Joint press conference with Minister Marise Payne and Attorney-General Michaelia Cash

  • Joint transcript
Subjects: Australia and the Netherlands initiate MH17 legal proceedings
14 March 2022

Marise Payne: Good evening and thank you very much for joining me here with the Attorney-General this evening. One of the reasons we are here at this time is because we are coordinating with a simultaneous announcement by our partners in the Netherlands. The Foreign Minister, Minister Hoekstra, the Minister for Infrastructure and Water Management, Minister Harbers.

Australia and the Netherlands share the strongest commitment to protecting and defending the rules-based order. So today we are announcing that we have initiated legal proceedings against the Russian Federation in the International Civil Aviation Organization for the downing of Malaysia Airlines Flight MH 17 in 2014. This is an important step in the fight for truth, justice and accountability for all of the victims of MH 17, including the 38 who called Australia home. Russia has, to date refused to acknowledge and take responsibility for its clear role in this horrific incident. We have always said that all legal options were on the table. After Australia and the Netherlands resolved in 2018 that Russia had responsibility for the darning of Flight MH 17, we pursued trilateral negotiations in good faith with Russia in an attempt to reach an outcome. Russia has refused to return to those negotiations despite our repeated requests, including requests by Prime Minister Rutte and Prime Minister Morrison. The ICAO Council is empowered to consider breaches serious breaches of international law. This case, our case is firmly based on findings and evidence from the Joint Investigation Team, comprised of the investigative agencies of Australia, Belgium, Malaysia, the Netherlands, and Ukraine, as well as the Dutch Safety Board. Those findings and evidence clearly show that the conduct leading up to and including the firing of the missile that brought down Flight MH 17 is attributable to the Russian Federation. Russia's recent invasion of Ukraine, which we have consistently condemned in the strongest terms, reinforces the need to hold Russia to account for its egregious international actions.

There is no doubt that Russia's invasion has been a painful reminder to those who lost loved ones on Flight MH 17. We all remember 38 Australian citizens and permanent residents were killed. We can't take away their grief. The Australian government is committed to pursuing every avenue to ensure that this horrific tragedy is not repeated, and we will continue tirelessly in our efforts with close partners to hold Russia to account for its violations of international law, including its threats to Ukraine's sovereignty and airspace. I ask the Attorney-General to make some remarks.

Michaelia Cash: Thank you, Foreign Minister. As the Foreign Minister has said on the 17 July 2014, a horrific act of violence cut short the lives of 298 people, including 38 Australians. Flight MH 17 was shot down by a surface-to-air missile launched from a Russian Buk-Telar. The Convention on International Civil Aviation, known as the Chicago Convention, requires States to refrain from using weapons against civil aircraft in flight. That obligation is of paramount importance in preserving the safety and security of international civil aviation. The downing of Flight MH 17 was a clear breach of the Chicago Convention, a breach for which Russia bears responsibility. It caused tremendous grief and suffering to the next of kin of the victims, pain aggravated by the absence to date of any acknowledgment by Russia of its responsibility for the downing. It is why the pursuit of truth, justice and accountability for the victims of the downing of Flight MH 17 in close and as the Foreign Minister has said, valued partnership with the Netherlands has been the priority of both of our governments.

Evidence has been collected, examined and verified through painstaking investigations. The technical investigation was led by the Dutch Safety Board and carried out in full compliance with International Civil Aviation Organization requirements. The only conclusion that can be drawn from all of the evidence is that Russia's actions caused the downing of Flight MH 17 and that it bears responsibility. As the Foreign Minister has referred to the legal proceedings that have been initiated, Australia and the Netherlands will rely on overwhelming evidence that first, MH 17 was shot down by a Russian Buk-Telar surface-to-air missile system. Secondly, the missile system was transported from Russia to an agricultural field in the east of Ukraine on the morning of 17 July 2014, an area under the control of Russian-backed separatists. Thirdly, the missile system belonged to the Russian Federation's 53rd Anti-aircraft Military Brigade and was accompanied by a trained Russian military crew. Fourthly, the launch site, the Buk-Telar, fired the missile that shot down Flight MH 17, killing all 298 people on board. Fifthly, the missile could only have been fired by the trained Russian crew of the Buk-Telar, or at least by someone acting under their instruction, direction or control. And finally, the Buk-Telar missile system was returned to the Russian Federation shortly after the downing of MH 17.

The people on board flight MH 17 in common with all people all over the world, each and every one of us, those of us here today, we put our trust in the safety of international civil aviation. That trust is built on the rules established by the Chicago Convention. These rules must be upheld so that people can fly safe in the knowledge that their lives will not be taken from them by deliberate acts of violence. Russia flouted those rules with tragic consequences. Having transported and deployed the Buk-Telar to the east of Ukraine, and knowing the serious danger it posed to civil aviation, the Russian Federation simply failed to take any measures that would have prevented the downing of Flight MH 17.

The government, as the Foreign Minister has stated, together with our Dutch partners, has tried to resolve this matter with the Russian Federation directly. In March 2018, we announced that we held Russia accountable under international law for downing MH 17 and invited them to negotiate a mutually acceptable outcome. Regrettably, Russia withdrew from those negotiations and have rejected all subsequent attempts to get them back to the negotiating table. We must conclude that our exhaustive efforts to resolve this matter by negotiation have failed due simply to the intransigence of the Russian Federation. We therefore call upon the International Civil Aviation Organization as the sole body that has jurisdiction to deal with this matter, to fulfill its mandate and hold Russia to account for its egregious actions in downing flight MH 17 and the tragic loss of life that has entailed.

