The MH17 Judgment: An Interesting Take on the Nature of the Armed Conflict in Eastern Ukraine

On 17 November 2022, some eight years after Malaysia Airlines Flight 17 (‘MH17’) was shot down in eastern Ukraine, the Hague District Court delivered a verdict against the four accused in the MH17 Trial: Igor Girkin, Sergey Dubinskiy, Leonid Kharchenko and Oleg Pulatov. The first three were found guilty of the charged crimes – viz., murder of 298 people (Article 289 of the Dutch Criminal Code, DCC) and intentionally causing the crash of an airplane (Article 168 DCC) – as (indirect) co-perpetrators. Each of them received a life sentence. The fourth accused, Pulatov, was acquitted of all charges as the judges held that there was “no evidence that Pulatov actually made any contribution to the deployment of the Buk-TELAR” missile system that was used to shoot down MH17. (own translation, the judgment is currently only available in Dutch, see MH17 Judgment, Section 6.3.5.3.) Although it is at present unlikely that Russia, where the three convicted persons are believed to be, would cooperate with the enforcement of the said sentences, the value of this verdict for all the victims and their relatives, for the Dutch state and for the international community is undeniable. (see here and here)

From a scholarly perspective, the MH17 Judgment offers valuable judicial analysis on various legal questions that will likely engage academic discussions in the months ahead. This contribution focuses on one particular legal issue to which the judges dedicated a very sizeable section of the judgment: the question whether the Dutch Prosecutor has a right to prosecute this case (‘ontvankelijkheid van de officier van justitie’), as required by Article 348 of the Criminal Procedure Code. The analysis that the Court provided on this matter contains some interesting findings. In particular, the Court’s conclusion is examined here that the downing of MH17 on 17 July 2014 took pace in the context of an international armed conflict between Ukraine and Russia, but that the armed forces which Russia used to wage that conflict – i.e., the separatist forces of the so-called Donetsk People’s Republic (‘DPR’) – were not entitled to combatant’s privilege (and immunity) under international humanitarian law (‘IHL’).

The Dutch Prosecutor’s right to institute criminal proceedings: establishing jurisdiction

The Court explained that in order to determine whether the Dutch prosecutor had a right to start criminal proceedings against the accused in the MH17 Trial, three questions must be answered: (i) whether the Dutch Criminal Code establishes jurisdiction over the conduct in question; (ii) whether international law provides any limitations, such as immunities, to prosecution; and (iii) whether serious procedural defects in the investigation and prosecution can be identified which could extinguish the Prosecutor’s right to prosecute this case. For brevity reasons, the Court’s analysis of how the last criterion applies in this case is not examined here.

With regard to the jurisdictional question, the Prosecutor had originally submitted that passive personality jurisdiction under Article 5 DCC extends both to the charge of intentionally causing an airplane to crash and to the charge of murder, because most of the victims who died in this incident (196 of the 298 persons on board of flight MH17) were Dutch nationals. I have previously analyzed this argument elsewhere (here, at 168-171) and submitted that the principle of passive personality jurisdiction cannot be extended to the killing of the non-Dutch nationals on flight MH17 just because their deaths occurred in the same factual circumstances that led to the deaths of the Dutch passengers. The MH17 judges also adopted this view. They concluded that passive personality jurisdiction applies to the crime of intentionally causing an airplane to crash because – even though MH17 flied under the Malaysian flag and was shot down by non-Dutch nationals on non-Dutch territory – Dutch nationals were among the victims of that crime. However, the judges found that the same logic does not apply mutatis mutandis for the murder (manslaughter) charges which they treated as effectively constituting 298 separate and distinct charges. They thus rightly concluded that charges concerning the killing of non-Dutch nationals do not fall within the scope of passive personality jurisdiction under Article 5 DCC. Instead, the Court held that jurisdiction over those charges can be established based on Article 8b DCC, which: (i) provides for delegated (transferred) jurisdiction, and (ii) applies in this case by virtue of a bilateral agreement that Ukraine and the Netherlands concluded to this effect back in July 2017. (MH17 Judgment, Section 4.4.2.) Naturally, passive personality jurisdiction then applies for the charges of murder vis-à-vis the Dutch nationals on board of flight MH17.

