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.