Yves here. John Helmer has been dogging the MH17 case for many year. Even if you are new to the story, it’s not hard to understand the legal incoherence of this ruling.
By John Helmer, the longest continuously serving foreign correspondent in Russia, and the only western journalist to direct his own bureau independent of single national or commercial ties. Helmer has also been a professor of political science, and an advisor to government heads in Greece, the United States, and Asia. He is the first and only member of a US presidential administration (Jimmy Carter) to establish himself in Russia. Originally published at Dances with Bears
There will be no Russian appeal to the high Dutch courts in the case of Malaysia Airlines Flight MH17.
A district court judge, Hendrik Steenhuis, ruled on November 17 to acquit one Russian and convict two other Russians and a Ukrainian, all fighting for the Donbass separatists against the Kiev regime. The four men were charged with murder in the destruction of the aircraft and deaths of its 298 passengers and crew on July 14, 2014.
The Ukrainian and Dutch case has created a new legal doctrine of “functional co-perpetration” in combat – guilt by association in civil war and wars of national liberation when one side puts the opposing side on trial, applying evidence created by secret intelligence services and heard by state agents behind closed doors. In English legal history this is known as a Star Chamber proceeding; in France, Lettre de cachet; the Yamashita doctrine in the US Supreme Court; and in Australia, a kangaroo court.
Steenhuis ruled that “Moscow”, the “Russian Federation”, and “high-ranking persons in the Russian Federation” had directed the accused men to commit war crimes. But he also judged there had been no war in eastern Ukraine; no right of self-defence on the Donetsk battlefield; and that because of their “lack of combat immunity, the suspects, like any other civilian, were not entitled to shoot at any aircraft, including a military aircraft, and thereby kill the military occupants.”
The Rechtspraak in The Hague reported on Thursday that no filing in the case 0909/748007-19 had been received.
This means that no Russian appeal will be presented to challenge the legality in Dutch and international law of the findings and convictions of Colonel Igor Girkin, Colonel Sergei Dubinsky, and Leonid Kharchenko. On December 1, Dutch state prosecutors had announced they would be filing no appeal in the case.
They concluded with the order: “To the extent permitted by law, an appeal may be lodged against this decision within fourteen days.” Counting court working days from the date the judgement was published on November 17, this deadline expired at the end of Wednesday this week, December 7.
Anatoly Kovler, a former European Court judge and founder of the Moscow law firm Kovler & Partners, supervised the legal preparations for the defence of Lieutenant-Colonel Oleg Pulatov, and instructed the two Dutch defence lawyers in court, Boudewjin van Eijck and Sabine ten Doesschate. Pulatov was acquitted in last month’s ruling.
Kovler had refused to respond to questions or make comments on the case until November 17, when Vzglyad reported him as saying: “Russia was not included in the international investigation team, although Australia and Malaysia were included only because among those killed in the crash of flight MH17 were citizens of these countries. But excuse me, where is Australia and where is the crime scene area?…Nevertheless, the court showed some objectivity and noted the lack of evidence that Russia, as a state, was involved in the commission of this catastrophe…[Kovler also points out that] the investigation included only convenient witness statements in the evidence base, ignoring information about the missile launch from the village of Amvrosiivka – the location of the Armed Forces of Ukraine. The reason for the refusal was that this zone is too far from the point where the plane disappeared from radar. This practice is called selective application of evidence. The trial must use all the evidence that the lawyers demanded to provide. Although Dutch justice is characterized by a high degree of meticulousness and scrupulousness, but in this case, apparently exceptions were made…Unfortunately, there was no such objectivity in the MH17 case.”
Kovler, the Russian Ministry of Internal Affairs, and the Russian Ministry of Justice, which the Kovler firm has represented, declined to answer questions on whether the Russian side was considering an appeal in the case. The Russian Foreign Ministry said it was studying the legal documents but has said nothing since.
The Dutch Government is continuing a claim it filed in July 2020 against the Russian Government in the European Court of Human Rights, where several cases have been launched but suspended for several years.
An attempt by the European Commission to create a new international tribunal to start proceedings against Russia has also commenced. Christopher Black, a Canadian barrister and specialist in war crime tribunal law, explains.
