Crossing borders: A victimological perspective on the legal aftermath of the downing of flight MH17

Abstract

On 17 July 2014, Flight MH17 was downed over eastern Ukraine. This paper analyzes the public response to MH17 and its legal aftermath, focusing on the victimological elements in this process, connecting this to broader features of the victimology of international crimes, and highlighting the distinction between doing justice and countering injustice. The victimological elements in the criminal proceedings against four Russia-backed commanders and the proceedings against Russia are analyzed through three victimological concepts: (1) the nature of the victimization and its aftermath as storied events in victims’ lives, (2) the importance of communion/connection, and (3) the value of sufficient recognition of the epistemic qualities of victimization. The analysis shows that MH17 can be understood as a paradigm of an emerging practice within the scope of international criminal justice, addressing crimes that typically involve large groups of victims and are often legitimized by expressed concern with victims. The paper concludes that although victim-focused practices add complexity to the responsibilities of atrocity prosecutors and other justice actors, they help develop a victim perspective suitable for atrocity contexts. This approach allows trials to honor their value by providing a forum for addressing injustice, where traditional justice may remain elusive.

For Lis, in loving memory.

Introduction

On 17 July 2014, Malaysian Airlines aircraft Flight MH17, flying from Amsterdam to Kuala Lumpur, was downed over eastern Ukraine. On 17 November 2022, the criminal court of The Hague established that MH17 was shot down by a Russian Buk anti-aircraft missile launched from the Donbas, where Russia was fighting alongside separatist fighters against the Ukrainian armed forces (De Hoon, 2022a). ¹ All 298 occupants were killed. This included 15 crew members and 283 passengers, with 17 nationalities, of which 196 were Dutch. The lives of thousands of next-of-kin, friends, neighbors, and other loved ones were thrown into turmoil and many developed psychopathology such as post-traumatic stress disorder, depression, and prolonged grief disorder (Lenferink et al., 2017). Children lost parents, parents lost children, partners found themselves suddenly alone, and people lost family, friends, and colleagues. One catastrophic moment begat a new victim community, spread around the world, and now forever connected through loss.

After the crash, a Joint Investigation Team (JIT) was created to facilitate the border-crossing investigation. Negotiations with Russia on cooperation and accountability quickly proved futile: the Russians opted to deny their involvement and to actively create and spread disinformation. The next 11 years saw legal proceedings at various stages: criminal proceedings against four Russia aligned commanders in the Dutch criminal court; victim applications and inter-state applications against Russia at the European Court of Human Rights (ECtHR); and proceedings at the International Civil Aviation Organization (ICAO).

This paper analyzes the public response and legal aftermath of the MH17 disaster, focusing on the victimological elements in this process. Since the direct victims died, the public response was mainly directed at the indirect victims—the next-of-kin of those onboard MH17. In this paper and in line with procedural law that recognizes indirect victims as victims, we refer to the indirect victims as victims, and distinguish between direct and indirect victims only where necessary for readability. The paper is based on public sources and the first author’s personal observations. In various guises, the first author has been closely following the (navigation between possible) legal processes. Briefly, the following matters are pertinent. In the immediate aftermath of the crash, the Public International Law & Policy Group (PILPG) ² —of which the first author was then serving as co-director of its Dutch branch—was requested by members of the Dutch parliament to provide a legal analysis. This was the first of several contributions in advice and testimony throughout the subsequent years. In 2016, several next-of-kin reached out to the first author to assist them in understanding the legal developments, which has since led to intensive contact. This included, upon their request, a public lecture in 2017, attended by around 200 people, among which were over a 100 victims; participating in next-of-kin events; and being invited to join the next-of-kin at the 2022 ECtHR public hearing. She moreover advised the legal counsel of the victims in their third-party submission to the ECtHR. In addition, on the request of the victim organization Stichting Vliegramp MH17, the first author developed a website and books in Dutch and English explaining the ongoing legal proceedings (De Hoon, 2022b). She observed all hearings of the Dutch criminal proceedings, many of which with the next-of-kin at the public tribunal, was a frequent commentator on the proceedings through Dutch and international media, and (co)authored several academic and non-academic publications (De Hoon, 2017, 2019a, 2019b, 2019c, 2020, 2022a, 2022b, 2023; De Hoon et al., 2016). At all times, she identified herself as a scholar and explained that she would publish about how justice was sought after by and for the MH17 victims. This paper includes no confidential information or direct citations other than from public sources.

The case of MH17 can be understood as a paradigm of an emerging practice within the scope of international criminal justice (ICJ), concerning cases of domestic criminal actors, pursuing atrocity crimes committed elsewhere. These extraterritorial atrocity prosecutions address crimes that typically involve large groups of (in)direct victims and are often legitimized by expressed concern with victims and victim communities. This paper seeks to analyze the extent to which and how this is visible in the legal reaction to the downing of MH17. The central aim is to explore whether the MH17 legal proceedings (the criminal trial and other legal processes) are simply like any other (criminal) legal process writ large, or whether the MH17 proceedings signal a shifting understanding of the role of (criminal) justice actors in the public response to atrocity crimes and/or a repurposing of the goals and procedures thereof.

