Can the perpetrators who shot down MH17 be prosecuted for murder?

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The shot down of MH17 is legally very complex. Was it a war crime, was it terrorism, was it murder, under which law? The law under which the perpetrators who shot down MH17 are convicted determines if it is murder or not.

For a while the countries part of the Joint Investigation Team opted for an international  United Nations tribunal. However the Russian Federation used its veto to block such an international tribunal.

There are various options for prosecution. This whitepaper provides a lot of information.

  • the International Court of Justice (ICJ);
  • the European Court of Human Rights (ECHR);
  • the International Criminal Court (ICC);
  • prosecutions in domestic criminal courts;
  • civil litigation proceedings

This blog describes that for ICC an accidental downing of civilian airplane based on an honest belief that the airplane was a military objective is not a war crime

At this moment the JIT countries did not decide yet under which law the perpretrators will be convicted. The PM of Malaysia stated that after JIT has finished the criminal investigation countries will meet to discuss options for prosecution.

The ICC states that to prosecute for murder, this requires  proof that “[t]he perpetrator intended the civilian population as such … to be the object of the attack.” That will be very difficult to prove. Additionally the ICC does not recognize a reckless act.

So prosecution under ICC law does not seem to be an option.

Prosecution under domestic law (Ukraine, the Netherlands, Malaysia, Australia ) for murder would be easier than taking the ICC option.

According this blog written by Alex Whiting

For a domestic murder case, the status of the victims (military or civilian) makes no difference.  The prosecution would only need to prove that in launching the missile, the perpetrators intended to kill those on the plane, a considerably easier burden than trying to prove that they intentionally targeted civilians. The intent to kill those on the plane would be easily inferred from the act of launching the missile itself, and would not require separate proof.

One of the issues with prosecution on domestic law is a high likelyhood lawyers of the suspect will claim the judges of the court will be biased. Suppose Russian Army staff are responsible for the downing of MH17. In that case an Ukraine court is out of the question.

Malaysian law still has death penalty. A court case under Malaysian law would be out of the question for the other JIT countries.

As most of the victims were Dutch, a court case under Dutch law would be the favourable option.

Currently there is an issue with prosecution under Dutch law of an act done outside the Netherlands by foreign people. Article 552y of the Dutch law prohibits a conviction for foreign suspects for murder of all 298 people on board MH17.Basically this law prohibits the transfer of prosecution (rechtsmacht) of Ukraine to the Netherlands.

So article 552y needs to be adjusted before a courtcase under Dutch law can take place. More information in this NRC article. At the moment there is a bill (request for change of law) at the Dutch Raad van State to remove article 552y. Cedric Ryngaert , writer of this blog , agrees prosecution under Dutch law is the best option. Dutch government responded about this here.

An alternative would be an international Dutch-Russian tribunal.

Dutch prosecutor in January 2016 stated he has a suspicion of murder on MH17 passengers.

For murder a court case under domestic law is the only option. Maybe this explains the fact the Dutch government does its best to remain neutral and not interfere with the prosecution. And maybe this explains why Malaysia only joined JIT months after JIT started. The reason for this was rumoured to be the death penalty in Malaysia. For sure Australia and the Netherlands do not want death penalty.

 

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12 Comments on Can the perpetrators who shot down MH17 be prosecuted for murder?

  1. Thank you for this overview.
    In most countries there is a distinction between “murder” and “manslaughter”.
    Both are serious crimes, but to qualify as a murder, there have to be inferiour motives.
    In the scenario that separatists mistook MH17 for a military aircraft, that motive is absent
    In any scenario where the missile was fired accidentally as well
    If Russian troops called in to protect Donbass cities against further attacks agains civilians like those that happened 15th Jily in Snizhne were responsible, it is debatable
    If MH17 was shot down deliberately, by Poroshenko, Obama, or whoever, in order to prove the “evilness of Russian terrorists”, then it was murder.

    • sotilaspassi // August 25, 2016 at 6:40 am // Reply

      >In the scenario that separatists mistook MH17 for a military aircraft, that motive is absent

      RU sent their men and BUK to murder Ukrainian people. SO it’s a murder.

