Just over two years ago, in the middle of one of the hottest summers in recent memory, the shooting down of Malaysian Airlines flight MH17 changed the direction of the war in Ukraine. The European political class, though horrified by Russia’s bold and unrepentant aggression, was up to that point eager to avoid direct confrontation with the Kremlin, and was hoping that Russian President Vladimir Putin might somehow be cajoled into making peace. The downing of the civilian airliner, which killed all 298 passengers aboard, most of them Dutch, stiffened spines in Brussels, and broad sanctions followed.
At the start of 2014, mass protests against Ukraine’s corrupt President Victor Yanukovych had forced him to flee the country. The Maidan Revolution, as the protests came to be known, sent a clear message to Yanukovych’s backer, Russian President Vladimir Putin: Ukraine’s future would be with Europe, not with Russia. Putin did not take the news well. Seeing Ukraine slip away from Russia’s sphere of influence, as several former Soviet republics had already done, prompted him to move quickly. By March, Russian forces had taken over the Crimean peninsula and installed a quisling government. At the same time, uniformed Russian-speaking military forces without insignia—dubbed “little green men” during the Crimean operation—and civilian separatist paramilitaries started agitating in Ukraine’s eastern Donbas region. By summer, what initially were skirmishes and violent protests had metastasized into a full-blown war, fueled by Russian weapons, troops, and military intelligence and leadership. Ukraine lost large swaths of eastern territory in Luhansk and Donetsk as Russian-backed forces sought to establish independent “republics” in those regions. The downing of MH17 didn’t immediately blunt Russia’s momentum on the ground, but it changed the political dynamics.
This past Wednesday, a much-anticipated, Dutch-led criminal investigation proved what previous independent investigations had already shown, and what most observers already knew: MH17 was shot down by a Russian Buk missile launcher system that was brought across the border from Russia into eastern Ukraine and fired from territory controlled by Russian-backed forces. Using a combination of open source information from social media, witness testimony, forensic analysis, satellite imagery, and intercepted phone calls between those involved in the transport of the missile launcher, the report’s meticulous and methodical account leaves absolutely no doubt as to the origins of the weapon. The launcher was brought from Russia over the Ukrainian border in broad daylight and smuggled back to Russia that very night.
In contrast to a previous report by the Dutch Safety Board, the criminal investigation by the Joint Investigation Team (JIT), set out not only to prove the cause of MH17’s downing, but to also name those responsible. While the JIT has succeeded in proving beyond a shadow of a doubt that the Buk missile launcher came from Russia, it has yet to release the names of the perpetrators. The report claims to have identified approximately one hundred individuals involved in the transport of the Buk and the missile launch, but does not go as far as a separate report, released earlier this summer by the independent investigative group Bellingcat, which identified Russia’s 53rd Anti-Aircraft Missile Brigade as having “transported vehicles within Russia to positions close to the Russian border with Ukraine” from which the Buk was then handed over for transport to the launch site.
In the presentation of its findings, the JIT—an international team of police and prosecutors from the Netherlands, Malaysia, Belgium, Australia, and Ukraine—emphasized that these were only preliminary findings. The investigation into identifying who out of the hundred known individuals is going to be named as an official suspect is still ongoing. Fred Westerbeke, the Dutch representative of the JIT who presented the findings, asked for help in identifying the voices of the individuals discussing the transport of the Buk in intercepted calls. For an individual to be considered a suspect, according to Westerbeke, the investigators still need more information about the chain of command to determine who ordered the launch and eventually pressed the button. Releasing the names prematurely, before the official suspects could be identified, would impede the ongoing investigation by alerting suspects.
But therein lies the rub. The victims’ families, which have already had to wait for more than two years, may not see justice any time soon. The JIT team’s mandate, which was to expire in one month, has been extended into early 2018, indicating that it may be another two years before individuals are fingered and criminal proceedings could begin. The political will for confronting Russia, already flagging today, might be in even shorter supply by then. Indeed, while evidence in the report clearly implicates Russia in the attack, the investigators have already stopped short of placing the blame directly on Russian authorities.
Russia for its part has refused to cooperate in the investigation, opting to obfuscate matters by pointing to forged evidence and various conspiracy theories. In 2015, Russia, a permanent member of the United Nations Security Council, used its veto power to block a Security Council resolution to create an international tribunal to prosecute those responsible for the downing.
If Russian citizens are eventually named as suspects (as they are likely to be), the legal process to bringing them to trial will not be easy or straightforward. Russia is a signatory of the European Convention on Extradition in 1996, which facilitates extradition of wanted criminals between member states. But the convention explicitly does not cover military personnel, and every signatory can opt not to extradite its own citizens. Technically, the Russian Duma could vote to make an exception, but the chances of that are basically zero, whether Putin is in power or not.
Charges could be brought to the International Criminal Court (ICC). Indeed, Navi Pillay, the UN’s High Commissioner for Human Rights, said at the time of the crash that the downing of the jetliner could amount to a war crime. Ukraine filed a declaration to accept the ICC’s jurisdiction on its territory, which grants the court the ability to investigate the downing of MH17. But while Russia is a signatory of the Rome Statute that established the ICC, it has not ratified the treaty. And the extradition problems remain. Ditto for cases in the International Court of Justice or the European Court of Human Rights.
With chances of extradition low, families of victims likely have to choose to bring their cases civil courts, suing named suspects for damages. It’s less than ideal in terms of strengthening international norms, but the PR heat on Moscow could still be substantial.
None of this should prevent the international community from pursuing a more robust sanctions regime against Russia. The MH17 report comes at a time when some European leaders questioning the next extension of sanctions which are up for a vote in January. Italian Prime Minister Matteo Renzi, one of the leading pro-Russian voices in Western Europe, speaking at the St. Petersburg International Economic Forum in June, called on Europe and Russia “to become wonderful neighbors again.” EU leaders who have been advocating for sanctions, such as Chancellor Angela Merkel, should use the findings of MH17 to support their policy. If Western leaders are serious about bringing those responsible for the deaths of 298 innocent civilians to justice, they will have to take a clear eyed look at what Russia has become under Putin: an authoritarian state with no regard for international laws, human rights, or the deaths of civilians. In this case, justice will only come with political will.