Another interesting day at the #MH17 criminal trial today... The prosecution begins be explaining various sources it consulted to understand how a BUK system works. 
JIT consulted experts from Russia, Ukraine, Finland, and Germany, and got actual operating manuals from Georgia and Ukraine
One important detail that JIT had to clarify was the maximum range of the missile, as this was crucial to excluding certain "alternative launch site" scenarios. Two missiles - one of the 9M38-M1 and another of type 9M38 were obtained (from Ukraine and Georgia) and disassembled.
The inside and operating environment of a BUK Telar was also studied in detail, using both manufacturer materials and actual installations.
Based on the gathered wreckage material, the BUK type could be restricted to the two types shown earlier. Then these two types were examined to obtain definitive flight and impact characteristics, particularly with focus on maximum range. Actual launch footage was consulted.
Prosecution now turns to a very important legal subject: the (alleged) combatant immunity for the indicted suspects. (Note: This topic is relevant for Russia's state liability, as immunity can only be granted to a participant in an international armed conflict)
Prosecution begins by emphasizing that JIT independently identified each suspect, and never counted on other sources. In short, all suspects used aliases on phone calls and in interviews, but ultimately each gave away clues that linked those call signs to their real identities.
Based on the hundreds of telephone conversations, a JIT investigated hierarchy and roles of each of the indicted parties. It was clear that all charged were tasked in one or another way with organizing air-defense of the so-called DNR, and not only linked to the MH17 shootdown.
JIT previously published a call in which main suspect Girkin asked for anti-air support from Russia "including trained crew as we don't have time to train them". He acknowledged authenticity of call on his own VK account.
Prosecutor lists several other protected witnesses who provided insider information on the movement and usage of the BUK-Telar..including from drivers and body-guards of some of the charged 4 persons.
Prosecution: "We have invited previously - and continue to invite - all accused persons to come and present their point of view about what happened....that's unlikely to happen - so we must gather statements they have made publicly to understand their perspective"
Turning to the all-important claim of *combatant immunity*. Prosecution warns this is a highly technical discussion that may be hard to follow by non-legal experts.
A basic principle is that only during an international military conflict, a person in the employ of a warring state, may invoke combatant immunity for acts of violence (as long as these were in compliance with international humanitarian law)
"Combatant privilege" is enshrined in the Geneva Convention. It applies ONLY to armed employees of states. An armed employee of a non-state entity engaging in violence is simply a criminal.
Also important is that combatant immunity can only be invoked if a person was part of the armed forces of HIS/HER own country, not if he/she joins the armed forces of another country.
Also important, "combatant immunity" protects a soldier from prosecution by the enemy country or third countries, not by the country under whose employ he/she committed the violence.
Additional requirements include: being identifiable easily as a combatant, carrying a weapon openly, behaving like a combatant having a clear line of command and subject to strict rules of engagement, etc etc.
Prosecutor digs into the "international" requirement for an armed conflict to provide cover of combatant immunity. If an armed group claims immunity, it must be closely integrated - and controlled - by a State other than the one in which it is fighting.
The following conditions must be met for immunity:
1. The group of the accused must belong to a State party to the conflict.
2. The accused was under command by another State.
3. Internal disciplinary system existed in the unit.
4. Accused must be clearly visible as a combatant.
1. The group of the accused must belong to a State party to the conflict.
2. The accused was under command by another State.
3. Internal disciplinary system existed in the unit.
4. Accused must be clearly visible as a combatant.
On the 1st condition: you can't claim immunity if you are fighting against a state party to the conflict if you are NOT another state party
The logic for this requirement is that a party to the Geneva Convention must take responsibility for the acts of its combatants, otherwise this combatant's actions cannot be attributed to such a state, but only to himself/herself. This implies "responsible command" by the State.
In summary, without the full chain of command: State >> Commanders >> Combatants - there can not be responsible warfare, and thus there cannot be talk of combatant immunity.
The third criteria requires a clear internal disciplinary system for the combatant's armed group. If an armed group systematically commits war crimes, it cannot be deemed as having an internal disciplinary system.
