MH17: can Russia be held to account?

On July 17, 2014, Malaysian Airlines Flight MH17 was shot down over Ukraine while en route from Amsterdam to Kuala Lumpur, resulting in the deaths of nearly 300 people.

Of the 298 victims, 196 were Dutch citizens, a demographic detail that prompted the Netherlands to lead the subsequent investigation and legal efforts.

In May 2018, a four-year Dutch-led inquiry concluded that the aircraft was destroyed by a Buk missile system launched from territory controlled by Russian-backed separatists.

The investigation utilized social media photos and video to track the specific Russian mobile launcher's route from an army base in Russia to the Ukrainian border.

Evidence confirms the launcher returned to Russia with two of its launch tubes empty, while alternative Russian theories utilizing falsified radar data were debunked.

The Kremlin maintains a stance of total denial, refusing to cooperate with investigations or accept responsibility despite the "overwhelming" evidence presented.

The Netherlands and Australia have formally called on the Russian Federation to engage seriously with the international community regarding the incident.

The Netherlands aims to hold Russia accountable, though the specific legal pathway remains constrained by complex jurisdictional challenges in international law.

International Court of Justice (ICJ) Options

• The ICJ adjudicates disputes between states but requires the consent of both parties, making jurisdiction over this case difficult to establish without Russian agreement.
• Potential grounds for jurisdiction include Article 3bis of the Chicago Convention, which mandates states refrain from using force against civil aircraft.
• Success in the ICJ depends on proving the specific extent of direct involvement by Russian state agents in the missile launch.
• Even if a violation is proven and a binding judgment issued, international law lacks an enforcement mechanism like an international army to compel Russian compliance.

European Court of Human Rights (ECHR) Options

• The Netherlands may pursue the ECHR in Strasbourg, as both Russia and the Netherlands are members of the Council of Europe.
• Article 2 of the European Convention on Human Rights protects the right to life, creating a clear legal obligation for Russia not to be involved in downing civilian aircraft.
• Legal experts suggest the ECHR offers a stronger jurisdictional basis than the ICJ due to the clearer treaty obligations and existing membership of both involved parties.

Individual Criminal Prosecution (International Criminal Court & Dutch Courts)

• The International Criminal Court (ICC) has jurisdiction over the incident because Ukraine invited the court's operations onto its territory to prosecute individuals.
• However, the ICC generally acts only when states are unwilling or unable to prosecute, and the Dutch government intends to handle the prosecution itself.
• A major obstacle to ICC success is the high likelihood that Russia will refuse to extradite the individuals responsible for firing the missile.
• The Dutch legal system allows for in absentia prosecutions, enabling trials of individuals who are not in custody, provided specific criteria are met.
• Successful prosecution of individuals requires the Netherlands to definitively identify specific officers and their roles, a task currently hindered by Russia's lack of cooperation.
• Victims' relatives have established a persistent presence outside the Russian embassy in The Hague to demand answers and accountability.
• While legal proceedings seek justice, families acknowledge that such processes cannot restore lost lives but serve as a necessary assertion that the world rejects the incident's dismissal.