Flight #MH17 – Investigations and jurisdiction

After the downing of Flight MH17 over embattled Eastern Ukraine on 17/07/2014, killing 298 civilians on board the plane, 3 (!) investigations were initiated by two separated bodies of authority:

  1. The Dutch Safety Board (DSB), under authority of the United Nations body International Civil Aviation Organization (ICAO) and in agreement with the Ukrainian State Aviation Administration (SAA) and Ukrainian National Bureau of Incidents and Accidents Investigation of Civil Aircraft (NBAAII) , opened the Aviation Security Investigation for the incident in which it is to determine what caused the crash of Flight MH17 and is also expected to provide recommendations to prevent such incidents in the future. The DSB has published a preliminary report in which it excluded technical and human failure as possible causes for the crash. An updated reported was distributed to the participants, being:
    1. The Netherlands (*)
    2. Ukraine (*)
    3. Russian Federation
    4. United States of America
    5. Malaysia
    6. United Kingdom
    7. Belgium (*)
    8. Australia (*)
  2. The DSB under the same authority, opened an investigation into the decision making process under which the airspace over embattled Eastern Ukraine was not closed prior to the incident, despite multiple aviation incidents in which military planes have been shutdown from various flight levels in the days prior to the crash of Flight MH17.
  3. The Joint Investigation Team (JIT) (*), per agreement between the member countries under the leadership of the Justice Department of The Netherlands, opened the criminal investigation into the crash of Flight MH17 in which it will seek evidence of the guilty party/parties and adequate evidence for prosecution.

Although these investigations by the DSB and JIT will have significant overlap in available data and resources, it is important to understand the difference. First and foremost, the DSB will focus on the Aviation Safety related issues of the incident and recommendation for prevention. This investigation is bound by the rules of and authorized by the ICAO, which also stipulates that all ICAO members are obliged to participate in and contribute to the investigation on request of the leading committee. ICAO also stipulates that all members are bound to recognize the final outcome of the investigation and the ruling by the investigative body. None of this applies to the work of the JIT!

The basis for the investigation by the JIT is an agreement between The Netherlands, Belgium, Ukraine and Australia and a Non-Disclosure-Agreement (NDA) between those countries which appears to be declaring all available information and steps as covered under this NDA until agreement is reached. The JIT has authorized itself for this criminal investigation based on the jurisdiction Ukraine has since the incident took place over Ukrainian territory but this doesn’t explain why Malaysia is not a member of the JIT. The jurisdiction over the incident based on international standards and treaties, is as follows by order of precedence:

  1. Ukraine as the country of which territory the incident leading to the crash took place.
  2. Ukraine as the country in which territory the plane crashed.
  3. Malaysia on behalf of the operating airline and their citizens on board the plane.
  4. The Netherlands on behalf of the (co)operating airline and their citizens on board the plane.
  5. Each nation with citizens on board the plane on behalf of their citizens on board the plane.

This makes clear that Ukraine has the higher hand and preceding jurisdiction over the incident and is as such also entitled to hand this jurisdiction to The Netherlands and the JIT as was done in the case of Flight MH17. Ukraine and the other members of the JIT do not however, have the authority to exclude Malaysia from such proceedings and in doing so, decline Malaysia the jurisdiction it has over the incident as nation of operation and its citizens on board the plane.

There are various theories to why the decision was made to exclude Malaysia from the JIT. In the first days after the crash, Malaysian officials contacted the self-proclaimed Republic in Donetsk directly to obtain direct access to the crash site, something which the authorities of Ukraine strongly opposed. This dispute between Ukraine and Malaysia escalated even further when Malaysian officials collected the black boxes of Flight MH17 directly from the hands of anti government forces in Donetsk. Another reason which might have fueled the decision to exclude Malaysia from the JIT is the fact that Malaysia has strong military and diplomatic relationships with Russia and is said to negotiate a major arms deal with the Russian military industry. This could, and the direct contact between Malaysian officials and the anti-government forces in Donetsk most certainly did, have created the members of JIT to exclude Malaysia from the proceedings. This does not only authorize Malaysia to initiate its own investigation into the incident but will also not allow Malaysia to use the outcome of the investigation by the JIT in future criminal proceedings under its own laws, as does apply to most countries.

As my Professor said years ago:

Collecting conclusive evidence is the end of the investigation and the beginning of the prosecution

The objective of The Netherlands is that outcome of the investigation by the JIT, disputed or not, will be just to prosecute those responsible for the incident as is demanded by United Nations Security Council Resolution 2166. Although The Netherlands does have a legal framework by which it entitles itself to prosecute over crimes committed against its citizens abroad, there is very little change that this would actually lead to a conviction when the prosecution is done by and under the jurisdiction of The Netherlands itself. Unless the JIT would find Ukraine itself or its citizens responsible for the incident, the jurisdiction of Ukraine will also not apply to those responsible and achieve an executed conviction. Setting all unfounded speculation in the tabloids and social media aside, the lack of executable jurisdiction is the reason why The Netherlands has started a lobby to have an international United Nations Tribunal installed for the prosecution of Flight MH17.

Why is Russia opposing such a tribunal?

The Russian Federation is not opposing such Tribunal itself as just being a Tribunal. Russia is objecting to create a Tribunal in the way that the Yugoslav Tribunal was formed and executed, which Russia has criticized over the past years for being politically motivated, biased and therefor being unjust, and for being both very inefficient and ineffective. Russia is also opposing a tribunal based on an investigation in which it is not allowed to participate nor is it informed about the results and the process but its citizens and companies are already confronted with sanctions based on an incident for which the investigation is not even concluded.

That, dear friends, is what Russia is opposing and objecting to. And so would I, to be honest would you.

Kind regards,

Pavel

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