The Coming Trial of the MH17 Suspects: The Case Against the Prosecution – PART I

The reconstructed wreckage of the MH17 airplane is seen after the presentation of the final report into the crash of July 2014 of Malaysia Airlines flight MH17 over Ukraine, in Gilze Rijen, the Netherlands, October 13, 2015. © Michael Kooren © Reuters

PART I. International Criminal Law and Interventionist Justice

This previously unpublished document by Kees van der Pijl on the Trial of the MH17 Suspects: The Case Against the Prosecution, contains essential material for our readers.

On 9 March, 2020, the trial of those accused of being responsible for the downing of Malaysia Airlines Flight MH17 on 17 July 2014, is planned to begin. The decision to hold a trial of MH17 suspects was taken by the Dutch Public Prosecution Service (Openbaar Ministerie, OM) on 19 June 2019, on the basis of the criminal investigation by the Joint investigation Committee, JIT. The JIT members conducting this investigation are the Netherlands, Australia, Belgium, and Ukraine and Malaysia (since March 2015). Prime Minister Mahathir of Malaysia has criticised the late admission of his country to the criminal prosecution, and also has raised doubts about the pertinence of the indictment for murder of three Russians and one Ukrainian, an indictment made public at the JIT press conference also on 19 June 2019.

CONTENTS

1.1. Introduction. The MH17 Trial as Political Theatre 2

1.1.1. Legal Bases of the Prosecution 5

1.1.2. The Hallmarks of a Show Trial 7

1.1.3. The ‘Integrity Initiative’ and the anti-Russia Campaign 10

1.2. From Outlawing War to ‘Humanitarian Intervention’ 18

1.2.1. The UN Charter and Nuremberg 19

1.2.2. The Vietnam Tribunal: Salvaging the Nuremberg Legacy Privately 21

1.2.3. Human Rights and Intervention 23

1.3. The NATO Intervention in Yugoslavia and the Yugoslavia Tribunal 29

1.3.1. The International Criminal Tribunal for the Former Yugoslavia 32

1.3.2 Extradition, Trial and Death of Milošević 35

1.3.3. The ICTY Precedent 38

1.4. The Rwanda Tribunal and the International Criminal Court 41

1.4.1. Rwanda and the Inculpation of Africa 41

1.4.2. The International Criminal Court (ICC) 48

1.4.3. A Return to Nuremberg? Malaysia’s War Crimes Tribunal 51

1.5. Lockerbie and Libya 54

1.5.1 The Lockerbie Trial in the Netherlands 56

1.5.2 Aftermath 58

1.6. International Criminal Justice and the Historical Record 61

References 64

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1.1. Introduction. The MH17 Trials as Political Theatre

On 9 March, 2020, the trial of those accused of being responsible for the downing of Malaysia Airlines Flight MH17 on 17 July 2014, is planned to begin.[1] The decision to hold a trial of MH17 suspects was taken by the Dutch Public Prosecution Service (Openbaar Ministerie, OM) on 19 June 2019, on the basis of the criminal investigation by the Joint investigation Committee, JIT. The JIT members conducting this investigation are the Netherlands, Australia, Belgium, and Ukraine and Malaysia (since March 2015). Prime Minister Mahathir of Malaysia has criticised the late admission of his country to the criminal prosecution, and also has raised doubts about the pertinence of the indictment for murder of three Russians and one Ukrainian, an indictment made public at the JIT press conference also on 19 June 2019.[2]

Whether the JIT under these circumstances is still able to function, is therefore in serious doubt. The decision by the JIT countries that the prosecution and trial of suspects would be conducted by and in the Netherlands, under Dutch law, dates from 5 July 2017. To facilitate the actual trial next year, a special treaty was concluded by the Netherlands and Ukraine covering a number of practical issues such as extradition, video hearing of defendants, and the like. The trial will be held before the Hague District Court, in a special location to accommodate a large trial, the Justice Complex Schiphol (JCS) near Schiphol Airport. On the special website launched to publicise the event, and via which its proceedings will be live-streamed, the court is already being recommended as having extensive experience with cases involving international elements. ‘It has, for instance, heard cases with regard to offences that nowadays are punishable in the International Crimes Act…

1. This is Part I of a project jointly undertaken with Hector Reban and Max van der Werff after the author’s return from attending a conference MH17—The Quest for Justice, in Kuala Lumpur in August 2019. Many thanks to Mr. John Philpot, international criminal lawyer, for valuable comments.
2. Bonanza Media, MH17—Call for Justice (Yana Yerlashova, Max van der Werff) 2019. (online); Cyril Rosman, ‘Brandbrief MH17-nabestaanden aan Maleisische premier: “Stop met verdeeldheid zaaien”. ’ Algemeen Dagblad 30 August 2019 (online).

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PART I. International Criminal Law and Interventionist Justice