Even as Ukraine defends itself against Russia’s military campaign to control Ukrainian territory, another contest is playing out in The Hague related to one of the most shocking incidents in the early days of the war in 2014. On Nov. 17, the District Court of The Hague is due to issue the first judgment in a multi-prong push for accountability in the July 17, 2014, downing of Malaysian Airlines Flight MH17. The airline had been flying from Amsterdam to Kuala Lumpur when, according to investigators, it was shot down by a Russian Buk anti-aircraft missile launched from an agricultural field in what was then territory controlled by Russian-backed forces. All 298 people on board were killed — 283 passengers and 15 crew spanning 17 nationalities.
Four men – three former members of Russian military intelligence and a Ukrainian commander of Russian-backed forces – have been on trial at the Hague court since March 2020 on charges of murder and manslaughter in the deaths. The case is among several legal efforts to secure justice in the downing of MH17. Separate proceedings are ongoing at the European Court of Human Rights (ECtHR) on whether Russia can be held responsible for the downing of the plane and for a failure to investigate, as well as whether Ukraine can be held responsible for failing to close its airspace during the war in the east. And at the International Civil Aviation Organization (ICAO), a complaint to determine whether Russia violated civil aviation treaties may ultimately lead to an appeal at the International Court of Justice (ICJ).
The four suspects (the terminology used in Dutch criminal law) in the District Court are Russian nationals Igor Vsevolodovich Girkin, Sergey Nikolayevich Dubinskiy, and Oleg Yuldashevich Pulatov, and Ukrainian Leonid Volodymyrovych Kharchenko. The prosecution has argued that the four were important leaders in the eastern Ukraine conflict and responsible for the downing of MH17. Prosecutors said Pulatov was the coordinator of all movements in the area of troops fighting for the separatist Donetsk People’s Republic (DPR) and that he was in command of the anti-aircraft unit. Kharchenko was in the vanguard of the offensive, which had begun in the city of Snizhne in Donetsk province. Dubinskiy and Girkin were in more senior roles of command. Girkin was directly in contact with Russian state officials. Dubinskiy and Girkin allegedly were constantly informed by their subordinates and, where necessary, directed units themselves.
They have denied involvement in the downing of MH17. Girkin, who had been the Russian-appointed “minister of defense” in the DPR, has taken the position that MH17 was not shot down by DPR forces. Dubinskiy says he was only involved in transporting the Buk. Pulatov has denied any involvement or that he ever discussed the Buk with anyone. Later, confronted by recorded telephone conversations in which he spoke about the Buk, he took the position that the conversations were deliberately aimed to deceive the enemy. Kharchenko says he never saw a Buk in eastern Ukraine.
Foreign Prosecution Immunity for Combatants?
Under international law, combatant immunity protects military forces from being prosecuted in foreign domestic courts for participating in hostilities. A plausible scenario of what actually happened on that day in July 2014 is that the pro-Russian fighters tried to down a Ukrainian fighter plane and mistakenly hit MH17. In an armed conflict, combatants are allowed to attack military targets as long as they do so in accordance with the rules of international humanitarian law (IHL). And there is some room for a defense of mistake. Combatants are immune from prosecution in foreign domestic courts unless they commit war crimes.
Notwithstanding whether or not a war crime was committed, the Dutch prosecutors argued that, to be recognized as a combatant and thus enjoy combatant privileges such as immunity from foreign prosecution, a person needs to be part of the armed forces of a party to an international armed conflict (Russia). However, the suspects deny this and presented themselves as volunteers in the conflict rather than part of the Russian armed forces. Moreover, Russia denied any involvement in the armed conflict and denied that the suspects or the DPR and the neighboring Luhansk People’s Republic (LPR) were under Russian command. Furthermore, the prosecution argued that the DPR and LPR themselves did not have a properly functioning internal disciplinary system that enforces compliance with the rules of armed conflict, as demonstrated by the commission of many war crimes in the area at the time, such as executions, torture, and destruction and appropriation of property.
The prosecution therefore posited as follows: Even though the alleged crimes were committed in eastern Ukraine, Dutch criminal law applies when crimes are committed against Dutch nationals on the basis of the passive personality principle. Combined with that, if the suspects were not combatants in accordance with the rules of armed conflict, they do not benefit from combatant immunity and can be prosecuted in the Dutch criminal court.