The Court’s findings on this point, and specifically on the scope of passive personality jurisdiction, should be welcomed: not only as valuable evidence of state practice that is in line with the approach taken by other states (see here, at 170) but also as a sensible limitation to the unbridled expansion of the titles of extraterritorial jurisdiction.

The question of ‘combatant’s immunities’: nature of the conflict in eastern Ukraine anno 2014

The Court’s analysis on the second criterion for determining whether the Prosecutor had a right to initiate criminal proceedings against the MH17 accused – i.e., whether international law bars such a prosecution – would be of particular interest to international humanitarian law experts. 

From the outset, the judges recognized that since the factual circumstances in this case occurred in the context of an armed conflict, there is one specific type of immunity under IHL that has to be addressed here: i.e., ‘combatant’s immunity’. (MH17 Judgment, Section 4.4.3.1) The Court recognized that lawful combatants have a right under IHL to use lethal force against valid military targets and that, as a corollary to that right, they must be afforded immunity from criminal prosecutions for such acts (even if those acts constitute crimes under the national laws of a state). The judges noted that none of the accused claimed such immunity, and that Pulatov in fact expressly refused to invoke this notion, but observed that if established it would lead to the conclusion that the Prosecutor has no right to prosecute this case under Article 348 CPC.

It is hardly surprising that the accused did not seek to invoke ‘combatant’s immunity’ in this case. As is well-known, this concept applies only in international armed conflicts. (see, e.g. Melzer, at 33, fn.52; Haque; for an argument that such immunity ought to be extended to NIACs, see Ohlin) This means that the accused would have had to argue that the DPR’s armed forces they commanded were de facto Russian proxy forces, engaged in an IAC against Ukraine at the time flight MH17 was shot down: a position that the Russian Federation has persistently denied.

Despite the lack of submissions by the Defence on this point, Article 348 CPC required the Court to enter a finding on this question of immunity. Thus, the judges first went to examine the nature of the conflict in eastern Ukraine back in July 2014, at the time MH17 was downed. Using the ‘overall control’-test from the ICTY Tadić Appeal Judgment, they sought to establish whether the prima facie NIAC between the Ukrainian government forces and the DPR’s armed forces had been internationalized by 17 July 2014: i.e., whether the Russian Federation played 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 that conflict. (MH17 Judgment, Section 4.4.3.1.3) Wiretapped conversations between the DPR’s leadership and talks they had with senior members of Russia’s Presidential administration (including, for instance, Vladislav Surkov), were used by the judges to conclude that during the indicted period “multiple leaders of the DPR held close connections with the Russian intelligence services, the Presidential administration and advisors of the Kremlin”. (Ibid., own translation) Such contacts were used to request and obtain from the Russian Federation convoys of military weapons, as well as of manpower, salaries and other forms of financing that went through the city of Rostov. Next to these forms of material and operational support, the Court also found that there was an “abundance of evidence” that the Russian Federation coordinated the DPR’s military activities and in fact gave direct instructions to its leadership. (Ibid.) A wiretapped conversation that took place on 21 July 2014 between Alexander Borodai (then DPR’s Prime Minister) and a Russian number was cited, for instance, in which Borodai asked to speak with ‘the boss’ since he needed instructions on handling the aftermath of the MH17 disaster.

