Facts First: The MH17 Tragedy, Fact-Finding and Accountability

Amidst many attempts to cast blame pending proper fact-finding, the Dutch government has wisely directed its political and diplomatic efforts towards the establishment of an independent investigation into the downing of the civilian plane MH17.

Last Monday’s unanimously adopted United Nations’ Security Council Resolution 2166 is an important step towards fact-finding. A full, thorough and independent investigation is vital for several reasons including the identification of victims, the determination of the cause (or possibly: causes) of the plane crash and, ultimately, the “accountability” of those responsible.

However, this international investigation in war-ridden Eastern Ukraine at dispersed and reportedly unsecured crash sites, will certainly be challenging. Therefore, this commentary provides several recommendations for adequate fact-finding:

  • Clear ownership and coordination;
  • Independent oversight;
  • Safe access to all scenes as soon as possible;
  • A fact-finding team consisting of all relevant experts;
  • An investigation covering multiple scenarios;
  • An outcome that is suitable for all possible accountability mechanisms; and
  • Attention to the specific circumstances.

One major difficulty with Resolution 2166 is that it does not specify who should be in charge of the international investigation. For proper fact-finding ownership over the investigationand coordination between the different fact-finders and their organizations from the outset of the investigation is crucial, as the Dutch government for instance learned in the context of the investigation into the plane crash in Libya on 12 May 2010.

Without a clearly designated leader of the investigation in Resolution 2166 and because of the political dynamics surrounding the incident, there is a real risk that multiple investigations will be undertaken without the requisite division of labor and checks and balances.

Perhaps the Netherlands can take charge of the international investigation, and coordinate with relevant UN system bodies, considering the reference made in the Resolution: “… the efforts under way by Ukraine, working in coordination with International Civil Aviation Organization (ICAO) and other international experts and organizations, including representatives of States of Occurrence, Registry, Operator, Design and Manufacture, as well as States who have lost nationals on MH17”.

The Ukrainian Prime Minister Mr. Yatsenyuk has already requested the Netherlands to coordinate its investigation and involved two Dutch teams with experience in investigating plane crashes. These teams investigated the plane crashes, such as the aforementioned one in Libya, and in the Bijlmer neighborhood, an area near Schiphol airport on 4 October 1992 (the Safety Board, Onderzoeksraad voor Veiligheid and the National Forensic Team, het Landelijk Team Forensische Opsporing).

Another organizational matter is the requirement of independent oversight from the design of the investigation onwards, which is essential for the overall success and integrity of the investigation. Without oversight from the moment that the investigation is devised, its process and outcomes become vulnerable to potential claims of bias.

Maybe the International Civil Aviation Organization (ICAO) can oversee the international investigation. Resolution 2166 refers to ICAO, which has already offered Ukraine its assistance in putting together an international team. If that were to materialize, the civil aviation specialists should also seek assistance from experts with proficiency in forensic science and international and national law, as will be explained below.

As a matter of urgency, the fact-finding team must gain secure access to the entire crash site, no matter how widely dispersed the evidence may be. Resolution 2166 rightly “… calls on all States and actors in the region [to ensure] … immediate and unrestricted access”, but it remains to be seen whether the armed non-state actors will allow the investigators secure passage to all the different areas. State cooperation, also from both Ukraine and Russia, would be beneficial and welcomed – for example in pressuring the non-state actors to cooperate on key aspects of the investigation. Once safe access is ensured, fact-finders should be able to give priority to victim identification and the repatriation of bodies, while preserving at least the possibility of (further) investigations into the causes of the incident and those responsible.

The investigation must make use of all relevant expertise including at least (civil) aviation, forensic and legal knowledge. Reasonably speaking, experts can only investigate the information that is relevant from the perspective of their own expertise. They should therefore not have to anticipate what might be relevant information for other experts or areas of expertise.

The design of the investigation must include several possible scenarios. If fact-finders do not consider all possible causes, types of conduct and responsible persons and organizations, the integrity of the investigation and the accuracy of its findings risk being compromised. The ultimate report (or reports) will most likely be used as a basis for the allocation of state responsibility and civil responsibility at domestic and international levels as well, but criminal proceedings with their most rigid standards of proof indicate several relevant scenarios. For criminal proceedings, the investigation will have to examine all different possible types of conduct of suspects (actus reus) and their intentions (mens rea), modes of liability (e.g. aiding or abetting and “superior responsibility”) and legal qualifications (e.g. (mass) murder and war crimes in internal armed conflicts).

The fact-finding report should be aimed to be useful for all available accountability mechanisms. Ukraine, which has jurisdiction, might initiate civil and criminal proceedings. Due to the current political upheaval and dispute over the status of the Donetsk region, however, countries which lost nationals such as the Netherlands, Malaysia and Australia will probably be much quicker to initiate proceedings than Ukraine. The Dutch prosecution service’s international crimes division, for example, has already opened an investigation.

At the international level, the International Court of Justice, the highest court in the UN system, can play a role by seeking to hold a state (or states) responsible under international law for arming or providing assistance to those ultimately found to have been responsible for downing MH17. The International Criminal Court might seek to hold to account those most responsible for possible international crimes, perhaps after Ukraine makes another declaration such as on 17 April 2014 for the events on its territory from 21 November 2013 to 22 February 2014.

The fact-finding team will most likely face circumstances such as the possible destruction or replacement of evidence caused by well-intended actions such as the recovery of  bodies, as well as, possibly, active attempts to destroy evidence (for which there have been reports in the media). They will likely also be confronted with contamination of evidence due to the prolonged unsecured crash sites. The team will also face the consequences of the transport of the bodies to Charkow. While the identification of persons and their repatriation will hopefully not be jeopardized, the removal of the bodies and their placement in bags in the current high temperatures will likely complicate (criminal) investigations. This transport does offer an opportunity for concurrent investigations at that location and the other sites of the plane crash. Simultaneous investigations have the benefit of swiftness, but require enhanced coordination and additional oversight for fact-checking and corroboration. Hopefully, satellite imagery and other data such as video and audio recordings as well as pictures and telecom data can contribute to (further) investigations, as well as to fact-checking and corroboration.

Other, more general circumstances also underlie the Special Monitoring Mission to Ukraine dispatched by the Organization for Security and Cooperation in Europe (OSCE). Ukraine’s government and a consensus agreement by all 57 OSCE participating States initiated this mission, hoping that international monitors can contribute to reducing tensions and fostering peace, stability and security. The fact-finding team should certainly not add to the tension and unrest in Ukraine, but they should also not be prevented, as the OSCE monitors claim happened to them, from accessing the scenes by armed non-state actors (or by any other persons for that matter).

The Hague Institute remains committed to its work in the area of fact-finding.

* Thanks to Dr. Anja Mihr, Dr. Richard Ponzio, Dr.Joris Larik and Ms. Sash Jayawardane for helpful feedback on an earlier draft of this blog.

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