ICC Prosecution ‘likely’ to look at MH17 downing

By Niklas Jakobsson

With Ukraine’s latest move of extending additional jurisdiction to the International Criminal Court, there’s a possibility that the Court will look into the downing of Malaysia Airlines flight MH17.

In an email to Justice Hub, the Office of the Prosecutor at the ICC confirmed that the downing of MH17 is likely to be looked at by the OTP, at the early stages of its assessment: “This event occurred during the time frame covered by Ukraine’s latest declaration accepting ICC jurisdiction. It will therefore likely be included in the Office’s preliminary assessment relating to alleged crimes committed in Ukraine”, the email reads.

Carrie Comer, the permanent representative to the ICC for the International Federation for Human Rights (FIDH), welcomes a potential look at the MH17 downing by the prosecution, but believes it shouldn’t overshadow other crimes committed during the conflict.

“The news that the OTP will analyse the downing of flight MH17 will bring the situation in the Ukraine back onto the front page of international news. Nonetheless, an analysis of the attack on MH17 as a possible war crime should not overshadow the numerous accounts of war crimes committed against Ukrainian civilians in Donbass and other areas of eastern Ukraine over the past 18 months of conflict, as well as grave and long-lasting violations in Crimea.”

The MH17 statement from the Prosecution’s office doesn’t come as a surprise to Sergey Vasiliev, postdoctoral researcher at the Department of Criminal Law and Criminology, VU University in Amsterdam. However, he thinks it’s unlikely the probe will go any further than the preliminary stages.

“It seems logical for the OTP not to exclude the possibility of covering the MH17 incident as part of the PE with the extended timeframe. But I doubt the prospect of it being investigated and charged at the ICC for reasons such as material jurisdiction and admissibility.”

Kevin Jon Heller, professor of criminal law at SOAS, University of London, believes that, although the downing of MH17 could be categorised as a war crime or a crime against humanity, it will not be possible for the Court to bring prosecution.

“Everything we know about the attack indicates that the attackers genuinely believed the airplane was military. Unless the OTP or the multi-national investigation develops evidence to the contrary, it will be impossible to prosecute the attackers for either a war crime or a crime against humanity because they will have a legitimate mistake of fact defence. If they thought they were attacking a military plane, they did not knowingly attack civilians.”

Aaron Matta, senior researcher at The Hague Institute for Global Justice, believes it will be difficult for the Court to bring forward cases for crimes from the extended jurisdiction given by Ukraine.

“Particularly the MH17, as in order to prove individual criminal liability, they will also have to prove intent.”

Cooperation and pressure from Russia could be also an issue for the Court, as it has previously received criticism for one-sided investigations into situations. The Court also has a long history of lack of cooperation from states, the latest example being South Africa’s refusal to execute the ICC arrest warrant against Sudanese president Omar al-Bashir. In its response to Justice Hub, the OTP highlighted their independent and impartial analysis of alleged crimes.

“As with all preliminary examinations, the Office will conduct an independent and impartial analysis of the alleged crimes committed during this period, in accordance with our mandate under the Rome Statute. “

There’s currently an ongoing multi-national investigation into the downing of MH17, which means that a case could be inadmissable at the Court. Kevin Jon Heller thinks the Netherlands could throw a spanner in the works if the downing of MH17 were to ever move beyond the initial stages at the ICC.

“The mere fact of an investigation is not enough to make the MH-17 case inadmissible. First, the multi-national investigation would have to focus on the same suspects and the same conduct the OTP is investigating. The conduct is obviously the same, and the suspects would likely be the same, as well. But it’s worth keeping in mind.

Second, and more importantly, one of the states investigating would have to formally challenge the admissibility of the case. The Netherlands likely would, but it’s still a formal requirement.”

Although MH17 will likely be looked at by the ICC, it seems unlikely that it will ever move beyond the initial stages. However, the court will still have its hands full looking at the annexation of Crimea and deaths caused by fighting in the Donbass region. This will be carried out alongside the already ongoing preliminary examination into the Maidan events that took place in late 2013 and early 2014.

Emanuele del Rosso is a cartoonist who works for Justice Hub.