A Series of Obstacles
However, using multiple criminal prosecution mechanisms at the same time, the Dutch domestic courts and the ICC, could be problematic.
First, under the basic principle of ‘ne bis in idem,’ no person can be tried twice for the same crime. If a Dutch court prosecutes a suspect, it may prevent the ICC from prosecuting the same person for the same crime.
When it comes to gathering evidence, selecting suspects and conducting trials, the JIT will have to coordinate with the ICC to avoid duplication and wasting resources.
As a possible solution, a division of labor between the jurisdictions and among the actors involved could be arranged. For example, the ICC could decide to prosecute those most responsible for the incident, or leave the case to be tried in the Netherlands.
There are also other challenges. It will be difficult to meet the high standards of proof required for establishing suspects’ guilt beyond reasonable doubt, including proving the suspects ‘knowledge and intent’ for an alleged war crime.
There will be procedural obstacles when it comes to cooperation and sharing crucial evidence. Clear examples of this are the thousands of intercepted telephone calls gathered by Ukrainian law enforcement and intelligence agencies.
Some of this evidence can be shared with JIT investigators, the ICC and the Dutch prosecutors. But in some cases, much of this data cannot be shared due to some restrictions in the Ukrainian legal system.
This is the case, for example, with evidence that may have been acquired or intercepted during special legal procedures into the downing of the MH17, including investigations carried out in the interest of state security.