Delivering International Criminal Justice through Domestic Law? The Case of Flight MH17

On 17 July 2014, a passenger jet was struck down mid-flight over eastern Ukraine killing all 298 civilians on board. Malaysia Airlines Flight MH17 was travelling from Amsterdam to Kuala Lumpur on a flight path and altitude that was declared open by Ukraine.1 The Boeing 777-200 was travelling at an alti¬tude of 33,000ft when, at 1:20PM, the left-hand side of the cockpit was hit.2 Evidence would later indicate that a surface-to-air missile targeted the aircraft and a warhead detonated outside the left-hand side of the cockpit, causing the cockpit to break away from the fuselage.3 The plane was hit in a pro-Russian rebel controlled region in eastern Ukraine where active conflict was underway.4 The victims, by nationality, included 192 Dutch, 44 Malaysians, 27 Australians, 12 Indonesians, 10 British, four Germans, four Belgians, three Filipinos, one Canadian and one New Zealander.5 The international community was shocked by an attack on a passenger plane and the atrocity raised immedi¬ate questions of legal responsibility. Since the crash, multiple legal forums have been engaged to estab¬lish responsibility for the downing of the plane. Malaysia Airlines and five Australian families who lost their loved ones reached a financial settlement because of the airline's decision to fly over an active war zone.6 There are also several cases before international courts alleging Russian responsibility for intervening militarily in the region, financing terrorism and supplying missiles to separatists who allegedly perpetrated the attack.7 Ukraine is also in the spot-light for allegedly failing to close the airspace above the active Donetsk conflict zone before MH17 was downed.8 These legal actions have aimed to attribute accountability and bring some measure of justice for the victims' families. However, the principal focus in attributing responsibility has been on the arrest and prosecution of alleged individual offenders. In the aftermath of the attack, the Joint Investigative Taskforce ('JIT'), comprised of personnel from the Netherlands, Ukraine, Australia, Belgium and Malaysia, worked to unearth the facts of the incident and establish an international prosecution mechanism.9 Ukraine transferred jurisdiction to the Netherlands to try those accused of downing the aircraft, following a Russian veto for a United Nations ('UN') led international tribunal.10 Following years of investigation, charges were laid against Igor Girkin, Sergei Dubinskiy, Oleg Pulatov and Leonid Kharchenko.11 The trial in the Netherlands commenced on 9 March 2020.12 Only Pulatov has sought representation and, although he is not physically present before the court, he is therefore regarded as legally present. The trial of the other three accused is being conducted in absentia as they have not sought to be represented by defence counsel or respond to the charges. At the time of writing, hearings are underway following multiple disruptions resulting from the COVID-19 pandemic.13 This article critically considers the Dutch trial and prosecution process, and how it might or might not serve the interests of justice for the victims of MH17. The trial is currently in its third year. To date, opening arguments have been presented, the Prosecution case has been put forward, victim impact state¬ments have been provided and defence arguments presented. It is expected that the Court will deliver its judgment in late 2022.14 In Part Two, we con¬sider the aims of international criminal justice when a crime causes harm to foreign nationals across multiple jurisdictions. In Part Three, we consider the complex JIT investigation into the atrocity, how this investigation was hindered and the effects for the delivery of international criminal justice. In Part Four, we consider the choice to prosecute individuals under the Dutch Criminal Code. We focus particularly on the trial as it is progressing. Firstly, we consider whether applying Dutch domestic law will serve justice or whether international humanitarian law should have been applied or an inter-national forum sough . In light of the failure of the accused to present before the court, we highlight the legal ramifications for justice of conducting the trial in absentia. As an academic exercise, we explore the defence of combat¬ant immunity. This defence is not actually available to the accused due to the Prosecution's decision not to charge them with war crimes. However, it is worth considering as part of the complex circumstances, and the fact that any form of trial has the potential to implicate state involvement in the atrocity. We consider the role of the vivolvement in the atrocity. We consider the role of the victim in Dutch proceedings and compare victims' rights to those expected at an international forum. © Koninklijke Brill NV, Leiden, 20 23.

