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

ABSTRACT

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 120PM, 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.