Ministerie van Defensie

The Complexities of Fact-Finding: Ukraine and MH17

Ministerie van Defensie

The inquiry into the downing of Malaysian Airlines flight MH17 on 17 July 2014 in the Donetsk region in Eastern Ukraine is a stark example of the complexities surrounding fact-finding. An international inquiry is difficult always, but this particular investigation faces additional challenges.

For example, the ongoing conflict has complicated the recovery of parts of the plane and access to other information that might prove to be relevant evidence. Moreover, there is pressure within the Netherlands and from abroad on the investigators to publicize findings soon, especially those that indicate which states, companies, individuals, non-state actors and others are most responsible for the crash.

The inquiry itself came about organically. After the crash, no United Nations Security Council-mandated commission of inquiry or other international investigation was initiated. Instead, the Dutch criminal prosecution took up the criminal investigation in the context of a Joint Investigation Team together with the other concerned countries.

Ukraine, the territorial state with the primary mandate to conduct the inquiry, delegated the investigation of the cause of the crash to another, independent Dutch organ. The Dutch Safety Board launched its report of 9 September 2014 already offering interim conclusions that the plane was punctured by “high-energy objects”.

Though the Netherlands plays an important role in this MH17 inquiry, these Dutch organs are accompanied by ‘checks and balances’ and the real end to the investigations will follow in the subsequent national and international legal fora. Interestingly, however, even for such legal fora fact-finding usually does not get the same attention as the legal interpretation of established facts.

Therefore, shortly after the downing of the plane, The Hague Institute initiated a Track 1.5 dialogue with several fact-finders, experts in international law and politicians who are directly or indirectly involved in the inquiry. Based in the Netherlands but with its global mandate, the Institute proved to be an important hub for the confidential exchange of information between these stakeholders. Important elements of that exchange were the investigation itself, the legal possibilities that would be open for the continuance of the investigations and initial ideas about the management of expectations of the next of kin and the general public.

Grounded in policy-relevant research on interoperability between fact-finding missions and international courts and tribunals, days after the crash researcher Jill Coster van Voorhout warned that this inquiry should be accompanied by international oversight. A lack of international oversight has continued to plague the investigators. Without oversight by a United Nations body, for example, both the inquiry and its findings continue to be vulnerable to claims of bias and a lack of independence. Such claims will most likely hinder future opportunities for effective accountability mechanisms.

As long as the official international inquiry into MH17 continues, The Hague Institute will carry on its assistance to all those involved. Moreover, the Institute will continue its policy-relevant research for international judicial and non-judicial accountability mechanisms that have to establish facts that remain standing on trial and under scrutiny by the general public. The focus continues to be on the interplay of judicial and non-judicial mechanisms involved in fact-finding. In this way, international courts and tribunals in The Hague can benefit from third-party fact-finding, including as by first responders who often have early access to the sites.

In 2015, fact-finding continues to be a priority for the Rule of Law Program’s three-year flagship project of Accountability and Civic Trust (ACT). ACT uses normative and empirical research to examine how accountability, an established principle of the international rule of law, correlates with civic trust, an essential condition for a global rule of law culture. Expected activities include the launch of a manual on fact-finding by monitoring, reporting and fact-finding missions with Harvard University’s Humanitarian Policy and Conflict Research (HCPR). Together with HCPR, the Institute will organize a side-event on evidence-based fact-finding for professionals from investigative missions and the international courts and tribunals. Ultimately, these efforts in the domain of fact-finding are intended to enhance both judicial and non-judicial mechanisms that aim to guarantee accountability for gross human rights violations.

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