal responsibility for a war crime only if it negates the mental element required by the crime.
A mistake of law as to whether a particular type of conduct is a war crime shall not be a ground for excluding criminal responsibility.
Superior orders and prescription of law
The fact that a war crime has been committed by a person pursuant to an order of a government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of the government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
Provisions applicable to crimes defined in articles 3 and 4
Provisions applicable to crimes defined under article 3
With respect to crimes defined in article 3, the Tribunal shall apply section 13 of the Aviation Offences Act 1984 of Malaysia, and Chapters IV (General Exceptions), V (Abetment) and VA (Criminal Conspiracy) of the Penal Code of Malaysia and other provisions of the substantive criminal law of Malaysia considered relevant by the Tribunal in the context of the specific criminal proceedings, and compatible with this Statute and internationally recognised norms and standards.
Provisions applicable to crimes defined in article 4
With respect to the crimes defined in article 4, the Tribunal shall apply Chapters III (Criminal offense, its types and stages), V (Guilt and its forms), VI (Complicity), and VIII (Circumstances excluding criminality of an action) of the Criminal Code of Ukraine and other provisions of the substantive criminal law of Ukraine considered relevant by the Tribunal in the context of the specific criminal proceedings, and compatible with the Statute and internationally recognised norms and standards.
Organization of the Tribunal
Organs of the Tribunal
The Tribunal shall consist of the following organs:
The Chambers, comprising a Pre-Trial Judge, a Trial Chamber and an Appeals Chamber;
Composition of the Chambers
The Chambers shall be composed as follows:
One Pre-Trial Judge; A Trial Chamber composed of three (3) judges; An Appeals Chamber composed of five (5) judges;Two (2) alternate judges.
The judges of the Trial Chamber and the judges of the Appeals Chamber, respectively, shall elect a presiding judge who shall conduct the proceedings in the Chamber to which he or she was elected.
The presiding judge of the Appeals Chamber shall be President of the Tribunal.
The President of the Tribunal may, in the interests of justice, assign an alternate judge to replace a judge, if that judge is unable to continue sitting.
A judge shall serve only in the Chamber to which he or she was assigned.
Qualifications of judges
The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices. They shall be independent in the performance of their functions and shall not accept or seek instructions from any government or any other source.
Every nominee for the position of judge of the Tribunal shall have established competence in criminal law and procedure, taking into account the need for the Tribunal to apply international law as well as the domestic laws of Malaysia and Ukraine, and shall preferably have relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings.
Every nominee for the position of judge of the Tribunal shall have an excellent knowledge of and be fluent in the working language of the Tribunal.
Appointment of judges
At the invitation of the Secretary-General of the United Nations, States may nominate candidates for the position of judge of the Tribunal.
The Secretary-General shall appoint judges, as and when the functioning of the Tribunal so requires. Appointments are made upon the recommendation of a selection panel he or she has established after indicating his or her intentions to the Security Council. The selection panel shall be composed of two judges, currently sitting on or retired from an international criminal tribunal, and a representative of the Secretary-General.
No two judges of the same nationality shall be appointed.
The judges shall be appointed for a five-year period and may be eligible for reappointment for a further period to be determined by the Secretary-General.