Relying on more such evidence, the judges reached the conclusion that “from mid-May 2014 until at least the shooting down of flight MH17, the Russian Federation exercised overall control over the DPR. In this way, the geographically non-international armed conflict became internationalized and is, thus, an international armed conflict.” (Ibid) This is a significant legal finding: to the best of my knowledge, it presents the first judicial determination that the nature of the armed conflict between Ukraine and the DPR’s armed forces is international, and indeed has been such since mid-May 2014. The ICC Office of the Prosecutor has previously indicated in its preliminary examination reports that it also possessed evidence of the Russian Federation exercising overall control over the DRP forces (see here, para 73 and here, paras 280-281), but most commentators have viewed that armed conflict as a NIAC (see here and here) because it was thought that there was insufficient evidence to satisfy the second limb of the Tadić ‘overall control’ test. The MH17 Judgment admittedly does not offer a most extensive analysis on this point – the section containing the judges’ deliberations on the extent to which Russia directed the military activities of DPR is just a page long – but it does discuss some potent evidence of DPR leaders reporting to and receiving instructions from Moscow in their conduct of military activities.

The question of ‘combatant’s immunities’: the status of the DPR forces

Having found that the DPR’s armed forces were engaged (as a Russian proxy) in an IAC against Ukraine, the judges thus arrived at the burning question of whether the accused, as leaders of the DPR forces, were ‘combatants’ under IHL, enjoying the privileges and immunities attached to that status. (MH17 Judgment, Section 4.4.3.1.4) Here, the Court correctly referred to Article 43 of Additional Protocol I of the Geneva Conventions to explain the two requirements that an armed group must satisfy in order for its members to be considered lawful combatants, namely that the said group is: (i) ‘under a command responsible to that Party’ to an IAC, and (ii) ‘subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict’. (Article 43 of AP I)

The Court’ application of that legal framework to the case facts would likely raise some debates amongst IHL experts. In particular, the judges held that:

the DPR was not part of the official armed forces of the Russian Federation but – as established above – acted under the overall control of the Russian Federation. However, that finding of overall control is in itself insufficient to conclude that the DPR functioned under a command responsible to the Russian Federation. For that, the Russian Federation must also accept the DPR as belonging to it and take responsibility for the behavior and actions of the combatants (under the command) of the DPR. (MH17 Judgment, Section 4.4.3.1.4, own translation)

Put simply, the Court found that condition (i) of Article 43 AP I was not satisfied because the Russian Federation (and also the accused) have continuously and to present day denied that the DPR functioned under a command responsible to Russia. On this basis, the judges held that the DPR’s forces, and the four accused in particular, did not enjoy the status of lawful combatants during the indicted period and cannot, thus, invoke combatant’s immunity.

The Court’s reasoning on this point adopts a view which the Prosecution has maintained in this case (see here) and which I have already criticized elsewhere (here, at 178-180). In short, while the commentaries to the Geneva Conventions do indeed state that a Party (i.e. Russia) to a conflict must “accept both the fighting role of the group and the fact that the fighting is done on its behalf” (see here, para 1005), they also expressly recognize that this acceptance does not have to be formal and express. Indeed, such acceptance can also be demonstrated by evidence that the Party to an IAC ‘controls’ the said armed group. (see here, para 1008 and here, at 23) Authors studying the DPR’s forces legal status as combatants who may be entitled to prisoner-of-war status and combatant’s immunity have, thus, standardly focused on examining the level of control that the Russian Federation must exercise over those forces, not on whether Russia formally accepted them as its de facto agents in Ukraine. (Reeves and Wallace, at 399-400) As a more general observation, the Court’s findings on the conflict in eastern Ukraine in mid-2014 construct an asymmetric situation where two states were engaged in an IAC in that region, yet only the forces of one of those states were privileged combatants. As a result, if e.g. a Ukrainian soldier was captured by the DPR’s forces, they will be obliged to treat him as a prisoner of war and afford him all the rights and protections enshrined in Geneva Convention III. Failing to do so would result in inter alia state responsibility for Russia, as the controlling state. By contrast, if a DPR soldier is caught by the Ukrainian army, he could be prosecuted as a common criminal, even for the very use of lethal force against Ukrainian soldiers. This does not seem like a very tenable outcome.

