E.U. Court Substantiates Dutch Allegations

The European Court of Human Rights has agreed to hear a case that could see Russia held responsible for the 2014 downing of Malaysia Airlines Flight MH17.

The government of the Kingdom of the Netherlands has long asserted that Russia played a key role in subject disaster, alleging the region of eastern Ukraine over which Flight MH17 was shot down by a Russian-made Buk missile fired by pro-Russian separatists was—from 11 May 2014 up to at least 26 January 2022—under the jurisdiction of the Russian Federation. In January 2023, the European Court of Human Rights ruled the Netherlands’ case admissible, stating: “the evidential threshold for the purposes of admissibility had been met in respect of the complaints of the Government of the Netherlands.”

The court also found that Russia had carried out artillery attacks at the request of separatists, and provided separatist forces weapons and military equipment as well as economic and political support.

By ruling on the Netherlands’ behalf, the European Court of Human Rights intimates concurrence with the widespread belief that Russia is in fact responsible for the attack on and destruction of Malaysia Airlines Flight MH17. Nevertheless, international outrage and pervasive belief in Russia’s culpability vis-à-vis the MH17 disaster notwithstanding, a guilty verdict—which could see Moscow contemporaneously humiliated and compelled to pay extensive penalties and damages—is likely years away.

On 17 July 2014, a Boeing 777-200ER operating as Malaysia Airlines Flight 17 (MH17)—scheduled passenger service from Amsterdam’s Schiphol Airport (AMS) to Kuala Lumpur International Airport (KUL) in the Malaysian capital city of Kuala Lumpur—was shot down by Russian-controlled forces while passing over eastern Ukraine. The entirety of the aircraft’s 283 passengers and 15 crew-members perished. Contact with MH17 was lost approximately 27-nautical-miles from the Russo-Ukrainian border, and wreckage from the 777 was recovered near Hrabove in Ukraine’s Donetsk Oblast. The tragedy occurred during the war in Donbas over territory controlled by Russian separatist forces.

Responsibility for the investigation of MH17’s downing was delegated to the Dutch Safety Board (DSB) and the Dutch-led joint investigation team (JIT), which reported in 2016 that the airliner had been downed by a Russian-made Buk surface-to-air missile launched from pro-Russian separatist-controlled territory in Ukraine. The JIT found that the killing missile had been allocated to the Russian Federation’s 53rd Anti-Aircraft Missile Brigade, transported from Russia to Ukraine on the day of the attack, and fired from a field in a rebel-controlled area near Hrabove. Following the destruction of MH17, the missile’s launch system was hastily returned to Russia.

On the basis of the JIT's conclusions, the governments of the Netherlands and Australia deemed Russia responsible for MH17s downing and, in May 2018, began pursuing legal remedies. Moscow, repeatedly varying its accounts of how MH17 was brought down, denied involvement in the incident.

In November 2022, a Dutch court sentenced three men to life in prison for the attack on MH17. Though found guilty, Igor Girkin, a former colonel in Russia's FSB intelligence service; Sergei Dubinsky, an employee of Russia's GRU military intelligence agency; and Leonid Kharchenko, a Ukrainian national who commanded a combat unit in Eastern Ukraine despite having no formal military background—are unlikely to be incarcerated insomuch as their convictions were handed down in absentia. By dint of arcane convolutions peculiar to E.U. criminal law, the trio of suspects refused to take part in the trial, which was held at the Schiphol Judicial Complex in Badhoevedorp, the Netherlands.

The Dutch court’s verdict occasioned the first instance in which an independent judgment was made on the MH17 tragedy. The court found that there was insufficient evidence to determine which of the three suspects had launched the BUK missile, and that the crew likely believed they were firing on a military aircraft, not a passenger jet. However, the court also ruled that the defendants—noncombatants all—were prohibited from shooting down any aircraft, military or civilian, and therefore not entitled to combat immunity.

FMI: www.courtmh17.com