Several options under consideration to prosecute perpetrators in the downing of flight MH17

The government is working out several options for the prosecution and trial of perpetrators in the downing of flight MH17. No decision has been taken as yet. The government is aware however that the Netherlands may well be expected to implement prosecution and adjudication. In preparation for this the government is trying to ensure that the details of these options are worked out as far as possible in advance, ready for the moment when the final choice of the most effective prosecution and adjudication mechanism has to be made.

This was the message from State Secretary for Security and Justice Van der Steur as set out in a letter to the Lower House, also on behalf of Minister Koenders of Foreign Affairs. On 28 September 2016 the Joint Investigation Team (JIT) presented the initial results of the criminal investigation into the downing of flight MH17. The JIT will continue that criminal investigation. There will be further detailed inquiries to establish who can be held responsible. To maximise the likelihood of a trial the JIT must be able to take the next steps in the investigation entirely independently and without political interference.

After the veto by the Russian Federation of a UN tribunal in the UN Security Council,  the options for prosecution and adjudication were examined by the JIT countries (Australia, Belgium, Ukraine, Malaysia and the Netherlands). Two of these were worked out in detail: the setting up of an international tribunal, and national prosecution in and by one of the JIT countries. In considering the latter option, the possibility of the Netherlands being chosen as the country of prosecution was also taken into account.

Both options are complex and subject to legal obstacles. Further investigation is necessary in order to fill potential legal lacunas and remove the obstacles. It also clear that formal steps will have to be taken such as entering into treaties and the realisation of (implementing) legislation. The basic aim of the government is to maximise the probability of an effective prosecution. A number of legal considerations are important here, including the transfer of criminal proceedings. This is being discussed with the JIT countries.

The choice of the most effective criminal prosecution and adjudication mechanism will be made as soon as the criminal investigation permits. The criminal investigation and bringing to trial of the perpetrators of the downing of flight MH17 remains the highest priority of the government. Apart from the cooperation from the other JIT countries, the government can also rely on broad support from the international community.