Sunday, 1 January 2017

MH17: The framework of justice around MH17

Basic Dimension

         MH17: The framework of justice around MH17

February 3, 2016.
Independent blog.

Why the Dutch prosecutor has a suspicion of murder in the MH17 case !

[How can the Dutch prosecutor look into the heads of the people in the BUK and know they intended to kill the passengers of a civil aircraft? Couldn’t it be a mistake of the crew in the BUK? Was it more likely they believed a military aircraft was their target?]

In this article we arbitrarily judge the separatists as the perpetrators of the downing of MH17. It might be not the most likely scenario. It is only useful for analyzing concepts as 'recklessness', 'inexperience' and 'concentration'. Recklessness will be the key element in the assessment of the perpetrators. 

There is a difference between murder and war crime. In case of MH17 war crime is just a special case of murder but 'killing civilians' is difficult to prove as the intention of the separatists. 

[A war crime is a gross violation of the laws and customs applicable in armed conflicts, also known as international humanitarian law, which gives rise to individual liability under international law.]

In case of MH17 war crime is the intentional killing of civilians within a setting of civil war.

The plain killing of people (air passengers) by persons not from the Ukrainian army (separatists) is murder under Ukrainian law. And officially we still speak of Ukrainian law in Donetsk. So, if it was the intention to kill people (Ukrainian soldiers) but it turned out to be other people (passengers of a civil airliner), then legally it will still be plain murder under Ukrainian law. 

If the main indictment or greater criminal offense would be 'war crime' but we already know in advance it definitely was not the intention of the separatists to kill civilians, then subsidiary or as lesser included offense it must come down to 'murder'. Then, overseeing this it is better to impose as greater criminal offense 'murder' in the first place and 'wrongful death' as lesser included offense.

And in the unlikely case 'murder' (on Ukrainian soldiers) was not the intention, the lesser included offense comes down to "recklessness" or worse, to an accident with collateral damage. Then the prosecutor lost his case and separatists would come away with an accidental launched BUK in a military exercise. 

But we will argue in all cases there is no room for recklessness, inexperience or lack of concentration. We definitely must not accept a jurisdiction with fake concepts as 'recklessness', as the softy law of the Netherlands.

Below we will show in an arbitrary scenario MH17 was shot down accidentally, when the crew aimed on an II-76 of the Ukrainian army. But remember, there are better scenarios. 

For better understanding, we first inspect the Dutch Criminal Code:

- 1: Murder (Moord)Article 289 of the Dutch Criminal Code:

[He who deliberately and with premeditation deprives another of life, is punished with a life sentence for murder or a term of imprisonment not exceeding thirty years ...]

Separatists neither deliberately nor with premeditation were planning an attack on MH17. In this scenario they only deliberately and with premeditation were downing a military aircraft: II-76. So, at first glance their downing of MH17 is no crime of war (killing civilians purposely) but an accident.

But remember accidents always have certain likelihood, in traffic mostly the Poisson distribution in which accidents are seen as independent events over persons and the chance on an accident is dependent on the exposure time (duration of exposure) to the traffic. 

Now between MH17 and the crew of the BUK there was no conflict relation and we skip the Poisson distribution. We are left with accumulating effects of learning within persons who were the crew of the BUK. The more experience they got with passenger planes flying over the less chance an accident would happen. Unless they thought to be justified to take increasing risks firing BUKs just because of this increased experience. This increase of experience cancels the concept of 'recklessness' which in my opinion is not applicable to the crew of the BUK. This assessment will be a very important element in judging this case.

- 2: Manslaughter (Doodslag)Article 287 of the Dutch Criminal Code:

[He who intentionally deprives another of life is as guilty of manslaughter punished by imprisonment not exceeding 15 years...]

Separatists intentionally tried to deprive Ukrainian soldiers of life, but they 

accidentally killed the wrong persons, at first sight this is no manslaughter, since it was not intentional to kill passengers. (This is a shit argumentation.)

Now we must think about the likelihood of 'accidentally'. What is meant with accidentally in terms of chance, in terms of hazardous coincidence between missile and MH17? 

[[How can the Dutch prosecutor look into the heads of the people in the BUK and know they intended to kill the passengers of a civil aircraft? Couldn’t it be a mistake of the crew in the BUK? Was it more likely they believed a military aircraft was their target?]]

If the prosecutor somehow can calculate the degree of experience of the crew of the BUK (or separatists in general), already gathered in the downing of 20 other planes, he might exclude recklessness, and replaced this by rational calculation. If he succeeds, the downing of MH17 must be judged as plain murder on civilian air passengers, as a war crime in a civil war, or as plain murder under Ukrainian law.

- 3: Involuntary manslaughter (dood door schuld):

The unlawful killing of a human being in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection'.

