.

  • Written by Amy Maguire, Associate Professor, University of Newcastle

Four men – three Russians and one Ukrainian – will be charged in relation to the shooting down of the Malaysia Airlines flight MH17, which killed all 298 passengers and crew on board.

Dutch prosecutors will launch a criminal trial in The Hague on March 9, 2020. But the accused are beyond the jurisdiction of the court, and will most likely be tried in absentia. This means the accused will not be physically present in the court room.

The prosecutors argue the four accused were jointly responsible for obtaining a BUK TELAR missile launcher (a launcher for self-propelled, surface-to-air missiles allegedly owned by the Russian military) in the city of Kursk, and launching it from Ukraine.

They say the four men are responsible for the atrocity because they had the intention to shoot down an aircraft, and obtained the missile launcher for that purpose.


Read more: Ukraine: with parliament dissolved, new president must now get serious – here's how


While investigators have not accused any suspects of actually firing the missile, they say in future they may identify others with that responsibility.

For the victims and their loved ones, these Dutch criminal trials present the best hope of legal acknowledgement for the tragedy.

The MH17 atrocity

On July 17, 2014, flight MH17 was travelling from Amsterdam to Kuala Lumpur when it was shot down over Ukraine.

The Joint Investigative Team (JIT), led by Dutch authorities and comprising investigators from Malaysia, Australia, Belgium and Ukraine, concluded in 2016 that the flight was shot down by a Russian BUK missile.

The JIT identified the launch location as a field in eastern Ukraine, which at the time was in territory controlled by pro-Russian fighters.

The countries central to the investigation – including Australia, which lost 38 people – and the victims’ families have explored a range of legal strategies to assign blame for the attack.

Then Foreign Minister Julie Bishop initially proposed a war crimes trial for MH17, but this was vetoed by Russia in the UN Security Council.

Some civil claims on behalf of victims’ families are ongoing before the European Court of Human Rights.

And hearings are ongoing before the International Court of Justice, where Ukraine seeks to make a case against Russia. Ukraine cites the MH17 atrocity as characteristic of broader Russian aggression and lack of respect for Ukrainian sovereignty and independence.

Russia’s response

The Russian Foreign Ministry rejected this week’s announcement, in line with its earlier rejections of the JIT conclusions. It said:

Once again, absolutely groundless accusations are being made against the Russian side, aimed at discrediting the Russian Federation in the eyes of the international community.

Russian President Vladimir Putin earlier called the crash a “terrible tragedy”, but said Russia bore no responsibility for it.

Russian officials have claimed they were prepared to assist the investigation but had been “frozen out” of it.

Who are the accused?

Three of the four accused are Russian nationals, believed to be living in Russia.

Igor Girkin is a former colonel in the Russian security service. At the time of the atrocity, Girkin was the minister of defence in the so-called Donetsk People’s Republic, a pro-Russian separatist region of Ukraine.

The other two Russian accused, Sergey Dubinsky and Oleg Pulatov, are former Russian military intelligence agents who worked under Girkin.

Leonid Kharchenko is the only Ukrainian national accused. Investigators are not certain of his current location. At the time of the atrocity, Kharchenko led a separatist combat unit.

The specific charges in relation to the four named suspects will be:

  1. Causing the crash of flight MH17, resulting in the death of all persons on board, punishable pursuant to Article 168 of the Dutch Criminal Code

  2. The murder of the 298 persons on board of flight MH17, punishable pursuant to Article 289 of the Dutch Criminal Code.

The investigation is ongoing and continues to call for witnesses to assist.

What are the prospects for the trial?

Dutch investigators will issue international arrest warrants for the four accused and place them on international wanted lists. But they won’t issue extradition requests because they know already that no extradition of nationals is available under the Ukrainian or Russian constitutions.

It seems impossible for the Dutch court to gain actual jurisdiction over the Russian accused. Potentially, should Ukrainian authorities apprehend Kharchenko, he could be tried via video-link.

The Netherlands and Ukraine have entered into an agreement that would permit such an arrangement and - should Kharchenko be convicted - allow for his imprisonment in Ukraine.


Read more: Challenges persist for multiple legal actions regarding MH17


The charges and any penalties originate in Dutch, rather than international, criminal law. Convictions for murder or the intentional downing of an aircraft could result in sentences of up to life imprisonment.

It’s fair to question the value of a prosecution without a court having actual jurisdiction over the accused. The only real answer is that such a trial would enable the presentation and adjudication of evidence and the judgement of a court as to whether charges are made out.

