Success is unlikely, ‘but that's not the point’

Meduza interviews the American lawyer suing a rebel leader over MH17 for 900 million dollars

On July 16, it was announced that relatives of passengers killed in the crash of Malaysia Airlines Flight MH17 are filing a lawsuit against Igor Girkin, a former separatist leader in eastern Ukraine. Girkin, also known by his pseudonym “Strelkov,” stands accused of murdering the 298 people who died when MH17 crashed in eastern Ukraine in July 2014, insofar as he was in command of the armed forces of the self-proclaimed Donetsk People’s Republic. To learn more about the lawsuit and why it’s being filed in an American court, Meduza’s Konstantin Benyumov spoke to Floyd Wisner, the lawyer who has instigated the action.

There is already a case against Malaysian Airlines regarding compensation for the victims’ relatives. Why is it relevant or necessary to pursue Igor Girkin with relation to this case?

Because the case against Girkin is not about money. The case against Malaysian Airlines really is to obtain reasonable compensation for the victims’ families. Now, against Girkin, it’s not about money. It’s about trying to obtain some answers, and trying to shed some light on this whole issue to keep this terrible tragedy in the public eye, and to hopefully hold those persons who are responsible for this criminal act accountable. That’s what this is about. The case against Girkin is about that. It’s about obtaining answers, and it’s about prompting the diplomatic community to move along more quickly—hopefully with the appointment of an international tribunal.

It’s a different action and a different purpose than the claim against Malaysian Airlines.

But, as we know, it’s going to be another several months until the investigators are ready to present a formal report on the disaster. You don’t believe it’s premature to bring accusations against Girkin at this point?

No, I don’t think it’s premature because I think the major players in the diplomatic community had the answers about who is responsible for this criminal act within days of the shoot-down. I think both the US and Russia knew way back then. So it’s hardly premature.

It’s necessary to try to bring that information to the public, and particularly to the victims’ families, who have suffered so grievously by this.

Is there a way to make sure that Girkin appears before a court? Can he be subpoenaed somehow?

Frankly, it’s going to be very difficult. We will serve him with process through the US legal system. He will have 30 days thereafter to respond. If he chooses not to respond, we will obtain a default judgment against him. But there’s no physical way to bring him to court. We can sue him, we can serve him with process, and if he doesn’t appear we can obtain a default judgment. But he still may refuse to actually ever appear in court.

Do you expect the court to try him in absentia, if he doesn’t appear?

Yes. The court will hear our evidence about his involvement, and then we will ask for it to enter a default judgment against him.

And how do you actually intend to prove Girkin’s responsibility? What would he need to show, to convince a court that he’s not responsible?

The burden [of proof] is actually on us—it’s not on him. He doesn’t have to do anything to prove his innocence; we have to prove that he is responsible. And the way to do that is to use the US legal system—the discovery process of the US legal system—to obtain information.

There is a lot of information right now that is available in the public media. And more is coming out all the time. I just saw that CNN was reporting, coincidentally, some of the same facts that seem to support our theory in this lawsuit.

So we will use the type of information that’s publicly available and information that we hope to obtain through the legal discovery process in the United States, to build our case against Girkin and present it to the court.

Do you believe at this point that the court will find this evidence substantial and sufficient?

Oh, yes. Definitely.

Do we know which American court will be overseeing this lawsuit?

It’s the US federal court in Chicago, Illinois.

And what legal provision allows a lawsuit like this to be heard in an American court?

There is a US federal statute called the Torture Victim Protection Act, which specifically gives a remedy to non-Americans to bring action against persons who either engage in torture or, in our case, extra judicial killing. And that certainly applies to this action by Mr. Girkin, as alleged by us.

This federal statute gives us US subject matter jurisdiction over this case.

You’ve said before that this is not about the money, but the plaintiffs in this lawsuit are claiming 900 million dollars in damages. You’ve also said it’s unlikely that Girkin will make an appearance. But how likely is it that the court will side with your clients and they’ll actually receive compensation?

I would say at this time that it’s unlikely, but that’s not the point. The point, again, is not about money; it’s about obtaining answers and information. But you are correct that it will be a long and difficult road to ever see any money for the victims’ families in this case.

I would point out, however, that it took ten years in the Pan Am bombing in Libya [also known as the Lockerbie bombing], with the Libyan government constantly denying any responsibility, until ultimately acknowledging responsibility and paying some big compensation to the families.

And you’ve said the whole proceeding will not bear costs for the families?

That’s true. We [also] represent the families in actions against Malaysian Airlines. We’re doing this as a service to the families, to try to help them with their main concerns about obtaining answers and putting pressure on the diplomatic community to seek justice. That’s what this is about. And we’re providing that service to them at no cost at all.

And is it true that you had a friend who actually lost relatives on MH17? This is a personal issue for you, as well?

Yes. That brings it deeply home to us in a really terrible way. Yes, we have a good friend who lost two nephews on the flight.

Konstantin Benyumov

Riga