(Well, this stripped down version of manslaughter could fit. Maybe the unlawful killing of air passengers by separatists might be seen as an unlawful fight for freedom and they were somewhat incautious.)

- 4: Wrongful death (Dood door schuld): Article 307 of the Dutch Criminal Code:

He on whose fault is due the death of another shall be punished with imprisonment or imprisonment not exceeding nine months or a fine of the fourth category.

(Maybe separatist were only somewhat incautious and only made a human error in the execution.)

Wrongful death: When a person dies or is killed due to the negligence or misconduct of another, including murder, the surviving members of the victim's family may sue for "wrongful death." 

Wrongful death (English): The taking of the life of an individual resulting from the willful or negligent act of another person or persons.

Wrongful death also named: Involuntary manslaughter or negligent homicide or culpable homicide.

Mea culpa (guilty): a statement in which you say that something is your fault.
Culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. 


Now we see we are missing something: morality. That is why we add war law with the distinction between morally justified killing and morally unjustified killing in next 
cross table:

Further internationally has been agreed a deliberate and with premeditation planned action to kill civilians in a war zone is always immoral. That is what we call 'war crimes'. We also agreed the humanitarian treatment of prisoners of war is universal and mandatory.

Concluding: in peace time murder is a MORALLY UNJUSTIFIED, deliberately and with premeditation planned action to kill a person. 

But in war time murder can be a MORALLY JUSTIFIED, deliberately and with premeditation planned action to kill a person. 

At last we add 'recklessness': not thinking about dangerous consequences of what you are doing.

Reckless: Acting or done with a lack of care or caution; careless or irresponsible.

Synonyms: recklessrashfoolhardytemerarious

Now we have a very simplified model for our discussion of the framework of justice of MH17.

Working with this simplified model of sorts of killings we fill in possible perpetrators of the downing of MH17:


Keeping open the airspace for civil aviation in a civil war zone is the incitement of war crimes by conditional intent (dolus eventualis) with probability consciousness. Hence, Ukraine is fully guilty of war crimes, incitement to murder (war crimes against civilians) within a war strategy, even though Ukraine may not itself have downed MH17.

Dolus Eventualis refers to where a perpetrator foresees indirect consequences as a possibility. The legal definition of Dolus Eventualis is Awareness of the likely outcome of an action.

Ukraine deserves the full model of incitement to killing of civilians: War crime:

The incitement of war crimes by conditional intent (dolus eventualis) with probability consciousness:

Ukraine had been warned by already 20 shot down planes at lower height, but also by the YouTube film of Elena Kolenkina at JUNE 21, 2014a month (!) before MH17 was shot down:

[- Elena says SU-25’s under the cover of civilian aircraft dived down, dropped their bombs and rose again in hiding, so they could not be touched by the separatists:]

[(1:32/2:14). This means it was a provocation; they wanted the self-defense force to shoot down an airliner so that the militias can be declared to be terrorists who shoot down airlines. Hundreds of passengers would have died; it would have been a huge catastrophy.]

[- But suppose the separatists only had Manpads to 3.5 km at their disposal while airliners flew about 10 km altitude. Then they had no story and no reason to put this video on YouTube. This means separatists already on June 18th IMPLICITLY ADMITTED the possession of Pantsirs, the little brother of the BUK with an altitude range of 15 km.]

Another warning possibly came from Europol to shut down civil aviation immediately, several days before the downing of MH17.

And of course it was very obvious the army order was a stupidity or malice, since Pantsirs and BUKs reach to 15 km alt:

- On July 15, it was announced by the military in a Public Statement since July 14 civil aviation was only allowed above 9,700 meters and military aviation was suspended. But actually military flights went on as usual.

All behaviour of Ukraine points to a systematic lie campaign.


Pantsirs (15 km alt) and BUKs (15 km) easily reach civil aviation altitude of 10 km. If delivered by Russia, this country is fully guilty of war crimes by incitement to murder (war crimes against civilians) within a war strategy, even though Russia may not itself have downed MH17.

Also Russia deserves the full model of willful killing of civilians: War crime:

The misinformation about the influx of weapons into Ukraine points to a systematic lie campaign of the Russians. But their remarkable reactions on the downing of MH17 point to random lying.


Remember the downing of MH17 by the separatists is a theoretical scenario, for so far nothing has been proven:

First as reminder: 'recklessness' means harming another person:

In criminal law, recklessness (also called unchariness) is one of the four possible classes of mental state constituting mens rea (the Latin for "guilty mind").

Recklessness: very careless; acting or done without any thought of the consequences.

We will argue 'recklessness' is not applicable to the separatists, except that they not even consulted flightradar before they downed MH17.

