If the perpetrators were ever brought to justice, what crime would they be accused of? If it was a war crime, then the Netherlands could initiate a domestic prosecution against anyone accused of committing a war crime against a Dutch citizen. However, because the crash killed the nationals of a number of countries, the preferable approach might be a prosecution under international law. Yet, if Russian citizens were eventually named as suspects, the legal process of bringing them to trial would not be easy or straightforward. Russia was a signatory of the European Convention on Extradition in 1996, which facilitated extradition of wanted criminals between member states, but this convention explicitly excluded military personnel, and every signatory could opt not to extradite its own citizens.
At the beginning of the Minsk treaty the level of fighting in eastern Ukraine decreased significantly, though not entirely. Fighting along the frontline basically ceased, but pro-Russian and Ukrainian forces continued to shell each other. The nation of Ukraine appeared to be at a crossroads, with little hope of stability until the shelling stopped altogether. In March President Obama’s administration announced that thirty armoured humvees and an additional three hundred non-armoured humvees, plus counter-mortar radar, drones, radios and medical equipment would be sent to Ukraine. One year after Russia had formally annexed the Crimean peninsula, or, as the Kremlin would say, after Crimea had been rightfully returned to the Russian Federation, the anniversary was marked in Moscow with a triumphant celebration.
The first anniversary of the Donbas uprising was marked by violence, with three Ukrainian government soldiers and another six Ukrainian troops killed in two separate incidents. Their cause of death was highly contested. The interior ministry accused the rebels of firing upon its soldiers, whereas the leaders of the self-proclaimed Luhansk People’s Republic argued that the men had succumbed to a landmine.
Tensions mounted when US troops started training the Ukrainian infantry and Russia immediately undertook a buildup of forces along its border with Ukraine. A day later President Petro Poroshenko stated that Ukraine was ‘still under a threat of war’ from pro-Russian separatists and that ‘war could start at any moment’.
As the first anniversary of the downing of MH17 approached, the international partners in the criminal investigation put forward a draft UN Security Council resolution aiming to establish a specialist independent war crimes tribunal. But a year down the road, many of the most important questions had still not been answered.
On 17 July 2015, the next of kin gathered together at a congress centre in Nieuwegein. Dutch prime minister Mark Rutte attended the private memorial and flags on government buildings in the Netherlands were lowered to half-mast. Not a day had gone by during that year without each of these people being reminded in some way of the death of the loved one that they had lost on that flight. They knew they would carry that burden for the rest of their lives. There were songs, poems and speeches from the relatives to commemorate their loved ones.
Sharifah Asma’a Syed Alwi Al Junied, the widow of one of the copilots, stood to give a speech. She told the audience that she felt compelled to finish the job her husband Ahmad had set out to do exactly one year ago. She ended her speech with the words her husband would have said after the plane had landed: ‘We appreciate you flying with us. Thank you and have a nice day.’ Her words prompted tears and a standing ovation.
In Australia, a plaque honouring the victims was unveiled. At Kuala Lumpur International Airport a memorial service was held, at which the families and friends of the crash victims gathered to remember the tragedy and repeat their demands for justice.
At the commemorations marking the anniversary of the shooting down of Flight MH17 at the crash site in eastern Ukraine, a flag-waving protest by pro-Russian separatists attempted to politicise the mourning. After a church service in the village of Hrabove, residents joined a procession across an open field to a gravestone placed near the charred area where twisted metal and body parts came crashing down on 17 July. Pointing their fingers at the Ukrainian authorities, young DPR loyalists waved signs proclaiming ‘They killed you, they continue to kill us’.
According to the men and women of Hrabove, this part of Ukraine had changed forever due to the crash. A year on, the smell of kerosene and death still lingered in the air. Further down the road in Petropavlivka, a large part of the plane’s hull could still be found. No one had come to collect it.
On 29 July, the UN Security Council held a meeting that was intended to establish an international war crimes tribunal. Of the countries whose nationals had perished on the flight, five sent government ministers, and there were representatives of the others. The meeting began with a moment of silence in tribute to the victims.
As voting began, Russia used its Security Council veto to block the draft resolution. Angola, China and Venezuela refrained from voting. As the only nation at the fifteen-member UN Security Council to oppose the resolution, Russia attracted widespread condemnation. Their veto left the bereaved feeling they were at the receiving end of a political power game. Explaining his negative vote, the representative of the Russian Federation said his country did not support the creation of an international tribunal under Chapter VII of the Charter, because a previous Security Council resolution had not considered the downing of the aircraft a threat to international peace and security. An alternative draft put forward by his government had sought to promote a genuine international and independent investigation, and it remained on the table.
A bitterly disappointed Dutch foreign affairs minister, Bert Koenders, told the members: ‘We came to the Council with a desire to see justice done in the most effective, impartial and legitimate way, with the greatest possible chance of success.’ He expressed his deep disappointment that the Russian Federation had used its veto to stop the council from actively ensuring that justice was served.
Julie Bishop let the council know that her country was determined to bring the perpetrators to account and, with the other members of the joint investigation team, would decide on an alternative prosecution mechanism.
From the moment a Malaysian aeroplane carrying people from many different countries crashed on Ukrainian territory amid pro-Russian rebels, the Netherlands and Australia had found themselves caught up in a diplomatic game of chess that involved more than a dozen world leaders. There was so much at stake and there were so many interests to take into account that the Netherlands, as leading investigative country, had been forced to move very cautiously. By mid-2015 DSB’s chairman, Tjibbe Joustra, wondered if the Russians would even show for the next briefing about the investigation of the crash.
According to the protocol that had been set up just after the crash, Malaysia, Ukraine, the United States, United Kingdom, Australia and also Russia were invited to participate in the investigation. But Russia was becoming reluctant to take part as increasing evidence gathered by the DSB investigators irrefutably pointed in their direction. Moscow flatly denied any involvement and instead pointed the finger at the Ukrainian military.