      >In any scenario where the missile was fired accidentally as well

      To me the accidental launch seem impossible.

      >If Russian troops called in to protect Donbass cities against further attacks agains civilians like those that happened 15th Jily in Snizhne were responsible, it is debatable

      There is no evidence of Ukraine ever attacking vs civilians.
      If there is, please show it.

      >If MH17 was shot down deliberately, by Poroshenko, Obama, or whoever, in order to prove the “evilness of Russian terrorists”, then it was murder.

      Launch area is confirmed. It was under rebel control.
      I see no possibility of any Ukrainian military crew with BUK being inside that area.

      • >> There is no evidence of Ukraine ever attacking vs civilians.

        WTF are you talking about? Ukraine force shelling cities EVERY DAY by aircrafts, MRLS, artillery and even rockets (tochka). Thousands of casualities. Go to youtube immediately and see hundreds videos with the consequences of these barbaric acts against civilians.

        • sotilaspassi // August 25, 2016 at 11:19 am // Reply

          I have gone through thousand videos.
          No evidence of deliberate attack vs civilians.

          Most typical case is that Russians use Ukrainian civilians as human shields. Launching attacks beside civilian houses draw return fire to the area. (both are war crimes, though)

          • According to international law, any source of fire on civilian targets is itself a legitimate target. If that source of fire was located among civilians, it remains a legitimate target; and if that vicinity invites return fire, causing casualties among the local population, these casualties are the full and sole responsibility of the party that placed them deliberately in harm’s way.

            Return fire is just the lesser evil vs inaction. Otherwise it would be impossible to defeat terrorists (those who use human shields ARE terrorists), so a total expected number of civilian casualties would be greater in that case.

            However, the fact is that during this war all widely acknowledged cases of shelling with numerous civilian casualties (like those in Volnovakha, Mariupol, Donetsk etc) were committed by Russian mercenaries. As for bombing Snizhne on July 15, 2014, I commented here: http://www.whathappenedtoflightmh17.com/why-it-is-extremely-unlikely-ukraine-does-not-have-primary-radar-recordings/#comment-20324

      • “There is no evidence of Ukraine ever attacking vs civilians. If there is, please show it.”

        https://www.youtube.com/watch?v=nmpn6kKrc20

        “To me the accidental launch seem impossible.”

        “According to the US government, Vincennes mistakenly identified the Iranian airliner as an attacking military fighter.”

        • sotilaspassi // August 25, 2016 at 11:17 am // Reply

          That video show (criminally poorly performed) attack vs militant headquarters.

          Launch vs Iranian airliner was not accidental launch. And not by BUK.
          US launched the missile deliberately, not accidentally.

          BUK missile does not launch accidentally.

          • That BUK was launched as well intended. Same situation as with the Iranian airliner although in that case the mistake is even more weird as it has a full crew and tools.

      • Liane Theuer // August 25, 2016 at 8:41 pm // Reply

        sotilaspassi wrote : „There is no evidence of Ukraine ever attacking vs civilians.
        If there is, please show it.“

        Are you kidding ? I could give you hundreds of examples.
        But I´m getting only one out.
        June 2014 shelling of Sloviansk :
        https://www.youtube.com/watch?v=T8S2AcR-oaA

        Do you even ignore all the reports of Human Rights Organisations ?

  2. I am sure no single state authority will dare prosecute the perpetrators without an express consent from the Russian regime. Just for fear of a unacceptable response from Putin (even if not military one, then something that brings a state or national businesses to huge financial losses). Obviously it’s silly to expect such a consent. The best expected by me option is some show (pseudo court) in Malaysia that will absolve everyone (in their absence, of course) due to failure to prove the charge. Unofficially Malaysia and/or its corrupt politicians will get a compensation from Russia/Putin by some hidden way, and the case will be closed thereupon. At least until the time when some sane regime gets come to power in Russia, that I don’t expect to occur within the next decades anyways…

    • You are talking about HIDDEN compensation by Putin, but do not have any evidence like other west propaganda. But you “forget” about USA and it’s hard pressures like confiscation of 1 billion dollars from Prime Minister of Malaysia. If you do not see things like that — then what kind of justice are you saying. Nonsense.

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