Pulatov did not invoke immunity. His lawyers explained that he did not want to hide behind Russian immunity and was not operating on behalf of or ordered to take any actions by Russia. Notwithstanding, the court may want to provide its own views on the matter.
The prosecution has charged the suspects with two crimes: downing a plane (Article 168 Dutch Criminal Code, DCC) and murder (Article 289 DCC). According the prosecution, it did not matter whether the suspects intended to shoot down a Ukrainian military plane and accidentally downed a passenger flight. The prosecution’s line of argumentation is that, because they did not have the right that combatants have to shoot at military targets, any flight that would be downed and any person they would kill as a consequence of being responsible for the launching of the Buk would meet the requirements of these charges.
The prosecution has requested the maximum sentence for both offenses — life in prison. In the event the required condition of premeditation is not proven for the murder charges, prosecutors subsidiarily indicted the suspects on manslaughter (Article 287 DCC). The indictment also accuses each suspect of perpetrating these crimes through different modes of participation: functional (co)perpetration, co-perpetration, incitement, and complicity.
Article 168 DCC applies to someone who “intentionally and unlawfully” causes the crash of an airplane (or boat or vehicle) that risks someone’s life. The court needs to decide whether prosecutors have proven beyond a reasonable doubt that the conduct of the suspects caused the crash of MH17 and that they did so intentionally. The suspects are not alleged to have launched the Buk, so the question is whether they had the power of decision about whether the missile would be launched, in the sense that they could have prevented it from occurring, and did they have the knowledge of how the missile would be used and failed to prevent it? Prosecutors held that the four suspects were functional (co)perpetrators in the downing of MH17, in an argument that could be compared somewhat to international criminal law’s command responsibility.
The prosecution moreover argued that the suspects also were co-perpetrators. On this, the court needs to decide whether the suspects’ conduct, which according to the prosecution constituted “conscious and close cooperation” to get the Buk to a strategic position to shoot down a plane, caused the crash. Both functional (co)perpetration and co-perpetration are forms to connect the suspects to the launching of the Buk. The prosecution has invoked both, hoping that the court agrees that the criteria of at least one of them will be found satisfied. However, the defense argued that these standards that have been developed in Dutch case law are not met and that their client should therefore be acquitted.
On the murder charge, Article 289 DCC defines the crime as applying to someone who takes someone’s life “intentionally” and “with premeditation.” If premeditation cannot be proven but intent is established, the suspects can be convicted for manslaughter under Article 287 DCC.
The minimum threshold to prove intent for both murder and manslaughter is dolus eventualis, which means that it needs to be proven beyond a reasonable doubt that the accused knew or should have known that there was a “considerable chance” that what they did would result in the death of people, and that they “consciously accepted that risk” and still acted “willingly.” Again, did they do so as functional (co)perpetrators, meaning can it be proven that each suspect was a functional perpetrator in the sense of having the power of decision whether the acts would occur (the launch of the Buk), knew that a Buk would be used, and failed to try to prevent it, and therefore accepted the consequences? And/or were they co-perpetrators: committing the crime in conscious and close cooperation, with each co-perpetrator having a sufficiently substantial role?
For the conviction to rise to murder, the court needs to decide whether premeditation is proven, namely that each suspect had the opportunity to consider his actions before taking someone’s life and not acted on an impulse. In other words, were these suspects able to consider requesting and organizing the Buk missile and could they have considered not launching it? Prosecutors argued that, indeed, the suspects had ample time to reconsider during the many hours that it took to the transport the Buk.
The general line of defense has been to disagree with the interpretation and application of the law in most of the prosecution’s argumentation. Defense attorneys have, moreover, pleaded for the exclusion of many parts of the evidence on the basis of its unreliability or violation of fair trial rights. They have also argued that the prosecution should be declared inadmissible for violating several aspects of the right to a fair trial.
The Prosecution’s Evidence
The investigations took place in a conflict where disinformation prevails. According to the prosecution, they therefore took extra care throughout the investigation to verify the reliability of the evidence — for instance by gathering evidence from many different sources that can corroborate one another’s reliability. For example, they presented information about the route of the Buk from video footage of bystanders who posted them on their social media accounts, whereby the positioning of the shadows and the weather in those images were compared with information about the position of the sun and weather conditions at the time and location when and where the video reportedly was recorded. They moreover presented how they corroborated that with information on what telephone masts were used by phones that were tapped and whether they matched other pieces of evidence about the location and route.
