With the release of the Dutch Safety Board's final report on the crash of Malaysian Airlines flight MH17, we know for certain that the passenger aircraft was shot down by a Russian-made BUK missile. According to the authors of the report, the detonation of a warhead to the left of the plane's cockpit caused the crash and the deaths of the 298 people on board.
But while we finally have a real explanation of how the flight went down, identifying those responsible and getting them into a courtroom is another story.
In terms of naming the guilty party, this week's report was not authorized to address questions of responsibility—but it won't be the last report we'll see. Questions of who's at fault are being asked by an ongoing criminal inquiry led by Dutch authorities, with contributions from Malaysia, Australia, Ukraine, and Belgium.
The team conducting this investigation has said they've identified "persons of interest" and that their findings "point in the same direction as the safety board."
The prevailing theory is that those culpable were Russian-backed Ukrainian rebels, and since the safety board report says the missile was Russian-made and fired from eastern Ukraine, it seems likely that the criminal inquiry so far concurs with that theory. The inquiry is expected to release their findings in 2016, and when it does the next step will be figuring out what to do with the accused.
The obvious question will be: Is it a war crime and can it be prosecuted as such?
Well the independent UN criminal tribunal that many countries called for is not going to happen, not unless Russia has a change of heart. Russia holds veto power in the UN Security council and they've used it to prevent such a thing.
Another option would be the International Criminal Court. According to a Huffington Post piece by Sarah Williams, an Associate Professor at the University of NSW Law, the downing of MH17 could fit the ICC's definition of a war crime. It happened within a war zone, and the perpetrators were likely combatants in that war zone. Most probably it would come under the ICC's war crimes of murdering protected persons or intentionally targeting civilians.
What's the likelihood of a war crimes prosecution in the ICC? Well, we're very far off from figuring that out. The ICC may decide to not get involved, as the Netherlands are already investigating the crash as a criminal matter and other countries, including Australia, might choose to pursue a similar national investigation. The ICC usually steps in as a last resort, when such investigations are not happening.
Another problem is that Russia is highly unlikely to cooperate with the ICC. Russian disagreement and disapproval of and with the findings of the Dutch Safety Board, and the current process of MH17 investigations, has been loud and consistent. And since the state is not party to the ICC, it has no obligation to help the court. If it turns out those who shot the missile are in an area controlled by Russia there's very little chance of capturing and getting them prosecuted.
But putting the accused on trial is only the first step. Confirming that they intentionally committed the crime or weren't rigorous enough in checking whether or not they were firing at a civilian plane would be the next. In an article for the ABC (Australian Broadcasting Corporation) Dr. James Summers, director of the Centre for International Law and Human Rights at Lancaster University, explained that if the prosecution were unable to prove such culpability the crash wouldn't be a crime and would instead "be seen as a tragedy that occurred in war time."
Even if it's not a crime that could be punished in an international court, it's possible one of the nations affected by the MH17 crash could prosecute those responsible in their domestic courts. The Dutch-led criminal investigation could lead to the Netherlands charging those responsible with murder or manslaughter. Malaysia and Australia have also signaled their willingness to try everything to bring those who fired the missile to justice. But as previously stated, identifying the perpetrators, arresting them, and prosecuting them successfully are all very different things.
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