The Dutch Prosecution’s Opening Statement in the MH-17 Trial: What Lies Beyond the Horizon?

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On 9 March 2020, the Dutch Prosecution made its opening statement in the much anticipated MH-17 Trial, dealing with the shooting down of Malaysia Airlines flight MH-17 over eastern Ukraine and the deaths of its 298 passengers. In doing so, the Prosecutor Ward Ferdinandusse shed light on some of the legal questions that arose when it was first announced, nearly a year earlier, that the four accused would be charged with “domestic” crimes under the Dutch Criminal Code (DCC), namely: (i) causing the crash of an airplane (Article 168 DCC), and (ii) murder (Article 289 DCC). The lack of war crimes charges naturally raised a few eyebrows, with some media reports viewing it as a strategic choice by the Prosecution, meant to “avoid unnecessary debates” on complex legal questions stemming from the field of international humanitarian law (IHL). This contribution offers some critical thoughts on the legal reasoning that the Prosecutor provided in his opening statement to underpin that choice and thus flags several concerns over the projected course of the MH-17 Trial.

The Prosecution’s case and the notion of “combatant’s privilege”

In his opening statement, the Prosecutor concedes that, looking at the available evidence, “[it] is perfectly conceivable that the true intention of these defendants was to shoot down an aircraft of the Ukrainian armed forces.” He calls this “the error scenario” and asserts that such a mistake would be immaterial, making the following statement to this end:

The offences with which the defendants are charged concern the prohibition on causing any aircraft to crash and on killing another person, regardless of the type of aircraft and regardless of the military or civilian status of that other person. In the Netherlands anyone who destroys a Royal Air Force fighter aircraft can also be prosecuted under article 168 of the Dutch Criminal Code, and for the murder of the pilot. The offences in the indictment are as applicable to the downing of a military aircraft as to the downing of a civilian aircraft. In principle, any error concerning the target makes no difference in respect of the proof that such offences were committed.

Viewed exclusively through the prism of municipal criminal law, be it Dutch or otherwise, this assertion is perfectly sound. However, the factual circumstances in the MH-17 trial also engage another legal order that applies specifically in the context of armed conflicts: IHL. International humanitarian and criminal law jurists would quickly point out that, under that legal order, it is critically important to define the status of a target as military or civilian since, in principle, the former may be attacked and killed by lawful combatants without fear of criminal prosecution. This is embodied in the concept of “combatant’s privilege”, which has its legal basis in Article 43(2) of Additional Protocol (AP) I to the Geneva Conventions, and which the Inter-American Commission on Human Rights aptly defined in the following terms:

The combatant’s privilege in turn is in essence a license to kill or wound enemy combatants and destroy other enemy military objectives. A lawful combatant possessing this privilege must be given prisoner of war status… upon capture and immunity from criminal prosecution under the domestic law of his captor for his hostile acts that do not violate the laws and customs of war. This immunity does not, however, extend to acts that transgress the rules of international law applicable in armed conflict (para. 68).

The International Committee of the Red Cross has further affirmed that the immunity of lawful combatants from criminal prosecutions for acts that are lawful under IHL is a well-established rule of customary international law. (ICRC Study, p. 384)

The Prosecutor foresaw this point. Indeed, further down his opening statement, he does readily recognise that the destruction of flight MH-17 occurred in the context of an armed conflict and, critically, that under IHL “military personnel may participate in hostilities within the limits of international law”. At this juncture, he rather cursorily raises a fundamental argument: that the armed forces of the so-called ‘Donetsk People’s Republic’ (DPR), which shot down flight MH-17 and to which the four accused belonged, had no privilege of belligerency. According to the Prosecutor, combatant’s privilege “appl[ies] only to regular military personnel acting under the authority of a state in a group that respects international humanitarian law”, which was not true for the DPR forces because:

  1. the accused “in this case have never asserted that in July 2014 they were regular military personnel acting on behalf of a state in Ukraine”; and
  2. the DPR forces were involved in “thousands of cases of looting, abduction of civilians, torture” and other criminal acts, so they were thus not an armed group that complied with the requirements of international law.

Accordingly, since they had no “combatant’s privilege” (and the immunity arising therefrom), it is immaterial whether the DPR forces genuinely thought that MH-17 was a military airplane. Litigation on the “error scenario” is thus avoided.  

