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Malaysia: draft resolution

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The Security Council,

Reaffirming its resolution 2166 (2014) of 21 July 2014 on the downing of Malaysia Airlines flight MH 17 on 17 July 2014 in Donetsk Oblast, Ukraine concerning the tragic loss of 298 lives, in which it demanded that those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability,

Recalling its resolution 2202 (2015) of 17 February 2015, which reaffirmed resolution 2166,

Noting the Preliminary Report into the cause of the crash by the Dutch Safety Board entrusted with the investigation in accordance with Annex 13 of the Convention on International Civil Aviation, issued on 9 September 2014, which identified that the aircraft was destroyed by a large number of high energy objects that penetrated the aircraft from the outside, recalling the briefing of the Council on 19 September 2014 and noting also the resolution on MH17 adopted by the Council of the International Civil Aviation Organisation on 28 October 2014,

Reaffirming the rules of international law that prohibit acts of violence that pose a threat to the safety of international civil aviation and in this regard deploring all other acts of violence against civilian aircraft,

Noting also the letters addressed to this Council by the Government of the Netherlands dated 16 December 2014 (S/2014/903) and 20 July 2015 (S/2015/551), respectively announcing the creation of a Joint Investigation Team to coordinate the international criminal investigation, with the aim of bringing the perpetrators to justice, and providing an update in relation to the status of that investigation, as well as the recovery and repatriation mission and the international technical investigation into the cause of the crash,

Deeply concerned by all acts of violence that pose a threat to the safety of civil aviation,

Determining that this violent act and its implications for the safety of civil aviation constitute a threat to international peace and security,

Determined to deter future attacks on civil aircraft and to take effective measures to bring to justice the persons who are responsible for this incident,

Believing that the establishment of an international tribunal and the prosecution of persons responsible for this incident will contribute to the safety of civil aviation and to maintenance of international peace and security,

Convinced that in the particular circumstances of this incident, the establishment of an international tribunal would be an effective guarantee for an independent and impartial accountability process in accordance with international standards,

Referring to the letter from the Governments of Australia, Belgium, Malaysia, The Netherlands and Ukraine dated 10 July 2015 (S/2015/528), and acknowledging their commitment to ensuring the effective functioning of an international tribunal, which will build upon the work of the Joint Investigation Team,

Acting under Chapter VII of the Charter of the United Nations,

1. Reiterates its deepest sympathies and condolences to the families of the victims of this incident and to the people and governments of the victims’ countries of origins;

2. Demands that all States and other actors refrain from acts of violence directed against civilian aircraft;

3. Calls upon all States and actors in the region to accord full cooperation in the conduct of the international investigation of this incident as required by Resolution 2166 (2014);

4. Requests the States working together in the Joint Investigation Team to continue to keep the Council fully and regularly informed of the progress of its investigation as appropriate and without prejudice to the confidentiality of the criminal investigation;

5. Urges the earliest possible finalization of the international technical investigation into the cause of the crash and the criminal investigation, without prejudice to the quality of those investigations;

6. Decides to establish an international tribunal for the sole purpose of prosecuting persons responsible for crimes connected with the downing of Malaysia Airlines flight MH17 on 17 July 2014 in Donetsk Oblast, Ukraine, and to this end adopts the Statute of the International Criminal Tribunal for Malaysia Airlines Flight MH17 annexed hereto;

7. Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal, and that consequently, all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued in accordance with the Statute of the International Tribunal, and requests States to keep the Secretary-General informed of such measures;

8. Decides that the International Tribunal shall be funded through voluntary contributions and encourages States and intergovernmental and non-governmental organizations to contribute funds, equipment and services to the International Tribunal, including the offer of expert personnel;

9. Decides that the determination of the seat of the International Tribunal is subject to the conclusion of appropriate arrangements between the United Nations and the Netherlands acceptable to the Council, and that the International Tribunal may sit elsewhere when it considers it necessary for the efficient exercise of its functions;

10. Decides also that the work of the International Tribunal shall be carried out without prejudice to the existing right of the families of victims to seek, through appropriate means, compensation;

11. Requests the Secretary-General to implement this resolution urgently, and in particular, to make all practical arrangements, when appropriate in coordination with the Governments of Australia, Belgium, Malaysia, The Netherlands and Ukraine, for the effective functioning of the International Tribunal at the earliest time and to report to the Council periodically on the implementation of this resolution;

12. Decides to remain actively seized of the matter.

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