Abstract
This article focuses on the MH17 Trial that is currently underway in the Netherlands, dealing with the shooting down of a civilian aircraft over Eastern Ukraine and the resulting deaths of all 298 persons on board. Two legal questions arising from the prosecutorial strategy to charge the four accused with ‘ordinary’ crimes under the Dutch Criminal Code—instead of with war crimes—are studied here. First, the jurisdictional basis on which the District Court of The Hague is trying MH17, and its effect on the applicable laws, is examined. It is argued that, contrary to what the Prosecution has submitted, jurisdiction over the killing of the 93 non-Dutch nationals on board of flight MH17 can only be established on the basis of the less known title of delegated (representative) jurisdiction: a conclusion that also brings certain legal requirements. Second, this paper analyzes the way the MH17 Prosecutor defined the notion of ‘combatant’s privilege’ under international humanitarian law and his arguments for rejecting a combatant status for the separatist armed forces that shot down flight MH17 over Eastern Ukraine. All this analysis is then used to explain why it was indeed more sensible for the Prosecution to charge the four accused with murder and intentionally causing an aircraft to crash under Dutch criminal law, than with war crimes under international law.
Highlights
The future of international criminal justice is domestic. It has been over a decade since scholars first started sharing this narrative, arguing that domestic courts will gradually become the main forum for the prosecution of ‘core’ international crimes: war crimes, crimes against humanity and genocide
Many expect domestic courts to start applying international criminal law (‘ICL’) when trying atrocity crimes, with opinions mostly diverging on the extent to which judges should follow the legal standards and definitions of crimes, modes of liability and defences established by the international courts and tribunals
If the downing of flight MH17 occurred in the context of a non-international armed conflict (‘NIAC’)—i.e., protracted armed violence that took place exclusively between the Ukrainian and the Donetsk People’s Republic (DPR) rebel forces— the accused in the MH17 Trial would certainly not be entitled to claim combatant’s privilege
Summary
The future of international criminal justice is domestic. It has been over a decade since scholars first started sharing this narrative, arguing that domestic courts will gradually become the main forum for the prosecution of ‘core’ international crimes: war crimes, crimes against humanity and genocide. Statistical data reveals that this vision has largely materialized, given that we are nowadays witnessing an evergrowing number of such trials in Europe and beyond. While this is certainly a positive development in the fight against impunity, it has prompted heated debates on the shape that international criminal justice should take in national courtrooms. Many expect domestic courts to start applying international criminal law (‘ICL’) when trying atrocity crimes, with opinions mostly diverging on the extent to which judges should follow the legal standards and definitions of crimes, modes of liability and defences established by the international courts and tribunals.3 Such trials can be framed differently: in a manner that avoids the complexities of applying ICL and instead couches the proceedings entirely in domestic law, by choosing to try the said international crimes as ‘ordinary’ offences under the prosecuting States’ own criminal codes.. If the accused wish to argue this, and thereby to invoke combatant’s immunity under IHL, the burden of proof would be shifted onto them to establish that they were lawful combatants in the armed conflict in Eastern Ukraine: i.e., they would have to prove that the armed forces they were part of were de facto agents of the Russian Federation
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