With regard to the role of the suspects and the cooperation among them, the prosecution substantiated its argumentation with, for example, telephone conversations on July 16 and 17, 2014, recorded by Ukrainian intelligence. In those conversations, the suspects allegedly spoke to each other about the need for a Buk, determining an appropriate location to launch from, and transporting the Buk to that location, followed by the suspects’ initial enthusiasm that the Buk had shot down a plane, the adjustment of the narrative for the outside world when it turned out to have been a civilian aircraft, and the return of the Buk across the Russian border.
There was relatively little reliance on witness testimony, and where witness testimony was used and was particularly important, it was corroborated by evidence from other sources. This is important, because witness testimony is known to be unreliable, as most people do not have very reliable recollections of what they have observed, particularly when they testify on occurrences long ago.
Suspects Absent from Trial Proceedings
The four suspects, whose whereabouts have been unclear, have chosen not to attend their trial. In the Netherlands, a suspect has the right to attend and participate in their trial, but not an obligation. A suspect has three options: First, remain entirely absent and have the trial conducted in absentia (“bij verstek”). Girkin, Dubinskiy, and Kharchenko are prosecuted in absentia. Second, be present during the trial. No one chose this option. Third, be absent while still sending an attorney to exercise the defense rights on their behalf. This is what Pulatov chose to do. His trial is therefore an adversarial proceeding (“procedure op tegenspraak”) and not a “trial in absentia.”
The ECtHR long ago decided that trials in absentia are not a violation of fair trial rights as such, as long as the court ensures that the suspects are aware of their trial and that they voluntarily renounced their right to be present or be represented. At the first hearing on March 9, 2020, the court ruled that the suspects could not have not known that they were prosecuted in the Netherlands for downing MH17. The court, for instance, referred to Girkin’s comments about the trial in news media and said that he would not attend the trial.
Dutch law provides that a court can also order a suspect to be present in their trial. In the MH17 case, however, it was not possible to enforce such an order, since the suspects are not on Dutch territory. However, because the trial has been conducted publicly via livestream, they had the option to follow the proceedings online. Moreover, Pulatov has been able to instruct his defense attorneys throughout the proceedings and spoke to the court via two pre-recorded videos. He has refused to be cross-examined or answer the court’s questions.
Each of the suspects has the right to appeal after the judgment. Moreover, if the suspects who are tried in absentia are found guilty and they are apprehended — for example, when traveling abroad — they would have the right to a retrial. The appeals procedure would then suffice.
Expectations of the Judgment
The court has scheduled only 1 1/2 hours for reading of the judgment. This is short, especially since the court is obliged to explain exactly why it has come to its decision, which usually entails a discussion of all of the evidence, whether that evidence constitutes one or more crimes, and whether and why each of the suspects is guilty of those crimes. The court also will decide whether the next of kin are entitled to damages to be paid by the suspects if they are found guilty and whether Ukrainian law applies to that element of the case.
Considering the trial has taken 2 1/2 years to cover all the arguments and evidence, the short timeframe the court has scheduled to announce its decision likely means that it will read out a public summary and refer to a written text elaborating on its reasoning. Of course, the short period scheduled also might suggest the court has decided the prosecution didn’t make its case and that the defendants should be acquitted.
Within 14 days after the judgment, both the prosecution and the defense may appeal the decision. The Court of Appeals may then consider the issues that are appealed anew, both related to the facts and law.
In other words, this trial against these four suspects may not end on Nov. 17. Moreover, other criminal proceedings may follow. And later this year, the European Court of Human Rights is expected to rule on admissibility as well as on the role of Russia in eastern Ukraine in 2014. Furthermore, proceedings at the ICAO also focus on whether Russia is responsible and violated civil aviation treaties.
So, a lot of proceedings to come, but will they deliver justice? The results most certainly will not be “perfect justice” in the sense that the suspects, if convicted, will see the inside of a prison anytime soon or ever. Nor is Russia likely to pay any compensation that the European Court may award. But it is recognition to the families of those who died about who is responsible, and it counters the denial and conspiracy theories that Ukraine was responsible and faked the evidence. It also provides support to the Ukrainians who said all along that Russia was meddling in eastern Ukraine. Legal proceedings create historical records, for current and future generations. It may not seem much, but it is so much better than accepting the denial and fabrications of evidence and doing nothing. Whether it feels like justice for the next of kin remains to be seen. First, let’s see what the court rules on Nov. 17.