Will There be a Tribunal on the MH17 Crash

On September 28, the Dutch-led joint investigation team (JIT) reported the first results from its investigation into the July 17, 2014 downing of Malaysia Airlines flight  MH17. The flight, which originated in Amsterdam, was bound for Kuala Lumpur with 298 people on board. It crashed in eastern Ukraine, in an area of heavy fighting, with no survivors.

In a public address, the JIT emphasized the following points. First, evidence suggested that MH17 was downed by a surface-to-air missile. Four scenarios were initially considered, including a Russian Ministry of Defense version citing an «air-to-air» incident in which the civilian airliner could have been brought down by a military aircraft  (although the Ministry of Defense recently refuted the statement.) The second objective was to establish from where the BUK missile was fired and who was responsible, the Ukrainian Army or pro-Russian separatists. 

According to the JIT report, MH17 was shot down by a Buk 9M38 missile launched from a self-propelled BUK-TELAR mobile launcher positioned in a field near the village of Pervomayskiy. The area was at the time under the control of pro-Russian separatist troops. The Buk was transported to Ukraine from Russian territory, and returned to Russian territory following the attack.

«That we knew», was the surprising unanimous reaction of supporters of various versions. Some wearily stated that the Russian footprint was evident even two years ago. Others were angry, purporting that the evidence was falsified and Ukraine is clearly behind the incident.

Foreign Ministry representative Maria Zakharova expressed disappointment: «The investigation was biased and politically motivated. Enough is enough». Presidential press secretary Dmitry Peskov, in an attempt to be more neutral, stated that the JIT report cannot be considered the «final truth». A representative of Almaz-Antey, manufacturer of the missile system, noted that the JIT had not conducted a test firing accurately.

A number of Russian journalists attended the press conference, with First Channel, Russian State Television, Russia Today, TASS, Ren-TV, Channel Five, Radio Liberty,  and Novaya Gazeta represented. Questions from various journalists from state run media in various formats reduced to one: «Why are you cooperating with Ukraine and not Russia?»

Dutch prosecutor Fred Westerbeke, head of the JIT, stated that Ukraine was the scene of the incident and therefore was represented in the group (however Ukraine’s position in the JIT was discussed separately, as the country is also a participant in the military conflict that resulted in the incident, and is therefore an interested party); for Russia there are questions, many of which remain «up in the air». For example, there is still no response to a request for information from the primary radar data.

There was a question about the MH17 crash investigation from Almaz-Antey (the essence of which is the Buk in question was a part of the Ukrainian Army’s arsenal). Was that taken into account?  According to the JIT, that information was taken into account but did not impact the final conclusion.

Another popular question direct to the JIT’s Ukrainian representative focused on why Ukrainian airspace over the conflict zone was not closed. The Dutch attorney headed off this line of questioning by noting that the matter is not the focus of the investigation. The topic was covered in the October 2015 report from the Dutch Security council, which noted that the Ukrainian regulatory authorities had every reason to close the airspace completely rather than only place limitations on flight altitude.

Incidentally, several flights were in the sky at the same time as MH17, and air traffic over Ukraine has always been heavy. This route is favourable, as well as raises an average $200 million annually in overfly revenues, and the routes are shorter and less expensive for airlines.  The Dutch Security Council pointed out that it is the responsibility of the airlines to determine what routes are flown.

The MH17 crash has become one of the ten worst aviation disasters of all time based on the number of victims, and the crash has captivated the international media for some time, with stories of the suffering of victims’ families, travelers’ fears of flights over the conflict zone, US and European sanctions against Russia, economic losses; as well as the covers of leading magazines featuring Putin along with the aircraft, threats by politicians, and the popular thirst for a tribunal.

But it has been two years and all the reactions – human, social, political, economic – are in the past. The results announced yesterday surprised no one. Although the announcement was covered in the media, the main stories in the business press focused on problems with Deutsche Bank and OPEC’s statement on limiting oil production. The Dutch press covered the story in abbreviated fashion, giving just information with few photographs. This terribly tragedy, which killed almost 300 people, has been permanently removed from the list of hot topics and reduced to boring legalese. The public will certainly forget the story.

The investigation continues, says prosecutor Westerbeke, but he gave no timeframe and made no promises. He noted only that the main stage – bringing the case to court and punishing the criminals – lies ahead. One can speculate on these words, build conspiracy theories – but then there are the relatives of the 192 victims from Holland. For a country of 17 million, this is a major tragedy.

Russia alleges that the the investigation is intended to defame Russia and cover for Ukraine. But what possible motive could the Netherlands, Germany, Belgium, Australia and Malaysia have to cover for Ukraine? There is none. The more obvious motive is to find out who killed their citizens. If the evidence had been different, it would have been made no less public that the BUK system didn’t originate from Russia.

The JIT report noted that during the investigation, approximately 100 people were identified who could in some way be associated with the attack on the airliner or with the BUK missile system. 

Westerbeke called on witnesses to cooperate.  According to the JIT website (www.jitmh17.com), «the investigation team is paying particular attention to the safety of witnesses, and we are ready to take all possible measures to ensure your safety». The founders of bellingcat.com, a resource for investigative journalists, states «they expect that someone will give himself up». The evidentiary requirements are high, as they will need to withstand possible criticism in the courtroom. According to Westerbeke, it is too early to speculate about what the court will discuss.

Several groups of relatives of victim have filed lawsuits against Ukraine, Malaysia, Russia and Malaysia Airlines. Three families from Germany believe that blame should lie with Ukraine for not closing the airspace over the war zone.  Representatives of 33 victims from Australia, New Zealand and Malaysia filed a civil complaint with the ECHR against Russia and Vladimir Putin. As compensation, the lawsuit demanded $10 million to be paid to each victim’s family.

In a Chicago court, 18 families of victims filed suit against Russian citizen Igor Strelkov (Girkin), and demanded compensation in the amount of $900 million.

And what about the Tribunal? Last year, Russia blocked a UN Security Council resolution on the tribunal but it can still be established based on agreement between Ukraine and an international organization such as the UN or the Council of Europe, said Marat Davletbaev, head of the international practice at Nektorov, Saveliev & Partners.

As examples, Davletbaev cites the Special Court for Sierra Leone in 2002, which investigated crimes committed during the civil war, and the Special Tribunal for Lebanon in 2007, which investigated the assassination of former Lebanese Prime Minister Rafik Hariri.

This Tribunal will be endowed with criminal jurisdiction over Ukraine, making it possible to investigate crimes on Ukrainian territory. The experience of international tribunals suggests that the proceedings could last for years.

Such a tribunal cannot prosecute a state, but rather private individuals. Among these could be officials of any country, including Russia, Davletbaev explains. But the Tribunal’s decision will not be binding for Russia, and a country has the right to refuse the extradition of its citizens.

It turns out that from a legal point of view, Russia can ignore any tribunal decision. Of course, political risks remain, including the potential for tightened sanctions. But it seems that Russia has already reached the point of no return in this respect. 

Meanwhile, the Russian government persists in its denial, the State news agency TASS states on its website that alleged separatists downed a Ukrainian transport airplane. The report dated 17 July, 2014.

Russian version published by Forbes Russia

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