The downing of MH17 is a war crime. It's time to call a spade a spade

Nowadays, the crash of the Malaysian Airlines Boeing-777 passenger flight MH17 is mentioned more often at film festivals than in the news. At the same time, it is important for Ukraine not to forget about this case, as it has real prospects for bringing Russian officials to justice. 

Why wasn't the downing of MH17 classified as a war crime?

This is the question that people who are familiar with the case file have. And it is the question I was asked most often when I was the head of the Joint Investigation Team from Ukraine, which was engaged in this investigation.

For us, Ukrainians, everything looks quite obvious: On July 17, 2014, in the course of an international armed conflict, Russian-controlled forces shot down a civilian aircraft from a Buk anti-aircraft missile system belonging to the 53rd Air Defense Brigade of the Russian Armed Forces stationed near Kursk.

However, let's look back to 2014. Back then, for the international community, qualifying this crime as an international crime would mean recognizing the Russian-Ukrainian war, which our international partners were not ready to do at the time. While the situation with Crimea was clear, they were in no hurry to recognize the conflict in Donbas as international. At that time, the entire Russian propaganda machine was working to prove the mixed nature of the conflict taking place in Ukraine (i.e., that it was non-international and international at the same time, that we were actually having a "civil war," etc.) And the international community was not ready for a hybrid form of communication policy. At that time, Ukraine was not able to provide sufficient evidence and arguments, and our partners lacked the political will to call a spade a spade. And for many years after the MH17 tragedy, Ukraine's No. 1 task was to prove that the power vertical, economy, and military infrastructure of the quasi-entities (the so-called DPR/LPR) were integrated into the Russian system and that Russia exercised effective control over these territories.

In the end, Ukraine had to make a compromise decision - to partially cede our jurisdiction to the Netherlands, which had the financial and organizational capacity to try a case of this magnitude. In addition, the trial by the District Court of The Hague, which took place in the Schiphol court complex, was trusted by the international community. And Dutch law has an interesting provision. Let me remind you that the four first defendants in this case were charged under two articles of the Dutch Criminal Code. These are the downing of an airplane and premeditated murder. According to Dutch law, it does not matter whether the Russian military was going to shoot down a passenger plane or a military plane of the Ukrainian Armed Forces (and the argument about "confusion" was raised immediately).

So now we have the first stage of the MH17 case completed, three defendants convicted and one acquitted. But this should definitely not be the final point. This is only an intermediate stage.

How to bring the ruling elite of the Russian Federation to justice?

The court in the Netherlands is not the only trial on the downing of MH17. At the very least, it is worth noting that the European Court of Human Rights (ECHR) has recognized the case of Russia's responsibility for this catastrophe as admissible. The Ukrainian side asked to recognize that it was Russia that had been exercising control over the territory of the self-proclaimed quasi-entities since 2014. And by accepting this case for consideration, the ECHR actually confirmed this.

In addition, the International Court of Justice is considering a case of Russia's violation of two conventions, one of which is on combating the financing of terrorism, where, in particular, the case of the downing of the MH17 passenger plane is being heard.

At the same time, it is extremely important to complete the investigation of the personal responsibility of everyone involved in the downing of MH17: from the military and political leadership of the Russian Federation to those who directly executed the order. This is important both for establishing justice and for legal recognition, (followed by a clear articulation) of the fact that Ukraine has been at war with Russia not since February 24, 2022, but since February 20, 2014. To avoid situations in future when a victim assistance fund is created that will pay compensation exclusively to victims after the start of full-scale aggression. Crimes committed before February 24, 2022 should be classified as war crimes, not as terrorism or "general criminal" crimes. All victims should be restored to their rights and the perpetrators should be punished.

And today, we have the capabilities and tools to give a correct legal assessment. The Ukrainian side has the moral right and legal arguments to qualify the downing of MH17 and to continue to treat it as a war crime. In my opinion, there is every reason for the International Criminal Court to give a legal assessment of Putin and other military and political leaders of the Russian Federation in this case. After all, the transfer of such a serious weapon as the Buk could not have taken place without the knowledge of Russia's top military and political leadership. This is where the obvious command responsibility can be seen. And if the Dutch court could not overcome the personal and functional immunities of Russian leaders, the ICC can. Therefore, the ICC can have the case file handed over by the Ukrainian side and can reasonably issue a notice of suspicion.

Unfortunately, the number of tragedies and war crimes in Ukraine is already in the hundreds of thousands. Therefore, it may seem that the catastrophe that happened 9 years ago is no longer relevant. And we have heard some verdicts. At the same time, I believe that it is extremely important for Ukraine to persevere so that this case is eventually brought to a logical conclusion. This is important both for the restoration of justice in general and for the future historical assessment of the events that took place since February 20, 2014. 

Read this article in russian and Ukrainian.