An overriding requirement for immunity is that the act of violence *must* be in compliance with international humanitarian law, otherwise - even if all 4 criteria are fulfilled - the act will be tried under regular criminal law. Precedent: the My Lai massacre of 1968.
The burden of proof for obtaining *combatant immunity* is on the combatant and the State that employed him/her. The combatant must be recognized therefore as such by the responsible State; it must recognize that it controlled him/her in a structured manner.
For efficiency, JIT had to first see if there is an obvious breach of one of the conditions. JIT started by considering, in the current case, the nature of the armed conflict. Was it international? Conflicting information existed, but stronger evidence existed that it *was*.
All intercepted calls showed that Russia supplied the militants with weapons and communication tools and contributed to recruitment and payment of fighters. Furthermore, Russian military provided cross-border artillery shelling and air-support.
Preliminary conclusion was that this IS an international conflict with Russia taking an active part, so we had to continue checking the other criteria.
We had to assess if the accused combatants behaved as if they were under Russian military control. Mostly, the 4 claimed they were working as volunteers. Girkin in particular claimed he was the top commander himself.
The Russian Federation also "disowns" these combatants, and has stated publicly - also in court proceedings in Strasbourg and at the ICJ - that it has any involvement with the armed conflict in Russia. Russia calls it a domestic Ukraine conflict.
Russia even claimed proof that Girkin is not an agent of Russia is the fact that he "railed Russia was not providing military support to eastern Ukraine"
Last, Russia has not approached this court to offer the three Russian indictees a status of combatants - therefore, Russia does not see them as subject to the immunity, despite the high risk of them being sentenced on charges of murder.
Next, JIT investigated whether the armed group complied with a clear internal discipline rules that would prevent breach of law of war. We found that these armed groups - according to the UN report - engaged in systematic human rights abuses
In intercepted conversations, combatants from DNR routinely referred to locking up civilians in basements, torture, including by electric shocks, executions. Many violation of law of war were registered by external authoritative sources. This condition thus also fails.
In conclusion: other than the first criteria, where objective evidence shows Russia was a party to the war,(but it does not even acknowledge this), all other criteria for combatant immunity are missing. JIT would like to hear of course the position of the accused.
We have asked Russia to inform us, for example, if Dubinsky was in service of the Russian state in July 2014. Russia refused to answer. It also declined our request to interrogate the accused on this particular topic on Russian territory.
We have heard from Pulatov's defense that he may invoke combatant immunity. He should have been able to do that by now, but in any case it will be up to him to prove his employ with and control by the Russian state at the time of the crime.
Until such moment, the position of the Prosecution was that the accused were part of a lawless group that committed systematically illegal acts, including the illegal act of shooting down a plane.
(Note: to clarify, prosecution says that it has claim definitively that the armed conflict was international, because this determination is irrelevant given that the other criteria fail - but if the Court decides this is relevant, "enough evidence is in the case file"(that it is)
The prosecution now concludes by looking at other types of immunity - none of which are relevant in this case. To consider any of them, the Russian state must first accept the indicted as its own agents - which ain't gonna happen.
Prosecution ends the "immunity" presentation, and the judge adjourns until 13:15 CET.
Let me correct myself on this one: the prosecutor said that an armed non-state combatant performing act of violence "is subject to regular criminal law", not necessarily "is a criminal". Apologies for the misreporting in haste.
My notes in the meantime: JIT made it clear that these 4 suspects do not qualify for immunity, yet it made it clear the case file contains evidence Russia was party to the warfare. Why do this if it wouldn't matter? Because this will matter in the next phase of the criminal case.
The weapon belonged to an active Russian military unit. It was operated by a Russian (active-duty) crew. JIT is obligated therefore to prosecute the crew. They - very likely - will get the combatant immunity defense, as all 4 criteria apply to them. However...
..the criteria do not apply to their (supreme) commanders. The missing criteria of "open engagement" - ironically, the one that for now saves the top military commanders & the Kremlin - is likely going to be the one that deprives them of combatant immunity in the next phase.
..and two videos that were shown by the JIT today.. one is an actual launch of a BUK missile.
Trial enters final phase for this week... Prosecution is presenting its arguments that the investigation is comprehensive and complete. It will be up to the judge to decide - following critiques and requests by the defense team.