No “combatant’s privilege” for DPR fighters?

As is well known, the legal status of “combatant”, which confers the privilege of belligerency, exists solely in international armed conflicts (IAC). Though some scholars have suggested that members of armed groups that are engaged in non-international armed conflicts (NIAC) should also be granted “combatant’s privilege” under certain conditions, the IHL on this point remains decidedly as States originally defined it: i.e. non-State armed groups are not afforded privilege of belligerency in NIACs.    

Interestingly, in its opening statement, the Prosecution never expressly argues that the conflict in eastern Ukraine is a NIAC and, therefore, that any references to “combatant’s privilege” and immunity should be jettisoned outright. Rather, as if in anticipation of a challenge that Russia’s interference internationalized that conflict, the Prosecutor’s argument runs deeper to assert that, in substance, the DPR armed forces do not fulfil the legal requirements for obtaining the status of lawful combatants under IHL. His analysis on this point, however, has several shortcomings.

To begin with, the combatant status is not limited to what the Prosecutor calls “regular military personnel” (emphasis added). He repeats this interpretation further down his opening statement when arguing again that DPR fighters were not combatants because the accused “never asserted that in July 2014 they were regular military personnel acting on behalf of a state.” However, it has long been established in IHL that irregular armed forces, e.g. militias, volunteer corps, that are not formally integrated into a State’s regular military chain of command may also be entitled to “combatant’s privilege”. This is recognized in the text of Article 1 of the Hague Regulations (1899, 1907) and in Article 4(A)(2) of Geneva Convention (GC) III (1949). Critically, the distinction that IHL used to draw between ‘regular’ and ‘irregular’ armed forces was altogether abandoned in the text of Article 43 of AP I (1977), to which both Russia and Ukraine are parties. This would be the applicable provision for defining combatant status within the conflict in eastern Ukraine, if that conflict was indeed internationalized by Russia using the DPR forces as its proxy armed force there. That definition, and the legal requirements that an armed group must satisfy to obtain the privilege of belligerency, are analysed immediately below. However, as a point of departure, it should be stressed here that the ‘irregular’ character of the DPR forces does not per se disqualify its members from such status and the privilege/immunities stemming therefrom.

To determine whether, ‘irregular’ as they may be, the DPR forces were lawful combatants, we must logically first determine whether they participated in an IAC because the combatant status only exists in that context. Front and centre here comes the ICTY Appeals Chamber’s seminal decision in Tadić and its ‘overall control’ test, which will require assessing whether Russia had a role in: (i) “financing, training and equipping, or providing operational support to” the DPR, and (ii) “organizing, coordinating or planning the military actions of” the DPR in the conflict in eastern Ukraine (Tadić Appeal Judgment, para. 137). If yes, the conflict would indeed be an IAC between Ukraine and Russia, with the latter using the DPR as its proxy armed force. It is worth noting here that this is not just a hypothetical possibility, seeing as the ICC Office of the Prosecutor has already cited evidence alleging this to be the case (see here, para. 73).

Turning then to the conditions for lawful belligerency, there are generally two standards here: one established under Article 4(A) of GC III and one under Article 43 of AP I. The latter applies to States that are also parties to this Protocol and provides that the “armed forces of a Party to a conflict consist of all organized armed forces, groups and units”, which:

  1. “are under a command responsible to that Party”, and
  2. are “subject to an internal disciplinary system [which] shall enforce compliance with the rules of international law applicable in armed conflict”

In his opening statement, the Prosecutor seems to argue that requirement (i) is not satisfied when he states that “to date the defendants in this case have never asserted that in July 2014 they were […] acting on behalf of a state in Ukraine.” Setting aside for a moment the procedural aspect of this statement, it should first be stressed here that the accused’s subjective perception of the relationship between his armed group and a said State is not determinative for this requirement, which refers to an objectively verifiable fact. Opinions on the precise threshold for determining when an armed group is “under a command responsible to a State” differ, with debates focusing on whether this can be established by using Tadić’s “overall control” test, or whether it requires proving an even stricter relationship of control that the State must exercise over the said armed group (see here). In any event, the lack of a formal, de jure chain of command between Russia and the DPR forces – or whatever statements the four accused have (not) made to this effect in their public appearances so far – could not preclude a finding that requirement (i) is fulfilled.

