By Anthony Deutsch
AMSTERDAM (Reuters) - The Netherlands or Malaysia is likely to try those responsible for the downing in Ukraine of Malaysia Airlines flight MH17, not the International Criminal Court in The Hague, the Dutch said on Wednesday.
Cases are only referred to the world's permanent war crimes court if countries involved are unable or unwilling to prosecute atrocities, Justice Minister Ivo Opstelten said in a letter to parliament.
The Dutch, who had 195 nationals onboard the flight from Amsterdam to Kuala Lumpur, are leading an international investigation into the crash and it is unlikely the countries involved "will not be able or willing to lead the investigation and prosecution," Opstelten wrote.
Pro-Russian separatists are widely believed to have used a surface-to-air missile to shoot down the plane on July 17, killing all 298 passengers and crew.
The Dutch Safety Board, which is leading the inquiry, said this week it had received a large quantity of evidence from sources outside Ukraine and will not need access to the entire crash site, now inaccessible due to fighting.
The Netherlands has universal jurisdiction for war crimes and can prosecute suspects in other countries.
The International Committee of the Red Cross (ICRC) - the guardian of the Geneva Conventions setting down the rules of war - has made a confidential legal assessment that Ukraine is in a war, diplomats and officials said this month, opening the door to possible war crimes prosecutions, including over MH17.
U.N. High Commissioner for Human Rights Navi Pillay this week called for a prompt and impartial investigation. "This violation of international law, given the prevailing circumstances, may amount to a war crime," she said.
Experts trying to recover remains of the victims in Ukraine were again unable to access the crash site on Wednesday due to clashes between pro-Russian separatists and Ukrainian forces, the head of the Dutch mission said.
"Unfortunately, we don't expect the security situation to improve enough over the next few days to make this possible," said Pieter-Jaap Aalbersberg.
"This makes it less likely that we will reach the crash site in the immediate future. There is still too much fighting in the area, preventing safe passage for our people."
The world's legal capital, the Netherlands is the home of several international courts, including the Yugoslav war crimes tribunal. It also hosted the trial by British judges of two Libyan secret service agents over the 1988 bombing of Pam Am flight 103 over Lockerbie, Scotland.
(Editing by Janet Lawrence and Susan Fenton)