THREE years ago on July 17, 2014, Malaysia Airlines Flight MH17 was shot down by unidentified parties in eastern Ukraine, killing all 283 passengers and 15 crew on board.
Resolution 2166, adopted by the United Nations Security Council four days after the downing, condemned the act and called for a thorough and independent international investigation and accountability for those responsible.
According to the Dutch Safety Board’s final report released on Oct 13 the following year, the ill-fated aircraft was shot down by a Russian-made surface-to-air missile operated by rebels (pro-Russian separatists). The crash of the aircraft was caused by the detonation of a 9N314M-type warhead launched from the eastern part of Ukraine using a BUK missile system.
Civil suits had since been filed by lawyers acting for the families of the deceased passengers and crew in Malaysia, the United States and the European Court of Human Rights, but no criminal proceeding has so far been commenced against any persons accused of shooting down MH17.
On July 8, 2015, Malaysia initiated a resolution at the UN Security Resolution for the establishment of a special criminal tribunal to bring the perpetrators of this horrendous crime to justice. The resolution was supported by the majority of the Security Council members (11 affirmative votes, with 3 abstentions by Angola, China and Venezuela), but it was vetoed by Russia.
The Ukrainian prime minister suggested that the case be referred to the International Court of Justice (ICC) at The Hague, the Netherlands. Unfortunately, this venue was out of the question because Russia (in the event that it is named as one of the accused in the proceeding) is not a party to the Statute of Rome, which established the ICC.
On May 9 last year, an Australian law firm representing relatives of five families filed a suit against Russia and President Vladimir Putin at the European Court of Human Rights. The suit claimed damages of US$10 million (RM42.8 million) for each passenger who died in that crash.
By July 17, two years after the crash, the Malaysian national carrier had settled most of the claims filed by families of victims.
Veeru Mewa, an attorney representing 165 Dutch victims told The Guardian that the airline had reached a settlement with most of the parties involved. Details of the settlement were not disclosed, but under the Montreal Convention, an airline whose planes crashed must pay damages or compensation of up to €130,000 (RM642,500).
Criminal investigation into the MH17 crash was led by the Public Prosecution Service of the Netherlands Justice Ministry. It has become the biggest criminal investigation in its history. Joining the Netherlands team were officials from Belgium, Ukraine, Australia and Malaysia.
In September last year, the Joint Investigation Team (JIT) confirmed that the missile used was brought in from Russia on July 17, used by rebel forces in eastern Ukraine to shoot down the Malaysia Airlines aircraft and subsequently taken back to Russia. JIT had identified at least 100 witnesses or suspects involved in the crime, but Russia had consistently denied involvement in any crime committed by rebels in Ukraine.
The Netherlands led JIT after Ukraine requested it to do so in August 2014. The request was made because the Netherlands suffered the greatest loss. It had 193 nationals on board MH17 when the plane left Schiphol Airport in Amsterdam. Malaysia came second (43 people) and Australia came third (27 people).
Two weeks ago, on July 5, Dutch Foreign Minister Bert Koenders said: “We will bring MH17 killers to justice here.”
Support for the move came from British Foreign Secretary Boris Johnson and Australian Prime Minister Malcolm Turnbull. Johnson urged all other states to give their support in line with the UN Security Council Resolution 2166. The Dutch Justice Ministry also stated that the Netherlands and Ukraine “will sign a treaty” to allow criminal prosecutions to be transferred to Dutch courts.
Although the decision to have the criminal proceeding in the Netherlands has been reached, Dutch Chief Prosecutor Fred Westerbeke is still studying the list of 100 “persons of interest” and has not yet decided on the identity of the accused. No date has been set for trial and no suspect has been summoned.
According to standard procedure in the Netherlands, a supervisory judge will start a preliminary investigation on the basis of a summons. Attorneys representing the accused have the right to attend proceedings. After the supervisory judge has finished the preliminary investigation, the actual trial will begin. Proceedings will be in Dutch. The judiciary in the Netherlands has three tiers, comprising 19 District Courts, 5 Courts of Appeal and the Court of Cassation, which is in The Hague.
Other matters need to be resolved. If the suspects (accused) are nationals of Ukraine and Russia, can they be forced to attend? Legal experts say they cannot be extradited. In their absence, can the accused be tried in absentia? What benefit can come out of a trial in absentia?
The short answer to that is that a public trial will give some measure of justice to the victims.
Dennis Schouten, chairman of the MH17 Air Disaster Foundation, said the whole world would know the whole story being presented to the court, especially the names of the perpetrators, what exactly happened and what was the chain of command.
He said a conviction in absentia would have some effect. The convicted persons’ travel options would be severely limited. They would not be able to travel freely as there would be international warrants for their arrest.
Beth Van Schaack, a professor at Stanford Law School, said justice in an aircraft incident “is a 10-year process, not a two-year process”.
For the next of kin, families and friends of MH17 victims, it has been a painful three-year wait, with no end in sight as yet.
The writer formerly served the Attorney-General’s Chambers
before he left for private practice, the corporate sector and academia.