The simulation of court hearings in the case of the downing of Malaysian Airlines flight MH17 suggests that, despite obvious, convincing, and exhaustive evidence of Russia's guilt, the Kremlin could go for a number of steps to ensure that the country’s leadership escapes punishment for the deaths of passengers and crew, a U.S.-based think tank believes.
According to the leading coordinator of the Joint Investigation Team (JIT), Dutch Prosecutor Fred Westerbeke, the investigators managed to fully prove Russia's involvement in the tragedy. However, the case so far targets only the performers, not masterminds behind the crime, IGTDS said in a report.
The key point based on JIT findings is that the deployment across the Russia-Ukraine border of a Buk air defense system that’s in service with the 53rd Air Defense Brigade of the Russian Army required a direct order from Russia’s military-political leadership, as it implied the transfer of Russian military equipment abroad while no martial law was introduced and no war declared. Thus, deploying an air defense system – with or without a Russian crew – required the order of the Russian president and the country’s minister of defense.
De jure, their abetting the commission of the crime consists of:
– Providing means or tools (the handover of the Buk air defense systems);
– Concealing criminals and means of committing the crime (transporting the air defense system back to n the territory of the Russian Federation, hiding the crew on its territory); and
– Attempting to discredit the investigation, spinning conspiracy theories and misinformation in order to confuse the investigation.
Thus, court evidence of the MH17 downing by a Russian air defense system delivered from Russian territory automatically gives grounds for pressing charges against Russia's top military leadership. This explains Moscow's attempts to meddle in the investigation and the trial: through falsification of evidence and an active information campaign on misinformation.
Military intelligence data recently published in the Netherlands rule out involvement in the MH17 downing by either Ukrainian Buk air defense systems or Russian Buks located on the territory of the Russian Federation. An analysis of these documents by IGTDS proves that it was only the Russian Buk air defense system, which had been deployed to Ukraine across a section of the border with Russia that was beyond Kyiv's control, that could launch the deadly 9M38 missile.
However, Russia may try to escape accusations against its military-political leadership by recognizing that the air defense system was handed over to "DPR" militants, who further operated the launcher.
This position looks unconvincing, although the only possible one from the perspective of the urgent need to remove Vladimir Putin from under the probe's focus, IGDTS believes. It is unlikely that an air defense system that's in service with the Russian army could be deployed across the border without persons controlling its use. The fact that after the MH17 downing, the air defense system was quickly taken back to the Russian territory indicates that it remained under the effective control of the Russian military.
In this case, the precedent can be used of UK that's been held accountable for their actions in Iraq, and Turkey – for their actions in Cyprus, where in both cases the main argument is the proof that the country had “effective control” in the territory where the crime was committed. Thus, the jurisdiction of Russia’s responsibility can be expanded to the territory of Ukraine's Donbas.
Russia seeks to convince the court of the primacy of circumstances over cause. In other words, they argue that it doesn't matter who shot down the plane, while it is important to see circumstances that were in place at that moment. This position is legally void, since it fails to take into account the very cause of the aircraft crash, deaths of crew and passengers, and the cause-effect relationship, the report says.
Here, a similar case is the downing of the Ukrainian passenger jet operated by Ukraine International Airlines, flight PS752, over Iran on January 8, 2020. The cause of the aircraft crash was the strike by an Iranian air defense missile – not some foreign political tensions in the region, liquidation of Qasem Soleimani or Iran's missile strike on U.S. targets in Iraq.
Also, the report notes that Ukraine had not shut down the skies over Donbas, since at that time (before downing the MH17) there was no objective threat to civilian flights. Pro-Russian separatists had been downing Ukrainian Air Force jets using MANPADS, at low altitudes, unable to hit targets flying at altitudes over 6km. The Ukrainian authorities had no information about Russia transferring air defense systems to Ukraine. The lack of operational data on the deployment of Russian air defense systems in Donbas has also been confirmed by Dutch intelligence.
The think tank also notes that all suspects in the MH17 case are now either in Russia or in territories controlled by Russia. Earlier, Moscow had already attempted to convict one of them for felony and thus remove him from the view of the court in The Hague.
There is a possibility that if the court proves the passenger jet was destroyed by a Russian air defense system, the Kremlin may attempt to arrest and imprison other defendants in Russia. Thus, Moscow will block further investigation aimed at identifying and prosecuting masterminds behind the crime.