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A long-awaited verdict for passenger plane atrocity blamed on Russia

Just 2.5 miles away from where a Malaysia Airlines flight took off on a fateful day in July 2014, a Dutch court will announce its verdict on Thursday about the guilt of four men charged with shooting down the passenger aircraft as it flew over eastern Ukraine. 

THE HAGUE (CN) — Flight MH17 pushed back from the gate 13 minutes after its scheduled departure time. The Malaysia Airlines trip was overbooked, and several passengers arrived to gate G3 at Amsterdam’s Schiphol Airport late, delayed by earlier flights that landed behind schedule. 

It was a warm, sunny Thursday afternoon that July 17, 2014. Of the 298 people on board the Boeing 777, more than two-thirds of the passengers — 193 people — were Dutch. Many had be heading to a summer vacation, but none would reach their destination.

Three hours into the flight, as the plane was flying over eastern Ukraine, the aircraft disappeared from radar. The 15 members of the crew stopped responding to radio calls. And people living on the ground below began to see wreckage fall from the sky. 

Eight years

More than two years ago, before a silent courtroom, a prosecutor read the names of all 298 victims during the opening of a trial against four men charged with downing the plane. It took 19 minutes. This week, nearly a decade after the tragedy, The Hague District Court will render a verdict.

“The next of kin have been waiting eight years for this,” Piet Ploeg, who lost his brother, sister-in-law and nephew, said in an interview. Ploeg is also the chair of the MH17 Disaster Foundation, which has advocated for the relatives of those who died during the investigation and trial. 

Relatives of the victims lobbied hard for a trial, rather than seeing the result of the investigation as the final step or accepting a parliamentary inquiry. “It is for us for important that an impartial court gives us a verdict,” Ploeg said. 

The effort made by the Dutch legal system for the proceedings has been enormous. The case file runs more than 70,000 pages — the largest in Dutch history. 

The Hague District Court has decamped to the Judicial Complex Schiphol, a high-security facility located 2.5 minutes from the airport where MH17 departed. The courtroom is too small to accommodate the interest, however, and so the court constructed a media center nearby to house the hundreds of journalists from around the world who have covered the story. 

To bring the proceedings to families scattered across the globe, the entire trial has been live-streamed. Several hundred plan to attend the reading of the verdict in person, including around 90 who will travel from abroad. In an effort to accommodate the international audience, the trial has been simultaneously translated into English. 

The sky is reflected in the national MH17 monument in Vijfhuizen, Netherlands, which carries the names of the victims of the downed Malaysia Airlines Flight 17, on March 6, 2020. (AP Photo/Peter Dejong, File)

'Ordinary Dutch legal system'

Five years after the crash, in June 2019, the Dutch Public Prosecution Service announced it would indict three Russian men — Igor Girkin, Sergei Dubinsky and Oleg Pulatov — and one Ukraine man, Leonid Kharchenko, for the deaths of everyone on board MH17. 

They are charged with murder — though the judges could ultimately convict on the lesser charge of manslaughter — as well as shooting down a passenger aircraft.

Prosecutors say the four men supplied a Russian-made Buk surface-to-air missile system to Russian-backed separatists fighting in eastern Ukraine, arranging transport from a Russian military unit over the border. “We are the first international victims of Russia’s war,” Ploeg told Courthouse News. 

Girkin, the highest-ranking defendant, was a former colonel in Russia's intelligence service, the FSB. At the time, he was serving as the minister of defense for the self-proclaimed Donetsk People’s Republic, the breakaway Ukrainian state where the disaster occurred. Both Dubinsky and Pulatov had previously worked for the GRU, Russia's military intelligence agency. Dubinsky was acting as the DPR's intelligence chief with Pulatov serving as his deputy. Kharchenko, the lone Ukrainian, had no previous military experience but was commanding a rebel group during the conflict.

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Dutch law gives the Netherlands the right to prosecute crimes that occur against its citizens abroad and can choose to include victims of other nationalities. It also says the shooting down of any aircraft is illegal. The Netherlands outlawed attacking aircraft when it signed the Hague Hijacking Convention in 1970. 

“This is the ordinary Dutch legal system,” Marieke de Hoon, assistant professor of international criminal law at the University of Amsterdam, said in an interview.  

Ukraine agreed to turn prosecution over to the Netherlands, likely because it was preoccupied with fighting a Russian invasion. The Hague, known as the international city of peace and justice, is home to the high court of the United Nations, the International Court of Justice; the world’s only permanent court for atrocity crimes, the International Criminal Court; and many other special courts and tribunals. Being sent “to The Hague” is shorthand for being tried for war crimes. 