To do so, the paper first contextualizes (legal reactions to) MH17 within the wider (supranational) victimological literature. This will lead to the identification of three main issues as a conceptual victimological framework for evaluating the legal response to MH17: (1) the nature of the victimization and its aftermath as storied events in victims’ lives; (2) the importance of communion with/connection to others; and (3) the value of sufficient recognition of the epistemic qualities of victimization. Following this theoretical background, we will outline the course of the MH17 process. This will follow a roughly chronological order: the first victim-oriented public responses and the forming of a victim community in the immediate aftermath; the investigation and subsequent criminal prosecution proceedings against four suspects in the Netherlands; and the inter-state proceedings against Russia. In the following section, we will evaluate the MH17 legal proceedings against the three victimological concepts discussed in the next section. We conclude that MH17 offers insights to develop a victim perspective suitable for atrocity contexts that allows justice actors to contribute to countering the injustice done to victims in cases where doing justice is especially challenging.

Theoretical background

While the suspects of MH17 were—eventually—not charged with atrocity crimes (genocide, crimes against humanity, war crimes, crime of aggression) but with murder and downing a plane, from a victimological perspective, MH17 is better understood as an atrocity crime than a common crime. Although atrocity crimes can cover a large variety of victimological experiences, they typically share a number of features that also apply to MH17: mass victimization, state complicity, and lack of recognition of victims’ moral standing. These will be elaborated below.

These features of atrocity crimes conspire to underline the magnitude of the injustice visited on victims, while also spotlighting the limits of our processes of justice in providing a remedy. As we will develop later, this underlines the value of distinguishing doing justice and countering injustice as two overlapping, but distinct projects (Pemberton, 2019). The MH17 case offers tools to understand particular ways in which doing justice and countering injustice can be distinctly addressed in the emerging practice of ICJ.

More than with justice processes in the domestic sphere, ICJ appears motivated by the desire to place victims’ interests at the heart of the criminal justice response. As Chrisje Brants (2017) asserted about the International Criminal Court (ICC):

Rhetorically, if not in practice, the victim is now ‘the raison d’etre’ of the International Criminal Court (ICC) and numerous prosecutors, judges, international politicians and academics have claimed, and continue to claim, that victims of atrocities around the world are dependent on the ICC to give them a voice, that the Court acts in their name and that it exists primarily to provide justice for victims.

On one hand, such a view might be dismissed as aspiration, or indeed as a ‘rhetorical’ ploy, to assuage mounting critique of the endeavor of ICJ. On the other hand, emerging practice might also be driven in earnest by attempts by actors in criminal justice processes to go some way to bridge the distance between countering injustice and doing justice. Examining the extent to which the latter is the case, necessitates developing the relevant features of countering injustice in some more detail. The final section on the theoretical background will highlight the degree to which this turns on understanding the experience of injustice and its aftermath as (1) a storied event in victims’ lives; (2) recognizing the importance of communion with/connection to others; and (3) the acknowledgment of the epistemic qualities of victimization. These three features serve as a theoretical framework through which we will analyze the MH17 response.

Supranational victimology

While the specifics vary from case to case, a number of similar features cover most, if not all cases of this supranational victimology (Letschert et al., 2011; Pemberton et al., 2015), and offer means to set them apart from—at least the assumptions underlying—domestic crimes (see also Holá et al., 2022).

The first two are connected to common definitions of international crimes, and are also most clearly visible in the MH17 case. First, government agencies are involved in the criminalized actions. A state either partakes in or condones these acts, with prominent direct or indirect roles of government officials. Luban (2004) describes these scenarios as instances of ‘politics gone cancerous’. In the case of MH17, the crime was perpetrated by the Russian army, while the Russian government subsequently denied responsibility and rendered apprehending the offenders impossible.

Second, the definitions consistently highlight cases of mass victimization. Genocide refers to a ‘group’ that was inadequately protected; war crimes mention ‘a plan or a policy’ or the ‘large-scale commission of crimes’; crimes against humanity require a ‘widespread or systematic attack’ on a ‘civilian population’; and the crime of aggression is ‘directed against a state’ and thus its entire population. All these terms involve numerous victims, often in vast numbers compared with conventional crime: the 298 victims of MH17 also qualify on this count.

The third characteristic might not be a necessary element of the definition, but it becomes evident when examining the underlying reality. Victimization by international crimes is likely to concern situations in which perpetrators and/or the group to which the perpetrators belong deny the immorality of their actions. In many instances, they are likely to view their victims as criminals or even perpetrators of atrocities themselves (Noor et al., 2012; Waller, 2007), for instance, by labeling them as ‘enemies’ or dangerous ‘others’. This perception compounds the wrong done to victims, while it is often used by perpetrators to justify their actions. The actions of the Russian authorities in the case of MH17 might not amount to victim blaming to such a degree, although Russia actively tried to blame—and fabricated false evidence to that end—Ukraine, the intended victim of the Russian military actions, for downing Flight MH17. However, Russia’s full-scale evasion of responsibility was further compounded by attempts to recast the victims of MH17 as ‘merely’ collateral damage in the conflict between Russia and Ukraine and refusal to take any responsibility.

