On November 17 2022, the Hague District Court in the Netherlands convicted two Russians and a Ukrainian of murder in relation to the downing of flight MH17 by a Buk-TELAR surface-to-air missile in 2014 over rebel-held territory in Ukraine.
This conviction is the first concluded legal action in relation to the incident. It is important not only because it provides some answers for the families of the 298 people killed on that flight, but because it demonstrates that states intend to pursue justice against Russian acts of violence connected with the Ukrainian conflict, regardless of the time or cost involved.
This conviction can, in some respects, be considered shallow. Many family members have still not achieved closure in terms of recovery of their loved ones’ remains. Those most responsible have not been prosecuted or held to account.
However, this prosecution is an important first step in bringing those responsible to justice. It serves as an indicator that the international community will not tolerate such actions; and as a signal to Russians involved in atrocities in the ongoing Ukrainian conflict that they may yet be held to account.
It further demonstrates the value of in-absentia trials – where those who are being tried do not have to be present. The Dutch convictions regarding the downing flight MH17 occurred without having custody over the perpetrators. The convicted men remain at large, and it is unlikely Russia will agree to their extradition.
However, their convictions will remain in place for their entire lives and can form the basis of subsequent legal action in relation to the incident.
Australia’s war crimes prosecution regime allows for the prosecution of crimes without any traditional jurisdictional nexus to the perpetrators; that is, without connection in geography or citizenship to the victims. It does not allow for prosecution without the presence of the accused.
It does, however, allow for proceedings to begin with the attorney-general’s permission. Extradition requests could then be sent to the Russian government to seek custody over the alleged perpetrators in order to continue the prosecution. Such action sends a strong message in support of the rule of law and accountability, even if the prosecution does not proceed.
The principle of double jeopardy (or ne bis in idem) does not apply between countries. That is, prosecutions in Australian will not prejudice other states from prosecuting the same offending. This means there is little risk to Australia in pursuing this course of action in terms of jeopardising other mechanisms for justice related to these crimes.
Australia provided expert investigators from the Australian Federal Police to support the MH17 investigation. Their evidence was used to secure these convictions.
Australian investigators will also support the investigation of war crimes in Ukraine. The prosecution of war crimes offences in Ukraine is going to take many years and will likely overwhelm their domestic criminal justice system.
One concern if these prosecutions occur outside of Ukraine is that victim participation will be reduced. Careful case selection and victims being able to participate remotely through technology can mitigate this.
Historical examples, such as in the case of Rwanda, demonstrate that concentrating prosecutions in one tribunal means prosecutions can continue for decades after the conflict; and justice delayed is justice denied.
Australia has the expertise and the opportunity to be seen as a leader in at least pressing for accountability for crimes in Ukraine.
Among other judicial activism in response to Russia’s invasion of Ukraine, Australia and the Netherlands have commenced proceedings against Russia in the International Civil Aviation Organization, on the basis that Russia is internationally responsible for downing the aircraft.
The Russians have rejected this legal action and the Netherlands prosecution as acts of “political favour”, which should be dismissed for a lack of impartiality. Effectively, Russia accuses Australia of using tactics of “lawfare” – using the law to affect a strategic outcome.
Rather than resile from these claims, Australia should embrace them, and continue to use lawfare to seek accountability for war crimes committed in the Ukraine conflict. There is value in launching carefully investigated domestic prosecutions for atrocity crimes. There is also value in reinforcing international criminal justice and accountability measures. This would prevent impunity and discourage further atrocity crimes being committed in this and future conflicts.
Specifically, there is political value in reinforcing the importance of the rule of law. Our political motivations should be to seek out and punish those guilty of committing atrocities.