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The Prosecution’s Case at the MH17 Trial: Legal and Political Boomerangs for the Kremlin

The Insider

During the gripping sequence of BUK-explosion simulations, smoking-gun satellite photographs, and an impressive array of previously unknown prosecution witnesses, an observer of this week’s MH17 criminal trial might be excused to miss the purely legal aspects.  They are, however, no less important for the future the MH17 investigation than the strength of the prosecution’s evidence. And for some officials in the higher echelons of power in Moscow, they may have more personal consequences.

During this week, the prosecution not only presented the painstakingly evidence gathering work it has done in the last 6 years, but for the first time gave an indication of what legal arguments it plans to pursue in the next phase.  Some of these arguments will affect not only the four persons charged now, but any future indicted suspect – who, the prosecution made clear, will be up in the Russian command chain.

Intent to kill civilians is not relevant for the verdict

One of the most important legal argument the prosecution will pursue is that it doesn’t matter for the murder charges if the suspects – and any future indicted suspects – targeted a civilian or a military plane. This is so because under Dutch criminal law (and the case is tried under Dutch law, per agreement by all members of the JIT), the predicate crime in this case is the unlawful shoot-down of an airplane. Art. 168 of the Dutch Criminal Code says it is a crime to shoot down an airplane, and does not distinguish between military or commercial airplane. If by committing this crime, you caused the death of people, then you also committed the crime of murder – Art. 289 of the Dutch Criminal Code. The fact that it was a commercial or military plane will have relevance for the severity of the sentence – as a shot-down commercial airline would normally lead to the death of many more people than a military plane. But there is no plausible scenario in which an intent to shoot down any plane – whether military or civilian – does not include intent to kill at least one person.

This line of legal arguments – if accepted by court  - means that it will be impossible for these suspects to defend themselves by claiming they did not know that the BUK they asked for,  received, and helped move and hide – would be used to shoot down exactly MH17. Their only defense could be that they didn’t expect the BUK to be used to shoot down any plane – for example, to use instead as deterrent of flights. Given the many telephone intercepts proving that these four suspects wanted to shoot down a plane – and were happy when it happened – makes such defense impossible.

It’s important to note that the distinction between planning to shoot a military plane versus planning to shoot down a commercial plane is absent only when the suspects do not enjoy combatant immunity. If such immunity could be claimed, it would be valid in case if the suspects could prove they were aiming specifically for a military plane – and had made sufficient efforts to avoid a mistaken targeting.

Combatant immunity

This leads us to the second key legal argument that the prosecution presented in detail this week.

In theory, it concerned only whether the charged suspect Oleg Pulatov – who is the only of the four suspects who hired a defense lawyer - can claim to be immune from criminal prosecution because he took part in military warfare – and because, in times of war, “accidents do happen”. In practice, however, this presentation by the prosecution had important political and legal implications for the Russian state, and for key military and other officials who may be found guilty of authorizing the BUK delivery in the next stage of the investigation.

According to the Geneva Convention, it would be possible for the suspects to obtain immunity for the crime of (mistakenly) shooting down MH17, under certain specific conditions. In principle such immunity is granted only to regular arms forces of a state participating in an international military conflict, but an exception may be made for “members of militias and volunteer corps”.

It is clear that at the time of the shoot-down, the 4 suspects were not active members of the regular armed forces of a State, because the so-called “DNR” is not a state recognized by any UN member country.  So they could only claim immunity under the “volunteer corps” clause.

There are four criteria that must met – cumulatively – for such immunity to be granted.

First and foremost, the crime in question must not constitute a crime against humanity. In this case, targeting a military plane – and taking enough precautions to not shoot down a civilian airliner – would not constitute a crime against humanity. Targeting a civilian plan in times of war – for example, to blame the enemy in a false-flag operation – would be qualifiable as a crime against humanity and would not be subject to immunity even if all other criteria were met.

The second criteria relates to the necessity that the military conflict must be international in order for immunity to be granted. A party that claims combatant immunity must have been fighting on behalf of another (recognized) state.  The combatant must have acted under supervision, and on behalf of, that other state. In other words, if a Ukrainian separatist from the non-recognized “republic” DNR shot down MH17 and he had no “chain of command” supervision from Russia, this would be a crime committed in a purely local context in Ukraine, and the Geneva Convention would not apply. Because Ukraine has abrogated its right to prosecute this crime to the Netherlands, this would be treated in the same way as a crime committed in the Netherlands.

We will address the prosecutor’s findings on this second criteria at the end, as it has strong implications – both political and legal – for the Russian military and political elite.

The third necessary criteria for combatant immunity is that the suspect must been fighting as part of a militia or volunteer corps that had strict internal discipline and a clear supervising officer, necessary to prevent acts of lawlessness and human rights violations.