If the separatists have shot down MH17 with a BUK it is murder of - or war crime against - civilians under all possible circumstances and scenarios. On a daily basis they perceived about 75 chemtrails of civil airliners high in the sky what means with every launch of a BUK or Pantsir they took a certain risk to shoot down an airliner. They must have learned a lot and were experienced killers. Under all circumstances they are guilty of war crimes, the incitement to murder on air passengers within a war strategy.

We conclude, separatists were much to experienced with the downing of Ukrainian military planes to perceive their behavior as 'recklessness'. On the contrary they learned a job and are held to know what they were doing. They always knew civil planes were high in the sky. They learned to shoot fighter jets down from between the airliners. Mentally they must have developed a model about reality in which they consciously or unconsciously calculated the risks by which they managed to escape the downing of a passenger plane for so many months. 

Were they 'reckless'? Definitely not, they were on their way to professional killers. And because the qualification 'reckless' is pure nonsense the conclusion of wrongful death or 'not thinking about dangerous consequences of what you are doing' is an insult for causal reasoning. Judges will wipe away 'recklessness' from whatever party downed MH17.

So, factually and at least unconsciously separatists expected they once might shoot down an airliner. In their head they already had that likelihood available, as Elena confessed. They must have in-calculated an 'accidental' war crime with a high degree of probability awareness. They must have seen this as collateral damage.

Now the dilemma was on the one hand to prevent 'an accident with an airliner', while on the other hand had big chances to be forced to shoot down Ukrainian military planes. This is a well-known economic dilemma: the sliding scale of making as small as possible the risk of an accident with an airliner on the one hand and to make as large as possible the probability to shoot down Ukrainian military planes. At some point on this scale this must go wrong.

What risk can be taken without downing a civil air plane? That is the plain calculation
of chances of success at the costs of possible collateral damage of an accidental war crime. And that means the shooting down of a civil airliner must be seen as a consciously taken risk with a high degree of probability awareness and a growing likelihood. 

Hence, we must conclude the downing of MH17 it not just an accidental incident but a calculated war crime, perversely seen as collateral damage. WHAT MEANS THIS IS DELIBERATE AND PREMEDITATED MURDER. 

If separatists have shot down MH17, they deserve the full model of willful killing of civilians: War crime:

If we would call this 'recklessness' then we deny the growing experience of the separatists. They were so eager to kill Ukrainian soldiers that the weight of lives of air passengers diminished to 'collateral damage'. But remember, if the lives of air passengers shrink to zero, than they mentally are already murdered.

Also in case the separatists were misled by the SBU to shoot down an alleged military plane, they willingly took the risk to accidentally shoot down a civil airliner. No 'recklessness' in a separatist scenario is possible.

And just in case a crew member of the BUK accidentally pressed the wrong buttons in an exercise it will not be 'wrongful death' because the risks of war crime were well known and very clear. So for the separatists, the accidental downing of MH17 cannot be seen as a reckless act but must be seen as deliberately taken collateral damage. This under all circumstances.

Obviously 'recklessness' is not accepted in International Law to prevent war criminals to let their killings look reckless, and rightly so.

@Basic Dimension 13:15
Vrijspraak voor een oorlogmisdaad volgens de Geneefse Conventie, that is.

tipo | 18-04-16 | 14:18 


[Maybe one of the reasons for suspicion of murder is that an International Criminal Tribunal does not recognize a reckless act. However Iran went to the International Court of Justice and sued the United States after they downed an Iran Air Airbus.]

Iran was not in war with the United States, which state never will be punished and places itself above any law. But there definitely is a civil war going on in Ukraine. 

[This Dutch blog has some interesting information as well. The most likely option for a court case is under Dutch law but with international judges.]

But then they opportunistically first have to change Dutch law completely:

Article 552y (main points)

The Minister of Justice refuses a request from a foreign authority (countries of victims) to institute criminal proceedings immediately if it can be established it refers to a foreigner (alleged perpetrator) who has his permanent place of residence outside the Netherlands (Ukraine or Russia), or the Minister refuses the request if the alleged act of criminality is of a political nature or is a military offense;

Now, let's analyze the Dutch blog:

Cedric Ryngaert is a professor of International Law at the University of Utrecht.

It is his opinion since most of the victims are of Dutch nationality; the Netherlands inevitably comes into the picture to cover the whole process against the alleged perpetrators for all victims from all countries. The Netherlands has implemented the security research and leads the joint investigative team (JIT), the Dutch penal code makes trial for murder possible, even in the physical absence of the perpetrator, and the Netherlands is internationally known for its impartial and independent judiciary. 

[Well, maybe better first look DSB-law below, BD]

The Netherlands seems able to bring the MH17 process to a successful conclusion. In order for this process to gain legitimacy, however, it seems advisable to involve other countries in the trial.

