Some cases related to Russian aggression were investigated under universal jurisdiction even before the full-scale invasion of Ukraine began. The most well-known of these is the case involving the downing of Malaysia Airlines Flight MH17 over the Donetsk region on July 17, 2014, in which 298 passengers and crew members were killed. The crash of flight MH17 in eastern Ukraine prompted investigations by several agencies into its cause. These investigations took place under difficult circumstances; an armed conflict was ongoing in the area where the aeroplane had crashed. As the 298 victims were from different countries, these countries combined their efforts to conduct a joint investigation. That led to the establishment of a Joint Investigation Team (JIT): an international investigation team comprising members from the Netherlands, Ukraine, Australia, Belgium, and Malaysia. In addition, the Dutch Safety Board (DSB) independently investigated the cause of the disaster. In November 2022, the Dutch District Court of The Hague handed down its verdict in this case. The court sentenced three defendants – Russians Igor Girkin and Sergei Dubinsky, and Ukrainian citizen Leonid Kharchenko – to life in prison in absentia, while acquitting another Russian defendant, Oleg Pulatov.
The court found that it had been proven legally and conclusively that the accused Dubinskiy, Girkin and Kharchenko:
- on 17 July 2014 in Ukraine (in Donetsk oblast), together and in association with others, intentionally and unlawfully, caused an aeroplane (namely flight MH17) to crash, by firing a Buk missile by means of a Buk TELAR (near Pervomaiskyi), although this was likely to endanger the lives of the occupants of said aeroplane (of whom the 298 names are set out in the annex to the indictment), and said occupants were killed as a result;
- on 17 July 2014 in Ukraine (in Donetsk oblast), together and in association with others, intentionally and with premeditation, took the lives of the occupants (of whom the 298 names are set out in the annex to the indictment) of an aeroplane (namely flight MH17), by using a Buk TELAR to fire a Buk missile at that aeroplane (near Pervomaiskyi), which caused the aeroplane to crash and said occupants to die.
The matter of jurisdiction
The court's competence to hear this criminal case derives from Article 2 of the special Prosecution and Trial in the Netherlands of Offences in Connection with the Downing of Malaysia Airlines Flight MH17 Act. Notably, the hearings were not physically held in the courthouse in The Hague but at the Schiphol Judicial Complex in Badhoevedorp – a location outside The Hague court district specifically designated by the Minister of Justice and Security pursuant to Article 21b(3) of the Judiciary Organisation Act.
The court structured its analysis of the prosecutor's right to bring the case into three sequential questions: Does the Dutch Criminal Code confer jurisdiction on the court? Are there limitations on that jurisdiction under international law (in particular, immunities)? Has the prosecutor forfeited the right to prosecute owing to procedural errors? The indictment concerns a single set of acts – the crash of flight MH17 as a result of the firing of a Buk missile from a site near Pervomaiskyi in Ukraine – split legally into two charges: the intentional causing of an aircraft to crash, resulting in the death of 298 occupants (Section 168 DCC); murder or manslaughter of 298 persons (Sections 289 and 287 DCC). Since the acts were allegedly committed in Ukraine, Ukraine would, under the territoriality principle, in any case have jurisdiction to prosecute. Yet the court found that the Netherlands has that right too. As regards Section 168 DCC – the court found that this concerns one single conduct, namely causing an aircraft to crash. As Section 5 DCC provides that Dutch criminal law applies to anyone who commits a crime against a Dutch citizen outside the Netherlands, and the victims included Dutch nationals, the prosecutor was entitled to prosecute this offence in the Netherlands on the basis of original jurisdiction. As regards the murder or manslaughter of 298 persons – the situation is partly different. This charge involves 298 counts of intentionally killing one person each, and although the cause of death for all victims was the same, these are independent offences. For victims who were Dutch nationals, the Dutch prosecutor again had original jurisdiction under Section 5 DCC. But for non-Dutch victims, the court – unlike the prosecution – held that jurisdiction cannot be found in Section 5 DCC simply because the cause of death of all the victims was one act. Instead, the court located the basis for the prosecutor's right to prosecute this part of the second charge in the so-called derived jurisdiction under Section 8b(1) DCC: Dutch criminal law applies to anyone whose criminal prosecution has been transferred to the Netherlands by a foreign State pursuant to a treaty affording the Netherlands the power of criminal prosecution. Such a treaty – the Treaty of Tallinn – was concluded between the Netherlands and Ukraine, and it was on the basis of this treaty that the criminal proceedings relating to flight MH17 were transferred from Ukraine to the Netherlands. The court's conclusion: derived jurisdiction was established over all charged offences on the basis of Sections 5 and/or 8b(1) DCC, including the murder or manslaughter of non-Dutch occupants of the aeroplane. The prosecutor therefore has the right, under the Dutch Criminal Code, to proceed with prosecution. Although this argument was not raised by any of the accused – and certainly not by defendant Pulatov – the court considered it necessary to address the question of possible combatant immunity, since, if applicable, it could deprive the prosecutor of the right to prosecute all of the accused. Combatant immunity is part of international humanitarian law (the law of war): persons with combatant status are authorised to take part in hostilities (combatant privilege), and if such acts are performed in accordance with international humanitarian law, they cannot be prosecuted under criminal law for them. However, this privilege applies only in the context of an international armed conflict – the provisions on combatant privilege do not apply to non-international (internal) armed conflicts. The court therefore had to establish, in sequence: Whether an armed conflict existed at all; If so, whether it was international or non-international in nature; If international, whether the accused fell into the category of persons entitled to combatant privilege. Since the conflict was international, the court considered whether DPR members could claim combatant status under Article 43 of Additional Protocol I to the Geneva Conventions – which requires membership in the armed forces of a party to the conflict (here, Russia), under a command responsible to that State and subject to internal military discipline. The court found the DPR was not part of Russia's official armed forces. Overall control alone does not establish that the DPR was under a command responsible to Russia for its subordinates' conduct – that would require Russia to have accepted the DPR as part of its own forces and taken responsibility for their actions. Russia has consistently denied any control over or involvement in the DPR, and the accused themselves publicly denied belonging to the Russian armed forces. Conclusion: The court found nothing pointing to any limitation of the jurisdictional provisions under international law. The prosecutor therefore has the right to prosecute – both under the Dutch Criminal Code and in the absence of any applicable international-law immunity.