The Prosecution’s other argument for refusing “combatant’s privilege” to the DPR forces –i.e. that the DPR forces were involved in “systematic and large scale violations of international humanitarian law […] in 2014 and thereafter, [including] thousands of cases of looting, abduction of civilians, torture, inhumane treatment, executions of civilians and prisoners of war, [etc.]” – can also be disputed. First, this argument clearly refers to the conditions of belligerency for irregular armed forces established under Article 4(A)(2) of GC III. The latter indeed requires that such an armed group must be, inter alia, “conducting [its] operations in accordance with the laws and customs of war.” However, as explained above, the applicable legal standard on belligerency in the MH-17 Trial would be Article 43 of AP I, which only requires that the said armed group must have “an internal disciplinary system”. This is viewed as a more relaxed condition (Mačák, p. 178). Second, even if that condition under Article 4(A)(2) of GC III did apply, evidence of sporadic, individual violations of IHL by the DPR forces would not suffice to deprive them of combatant status. If an armed group, as a whole, “habitually acts in compliance” with IHL, this will satisfy the said requirement (Dinstein, p. 44). The Army of Republika Srpska, for instance, frequently violated IHL during the war in Bosnia and Herzegovina yet, once it was established that it was operating under the overall control of the Federal Republic of Yugoslavia, it was never asserted that its fighters were not combatants.

From substance to procedure: can IHL on “combatant’s privilege” be applied in the MH-17 Trial?

Let us assume arguendo that the DPR forces in eastern Ukraine can indeed be defined as lawful combatants by a proper application of Article 43 of AP I to the case facts. Can such an analysis be applied within the Dutch criminal justice order and, if yes, how can it be raised in the specific context of the MH-17 Trial?

The answer to the first question is relatively straightforward. The Netherlands adopts a monistic approach to its reception of international law, whereby the general rule is that international law is directly applicable in the Dutch legal order (Ferdinandusse, pp. 66-69), except for customary law (Zegveld, pp. 99-105). Article 94 of the Dutch Constitution even establishes that domestic statutory laws shall not be applied “if such application is in conflict with provisions of treaties or of resolutions by international institutions” that are binding on the Netherlands. Dutch courts have often directly applied international law in their proceedings, including IHL and provisions from the Geneva Conventions and their Additional Protocols (see here and here). In fact, in the “Tamil Tigers Trial”, the very concept of “combatant’s privilege” was subject to litigation after the accused had argued that they were entitled to immunity from criminal prosecution for their violent acts because they were “combatants” under IHL. The Supreme Court correctly rejected this argument by concluding that, since the armed conflict in Sri Lanka was non-international, AP I and the privilege of belligerency did not apply (see here, Sections 3.3. – 3.4).

Assuming that the conflict in eastern Ukraine can be defined as an IAC by means of the Russian Federation controlling the DPR forces, and thereby that the latter qualify as ‘combatants’ under Article 43 of AP I, there would be – in theory – no obstacle to successfully invoking the concept of “combatant’s privilege” in the MH-17 Trial. The Netherlands is Party to AP I and so the right of lawful combatants to attack valid military targets is an applicable statutory prescription that can be construed as a ground for excluding criminal responsibility within the meaning of Article 42 of the DCC. The latter establishes that “any person who commits an offence in carrying out a statutory requirement shall not be criminally liable.” Such a line of argumentation, however, will need to be raised and substantiated by the Defence. This may be a problem, as the MH-17 Trial is being conducted in absentia (although one of the accused has reportedly appointed a lawyer). However, even if there is no defence lawyer to put forward such arguments, the judges are still required to  deliberate and enter findings on the (un)availability of justifications/excuses before convicting the accused (Article 350, Criminal Procedure Code). Considering the international significance of the MH-17 Trial and its in absentia character, the judges will thus be well advised to actively inquire into the question of the disputed combatant status of the DPR forces in eastern Ukraine, going beyond the general statement made by the Prosecution to this end.