COVID-19 VACCINE EQUITY - A TELEPHONE OUTREACH INITIATIVE

STATEMENT OF PROBLEM/QUESTION: When COVID-19 vaccine notification and scheduling is largely driven by patient portals, how can clinics and health systems ensure that vaccine distribution is equitable? DESCRIPTION OF PROGRAM/INTERVENTION: The COVID-19 pandemic has disproportionately impacted minority communities, evidenced by higher rates of infection, hospitalization, and mortality. Elderly, minority, and socially vulnerable populations are less likely to enroll in patient portals. Our urban academic General Internal Medicine (GIM) practice serves a high proportion of Black and socially vulnerable patients. For patients 65 and older in our clinic, significant disparities exist in patient portal access between white and Black patients (85.3% versus 35.3%) and those living in high versus low social vulnerability zip codes (45.3% versus 82.1%). The larger health system deployed a method of patient outreach largely driven by patient portal notification and scheduling. Our GIM practice mobilized community health workers and students to engage in telephonic outreach to patients aged 65 and older without patient portal access. Our team provided outreach to 1575 GIM clinic patients from February 5 to March 10, 2021. During that time, 903 GIM patients completed their first dose of the COVID-19 vaccine;51.9% had been contacted through our outreach. MEASURES OF SUCCESS: A pre-post analysis of demographics of patients receiving vaccination from the GIM clinic was completed to understand rates of vaccination by race/ethnicity, social vulnerability, and portal access with a sub-analysis of those who received outreach. A more robust comparative analysis is being completed to understand the impact compared to other health system internal medicine clinics where additional outreach was not completed to understand differences in relation to race/ethnicity, social vulnerability, and portal access. This analysis will be available by the time of presentation. FINDINGS TO DATE: Compared to the first week of vaccine availability when no outreach was conducted, the intervention resulted in significant increases in the vaccination rates among vulnerable populations. After 4 weeks of telephone outreach, the proportion of vaccine recipients who were nonHispanic Black increased from 7.1% to 43%, the proportion with inactive EMR status increased from 2.8% to 36.4%, and the proportion from high social vulnerability zip codes increased from 13.9% to 44.7%. For the subset of patients for which outreach resulted in vaccination, 65% were Black, 69.9% had an inactive EMR, and 64.2% lived in a high social vulnerability zip code. KEY LESSONS FOR DISSEMINATION: This intervention has shown that a telephonic outreach program targeting elderly individuals without patient portal access can measurably improve not only access to vaccine for those without patient portals but equity in COVID-19 vaccine access for Black and socially vulnerable communities. This type of population management strategy will be important to ensure equity in access to not only vaccines but other preventative services for vulnerable communities.

Streamlining skin cancer services during the COVID-19 pandemic

The COVID-19 pandemic has enforced drastic changes in dermatological practice with skin cancer services prioritized. Two-week-wait referrals from April to May 2019 were compared with the same period from 2020 - at the height of the pandemic - and analysed using Stata version 16 in order to inform a long-term change in practice. There were 695 referrals across both years (4 months);441 (63.4%) in 2019 and 254 (36.5%) in 2020. The rate of attendance was higher in 2019 (pre-COVID-19): 418 (95%) vs. 227 (90%) in 2020 (P = 0.008). Mean patient age in 2019 was 56 years and in 2020 it was 52 years. There was no change in sex distribution. Among the attendees, 45.3% required a biopsy. The rate of biopsy requirement was lower in 2020 than in 2019 (38% vs. 49%;P = 0.007);however, more of the biopsies were carried out on the day in 2020 than in 2019 (33% vs. 11%;P < 0.001). The most common reason for not performing a biopsy in those requiring one in 2019 was due to elective booking (85%);however, in 2020 there were only 10 patients who did not have a biopsy when one was required and the reasons were mainly unknown. Across both years, there were 17 histologically confirmed cases of malignant melanoma: 2.6% of all attendees. This rate was slightly higher in 2020 (3.1% vs. 2.4%) but was not statistically significant (P = 0.6). The rated of basal cell carcinoma, squamous cell carcinoma and other malignancies were 6.8%, 5.1% and 5.9%, respectively, and were not statistically significant different between 2019 and 2020. The rate of melanocytic naevus was 6.2% and other melanocytic lesions was 1.1%. The rate of histological confirmation of 'other benign' conditions was 14.6%;this was significantly lower in 2020 (9.3%) compared with 2019 (17.5%;P = 0.005). Overall, 47% were discharged on the same day;57.6% in 2020 vs. 40.7% in 2019 (P < 0.001). Among those requiring follow-up, the majority in 2019 had face-to-face appointments (56%);however, in 2020 the majority had telephone appointments (65%), which was statistically significant (P = 0.001). Our data suggest that the changes incurred by COVID-19 have driven a more effective and accurate skin cancer service;similar amounts of malignancies were identified with a simultaneous reduction in biopsy-proven benign conditions. In the future, there is an important role for on-the-day biopsies with more telephone follow-up consultations.