A memorial for the victims of MH17 in the Donetsk region, Ukraine. Shutterstock

As time goes, the chances of successful prosecutions decline. Meanwhile, interested countries and the victims’ families continue to call for legal redress for the atrocity.

It is also legitimate to ask whether a court can ensure a fair trial for accused persons tried in absentia.

Although it is not explicitly prohibited by international human rights law, the absence of defendants and presumably any legal representative from the courtroom means the accused will not hear the evidence against them or have the ability to present a defence.

Given the four named accused are beyond the actual jurisdiction of the Dutch courts, it can be argued that they (and, at least in the case of Russia, their country) are wilfully avoiding the process of justice. This may be, for some or many observers, sufficient justification for trying them in their absence.

Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Authors: Amy Maguire, Associate Professor, University of Newcastle

Read more http://theconversation.com/mh17-charges-who-the-suspects-are-what-theyre-charged-with-and-what-happens-next-119155

Morrison says China knows 'where Australia is coming from', after meeting Chinese vice-president

Scott Morrison seized the opportunity of his Jakarta weekend visit for Indonesian President Joko Widodo’s inauguration to obtain a meeting with Chinese Vice President Wang Qishan. Morrison told...

Michelle Grattan, Professorial Fellow, University of Canberra - avatar Michelle Grattan, Professorial Fellow, University of Canberra

Who's responsible for the slaughtered ex-racehorses, and what can be done?

Animal activists stage a protest during Caulfield Cup day at Caulfield Race Course in Melbourne, following shocking hidden-camera footage revealing the slaughtering of former racehorses. AAP Image/Jam...

Kate Fenner, PhD Candidate (Equine Training and Welfare), University of Sydney - avatar Kate Fenner, PhD Candidate (Equine Training and Welfare), University of Sydney

Science prizes are still a boys' club. Here's how we can change that

At the 2018 Prime Minister's Prizes for Science, only two recipients were women. PM's Prizes for ScienceThis year, five of the seven Prime Minister’s Prizes for Science were awarded to women. Wh...

Justine Shaw, Conservation Biologist, The University of Queensland - avatar Justine Shaw, Conservation Biologist, The University of Queensland

Arrogance destroyed the World Trade Organisation. What replaces it will be even worse

As the public face of globalism, the WTO mobilised protesters. It'll be replaced by the law of the jungle. fuzheado/Flikr, CC BY-SAIn line with his usual practice, Prime Minister Scott Morrison has ba...

John Quiggin, Professor, School of Economics, The University of Queensland - avatar John Quiggin, Professor, School of Economics, The University of Queensland

The Trump presidency should not be shocking. It's a symptom of our cultural malaise

It's a mistake to see Trump as unique or his success as something that could only occur in America. Pete Marovich/Pool/EPADuring the 2016 US presidential campaign, people around the world were regular...

Brendon O'Connor, Associate Professor in American Politics at the United States Studies Centre, University of Sydney - avatar Brendon O'Connor, Associate Professor in American Politics at the United States Studies Centre, University of Sydney

4 ways to talk with vaccine skeptics

If another parent at playgroup says she's not vaccinating her child, what's the best way to respond? from www.shutterstock.comYour neighbour is telling you about his new baby. He feels nervous about v...

Julie Leask, Professor, University of Sydney - avatar Julie Leask, Professor, University of Sydney

Growing numbers of renters are trapped for years in homes they can't afford

Rental stress leaves hundreds of thousands of Australians struggling for years to cover all the other costs of living. Tero Vesalainen/ShutterstockLow-income tenants in Australia are increasingly like...

Hal Pawson, Associate Director - City Futures - Urban Policy and Strategy, City Futures Research Centre, Housing Policy and Practice, UNSW - avatar Hal Pawson, Associate Director - City Futures - Urban Policy and Strategy, City Futures Research Centre, Housing Policy and Practice, UNSW

The voice unmasked: how we hear image, emotion and identity

The Masked singer forces us to rely on our listening skills, while distracting us with crazy costumes. Network 10As the Australian premier season of The Masked Singer draws to a close, fans are liste...

Kristal Spreadborough, Casual Academic, University of New England - avatar Kristal Spreadborough, Casual Academic, University of New England

4 Perfect Locations for your Destination Wedding in France

France is probably one of the few locations in the world that we synonymise with love so what better place for your destination wedding. Spending time in the Parisian countryside can be the most idy...

News Company - avatar News Company

Domestic Disasters - 4 Common Household Problems & How to Avoid Them

Secure, livable housing is one of the necessities to which all humans are entitled. Unfortunately, our homes don't always get the memo. Domestic disasters can strike at any time (even though we all ...