Other avenues

Citizens of 14 countries were killed in the crash, and authorities had initially attempted to investigate the tragedy by way of a special tribunal — similar to the International Criminal Tribunal for the Former Yugoslavia or International Criminal Tribunal for Rwanda. Russia maintains a seat, however, on the United Nations Security Council, which created the courts for other conflicts. It blocked the attempts for a tribunal on MH17.

De Hoon, who has become one of the leading experts on the trial, said a tribunal would have been unusual in any case. She noted that air disasters are typically addressed through diplomatic means, but Moscow has been wholly uncooperative, having spent the last eight years concocting a disinformation campaign about the crash and its role in Ukraine at the time. Research by the five-country joint investigation team looking into MH17 found that so-called troll factories in Russia published more than 100,000 tweets about the disaster, focussed on blaming Ukraine, the CIA and the “West” in general for the tragedy. 

The trial is not proceeding under the legal concept of universal jurisdiction, which allows states to prosecute certain crimes regardless of where they occurred. The Hague District Court has seen trials of suspected war criminals from Syria, Afghanistan and Ethiopia among others in recent years, earning it the nickname “the busiest ICC in The Hague,” a jab at the sometimes slow prosecutions taking place at the International Criminal Court, the world’s only permanent court for atrocity crimes, located just a few miles away. 

Ukrainian honor guards lift up a coffin, holding the body of one of the Malaysian Airlines plane passengers, to load it onto a Dutch cargo plane at Kharkiv airport in Ukraine on July 23, 2014. (AP Photo/ Sergei Chuzavkov, File)

Open sources

Investigators at previous U.N. tribunals had access to crime scenes, support from state institutions and could interview suspects. The area where MH17 wreckage landed continues to be a war zone, and all four men remain at large. Russia does not extradite its own nationals. 

Thanks to the prevalence of smartphones, the advent of social media and the ubiquity of the internet, however, prosecutions are happening that might otherwise simply not be possible. Open-source intelligence, or OSINT, was really gaining traction when MH17 was downed in 2014. 

After the crash, researchers from Bellingcat, an investigative journalism group that specializes in the use of open sources, and others from the OSINT community used publicly available photos and videos to figure out what happened to the plane.

“MH17 really acted as a huge catalyst for driving interest in the use of open source investigation and bringing together a community of individuals who were interested in what happened,” Eliot Higgins, founder and creative director of Bellingcat, said in an interview.

Researchers from the joint investigation team were also focused on OSNIT, and the trial showcased much of their findings. At one point, the prosecution presented a compilation of various bits of cellphone and dashboard footage to show the Buk traveling from the Russian border to the field where it would ultimately be used.

Without the OSINT evidence, de Hoon said, “it is difficult to see how this trial would be possible." 

Holding Moscow accountable

The verdict in the Netherlands will rule only on the guilt or innocence of the four men criminally charged, but relatives and others want to see the Russian state held to account. “I don’t see this as closure,” said Ploeg. 

In 2019, the International Court of Justice — the high court of the United Nations — accepted jurisdiction in a case brought by Ukraine against Russia, alleging that Moscow illegally financed separatist groups in eastern Ukraine, including those who are accused of shooting down MH17. Kyiv is pursuing a separate case at the same court over the full-scale invasion by Russia earlier this year. 

Ukraine has also gone after Russia at the European Court of Human Rights. Joined by the Netherlands, Kyiv argued in January Moscow was in control of the area where the missile was launched from. Together with Australia, the Netherlands brought a case to the United Nations' aviation organization, the International Civil Aviation Organization, arguing Russia is liable for the downing of the plane. 

Lasting impact

None of the suspects are in Dutch custody, though Oleg Pulatov has retained counsel. His defense team called for a full acquittal earlier this year, arguing there was no evidence connecting him to the downing of the plane. The men are being tried in absentia, and, if they ever end up in Dutch custody, could ask for the entire trial to be done over. 

Prosecutors have asked for the longest possible sentence — 20 years in jail — allowed by law. Such sentences are rare; only 44 have been imposed in the past two decades in the country. Regardless of the verdict, an appeal is almost certainly guaranteed, and the proceedings will likely continue for years to come. “We never expect to see them in The Hague,” Ploeg said. 

The court will issue its verdict on Thursday, November 17, at 1:30 p.m. local time. 

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