U.S. lawyer Jerry Skinner is representing the interests of relatives of the victims of Flight MH17 at the European Court of Human Rights (ECHR). They filed a lawsuit against Russia in the ECHR in 2016.
For about forty years, Jerry Skinner has specialized in plane crashes. Among his many cases was the terrible tragedy over the Scottish town of Lockerbie on December 21, 1988, when Pan Am Flight 103, a Boeing 747 en route to New York City from London, exploded. All 259 people on board were killed, and 11 individuals on the ground also died.
I first met Jerry Skinner in the Netherlands on March 9, 2020, when the court hearing in the MH17 trial began at the Schiphol Judicial Complex.
On July 17, 2014, Malaysia Airlines flight MH17, en route from Amsterdam to Kuala Lumpur, was shot down over conflict-hit Donbas. There were 283 passengers and 15 crew members on board. All of them died. After nearly six years of investigation, the Joint Investigation Team (JIT) reported that the plane had been shot down from a Buk missile system that belongs to the 53rd Anti-Aircraft Missile Brigade of the Russian Armed Forces stationed in Kursk.
Our meeting with the lawyer took place near the Schiphol Judicial Complex and Amsterdam Airport Schiphol, where the same flight MH17 departed from six years ago.
PLANE EXPLOSION OVER LOCKERBIE AND MH17
- Mr. Skinner, please tell us why you decided to specialize in plane crashes? What influenced your choice?
- My father fought in the Second World War. He helped liberate Dachau. I was inspired to work in an area where people needed help, even though what they really need was to late to provide. That pretty much describes air crash litigation. Plus the opportunity and the idea came together in 1983 right after I started law practice and an Air Canda flight landed at my home airport with a fire on board. The two factors just worked out…
- You made a name for yourself in the Lockerbie trial. The investigation lasted three years, and charges were subsequently brought against two Libyan intelligence agents. At first, Libya refused to extradite the suspects. However, after the UN Security Council imposed international sanctions against the country, Libya agreed to extradite the suspects for a trial in the Netherlands in accordance with the laws of Scotland. After nine months of the trial, one of the defendants was found guilty. You submitted a lawsuit filed by the relatives of the victims. Compensations were paid in exchange for lifting the sanctions. What payments are we talking about?
- There were two cases regarding Pan Am Flight 103. I did not work on the domestic case brought in the USDC for the Eastern District of NY against Pan American and Alert Security Services. The flight was bombed by an altitude sensitive pressure detonator armed bomb loaded in a musical Boom Box placed in luggage by agents of the Libyan government's security service.
The case against Libya was based upon their role as a state sponsor of terror and their acts against 270 innocent civilians. Settlement was ultimately made for $2.7 B in non-compensatory damages.
- In what other cases did you participate? Were there any cases not related to aviation?
- Aviation: Northwest Airlines Flight 255, Pam Am Flight 103, TWA 800, Swiss Air 111, Egypt Air 990, Comair 3272, USAIR Flight 427, USAIR Flight 405, the Royal Jordanian Airlines hand grenade case; dozens of commuter, general aviation and helicopter incidents; the Cessna Caravan 208B multi-district litigation cases and numerous parachute jump crash cases.
Non-aviation: the 1978 Beverly Hills Supper Club fire, MGM Grand Hotel fire, Holiday Inn Cambridge fire, drug products liability in multiple counties, antitrust lawsuits, and numerous other tort actions.
- After the downing of MH17, the relatives of the victims filed two lawsuits with the European Court of Human Rights (ECHR), accusing the Russian Federation of human rights violations. In one of these claims, you represent the interests of the relatives of the victims. What is their position?
- The position of the relatives is that Russia is responsible for a deliberate act of murder and must be held accountable and pay damages as a means of at least demonstrating justice.
- What was the reaction of Russia to the lawsuit?