Indictment does not cover all people that were guilty and/or which will be prosecuted. Prosecution asks the court to determine if the investigation file is sufficient for these 4 charged suspects only.
Prosecution argues that it is not necessary at this point to determine and describe how exactly the crime took place - and how the BUK (mis)targeted a commercial airplane. It is sufficient to show that the 4 charged suspects were in a causal chain with the downing of MH17
It is no also necessary to show intent to down a commercial airliner - the same (type of) criminal charges would hold for the 4 if they were targeting - and had downed - a military aircraft.
Intent to kill people was not even sufficient under art. 168 of the Dutch Criminal Code. The very downing of the plane is a crime, the killing of the passengers is an aggravating circumstance.
Under Dutch law, the crime of "murder" does not require one to know whom they are targeting. Knowing that their action will result in the death of another is sufficient for charges of murder.
Naturally, intent and knowledge of the target can have an impact on the length of the sentence. But this does not require the court to know what the actual crew knew or did - only what these 4 knew. Enough evidence is gathered on this.
The JIT will continue investigating the role and guilt of the crew of the BUK Telar and the people responsible in the line of command above them in Russia. This will be part of a separate indictment process.
The prosecution explains that future people in Russia may be indicted even if no final knowledge of how the shoot-down took place - a person's role in incitement, or in the provision of the weapon across the border, would qualify as a crime leading to the murder.
Now prosecution covers additional investigation it thinks is needed. One is a site visit by the court to the reconstructed remains of the MH17 Boeing 777.
Second, triggered by RU's claims of falsification, JIT would require a further forensic analysis of the Snizhne BUK video
Second, triggered by RU's claims of falsification, JIT would require a further forensic analysis of the Snizhne BUK video
Also, JIT asked for additional interrogation of 5 witnesses. For example, witness X48. S/he was present at the firing site, and saw a BUK system on road from Snizhne to S. and saw the missile launch. S/he the same location we saw on satellite. S/he saw 4 soldiers in uniform .
S/he testified that these soldiers had ear-flap tank caps and did not look like any of the local soldiers (in uniform). Because prosecutors could not interrogate this witness (only a judge did), JIT needs to ask more questions - such as when exactly were the soldiers seen, etc.
Defense has requested to interrogate witness V11 (who has been de-protected by an interim court decision), but his/her evidence is about the route of the BUK which is corroborated by many other witnesses and data, so prosecutor asks defense to reconsider.
(the reference to the "fake video" is the assertion by Russia that a video of a BUK near Snizhne was uploaded one day before the shoot-down... this is total nonsense and we have debunked it before: bellingcat.com/news/2020/03/1…)
Next, a rather legalistic discussion of what will happen to the testimony of witness V11 that was given under assumption of anonymity, which an interim court has removed from that witness at request of Pulatov's defense.
The prosecution asks defense to specify if it wants actual removal of the testimony from such witness, or just its exclusion from consideration as evidence. It argues it should remain in file - which is also in the interest of defendant so it knows all facts - but be excluded.
And the last legal argument is that while the testimony of V11 should be excluded in the case against Pulatov because he specifically requested it, this cannot automatically be applied to the 3 other indictees who are not represented nor appeared in court.
After arguing that the Defense team should submit their questions and requests as soon as possible - and ideally before the next hearings starting June 22 - the prosecution request that Court schedule the trial on the merit of the other 3 suspects in the fall of this year.
Prosecution now argues that Pulatov himself has shown next to no interest in preparing - or even contacting - his defense team, thus further delays because "he needs more time" are inappropriate. According to his RU lawyer, they didn't even know if he read the full indictment.
Prosecutor cites numerous statements and criticism by Pulatov on the course of the court case that he posts under a fake name on a Russian forum site (glav.su), showing he is able to and following the case - but apparently chooses not to interact with his Defense.
Pulatov's defense asks court to *not* decide on a date for starting the deliberations on the merit of the case, citing "8,000 new Covid cases in Russia every day" which makes planning [for meeting their client] impossible.
The court adjourned until June 22, when the defense will be required to present its questions and requests for additional investigation. Following that, the Court will set the agenda for the rest of the year. (end)
