A court in the Netherlands, an international research collective, and a daring Ukrainian operation have brought an international tragedy back to the headlines while providing a case study on new legal and political realities of the 21st century.
On July 17, 2014, a Malaysia Airlines Boeing 777 exploded in the skies of eastern Ukraine, killing 298 passengers and crew. From the moment the aircraft was reported missing, it was apparent that it was an exceptionally unusual incident. The aircraft was well-maintained and it was safely at cruising altitude at the time of the incident. Investigators’ attention was soon directed at the conditions on the ground. Moscow-backed separatists had initiated a revolt in Ukraine beginning in March 2014, an insurrection that was coupled with Russia’s occupation of Crimea. These separatists eschewed association with Russia officially, yet they had advanced military capacity, including the ability to shoot down aircraft.
Images of the weapon used in the attack were soon identified via social media, the government of Ukraine released recordings of intercepted communications in an attempt to influence the public perception and findings, and in time a chain of events emerged that placed the blame for the attacks squarely on the Russian Armed Forces. Most notably, the open source research collective, Bellingcat, continually developed its understanding of the incident, providing research and analysis similar to that of a state intelligence agency.
Last month, a Joint Investigative Team in the Netherlands charged three Russians and one Ukrainian with facilitating the transfer of the weapon employed against the airliner. Acknowledging that those charged are likely beyond the reach of the court’s jurisdiction, the prosecutors assessed that naming the individual suspects would aid in further developing the network that conducted the attack while imposing a political cost on the perpetrators.
A week following these indictments, Kyiv announced that it had captured a separatist linked to the network that shot down the airliner. In doing so, Ukraine demonstrated an ability to enter hostile territory, seize a subject of interest, and repatriate him to face investigators. While details of the operation remain murky at best, Ukraine demonstrated a capacity previously only known to exist within the most elite international special operations forces units.
Taken together, the Joint Investigative Team demonstrated a means of holding state-aligned actors accountable when exerting personal jurisdiction is difficult. Next, Ukraine proved to potential criminal defendants – like Adolf Eichmann or Abu Ahmed Khattalah discovered in their own time – that individuals involved can be captured from locales they assumed were safe. Finally, Bellingcat’s performance demonstrates that networks of individuals, linked only by interest and high speed internet connections, can create intelligence analysis once only thought to exist within state-level intelligence agencies.
While none of these developments can repair the damage or erase the tragedy of July 2014, they all represent incremental changes in global and legal affairs. In certain cases, state power is being eroded through crowdsourced intelligence, in other cases, states are finding new means of addressing international grievances. The tragedy of MH17 remains unresolved, however. All that is certain is that its continuing aftermath will reveal new truths about governance and law in the 21st century.