Molly Quell

Molly Quell

17-11-2022

07:23

At 13:30 local time, The Hague District Court will announce the verdict in the MH17 trial. Four men have been charged with murder as well as shooting down the passenger aircraft as it passed over eastern Ukraine in 2014. They face life sentences if convicted.

I wrote about the legal proceedings and how we got here earlier this week.

The press are being kept in a glorified igloo. If anyone had some extra gloves, that would be great. (Also, yes, I brought my own teabags, milk and sugar.)

This weather sucks.

Here we go.

(My desire to Be A Serious Journalist is losing out to my innate juvenile sense of humour. Today is the 69th day of hearings in the proceedings.)

President judge Hendrik Steenhuis says that on some days he could personally greet those in the courtroom but not today, as it is too busy. Four spillover rooms have been needed to everyone who wanted to attend.

(My policy is to block anyone on here who even slightly annoys me for any reason. Just to be clear.)

Steenhuis notes that none of the defendants are present - as has been the case during the entire trial - and that none of the relatives wish to speak today.

"The court has repeatedly observed that this is an unusual case," Steenhuis says.

He points out that this case has been held under the normal criminal procedure in the Netherlands.

Right out of the gate, Steenhuis says that the court has determined that MH17 was shot down a Buk missile from an agricultural field in eastern Ukraine. No alternative scenarios. It was a Buk. Full stop.

Now we are getting into jurisdiction. Ukraine has transferred the jurisdiction and for that reason alone, the Dutch court can proceed.

There was also a question as to whether the prosecution could pursue a case considering international law (aka the law of war.) Steenhuis notes that Pulatov's lawyers - the only defendant with counsel - did not raise the issues of combatant immunity in their defense.

But the court is gonna consider it anyway. (Under international law soldiers cannot be prosecuted during war by foreign countries.)

The court does find that Russia had control over the DPR in 2014. This is what the Netherlands argued before the ECHR earlier this year.

Steenhuis is now going through the evidence connecting the defendants to Russia. He's described calls in which the men were coordinating the military actions with Moscow (or even the Kremlin) and that the Russian Federation provided financial support.

The court, therefore, judges that there was an international armed conflict on Ukrainian territory and that area was "under Russian control," Steenhuis says.

The question is then whether the defendants were combatants under international law.

First of course Russia must acknowledge that it was involved in the DPR and it ... has not. "DPR combatants and our defendants cannot be regarded as part of the Russian Federation as military."

They have no right to combatant immunity.

Steenhuis is moving to allegations from the defense that there's been so many procedural errors that the whole trial should be scrapped. The defense claimed, basically, this whole thing is such a hot mess it cannot possibly be fair.

There are five broad points about the prosecution being unfair. First, the reports from the JIT were too aggressive, before the trial even started. The court says it was not influenced by this information.

The court says that the release of the names and photos of the suspects may have been an invasion of privacy and could have been done better. But that did not impact the fairness. A warrant was put out at the same time and that would have revealed these details anyway.

The court pulls no punches about its opinion of the online applications the prosecution published. "It was unnecessary and seriously distracts from the magisterial approach of the prosecution," Steenhuis says.

However, he says, that doesn't mean there is an unfair trial and this did not impact the court. (Ten bucks says the defense has started drafting its appeal.)

Point Two: The prosecution summoned Pulatov without notifying him first. But the Public Prosecution Service was allowed to do that, says Steenhuis.

Point three: The prosecution had tunnel vision. (Great line by the defense, I see this all the time now in the whackdoos replying to me on this app.)

Steenhuis says that the prosecution conducted its own investigation and was cautious about using evidence from Ukraine.

Also the defense says that relevant information is missing from the case file. Court says the defense hasn't shown that anything exculpatory is missing.

The defense also complained it was hamstrung by restrictions by the court, especially around anonymous witnesses. Court says nah, there were no more restrictions than were needed for the safety of the witnesses.

The problems are not enough to cease the proceedings, the court says. We go forward.

There is an "abundance of evidence" that MH17 was brought down by a Buk missile, Steenhuis says. This is clear from photos, videos and missile fragments.

Steenhuis says the court does not see Almaz Anty (the manufacturer of the weapon) as a reliable source of information, in no small part because it's under the control of the Russian state.

"These reports have no added value," Steenhuis said. (Dutch directness, baby. These people do not play.)

Okay Steenhuis is now going on through other evidence the court relied on to come to this conclusion.

The court is taking a minute to go through one particular witness, M58. They fought for the DPR. The statements are reliable, Steenhuis says. There were inconsistencies but that is normal in witness statements.

Steenhuis goes on to say that this witness testimony was not taken in isolation. There were videos and photos of the Buk being moved. Plus remnants of fire in the field.

(ngl if I never hear the phrase "bowtie shaped fragments" ever again it is going to be too soon.)

Each of these sources - photos, testimony, satellite images, forensic research - shows that MH17 was hit by a Buk missile. "The court does not see any reason for reasonable doubt whatsoever," Steenhuis says.