Doing justice and countering injustice

Each of the features of supranational victimology highlights the inherent difficulty and limitations of processes of justice in coming to terms with the victims’ firsthand experiences of countering the injustice suffered by victims in criminal justice processes. Articulating the distinction between ‘countering injustice’ and ‘doing justice’ can find much inspiration in Judith Shklar’s work. In The Faces of Injustice (Shklar, 1990), in which she asserted that the law ‘has severe problems in coming to terms with victims. It limits itself to matching their situation against the rules, which is an inadequate way of recognizing them as victims . . . ’. In doing so, she was not mounting a critique of the law in general, or criminal law in particular, but instead stating a fact about the workings of the law that is important to recognize. Shklar observed that theories and processes of justice emphasize countering arbitrariness and ensuring predictability. They are universal, impartial, impersonal, and rational. Their focus is ‘well-oiled social functioning’ (Misra, 2016) in general, sometimes to the detriment of the requirements and necessities of the particular situation. Here, she finds justice to be both wider and narrower than responding to injustice. It looks only to what is relevant for its main social aim, not to all that matters about misfortune and injustice.

The difficulties of justice processes in countering the experiences of injustice in victimization are on particularly clear display in cases of atrocity and international crimes. What, if anything, can be understood to be a resolution in the face of the enormity of injustice suffered in these situations (Pemberton and Letschert, 2022)? This is already true on the terms of doing justice alone, with the features of atrocity crimes posing additional challenges to key assumptions of criminal justice processes. To mention a few: establishing individual guilt for crimes committed as a collective or in the name of a collective, and with often uncertain lines between culpable and inculpable parties, including the role of so-called bystanders; the difficulty of finding a remedy suitable to the enormity of the crimes committed; and, coupled with the previous points, the diminished likelihood of reaching goals of criminal justice such as retribution and general or special prevention.

Such difficulties are also visible in the case of MH17: the lack of cooperation on the part of the Russian authorities rendered apprehension of the suspects extremely unlikely, and therefore would fail to serve its ‘normal’ retributive function. In addition, the hostile attitude of Russia left the victims without any sign of remorse or regret or promises of nonrecurrence. Moreover, due to Russia’s withholding of relevant evidence and direct perpetrators, it will remain impossible to know the actual thought(lessness) of those who launched the missile that hit MH17, and whether it was aimed at MH17, recklessness, negligence, or an honest mistake.

Injustice as a storied event in victims’ lives

Key to understanding the distance between victims’ experiences and criminal justice concerns involves understanding that the rule-bound generality, to which our legal systems aspire, runs counter to the fully concrete, unique, and idiosyncratic manner in which victims experience their ordeal (Pemberton et al., 2019; Walklate et al., 2019). This is not only to highlight that victims go through their experience personally and concretely, but also to underline that what happened to the victims is experienced as a storied event in their lives: something that derives its meaning and moral load from thwarting expectations and regularity, as calling the underlying order directly into question. MH17 can be understood as a paradigm example of such a storied event: this is true on the level of the individual lives of the victims, but also applies to Dutch society as a whole.

It also emphasizes the degree to which the experience of injustice in victimization, and what is needed in countering this experience, also forms part of the narrative experience of being a self: Susan Brison (2002)—a philosopher and victim of rape and attempted murder—clarified that what victims will often need to do in the aftermath of their experience is ‘remake a self in narrative’, a process that is better understood as re-storying than as restoring to their previous condition (Pemberton, 2019). Part of this re-storying is the way the public actors involved in criminal justice respond to their ordeal, and the extent to which victims can understand the justice process being about what happened to them. In this regard they can shape both victims’ sense-making—that is, relevant insights into what happened—and meaning-making—that is, the meaning of what happened in the context of their lived experience—processes (e.g. Van Hulst and Tsoukas, 2023), while both the responses to victims and their (im)possibilities of acting within criminal justice will be perceived within the unfolding narrative.

In doing so, the criminal justice process can also seek to offer victims a renewed sense of communion, of connection to their social surroundings. One of the crucial issues with which victims have to grapple is a lack of connection, of loneliness, of being left behind or out of the community and society to which one belongs. The role of criminal justice authorities as representatives of such structures, or indeed of the moral order more generally, can serve as an attempt to acknowledge this and communicate the victim’s enduring membership. This highlights the particular expressive features of criminal justice (Drumbl, 2007; Stahn, 2020), and we will detail how the extraterritorial atrocity prosecutor has sought to express this in the case of MH17.

