In the weeks leading up to the publication of the Dutch Safety Board’s report into the MH17 tragedy, the drum beat from the Western media was that it would say MH17 was shot down by a BUK surface to air missile launched from militia controlled Snezhnoe.
In the event, when the report was published, it confirmed that MH17 had been shot down by a BUK surface to air missile, but failed to identify the precise launch point.
It instead identified a huge area extending over 320 square kilometres, from any part of which it said the BUK missile could possibly have been launched, whilst admitting that more forensic tests were needed to confirm this.
Whilst Shezhnoe lies just within this area, at the time of the tragedy the area was a bitterly contested war zone, and it is simply impossible to infer that it was definitely the militia who launched the missile from this area, if it was indeed from this area that the missile was launched.
Almaz-Antey, the BUK missile system’s manufacturer, continues to insist – as it did previously – that the launch point was not in this area at all, but was at Zaroshchenskoye, a settlement 7 kilometres south of Shakhtorsk, which was controlled at the time by the Ukrainian army.
To those of us familiar with the Western media, the disappointment at the failure to pinpoint the launch point was obvious.
The report received little coverage, and was quickly relegated to the back pages. By the following day as a news story it was dead.
Tjibbe Joustra, the chair of the inquiry, was so obviously embarrassed that after delivering the report he refused to take questions.
Instead he spoke to some Dutch journalists in the corridors of the Dutch parliament building where – away from Russian journalists – he did say the BUK missile was launched from militia controlled territory.
In doing so Joustra went beyond what is in his own report.
What happened that prevented the report giving a precise answer to this critical question?
It is not in fact difficult to reconstruct what happened, though one has to go to Russian sources to do it.
The Russian aviation agency Rosaviation says the first draft of the report did identify Snezhnoe as the launch point.
When the Russians were provided with the first draft, they vigorously complained that their input was being ignored. According to some reports, they took their complaints directly to the head of the International Civil Aviation Organisation(the “ICAO”).
It seems that as a result the report was watered down, leaving the precise launch point unidentified.
In the process the Dutch Safety Board has hidden behind the claim that under ICAO rules it lacks the authority to determine the precise launch point. This is a claim it has made before, and which is often made by its defenders.
Supposedly its report is a purely forensic report limited to the question of what caused the crash – a BUK missile or some other malfunction or object – and which is not concerned with who launched the BUK missile and from where it was launched.
This claim is based on a misreading of Annex 13 to the Convention on Civil Aviation, which sets out the rules and procedures for air accident investigations.
Annex 13 prohibits an air accident inquiry from apportioning blame or liability, and says that these are questions that need to be dealt with separately.
That however reflects the fact that an air accident inquiry conducted under Annex 13 is set up to establish how an accident happened.
It is not a court of law, able to decide legal questions.
Blame and liability are legal questions, which only a court of law, not an accident inquiry, can determine.
Annex 13 in no way limits an accident inquiry from carrying out a full and thorough investigation of an air crash to establish how it happened. On the contrary it requires it.
Nor does Annex 13 prevent an accident inquiry from interviewing witnesses. On the contrary paragraph 5.4 of Annex 13 specifically provides for it.
Nor does Annex 13 say an accident inquiry cannot identify persons whose actions might have led to the air crash. As it happens the report does identify some of the persons who were responsible for the MH17 air crash, namely the Ukrainian authorities, who it says failed to close the air corridor through which MH17 was flying as they should have done since the air corridor lay over a war zone.
The report avoids using witness evidence, with responsibility to obtain such evidence being passed to the Joint Inquiry Team (“JIT”) that is carrying out a parallel criminal probe.
This brings to the fore the precise relationship between the Dutch Safety Board, whose inquiry was conducted under Annex 13 and whose report has just been published, and the JIT.
The Dutch Safety Board’s inquiry originates from UN Security Council Resolution 2166, passed immediately following the tragedy, which requires “a full, thorough and independent international investigation into the incident in accordance with international civil aviation guidelines” (ie. Annex 13).
Resolution 2166 makes no reference to an investigation undertaken by a body like the JIT. That investigation was set up independently soon after Resolution 2166 was passed, without reference to the Security Council, by a group of states including the Netherlands, Belgium, Australia and Ukraine following private discussions between each other (Malaysia joined several months later).
The setting up of a second inquiry under a veil of secrecy before the “full, thorough and independent international investigation” set up by the Security Council had even begun its work is extraordinary and points to the error made by Australia’s inexperienced foreign minister Julie Bishop when she proposed Resolution 2166.
She failed to realise that an inquiry set up by the Security Council under “civil aviation guidelines” would mean an inquiry in which the Russians had a say.
