Sunday, 17 August 2014

MH17 and Lockerbie: a view from the Netherlands

[MH17: Netherlands wrestles with huge criminal case is the headline over a report published today on the BBC News website.  It reads in part:]

Two-thirds of the 298 people on board Malaysia Airlines Flight MH17 were from the Netherlands. That is why the Dutch have taken the lead in identifying the bodies, trying to establish what caused the crash and running the criminal investigation.

Western governments suspect that the jet, with 298 people on board, was hit by a Russian surface-to-air missile fired by pro-Russian separatists. The rebels and Russia blamed the Ukrainian military for the crash. (...)

This is the biggest criminal investigation ever conducted in the Netherlands.

"Never before have we had a murder case with so many victims," said Wim de Bruin from the Dutch prosecution service, fielding press inquiries from all over the world. Passengers from 10 different countries were on board Flight MH17.

Ten Dutch prosecutors and 200 police officers are involved in gathering and preparing the evidence for a criminal trial.

There are three main questions about the eventual MH17 trial: Where will it be conducted? What crimes will the accused be charged with? How long before we see the suspects in court?

The Dutch prosecutors are still in the initial stages of the criminal investigation, but they have already dismissed speculation that the trial could be held at the International Criminal Court in The Hague.

The ICC only takes cases if countries are unable or unwilling to prosecute. The Dutch are willing and able.

Under the current plan, the suspects would be extradited to face trial at the District Court in The Hague. But extradition would require the host country's co-operation, once the suspects are identified.

Wim de Bruin says they are considering "several grounds and possibilities" concerning the charges.

"Of course murder, but we also have the crime of 'wrecking an airplane' and we could use international criminal law - that would mean possible charges of war crimes, torture and genocide." [RB: I find it difficult to envisage how torture and genocide charges could arise in this case.]

It is impossible, they say, to give a time frame. The only reference they have is Lockerbie. Pan Am Flight 103 was blown up over Scotland in 1988, killing 259 people on board and 11 others on the ground. In 2001, a Libyan intelligence officer was jailed for the bombing.

Yet questions remain about the bomb plot - not only the perpetrators but also the motives. In 2003 Col Muammar Gaddafi - later killed in the Arab Spring - accepted responsibility and paid compensation to the victims' families. [RB: The scope of Libya’s acknowledgment was limited to acceptance of “responsibility for the actions of its officials”.]

"With Lockerbie it took three years for the investigation and then another seven for the trial," Mr De Bruin recalls. "And that was with a plane that crashed in a peaceful place. With MH17 the case is more complicated."

[My own assessment of the jurisdictional questions that arise out of MH17 and how they compare with those that arose out of Pan Am 103 can be read here.]

1 comment:

  1. Firstly, I offer my most sincere condolences to the good folk of The Netherlands in this deeply painful time.

    Might I also be so bold as to recommend to Mr de Bruin not to bother consulting the Gentlemen's Club of prosecutors (AKA: The UN's International Association of Prosecutors on the issue, who operate from The Netherlands). Presumably Mr de Bruin is acquainted with this less than useless organisation.