Finally, victims will often have to contend with the epistemic qualities of victimization (Pemberton and Mulder, 2025). Victimization can be understood as a transformative experience in victims’ lives: both personally transformative ‘fundamentally changing one’s values, preferences, desires, and, therefore, transforming one’s identity in substantive ways’, but also epistemically transformative, ‘providing forms or degrees of knowledge and understanding that were previously unavailable and, more importantly, previously inaccessible, insofar as they depend on having the relevant experience’ (Carel and Kidd, 2019). Key to understanding philosopher Laurie Ann Paul’s (2014) concept, is that transformative experiences can teach us things we cannot know from any other source but the experience itself. It means that victims often feel that they have—completely against their wishes—been made party to knowing something: about the experience of victimization, but also about the human condition as a whole (for instance, the storied nature of experience, the importance of connection and belonging, as well as aspects of sense- and meaning-making (Peters et al., 2025)). This signals the extent to which the epistemic quality of victimization needs to be recognized by others: acknowledging and sufficiently validating the victim’s standpoint is an important way of doing so. Neglecting this leads to forms of epistemic injustice (Fricker, 2007), in which victims are insufficiently recognized in their capacity as knowers: the knowledge they have and the knowledge they need. As we will also detail, the situation of MH17 also reveals different attempts to include victims as knowers and to communicate the facts of what occurred in Ukraine to victimized communities.

MH17 and the public and legal response

From the above analysis of the literature on the victimology of atrocity or international crimes, we identify three conceptual features through which we evaluate the public and legal response to the MH17 victim experience: (1) the importance of fostering victims’ communion with/connection to others (each other as well as representatives of the community, the state, and the judicial process); (2) the value of sufficient acknowledgment of the epistemic qualities of victimization; and most generally (3) an appreciation of the nature of the victimization and its aftermath as a storied event in victims’ lives. Before performing this analysis we first offer a description of the main aspects of the MH17 tragedy and response to it.

First victim-oriented responses and the forming of a victim community

The downing of Flight MH17 on 17 July 2014 struck deep in Dutch society (Jeronimus et al., 2019). The magnitude of the death toll, relative to the size of the Dutch population (17 million), meant that nearly everyone knew someone who was murdered on the plane, and/or their loved ones. Moreover, it was experienced nationwide as a fate that could have befallen everyone, given the everydayness of taking a plane and expecting it to land safely at its destination. The media showed signs of a national outrage and called for a public response. Prime Minister Mark Rutte stated the day after the crash that no stone should be left unturned to track down the perpetrators and punish them accordingly. The tragedy was not limited to the Netherlands: people in 16 other countries had lost beloved in MH17. Moreover, Ukrainians had experienced the crash from the ground. For example, bodies and luggage fell through their roofs and in their garden.

The first state actions aimed to recover and repatriate the bodies and their belongings. This was complicated since the six wreckage sites were located within an ongoing armed conflict; local authorities did not facilitate safe access; Russian and Ukrainian military increased their military activity in the area; and militias plundered valuables and destroyed evidence. Safety reasons and security measures were prioritized over the need for an urgent investigation and recovery of the bodies (Maguire et al., 2023).

The recovery of human remains therefore took 8 months, during which the bodies remained out in the open. In its judgment of 9 July 2025, where it found Russia to have violated the rights of the victims and their next-of-kin, the ECtHR recognized that these circumstances ‘no doubt created a strong sense of powerlessness and anxiety’ among the next-of-kin. ³ The Court noted, for example, that for two victims no body part was ever found, that next-of-kin had to identify body parts when the condition of the body rendered the task even more distressing, that they had to bury incomplete bodies, or had to bury additional parts after the burial had taken place. The ECtHR recognized that these circumstances contributed to a continued profound suffering of the next-of-kin that amounted to inhuman treatment.

The fatal missile that downed MH17 and killed all victims on board was also the genesis of a new victim community: those who lost someone on MH17. They were now forever united in common loss, want for the repatriation of their loved ones, and search for justice. Over the years, bonds grew between them: fostering mutual understandings of loss; frustration and anger about Russia’s attempts to undermine truth-finding and justice; and experiencing the proceedings of justice together. At the same time, as in any human community, not all individuals wanted the same: the MH17 victim did not exist. Victims had diverging views on what justice could mean to them, what legal avenues to pursue, how to participate in them, and the extent to which constant attention in the media served acknowledgment or heightened anguish.

Not only did communion among them grow, but also connection with society and representatives thereof, through commemoration and various expressions of communal mourning in the Netherlands and abroad. They included a declaration of national mourning on the first day that the first bodies were repatriated to the Netherlands; a ceremony to receive the first coffins, in which the next-of-kin were accompanied by the king and queen and representatives of the bereaved states; a monument that arose where a tree was planted for each victim; and annual commemoration events on 17 July.

