The simulation of court hearings in the case of the downing of Malaysian Airlines Boeing -777 passenger jet flight MH17 en route from Amsterdam to Kuala Lumpur on July 17, 2014, suggests that despite obvious, convincing, and exhaustive evidence of the Russian Federation’s guilt, the Kremlin could go for a number of steps to ensure that the country’s leadership escapes punishment for the deaths of passengers and crew.
According to the leading coordinator of Joint Investigation Team (JIT), Dutch Prosecutor Fred Westerbeke, the investigators managed to fully prove Russia’s involvement in the tragedy. However, the case so far targets only the performers, not masterminds behind the crime.
The key point based on JIT findings is that the deployment across the Russia-Ukraine border of a Buk air defense system that’s in service with the 53rd Air Defense Brigade of the Russian Army required a direct order from Russia’s military-political leadership, as it implied the transfer of Russian military equipment abroad while no martial law was introduced and no war declared. Thus, deploying an air defense system – with or without a Russian crew – required the order of the Russian president and the country’s minister of defense.
De jure, their abetting the commission of the crime consists of:
– Providing means or tools (the handover of the Buk air defense systems);
– Concealing criminals and means of committing the crime (transporting the air defense system back to n the territory of the Russian Federation, hiding the crew on its territory); and
– Attempting to discredit the investigation, spinning conspiracy theories and misinformation in order to confuse the investigation.
Thus, court evidence of the MH17 downing by a Russian air defense system delivered from Russian territory automatically gives grounds for pressing charges against Russia’s top military leadership. This explains Russia’s will to meddle in the investigation and the trial: through falsification of evidence and an active information campaign on misinformation.
Military intelligence data recently published in the Netherlands rules out involvement in the MH17 downing by either Ukrainian Buk air defense systems or Russian Buks located on the territory of the Russian Federation. An analysis of these documents by lansinginstitute.org proves that it was only the Russian Buk air defense system, which had been deployed to Ukraine across a section of the border with Russia that was beyond Kyiv’s control, that could launch the deadly 9M38 missile.
However, Russia may try to escape accusations against its military-political leadership by recognizing that the air defense system was handed over to “DPR” militants, who further operated the launcher.
This position looks unconvincing, although the only possible one from the perspective of the urgent need to remove Mr. Putin from under the probe’s focus. It is unlikely that an air defense system that’s in service with the Russian army could be deployed across the border without persons controlling its use. The fact that after the MH17 downing, the air defense system was quickly taken back to the Russian territory indicates that it remained under the effective control of the Russian military.
In this case, the precedent can be used of UK that’s been held accountable for their actions in Iraq, and Turkey – for their actions in Cyprus, where in both cases the main argument is the proof that the country had “effective control” in the territory where the crime was committed. Thus, the jurisdiction of Russia’s responsibility can be expanded to the territory of Ukraine’s Donbas.
Russia seeks to convince the court of the primacy of circumstances over cause. In other words, they argue that it doesn’t matter who shot down the plane, while it is important to see circumstances that were in place at that moment. This position is legally void, since it fails to take into account the very cause of the aircraft crash, deaths of crew and passengers, and the cause-effect relationship.
Here, a similar case is the downing of the Ukrainian passenger jet operated by Ukraine International Airlines, flight PS752, over Iran on January 8, 2020. The cause of the aircraft crash was the strike by an Iranian air defense missile – not some foreign political tensions in the region, liquidation of Qasem Soleimani or Iran’s missile strike on U.S. targets in Iraq.
Ukraine had not shut down the skies over Donbas, since at that time (before downing the MH17) there was no objective threat to civilian flights. Pro-Russian separatists had been downing Ukrainian Air Force jets using MANPADS, at low altitudes, unable to hit targets flying at altitudes over 6km. The Ukrainian authorities had no information about Russia transferring air defense systems to Ukraine. The lack of operational data on the deployment of Russian air defense systems in Donbas has also been confirmed by Dutch intelligence.
On June 19, 2019, JIT revealed they were aware of the four Buk crew members and a captain with Russia’s 53rd air defense brigade, who was in command of that crew. However, the investigators stopped short of naming any of them. The JIT also identified four suspects complicit in the Boeing crash. These are three Russian nationals – former “minister of defense” of the so-called “DPR” Igor Girkin (aka Strelkov), Major General Sergey Dubinsky (aka Khmuryi), and Colonel Oleg Pulatov (aka Gyurza), as well as a Ukrainian citizen Leonid Kharchenko (aka Krot).
On February 3, 2020, a blogger who had been cooperating with the Russian authorities, Max van der Verff, published information that the Rotterdam-based law firm Sjöcrona Van Stigt took over the defense of one of the suspects in the MH17 case, Oleg Pulatov, who is considered involved in transportation of the Russian Buk missile launcher.
Partners with Sjöcrona Van Stigt specialize mainly in dealing with money laundering, bribery, fraud, and other types of economic crime.
