Guilt by Association if the Perpetrator is Russian, Innocence by Association if Prosecutor is Dutch or Ukrainian
By John Helmer, Moscow
A former Dutch tax inspector, currently a judge of a district court at The Hague has ruled to convict three men of forming a criminal association for killing 298 passengers and crew of Malaysia Airlines flight MH17 on July 17, 2014, on the orders of the Russian military command and government in Moscow. The judge, Hendrik Steenhuis (lead image, right), has ruled admissible the evidence of the crime supplied by Dutch and Ukrainian state organisations and their military officers, intelligence agents, and police. They testified in secret that “no traces of tampering [with evidence] were found”. Steenhuis concluded that “all [telephone tapes and photographic images] were authentic and have not been manipulated.”
He has ruled inadmissible and dismissed all the evidence supplied by Russian organisations because, he said, they are state agencies and “not clear, transparent, entirely unconvincing.”
The convicted men – Colonel Igor Girkin (lead image, left), Colonel Sergei Dubinsky, and Leonid Kharchenko – formed their organisation to commit crimes in the conflict in eastern Ukraine in which the Russian state was engaged on one side, but the judge found no other foreign state was engaged on the other side. He also ruled that the laws of war and combatant immunity for the deployment and operation of arms legally protected the Kiev forces but did not apply to the Donbass army. Accordingly, Steenhuis declared, “due to the 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 realized criminal act of downing a plane and killing the occupants was therefore already included in the original plan.”
“The court is of the opinion that it appears that although the Buk missile was deliberately fired, it was thought that it was a military aircraft and not a civilian aircraft. To that extent, it must have been a mistake. However, such a mistake does not detract from the intention and the premeditated advice.”
By implication, the Dutch court has ruled that Ukrainian and Russian resistance to the regime change in Kiev of February 2014, the armed struggle for self-determination which followed, and self-defence from Ukrainian air and ground attack was and remains illegal – a Russian state crime because, Steenhuis said, “the Russian Federation had overall control of the DPR [Donetsk People’s Republic] in 2014.”
Steenhuis identified “artillery shelling on Ukrainian territory, which would have been carried out from the Russian Federation from the beginning of July 2014. Witnesses have also testified about Russian equipment with Russian soldiers, which crossed the border, carried out shelling and then drove back.” He makes no reference to shelling or air bombardment by the Kiev forces.
In 16,000 words of Steenhuis’s ruling, Kiev is not mentioned at all; nor Washington; nor the Ukrainian President at the time, Petro Poroshenko (lead image, rear centre); nor US government financing, arms and other aid to the military operations in the Donbass.
By contrast, President Vladimir Putin, his advisor Vladislav Surkov (picture on table), and other “high-ranking persons in the Russian Federation”, are named by the judge as having “provided for financing of the DPR, the supply and training of men and the supply of weapons and goods. In addition, since mid-May 2014, the Russian Federation has had a decisive influence on the filling of high positions within the DPR and has interfered in the coordination of military actions and also taken military actions on Ukrainian territory.”
For evidence of the murder weapon, the judge announced that he accepts a single piece of warhead shrapnel shaped like a bow tie (centre of table), which he said had been recovered from the body of a cockpit crew member. That discovery by Ukrainian and Dutch state investigators has remained undocumented and the chain of custody of the fragment unverified. Steenhuis had no explanation for the disappearance of all 2,600 other pieces of bow-tie shrapnel in the missile warhead alleged to have exploded against the MH17 cockpit.
According to the Dutch Criminal Procedure Code at Section 344a : “[a judge] may not find that there is evidence the defendant committed the offence as charged in the indictment exclusively or to a decisive extent on the basis of written materials containing statements of persons whose identity is concealed.”
As the law to warrant the three convictions, the acquittal of Lieutenant-Colonel Oleg Pulatov, three life prison sentences, and award of €16 million in compensation, Steenhuis introduced a Dutch Supreme Court concept called “functional co-perpetration”. Dutch and international lawyers acknowledge this is guilt by association. They note that in international, North American and British law, this cannot be proven with a witness testifying in secret; with evidence gathered by a secret chain of custody and tested in secret; without cross-examination of experts in open court; and by hearsay of one judge referring to another investigating judge whose identity and proceedings have also remained secret.
There is “no possibility of reasonable doubt whatsoever”, Judge Steenhuis declared in his summing-up.
“Joint criminal responsibility is an idea the Americans tried to use at the Yugoslav and Rwanda war crimes tribunals thirty years ago — it’s bogus law”, commented Christopher Black, a Canadian attorney who represented defendants accused in those proceedings.
“By acquitting Pulatov, the only defendant to be represented in court,” comments Dutch jurisprudence expert Alfred Vierling, “the court has done its best to hinder the convicted defendants from taking higher court proceedings to challenge the law and the convictions in the Court of Appeal.”
Steenhuis read out what he called a summary of the court judgement for almost two hours on Thursday afternoon. The summary document in English is just over 16,000 words, and runs for more than 70 pages.
He then handed out a document to the lawyers in the courtroom. Publication of this document has followed on the Dutch judiciary website in Dutch and English in separate versions for each of the four defendants on the official indictment. Each version runs for more than 90,000 words and covers 159 pages.
The archived replay tape recording with English interpreter can be followed here.
The Hague District Court judges, (left to right) Dagmar Koster; Hendrik Steenhuis, and Heleen Kerstens-Fockens leaving the bench at the conclusion of the November 17 verdict reading. Koster and Kerstens-Fockens have said nothing on the record during the 28-month proceeding. For details of their backgrounds as Dutch and NATO prosecutors, read this.