From early on, the Dutch state sought an appropriate way to communicate with the victims. This was not easy given their sheer numbers, geographical spread and diversity in their individual experience of grief and accompanying preferences. The government suggested, facilitated, and funded the creation of a foundation for the next-of-kin: Stichting Vliegramp MH17. Established in November 2014, the board’s main activities included representing the collective interests of the victims by maintaining regular contact with the Prime Minister and other ministers, civil servants from the ministries of justice and foreign affairs, the Public Prosecution Service, legal professionals, and scientists; monitoring all legal proceedings; communicating information to the victim community; and organizing commemorations. ⁴ Public actors maintained close communication with particularly the foundation’s board to gauge victims’ responses, keep victims informed, and include victim participation where deemed appropriate. Through such personal communication, public actors got a better understanding of what victims needed, how to meet those needs, and reverse course where (in)actions were less appreciated. And victims, particularly those acting on behalf of the victim community, felt included and respected in their positionality and epistemic value. The extent to which public actors thereby succeeded in their objectives deserves evaluation, but the amount of effort from public actors in engaging with victims was unlike any other Dutch public response to crime or mass victimization.

Investigations and criminal prosecution of four suspects

On 7 August 2014, the Netherlands, Ukraine, Malaysia, Australia, and Belgium created a JIT to determine who was responsible for downing MH17 and to collect evidence for the criminal prosecution of perpetrators. A JIT is a mechanism of cooperation between law enforcement officers and prosecutors of two or more states to facilitate the cooperation and sharing of evidence between jurisdictions (Furger, 2024). Eventually this led to the prosecution of four suspects, and the conviction and sentencing to lifelong imprisonment of three suspects on 17 November 2022 (De Hoon, 2022a). None of the suspects appeared in court. One suspect sent legal representation and video testimony. The other three were granted in absentia status after the court established that they were aware of their trial and chose not to attend.

Counter to normal investigative practice, the MH17-JIT actively sought public attention. In the years prior to the trial, they updated the world about the investigation’s progress in a series of press conferences, showing pictures and names of suspects, and encouraging witnesses to come forward. ⁵ During the trial, the defense counsel argued that those press conferences violated the presumption of innocence. This was rejected by the court, ruling that the interests of the investigation outweighed the potential negative effects. ⁶ For victims those press conferences were important events: before the press and the rest of the world was informed, the JIT met with the victims at a conference center to discuss what they were about to share worldwide. Many victims experienced this as meaningful acknowledgment of their position to be informed first, and at the same time worthwhile to be updated with the newest information and to communicate with the investigative team.

This personal and victim-inclusive approach throughout the years was a feature that distinguished MH17 from typical post-crime public response. Regularly, representatives of the next-of-kin were invited by the Prime Minister, various other ministers, and civil servants to discuss ongoing efforts by the Dutch government and other bereaved nations. The government also funded projects through the victim’s foundation related to commemoration, legal support, and information. Similarly, the prosecution team maintained close contacts with the next-of-kin before and during the trial. Key in this was a dedicated victims’ prosecutor. Prosecutor Alwin Dam was appointed full-time to support the victims before and throughout the criminal trial, for instance, by meeting with victims in various countries and sharing information about the investigation and trial with the victims. In the prosecution team, Dam participated to provide input from a victims’ perspective. Police officers and representatives of Victim Support Netherlands also reached out to victims at various points throughout the years to hear their stories. ⁷

Public and victim-oriented communication was also a characteristic that distinguished the MH17 criminal trial, which took place from 9 March 2020 until 17 November 2022, from ordinary trials. Unlike any prior trial in the Netherlands or any other trial since, each court hearing in the trial was livestreamed and live interpreted in English. The court premises also underwent significant changes from their usual configuration to accommodate public communication and victim inclusiveness. A special press building was constructed adjacent to the court and a room next to the trial courtroom was designated as a break room for the victims, where they could store their belongings and enjoy refreshments before, during, and after the typically long trial days. Prosecutors frequently joined the victims in this space to debrief and converse after a day of hearings. Several staff of the court and of Victim Support Netherlands were also present to answer questions, listen to the victims’ experiences, and offer support where needed. During the hearings, the victims could sit in the public gallery. By the later stages of the trial, at times, a small number of victims were also allowed to sit in the front row of the courtroom itself.

Some common aspects of a criminal trial gained additional meaning through its collectiveness. At the opening of the trial, all names of those that died on MH17 were read out. It is common for the prosecution to state the victim’s name. However, reading 298 names took 20 minutes, transforming it from a momentary mention into a collective gesture with deeper meaning. A similar experience occurred when victims could give their victim impact statements, a key point in the victim’s participation in the trial. Livestreamed across the world, each victim had 15 minutes to look the judges in their eyes and tell them how the downing of MH17 had impacted their lives. At that moment, the trial was about them. Moreover, the combined effect of 105 times 15 minutes created a space in time of 3 weeks where the court focused day in and day out on the victim experience rather than on the evidence of the suspects’ alleged acts and intent. The cumulative event of 3 weeks of victim statements, and another 52 written statements that were added to the case file, acknowledged the vastness of the loss and impact, fostering a sense of connection among the next-of-kin and the public/legal actors who were there to listen and support them through it. The fact that they were ‘heard’ as witnesses to the injustice was further emphasized by the inclusion of references to victim impact statements in the final judgment, which served the dual purpose of recognizing both individual and collective loss.