- We applied to the European Court of Human Rights in 2016. It took a lot of effort to collect the necessary package of documents, most of which were in electronic form, to create a sufficient base of accusations against Russia. After that, little happened until September, when Russia was asked to provide an answer and it did it. It was about all the same conspiracy theories that were already mentioned earlier, all the same accusations against Ukraine ... In my opinion, the evidence of Russia's involvement is very convincing: they were seen, recorded, photographed and filmed; conversations were also recorded. It was a Russian weapon, it was found at the scene of the crime: the wreckage collected at the crash site and taken from the bodies of the dead corresponds to the elements of the warhead of the very Buk missile system that is in service with the Russian Federation.
The ECHR Case is filed to recover just satisfaction from the Russian Federation for using a military weapon to advance their state political causes against Ukraine, against a civilian airliner killing 298 souls. It is for the loss of the right to live. Damages are almost not quantifiable, but are very large. We filed, Russia has opposed, and our reply is due in December 2020. We do not know yet whether the Court will rule on the paper or hold evidentiary hearings in a year or so. The problem is that the ECHR has a huge number of cases pending. You are waiting in line, and this waiting is sometimes replaced by a period of serious activity: collecting information, preparing documents. At the moment, we still have a pause related to the coronavirus; the court will open only in the fall.
- The tragedy of MH17 is a unique case. Is there a risk that the ECHR will not consider the case on the merits? Or it will say that first it was necessary to go to Russia, because according to the procedure, when you are suing a country, you must first go through judicial procedures in that country.
- MH 17 is not unique. Russia has shot down airliners in Georgia, Chechnya, Eastern Russian border territories and in other places. Russia appears to use airliners as targets of opportunity in conflicts with the former Eastern bloc states. We are certain that the procedural obligation to exhaust domestic remedies imposed by ECHR Article 2 will mean that Russia's failure to investigate, lies, abuses of evidence and denial of cooperation will relieve the families of any obligation to sue Russia in Russia.
RUSSIA WAS PREPARING FOR DOWNING A PLANE
- In your opinion, Malaysia Airlines Flight MH17 was shot down by mistake?
- This was a deliberate act with specific intent to shoot down an airliner and kill innocent persons. Why else would Russia drive 100s of kilometers to a separatist held area where the commercial aviation corridor brought targets to them. They used a weapon known for its 99% kill rate. It initiated an invasion which was also preceded by the slow infiltration of Russian military personnel "on vacation". Arms control groups monitored heavy weapons in this area for months before the attack. It was an act of preplanned murder.
If you look at what kind of weapons the Russian Federation sent to Ukraine, it becomes clear – they were preparing for this. We are talking about a full-fledged military campaign with the participation of the Russian army. They transported tanks, multiple launch rocket systems, equipment and people. It seems to me that the purpose of the Russian Federation was to blame Ukraine for the downing of the plane and to use this as an excuse to send its troops. It was a provocation; they deliberately shot down the plane.
- Russia denies all accusations and turns blame on Ukraine. How do you assess the role of Ukraine in this tragedy?
- Ukraine, based upon the history of Russian attacks upon lower flying military targets from the end of May up to the date of the attack upon MH 17, closed its airspace up to FL 300. Ukraine was the ultimate victim in this event. They did all that Russian aggression called for. They are not even reasonably involved in the acts Russia chose to perform to kill an airliner.
- What new facts of the tragedy have become known?
- I cannot talk about a lot of the "new facts". They are involved in the criminal case and it is not wise to talk about them while that is pending. However, the evidence grows as witnesses, documents, recordings and physical evidence continues to be discovered and used. This event was a large plan, with many players and left an extensive trail of evidence of all kinds.
THE NETHERLANDS IS A POWERFUL ALLY IN THE ECHR
- A week before the sixth anniversary of the MH17 tragedy, the Dutch state also announced a lawsuit against Russia in the European Court of Human Rights (ECHR). What is your assessment of this move by the Netherlands?
- We are very pleased about the move by the Dutch state to join formally in proceeding at the ECHR. It gives our families a strong state ally. The country that suffered the most believes in our cause.
If the Russian Federation thinks it can soften this issue because it is strong and great, then they are wrong.
- How many lawyers are involved in the MH17 case?
