Ruling Expected in Downing of Flight MH17 – The Case Against Russia

Russia finds itself this November in the dock of the accused as three of its citizens face murder charges over the downing of flight MH17 on July 17, 2014. The Malaysian-bound carrier was shot down mid-air as it flew over the Russian separatist-held territory of Ukraine, killing all 298 passengers onboard, including 193 Netherlanders.

As a key player in the inquiry and all subsequent investigative work, the Netherlands is now expected to render its final verdict, ending years of agonizing wait for the families of the victims.

Four defendants stand accused (three in absentia) before the Dutch court. Three are Russian citizens and one is Ukrainian. They include:

• Igor Girkin – a former Federal Security Service (FSB) colonel and minister of defense of the so-called, Donetsk People’s Republic (DPR) at the time of the shooting;
• Sergey Dubinsky – a former officer of Russia’s military intelligence, the GRU. Dubinsky was Girkin’s deputy and the DPR’s head of intelligence;
• Oleg Pulatov – also a former Russian GRU officer and Dubinsky’s deputy;
• Leonid Kharchenko – a Ukrainian national who, at the time of the attack, was leading a DPR combat unit and took orders from Dubinsky directly.

All four men are accused of murder, with a further charge under article 168 of the Dutch criminal code which criminalizes the intentional and unlawful damage to aircrafts. The prosecution is calling for a life sentence for each defendant.

Of the four, Pulatov is the only one to have chosen to participate in the proceedings, arguing a lack of objectivity over the court’s alleged refusal to examine alternate theories and rationales.

In early November, Eliot Higgins of the Bellingcat investigative team, who was instrumental in identifying the missile that shot the plane, together with lawyer Jonathan Gimblett and Dr Marnie Howlett of Oxford University, attended an event held by the Henry Jackson Society. They discussed the ramifications of the attack and shone a light on both the legal entanglements of the act and its impact.

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Three other ongoing court cases

It stands to note that three other court cases on the downing of flight MH17 are currently underway.

Firstly, the Netherlands has launched a case against Russia in the European Court of Human Rights.

The complaint remains sealed, but Gimblett commented: “It’s not hard to imagine that it alleges that Russia was responsible for violating the right to life of all of the individuals killed on MH17. It’s a slow process and, at the moment, we’re waiting for a decision from the European Court of Human Rights on whether the case is admissible… In addition, there are individual applications on behalf of about 400 next of kin of those killed, but those applications will have to wait until the interstate case moves forward before they’re heard.”

A further case was launched by Australia and the Netherlands with the International Civil Aviation Organization (ICAO). The powers of the ICAO limit its council’s actions to the removal of Russia’s voting rights in the organization.

Additionally, Ukraine launched a case against Russia in the International Court of Justice circa 2017.

All cases have been appealed on the basis of the Convention on the Elimination of All Forms of Racial Discrimination and the Russian treatment of Crimean Tatars, as well as the International Convention for the Suppression of the Financing of Terrorism, for failing to prevent Russian officials from funding and sending arms to terrorists in eastern Ukraine, including those used for the downing of flight MH17.

Representing Ukraine’s legal standing, Giblett said: “The shootdown of MH17 is a prime example of Russia’s violations of that terrorism financing convention, firstly because there is clear-cut evidence that the Buk weapons system that brought down MH17 was supplied by the Russian Federation and operated by members of its military; and secondly, because the shootdown of the aircraft falls within the definition of terrorism under this convention. [This is] because it constitutes a violation of a separate convention called the Montreal Convention, which applies to the unlawful destruction of aircraft in service.”

Confident of the outcomes delivering justice, Giblett added: “Compared to domestic legal systems, international law can appear to the outsider to be confusing and ineffective at best, but what I hope that I’ve shown tonight is that although it is no doubt an imperfect system, with determination and legal creativity, the international mechanisms that do exist can be put to good use in pursuing justice for the innocent victims of atrocities like Russia’s downing of MH17.”

Political backdrop

The Netherlands’ verdict comes at an interesting political juncture, with the U.S. set for a change of the guard with the return in Congress of a Republican majority. This comes amid a push by the White House to change “gear” towards Ukraine, amid a growing consensus that peace talks should take precedence over Ukraine’s right to self-defend against Russia’s unwarranted aggression and territorial conquests.

Judging from the spike in conspiracy theories and mounting advocacy for a global Western military disengagement in Ukraine, it is rather evident that the Kremlin’s gambit – insofar as disinformation and manipulation are concerned – had gained traction, shining a light on Russia’s nefarious influence and networks throughout the Western world.

Commenting on the risk posed by “internet trolls” and the need to prepare society ahead of an expected grand propaganda “push”, Higgins noted: “If you look at people who believe that MH17 was shot down by the Ukrainians, often you’re looking at people who have a sense of betrayal from Western governments.”

 He added: “Really [this is] a form of online radicalization… How do we stop that from happening? How do we reach out to those people?

The problem is that when they cross over into those communities and they become true believers, it’s almost like a cult-like thing, so it’s very hard to draw people out of that because if you say that I’m a mainstream journalist or fact checker and you’re wrong, they’ll say ‘of course you’re going to say that, because you’re part of the global conspiracy against whatever I think is true.’

What we need to do is start working at an earlier level, really.”

Stepan Stepanenko and Catherine Perez-Shakdam are Research Fellows at the Henry Jackson Society