From public statements victims made in the media and during commemoration events expressing their gratitude, ⁸ and observing the victims throughout the years, it is clear that the victims appreciated the active communication and personal engagement by the prosecution, court, and victim support actors. Among many, a sense of justice emerged from the trial (De Hoon, 2022a). In fact, for some this came earlier than the actual judgment. When the prosecutor concluded the case and requested the court to convict and impose lifelong sentences, at least two victims expressed that for them, this already provided (a form of) justice, even though the defense still had to plead their case and the judges would eventually decide. In their experience, an independent institution that they respected—the prosecution—had dedicated time and effort to determine what had happened and what an appropriate sentence would be. When in the end, one of the suspects was acquitted for lack of sufficient evidence, victims appeared to have limited attention for it and treated it more as a detail or matter-of-factly result of a fair trial and celebrated the conviction of the other three commanders, the clarity with which the Court had depicted Russia’s involvement, and that the sentence was lifelong imprisonment as a recognition of the magnitude of the injustice caused. Stichting Vliegramp MH17 says they asked the 140 participants in a post-trial victim event whether they wanted the prosecution to appeal the acquittal, and only one would have preferred this. The foundation’s chair explained that victims preferred not to have another trial and felt they had received justice. ⁹

Proceedings against Russia

The JIT investigations not only resourced the criminal investigations but also the legal response to Russia itself. It led to two landmark decisions in 2025 that found Russia in violation of international law.

First, on 12 May 2025, the ICAO decided that Russia had downed the MH17 aircraft by a surface-to-air missile over eastern Ukraine and that this constitutes a breach of Article 3bis of the 1944 Convention on International Civil Aviation, requiring states to ‘refrain from resorting to the use of weapons against civil aircraft in flight’. On 18 September 2025, Russia filed an appeal with the International Court of Justice against the decision by the ICAO.

Second, on 9 July 2025, the ECtHR decided that Russia was responsible for the loss of lives of those on board Flight MH17, failing to investigate and include victims in that investigation, fabricating evidence and undermining the JIT investigation. In addition, a groundbreaking part of the judgment was that Russia’s ongoing non-cooperation, denial, fabrication of evidence, and disinformation caused ‘additional suffering’ to the next-of-kin, beyond the pain from losing loved ones, which amounts to inhuman treatment. Before this case, a similar recognition of continued and additional suffering of next-of-kin had only been recognized in enforced disappearance cases.

Not all victims welcomed the Dutch inter-state case unreservedly. Prior to the Dutch inter-state application, many victims had already lodged individual complaints against Russia at the ECtHR. From a legal perspective, the inter-state case reinforced the victims’ pending individual applications with the evidence that the JIT had compiled (which it could otherwise not share with the Court or the victims), brought in the state’s specialized legal team, and fast-tracked and spotlighted the case within the ECtHR overburdened caseload. However, some of the victims also expressed mixed feelings. As the inter-state proceedings got fast-tracked, the individual proceedings were deprioritized. For some victims it felt like the Dutch state ‘stole’ their case. They explained that in the criminal case, the prosecution led the case and the victims sat in the gallery, in the ICAO procedure they were formally not even recognized as relevant, and so only at the ECtHR they themselves were in the lead; or rather, had been.

Analysis

The key question this paper seeks to address concerns whether the case of MH17 is just another criminal legal process writ large, or alternatively suggests a shifting understanding of the role of criminal justice actors, involving a repurposing of the goal and procedures of a public response after the occurrence of atrocity crimes.

In this section we analyze the extent to which the justice response to MH17 can be understood in terms of the three conceptual features we have developed: (1) the importance of fostering victims’ communion/connection with each other and state actors; (2) the value of sufficient acknowledgment of the epistemic qualities of victimization; and (3) an appreciation of the nature of the victimization and its aftermath as storied events in victims’ lives. We will highlight the actions explicitly and exceptionally taken by the Dutch authorities to further these ends, as well as the manner in which actions that might be a more common feature of Dutch criminal justice were deployed in manners that granted them new meaning. Moreover the focus on (1) communion and (2) the epistemic qualities of victimization will also contribute to (3) the recognition of the victims’ narratives and are therefore presented in that order.

Fostering communion and connection

The magnitude of the death toll of the downing of MH17 would have been likely to foster the development of a next-of-kin community under most circumstances. Other mass victimization events—for example, the Association of the 11 March 2004 terror attacks in Madrid—have often seen the development of more or less formalized organizations, while there is also a drive for victims who have shared a similar but different fate—for instance, co-victims of homicide—to organize themselves in organizations, foundations, and/or communities (Letschert et al., 2010). Such organizations can often be linked to forms of peer support and mutual aid (Van de Ven, 2022). Many victims of severe and transformative forms of crime experience that only people who have shared a similar fate can fully grasp what they are going through (Van de Ven and Pemberton, 2023), while in turn, meeting with fellow victims often is a harbinger for collective forms of action. Not without reason, many social movements share a genesis in victimization experiences (Polletta, 2006).