- There are 5-8 Dutch lawyers involved. Lawyers from Australia, Malaysia, Germany, the UK, Canada and the US are also involved. In the ECHR, there are probably 16 legal counsel involved.
- How did you become a lawyer for relatives in the MH17 case at the ECHR?
- This is a particularly brutal act, a large number of innocent deaths and a very depraved act of Russian aggression. Justice must be pursued. I was working at a Sydney law firm and as the families in Australia searched for help and answers they began to call and meet with me.
- What difficulties have you encountered in this case?
- The biggest difficulty has been Russia's obstruction, lies, disinformation, restrictions on access to evidence, false evidence and general uncooperative conduct.
- In Amsterdam, you met with lawyers in the MH17 case. What was this meeting about?
- I met with a group of the Dutch lawyers who are working to represent all the families. I am part of that group. We gave the assembled family members our summary of the criminal case and the ECHR progress. It was a status report.
RUSSIAN WINDOW IN CRIMINAL CASE
- What do you think about the trial at the Schiphol Judicial Complex? How many years it can last?
- The criminal case is necessary. The evidence collected by the Dutch JIT led investigation is strong and very extensive. But it is not a case which is prosecuting the real defendant. The defendant is the Russian Federation. The ECHR case will ultimately have a greater impact upon justice. The criminal case could last another two years.
- At the Schiphol Judicial Complex, a criminal case is being considered against three accused Russians and one Ukrainian, but there are many more people involved in the downing of MH17. Who else can be held accountable?
- Putin and his chief advisors are ultimately responsible for this act. He will not be tried under present circumstances. If his own people finally force him to resign, that might change. Some advisors and particularly the leaders of Russia's offensive in Donbas may be tried for criminal offenses.
- One of the four accused, Oleg Pulatov, lieutenant colonel of the Main Intelligence Directorate of the General Staff of the Russian Armed Forces, expressed his desire to join the trial. He is represented by two Dutch lawyers. What do you think about the position of the defense and why, in your opinion, Pulatov decided to join?
- Mr. Pulatov is a Russian window into the case and an opportunity for Russia to disrupt the entire criminal case. His legal team causes delays. He did not decide to be involved in the case. That decision was made far over his head and he did not voluntarily agree to hire counsel. Mr. Pulatov is being used. At least in name, Pulatov and the other two Russians are being "thrown under the bus, to distract public attention from the Russian state.
- Who, in your opinion, is guilty of the delivery of the Buk missile system to Ukraine?
- Vladimir Vladimirovich Putin is guilty.
- In what court could Putin be tried?
- Currently, there is no court where Putin could be tried. The UN could convene a war crimes tribunal to address Crimea, Donbas and MH17. That is a long way off.
- In your opinion, are the Netherlands and the international community exerting enough pressure on Russia?
- No. Not nearly enough. Not Netherland, not Australia, not Malaysia who never will, and not the United States which is failing miserably to leverage and use the evidence which they hold.
- What are your predictions on how many years the MH17case might last?
- The Pan Am Flight 103 case lasted 15 years. In the ECHR I expect 10.
- What will happen if Russia does not recognize the court ruling? How can you put pressure on Russia?
- Russia has property everywhere. Governments must cooperate in taking and liquidating property. I also think that Russia should lose aviation landing rights in the countries of the victims – the Netherlands, Belgium, France, Germany, Australia, New Zealand, Canada etc. Cripple their trade until they act responsibly.
- What compensation has already been paid to the relatives and who did it?
- Malaysia Airlines paid compensatory damages to most families pursuant to the Montreal Agreement of 1999. We do not know the amounts, they were very small.
- Who are your clients?
- Forty Australians, Malaysians and Dutch citizens are my individual family claimants.
- What does it mean to you to be a lawyer for the relatives of those killed aboard MH17?
- I am honored to represent my clients. They are great families. I want justice for all the families, most of all I want justice for the 80 children. I want to end 40 years of aviation legal practice by accomplishing something good for these people.
Iryna Drabok, The Hague
Photo credit: Iryna Drabok