The International Court of Justice was established in 1945; it is the main judicial body within the United Nations and is located in the Peace Palace in The Hague. The court has fifteen judges who rule on legal disputes between countries. Ukraine’s application to the court presented a mix of overlapping claims: it covered all at once allegations of Russia’s financing of terrorism in the region, as well as its persecution of ethnic minorities within Ukraine. Ukraine also wanted the ICJ to declare Russia responsible for the MH17 tragedy.
‘Russia must pay its price for the aggression,’ Ukrainian president Petro Poroshenko said after Kiev launched the proceedings on his orders. Ukraine requested the court to declare that the Russian Federation ‘bears international responsibility, by virtue of its sponsorship of terrorism and for the acts of terrorism committed by its proxies in Ukraine, including: the shoot-down of Malaysia Airlines Flight MH17, the shelling of civilians, in Volnovakha, Mariupol, and Kramatorsk and the bombing of civilians, in Kharkiv’. Ukraine demanded that Russia make ‘full reparation’ to all the victims.
But first and foremost, Ukraine accused Russia of financing acts of terrorism within Ukraine and violation of treaties that had been signed by both countries. The International Court of Justice had now to decide whether to take up the case. The outcome would be binding on all parties and there was no possibility of appeal.
The Dutch foreign minister, Bert Koenders, did not back Ukraine’s rush to the ICJ as far as the MH17 was involved. He explained that parties must maintain discipline in their approach to the prosecution of those involved in the downing of MH17. It was ‘too early’, he urged. The relatives of MH17 victims said they would follow the trial, but at a distance; they stressed through their spokesman that they were not a party to Ukraine’s move. Together with the Dutch government, they were carefully taking their own steps against Russia.
At their press conference in September 2016, the Joint Investigation Team had stated that the plane was shot down from pro-Russian rebel-controlled territory by a missile that had been recently transported from Russia. But the Russians subsequently claimed that no such missile appeared on radar images from their Ust-Donetsk radar station. The JIT and radar experts confirmed that a Buk missile launched from the location established by the JIT need not be visible on the radar images from Ust-Donetsk at alclass="underline" the speed of such a missile is much higher than the speed of civil aircraft, so a civil radar station will generally not show any visible trail on the radar images. This prevents ‘clutter’ on the radar image.
The JIT investigators, who were carefully compiling a case for possible future criminal prosecutions, stopped short of saying that Russians, or the Russian state, were responsible for the downing; it was a matter for ongoing investigation in their opinion. The countries working together on the JIT, including Australia, had agreed to delay taking action until the criminal investigation had concluded later in the year.
Meanwhile Moscow, which had always denied arming the separatists in Ukraine, shrugged off the whole MH17 downing, as well as Ukraine’s other accusations, as simply ‘political’. ‘Russia has always condemned in the strongest manner any signs of terrorism and actively fights against it,’ Russia’s foreign ministry once again stressed.
In this same January a journalist caused a stir when he recovered some victims’ remains from the site. Dutchman Michel Spekkers returned from a two-week stay in eastern Ukraine where he and his colleague, Stefan Beck, also Dutch, had been gathering firsthand accounts of the locals’ attitudes toward Moscow and Kiev. On the last day of the trip, Spekkers went to the crash site of MH17, from where he said he retrieved parts of the wreckage as well as what was later established by Dutch prosecutors as human remains of one of the passengers of the downed Boeing. Spekkers was surprised to see numerous parts of the ill-fated plane still lying around.
His seemingly lighthearted tweets about what to do with the items he had found at the crash site offended the survivors of the MH17 victims. He did, however, establish that after almost three years, there were still human remains as well as personal belongings scattered around the crash site. The relatives were shocked and wanted the Dutch minister of security and justice, Ard van der Steur, to conduct further investigation at the crash site. Some next of kin had only received a small quantity of body parts from the crash site, and two victims—Gary Slok and Alex Ploeg, both of them Dutch—had not been identified at all. The journalist himself said he had been appalled when he found what looked like human remains at the site. ‘It’s been more than two and a half years ago. I find this disgraceful.’ On Spekkers’ return to the Netherlands, police confiscated everything the reporter had discovered, as well as both his and his friend’s laptops and mobile phones.
In February, Daniel Romein, a member of the Bellingcat team, published a new report on MH17. His conclusion was that the man whose telephone was tapped by the Ukrainian Security Service on 17 July 2014 was involved in the transport of the Buk missile launcher that downed MH17. His name was Sergey Nikolaevich Dubinsky, nicknamed ‘Khmuryi’. In July 2014 Dubinsky had been a Russian war veteran and a colonel. He had taken up arms in the Soviet–Afghan war and later in Chechnya, and later again served in the 22nd Spetsnaz brigade. Investigators claimed that Dubinsky had later been expelled from the ranks of the pro-Russian militants for alleged financial crimes.
This was the first time that a Russian had actually been named and identified as being connected to the MH17 downing. It had always been the general assumption that the pro-Russian separatists had been responsible. The independent Russian newspaper Novaya Gazeta also confirmed that the voice on the recorded tape was that of the former Russian colonel Sergey Dubinsky. His voice had been recognised by a former soldier who had fought alongside Dubinsky in the Russian war in Afghanistan in the eighties. The former comrade-in-arms who had given the interview, Serhiy Tiunov, said that he did not believe Dubinsky was the main culprit. ‘He is the key witness, but not the killer. And also, he is my colleague. I want him to stay alive. I think he didn’t press the button of that Buk, only coordinated its transportation.’ Dubinsky himself was quoted as saying ‘the bastards in Moscow’ were responsible for the tragedy. Official Moscow sources dismissed the tapes with Dubinsky’s voice as ‘internet fakes’.
In February the Dutch investigators were still trying to make sense of the Russian radar data. The Dutch national prosecutor’s office said ‘many uncertainties’ remained about the radar images supplied by the Russian authorities. The issues centred on the differing formats in which the radar data had been presented. It couldn’t be determined with certainty whether the images were authentic and what precisely they showed, the prosecutor claimed. The Russians were surprised that it had taken the investigators so long to acknowledge that there was a problem in deciphering the Russian data; Russia was willing and ready to help the international investigators ‘translate’ the radar data, but the Dutch had so far not requested any help and had only asked for additional data. ‘If Dutch investigators couldn’t decipher data from Russia, they could have asked for help,’ military expert Aleksandr Tazekhulakhov said. ‘The problem here is that the Dutch have attempted to keep Russian representatives out of the MH17 probe,’ he added.
Three months after Ukraine launched its allegations against Russia at the International Court of Justice in The Hague, that court said that it would not impose measures ordering Russia to stop funding and equipping pro-Russia separatists as sought in the case brought against Moscow by Ukraine. The court said it was refusing the request by Ukraine to issue a provisional measure to block what Kiev said was Russian monetary and military support for separatists in eastern Ukraine. Even if Ukraine’s other accusations were to be upheld by the ICJ, taking action on such a ruling would be a difficult matter given that the court has no means of enforcement. The MH17 was not mentioned.