In the case of MH17, the Dutch authorities actively fostered and stimulated the development of an organized community. Not only did the authorities actively encourage the founding of Stichting Vliegramp MH17, they also funded the continuing activities of this MH17 victim community, and turned to representatives of the victim community as spokespersons in defining policy and decisions, while legal actors in the criminal and inter-state proceedings would also repeatedly highlight the importance of this community.

A specific instance of the latter was the cumulative presence of reading out the names of all the deceased and hearing all victim impact statements that carved out significant spaces within the criminal case, gaining a specific victimological meaning. Not only did this serve to highlight the manner in which the next-of-kin had formed a community of victims, but it also signaled the specific way in which public actors tried to offer them a sense of communion with their work as representatives of Dutch society, and through that, trying to communicate a bond between the victims and Dutch society as a whole.

Indeed, we could consider Stichting Vliegramp MH17 to be a nucleus in connecting the justice aftermath with the lived experience of next-of-kin outside of the court. Where—under normal circumstances—we might be prone to draw a clear and sharp analytical distinction between a memorial activity (such as the unveiling of the MH17 monument) and the court case, the extended ritual aspects of naming all the deceased and the 3 weeks of victim impact statements as well as the presence of prosecutors and government officials at memorial events instead signal the manner in which the borders between court proceedings and other activities to acknowledge and recognize the extreme injustice suffered by the MH17 community were decidedly more porous. Here a parallel might be drawn with the way the Colombian government has sought to conceptualize its transitional justice processes in the aftermath of the enduring civil war. Rather than viewing the criminal procedure as a fully separate process, guided by its own logic, the case of MH17 suggests that it can create spaces that offer a deeper sense of connection with social processes beyond the justice system.

The epistemic quality of victim experience

The MH17 case also offers insights into ways to recognize the epistemic qualities of victims within various forms of public and legal response. By creating spaces for victims to speak in legal proceedings and to be heard by government and legal representatives in the development of the public response, victims are able to share their knowledge about their victimization. At the ICAO and ECtHR, victims formally had no position, which the victim foundation explained felt like an exclusion of their voice. The Dutch counsel included the victim foundation chair in their delegation and shared their speaking time.

In the previous subsection, we already noted the specific victimological meaning of communion that the cumulative presence of all victim impact statements and the reading of all their names created in the criminal process. This also has an important epistemic meaning: translating temporal space into an internalization of the breadth and depth of the victims’ suffering and impact.

Preventing epistemic injustice requires ways to actively listen and respond to the knowledge victims have, but also to offer pathways to the knowledge they need (Fricker, 2007). In the MH17 case this was visible in the way the prosecution kept victims informed, and also the care prosecutors took in explaining the limits to what they were able to share. Regular meetings with victims, written briefings, and a word of welcome at each court session contributed to this end. Ensuring access to the information in the court proceedings was facilitated by livestreaming the trial, providing interpretation, and translating materials in English and the most pivotal materials also in Ukrainian. In addition, the judgment in the criminal trial against individuals included a large section explaining Russian involvement in eastern Ukraine in 2013/2014, acknowledging what Ukrainian victims of Russian aggression had been voicing unheard for years.

While communicating with and through Stichting Vliegramp MH17 was a useful medium to reach the victim community and organize victim participation in decision-making, it raises concerns of epistemic injustice at the same time. Fricker’s concepts of testimonial injustice, where a speaker’s credibility is unfairly diminished due to prejudice, and hermeneutic injustice, when ‘a gap in collective interpretative resources puts someone at an unfair disadvantage when it comes to making sense of their social experience’ (Fricker, 2007), are helpful in understanding that and why some victim voices were more heard than others, and some victims better understood than others. Individuals who were willing to work (unpaid) full-time for the board of the victim foundation and its activities received a better hearing than those who could not or chose not to commit as much time. Victims who were communicatively strong and media-savvy received more attention than those who struggled to express themselves. In addition, victims in the Netherlands received more political and legal support and attention compared with those from some other bereaved countries.

The legal vernacular and logic exacerbates such injustices further through its purchase on the manner in which legal reality gets understood and produced. Victims who expressed preferences or concerns that fit within a legal framework—such as issues related to case file access or trial participation rights—were more easily accommodated. By contrast, those whose concerns were outside this framework faced challenges—for example, disappointment with the trial for not bringing out what the perpetrators were thinking when they launched the missile, or feeling their individual ECtHR case being diminished by state intervention, even when legally it had been reinforced and expedited.

In cases of mass victimization, a friction becomes apparent. Selecting a victim representation to organize the victimized group’s participation in decision-making and acknowledging victims’ epistemic value can generate epistemic injustice by producing a single homogenic narrative. However, due to different dynamics within the MH17 victim community (e.g. internal group dynamics, personal preferences, power structures, state intervention), this reflects some victims’ narratives, while obscuring others. Some individuals were actively involved through state efforts, while others were less engaged. Certain voices were amplified, while others faded into the background. Although many aspects discussed in this paper were received positively, some individuals had negative experiences. For some, the pursuit of justice through legal avenues served as an ongoing, unwelcome reminder of their trauma, amplified by media attention. To others, the criminal trial felt like a failure and a farce because those convicted remained free, never faced the victims, and did not serve prison time. In addition, some found that delivering a victim impact statement was unexpectedly traumatizing, overshadowing the anticipated empowerment and recognition.

