Rebel video of MH17 site is expected to be a ‘game changer’ in bringing those responsible to justice

SICKENING new video smuggled out of Ukraine has exposed details of the MH17 crash and now Russia must act.

SICKENING new video showing Russian backed rebels rummaging through the wreckage of flight MH17 in Ukraine is “enormously significant” and a game changer for investigators, says an international law expert.

The video smuggled out of the Ukraine and provided to NewsCorp reporter Charles Miranda, shows the rebels at the site immediately after the crash of the Malaysia Airlines plane on July 17 last year, which killed 298 people.

While it’s widely speculated that Russian backed rebels shot the plane out of the sky by accident using a surface-to-air missile supplied by Russia, the world superpower has denied any responsibility so far.

Associate Professor Gideon Boas of the Monash Law Faculty, says the new video is “enormously significant” in identifying who was responsible for the crash.

“I think one of the things it does is provide very strong evidence, not only of the nature of the class of people responsible for shooting down the plane, but also identifies the individuals by face, so I think it’s definitely a game changer,” Prof Boas said.

He argued that the video makes it harder for Russia to deny the plane was shot down by anti-government rebels and that it was shot by a surface-to-air missile.

“It’s very difficult for it now to maintain an alternative theory about how the plane crashed, and that there shouldn’t be a tribunal set up to try those responsible.”

Australia, Belgium, Malaysia, the Netherlands and Ukraine are pushing for the United Nations to set up an international criminal tribunal to prosecute those responsible for the downing of MH17.

But the tribunal cannot be set up without the support of Russia, as it requires the agreement of all members of the United Nations Security Council.

Russia has already indicated it would not support this tribunal.

Prof Boas said that the new video footage will place a lot more pressure on Russia to agree.

“I think there’ll be enormous pressure on it to accede to the tribunal in light of what you’ve seen on the video, more so than was before that video was available,” he said.

“The video confirms the theory that anti government Ukrainian rebels shot it (the plane) down thinking it was a Ukrainian jet plane. Because of the discussion of the rebels and identification of the faces, the circumstances that they came to the scene, what they were there for, and the orders to shut down the filming, it’s very strong approximate evidence.

“I think even if Russia vetos the resolution to set up such a tribunal, there will still be enormous pressure for criminal investigation and prosecution, sooner rather than later.”

Prof Boas said there were a number of options to prosecute individuals identified even if a tribunal was not formed, and there was also the possibility that Russia could agree to compensation, regardless of whether it acknowledged any responsibility for the act.

The fact that the video was smuggled out of Ukraine was also an encouraging sign.

“Somebody provided the video, so obviously there is some sympathy or concern, and obviously someone is prepared to provide evidence and that suggests that a properly conducted investigation has a much stronger prospect of succeeding,” Prof Boas said.

Investigators probing the downing of Malaysia Airlines Flight 17 have been provided with evidence that it was a Russian brigade from Kursk that brought down the plane, but determining who gave the order will prove much more difficult.

Video clearly shows the faces of some of the men at the crash scene in Ukraine. Picture: Supplied

A year on from the crash, the Dutch Safety Board, which has coordinated the investigation, is yet to present conclusive evidence as to the cause. A preliminary report published last year found the plane had been brought down by a “large number of high-energy objects”, while a top secret draft of the final report, which won’t be released publicly until October, was last month sent to various national transport agencies, including Australia.

The final report will reveal whether it’s possible to establish who was responsible for the crash.

MOUNTING PRESSURE

Prime Minister Tony Abbott said this morning that the footage highlighted the crash was an atrocity and that those who shot it down showed “reckless indifference”.

“This was not an accident, (the plane) was deliberately shot down by Russian backed rebels, we think, using Russian backed missiles,” Mr Abbott told ABC this morning.

“I’m not suggesting that the Russian president knew anything about this in advance,” he said.

Based on conversations he had with Vladimir Putin last year, Mr Abbott said the Russian president was horrified about the crash.

Mr Abbott said it would reflect enormous credit on Russia if it would give the investigation its full cooperation, and if the geopolitics of eastern Ukraine could be set aside so that the plane’s downing could be treated as a criminal matter.

Retired air chief marshal, Angus Houston, who coordinated Australia’s response to the crash, has also described the video as “significant evidence”, and said it would add to the Dutch Safety Board’s investigation.

“If we have strong compelling evidence ... it will make it that much easier,” for individuals to be held to account, he told the ABC.

“I have only seen it (the video) once but I was sickened by what I saw, clearly it was the first response to aircraft that they shot down.”

RELATED: Julie Bishop describes MH17 video as ‘sickening to watch’

WHAT ARE THE OTHER OPTIONS?

Most options to prosecute those responsible for the crash require Russian cooperation but not all of them do.

This week Australia backed a push for the United Nations to set up an international criminal tribunal and this would require Russia’s agreement as a member of the UN Security Council.

But there is another option for a different tribunal that could also be pursued.

Prof Boas said a special tribunal law court could be negotiated with the agreement of just the countries involved, similar to the one that convicted the Lockerbie bombers.

The Lockerbie court was set up in the Netherlands and the terrorists were tried by Scottish judges using Scottish law. Libya agreed to the formation of the court that eventually saw two Libyan nationals prosecuted for the bombing of Pan Am flight 103 on December 21, 1988, which killed 243 passengers and 16 crew.

This type of tribunal could try the individuals involved, and may not require Russian cooperation, depending on whether the individuals were currently located in Russia.

Individuals identified could also be prosecuted using local laws.

“If the crime was committed in Ukrainian airspace, there’s an option that Ukraine could prosecute those responsible as a domestic criminal offence,” Prof Boas said.

There is also a remote possibility that if the individuals were living in a different country, then they could be prosecuted by the country where they were residing. This would be a complicated process and would depend on whether specific laws existed within the country so is probably unlikely, but Prof Boas said it was possible.

Wreckage of MH17 just after the plane crashed. Picture: Supplied

Another option is that the UN Security Council refer the matter to the International Criminal Court. To do this, the crash would have to be categorised as a war crime or a crime against humanity, which Prof Boas said would also be difficult.

Meanwhile, if it was proved that Russia provided equipment that caused the crash, there was an option under international law for countries to take civil action against it for an “internationally wrongful act”. This could involve for example, Ukraine, Netherlands or Australia suing Russia in the International Court of Justice. Unfortunately, this would also rely on Russia agreeing to recognise the court’s jurisdiction.

While many of these actions seem unlikely, there still remains the possibility for Russia to pay compensation or provide other relief, and this could be done purely by negotiation. Russia could agree to pay compensation regardless of whether it admitted responsibility.

That is why international pressure will be extremely important to the outcome.

“It will ultimately come down to what diplomatic pressure can be put on Russia to acknowledge responsibility or to agree to some sort of compensation,” Prof Boas said.

“I think there will be a lot more pressure to act and to act quickly in light of the video.”

- With AAP