Flight MH17 trial concludes with guilty verdicts — and sorrow in the Dutch courtroom

The court convicted three perpetrators and awarded damages — including same-sex couples as ‘next of kin’

A Dutch court has convicted Igor Girkin (also known under the assumed name “Strelkov”) and two of the three other suspects in the 2014 Boeing 777 crash in the Donbas. The perpetrators have been found guilty of downing the aircraft and murdering 298 people on board. The Malaysia Airlines MH17 flight from Amsterdam to Kuala Lumpur was shot down on July 17, 2014. Court hearings on the case began in 2020.

Two of the convicted perpetrators — Igor Girkin and Sergey Dubinsky — are Russian citizens. Another one, Leonid Kharvhenko, is a citizen of Ukraine. A fourth suspect in the case, the Russian citizen Oleg Pulatov, has been fully acquitted by the court in the absence of sufficient evidence against him. While Pulatov’s lawyers were present at today’s trial, the other suspects were tried in absentia: the court took their public statements to represent their position.

Along with the questions of due process and admissibility of evidence, the court considered the applicability of international humanitarian law and combatant immunity in the case. Although the defense did not attempt to argue for combatant immunity, the court chose to dwell on this point. The international criminal law expert Marieke de Hoon reported from the courtroom as the argument unfolded:

Court now moves to impact on this trial: do the suspects have immunity as fighters under command of Russia. Court says: NO. Russia denies control over and involvement in conflict. Suspects also deny. So they cannot invoke combatant status and thus immunity. No immunity.

The court thus qualified the Donbas conflict as an armed conflict overwhelmingly controlled by Russia, as evidenced by an ample body of recorded conversations presenting a picture of “intensive contact” between Russia and the self-proclaimed “DNR” and its armed forces, with Russia’s constant, substantial support.

In 2019, the four suspects in the case were charged with premeditated murder (Article 289 of the Dutch criminal law) and deliberate destruction of an aircraft (Article 168). The prosecution claimed that Girkin had requested the Buk missile system delivery from Russia, and that Dubinsky had been responsible for transporting it. Pulatov and Kharchenko both assisted with the delivery, as well as the system’s return back to Russia following the downing of the plane. The Buk came from Russia on that night of July 16–17, 2014. Today’s argument pursued the same sequence of events: “The suspects wanted the Buk, requested it, and received it.” In this way, the prosecution claimed, all four of them were jointly involved in executing a plan to destroy the aircraft, even though none of them took part in launching the missile.

The pre-trial investigation was conducted by an international group of experts from Australia, Belgium, Malaysia, the Netherlands, and Ukraine. The group concluded that the aircraft had been shot down by a Russian Buk missile system assigned to the 53 air defense brigade of the Russian Air Force, based in Kursk. The Buk system was delivered to the Donetsk region on the night before the July 17 plane crash, and shipped back shortly afterwards. The missile was launched from the vicinity of the “DNR”-controlled Pervomaiske village.

The investigators were able to reconstruct the route travelled by the Buk system, using satellite images, photos from the social media, and witness accounts. The suspects’ involvement in the incident was proven with the aid of their intercepted phone conversations, made available to the court by the Ukrainian intelligence. The suspects did not dispute the authenticity of those records, and the court made clear that there weren’t any reason to doubt it. Although, according to Pulatov, the suspects had known that their phones were tapped and often shared false information, the investigators dismissed his suggestions, since all the information in the intercepted conversations was internally consistent.

The investigators also considered some alternative accounts of the catastrophe, including the possibilities of a Ukrainian fighter plane attack, an explosion on board, a strike with an air-defense missile, and the possibility of the Boeing being downed by a Buk system that belonged to Ukraine. In each case, sufficient evidence to the contrary was gathered to refute each of these narratives. A parallel investigation, conducted by the Dutch Security Council following the ICAO (International Civil Aviation Organization) guidelines, also concluded that the Boeing had been shot down by a Buk system. (The independent investigation did not attribute the missile system to any particular country, since its inquiry was concerned with the mechanisms of the crash, as opposed to the guilty parties.)

None of the defendants appeared before the court in person. At the start of the trial, all of them were in Russia. Girkin is now taking part in the war in Ukraine. The other defendants’ locations are unknown. Three of them had refused to cooperate with the court, while Oleg Pulatov communicated with the judges in a recorded video statement, conveyed by his lawyers. In his statement to the court, Pulatov said that he was near the launch site on the day of the crash, but hadn’t seen the Buk system himself. Pulatov’s defense petitioned the court to consider all possible alternative scenarios in the course of the trial. The court dismissed their motion, on the grounds that such alternatives had already been eliminated by the investigation.

In a comment on acquitting Pulatov, the court explained that the prosecution had been unable to prove his material involvement in the chain of events leading to the Buk launch, even though it’s clear that he had been informed about the plan.

Authorities in Russia have frequently criticized the Dutch process, presenting the investigation and its conclusions as biased and politically partisan. At first, the Russian officials and state-funded media supported the various “alternative theories” of what had caused the crash. Following the publication of evidence pointing to a Buk system, the Russian side insisted that the “Buk” must have belonged to Ukraine.

The Almaz-Antey Corporation that produces the Buk systems conducted its own investigation, announcing that the missile had been launched from Ukrainian-controlled territory. According to Marieke de Hoon, the court was critical of this “investigation,” finding that it presented no reliable evidence. As de Hoon tweeted from the courtroom,

Almaz Antey is connected to Russia. Multiple times, Russia has manipulated evidence, so connection to Russia negatively affects their credibility. Also, their reports were not credible or valuable.

The Russian Defense Ministry has stated that, based on its serial number, the missile that shot down the Boeing aircraft belonged to the Ukrainian army. The ministry also called many of the photos and videos gathered by the investigators “fakes.” Russia has disapproved of the fact that the international investigative group included no Russian representatives and supposedly ignored the data submitted by Moscow.

A notable aspect of today’s court decision is that damages awarded to the next of kin will apply to the survivors of same-sex couples. Even though the Ukrainian law does not provide for this, the European court ruled against any possible discrimination in this case.

Translated by Anna Razumnaya.