The search for epistemic acknowledgment of victims thus simultaneously raises concerns about its potential in generating an ideal victim (Christie, 1986) or imagined victim (Walklate, 2007). This ‘ideal’ or ‘imagined’ MH17 victim could be understood to be those most fully represented in the public and legal response. Where these victims might have experienced benefits from the public and legal response, the less-than-ideal victims might be more likely to experience the process as insufficiently connected to their ongoing sense- and meaning-making processes.

Storied events

Much of the activities discussed in the previous subsections highlight the manner in which the Dutch authorities sought to foster and create possibilities for storied sense- and meaning-making for the MH17 victim community. The time and effort afforded to them by senior officials, the funding of activities, and the organization of memorial activities, can all be understood as contributions to the victim’s unfolding narrative of the downing of MH17 and its aftermath. Tending to victims’ epistemic needs, and trying to signal a sense of communion with their plight similarly highlights this, as does the ways in which the authorities sought to stimulate the victims’ own avenues for action. Each of these attempts have at least the potential to be storied episodes in the individual and collective experiences of victims, and signal the implicit resolve of the Dutch government to go beyond what would have been strictly necessary to meet the ‘normal’ requirements of criminal justice procedure.

In our view, the public response and legal aftermath of downing MH17 can best be understood as a recognition that ‘doing justice’ offered limited meaning given the circumstances and an earnest attempt to go beyond and to incorporate elements of ‘countering injustice’. The fact that the criminal trial was held at all can be understood in this light. It was more or less obvious from the outset that Russia would never cooperate and that the perpetrators would be unlikely to land in the dock. Strictly understood therefore, any retributive aim of the trial could not be reached. It also seemed unlikely that the trial would serve any deterrent function either, which became even more apparent during Russia’s wholescale invasion of Ukraine. It is unclear which traditional criminal legal goals would have been served by pursuing the case, and in particular expending so much resource in doing so.

Instead, the MH17 trial seems to confirm Brants’ (2017) assertion about the ICC as a representative of ICJ. Much of the results of the trial were focused on victims’ experiences. Importantly, the idea was not to offer a resolution, or to repair or restore the wrong visited and the harm done to them. The magnitude of victims’ experiences is just too great for this to be a conceivable goal. Instead the trial did offer important answers to questions victims had about the sequence of events, and the persons responsible for the death of their loved ones. The fact that the circumstances meant that the culprits could only be convicted in absentia is undoubtedly difficult for victims to fully accept. But the process at least identified them and pieced together the course of events as clearly as possible: as a means for victims to make some sense of what happened.

The process, moreover, went beyond merely signaling individual guilt. It also highlighted the complicity of the Russian government, and even went beyond this to call out their denial of responsibility and a lack of any meaningful statement of remorse or apology as an offense in and of itself. In both these prongs—the individual guilt of the perpetrators and the collective responsibility of the Russian state—the activities within the justice processes have attempted to contribute to the victims’ meaning of what happened.

Conclusion

The MH17 case can be seen as a unique event where next-of-kin and Dutch society as a whole experienced an unprecedented attack and shock, and as an example of the public response to a large-scale disaster with mass victimization. The public and legal response to MH17 demonstrated that creating additional communication channels with victim communities beyond the courtroom and providing more ways for victims to engage with public and justice officials are both feasible and appreciated by victims. These measures contributed to the three victimological concepts discussed in this paper: fostering communion and connection, acknowledging victims’ epistemic interests, and helping them reconstruct their narratives in the aftermath of trauma. Although these victim-focused practices add complexity to the responsibilities of atrocity prosecutors and other justice actors—who must balance victim communication with due process and fair trial requirements—they help develop a victim perspective suitable for atrocity contexts. This approach allows trials to honor their value by providing a forum for addressing injustice, where traditional justice may remain elusive.

We contend that MH17 serves as a paradigm case of an emerging practice within the scope of ICJ, addressing crimes that typically involve large groups of victims, often legitimized by expressed concern with victims and victim communities. At international courts and tribunals as well as in domestic jurisdictions tasked with extraterritorial atrocity prosecutions, justice actors should recognize that automatic analogies with domestic crimes prosecutions might fall short. Neither (sufficient) retribution nor prevention/deterrence will play the same role. Recognizing this requires a shift in prosecution practices: one that recognizes the particular complexities of such victimized groups, which include large groups of victims who often live far from the location of the trial, as well as safety concerns for victims, witnesses, and their families, who may be threatened by hostile governments. While the role of victims is increasingly recognized as important in criminal justice, for atrocity cases, the victims’ plight serves as a justification for challenging traditional notions of territorial sovereignty. As a result, atrocity justice actors in particular must re-evaluate and adapt their practices concerning the handling and protection of victims.