By Christopher Black
On Wednesday November 30, Ursula Von der Leyen, the German president of the European Commission, stated that the European Union will set up a specialised tribunal, backed by the United Nations, to investigate and prosecute possible war crimes committed by Russia in Ukraine. The French foreign ministry and Kiev regime echoed her remarks.
“We are ready to start working with the international community to get the broadest international support possible for this specialised court,” von der Leyen said.
That this proposal is the opening scene in a staged drama for the entertainment and manipulation of the western public is apparent from the fact that there can be no “backing” of such a tribunal by the United Nations since only the Security Council has any possible jurisdiction to approve such a tribunal and clearly, both Russia, and China, which can expect the same treatment for itself from the West as Russia, will veto any motion in the Security Council to establish such a body.
If Von der Leyen is intending to rely on a vote in support by the UN General Assembly, then one wonders what her knowledge of the UN Charter is since the General Assembly votes have no legal force. But we can suppose that they may float such a proposal hoping the US and EU can coerce, bully and bribe a sufficient number of servile nations to give their stamp of approval so that they can claim they have the support of the “international community,” that is themselves and the nations under their sway.
The UN Charter does not provide any jurisdiction for the creation of quasi-judicial bodies under Chapter VII, which states that the only means permitted to be used against nations in violation of international law are military and economic, not judicial. The fact that the ad hoc tribunals for Yugoslavia and Rwanda, the ICTY [International Criminal Tribunal Yugoslavia] and ICTR [International Criminal Tribunal Rwanda], were created is a sad testimony of how the UN system can be abused. The Security Council had no powers under the Charter to create them and acted outside its powers when it did so, or as lawyers like to say, it acted ultra vires of its powers. That Russia did not veto the creation of these tribunals in the early 90’s can be explained by the fact that Russia had then a government that was weak and under the direct influence of the Americans and other NATO countries. It would never have allowed it if Presidents Putin or Medvedev had been in charge at the time.
The Chinese, however, realised the problem, expressing a willingness to vote for it only with the caveat that the adoption of the resolution should not prejudice China’s position on future resolutions on the subject. On 23 May 1993, when the UNSC was engaged in debate on Draft Resolution 827, which established the ICTY and adopted its statute, the Chinese representative explained his affirmative vote after the resolution was adopted by stating that China disputed the approach for the establishment of the tribunal by way of a UNSC resolution, rather than a treaty, with the latter route being the one China had preferred all along. He explained that, resembling a treaty, the statute should have been “negotiated and concluded by sovereign States and ratified by their national legislative organs. “Otherwise, its implementation would bring problems, unspecified, in both theory and practice.”
Secondly, the Chinese representative expressed the hope that this resolution would be a one-off exercise in setting up an ad hoc institution, and should not constitute a precedent. With that consideration in mind, Resolution 955, which approved the establishment of the second tribunal in 1994, for Rwanda, was obviously not agreeable to China as a repetition of the resolution-based approach, and China abstained in the voting on the resolution.
When the ICTY prosecutors issued their report on the US missile and bomb attack on the Chinese Embassy in Belgrade on May 7, 1999, they concluded there was no legal or criminal culpability or the two US B-2 aircrews who had launched the lethal attacks or the chain of their command at the Pentagon and White House: “the aircrew involved in the attack should not be assigned any responsibility for the fact they were given the wrong target and that it is inappropriate to attempt to assign criminal responsibility for the incident to senior leaders because they were provided with wrong information by officials of another agency [CIA]. Based on the information available to it, the committee is of the opinion that the OTP should not undertake an investigation concerning the bombing of the Chinese Embassy” -- read more. China’s abstention in the UN Security Council vote on Resolution 955 (1994) creating the Rwanda tribunal has been reported here.
The fact that these tribunals were illegally created under the UN Charter and so in law do not exist was raised time and again by a number of defence lawyers representing accused at those tribunals. Of course, our arguments were dismissed out of hand and those of us who persisted were threatened with consequences. Nevertheless, as a matter of law the judgements and decisions of the ‘judges’ of those tribunals are all invalid and have no force or effect.
