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by John Helmer, Moscow<\/p>\n
The Dutch Government has devised an evidence-proof scheme for ensuring the trial of the Russian government for the destruction of Malaysia Airlines Flight MH17 will end in a conviction.<\/p>\n
This scheme will work without evidence to prove that the four men accused of the crime of shooting down the aircraft, killing the 298 passengers and crew on board on July 17, 2014, intended to kill; or even intended to fire the missile which allegedly brought MH17 down.<\/p>\n
The Dutch scheme is evidence-proof because no evidence will be needed, not from US satellite photographs which are missing; nor NATO airborne tracking which shows no missile; nor Ukrainian Security Service (SBU) evidence which has proved to have been fabricated, and in the case of Ukrainian witnesses for the prosecution, threatened, tortured or bribed.<\/p>\n
The scheme is also evidence-proof because the Dutch Prime Minister has told the Dutch Minister of Justice to order the state prosecutors to tell the state-appointed judge that he must convict the Russians if he finds as proven that MH17 crashed to the ground in eastern Ukraine; that everyone on board was killed; and that the four soldiers accused \u2013 three Russians and one Ukrainian \u2013 were on the ground fighting.<\/p>\n
International war crimes lawyers are calling this a legal travesty. It was presented in court near Amsterdam by Dutch state prosecutor Thijs Berger on June 10. It has gone unnoticed in the mainstream western media. Russian reporters following the trial have missed it. The scheme was first reported in English and Russian by a NATO propaganda unit on June 12.<\/p>\n
As a prosecutor of the Dutch War Crimes Unit, a state entity, Berger has been employed in the past to prosecute the targets of wars fought by the Dutch, alongside NATO and the US, in Yugoslavia and Afghanistan. In Europe his group prosecuted war crimes alleged by the NATO alliance in its war on Serbia from March to June of 1999. \u00a0A recent\u00a0report\u00a0<\/a>[2]<\/sup>to which Berger contributed, entitled\u00a0Universal Jurisdiction Annual Review 2019,\u00a0<\/em>\u00a0identifies a case which Berger pursued of war crimes in Afghanistan; those alleged crimes were not of the US and allied forces in Afghanistan, but of the local Afghans defending themselves.<\/p>\n For his presentation to presiding judge Hendrik Steenhuis, Berger read from a multi-page script authorized by his superiors in the Dutch Ministry of Justice and Security. They and he \u00a0repeatedly made the mistake of calling the charges in the prosecution\u2019s indictment \u2013 Articles 168, 287 and 298 \u2013 provisions of the Dutch Code of Criminal Procedure. This is the procedure code; its provisions are called articles in the original Dutch, but sections in the\u00a0English version.<\/a>\u00a0[4]<\/sup><\/p>\n The charges of the indictment are from the Dutch Criminal Code. They are called articles in court; they are called articles in the\u00a0Dutch statute<\/a>\u00a0[5]<\/sup>\u00a0\u00a0but sections in the official English translation.<\/p>\n For analysis of how the prosecution has manipulated both the Criminal Code and the Code of Criminal Procedure in the MH17 trial preliminaries, read\u00a0this<\/a>\u00a0[7]<\/sup>.<\/p>\n \u201cThe scope of the indictment,\u201d Berger began his legal argument, is that together, the four defendants \u2014 Igor Girkin (Strelkov), \u00a0Sergei Dubinsky, Oleg Pulatov, \u00a0who are Russians, and Leonid Kharchenko, a Ukrainian \u2013 played \u201ca steering, organizing, \u00a0and supporting role in deploying the BUK-Telar [missile and radar unit]\u201d to shoot down MH 17 (Min 3:25:22). They were members of an \u201carmed group\u201d engaged in \u201carmed struggle, the purpose being to shoot down an aircraft\u201d (Min 3:27:20-21). Note the indefinite article \u2013\u00a0an<\/em>\u00a0aircraft. \u00a0The prosecution is charging the four with capital crimes for defending themselves from attack by the Ukrainian Air Force. This, however, is not mentioned by the prosecution.