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Dr. Marieke de Hoon (Director of the Netherlands Office and Senior Counsel, Public International Law & Policy Group , Assistant Professor at Vrije Universiteit Amsterdam) at December 8 providing some legal background on the conclusions of the latest Bellingcat report.
Dr. Marieke de Hoon holds expertise in international criminal law, public international law, and human rights and wrote this very interesting paper on MH17 titled “Navigating the Legal Horizon: Lawyering the MH17 Disaster’
Bellingcat, together with Russian The Insider did an investigation which has identified, to a high degree of certainty that a Russian Colonel General named Nikolai Fedorovich Tkachev, currently serving as the Chief Inspector of the Central Military District of the Russian Federation, was involved in transporting a BUK TELAR surface to air missile system to Eastern Ukraine. MH17 was downed by a BUK missile.
De Hoon states if proven that Colonel General Tkachev was indeed in Eastern Ukraine at July 17, 2014, this is a game changer regarding criminal law, human rights (European Convention on Human Rights ECHR) and international law. Because this means Russia as a state was present.
It is know the Joint Investigation Team studies the war situation in Eastern Ukraine to determine if this was a domestic conflict or an international conflict.
Below is the translation of the Tweets by Marieke de Hoon.
Under international law it is relevant what the hierarchical relationship between Russian soldiers and insurgents /separatists was, but involvement of military means accountability to Russian Federation: Violations of civil aviation treaties, duty to conduct effective investigations, deception, and so much more.
Regarding European Convention on Human Rights (ECHR) is most significant that military operation entails great responsibilities with regard to organization, training, taking into account that intelligence in war situation can be incorrect: the heavier the used weapons, the heavier those obligations to care and precautionary measures.
For ECHR (Strasbourg, human rights) this also means an interesting reversal of the burden of proof: if Russian Federation was present in Eastern Ukraine with a military mission, it is up to the Russian Federation to demonstrate that it has taken the necessary precautions to limit the risks of civilian casualties.
Interesting and significant because for most legal obligations the burden of proof lies with the other side. But the reasoning at ECtHR is that if there is a military mission there, the state concerned must demonstrate that it has taken the necessary care.
In this connection, it is legally crucial to distinguish between military and civilian targets arising from the law of war (international humanitarian law). And in case of doubt, (in principle) you can not shoot. So there is an active obligation to identify targeting parties.
Mistakes can of course be made here and these are not necessarily violations and war crimes. Therefore, it is crucial that sufficient measures have been taken to minimize the risk of errors.
If Russian Federation had military operations there, they might have violated these kinds of responsibilities (and Russian Federation should only explain this) & have they violated absolute ECHR duty or prevented effective investigation afterwards (including co-operation with the investigation into the downing of MH17).
For Ukraine this is also interesting because if Russian Federation involved state actors (military personnel), Russia may also have breached the provisional provision that the European Court of Human Rights (ECtHR) instituted in the case of Ukraine-Russian Federation in the context of Crimea (13 March 2014).
Regarding criminal law: it is important to know if Colonel General Nikolai Fedorovich Tkachev was also present during launch of the BUK missile and what his involvement was. but these tapped telephone conversation fragments are from the same day as collapse of MH17 so probability that he did not leave in the meantime with such a weapon installation and operation.
If he himself was involved in launching and neglected or was responsible for failing to make sufficient attempts to identify targets as military instead of civil, he may have committed war crime. But there’s more:
Because he is the commander (and if a hierarchical relationship can be demonstrated between him and the subjects) & knew or should have known that crime could be committed, he is also responsible for not preventing or punishing afterwards: independent war crime as commander.
So if it can be proven that this was a Russian Federation military in active service (and it looks like that is the case), this is legally very significant and brings other Russian Federation responsibilities than ‘just’ knowledge of BUK presence but no active presence self.
But it remains important to realize that much is still unclear: was the man identified by Bellingcat indeed the man, was he at the location, when exactly, in active Russian military service, what did he know or should have known about actually launching BUK and how did the hierarchical relationship run exactly?
Putin stated that Russian people were involved in the war in Eastern Ukraine as volunteers. It is therefore important to know if he was in active service. The timeline with activity in Syria before and activity in Russia afterwards indicates that despite its ‘resignation’ already for the Syria mission. A soldier in active service who is involved in military missions and is not sanctioned afterwards automatically brings state involvement. The soldier ’embodies’ the state. His military action is therefore immediately state actions and violations of UN Ch
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-“Bellingcat, together with Russian The Insider did an investigation which has identified, to a high degree of certainty that a Russian Colonel General named Nikolai Fedorovich Tkachev, currently serving as the Chief Inspector of the Central Military District of the Russian Federation, was involved in transporting a BUK TELAR surface to air missile system to Eastern Ukraine. MH17 was downed by a BUK missile.”-
How did the coincidence of a person’s voice with a voice on a record that does not have any evidence of her involvement in MH17 proves that this person is related to the transportation of BUK TELAR?
It seems JIT is very interested in learning more.
“The JIT stresses that these is no evidence that these calls are directly related to the downing of MH17.”
https://www.politie.nl/themas/flight-mh17-2.html
So, one might conclude that he was not at the launcher or in the command chain for the launch. Perhaps involved in the arrangement and transport from Russia.
From the call for witnesses: “The JIT has several wire tapped conversations in which these people participate. The JIT provides you with a sample of the audio files in English and Russian, from a selection of these conversations. The JIT stresses that there is no evidence that these calls are directly related to the shooting down of MH17”.
What I think this says is that *these* released recording samples may not be evidence, but they do contain the voice of persons they (the JIT) are interested in, in particular this Delfin/Dolphin. It does not say that they, the JIT do not have recordings with that voice that are related to the downing of MH17.
Whether the OM/JIT is really happy with the publications from Bellingcat, I don’t know. I could imagine that for tactical reasons they would rather keep results silent until they have all conclusive evidence together.
JIT does not have anything on these people, they themselves ask for information about their relationship with the MH17, so “maybe” is a contrived slander. Bellingsath lied saying that the coincidence of the voice proves to be involved in the general. Unfortunately the media is spreading this lie