International law versus hard Realpolitik: how MH17 will impact Dutch-Russian relations for a long time to come
The Syria crisis and the Russian bombing of civilian targets in Aleppo have fuelled growing doubts in the EU about the basis for future cooperation with Russia. France has accused Russia directly of war crimes, the British foreign minister called Russia a “pariah state”, and calls for additional Western sanctions are growing louder. Moreover, a solution to the Ukraine crisis appears to be nowhere in sight and Russia is threatening countermeasures if NATO militarily strengthens its Eastern European allies. A new type of Cold War is emerging.
In this light Russia’s tough response to the recent presentation of the initial findings of the criminal investigation by the Joint Investigation Team (JIT) into those responsible for the downing of MH17 raises the question of whether the international judicial approach adopted by the Netherlands may prove unworkable. The Netherlands is still trying to depoliticise the MH17 tragedy and place the apportioning of blame in the hands of the Public Prosecutions Office. In this regard any direct reference to Russian involvement has hitherto been avoided, the aim being to induce Russia to cooperate constructively with the international investigation into the causes and parties responsible for the disaster. However, the likelihood of this is diminishing steadily.
Moscow has always adopted a hard Realpolitik stance based on denying any Russian military involvement in the conflict in Eastern Ukraine. While the investigation is moving steadily towards hard evidence to the contrary, Russia is deliberately sowing seeds of confusion and doubt about the neutrality and integrity of the investigation. Russian alleges that “objective evidence” has not been taken into account and accuses the JIT of having a prejudiced and partisan attitude. This had already been the case with the final report of the Dutch Safety Board, which had to devote an entire annex to all the pertinent, factual rebuttals of the Russian objections.
The Russians have not enhanced their own credibility by coming up each time with a different version of their own story, adapting their evidence accordingly. First it must have been a Ukrainian fighter aircraft. After the Bellingcat investigative agency showed that Russian evidence had been tampered with, it suddenly became a Buk after all, but a Ukrainian one: new radar images (not yet handed over) would show that no Buk could have been launched from separatist-controlled territory.
The JIT’s conclusion that the Buk system came from Russia and later returned to Russia came as a blow to Moscow. Now for the first time the investigations have also pointed to direct Russian involvement.
The Russian reaction in turn went down very badly with the Dutch government. Both Prime Minister Rutte and Minister Koenders viewed the Russian policy of deliberately sowing doubt about the integrity and objectivity of the investigation as absolutely unacceptable. The Russian ambassador in The Hague was therefore summoned. Moscow followed suit with the Dutch ambassador there.
It is true that the door to future cooperation with Russia in the ongoing JIT investigation has not yet been completely closed and there has been no repeat of the Russian demand for a brand-new international investigation. Nevertheless, open and constructive Russian cooperation with the implementation of UNSC Resolution 2166 no longer appears a realistic prospect. Any trial of Russians ultimately blamed (almost certainly including military personnel from the 53rd Air Defence Brigade based in Kursk) looks likely to be at most an in absentia trial, as long as Russia persists in denying any military involvement.
Will this ultimately be a case similar to the Litvinenko murder in London and will Russian culprits actually escape justice? And will this have an impact on bilateral relations for a long time to come, just as relations between London and Moscow are still suffering from the repercussions of the Litvinenko murder?
There is at least a clear difference between MH17 and the Litvinenko case: this case has been more clearly internationalised from the outset. It is not only the case that the victims came from different countries and that it was a Malaysian aircraft. Security Council SC Resolution 2166 (2014) was adopted in the UN, requiring member states to cooperate fully with the tracing and prosecution of the culprits. (Russia vetoed a proposal to establish a UN tribunal.)
This does not mean, however, that Russian cooperation is assured. Over recent years Russia’s attitude towards international law has become increasingly politically instrumentalised and Russia has increasingly evaded its obligations under international law whenever it suits it as a “major power” in its Realpolitik approach.
The Dutch international judicial approach therefore runs into a brick wall when it comes up against Russian Realpolitik and national interest.
How can the Netherlands nevertheless ensure that the relatives obtain moral redress and that the necessary process of fact-finding and prosecution remains on the international agenda? In this regard the Netherlands would appear to benefit most if the dispute were not confined to being a narrow bilateral Dutch-Russian affair, but if the Netherlands could rely on broad support from the international community.
