The Legal Aspects of the MH17 Disaster: What Next?

By: Emma Bakkum, Research Associate, PILPG-NL

Almost three years have passed since Malaysia Airlines Flight MH17 was shot down over Eastern Ukraine, leaving no survivors of the 298 passengers. The Joint Investigation Team (JIT) has since published that the plane was shot down by a buk missile situated in Eastern Ukraine. However, no State or individual has been held responsible to date. Victims’ relatives, the Dutch State, and others continue to consider legal options. In light of this, dr. Marieke de Hoon set out the problems and consequences of different legal procedures during a public lecture at the Vrije Universiteit Amsterdam. Because a single evening is not enough to discuss all legal aspects surrounding MH17, she focused on two legal avenues available: the prosecution of individuals before a criminal court of law and the responsibilities of States under international law.

Criminal Law

The most often discussed legal avenue is criminal law, under which individual perpetrators can be held accountable for the crimes they committed. Not only those directly responsible but also those who ordered, conspired to or aided and abetted the shooting down of MH17 can be held responsible. These individuals can be prosecuted both at the national level in domestic courts or at the international level, at the International Criminal Court (ICC) or a specially established tribunal. Criminal law, however, requires a high burden of proof. Not only needs to be proven that an individual has committed a criminal act but also that the individual did so with the required knowledge and intent, making it difficult to prosecute individuals. Under the circumstances of the MH17 situation, investigations are strenuous. Jeroen Akkermans, who was one of the first investigative journalists present at the crash site, underlined the problems with gathering evidence.

While the victims’ relatives appeared to have lost faith in the Dutch government for initiating criminal proceedings, they questioned what they could do personally. Professor Arno Akkermans pointed to the high costs and difficult procedures linked to individual legal proceedings and advised the victims’ relatives to continue to rely on the government and the pubic prosecution to undertake action.

International Responsibilities of States

Not only individuals but also States violating certain international obligations could be held responsible at the international level. There appear to be strong arguments to claim that Ukraine and Russia have violated their international obligations to communicate information, to investigate allegations, and to prosecute or extradite. These claims could be initiated by States before the International Court of Justice (ICJ) or by States or individuals before the European Court for Human Rights (ECHR). However, the options for these procedures are limited and they can be very lengthy and legally complex.

Political Unwillingness Calls for Both Legal and Political Approaches

Although legal procedures could achieve further truth finding and are a step towards responsibility, they all come with their own complexities and are moreover lengthy processes without much prospect of compensation. Most critically however, are the difficulties that arise from the (political) unwillingness of States to cooperate with the investigation and prosecution. Considering this, negotiations are important, which, as De Hoon pointed out, may lead to creative solutions as they did in the Lockerbie case.

Perhaps, the audience suggested, in order to turn the tides within the coming years, a political approach instead of legal approach should be advocated for. But is politics alone an option when legal options are not successful? “Law is a form of politics” and lawyers can clarify the responsibility of States, De Hoon answered. Pieter Omtzigt highlighted the importance of politics to establish any kind of justice trough law: “negotiate with States, use public diplomacy, and take a certain position against Ukraine or Russia”. The Netherlands might have an especially strong position to do this when it is part of the United Nations Security Council in 2018. It might then be able to push for adherence to UNSC Resolution 2166 which calls upon all States to fully cooperate with the MH17 investigation.

Truth Finding

The political side of international interaction surrounding MH17 inevitably slows legal action. However, it is not a choice between either political action or legal action. Law and politics are intertwined (law is a form of politics, making politics more effective with the language of law). The question should rather be: how can we strengthen both legal and political options with each other? In the end, finding the truth is the common ground, the basis of the endeavor surrounding responsibility for shooting down MH17.

What is the Alternative?

The wishes or needs of victims’ relatives are difficult to be fulfilled with lengthy and complex legal procedures. “But what is the alternative? Doing nothing?” “We must continue to talk and discuss about MH17 and an evening like this is therefore very important to keep it on the agenda”, one of the victims’ relatives explained. Persistent attention could eventually lead to something. For this reason perhaps, some of the victims’ relatives recently expressed that they consider joining a case at the European Court for Human Rights against Ukraine for violating its obligation to close its airspace. They reiterated that the bottom line is that they cannot do nothing and sit back.

The JIT has arrived at its final and most difficult phase: identifying the actual perpetrators of the shooting down of MH17. The conversation on legal avenues to pursue can and will be continued when the JIT has identified those individual perpetrators. This public lecture has contributed to the understanding and considerations for all parties involved of the different legal avenues in response to the MH17 disaster.