The ‘immunity’-challenge could have more convincingly dealt with by focusing on the point that combatant’s immunity only extends to lawful acts of hostility, which the shooting down of a civilian aircraft is certainly not. The problem is, however, that the judges would have been pushed to engage in complicated factual analyses about the extent to which the downing of MH17 was an accident caused by the perpetrators’ genuine belief that they were shooting at a Ukrainian military aircraft (which they would have had the right to do, had they been lawful combatants under IHL). The decision to altogether reject combatant status for the DPR, based on Russia’s denials that this group is fighting on its behalf is, in this respect, a pragmatic way out of this conundrum. It subsequently allowed the judges to find in the section discussing the criminal responsibility of the four accused that it is legally irrelevant that the direct perpetrators of the missile attack on MH17 – i.e. a DPR unit stationed nearby the town of Pervomaiskyi and under the direct command of Kharchenko (who was in turn subordinate to Dubinskiy) – thought that they were shooting at a Ukrainian aircraft. (MH17 Judgment, Section 6.3.5.3) As the Court explained:

where in the execution of a crime a wrong target is accidentally hit, the physical perpetrator of the crime is still held responsible for that crime. The reasoning here is that for the crime of murder intent to kill another person with premeditation is required, whereby if it turns out afterwards that not the intended person, but another person was killed, the offense description is still met, namely that a person was intentionally killed. In the court’s opinion, this also applies to the intentional and unlawful crashing of an aircraft. If afterwards it turns out that a different type of aircraft was shot down than the intended type of aircraft, the offense description is still met. The premise here is that, in the absence of combatant privilege, it is, of course, as punishable to kill a soldier as it is to kill a civilian, and it is as punishable to shoot down a military aircraft as it is to shoot down a civilian aircraft. If the intention was to shoot down a plane that could not have been shot down, and a plane was indeed shot down that could not have been shot down, then at the very least the substantial likelihood of killing people who should not have been killed either has been accepted. Legally, there is no difference between the two planes, nor the status of the occupants. Therefore, the mistake does not negate either intent or premeditation. (Ibid., own translation and emphasis).

This line of reasoning is, of course, perfectly sound but also entirely conditional on the initial finding that the DPR fighters which shot down flight MH17 were not lawful combatants. This is not to say that I believe a different outcome would have necessarily transpired in this case if combatant’s privilege was recognized for the DPR armed forces. As the judges point out in the said “mistake scenario” section, the deployment of a Buk-TELAR system in an area with high civilian air traffic and without an additional system (e.g., a Target Acquisition Radar) to verify additionally the nature of targets, indicates that risks were taken that day. (Ibid.) Whether these risks were known to the crew operating the Buk-TELAR system, however, or they were instead negligent and genuinely believed they were shooting at a Ukrainian aircraft, and to what extent their hostile actions were, thus, not covered by ‘combatant’s privilege/immunity’, are questions that would have required a different kind of analysis. 

Conclusion

The Dutch Prosecution recently announced that it would not appeal the Hague District Court’s verdict. None of the three convicted persons have reacted and filed an appeal either. We have, thus, likely seen the last chapter of the MH17 Trial: a case that attracted a lot of attention, both in the Netherlands and globally, and that took place at an intersection of Dutch and international law. The present contribution has zoomed in on just one aspect of this case, namely the manner in which the Court addressed the possible application of IHL in this trial, offering some critical reflections on the reasoning that the judges’ adopted to define the DPR armed forces in eastern Ukraine as unlawful belligerents participating in an IAC. It does credit to the Dutch judges that, in the absence of submissions by any of the four accused on the issue of combatant’s immunity, they went on to examine in such great detail the extent to which this notion could bar the Dutch prosecution from exercising its right to prosecute this case. That section of the MH17 Judgment provides a very stimulating analysis on the nature of the conflict in eastern Ukraine, in general, and on the conditions for lawful belligerence, in particular. Although the somewhat formalistic manner in which the Court rejected a combatant’s status for the DPR’s forces – i.e., by invoking Russia’s formal denials that the DPR functioned under a command responsible it – can indeed be subject to some criticism, this does not detract from the fairness of the verdict and the justice it does to the victims of the MH17 disaster.

Image: Dietmar Rabich, Dülmen, Wildpark — 2017 — 6075-81, CC BY-SA 4.0