And just as the Germans first proposed and pushed for the creation of the ICTY it is again the Germans who are pushing for the creation of another kangaroo court whose sole purposes will be to put out propaganda against Russia, to cover up their own war crimes and crimes against humanity committed in Ukraine since 2014, and to attempt to justify their aggression against Russia and their support of fascists in Ukraine.
The idea for special war crimes tribunals originated with the United States Department of the Army in the early 1990’s, which alone should tell you something about its true purpose. The rhetoric used to justify such a body to the general public was of course heavily seasoned with concerns for “human rights” the “dignity of the individual”, “genocide” and “democracy,” just as it is now.
In order to accelerate the break-up of Yugoslavia into quasi-independent colonies, principally of Germany and the United States, it was necessary to discredit their leaderships. An effective propaganda weapon in such an exercise is of course a tribunal with an international character which the public will accept as a neutral instrument of justice but which is controlled for political ends. NATO has the same objective with regards to Russia now.
Yugoslavia was the first experiment in using a quasi-judicial international body to attack the principle of sovereignty. And as the Americans have learned so well, the best way to get your domestic population behind you as you proceed to break another country, economically and militarily is to get them to hate those in power in that country. The Serb leadership was targeted, and transformed into caricatures of evil. There were comparisons to Adolf Hitler, a comparison used with surprising frequency by the United States against the long list of nations it has attacked in the last 50 years, though sometimes they are just labelled as common criminals, like Manuel Noriega, or mad like Qaddafi, if the leader or the country is too small to make the Hitler comparison stick. I think Saddam Hussein was the first to be compared to Hitler, and declared a common criminal and a madman all at the same time. We are hearing the same vile rhetoric about President Putin from western leaders and the mass media, which indicates what their ultimate objectives are.
Fort Worth Telegram, Texas – March 31, 1999
Ukrainian cartoon published by Washington Post, March 19, 2022
Again, the European Union, Britain, Canada and the USA are targeting another world leader, President Putin, and his government for the same reasons as they did President Milosevic, political ones. In this regard it is important to remember that in a statement to the Secretary-General of the United Nation, Mr. Boutros-boutros Ghali, on January 21, 1994, Antonio Cassese, the first President of the ICTY, made the Tribunal’s political character quite clear when he said in reference to the role of the Tribunal, “The political and diplomatic response (to the Balkans conflict) takes into account the exigencies and the tempo of the international community. The military response will come at the appropriate time.” In other words, the Tribunal is considered a political response. He went on to state, “Our tribunal will not be simply “window dressing” but a decisive step in the construction of a new world order.”
Left: Dutch guard holds Yugoslav President Slobodan Milosevic at his ICTY trial in The Hague, February 2002; centre, the Italian chief judge of the ICTY, Antonio Cassese; right, District Court judge Hendrik Steenhuis.
There you have it. Von der Leyen on behalf of the EU and NATO is proposing the creation of another politically motivated kangaroo court, an illegal tribunal, without any jurisdiction, as part of the continuing US and NATO effort of establishing global hegemony, the construction of their new fascist world order, a tribunal to be used to fabricate indictments, conduct show trials, to propagandise against Russia, its leadership and people, while covering up and excusing their own crimes and justifying their aggression against Russia and the world. This use of what is nothing less than criminality to further more criminality is proof that the EU and NATO have openly adopted the techniques and ideology of fascism.
For once President Putin is “indicted” by this fake tribunal, there will be no possibility that any Western leader or government will be able to negotiate a peaceful resolution of the military conflict with him or any other Russian leader “indicted” with him nor negotiate over Russia’s security concerns. As with President Milosevic, President Putin will be labelled a criminal, and all possibility of negotiation, whether with the USA or EU, on resolution of the military conflict will be permanently blocked. Their intention is to make negotiations a complete impossibility. This means that war will be the only avenue for the resolution of the strategic political issues at stake. This is, in fact, the position of the Kiev regime with their mantra, “No negotiations with a war criminal.” And now it is the position of the EU and NATO. It is clear what their intentions are.
[*] Christopher Black is an international criminal lawyer based in Toronto. He is known for a number of high-profile war crimes cases and published his first novel Beneath the Clouds in 2016; it can be read here. He writes essays on international law, politics and world events, especially for the online magazine New Eastern Outlook. His essays and poetry can be read on his blog.