Much more to be done before MH17 findings can support a war crime trial

The reconstructed front of Malaysian Airlines flight MH17, which was shot down over Ukraine in July 2014. AAP/Lloyd Jones

On Tuesday, the Dutch Safety Board released its report into the downing of Malaysian Airlines flight MH17 over Ukraine in July 2014. All on board – 298 people – were killed.

MH17 is said to have been downed by a Russian-made BUK surface-to-air missile, launched from somewhere in a 320-square-kilometre area in eastern Ukraine. A warhead, carried by a BUK missile, reportedly detonated above the left-hand side of the plane’s cockpit. This caused the aircraft to disintegrate in mid-air.

The board was never expected to make a finding on who was responsible for the incident. However, its conclusion that a BUK missile brought down MH17 will be taken as a nod to Russian-backed rebel responsibility. The board’s report is crucial to the progress of the ongoing criminal investigation, led by the Dutch and supported by Australia, Belgium, Malaysia and Ukraine. That investigation will report by 2016.

The prospect of a war crimes prosecution

Soon after the downing of MH17, some raised the charge that those responsible had committed a war crime. Under the Dutch Law on International Crimes, the Netherlands may bring a domestic prosecution against anyone accused of committing a war crime against a Dutch citizen.

However, as the crash killed the nationals of 11 countries, the preferable approach may be a prosecution under international law. Partners in the criminal investigation have already put forward a draft UN Security Council resolution aiming to establish a specialist independent war crimes tribunal. Australian Foreign Minister Julie Bishop spoke in support of this proposal:

The establishment of an international criminal tribunal under Chapter VII of the UN Charter for this purpose would send a clear message that the international community will not tolerate acts that threaten international peace and security by endangering civil aviation.

A tribunal established by the council would ensure broad international support for prosecutions and would maximise the prospects of securing international co-operation, which will be necessary for an effective prosecution.

Russia, which holds a Security Council veto, is opposed to the creation of an independent tribunal. Investigators will no doubt be exploring alternatives, including the International Criminal Court and the fallback option of a Dutch domestic prosecution.

Bishop has not ruled out supporting another attempt to gain Security Council approval for a special international tribunal.

Was it a war crime?

MH17 was shot down over the region of Donetsk in Ukraine during a period of intense fighting in the non-international armed conflict between Ukraine and pro-Russian separatist forces. The Dutch Safety Board has reported that around 16 Ukrainian military aircraft were shot down in the weeks preceding the MH17 disaster.

The setting thus clearly meets the contextual requirement of protracted armed violence between organised belligerent groups.

Next, it must be shown that the ongoing armed conflict played:

… a substantial part in the perpetrator’s ability to commit the crime, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.

If, as has been alleged, Russian-backed rebels fired the missile at MH17, this element would also likely be established.

Far more challenging, however, may be identifying which individuals to prosecute as perpetrators. Ukraine and those engaged in the criminal investigation blame pro-Russian rebels, and may have data which could identify suspects. Ukraine calls the incident a “terrorist attack”. Russia continues to blame Ukraine.

If the criminal investigation team identifies suspects, the next challenge will be apprehending them to face trial before the chosen court. The International Criminal Court has no enforcement powers for arrest warrants. It relies on state parties to apprehend and transfer accused persons for trial. This may prove exceedingly difficult in a case where Russia is likely to provide safe haven.

It is possible that trials in absentia would help to speed up the process of international criminal justice and enable the court to conduct more trials. But, at this stage, the International Criminal Court must have a suspect before it in order to conduct a trial and deliver judgment.

If accused persons are apprehended, prosecutors would likely consider charging them with the war crime of wilful killing of non-combatants. Other charges may also be proposed. The prosecutors would emphasise the humanitarian law principle of “distinction” – that is, combatants must do everything possible to ensure that their targets are military.

The international outrage in response to MH17 demonstrates the power and importance of distinction. Many can imagine themselves in the position of the victims, who surely never anticipated their sudden and tragic fate.

To prove the “mental element” of wilful killing, the prosecutors must show that the accused intended to kill “protected persons” – that is, non-combatants. This may prove the greatest possible hurdle to a successful international war crimes prosecution. At this stage, definitive evidence has not emerged to show such an intention on the part of any alleged perpetrators.

It is possible, instead, that the perpetrators intended to attack what they thought was a Ukrainian military target.

An alternative approach

If prosecutors determine that a war crimes prosecution is unlikely to succeed, some form of prosecution may still be possible. For example, a Dutch prosecutor may charge alleged perpetrators with murder and/or manslaughter under domestic criminal law.

However, such an approach would lack the demonstration effect of an international inquiry.

In either case, authorities must first identify and gain custody of this attack’s perpetrators.

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