Malaysia Airlines MH17 Trial: Malaysia or Netherlands to Convene Trial, Not ICC

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By Esther Tanquintic-Misa | July 31, 2014 5:12 PM EST

The trial of those responsible for the downing of Malaysia Airlines MH17 over eastern Ukraine on July 17 will be convened in either a Malaysian or Dutch court, but not at the International Criminal Court (ICC) in The Hague.

REUTERS/Olivia Harris
People hug as they leave an area designated for family members of Malaysia Airlines flight MH17 passengers, while waiting for more information about the crashed plane, at Kuala Lumpur International Airport in Sepang July 18, 2014. The Malaysia Airlines Boeing 777 was brought down over eastern Ukraine on Thursday, killing all 295 people aboard and sharply raising the stakes in a conflict between Kiev and pro-Moscow rebels in which Russia and the West back opposing sides. REUTERS/Olivia Harris

The ICC is a permanent international tribunal that prosecutes individuals for genocides, crimes against humanity, war crimes, as well as crimes of aggression. It may take its proceedings anywhere, but may only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes.

In the case of the downed Malaysia Airlines MH17, which killed 298 passengers of 12 different nations, Dutch Justice Minister Ivo Opstelten believed it is unlikely the countries involved "will not be able or willing to lead the investigation and prosecution."

The world strongly believed the culprit for the aviation disaster was Russia, which was supplying weapons to pro-Russian separatist rebels.

Navi Pillay, U.N. High Commissioner for Human Rights, said the fate of Malaysia Airlines MH17 violated international law and is tantamount to a war crime.

"Given that this was an attack on passengers in a civilian plane then there is a clear argument that it should be investigated for a grave breach of the Geneva Convention," Michael Caplan QC, a well-known and highly respected solicitor practising in the areas of domestic and international, criminal and regulatory law, wrote on portal lexology.com.

Malaysia also wants to grapple the heads of the perpetrators, simply because it involved a Malaysian plane as well as that Malaysian lives were claimed too.

"We want to have the first bite in bringing the perpetrators to book," the New Straits Times quoted Malaysian Attorney-General Tan Sri Abdul Gani Patail.

Although not necessarily yet doing heads or tails as to which country should hold the first trial, experts believed the highest essential is to know first who shot down MH17.

And that by itself could take long to establish.

"Well, you certainly have to identify an individual or individuals who can be said to be responsible for the shooting down of the plane," Gideon Boas told ABC's "The World Today."

"And that can be by a variety of means: it can be the person who actually fired the rocket; it can be a commander who ordered that the rocket be fired; it can be a political leader who has effective control over the people responsible for the actual firing of the rocket."

Boas was a senior legal officer in the war crimes case involving former Yugoslav president Slobodan Miloševiæ.

On Wednesday, the clashes between pro-Russian separatists and Ukrainian forces again hindered the international experts trying to access and recover remains of the victims in the crash site in Ukraine.

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(Photo: REUTERS/Olivia Harris / )
People hug as they leave an area designated for family members of Malaysia Airlines flight MH17 passengers, while waiting for more information about the crashed plane, at Kuala Lumpur International Airport in Sepang July 18, 2014. The Malaysia Airlines Boeing 777 was brought down over eastern Ukraine on Thursday, killing all 295 people aboard and sharply raising the stakes in a conflict between Kiev and pro-Moscow rebels in which Russia and the West back opposing sides. REUTERS/Olivia Harris
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