For the time being the international judicial route already embarked on must be pursued further. The prospect of constructive cooperation by Russia can be more or less ruled out, however. Without such Russian cooperation, securing an international criminal trial will be extremely difficult, if not impossible.
The International Criminal Court (ICC) could nevertheless still be involved, now that Ukraine has recognised its jurisdiction, opening the way to an investigation into war crimes committed on Ukrainian territory. Although Russia is not a party to the ICC, all parties involved in such crimes can be investigated, regardless of their nationality. If the Court concludes that the downing of MH17 is a war crime, the focus of the investigation can be expanded to include those responsible for it in the Russian military or political hierarchy. An interesting point here is that the ICC has now also launched a similar investigation into war crimes committed in the Russian-Georgian war of 2008. And the fact that France has recently announced that it is contacting the ICC about possible Russian and Syrian war crimes in the bombing of civilian targets in Aleppo.
The latter point is interesting in another way. In the reactions from other countries to the JIT report, only a few countries explicitly refer to Russia. Most statements, including t the one made by the EU, welcome the report only in general terms as an important step in fact-finding and prosecution.
If Russia ultimately frustrates every international judicial process, additional sanctions against Russia could perhaps also be envisaged as a means of punishing those responsible in some way. Such sanctions only make sense, however, if they have broad international support. The fact that France (not a strong advocate of the current sanctions against Russia) now appears to be coming to the conclusion on Syria that no real cooperation is possible with Russia may produce a turnaround if the same conclusion is also drawn with regard to the Ukraine conflict.
Each international judicial process will take years, entailing the risk that a large part of the international community will have long since forgotten about it by the time Russian involvement has been legally established beyond doubt.
If the next Dutch government also remains committed to prosecuting the culprits and obtaining moral redress for the relatives, it must keep this matter on the international political agenda, including in the UN Security Council, on which the Netherlands will have a seat in 2018.
Russia will not be willing to concede (with presidential elections in the offing in 2018) that it bears political and military responsibility for the crisis in Eastern Ukraine. Russia has so far been able to withstand International pressure fairly well, while the West has been able to maintain unity on the sanctions policy only with difficulty and it is unclear how the elections in the US, France and Germany will turn out.
The next government in the Netherlands will accordingly have to adapt its strategy and dampen expectations, including those of the relatives. The completion of the fact-finding process and any decision on sanctions as a punitive measure in connection with broader Russian war crimes in multiple conflicts (Georgia, Ukraine and Syria) will be a long haul affair. MH17 will thus continue to have a negative impact on Dutch-Russian relations for a long time to come. It would be good if everyone (including in business) were aware of this.
The Dutch version of this article has been published in Atlantisch Perspectief, no 5, 2016 and can be viewed below.
 A good summary of all the Russian disinformation issued surrounding the JIT report can be found in the weekly Disinformation Reviews published by the EU in October 2016: http://eeas.europa.eu/headquarters/headquarters-homepage/9443/disinformation-review_and.
 See annex to Dutch Safety Board letter to Russian civil aviation board: https://www.onderzoeksraad.nl/uploads/fm/20160225_Letter_DSB_-_Russian_Federation_re_MH17_-_Appendix_OvV_16500274.pdf.
 Press release on summoning the Dutch Ambassador Regina Jones-Bos to the Foreign Ministry, 3 October 2016: http://www.mid.ru/and/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/2485031.
 See Bellingcat’s most detailed report after a two year investigation: https://www.bellingcat.com/news/uk-and-europe/2016/07/15/mh17-the-open-source-investigation-two-years-later/.
 Polonium murder of Russian dissident and whistleblower, former intelligence officer Alexander Litvinenko; the British Public Prosecutions Department blamed Russian culprits (also from the intelligence service), but Russia refused to extradite them.
 For a good summary of the changing Russian stance: Lauri Mälksoo, Russian Approaches to International Law, 2015
 See: Alexandre Prezanti, International justice comes to Ukraine, commentary for ECFR, 21 September 2015: http://www.ecfr.eu/article/commentary_international_justice_comes_to_ukraine4042.