That is why the Russians – to Bishop’s surprise – voted for Resolution 2166 and why a few weeks later, probably following angry recriminations behind the scenes, an entirely different inquiry independent of the Security Council and not bound by “international civil aviation guidelines” and from which the Russians were excluded, was hurriedly set up.
What that has meant in practice is that the Dutch Safety Board has decanted responsibility for the more difficult work it ought to have done to the JIT. In order to justify doing that, it is hiding behind a narrow interpretation of Annex 13.
As it happens so far from being prevented by Annex 13 from identifying the launch point the report discusses the question at length and even solicits technical advice about it.
If it was Russian intervention that knocked the inquiry off its intended course, have we nonetheless learnt anything from its report?
It is now clear beyond doubt that MH17 was shot down by a BUK surface to air missile.
Those who have persisted with the SU25 theory need now to accept this fact. The shrapnel evidence is conclusive, and they are arguing with Almaz-Antey – the BUK missile system’s manufacturer – not just with the Ukrainians and with the Dutch Safety Board. That is a hopeless position to take, and those taking it risk losing credibility and becoming marginalised in any further discussions about this tragedy.
We also now know that the BUK missile used to shoot down MH17 was an older version of the missile, still used by the Ukrainians, but not apparently by the Russians.
The report has accepted Almaz-Antey’s first claim that the BUK missile was of a type the Russians stopped making some time ago.
Based on further analysis Almaz-Antey now says the BUK missile was an even older variant than they originally thought, which stopped being made as long ago as 1986 (ie. before the USSR broke up).
Regardless of which variant of the BUK missile was used, if it is indeed the case that both of these types of BUK missile are no longer used by the Russian military, then the Russian military’s direct involvement in the tragedy becomes extremely unlikely and can for practical purposes be excluded.
The report has not adopted Almaz-Antey’s latest finding on the age of the missile, possibly because it came too late for it to be included in the report or – more probably – because the Ukrainians reject it.
The information that the BUK missile that shot down MH17 was an early generation missile no longer in service with the Russian military does not however prove that MH17 was shot down by the Ukrainian military.
It leaves open the possibility the militia captured the missile from the Ukrainians, as some reports suggest and as the German intelligence agency the BND apparently believes, or that it was taken out of a reserve stock of old missiles held somewhere in Russia and was smuggled across the border.
The report casts doubt on the claim the militia captured an operational BUK missile launcher at a Ukrainian military base. The Ukrainians say the launcher the militia captured was not operational. Western intelligence sources appear to agree.
As for the claim that the claim that a BUK missile launcher was smuggled across the border, that claim remains completely unsubstantiated, and we now know from the report that despite the size of the BUK missile system Western intelligence had no information before the tragedy that the militia possessed such a system (see below).
The report shows how busy the air corridor through which MH17 flew was at the time of the tragedy. It seems a large proportion of the aircraft using the corridor were Russian, which argues against the Russians supplying the militia with a BUK system, which might put their own aircraft at risk.
To conclude, the fact the BUK missile that shot MH17 down was an old version of the missile apparently no longer used by the Russian military does tend to point to the Ukrainian military, but does not conclusively prove their involvement.
In all other respects the report is unsatisfactory.
It does not identify the precise launch point.
It makes no mention of the US satellite imagery US Secretary of State Kerry in an interview given 3 days after the tragedy said the US has in its possession.
The report does not even say whether or not this evidence even exists or whether the Dutch Safety Board has asked to see it.
There are suggestions this evidence is so highly classified it cannot be disclosed or even discussed.
The report however refers – albeit at second hand – to radar evidence from NATO AWACS aircraft provided to the Dutch Safety Board at its request by the NATO command. That evidence presumably is also classified.
There may be a good reason why the NATO AWACS evidence has been declassified to the point where it can be discussed in the report, whilst the US satellite evidence has not been declassified so that it apparently cannot be discussed or even mentioned in the report. However if so we do not know what that reason is.
The elephant in the room that the report refuses to see is however the Ukrainian BUK missile launchers we know from Russian satellite imagery were present in the area at the time of the tragedy.
Attempts to discredit the Russian images of these launchers have been made by the Ukrainian authorities and by Bellingcat. They have ended in abject failure. The presence in the area at the time of the tragedy of these launchers is incontrovertible.
The report in fact admits that the Ukrainians were known before the tragedy to have had anti-aircraft systems capable of shooting down MH17 in the area. The report does not however say that some of these were BUK missile launchers.
The report makes no reference to these launchers though their relevance to the question of how MH17 was shot down is all too obvious.