The English transcript of Steenhuis’s summary ruling published after the hearing on the trial website.
It is not clear whether this long version of the court ruling with footnotes is the final judgement promised by Steenhuis. At the conclusion of his reading he said: “The text that has now been pronounced will also be available in English and Russian on the website of the judiciary no later than tomorrow afternoon. The English version of the full verdicts will be available in a few weeks.”
The text itself, according to the judge, is no more than a summary; the full court judgement will not be issued for what Steenhuis claimed may be “a few weeks”. At the same time, he ordered a deadline for filing an appeal of his judgement of just 14 days from now – December 1.
For analysis of the evidence in the MH17 case in full, without state intervention, there are only three books in print:
Left: Eric van de Beek, MH17: de onderste steen : een non-fictie detective (2022, Dutch – “MH17 – leaving no stone unturned – a non-fiction detective”); centre, Kees van der Pijl, Flight MH17, Ukraine and the New Cold War (2018) ; right: John Helmer with Max van der Werff, Liane Theuerkauf and Sam Bullard, The Lie That Shot Down MH17 (2020).
Steenhuis claims the foundation in Dutch law for the convictions is “functional co-perpetration”. “The court has assessed whether the defendant can… be held responsible for the contributions of others to the deployment. The latter is called functional committing. In the case law of the Supreme Court, a number of conditions have been developed for this functional responsibility. In short, it means that, first of all, it must be established that the suspect accepts that the crime is being committed, or that he usually accepts it. Secondly, it must be established that the accused is in a position to decide whether the crime is being committed, in other words that he has control over it, that he can make or break it… The court considers it more appropriate to first assess the possible personal concrete contribution of a suspect to the crime. Only when the conclusion is that someone cannot be seen as a perpetrator or co-perpetrator, the court has come to the question of whether this suspect should then be regarded as a functional perpetrator because he is responsible for the contribution of another.”
Girkin was guilty, according to the judge, because he “was kept informed of the state of the fighting around the corridor and gave orders in that regard. For example, he gave orders on the supply and placement of tanks and he determined who was in command. Girkin, however, did not speak over the phone about a Buk or its deployment. As the highest military commander, Girkin did have the opportunity to decide whether or not to deploy a Buk-TELAR. That control stemmed from his position as Minister of Defense, the hierarchical superior of Dubinskiy and Kharchenko, and is also evident from the telephone conversations conducted by Girkin when it is clear that things went wrong with the deployment of the Buk-TELAR. Girkin then actively interferes with the removal of the Buk-TELAR to the Russian Federation, gives the necessary orders and maintains telephone contact about this to be informed whether this has actually happened.”
“In addition, the conduct of the armed struggle was an important means, and precisely the means that took place under the authority of Girkin as the highest military leader, to pursue the goal of the DPR. Part of the armed struggle was the downing of aircraft. The fact that people died by the use of military means is a fact of which Girkin was of course also aware. This is certainly also the case with the use of anti-aircraft personnel to bring down aircraft; something that had already been mentioned several times before 17 July 2014.”
“Although the file contains no evidence that Girkin was aware of the availability of a Buk-TELAR on 17 July 2014, it can be said that Girkin certainly accepted a deployment such as that of the Buk-TELAR on 17 July 2014, resulting in deaths. The court deduces this from his role and high position, his request for sound anti-aircraft defences, the fact that Girkin was aware of the use of military means with which several aircraft had already been shot down, including deaths as a result and never acted against them, and the fact that Girkin actively interfered in the military operation around the corridor on and around 17 July 2014.”
Dutch legal experts believe that Steenhuis has stretched the meaning of functional co-perpetration far beyond the scope allowed by the Dutch courts to date; they also note there is no Dutch statute in place to clarify how “functional co-perpetrators” in an army fighting with another army can be judged to be engaged in actions they accept to be criminal murder, not self-defence in particular circumstances, or war of national liberation in general.
The Dutch legal experts who have discussed functional co-perpetration in Dutch court cases say the concept began with civil offences, such as company managers arranging for their employees to violate work safety rules or carry out commercial fraud. It was then extended to crimes such as extortion, theft, and murder in abortion cases. Attempts to apply the concept in order to prosecute crimes by political or military figures have produced controversy in the Dutch courts, not convictions.
None of the Dutch, German, British or American reviews of prosecutions of soldiers or their commanders and political leaders for acting as functional co-perpetrators of war crimes has uncovered a case in civil war or war of national liberation fought by two opposing armies.
“Although the downing of a military aircraft was also not permitted,” Steenhuis claimed in his conclusion, “the court cannot close its eyes to the fact that the downing of a military aircraft in the context of the fighting would indeed have been of a different order than the deliberate shooting at a civilian aircraft and the deliberate killing of 298 men as a result, women and children who have nothing to do with the fighting. Although the intention does not detract from the seriousness of the fact, it does colour the seriousness of the accusation.”
Black, Vierling and US lawyers specializing in conspiracy and racketeering believe there has never been a prosecution and conviction on evidence as secret as the Dutch court has just accepted; and on lack of proof of intention to commit the crime alleged against the perpetrators.
Never before, they say, has it been so obvious that the war in the sky over eastern Ukraine on July 17, 2014, was part of the war that had already started, and the war that continues today, between the NATO allies and Russia, pitting the Dutch government — and its judges — against the Kremlin and its soldiers.