For more, see Navigating the Legal Horizon: Lawyering the MH17 Disaster by Marieke de Hoon.

International crimes in Dutch Courts: Dutch Businessman Convicted for Complicity in War Crimes and Illegal Weapons Trade

By: Rosalie Dieleman & Emma Bakkum, Research Associates, PILPG-NL

On 21 April 2017, the court of appeal of Den Bosch convicted 74 years’ old Dutch businessman Guus Kouwenhoven for illegal trade in weapons and complicity in war crimes in Liberia and Guinea between 2000 and 2003. He is sentenced to 19 years of imprisonment. Kouwenhoven, in his position as Director of Operation of the Oriental Timber Company (OTC) and of the Royal Timber Company (RTC) had a close relationship with former Liberian president Charles Taylor. An investigation into his activities was launched in February 2004. Kouwenhoven was accused of complicity in war crimes and weapons trade in violation of the UN embargo in place at the time.

On 21 April 2017, the court of appeal in Den Bosch sentenced Kouwenhoven to 19 years of imprisonment for complicity in war crimes in Liberia and Guinea between 2000 and 2003 as well as illegal arms trade. The court of appeal considered the facts proven, as consistent and reliable evidence was established as a result of additional investigation and witness hearings. Furthermore, with regards to sentencing, the court of appeal noted that it took into account that the crimes committed concern “very serious violations of the principles of humanitarian law” and that the suspect played “an important supporting role” in these violations. With the sentencing decision, the court intends to signal the court’s judgement of the gravity of the crimes to the victims and their families, as well as the international legal community. The sentencing aim of general prevention is given special attention by the court, noting that “businessmen like the suspect, who trade internationally and do not shy away to do so in cooperation with regimes like that of Charles Taylor, should be warned that they can get involved in (international) crimes (against humanity)”.

Kouwenhoven is the second Dutch businessman to be convicted for complicity in war crimes, following the conviction of Frans van Anraat in 2007. Van Anraat was convicted by the Supreme Court of the Netherlands for complicity in war crimes by delivering chemicals used for the production of mustard gas to the government of Sadam Hussein in Iraq.

Kouwenhoven has, to date, denied involvement in the crimes and is deliberating whether to file an appeal to the judgment. Kouwenhoven’s lawyer, Inez Weski, already expressed her intent to start a procedure at the European Court of Human Rights. She argues that, due to Kouwenhoven’s detoriating health, detention would be a violation of the duty of care of the Netherlands as laid down in the European Convention for Human Rights.

The judgment of the court of appeals in April 2017 followed a lengthy procedure before the Dutch courts. In 2006, the district court of The Hague convicted Kouwenhoven for illegal arms trade. He was, however, acquitted for complicity in war crimes due to lack of evidence. Both the prosecution and defense appealed. In 2008, the court of appeal in The Hague acquitted Kouwenhoven of all counts, due to the unreliability of several witness statements resulting in a lack of evidence. In 2010, however, the Supreme Court quashed this judgment and determined that the public prosecution’s office had unjustly not been given the opportunity to hear two anonymous witnesses. The Supreme Court referred the case back to the court of appeal in Den Bosch, where the case was reopened on 6 February 2017.

This judgment was the second judgment in April 2017 in an international crimes case in the Netherlands, on 4 April 2017, the Supreme Court of the Netherlands came to a final judgment in the criminal proceedings against five Dutch nationals involved in the Liberation Tigers of Tamil Eelam (LTTE).

International crimes in Dutch Courts: Supreme Court upholds conviction of Dutch ‘Tamil Tigers’

By: Rosalie Dieleman & Emma Bakkum, Research Associates, PILPG-NL

On 4 April 2017, the Supreme Court came to a final judgment in the criminal proceedings against five Dutch nationals involved in the Liberation Tigers of Tamil Eelam (LTTE). The Supreme Court followed the decision of the court of appeal and confirmed the conviction for crimes committed during the Sri Lankan conflict. The five were convicted for participation in a criminal organization with the intent to commit terrorist offences, as well as participation in and leading of an organization with the intent to commit crimes.

The LTTE is a separatist organization established in 1976 with the aim of finding an independent state in the north and east of Sri Lanka for the Tamil population. In 2008, an investigation into the LTTE in the Netherlands was started. As a result, Thiruna E., Joseph M.J., Srilangan R., Ramachandran S., and Lingaratnam T., were found as leaders of various Tamil organizations in the Netherlands, playing an important role in the LTTE’s international network.

