UARU
Four Years Since MH17: Criminal Court Proceedings Begin
15 July, 2018

Four years since flight MH17 was downed in a Russia-occupied part of Donbas, various investigations have taken place to discover the cause of the tragedy, as well as which parties are responsible.  

The Dutch, Australian, Malaysian, and Ukrainian governments have all been keen to understand the situation, and a recent investigation by the Dutch-led Joint Investigation Team has uncovered that the plane with 298 passengers aboard was downed by a Buk missile system, procured from the Russian 53rd Antiaircraft Missile Brigade.

Though Russia continues to deny any responsibility, and no international criminal courts will take up the case, the Dutch government has declared that the Hague Criminal Court will go through with proceedings.

READ MORE: Investigation Finds Russian Military Officer Is A Suspect in MH17 Downing

Eduard Hoeks, Netherland’s ambassador to Ukraine, has expressed optimism that the case would be transferred to the jurisdiction of the Dutch courts, a decision which Ukrainian parliament subsequently ratified.

Photo credit: EPA.com

“It is rather unique that a country transfers jurisdiction of a case which has taken place on its territory to a country on which territory the case had not taken place. The Netherlands has decided that it will be the Hague Criminal Court that will judge on this case,” he said.

Though there is evidence present, Hoeks affirmed that a priori judgements about the identities of those responsible, and if they could be brought to court for the case, are at the moment impossible.

READ MORE: Bellingcat’s Aric Toler On Russian Trail in MH17 Downing

“I cannot speculate on the identity of the suspects, who they are, what nationality they have, where they are. The idea of bringing this to a Dutch criminal court I think at this moment is sufficient,” he said.

“We do know, and this has been brought to evidence by the Joint Investigation Team, that the Buk was of Russian origin and has been transported over the border to Ukrainian territory. That has been proven and on the basis of this, you know that a state complaint against Russia has been deposited by the Netherlands government.”

Photo credit: EPA.com

Hromadske sat down with Eduard Hoeks to discuss how the court proceedings will take place, what the present evidence entails, and what this will mean for relations with Russia.

We understand that despite all the initiatives which were a couple of years ago, there is no real will to have an international trial, and the court will most likely be set in the Netherlands. So how does it work? If Russia doesn't accept its responsibility and doesn't let people be tried in the Netherlands, how could this trial be just?

Indeed, there will be no international criminal court in this case. It is rather unique that a country transfers jurisdiction of a case which has taken place on its territory to a country on which territory the case had not taken place. The Netherlands has decided that it will be the Hague Criminal Court that will judge on this case. For this, an international, bilateral treaty between Ukraine and the Netherlands is necessary, and the Netherlands parliament has recently ratified this treaty, the Senate. President Poroshenko has indicated that he will soon also sign this treaty, which makes it possible to transfer jurisdiction to the Netherlands.

If these people would be tried in absentia, would it be considered fair and just by the families? Because that could be more symbolic rather than a real trial in that regard.

Let me say that I cannot speculate on the identity of the suspects, who they are, what nationality they have, where they are. The idea of bringing this to a Dutch criminal court I think at this moment is sufficient. I cannot speak for the family members of course, there are many family members involved. Some, I think, underline the importance of finding the historical truth. There will also be those who think that the punishment of the suspects is of primordial importance, but in general I cannot speculate on the identity of the suspects at this moment.

Photo credit: EPA.com

At the same time, since a while ago, we've had expertise by the technical investigation, which stated that the tragedy happened because of the Buk missile launcher. Also, there was the investigation by the Joint Investigative Team which more or less stated that this kind of weapon couldn't belong just to the separatists, and it was delivered from Russia and brought back. So is it really not enough? How is this situation seen in the Netherlands? I'm speaking about the Russian participation. Besides what we knew four years ago, there were already some investigations. So is it still a question that Russia is still behind it, or it couldn't be done without the participation of the Russian military?

We do know, and this has been brought to evidence by the Joint Investigation Team, that the Buk was of Russian origin and has been transported over the border to Ukrainian territory. That has been proven and on the basis of this, you know that a state complaint against Russia has been deposited by the Netherlands government together with the Australian government. The invoking of state responsibility is not a light decision, it's also not a light procedure, but there is no doubt that this Buk is of Russian origin.

I'm asking so persistently because for the Ukrainian audience, it's somehow difficult to understand. So, of course there is an independent prosecutor, and there is this investigation. Of course we can't speculate who is guilty in particular. We don't know the names, that is in the end, a court decision. But still, what can the Dutch state do in this regard to facilitate that court that it's not totally ignored by the side which is even in this investigation mentioned as the one that might be responsible? We are not speaking from the beginning, that someone is guilty. We are definitely not in the court, and I understand why there is a concern not to speculate. But still there is a side, there are named Russian military and there is someone responsible. So in that regard, is there any way that the Dutch state may negotiate, talk to Russia, or find other ways to cooperate when so far there is usually denial of Russian involvement by Russian authorities.

There's actually at this moment two parallel tracks. There is in the first place, the independent criminal investigation which is a case of the independent public prosecutor and there was the Joint Investigation Team. This is a criminal case which is then of course, as I said, going to be judged according to Dutch criminal law, by Dutch criminal court in the Hague. That's one thing. The second parallel track is the evidence which has been brought forward by the Joint Investigation Team that the Buk is of Russian origin, and on the basis of this, the Netherlands government has published a state complaint against Russia together with the Australian government, and that is at this moment, all that's needed to lead to consultations to Russia where Russia would acknowledge its accountability in this case.

Photo credit: EPA.com

If to separate the criminal investigation and the political actions, we really understand the state has no right and shouldn't interfere into anything the investigation or the court does. But in the end, how would you describe the Dutch relations with Russia, politically, and the impact of this strategy to this relations? These countries are trade partners, in the modern world the countries trade with each other, there are visits, there is everything. So how would you describe those relations?

It's obvious that the relations between the Netherlands and Russia are not business as usual. You know also that the Netherlands adheres to the sanctions regime installed by the European Union against Russia on the basis of the annexation of Crimea and the unrest in the Donbas. 

/By Nataliya Gumenyuk