Australia and the Netherlands are seeking the following relief from the ICAO Council. First, to decide and declare that by its conduct resulting in the downing of flight MH 17, the Russian Federation breached Article 3bis of the Chicago Convention. Secondly, to order that the parties immediately enter good faith negotiations to resolve expeditiously the matters of full reparation for the injury caused by Russia's breach, and that the Council is requested to notify the assembly of the following, that the Russian Federation has been found in default under the Chicago Convention, the voting power of the Russian Federation in the ICAO Assembly, and the Council is therefore suspended in accordance with Article 88 of the Chicago Convention, and the suspension of the voting power of the Russian Federation under Article 88 of the Chicago Convention should continue until such time as the ICAO Council informs the assembly that the negotiations have reached a satisfactory outcome. Thank you, Foreign Minister.

Marise Payne: Thank you. Questions?

Journalist: Sorry I just kind of wanted to understand the process, it's very technical, very legal. What does Russia lose by having its voting rights suspended?

Michaelia Cash: Well, they are unable to therefore vote on any matter that comes before the International Civil Aviation Authority. What we are looking for by way of both the Australian government and the government of the Netherlands, is trust, responsibility or truth, justice and accountability.

Journalist: Is there any other punitive measures or any other sanctions or any other restrictions that might be imposed?

Michaelia Cash: That is something that the Council itself would consider. But in the first instance, as I said, what we are looking for is that to decide and declare to have the International Civil Aviation Organization itself, the Council declare that by its conduct resulting in the downing of Flight MH 17, the Russian Federation, they have breached, it is a very serious breach. Article 3bis of the Chicago Convention. But also you would have heard the Foreign Minister say that whilst we have entered into negotiations for some time in good faith, Russia itself, disappointingly, they withdrew from those negotiations. We would like to see those negotiations continue, and therefore, we would request that ICAO make an order that the parties enter into those good faith negotiations. But ultimately, there are a number of ways that you could determine this, but ultimately that will be for the ICAO Council itself to determine once they have all the information in front of it.

Journalist: Russia withdrew from these negotiations about 18 months ago. Why is this action being brought now, today?

Marise Payne: Well, there are multiple reasons for the action being brought today, but of course, as you know, there is also an action between which the Dutch government and which Australia has supported in relation to domestic trials in the Netherlands. This is separate but complimentary to that. We have always said that we will pursue every legal Avenue that we can. So there is that action. They are proceedings against individual suspects through the Dutch National Prosecution. We are providing support to the Dutch National Prosecution as well as bringing these proceedings in the ICAO.

There is also the matter in relation to human rights breaches that the Netherlands themselves have before the European Court of Human Rights. That's about breaches of international human rights law. We're not a party to that. This is a separate matter. It's fair to say that these discussions have been ongoing between Australia and the Netherlands over a period of time, and I think it's important to recognize that this action is about pursuing accountability. Accountability through the ICAO proceedings, which under the convention, as the attorney general has referred to, is where they can deliver that message. So Russia, who prides their participation in multilateral organizations greatly, would remain a council member but have no voice on any issue, would not be able to vote on ICAO election, would not be able to participate in votes on ICAO disputes, would lose their ability to block consensus. It's about suspending their voting power, and it's about accountability. This is today about accountability

Journalist: Senator Payne and Senator Cash, are you afraid all this fresh legal action will exacerbate tension between Russia and Ukraine?

Marise Payne: Well, I think that Russia and Russia's actions are exactly what is exacerbating tensions, and I'm afraid that's not a phrase I would use between Russia and Ukraine. I think an egregious and wholesale breach of international law, complete violation of the UN Charter, is rather more significant than just exacerbating tensions.

Journalist:: And have you considered how this is going to make the families if the victims feel, bringing all of this [indistinct] again.

Marise Payne: The families of the victims overwhelmingly believe in the efforts to achieve truth, justice and accountability. Through my department, we have communicated with families in relation to this. We have been supporting families, and it has been difficult through COVID, given the restrictions on travel, to engage in the Dutch National Prosecution and be informed about the Dutch National Prosecution. But I understand, as I said in my remarks, I think that families who have seen another extraordinarily egregious example of Russia's international behaviour in recent weeks in relation to Ukraine will certainly be deeply disturbed by that.

Journalist: How do you think Russia will respond to this action? Do you think it will have any effect on them, given their current dismissal of some of the global sanctions that have been introduced against them?

Marise Payne: Ultimately, that is a matter for Russia. But as I said to you, Russia is a very active participant in the multilateral community, and that includes the ICAO and bodies like the ICAO, of which there are only 36 members. It's a small but important body that sets all the standards around air travel, and civilian air travel. Is an important role, In Russia's view. This would suspend their participation.

Journalist: How long does a process like this take to work its way through the system?

Michaelia Cash: So basically the next step in the process is for the ICAO to set out a time frame in which Russia has to respond to the submissions that have been filed on behalf of the Australian government and on behalf of the Netherlands that will take place over the next few months. Russia will then obviously have that opportunity to respond and then depending on the response given by the Russian Federation, the ICAO would set out a time frame going from there.

Journalist: Does the Australian government anticipate if events were to change that they would withdraw this action?

Marise Payne: Well, if Russia was prepared to return to the negotiation table, the [indistinct] negotiation table that we had been participating in with the Netherlands, then that would be a matter that we could consider but we have seen no sign of good faith from Russia on that for some time.

Journalist: The only other question I have and please, if I get this mistake and let me know, was any motive identified the downing of this flight

Marise Payne: In terms of the? -

JOURNALIST: During the course of your investigation and your compilation of evidence, were you able to identify why this may have happened?

Marise Payne: I don't think the JIT procedures identify motive in that way. The Joint Investigation Team procedures and the Dutch National Safety Office similarly.

Journalist: Thank you.

Marise Payne: But again, I stand to be corrected as well.

Michaelia Cash: Thank you very much.

Marise Payne: Any other questions? Thank you.

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