A Dutch District Court’s recent verdict that three commanders of Russian-backed forces were guilty of downing Flight MH17 on July 17, 2014, and murdering all 298 people on board was also significant for an underlying finding: a legal conclusion that the commanders’ forces in that area of eastern Ukraine were under the “overall control” of Russia.
The court found former Russian intelligence officers Igor Vsevolodovich Girkin and Sergey Nikolayevich Dubinskiy and Ukrainian separatist Leonid Volodymyrovych Kharchenko guilty of involvement in shooting down the plane with a Buk anti-aircraft missile as it was flying over eastern Ukraine en route from Amsterdam to Kuala Lumpur. A fourth suspect, Oleg Yuldashevich Pulatov, was acquitted. The perpetrators were sentenced to life imprisonment and are jointly and severally liable for paying a total of 16 million euros to the victims’ next of kin. The men were tried in absentia, and as none appealed the judgment in the two weeks after the sentencing, the decision became final. (For further background on the case, see this earlier article on Just Security.)
While a criminal case against individuals in a domestic court of law cannot rule on the liability of another State (States are immune in foreign courts), the District Court of The Hague declared in its Nov. 17, 2022, ruling that the evidence it examined in this case clearly shows that the Kremlin in 2014 had “overall control” of the forces of the self-proclaimed Donetsk People’s Republic (DPR). The court found that there was daily contact between the Kremlin and DPR leadership, and, that, while the identity of the crew of the Buk-TELAR missile system used to shoot down MH17 is unknown, they are assumed to be members of the Russian armed forces. In making those determinations, the court sent a clear message to Ukraine, Russia, and the rest of the world that the Kremlin’s denial of its involvement were lies. The court, moreover, said Russia on multiple occasions had fabricated evidence to claim that Ukraine was responsible for downing MH17, and that forensic investigation found clear signs the information submitted by Russia was manipulated.
Court: War was International Armed Conflict from Mid-May 2014
Contradicting Russia’s continued denial of its involvement in dividing the eastern Ukrainian region Donbas from Ukraine since 2014, the court concluded that Russia was so heavily involved in eastern Ukraine that from mid-May 2014, the criteria were met for an international(ized) armed conflict.
The panel of three judges pointed to a number of factors. First, many DPR leaders had previously been members of the Russian military, and recorded telephone conversations showed that they maintained close contacts with Russian intelligence and the Kremlin. For example, DPR leader Alexander Borodai was in daily contact with Vladislav Surkov, then a close advisor to Putin. Evidence showed that, when Borodai learned that he had been named prime minister of DPR, he said that “Moscow surprised him.” Further, Girkin previously was with Russia’s Federal Security Service (FSB), and Sergey Dubinskiy has a background with Russia’s military intelligence agency, known as the GRU. According to the court, the evidence showed that Russia controlled who was appointed to leadership positions in eastern Ukraine.
Second, the DPR received supplies, weapons, financing, military personnel, and military training from Russia. Third, Russia coordinated and gave instructions to the DPR. After the downing of MH17, for example, Borodai urgently sought advice and instructions from “the boss” on what to do with the plane’s flight-data recorders that the Russian-backed forces had secured and what his talking points should be for a press conference on the crash. Fourth, Russian military forces also directly engaged in hostilities by regularly crossing the border into Ukraine to conduct artillery attacks and other assaults on Ukrainian targets, and they did so in close coordination with DPR forces.
No Combatant Immunity
Combatants in an international armed conflict are authorized to partake in hostilities under a principle known as combatant privilege. As long as they fight in accordance with international humanitarian law (IHL), they have combatant immunity, meaning they cannot be prosecuted by a foreign court for their conduct during the conflict. Since the court concluded that the conflict was an international armed conflict, it had to consider whether the prosecution was admissible or, instead, blocked by combatant immunity.
The court thereby concluded that under Article 43 Additional Protocol I to the Geneva Conventions, the DPR forces were not to be considered combatants, while the Russian armed forces were. Even though Russia exercised overall control over the DPR forces, they were not part of the Russian armed forces, the court determined, because for the DPR forces to fall under Russian command and thus under its responsibility, Russia would have had to accept the DPR forces as belonging to the Russian armed forces and to take responsibility for their conduct. Yet, as the court pointed out, Russia until today denies any control over DPR forces, and the suspects themselves denied having been part of the Russian armed forces. Accordingly, they do not get the privilege of immunity from prosecution that is attached to combatant status, the court concluded.