<\/p>\n \u201cThey are not being prosecuted,\u201d Berger went on, \u201cas the persons who actually carried out the firing process\u201d (Min 3:38:22). \u201cWe do not need evidence as to the exact cause of events in order to be able to judge the accused\u201d (Min 3:28:27). Homicide or murder, Berger conceded, is in Dutch law \u201cdeath caused intentionally\u201d (Min 3:29:15). \u00a0But the crimes which must be judged by Steenhuis and his panel of The Hague District Court, he claims aren\u2019t homicide in the usual \u00a0legal sense. \u201cThe exact course of events need not be established\u201d (Min 3:30:43), Berger told Steenhuis. So the prosecution does not need to prove what happened. \u201cThat the missile which hit the MH17 could possibly have been meant and intended for a military aircraft doesn\u2019t change these facts\u201d (Min 3:31:17).<\/p>\n \u201cNone of the charges in the indictment requires intention concerning the civilian nature of the aircraft or the occupants. The crimes in the indictment forbid the downing of any aircraft; this is Article 168 of the Code of Criminal Procedure [sic]; and also forbid causing the deaths of others under Articles 287 and 289 irrespective of whether the aircraft has a military or civilian status, and an error in the target doesn\u2019t really make a difference for the evidence that these crimes have been committed. \u00a0So no evidence is required that the accused should have had the intention to shoot down a civilian aircraft\u201d (Min 3:32:00).<\/p>\n \u201cIt was their intention to down a military aircraft of the Ukrainian Air Force\u201d (Min 3:32:28), Berger claims his evidence of the SBU telephone tapes and witnesses proves. \u00a0\u201cThose who intend to shoot down a military aircraft and subsequently, \u00a0accidentally, \u00a0hit a civilian aircraft are guilty of causing an aircraft to crash according to Article 168 of the Code of Criminal Procedure [sic]; \u00a0but also guilty of murder of the occupants according to Article 289 of the Code of Criminal Procedure [sic]\u201d (Min 3:33:04).<\/p>\n In a regular court of law in England, Australia, Canada or the US, a prosecutor\u2019s legal argument is always presented with explicit references to the case law. That\u2019s the accumulation of judgements by courts going back as far as the history of the crime and of the statute can be traced. These are the precedents which, in international law and in Dutch law too, must be followed by judges hearing cases to which these precedents apply. \u00a0This reflects the accepted notion that law is cumulative, and that judges administer and interpret that law; they don\u2019t issue personal opinions or preferences.<\/p>\n Berger didn\u2019t identify any Dutch case law or provide the court with precedents in previous cases decided by the Dutch courts.<\/p>\n The reason is that there are none , explains a veteran Dutch judge who was asked this week to identify the case law on Article 168. The judge replied: \u201cIt\u2019s sufficient to establish that the defendant had the intention to take down some aircraft and that he should have seriously taken into consideration the chance that he would hit an aircraft such as the MH-17. That\u2019s called conditional intent \u2014\u00a0voorwaardelijk opzet<\/em>\u00a0in Dutch\u2026\u00a0Answering this question [of precedents] took a bit more time. I couldn\u2019t find any case law that would be relevant to the issue. Article 168 is not used very often.\u201d<\/p>\n Conditional intent doesn\u2019t exist in Anglo-American law. But in Dutch law, the concept has not (repeat never) been applied to cases of warfare, or in situations of military engagement where men are attacking and defending themselves. For a Dutch review of the court precedents for application of\u00a0voorwaardelijk opzet<\/em>\u00a0to deaths caused by a drunk driver and a poisoning, read\u00a0this \u00a0<\/a>\u00a0[8]<\/sup>\u2013 Sect. 3.3.1. \u00a0Fatal traffic offences committed by drunken drivers are the typical homicides in which Dutch prosecutors apply the doctrine of conditional intent; the case law and precedents are reviewed\u00a0here<\/a>\u00a0[9]<\/sup>. \u00a0\u00a0No Dutch lawyer, judge or court has ever applied this to warfare.<\/p>\n Berger knows this; so does Steenhuis. They also know there is voluminous case law in the international courts dealing with similar facts to those of the MH17 case and of the combat in which the four defendants were engaged; for a sample Dutch law review, read\u00a0this<\/a>\u00a0[10]<\/sup>.<\/p>\n Again, \u00a0Berger ignored what no prosecutor outside The Netherlands would attempt in front of a judge. \u201cWe are aware,\u201d Berger told Steenhuis, \u201cof academic comments that imply that Article 168 would require intention in killing civilians [Min 3:33:04]. But this is incorrect. Article 168 does not require any intention for the death of the occupants\u201d (Min 3:33:34).