The MH17 Trial: The Dangers of Presuming the Fairness of a Geopolitically-Driven Enterprise

The MH17 Trial: The Dangers of Presuming the Fairness of a Geopolitically-Driven Enterprise

Inspection of the MH17 saga teaches us, in the first instance, never simply to presume that an enterprise that appears to have the status of an officially supported and endorsed international legal proceeding must on that account be above reproach.

by Oliver Boyd-Barrett

April 28th, 2021
By Oliver Boyd-Barrett



AMSTERDAM — November 2020 saw the conclusion in Schiphol, the Dutch airport near Amsterdam, to the pre-trial hearings in the case being brought by the Dutch Prosecution Service against three Russians (Igor Girkin, Sergey Dubinskiy, Oleg Pulatov) and one Ukrainian (Leonid Kharchenko), former military leaders of the Donetsk People’s Republic. They were charged with the delivery of a Russian Buk-Telar missile launcher that was allegedly used by separatists in eastern Donbass to shoot down civilian Malaysian Airlines flight MH17 on July 17, 2014, with the ensuing loss of 298 lives.
Following the Court’s consideration in March and April 2021 of defense requests for further investigation, which it would allow, the main trial itself was scheduled to begin on June 7, 2021, in the District Court of The Hague. Regardless of its outcome, I shall argue that this trial and all the major stages that preceded it – notably, the Dutch Safety Board (DSB) investigation of the “facts” (see final report here) and the Dutch-led Joint Investigation Team’s (JIT) determination of criminal responsibility (see final report here) – remain a very troubling basis for the pursuit of justice.

In the unlikely event that the court should find in favor of the defense, it would in effect concede deep processual flaws of the system that brought it into being. In addition to the propaganda functions of a show trial, commitment to the procedure has the attraction of (falsely?)  identifying a culpable party from whom reparation may be sought on behalf of victims and, if judgment of reparation be made, establishing a pretext for later aggression or a negotiation chip, as was the case in the Libyan Lockerbie incident.
 

A stacked deck

Only one of the four men charged – Oleg Pulatov – will be represented in court, although he himself will remain in Russia. At the time of writing, it is not certain that his attorneys will have had an opportunity to visit him. Russian law does not allow the extradition of its citizens for hearings outside of Russia. Russia’s offer to hold the trial in Russia was rejected, predictably. But there are far more significant flaws to the proceedings as currently constituted. One member of the JIT — Malaysia, headquarters of the owner of MH17, the flag carrier Malaysia Airlines — was not admitted to the JIT until 2015, months after it had been constituted, and has rejected the findings of the JIT.
The prime minister of Malaysia, Mahathir Mohamad, professed considerable skepticism about the proceedings and the trial, arguing that from the start Russia’s guilt has been presumed while never proven. Western mainstream media coverage of the incident — fed with a narrative prepared within six hours of the crash by the Ukrainian intelligence service (SBU), whose business is the protection of Ukrainian national interests — presumed Russian guilt from day one, best exemplified by Rupert Murdoch’s News Corporation and the headline of its most popular British newspaper, The Sun: “Putin’s Missile,” on the morning after the crash.
Western mainstream consensus corrupts the popular historical record, as is evident in dubiously verified Wikipedia accounts that generally emerge at the top of related Google searches. Within eight days of the crash, the Dutch foreign minister said that the European Union (EU) would increase existing sanctions against Russia, blaming the separatists for the crash, and the EU piled on further sanctions in 2019. Continuing in similar vein six years later on April 1, 2020, the Dutch minister of justice and security declared his support and that of his ministry for the conviction of the Russians standing trial — an announcement he made during a ceremony honoring senior Dutch prosecutor Fred Westerbeke, who had led the DSB’s inquiry into MH17
 

Setting up the false narrative context

The persistence of Western mainstream presumption had contaminated public opinion on top of its already pervasive anti-Russian sentiment in media coverage of the U.S.-backed coup in Kiev against the government of democratically elected President Viktor Yanukovych, earlier that year in February 2014, and the questionable Western media presumption that the annexation of Crimea by the Russian Federation in March 2014 was an aggressive invasion of Ukrainian territory.
The facts were different. Russia had a right, by treaty with Ukraine, to maintain up to 25,000 troops in Crimea to serve its naval base in Sevastopol, which it leased from Ukraine. In other words, Russian forces were already present in Crimea; they did not need to invade or occupy it. With significant exceptions (notably, the Cossacks) the province was predominantly Russian and Russophile.
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