This is very interesting reasoning. The court appears to say here that states engaged in hybrid warfare can’t have it both ways — denying that they are involved, on the one hand, but still enjoying the privileges attached to the status of a state. Immunity is in essence a derivative of state sovereignty: those representing the state abroad (heads of state, officials, diplomats, combatants) are immune in foreign courts with the supposition that the state will itself investigate and – if necessary – prosecute. Moreover, the laws of armed conflict are premised on making known that you are a fighter: wearing a fixed distinctive sign showing who you are fighting for, carrying your arms openly, and distinguishing yourself from civilians, so that the enemy can (lawfully) target you. Hybrid warfare – mixing military and non-military, overt and covert, and employing disinformation, cyber warfare, economic pressure, and irregular armed groups – challenges traditional categories that fall under IHL. This District Court picks a side: it says that such irregular armed groups cannot on the one hand claim to be volunteers and to fight for self-determination independent from (prohibited) foreign support, and then on the other hand enjoy the privileges that would come with overtly partaking in those hostilities as part of those foreign armed forces.
Yet, some argue that the court is wrong on this and that Article 4A Third Geneva Convention extends prisoner-of-war status to members of irregular armed groups when a state exercises control over such fighters, notwithstanding whether a state has formally accepted them as state agents. The court rejected the reading that this provision extends combatant immunity to the suspects, because the provision (solely) addresses who is entitled to prisoner-of-war-status and not the qualification of combatants and their privileges and immunities. This rejection needed more explanation than it got. Prisoner-of-war-status and combatant immunity are not (wholly) unrelated: one of the rights connected to prisoners-of-war is that they have combatant immunity for lawful acts of hostility. The court followed the reasoning of the prosecution that absent combatant status, they cannot have engaged in lawful acts of hostilities. Moreover, the court may have wanted to follow developments in other courts that limit the applicability of immunities. One is the Jan. 28, 2021, judgment by the German Federal Court of Justice (Bundesgerichtshof) that customary international law does not bar the prosecution of foreign state officials for war crimes that they have committed abroad. And the Appeals Chamber of the International Criminal Court ruled that customary international law provides that Head of State immunity does not apply before an international court that prosecuted international crimes. In that light, this MH17 court may be joining these courts in setting boundaries on who escapes justice, saying that you can’t have your cake and eat it too: if you want immunity in a foreign court, you are obliged to fight openly on behalf of a State. The suspects did not argue they should be entitled to combatant immunity – in fact, the Pulatov defense explicitly said they do not invoke combatant immunity – and the court did not want to end this case by granting them that status nevertheless.
Absent combatant immunity, the court decided the prosecution was admissible. And absent combatant privilege, the suspects were not allowed to engage in hostilities and their conduct therefore did not have to be examined under IHL but under (normal) criminal law. Consequently, the case was not about whether they violated the laws of armed conflict by mistakenly downing a civilian plane rather than military objective, but about murder and illegally downing a plane, killing all those on board, which would be criminal for any other (non-combatant) person.
Why the Perpetrators Downed Flight MH17
In the three guilty verdicts, the court concluded that prosecutors proved beyond a reasonable doubt that the perpetrators were defending a corridor from Snizhne, Ukraine, to the Russian border under heavy attack by the Ukrainian armed forces who tried to regain control. The Russian-backed troops were suffering heavy losses, particularly due to Ukrainian aerial bombardments, which proved prohibitive for the perpetrators’ forces to hold the corridor much longer. Recorded telephone conversations show that Dubinskiy, Pulatov, and Kharchenko discussed the need for higher-reaching-anti-aircraft artillery and that Russia provided this accordingly. The evidence shows close cooperation among the three to pick a suitable location from which to launch the Buk-TELAR and on transporting it to the location, as well as mutual happiness initially over having successfully downed a plane with their Buk. Upon realization that it was a passenger plane rather than military plane that crashed, they fabricated a false narrative that a Ukrainian Sushka (i.e. a Ukrainian fighter jet) fired at the passenger plane and that their Buk shot the Sushka. Quickly thereafter, they closely collaborated on getting the Buk-TELAR away from the crime scene and across the Russian border as fast as possible.
Even though the perpetrators seemed to have wanted to down Ukrainian military planes with the Buk missile system they requested, arranged and used, the court ruled that the downing of MH17 was intentional and with premeditation. The court reasoned that the suspects were not combatants and therefore not entitled to attack military targets. Consequently, notwithstanding whether the plane that was shot was military or civilian, those responsible for ordering the Buk, the logistics around transport and launch-site-location, and arranging a trained crew had the intent to launch the Buk to shoot at a plane and kill those on board. Moreover, the court said that launching a Buk cannot occur by mistake nor on impulse. It requires conscious deliberation, careful planning, and lengthy execution to select a launch site, transport the missile system to that location, and prepare for launch.