Pulatov's defense claimed that the tapped calls describing the Buk were diversions to confuse the enemy. "Completely implausible," says Steenhuis.

The court also has no time for the allegations that the evidence has been manipulated. "No trace of manipulation has been found," Steenhuis says.

Such findings are "entirely unconvincing."

Steenhuis points out that the JIT did investigate other scenarios but were disregarded for "legitimate reasons." "There is therefore no need to exhaust other lines of inquiry," Steenhuis says.

Steenhuis says that the idea that Ukraine shot down the plane with its own Buk is a "fantasy that belongs in the realm of fantasy." (Which is extremely unfortunate phrasing because that could have been a great quote!!)

(The court is really driving the point home about this being a Buk missile.)

Now we move on to the evidence against the defendants themselves.

First up, the tapped conversations are authentic. They were not manipulated. The photo and video material was also examined for its authenticity and was not manipulated.

Steenhuis says that it was clear that the Buk was transported and returned under the authority of Dubinsky.

Kharchenko was escorting the Buk TELAR on the day in question, Steenhuis says.

Pulatov, meanwhile, was responsible for securing the route to the field and its return.

And everyone's favorite, Girkin, directed the battlefield that day and was the one keeping up the running discussion with Moscow.

We do not know (the file does not show) who ordered the launching of the missile or who pushed the button, the court says.

A Buk cannot be launched by mistake, there must have been some consideration. And no one could expect to survive onboard a plane hit by a Buk.

The Buk missile was launched deliberately but the court believes that the crew thought that it was a military aircraft, not a passenger jet.

Because the defendants are not entitled to combat immunity, they are not allowed to shoot down any aircraft, military or civilian, the court says.

Now the question is: can these four be held responsible for the act? This is here we get into some nuances of Dutch criminal law. (This is a straight forward criminal case, not an international court.)

First, Kharchenko. Followed orders from his superior. He did it "cooperatively" and his role was essential to the act. He qualifies as a co-perpetrator of the charges.

Second, Girkin. He was the highest ranking of the defendants but it's not clear if he knew about the presence of the Buk. So, this is not a classic "co-perpetrator."

Steenhuis says that it was clear that Girkin was aware that receiving a Buk TELAR would likely lead to deaths. And he actively worked to make sure the evidence disappeared. The court finds he had control of the deployment of the Buk and therefore qualifies so a co-perpetrator.

(Actually second was Dubinsky but my tweets seem to have gotten lost. Reposting.)

Dubinsky initiated the plan and played a guiding role but left the implementation to his subordinates. He qualifies as a co-perpetrator.

Now, Pulatov. Our only defendant not being tried in absentia.

Pulatov was tasked with securing the path of the Buk. He also had to receive the Buk missile and escort it to the firing location. However, he wasn't present when it was fired and he did not had influence on the plan.

Pulatov bears no criminal responsibility. The conclusion is that he must be acquitted.

So: Igor Girkin, Sergei Dubinsky and Leonid Kharchenko are guilty. Oleg Pulatov is acquitted.

Now we are going to get into the civil claims. Rome 2 requires that civil claims are processed under Ukrainian law. So, the TLDR, this gets really technical.

In conclusion, the claimed damage will be awarded in full. Lawyers for the relatives have asked for between 40,000 and 50,000 euros ($41,000 to $52,000) in damages depending on the relationship the surviving relative had with the victim.

Totally will be more than 60 million euros. This should be paid by the defendants. In the Netherlands, it will be paid by the state and the government will then try to get it back from the men.

Now, sentencing. (I can no longer feel my fingers. I want to file a complaint.)

Steenhuis says that for the relatives "there was life before the crash and there was life after it."

In the courtroom, some victims are crying as Steenhuis describes the impact on their lives.

The court says that the defendants did not comment on the case other than Girkin who "bordered on the disrespectful." (I think there's room to argue his remarks were totally disrespectful but I am not in charge.)

All three men get a life sentence.

(The earlier tweet about compensation should have been 16 not 60. The devil, as they say, is in the details.)

Igor Girkin (Russian) - convicted on all charges, life sentence Sergei Dubinsky (Russian) - convicted on all charges, life sentence Leonid Kharchenko (Ukranian) - convicted on all charges, life sentence Oleg Pulatov (Russian) - acquitted of all charges

Both sides have 14 days to file an appeal.

The weather absolutely continues to suck.

The relatives seem very happy with the verdict. "We are very satisfied," said Ria van der Steen, whose father and step mother were killed in the crash.

According to Digna van Boetzelaer from the Public Prosecution Service, her office will study the verdict and consider whether to appeal Pulatov's acquittal. "We would want an appeal to have meaning," she says.

I swear to god I am going to get "Rechtbank Den Haag ≠ the ICC" on my goddamn tombstone.

There is still some cake left in the press room if anyone wants it.

Cheers.



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