The Supreme Court reiterated the 2015 judgment of the court of appeal, by concluding that the armed conflict in Sri Lanka was a non-international one and therefore “Dutch criminal law can be applied to members of an opposition group who commit terrorist offences outside the territory of the Netherlands”, as international humanitarian law is not exclusively applicable. Moreover, the Supreme Court concluded that combatant status is only conferred upon troops involved in an international armed conflict (i.e. between states) and thus not upon LTTE members, who were, as established before, involved in an internal armed conflict.

In 2015, the court of appeal convicted the five Dutch Tamils for participation in a criminal organization with the intent to commit terrorist offences, as well as participation in and leading of an organization with the intent to commit crimes. Appeal was filed in all five cases. The main question during higher appeal was whether the five Dutch Tamils could be prosecuted under Dutch criminal law for their actions. The defence argued that the conflict in Sri Lanka is an international conflict, leaving only international humanitarian law applicable to the case. The defence secondly argued that the defendants, in their capacity as LTTE members could claim combatant status. This status would enable them to participate in the armed conflict in Sri Lanka and consequently they would only be liable for violations of international humanitarian law. This argumentation was unsuccessful before the Supreme Court.

A second international crimes case was adjudicated in April 2017 in the Netherlands. On 21 April 2017, the court of appeal of Den Bosch convicted 74 year-old Dutch businessman Guus Kouwenhoven for illegal trade in weapons and complicity in war crimes in Liberia and Guinea between 2000 and 2003.

International cooperation leads to Gambian ex-minister’s extension of detention

By: Jill Bähring, Research Associate, PILPG-NL

Switzerland extends the detention of former Gambian minister of the interior, Ousman Sonko, after securing further evidence for crimes against humanity. Sonko is accused of committing and overseeing torture during his term as interior minister from 2006 to 2016. Gambia now seeks his extradition, according to interior minister Mai Ahmad Fatty.

Ousman Sonko was a righ-ranking Gambian lieutenant as well as interior minister. He was dismissed by Gambia’s former dictator Yahya Jammeh in September 2016, before Jammeh himself was deprived of power last year. Sonko then fled to Sweden before entering Switzerland in November, where he requested asylum. Trial International then triggered his arrest by filing a complaint with the Swiss authorities.

The new Gambian government led by election winner Adama Barrow had provided additional evidence to aid Switzerland in the case against Sonko. Following the submission of seized documents, his detention was extended by three months.

Only days after the press reported Sonko’s extension of detention, Gambia’s new interior minister Mai Ahmad Fatty announced that the country now seeks Sonko’s extradition. The newly elected democratic government intended to question him on cases of torture and enforced disappearance of Gambia’s opposition, such as Solo Sadeng, who was the organising secretary of the United Democratic Party (UDP).

Solo Sadeng was arrested in April 2016, among the prior government of dictator Yahya Jammeh. He was killed during his arrest. His corpse was exhumed in May 2017 and is undergoing examination for further evidence.

Evidence for witness bribery and war crimes against Peru’s former president

By: Jill Bähring, Research Associate, PILPG-NL

Peru’s former President Ollanta Humala faces investigation into allegations of crimes against humanity related to the fight against the Maoist guerilla group Shining Path in the 90’s by the Peruvian military. Two new witnesses issued testimony on torture and murder of civilians allegedly carried out at the Madre Mia military base.

Humala was an army officer in the 80’s and 90’s. He served as head of state from 2001 to 2016. He originally ran for office as a leftist, but then shifted to the right during his term. Among other things, he supported a bill that criminalized the denial of the Shining Path’s role in the Peruvian civil war in the 80’s, which cost the life of 69,000 individuals. A previous investigation against him was dropped in 2009 for lack of evidence.

However, newly leaked transcripts of phone conversations that were recently submitted to local media suggest that Humala bribed witnesses to get a testimony in his favour. Witness Jorge Avila, who testifies that his brother was killed and tortured by Humala, who allegedly operated under the pseudonym “Capitan Carlos” at military basis “Madre Mia”, told the newspaper El Comercio that he received $4,500 in 2006, when he first came out to the public, to recant the accusations against Humala.

In addition to these new allegations, Humala and his wife are currently under investigation for embezzling and laundering campaign funds in 2006 and 2011.

Ollanta Humala denies all allegations.