Conclusion

Finding that the DPR forces which shot down flight MH-17 were lawful combatants would by no means make the Prosecution’s case against the four accused unsustainable. Indeed, even if the members of that group had the privilege of belligerency at the material time, they certainly still committed a crime if they intentionally destroyed a civilian object, killing thus the civilians therein. Apart from “fair labelling” concerns, it matters little whether this criminal act is legally qualified as a war crime, or as an ‘ordinary’ crime under Dutch law. What would change is the legal route to obtaining conviction because the Prosecution will then have to go down the ‘error scenario’ and prove that the DPR armed forces were not reasonably mistaken about the status of the target. The notions of “mistake of fact” and “dolus eventualis” will then take centre stage in the proceedings.

Straightforward as it may be to view the case exclusively through the prism of national criminal law and avoid complications arising from the field of IHL, the MH-17 Trial should not turn a blind eye on the glaring issue of “combatant’s privilege”. Russia’s control over the DPR forces in eastern Ukraine would also be examined in parallel running proceedings before the European Court of Human Rights and it will be very unfortunate if, based on a few perfunctory statements to this effect, the MH-17 Trial was to indeed proceed on an unchallenged understanding that the DPR was an autonomous and independent non-State armed group, having no combatant status. This may, of course, very well be true, but the question should be thoroughly and convincingly examined in the MH-17 Trial, not hastily swept away with broad arguments and overlooked through the absence of defence lawyers.

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John Morss says

May 16, 2020

Extremely useful contribution, thankyou. May I however raise with the editors, assuming that we are still in an evaluation phase for the new look site, the question of appropriateness/ necessity of accompanying graphics? I'm not sure if the gavel/ hammer is used outside of US domestic courts (at least as seen on TV) -- not in UK/Australia courts anyway; is it used in any international court??? The appearance of using this image is that the choice of graphic has been contracted out to a marketing business (or marketing arm of university etc) that is to say to someone who knows little about the content of the article thus illustrated and perhaps little about international law. In so doing the new EJIL:Talk! site looks to me like many other sites on social media, whereas it used to have a unique presentation. This is of course just an opinion.

André de Hoogh says

May 17, 2020

The contribution notes the monistic approach to the reception of international law with the Dutch legal order and claims that the general rule is that international law is directly applicable within that order, with the exception of customary international law. This is inaccurate.

The Dutch Constitution (applicable to The Netherlands in Europe; also applicable in the Kingdom of The Netherlands as a whole via the Statute of the Kingdom of The Netherlands) does specifically mention that provisions of treaties and decisions of international organizations, which by their content can bind all, have binding force after publication.

The lack of mention of customary international law in the Dutch constitution does not entail, however, that this would not be directly applicable within The Netherlands. A rule of unwritten constitutional law accepts that customary international law is binding on The Netherlands and may be directly applied by the courts whenever pertinent.

However, should there be a conflict between a rule of customary international law and a law formally adopted by parliament and government (which includes the Constitution itself), an a contrario reading of Article 94 of the Constitution is taken to mean that in such a case the law will prevail.

André de Hoogh says

May 17, 2020

Just an addition: the Constitution of the Netherlands is not applicable within the Kingdom via the Statute as a whole, but certain parts of that Constitution are and these include the reception of international law as laid down in Articles 93-94.

Lachezar Yanev says

May 18, 2020

Thank you for this comment, André.

The idea that customary international law is directly applicable in the Dutch *criminal* justice order was effectively rejected by the Supreme Court in the Bouterse case. Liesbeth Zegveld explained the Court’s reasoning in great detail in the article I reference in my commentary. In a nutshell, the Court’s reasoning was that Dutch law on nullum crimen sine lege (unlike the international law on the legality principle) requires a pre-existing *written* law, on the basis of which a person can be convicted. In the absence of an applicable written (international or domestic) legislation that criminalizes a certain conduct, an accused’s conviction cannot be based on direct application of customary international law that criminalizes the said conduct. In Bouterse, the Supreme Court thus concluded that prosecuting the accused for torture under universal jurisdiction – solely based on customary international law – would violate the legality principle under Article 16 of the Dutch Constitution.

Thus, it is not only the case that customary international law cannot be used to review, or take precedence over, a conflicting domestic written legislation in the Netherland. Rather, as we saw in the Bouterse case (and later again also in the Mpambara case), customary international law cannot be used by Dutch courts – in criminal cases – as a directly applicable source of law that can fill in a vacuum of non-existent written (international or domestic) legislation.

It may very well be that outside the context of criminal proceedings, direct application of customary international law in the Netherlands is possible. This is a point that I take and which I should have more expressly clarified in my commentary.