A soft grumble is heard from the audience in the enormous courtroom of the European Court of Human Rights in Strasbourg.
Mikhail Vinogradov, the representative of the Russian Federation, addressed the relatives of the MH17 plane disaster in his speech. “We understand that the next of kin want to know the truth,” says Vinogradov. “We are willing to help them with that.”
“Yes, yes”, says Rob Fredriksz just a little too loudly, and he is startled. His wife Silene pats him briefly: the judges seem to have heard nothing. Rob and Silene Fredriksz lost their son Bryce and his girlfriend Daisy in the plane crash.
A hearing by the ‘Grand Chamber’ of the European Court is not an everyday occurrence: 17 judges from as many countries enter the high round courtroom in Strasbourg to consider state complaints from the Netherlands and Ukraine against the Russian Federation.
It is the first time that the relatives of the MH17 disaster can look a Russian in the eye. In December, the Dutch Public Prosecution Service demanded life sentences against three Russian and a Ukrainian national for their involvement in the murder of 298 passengers on the flight. None of the suspects appeared for court.
In Strasbourg, it is not about specific suspects, but about the responsibility of Russia itself – at a time when a new threat of war hangs over Ukraine. In 2014, Russia sent mercenaries and secret agents across the border to capture the Donbas; by 2022, Moscow will have gathered at least 127,000 regular army soldiers around the border. “We are speaking today in the context of an imminent Russian invasion,” said Ukrainian Justice Minister Denys Malyuska, who came to Strasbourg himself.
Very rare, very sensitive
Proceedings at the European Court always revolve around a state’s violation of the European Convention on Human Rights (ECHR). In the vast majority of cases it is citizens who file a complaint against the government. Cases between member states of the European Council are very rare, says university lecturer in international law Marieke de Hoon, “and very sensitive”. Nevertheless, the cabinet took the plunge in 2020. With its intervention, the Netherlands wants to assist the relatives, who have filed hundreds of complaints against Russia on an individual basis.
To save time, the European Court decided in November 2020 to join the Dutch MH17 case with two Ukrainian state complaints against Russia, which revolve around the kidnapping of children from eastern Ukraine to Russia and multiple gross human rights violations by pro-Russian separatists, such as the torture of Ukrainian soldiers.
Read alsoThis story about MH17 relatives
Why the Court has done this soon becomes clear on this gray day in Strasbourg. In order to hear a complaint under the ECHR, the Court must first examine the admissibility of the case. Article 1 of the European Convention on Human Rights obliges all member states of the European Council, from Iceland to Azerbaijan, to implement the convention. The crimes against humanity for which the Netherlands and Ukraine accuse Russia did not take place on Russian territory, but in eastern Ukraine. And despite a staggering amount of evidence that Russia directly directed the war in the Donbas, Russia still denies any involvement in the conflict.
The legal question before Strasbourg is whether Russia has had ‘direct control’ beyond its borders, in eastern Ukraine. According to Kiev and The Hague, Russia provided arms and ammunition as well as economic and political support to the separatist ‘People’s Republics’ of Donetsk and Luhansk. In addition, the pro-Russian separatists were under direct political control of Moscow and Russian soldiers fought alongside the insurgents. In other words, Russia is directly responsible for what happened in 2014 in the Donbas: from the torture of prisoners of war to the shooting down of a Malaysia Airlines Boeing 777.
Russia denies. In his reply, Russian representative Mikhail Vinogradov reiterated the Kremlin’s views. The Boek missile that fired MH17 was, according to Moscow, fired from area controlled by the Ukrainian army. The missile that was used is no longer in service with the Russian armed forces, but comes from a Ukrainian arsenal. Vinogradov: “Of course MH17 was a tragedy, but we know that Russia is not responsible for it.”
“Lies,” says attorney Emmerson. “This is an attack on your Court and on Europe’s democratic institutions, using a tried-and-true Russian tactic: blatant lying.” On the eve of another war on the European continent, Emmerson says Russia is “looking at how much pressure it can put on Europe’s main court.”
mud fight
For example, the hearing of the European Court has turned into a mud fight between Ukraine and Russia. That is not bad for the Netherlands, but representatives Babette Koopman and René Lefeber try to keep their calm. For the Netherlands, it’s all about ‘finding the truth, justice and accountability’, says Lefeber. “Today was an important step in this quest.”
Afterwards, the Dutch relatives are still quite excited about what they have seen. “You heard he was lying,” bereaved family Ron Fredriksz said of the Russian representative Vinogradov. “They challenge and they try how far they can go,” says relative Sander van Luik – he lost a brother. “You have to put a limit on that.”
Read alsoThis story about MH17 relatives
A version of this article also appeared in NRC on the morning of January 27, 2022
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