Ten Years on from the Downing of Flight MH17: Lessons Learnt from the Pursuit of Accountability under International Law

Abstract

In this article, two former Australian government lawyers draw on their involvement in the response to the downing of flight MH17 on 17 July 2014 to identify lessons learnt for the investigation and prosecution of complex crimes involving multiple jurisdictions. It is argued that the extraordinary political will and international cooperation that characterised the pursuit of accountability for crimes connected with the downing of MH17 engendered a range of creative solutions that could usefully be applied to the investigation and prosecution of serious international crimes (securing United Nations Security Council (UNSC) support, the establishment of an integrated joint investigation team employing operational best practices, and the utilisation of a transfer of proceedings). At the same time, it is argued that the proposed establishment of an international tribunal by the UNSC to prosecute crimes connected to the downing was unwarranted, and a number of concerns are raised with the prosecutions that ultimately took place before the District Court of The Hague. These lessons lead the authors to the conclusion that the pursuit of accountability for the downing of MH17 reflects double standards, with attendant repercussions for the reputations of the Netherlands and Australia in particular, such that the response can be seen as one example of conduct that has cumulatively resulted in the narrative about Western double standards that is currently so pervasive in the international system.