Kyiv, September 15, 2015. The recent Dutch Safety Board technical report into the downing of MH17 finds that the crash was caused by the impact of a missile fired from a “Buk” surface-to-air missile system, according to comments at Ukraine Crisis Media Center by international law expert Scott Martin, Managing Partner of GRC International. This conclusion was based on the following: a recorded sound peak, damage pattern on the wreckage caused by the blast, injuries of the crewmembers in the cockpit, inflight breakup of the airplane, explosive residues, as well as the size and distinct bow-tie shape of the fragments. The report also finds that the missile was launched from an area of about 320 square kilometers in eastern Ukraine.
According to Mr. Martin, even though the report detailed a criminal act, no criminal findings were made. The report did not identify individuals responsible for downing the aircraft. It did not find any Russian involvement such as that it provided the missile system or trained separatists how to use it or that Russia ordered the downing of the airplane. Nevertheless, Russia still disagrees with the report’s findings.
The next step is criminal investigation led by the Netherlands and the subsequent report, revealing those responsible for the downing of the aircraft. This report is due in or around February 2016.
Mr. Martin described possible locations where prosecutions could take place. The first option is to have the case prosecuted in Ukraine as the territory where the crime occurred. Thus, physical and documentary evidence will be easier to obtain and witnesses will be easier to access. However, in that case there will definitely be a perceived lack of impartiality. “The inevitable and unavoidable political realities would likely overshadow further injustice ,” he added.
An international criminal tribunal into the MH17 air disaster is also not an option as Russia will probably always veto such a proposal. The International Criminal Court is also unlikely to consider the case as it can act only when the state with jurisdiction is unwilling or unable to properly proceed with the investigation.
The most likely option, according to Mr. Martin, is to sign a multinational agreement between all the states with the jurisdiction to jointly prosecute those responsible for the tragedy. A tribunal that can be set up under this agreement which doesn’t need UN Security Council approval and thus cannot be vetoed. In this case, “instead of claiming the right to prosecute in its own state, each state acknowledges overlapping rights and agrees to forgo these claims and instead create a new tribunal in the Netherlands”.
No matter what option will be implemented, the exact potential culpability of Russian individuals is still unclear. There is evidence indicating Russian involvement: the manufacturer of the “Buk” missile system is located in Russia and phone intercepts demonstrating a conversation between separatists and Russian officials (including discussion about a newly obtained “Buk” missile system that came from Russia). Nevertheless, “it is crucially important that one should not come to conclusions until the criminal investigation is concluded,” Mr. Martin added.
Another major problem is the enforcement of the tribunal decisions if it finds certain individuals guilty. “If the court finds it difficult to obtain cooperation from the Russian Federation, if it is indeed involved, there are only political and diplomatic leavers that you are able to push to try to compel its cooperation,” Mr Martin said. “If there will be no cooperation, I suppose the tribunal will contemplate in absentia proceedings,” he summarized.