Guilty Verdicts
Because Girkin, Dubinskiy, and Kharchenko were not themselves the ones that pushed the button that launched the Buk that downed MH17, the court discussed for each of these commanders what their specific role was in relation to MH17.
Dubinskiy and Kharchenko were found guilty as “co-perpetrators” who worked closely with the Buk crew to get the Buk-TELAR in position and launch the missile. Dubinskiy was the commanding officer in the DPR who ordered the Buk and organized its transport from Russia to the launch location and back again. The whole operation happened under his direct orders and close supervision. Kharchenko received orders from Dubinskiy and was in command of the unit that traveled with the Buk during the transport, and he ensured its security. Both were so actively and closely involved that they met the criteria for co-perpetration of “conscious and close cooperation” with the Buk crew, and therefore were found responsible for downing Flight MH17.
The court found a different mode of perpetration applicable to Girkin because the judges did not see sufficient evidence that he actually knew of this specific Buk being brought into Ukraine from Russia at the specific time at hand. Recorded telephone conversations on the day hear him discuss the tanks that were being sent as well, but the Buk was not specifically discussed.
However, the court still found him guilty as a “functional perpetrator,” a form that has some similarities to international criminal law’s “command responsibility.” Under Dutch criminal law, a functional perpetrator is someone who has not physically perpetrated the crime but can still be considered the perpetrator if they prompted someone else to perform the criminalized conduct by virtue of their function and authority over others. Dutch criminal law requires that the functional perpetrator 1) had the “power of decision” whether those acts would occur or not (in the sense of command-and-control and being able to prevent it), and 2) “accepted” that the acts would occur (at least having the knowledge that similar acts as those charged occurred).
As the DPR’s “Minister of Defense,” Girkin was operationally the highest military leader of the DPR. According to the court, he held the position that decided whether or not a Buk would be used in the DPR. Recorded telephone conversations also evidence him requesting a Buk on June 8, 2014, as well as a trained (Russian military) crew, since they would not have time to train a crew themselves. Moreover, he had already accepted the consequences that their weapons were downing other planes and helicopters in the days prior to the MH17 crash. He was, moreover, personally, actively, and closely involved afterwards in getting the Buk-TELAR away from the crime scene and across the border back into Russia.
Accordingly, the court found that his position and conduct met the criteria of having the “power of decision” whether a Buk would be launched and the ability to prevent it, and that he “accepted” that a Buk would be used to down a plane. His conduct upon learning that their Buk had downed MH17 and his personal involvement in covering it up added further corroboration, according to the court.
Acquittal of Pulatov
The fourth suspect, Oleg Yuldashevich Pulatov, was acquitted. As area commander, he was in charge of protecting the corridor to and from Russia. The court concluded that he was actively involved in several ways. For instance, he met with Kharchenko, saw the Buk, and did not stop the attack from happening. However, the court determined that there was insufficient evidence to know beyond a reasonable doubt that he was sufficiently closely involved to meet the criteria of co-perpetration, nor that he was in a sufficiently high leadership position to stop the attack. The court thus found there was insufficient evidence to prove his exact role.
Sentencing
Girkin, Dubinskiy, and Kharchenko were sentenced to life imprisonment. Whether that sentence is right or should have been mitigated due to circumstances, is hotly debated among Dutch criminal lawyers. The crimes they are found guilty of each allow for life imprisonment. And for the purpose of intent and thus the finding of guilt, it was irrelevant that they did not intentionally target a civilian plane. However, doesn’t that matter for determining their blameworthiness and thus affects the severity of their sentence?
There is a difference between the malice of wanting to kill a large group of unsuspecting civilians in cold blood and seeking such a target vs. wanting to stop whomever or whatever is bombing you, even if you were fighting an unlawful war. Life sentences in the Netherlands really mean life in prison — there is hardly a realistic chance of parole, and this maximum sentence is not often imposed. It is reserved for the worst crimes and criminals. Is this therefore a suitable penalty for what happened here?
Maybe it was. The court and the prosecution point to the large number of victims (298) and to the relatives and others who suffered their loss (thousands). The decision also referred specifically to the Ukrainians who saw bodies fall from the sky, including one family that experienced a body falling through the roof of their home. Even though the perpetrators may not have intended to impact so many lives, the court said that it was foreseeable that using a Buk could lead to all those consequences.
The court further weighed the attitude of the perpetrators since MH17 occurred. Even after they realized that they had downed a civilian airplane and killed hundreds of civilians and children, the perpetrators actively tried to cover up their crimes as well as any Russian involvement, which the court counts as an aggravating factor. The judges also saw as aggravating circumstances that the men refused to explain what happened to the investigators, have denied any involvement, made disrespectful comments about the deceased, and suggested that the evidence was tampered with. According to the court, this caused additional suffering for the families of the victims.
