Ukraine’s Prosecutor General stating JIT requested ICC to review MH17 seems very unlikely

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At November 23 Ukraine Interfax reported :

The international investigation group probing the downing of the Boeing passenger airline MH17 in Donbas during July 2014 will ask the International Criminal Court (ICC) to review the crime as a result of state treason committed by ex-President Viktor Yanukovych, as well as the subsequent occupation of Crimea and parts of eastern Ukraine.

“The MH17 catastrophe is being treated as a military crime and, probably, as a crime against humanity. The joint investigative group of four countries, including Ukraine, will insist the case is reviewed by the ICC’s criminal court,” head of Ukraine’s Prosecutor General’s Office (PGO) Yuriy Lutsenko told journalists in the Hague, Netherlands on Tuesday.

To me it seems to be extremely unlikely JIT did indeed request ICC to review MH17 with the purpose to have suspects of the downing be prosecuted by ICC.

For various reasons this scenario is extremely unlikely:

  1. ICC stimulates a prosecution of crimes under domestic law. As local investigation and prosecution at the moment is being performed by Durch prosecution service and others,  there is no reason to have ICC review the MH17 case.
  2. Dutch government never mentioned ICC as a valid route for prosecution in briefings to the parliament. Two options likely are under domestic Dutch law or a hybrid tribunal under law of the JIT member states.
  3. Russia recently announced its intention to withdraw from ICC. When proseuction is done by ICC you are sure suspects will never be punished.

So what could be the case?

Most likely a misunderstanding by an Ukraine journalist. A  delegation of the Ukrainian prosecution service was in The Hague where ICC resides to hand over evidence which could proof Russian warcrimes in Donbass and Crimea. It could be words were misunderstood.

A less likely scenario is  the Ukraine prosecution service is playing a political game. The Netherlands has a preference for prosecution under Dutch law. Ukraine might express a different preference just to put pressure on the Dutch.

The spokesman of the Dutch prosecution service with leads JIT on Wednesday could not comment on this matter.



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