Dutch Prosecutor demands life sentences for four MH17 suspects. When will Russia go on trial?
The Netherland’s Public Prosecutor has recommended life sentences against three Russians and one Ukrainian on trial in absentia for their believed role in the downing of Malaysian airliner MH17. Although none of the men is suspected of actually launching the Russian BUK anti-aircraft missile, the prosecution contends that they played an essential role in the crime, and that no other punishment would be appropriate. Since the three Russian – Igor Girkin; Sergey Dubinsky and Oleg Pulatov - and one Ukrainian, Leonid Kharchenko, are either in Russia or on the territory of the Russian proxy Donbas ‘republics’, such sentences may never translate into real imprisonment. They would, however, confirm the prosecution’s damning indictment, not only of the four individuals, but of Russia which provided the Buk anti-aircraft missile launcher used to down MH17 and kill all 298 passengers and crew on board, including 80 children. The findings that formed the basis of the trial against the four MH17 suspects are likely to be of crucial importance for two inter-state cases against Russia in the European Court of Human Rights (Ukraine and the Netherlands v. Russia) and in the UN’s International Court of Justice (Ukraine v. Russia). The evidence of clear lines of command between Russian / pro-Russian militants and Russia will surely also be of importance for the probable investigation into war and other international crimes by the International Criminal Court.
During the hearing at the District Court of the Hague on 22 December, the public prosecutor described the downing of MH17 as “an operation planned and organised by the defendants”. They had, together, consciously decided to use an extremely destructive weapon in order to shoot down a plane. The fact that they had likely been targeting “a Ukrainian combat aircraft does not detract at all from their guilt” The prosecutors point out that the defendants had every reason to understand the risk to civil aviation given that the airspace had not been closed. Nor could the fact that MH17 was downed “in the course of an armed conflict” be used as justification as the men were not regular military personnel and had demonstrated total indifference to the risk of civilian casualties.
While the prosecution’s case was against four individuals, the formidable amount of evidence regarding the Buk missile launcher’s origin and its hasty return to the Russian Federation do not just incriminate the four men. The Joint Investigation Team [JIT] established, the prosecution reiterated on Wednesday, “that the aircraft was downed by a Buk missile provided by a unit of the Russian army: the 53rd Anti-Aircraft Missile Brigade from Kursk.”
Yes, the men on trial should answer for their believed role in trying to obtain such a lethal weapon and in organizing its transport, but surely Russia should explain why the missile launcher was provided to militants who claimed to be ‘volunteers’ fighting in what Russia constantly refers to as a ‘Ukrainian civil war’? Worth noting that Russia first ignored, and then directly rejected, the court’s request to question Sergey Muchkaev, Commander of the 53rd Anti-Aircraft Missile Brigade from Kursk.
The proof demonstrated to the court of the men’s guilt included “hundreds of recorded phone conversations and other telecom data, and witness statements.” There is also a huge amount of evidence, which the prosecution summarized in its closing address on 20-21 December, proving the movement of the Buk missile launcher.
The prosecution states that, with the militants suffering heavy losses in July 2014, the defendants had asked for “a heavier air defence system from Russia. Under the defendants’ leadership, the Buk TELAR they receive is brought to a strategic launch location, directly below a civilian aviation flight path. “
The public prosecutor’s closing address can be read in full here. It provides a detailed account of the evidence amassed, of measures taken to ensure objectivity and to verify evidence provided, for example, by Ukraine which might otherwise be subjected to question as a party to the conflict. It is, of course, for the court to evaluate the evidence and to provide its verdict which is anticipated in September 2022.
The length of time required is almost certainly due to the huge weight of material provided, although this is not the impression given by Russian state-controlled media. After initially reporting the militants’ boasting that they had downed a Ukrainian military plane on 17 July 2014, with many such reports later deleted or edited, to remove photographic evidence, Russian media have constantly pushed any and every supposed ‘alternative version’ and provided very manipulative coverage of the JIT investigation.
On 22 December, the RIA Novosti headline stated only that the Netherlands prosecutor had demanded the arrest of four MH17 suspects. The first paragraph states only that arrest warrants were sought by prosecutor Manon Rudderbeks “although the prosecution against them is based on the testimony of anonymous witnesses and material from social media”. The request for life sentences is mentioned in the third paragraph, with the text then stating only that the men are accused of the destruction of the plane and the deaths, not the fact that they are accused of having ordered and organized the transportation to the site of a Russian Buk missile launcher. This can, of course, be gauged from the following paragraph which claims that “the Russian side earlier pointed out that the investigative group on MH17 is based on unverified sources, ignoring the irrefutable evidence provided by Russia”. It asserts that the prosecution’s conclusions are based on Ukrainian photos and videos and on videos and photos of the Buk “found in the Internet”. And this, supposedly, is despite the Russian Defence Ministry “having indicated falsifications in the video”.
Only those actually following the case in detail will understand how mendacious and manipulative such claims are. All other ‘alternative versions’ were discussed in detail and the reasons for rejecting them provided. There was a huge mass of evidence, including forensic analyses of the victims’ bodies and of parts of the plane, confirming that the plane was downed by the specific Buk missile.
Such distortions still further incriminate Russia. While the latter is purportedly not involved in the trial, it seems next to impossible that Oleg Pulatov, the one defendant officially taking part, via lawyers, in the trial, is himself financing his ‘defence’. Most of the defence’s position appeared to involve seeking repeat investigations of this or that ‘alternative’ version. As for anonymous witnesses, there are some whose identity is protected, however the demands on such testimony are extremely stringent, and there is no reason to believe, unlike in the majority of Russia’s political trials of Crimean Tatars and other Ukrainians, that the indictment hinges upon those few protected witnesses. Russia’s credibility on the subject of witnesses is hardly enhanced by the measures it took to remove MH17 witness and possible suspect, Volodymyr Tsemach from the reach of the Ukrainian and Dutch prosecutors in 2019 (see: Dutch Prosecutor accuses Russia of deliberately hiding important MH17 suspect ).
Inter-state cases against Russia
International Court of Justice [ICJ]
Back in 2017, Russia expended great effort in trying to persuade the UN’s International Court of Justice that the latter did not have jurisdiction over Ukraine’s claims of violation of two UN conventions - the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination. It failed, and seems now to be trying mainly to drag out the proceedings for as long as it possibly can. The downing of MH17 will certainly be a major part of the case over the financing of terrorism.
International Criminal Court [ICC]
In December 2020, the Prosecutor of the International Criminal Court, Fatou Bensouda stated that she had found reasonable grounds for believing that war crimes and crimes against humanity, falling within ICC jurisdiction, had been committed both within the context of the conflict in Donbas and in Russian-occupied Crimea. Any ICC investigation will take years, but will presumably include accountability for the downing of MH17.
The European Court of Human Rights [ECHR]
In November 2020, the ECHR Grand Chamber announced that it was combining Ukraine’s inter-state case against the Russian Federation over its actions in eastern Ukraine with two other cases, most importantly, that brought by the Netherlands against Russia over MH17. In announcing its decision “to bring Russia before the European Court of Human Rights for its role in the downing of Flight MH17” back on 10 July 2020, the Dutch Government had promised that it would be sharing all its information about the disaster with the Court in Strasbourg. It also stressed that “by submitting this inter-State application, the Netherlands stands by all 298 MH17 victims, of 17 different nationalities, and their next of kin.”
The Grand Chamber hearing into this crucial case, referred to as Ukraine and the Netherlands v. Russia was recently delayed and is now scheduled for 26 January 2022.