News Company - avatar News Company

How to Write a Catchy Sign to Boost Brand Awareness: Benefits and Tips

In the past century, technological advancements paved the way for the fast-paced world digital business. Since then, most businesses focus their efforts and resources on advertising through the Inte...

Brian Dwyer - avatar Brian Dwyer

Understanding and Looking After Your Digestive System

The human microbiome is made up of trillions of microscopic organisms. The majority of these microbes live in our gut, most of them in the colon and intestines. Playing a vital role in our body, the...

Alex Witt - avatar Alex Witt

VIDEO: Michelle Grattan on the government's drought policy - and the trust divide in politics

Michelle Grattan says the announcement of extra money for drought-stricken farmers "won't be enough" to alleviate pressure on the government on the issue of drought. ShutterstockUniversity of Canberr...

Michelle Grattan, Professorial Fellow, University of Canberra - avatar Michelle Grattan, Professorial Fellow, University of Canberra

Our ability to manufacture minerals could transform the gem market, medical industries and even help suck carbon from the air

Pictured is a slag pile at Broken Hill in New South Wales. Slag is a man-made waste product created during smelting. Anita Parbhakar-Fox, Author providedLast month, scientists uncovered a mineral cal...

Anita Parbhakar-Fox, Senior Research Fellow in Geometallurgy/Applied Geochemistry, The University of Queensland - avatar Anita Parbhakar-Fox, Senior Research Fellow in Geometallurgy/Applied Geochemistry, The University of Queensland

Lambie stays mute on medevac vote after Senate inquiry splits on party lines

Jacqui Lambie has yet to announce whether she will support the bill to have medevac repealed. AAP/Mick TsikasThe Senate inquiry into repealing medevac has predictably split along party lines, with the...

Michelle Grattan, Professorial Fellow, University of Canberra - avatar Michelle Grattan, Professorial Fellow, University of Canberra

Sydney's 9,189 'sister politicians' who petitioned Queen Victoria

One spring morning in 1850, over 8,000 Sydneysiders marched through town to protest the resumption of transportation – the act of sending British criminals to Australia. It was the largest pro...

Kiera Lindsey, University of Technology Sydney - avatar Kiera Lindsey, University of Technology Sydney

Penny Whetton: A pioneering climate scientist skilled in the art of life

Penny Whetton, right, addressing a March for Science rally. Her death last month shocked and saddened colleagues. Supplied by familyLast month we lost Dr Penny Whetton - one of the world’s most ...

John M Clarke, Team Leader, Regional Projections, CSIRO - avatar John M Clarke, Team Leader, Regional Projections, CSIRO

​The Coalition government is (again) trying to put the squeeze on the ABC

The Coalition government has reintroduced a bill seeking to mandate the ABC devote more resources to covering regional Australia – a measure that has been defeated before by parliament. Danny Ca...

Fiona R Martin, Senior Lecturer in Convergent and Online Media, University of Sydney - avatar Fiona R Martin, Senior Lecturer in Convergent and Online Media, University of Sydney

Is your horse normal? Now there’s an app for that

Vet: are you happy? Horse: neigh. evilgurl/Flickr, CC BY-NC-SASince ancient times, horse behaviour, and the bond between horses and humans, has been a source of intrigue and fascination. The horse-l...

Paul McGreevy, Professor of Animal Behaviour and Animal Welfare Science, University of Sydney - avatar Paul McGreevy, Professor of Animal Behaviour and Animal Welfare Science, University of Sydney

Sick and Tired of Your Dead End Job? Try Teaching!

Tired of the same old grind at the office? Want an opportunity to impact lives both in your community and around the world? Do you love to travel and have new experiences? Teaching English is the perfect job for you! All you need is a willingness to ...

News Company - avatar News Company

The Impact of an Aging Population in Australia

There’s an issue on the horizon that Australia needs to prepare for. The portion of elderly citizens that make up the country’s overall population is increasing, and we might not have the infrastructure in place to support this. Australians h...

News Company - avatar News Company

LifeStyle

4 Perfect Locations for your Destination Wedding in France

France is probably one of the few locations in the world that we synonymise with love so what bett...

Questions to ask yourself before buying your watch

There are more and more watches on the market. And more and more brands are trying to seduce consu...

How to Thoroughly Prepare Children for a Professional Photoshoot at a Studio

Children are only young for a moment, which is why, for a lot of parents, it's essential to take a...

What to Expect at the University of Florida Tour

The University of Florida is a dream college for most aspiring students. Not only because of its p...