This criteria, according to the prosecution, has not been met by either Pulatov or any of the other suspects. Vast amount of evidence – both gathered by the JIT and obtained from other investigative organizations such as the UNHRC – proves conclusively that the DNR “army” engaged in systematic and random acts of violence, kidnaped, tortured and executed civilians, and committed other criminal acts inconsistent with a military unit with a strict internal discipline structure.

Last, the fourth necessary criteria is that a party that claims such immunity must have acted clearly and identifiably as a combatant – i.e., wearing military uniform, or otherwise be identifiable as a solder or militant at the time that the time was committed.  In other words: if you want to be immune for your actions at a time of war, you must have been open about you being a party to that war.

While this criteria may have been met for the four suspects, it is likely to become a crucial problem for people up in the chain of command within the Russian military establishment.

JIT: Russia is waging war with Ukraine

The JIT prosecutors presented a clear case that they have gathered enough evidence that the war in Eastern Ukraine was an international conflict, and that the Russian government, through its military and security services, was not only abetting, recruiting, assisting, financing and supervising militants, but that it had directly taken part in the war – by using artillery fire across the border and sending air-force and artillery support into Ukraine.

This means, in principle, that if all other conditions were met, Pulatov – and possibly the other 3 suspects – could claim immunity. However, for this they would have to provide proof to court that they acted on instructions from Russia. Alternatively, Russia would have to recognize that these four “separatists” acted on its behalf.

Given that Pulatov’s lawyers raised the possibility of combatant immunity, it cannot be excluded that he may try to provide such evidence in court. This is very unlikely, however, as such a move will clearly endanger his personal safety in Russia – whether from the part of the government or from other “patriotic forces” who may see such move as treason. That Russia itself will not offer Pulatov and the others its recognition as its “agents” is practically certain.

At the same time, a big political stone was thrown into the lake this week: the Dutch prosecution officially stated that after 6 years of investigations – and no one has ever made a more thorough investigation of events in Donbass in 2014 – they found incontrovertible evidence that Russia engaged in war with Ukraine. And what is more, they said that all such evidence has been added to the case file – which will become public this autumn.

The Legal Boomerang of the “Ihtamnet” Doctrine

It can easily be predicted that the court will not grant any of the current 4 defendants combat immunity status. However, the prosecution’s findings on the international nature of the war in Donbass  – if and when confirmed by the court verdict – will likely cause significant issues for people high in the Russian chain of command.

The prosecution already declared that it will investigate and pursue charges against the crew of the BUK, and their commanding officers who provided them with the weapon and ordered them to cross into Ukraine and eventually shoot down an airplane.  Unlike the 4 defendants, all of these future suspects are likely to be members of Russian armed forces or of the FSB. There is no conceivable scenario in which the sophisticated BUK belonging to the 53td Kursk Brigade would have been provided to the DNR militia without a trained crew.

The BUK crew – typically consisting of 2 lieutenants and 2 or 3 soldiers or junior officers – are very likely going to receive combatant immunity. Prosecutors have already determined that the conflict was international, and they would have been members of the regular armed forces at the time of shoot-down. They would also have acted under instructions from their direct superior officers, and would likely have been distinguishable as Russian soldiers (at least two prosecution witnesses described crew members as wearing tank-caps and uniforms that were different from the local “volunteers” uniforms).

However, when the JIT moves up the chain of military command, these same criteria will no longer be met. The Kremlin and the MoD have always adamantly denied that Russia is a party to the war, and has said no Russian armed forces crossed the border into Donbass.  Therefore, the condition for “open and distinguishable participation in warfare” cannot be applied to the top military echelon.

On the other hand, the collected evidence – including hundreds of intercepted phone calls – proves that colonels and generals on active duty in the GRU and FSB controlled the flow of weapons across the border in July 2014, and as early as June 2014 the MoD had sent military supervisors to control the local militants.  A senior GRU officer – Oleg Ivannikov – had been personally supervising the import and repatriation of another BUK complex a couple of days before the shoot-down of MH17.  In at least one of the intercepts published by the JIT, local militants discuss that the chain of command on weapons provision leads all the way up to Shoigu.

It is only a question of time, therefore, that the Dutch prosecution brings murder charges against Russian top military commanders.  Unlike the case with the 4 defendants, they would easily have obtained combatant immunity, if only they – and their supreme commander – had admitted to being part of the war. But they – and he – continuously denied, and this alone makes immunity impossible.

Also unlike the 4 defendants, the political price that Russia will pay such indictments will be much higher. It is one thing for 3 Russian “volunteers”, forgotten by most, to spend the rest of their life holed up at home and afraid to take any trip abroad.  It’s an altogether different story when top Mod and FSB officials – and maybe even a minister – are charged with murder of 298 civilians and end up on the Interpol red-notice list. Such an outcome would place a political burden on the Kremlin that has not been faced by any modern European country in memory.

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