In the comments to the media, Dutch lawyers emphasized that the MH17 case hearings will take years and that they intend to keep a low profile pending trial. They explain their interest in the case by their will to ensure the rule of law. Taking into account the high status of Sjöcrona Van Stigt and its major specialization in economic crimes, its participation in the case could be logically explained by PR purposes. However, their statement on keeping a low profile during the trial begs to explore other reasons for their participation.
It is known that the second defender will be Elena Kutyina (a Russian national) from Moscow Bar Association Kovler and Partners, the firm owned by the son of a Russian judge at the ECHR.
Kovler and Partners is located in the elite “Alexander House” block, right by the Kremlin. In 2000, it housed Vladimir Putin’s campaign headquarters in his very first elections and later served as the HQ for the Center for Strategic Research, led by German Gref (now president of the state-owned Sberbank). Kovler and Partners represents in the courts the interests of the Ministry of Internal Affairs of the Russian Federation and the Prosecutor’s Office.The company that owned Alexander House also owned a land plot that was handed over to the Russian Presidential Administration for the construction of Putin’s residence on the Pacific Ocean coast.
The analysis of information posted on the law firm’s website indicates that it is not interested in attracting general clients, only working with a specific group of persons, affiliated with government structures, demanding that confidentiality of such cooperation be maintained.
According to Dutch lawyers with Sjöcrona Van Stig, lawyer Kutyina is not entitled to act on behalf of the suspect in the Netherlands – she only provides information to defend him.
The MH17 case file amounts to some 30,000 pages compiled by JIT, including with the participation of independent organizations such as Bellingcat. The source of information which Kutyina will provide as part of defense efforts is obviously different from the JIT material. The interpretation of such information within the framework of the case is limited to Kutyina’s sphere of competence. Most likely, her role will boil down to mediation between Sjöcrona Van Stig and interested persons (structures) in Russia who pay for the Dutch lawyers’ services.
Otherwise, it is impossible to explain why would Dutch lawyers need Ms Kutyina.
In Moscow, Kutyina plays a judge on a TV show “Family Affairs”, hearing petty cases. She has no qualification whatsoever in the field of war crimes, aviation law, etc. Thus, it is likely that she will participate in the information operation on covering court hearings in a way that would be beneficial to Russia, commenting for the Russian audience, which the Dutch won’t be doing over reputational risks.
The connection between the Russian Kovler and Partners, which defends Pulatov, and the Dutch Sjöcrona Van Stig, is of no doubt.
The latter will take up the main work on defending the suspects.
Sjöcrona Van Stig’s consent to such cooperation with a Russian lawyer can be explained solely by the condition set by the client paying for the services rendered. Kutyina’s participation in the trial threatens reputation of the Dutch firm, since it is obvious that they exercise no control of her communication with the Moscow-based clients and fail to take into account the informational component of the trial.
The Dutch firm’s source of funding remains unclear, while information on its website emphasizes operations with wealthy clients. Comparative prices for the services of a company of the appropriate level stand at a minimum of EUR 240-380 per hour.
Personal payment for legal defense services by the accused is ruled out.
There is no doubt in the connection between the two legal structures representing Pulatov’s defense and the Russian Presidential Administration.
It is possible that Sjöcrona Van Stigt may represent in the Netherlands the interests of businesses owned by Putin’s entourage.
In the January 2012 edition of Dutch law magazine Mr., there is a photo of Sjöcrona Van Stigt employees posing with lawyers of the Wladimiroff Advokaten law firm at a New Year’s party. Wladimiroff Advokaten was founded by Mikhail Wladimiriroff, a descendant of a Russian emigrant. The company is actively engaged in the issue of Russia sanctions. In the 1990s, Misha Wladimiriroff acted as defense counsel for the Serbian war criminal Dusko Tadic in the first criminal case brought before the Yugoslav Tribunal. According to The Irish Times, the ITFY has also appointed him defender of Serbian President Slobodan Milosevic.
Wladimiriroff is also connected with the MH17 case. He publicly defended the position that the trial should be taking place in Russia. In his opinion, only a joint trial with the Russians, possibly even based in Russia, is able to put criminals behind bars. In all other cases, Russia will refuse to extradite suspects. This position fully coincides with the Kremlin’s statements voiced in 2014 about the need to try suspects in Russia.
Misha Wladimiriroff is the founder of the Dutch-Russian Law Association. Among his clients was Russian national football team’s manager Guus Hiddink. In his office he has Russian icons and paintings of Russian landscapes. Also, he visits Russia and generally speaks positively about the country.
All those indicted in the MH17 case are now either in Russia or in territories controlled by Russia. Earlier, Moscow had already attempted to convict one of them for felony and thus remove him from the view of the court in The Hague.
There is a possibility that if the court proves that the passenger jet was destroyed by a Russian air defense system, the Kremlin may attempt to arrest and imprison other defendants in Russia. Thus, Moscow will block further investigation aimed at identifying and prosecuting masterminds behind the crime.