Sentence
The position of the prosecution is that the accused must be sentenced to life imprisonment. To this end, the following has been argued (in brief). The accused Girkin, Dubinskiy and Kharchenko held senior positions within the DPR structure and were part of an armed formation; together they directed the use of a Buk anti-aircraft system in the course of their own armed conflict on 17 July 2014, and it was this weapon that brought down flight MH17. Since deploying a Buk TELAR requires not only a firing position but also escort through checkpoints, security at the site, and a trained crew, the court held that escorting, guarding, and arranging the crew constitute a substantial contribution to the deployment as a whole, sufficient to qualify a person as a co-perpetrator. Kharchenko Acting on Dubinskiy's instructions, Kharchenko transported, escorted, and guarded the TELAR all the way to the launch site at Pervomaiskyi, issuing orders to his subordinates, and subsequently organised its removal. The court found him to be a coordinating participant in essential actions carried out in close and deliberate cooperation with the others involved, including the crew. The principal charge of co-perpetration under the first and second counts was therefore found proven against Kharchenko. Dubinskiy As the DPR's ranking military commander, Dubinskiy initiated and organised the transport of the Buk TELAR from Russian territory during the night of 16–17 July, and directed its transport and guarding at the launch site throughout the day, delegating execution to subordinates whom he commanded. The court found these actions substantial enough to constitute co-perpetration, further confirmed by his role in the weapon's removal afterward. Girkin As the DPR's operational commander, Girkin bore ultimate responsibility for the deployment of military equipment. Although there is no evidence he knew of this specific Buk TELAR before it fired, the record shows he maintained regular contact with Moscow to obtain military support, including anti-aircraft weaponry, as early as June 2014, and that aircraft and helicopters had repeatedly been shot down under his command. The court found that Girkin held the power to decide on the Buk's deployment and, given his awareness of previous downings and his active role afterward in returning the TELAR to Russia, had accepted its deployment along with its consequences. This makes Girkin – unlike Dubinskiy and Kharchenko – a functional perpetrator, though the legal conclusion is the same: co-perpetration is proven. Under the law, these were civilians who had no entitlement whatsoever to use force, whether the target was civilian or military. The harm they caused is of an extraordinary magnitude: 298 people lost their lives in horrifying circumstances, and the lives of countless relatives left behind have been permanently marked by grief. In addition, those living near the crash site were left to confront the terrible aftermath of the disaster and the deaths it caused. What the accused set in motion sent shockwaves around the world that are still felt today. Nothing in the evidence suggests the accused gave any consideration to the specific threat that deploying a Buk system posed to civilian air traffic. None of the accused gave any statement to the investigation, yet all three publicly denied any involvement: Girkin hinted that DPR fighters had nothing to do with it and permitted himself hurtful remarks about the passengers; Dubinskiy denied any part in it and cast baseless doubt on the evidence; Kharchenko claimed he had never even seen the Buk. The court considers this stance to be divorced from reality and hurtful to the relatives. The prosecution noted that Dutch case law offers no comparable precedent. Nor can the facts of this case be meaningfully likened to those addressed by international criminal tribunals, so no useful benchmark for sentencing can be drawn from that quarter either. Some guidance, however, can be found in the Lockerbie case and in a broadly comparable Ukrainian case. Considering the degree of premeditation, the sheer scale of the violence and cruelty involved, the profound impact on the relatives, the grave breach of the rule of law, and the number of victims – 298 – the prosecution maintains that a life sentence is the only fitting and justified outcome. It further submitted that the case law of the ECtHR poses no obstacle to this conclusion. The prosecution found no grounds to argue for a reduced sentence based on the differing roles played by the accused, their conduct during the proceedings, or their personal circumstances. Finally, it argued that even the established violation of the "reasonable time" requirement under Article 6 ECHR does not warrant a lighter sentence – a point that is in any case moot, since no such reduction is possible where a life sentence is imposed. Acquittal of defendant Pulatov Pulatov held the position of area commander and was responsible for keeping open a corridor linking the territory to the Russian Federation. He knew that the Buk TELAR had arrived and was present in the area. At one point he encountered the accused Kharchenko while the latter was escorting the Buk, and he saw the launcher himself. What passed between them at that meeting – whether in words or otherwise – cannot be established, and Kharchenko subsequently continued on with the Buk TELAR without Pulatov accompanying him. Nothing in the evidence points to Pulatov having played an active or decisive part in either the deployment of the Buk TELAR or the task Dubinskiy assigned to Kharchenko. It is established that Pulatov was not present near the launch site at the time the missile was fired, nor is there anything to suggest he was in a position to have altered that course of events. On this basis, he has been acquitted.