Professor Ryngaert wonders if it is at all a good idea to have the alleged perpetrators - if they are ever identified - to trial in the Netherlands, now the Security Council in July 2015 failed to establish an international tribunal. He agrees with Prof. Ferdinandusse the ICC (International Criminal Court in The Hague) is not a good option, especially since international criminal law, unlike domestic criminal law, does not know the concept of "recklessness"  (presumably the perpetrators were "reckless" in firing the Buk missile and they did not have the intention to bring down the MH17). Given the political tension in Ukraine, particularly the anti-Russian smear campaign, a trial seems neither opportune to Professor Ryngaert.

[Well well, this is a remarkable opinion, but what to think about the smear campaign of the Dutch State Propaganda Channel NOS against the Russians? Meanwhile most of the Dutch are convinced the Russians have shot MH17. Several weeks ago desperate relatives pleaded the government to encourage JIT to pick up the Russians as soon as possible.]

Professor Ryngaert proceeds: "The court might consist of partly Dutch and partly foreign judges. The appointment of a judge with the Russian nationality seems to him in this necessity. This increases the chances that Russia will cooperate with the tribunal, regarding the gathering of evidence and the possible extradition of the suspect (s). This, because it is Russia's unwillingness to cooperate what is the Achilles' heel of every conceivable MH17 Tribunal.  For such a structure, the adoption of a specific law is obviously necessary, but this can happen quickly when there is a political will.

[This is a complete reverse of reality. Because of the scientifically corrupt organization of the investigation into MH17, the Russians of course refused the International Tribunal to save JIT by the bell. Now JIT must plunge into the ravine with their lame and faulty evidence. But remember, in the future Russia might ask for an International Tribunal if at a certain moment quite a different scenario about the downing of MH17 appears to be true.]

Now, to be honest and you were Russian, would you accept such a DSB as reliable? That is the law professor Ryngaert better can change. Only point c. is valid: 
Rijkswet Onderzoeksraad voor Veiligheid (National Law Dutch Safety Board):

[The DSB provides accountability using these reports over its investigation. Information obtained during the investigation which is not documented in the report, is not public. This is the reason DSB can only explain what is documented in the report and cannot answer questions outside what is documented in the report”]

This must be a joke if not circular reasoning, since information obtained during the investigation which is not documented in the report, still is integral part of the investigation. Unpublished information plays a role to determine published information.

Although this information has not been published DSB still must be held accountable for information they left out of the report.

But how is the law?

Artikel 57
De raad neemt eveneens door hem vergaarde informatie niet in het rapport op voorzover het belang daarvan niet opweegt tegen de volgende belangen:
a. de betrekkingen van het Koninkrijk of de landen van het Koninkrijk met andere staten of met internationale organisaties;
b. de economische of financiële belangen van het Koninkrijk, van de publiekrechtelijke lichamen van de landen van het Koninkrijk, of van de in artikel 1a, onderdeel c en d, van de Wet openbaarheid van bestuur bedoelde bestuursorganen;
c. de opsporing en vervolging van strafbare feiten;

Article 57:
The board does not report about gathered information, which is not worthy to report in relation to its importance to the following interests:
a. the relations of the Kingdom or the countries of the Kingdom with other States or international organizations;
b. economic or financial interests of the Kingdom, of the public bodies of the countries of the Kingdom, or in Article 1a, c and d of the Open Government Act provided for administrative bodies;
c. the investigation and prosecution of criminal offenses;

Only point c. is valid.


The downing of MH17 definitely was no mistake. IMO it has been a premeditated and intentional war crime (mass murder on civilians).

The downing of MH17 was no accident. In the first place Ukraine is extremely guilty of dolus eventualis what refers to where a perpetrator foresees indirect consequences as a possibility: Awareness of the likely outcome of an action.

Ukraine is extremely guilty of immoral behavior not to have closed its airspace for civil aviation. This is pure inciting war crime since Ukraine must have foreseen mass murder on air passengers.

But there is more. I do not believe the separatists had the intention to shoot down a passenger airplane. So in this case war crime cannot be proven.

Also I do not believe someone pressed the wrong button. Also I believe separatists and Russians had no motive.

But maybe separatists effectively were the perpetrators. If separatists downed MH17 and also had the intention to shoot down a plane they very likely are premeditated and intentional mass murderers of Ukrainian military’s. And it does not matter that it later turned out to be air passengers. So, if they had no intention to shoot a passenger plane than it will not be war crime but mass murder.

But separatists and Russians are definitely guilty of the incitement of war crimes if they brought Pantsirs and/or BUKs into Ukraine, just because of dolus eventualis. They must have expect to kill air passengers (Elena Kolenkina).

Ukraine is the only country with a motive but it is off topic to explain here further.

[“it’s difficult to find a black cat in a dark room, especially when it’s not there.” ]

Well, I see a big elephant in the room, which you apparently have missed.

De Dubbelspion van MH17

    Motieven neerhalen MH17


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