<\/p>\n The NATO propaganda unit Bellingcat repeated this claim in a\u00a0publication\u00a0<\/a>[11]<\/sup>two days after Berger\u2019s presentation. The Article 168 argument, repeated from Berger\u2019s script, will prove to be a \u201cboomerang\u201d for the Russian government, NATO officials are now claiming. \u201cIt is only a question of time, therefore, that the Dutch prosecution brings murder charges against Russian top military commanders. \u00a0Unlike the case with the 4 defendants, they would easily have obtained combatant immunity, if only they \u2013 and their supreme commander \u2013 had admitted to being part of the war. But they \u2013 and he \u2013 continuously denied, and this alone makes immunity impossible. Also unlike the 4 defendants, the political price that Russia will pay such indictments will be much higher. It is one thing for 3 Russian \u2018volunteers\u2019, forgotten by most, to spend the rest of their life holed up at home and afraid to take any trip abroad. \u00a0It\u2019s an altogether different story when top Mod [Ministry of Defence] \u00a0and FSB officials \u2013 and maybe even a minister \u2013 are charged with murder of 298 civilians and end up on the Interpol red-notice list.\u201d<\/p>\n International lawyers already before the European Court of Human Rights are arguing that the \u201cboomerang\u201d strikes the government in Kiev first, because it was ordering combat in eastern Ukraine, including orders for bombing and strafing by the Ukrainian Air Force, and at the same time refusing to close the airspace to civilian aircraft. The case of Denise Kenke, on behalf of her father, \u00a0MH17 victim Willem Grootscholten,\u00a0explains<\/a>\u00a0[12]<\/sup>.<\/p>\n Canadian war crimes attorney Christopher Black (right) says the Dutch prosecution is deliberately ignoring Dutch law, \u00a0as well as international law. \u201cWhat Berger is stating is a case of criminal negligence, not murder. The general principles of criminal law apply to this case as much as to any \u201c\u2019Any person who intentionally and unlawfully\u2019\u2014 that\u2019s the key phrase in the wording of Article 168. Its use there means specific intent.\u00a0Specific intent<\/em>. A general intent to use missiles on something is not good enough in this case. It is telling that [Berger] does not make the distinction between specific intent versus general intent. That indicates the prosecutors don\u2019t think they can prove the necessary specific intent. And if the plane had been shot down by the accused thinking it was engaged in an attack on them or masking [a Ukrainian Air Force] attack on them, then the court cannot convict. That\u2019s because the facts would show an accident or a justifiable act of self-defence.\u201d<\/p>\n In Dutch courts, there are several of what are called \u201cfull defences\u201d to indictments for murder. One is insanity;\u00a0another<\/a>\u00a0[14]<\/sup>\u00a0is duress. Self-defence is the third full defence; it is spelled out in Article 41 of the Criminal Code:<\/p>\n![\"\"](\"http:\/\/johnhelmer.net\/wp-content\/uploads\/2020\/06\/4-%E2%80%94-%D0%BA%D0%BE%D0%BF%D0%B8%D1%8F-%E2%80%94-%D0%BA%D0%BE%D0%BF%D0%B8%D1%8F-7.png\")
<\/figure>\nProsecutor Thijs Berger\u00a0announces<\/a>\u00a0[3]<\/sup>\u00a0the evidence-proof scheme of Article 168. \u00a0The legal loophole is spelled out over six minutes \u2013 Min 3:31:00 to 3:37:00.<\/code><\/p>\n![\"\"](\"http:\/\/johnhelmer.net\/wp-content\/uploads\/2020\/06\/4-%E2%80%94-%D0%BA%D0%BE%D0%BF%D0%B8%D1%8F-%E2%80%94-%D0%BA%D0%BE%D0%BF%D0%B8%D1%8F-8.png\")
<\/figure>\nSource:\u00a0The Dutch Criminal Code<\/a>\u00a0[6]<\/sup><\/code><\/p>\n![\"\"](\"http:\/\/johnhelmer.net\/wp-content\/uploads\/2020\/06\/4-%E2%80%94-%D0%BA%D0%BE%D0%BF%D0%B8%D1%8F-%E2%80%94-%D0%BA%D0%BE%D0%BF%D0%B8%D1%8F-9.png\")
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\ncase. As for the burden of proof, the court has to be convinced on the basis of the lawful evidence presented that the accused has committed the crime he is accused of.\u201d Black is pointing out that the prosecution\u2019s evidence from the Ukrainian SBU is unlawful. For analysis of evidence tampering by the SBU,\u00a0\u00a0read more<\/a>\u00a0[13]<\/sup>.<\/p>\n![\"\"](\"http:\/\/johnhelmer.net\/wp-content\/uploads\/2020\/06\/4-%E2%80%94-%D0%BA%D0%BE%D0%BF%D0%B8%D1%8F-%E2%80%94-%D0%BA%D0%BE%D0%BF%D0%B8%D1%8F-10.png\")
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