Finally, the judges also considered that, inspired by international criminal law, positions of command correspond to tougher sentences, while those merely following orders tend to receive lesser sentences. While Kharchenko was more of a mid-level commander, he was himself directly and actively involved throughout the operation. Girkin was the highest-ranking and Dubinskiy was his deputy and personally in charge of the operation, and thus represent senior leadership, which factors against them in sentencing.
Accordingly, all three were sentenced to life in prison. Since this was an in-absentia trial and the perpetrators are at large, it is doubtful they will (soon) see the inside of a prison cell. But other leaders in even higher positions – Bosnian Serb General Ratko Mladic in the former Yugoslavia, for example – evaded capture for years. For now, the three men convicted in the MH17 case live sheltered by the Russian regime they served. But what will happen when conditions shift in the Kremlin?
Court on the Battlefield of the (Dis)Information War
A final comment on why this case is so important, even though the perpetrators are at large. In some legal cultures, trials conducted in absentia are perceived negatively by the public and legal community, as something at odds with due process. From the perspective of countries where trials in absentia are common, such as the Netherlands and Ukraine, this seems strange, as these contexts believe a suspect has the right to attend their trial, not an obligation. And a suspect most certainly does not have the right to hijack society’s and victims’ rights to have a trial to establish what happened and who bears responsibility. In accordance with fair trial rights, the court has the obligation to assess whether the suspect in fact knows they are on trial and has chosen voluntarily not to attend. The court also has the obligation to ensure that the trial is fair and that alternative scenarios are indeed not viable, before it can reach a guilty verdict. Depending on circumstances, a person may also have the right to a retrial. And all of this is scrutinized and accepted, in this instance, by the European Court of Human Rights.
Such proceedings, while perhaps not immediately putting the convicted behind bars, achieve other outcomes that are perhaps just as important, if not more. The families of the victims were acknowledged and could tell the court about the victims and how the crash impacted their lives. They witnessed how the evidence was discussed in a public hearing and, in this case, that the defense counsel (Pulatov was represented in court) had the opportunity to present at least one suspect’s case. And the families got answers to questions when the court gave its verdict.
The debate over trials in absentia is particularly cogent at the moment in light of discussion about whether such trials should be allowed in the event a special tribunal is established to prosecute Russian leaders for the crime of aggression against Ukraine. The International Criminal Court, which is investigating war crimes and crimes against humanity in the current full-scale conflict in Ukraine, is not allowed to prosecute in absentia, which means that whether a trial actually takes place depends on whether they can get Russian leaders arrested. Therefore, a number of States, including Ukraine, are pressing for trials in absentia.
Moreover, this judgment has potential power on the battlefield of the information war surrounding the Russia-Ukraine conflict. From its first invasion of the Donbas in 2014, Russia has denied its involvement and accused Ukraine of committing crimes and threatening Russia. When Russia launched its full-scale invasion this year and saw that Ukraine was receiving substantial foreign military aid, the Kremlin tried to inject doubt about responsibility for the war and/or its own culpability. In that fight against denial and disinformation, law has an important role to play in debunking lies, on the basis of evidence, in a public court of law.
In this case, the judges concluded that each of the pieces of evidence was strong – pictures, videos, witness testimony, satellite images, recorded telephone conversations, telephone mast data, fragments of the missile in bodies and in the plane, forensic research results – and that, together, this multitude of evidence leaves no room for doubt about who was in control of these forces and who was responsible for the downing of MH17. The court, moreover, repeatedly emphasized that the prosecution’s evidence was thoroughly examined by multiple experts from different countries and that none found any trace of manipulation.
Other MH17 Proceedings
Many other proceedings are yet to come in the case of the downing of MH17, including judgments expected soon from the European Court of Human Rights and the International Civil Aviation Organization. Ukraine also has proceedings ongoing in various courts, including the International Court of Justice, in which it asks the court to declare that Russia has violated international law by supporting armed groups in eastern Ukraine and annexing Crimea in 2014 (the case started in 2017 and is expected to come to judgment in 2023 or 2024). Another case was filed in March 2022 in which Ukraine asks the court to declare that Russia’s bad-faith accusation that Ukraine commits genocide against pro-Russian Ukrainians violated the Genocide Convention.
Each of these cases must address the same central question: what exactly is the role of Russia in Ukraine. The Dutch District Court of The Hague offered insight into the available evidence going back to 2014. The conclusions of these venues may not move Russia in the current circumstances, but the Dutch verdict served to confirm Russia’s culpability and established for future generations what really went on in the Donbas back in 2014.