The silence about the Ukrainian BUK missile launchers contrasts oddly with the report’s lengthy discussion of the anti-aircraft systems the militia was believed to possess before the tragedy took place. Inconclusive speculations about militia anti-aircraft systems were apparently considered more worthy of inclusion in the report than incontrovertible evidence of the presence of Ukrainian BUK missile systems, despite the fact that it was a BUK missile that shot MH17 down, and despite the fact the Ukrainians have a previous history of shooting down civilian airliners with such missiles.
As it happens the report confirms that neither the Dutch nor it seems the intelligence agency of any other Western power believed before the tragedy that the militia possessed anti-aircraft systems capable of shooting MH17 down, even though other Ukrainian aircraft had been shot down in the previous days over the same area, and even though the area was under the close observation of Western intelligence agencies.
The silence in the report about the Ukrainian BUK missile launchers continues the pattern of Western silence about these launchers that has been evident ever since the Russians first revealed them in their intelligence presentation of 21st July 2014. It is doubtful that more than a tiny fraction of the Western public knows about them. If it did it would radically alter the Western public’s view of the tragedy.
However the single greatest flaw of the report is its failure to take heed of the Russian technical advice – specifically that of Almaz-Antey – even though it is the properties of a Russian weapons system – the BUK missile of which Almaz-Antey is the manufacturer – which is being discussed.
In the case of Almaz-Antey insult is added to injury by the way its advice is misrepresented in the report so as to make it seem that Almaz-Antey has corroborated the Dutch Safety Board’s view that the missile was launched from within the 320 square kilometre area the Dutch Safety Board identifies as the probable launch area. Almaz-Antey actually pinpoints the launch point as being outside this area, but the report makes no mention of the fact.
Even if Almaz-Antey’s objectivity as a Russian state company is doubted, its expertise as the BUK missile’s manufacturer ought to grant its opinion a measure of attention and respect. It should at the very least be the subject of comment and discussion, even if it is in the end rejected.
One senses that the Dutch Safety Board was intimidated by Almaz-Antey’s expertise and was afraid to take Almaz-Antey directly on, but could not accept Almaz-Antey’s advice because it contradicted the Dutch Safety Board’s pre-formed opinions about the tragedy. It therefore simply ignored the advice.
The result is an incomplete and inconclusive report.
What happens now?
Now that the Dutch Safety Board has released its report, the focus shifts to the criminal probe being undertaken by the JIT.
Since this probe is being conducted under a veil of secrecy – with Ukraine having a veto on release of any information – we know very little about it. Supposedly it will report some time next year, with the suggestion that this is taking longer than was originally anticipated.
Since we know so little about this investigation it is impossible to assess the quality of the evidence it possesses. It does not so far seem to include the witness evidence of the political and military leaderships of the two sides, or of the personnel of the various military units, or the log books and communications records of the various military units involved, which look to me essential if a successful prosecution is to be brought. There is no information of this evidence being collected, as there surely would be if it was.
Certainly a successful prosecution would have to rely on evidence significantly stronger than the vague conclusions about the launch site in the Dutch Safety Board’s report, and the social media images and the probably in large measure fabricated radio intercepts beloved of Bellingcat and Elliott Higgins, to stand any real prospect of success in any remotely impartial or independent court.
Assuming there is enough evidence to bring a case, to which court would it be brought?
Since the alleged crime was one that is supposed to have taken place on Ukrainian territory, if a prosecution is brought, the courts with jurisdiction to try it are the Ukrainian courts.
No one takes that possibility seriously. An attempt to set up an independent tribunal was however blocked in the UN Security Council by the Russians, who were never consulted about the setting up of the JIT and who consider it a device to undermine the inquiry set up by Resolution 2166, which they voted for.
In a recent Crosstalk programme for RT in which I participated, the scholar and writer John Laughland suggested that moves might be underway to conduct the prosecution before the International Criminal Court in the Hague.
Whilst that is a possibility, there would be significant legal difficulties. The Rome Statute under which the International Criminal Court was set up does not give it jurisdiction to try crimes committed during internal conflicts.
A way round this might be found, but there would be a risk that in that case that might lead to calls for crimes committed during the conflict by the Ukrainian government to be put under the International Criminal Court’s scrutiny as well. Needless to say that would not be something the Western powers would welcome.
There must also be some people in Washington uncomfortable with the idea of treating the accidental shooting down of a civilian airliner over a war zone as a crime, given that it is something the US has done in the past itself and could conceivably do again.
The uncertainty about which court would try any case the JIT brings – assuming such a case is ever brought – is a reflection of the hurried and secretive way in which the JIT was set up, with no one thinking the implications through.
There must be some people in Washington and Brussels who are by now wondering whether bringing a case is worth the trouble, given how thin the evidence is likely to be, especially at a time when efforts are underway to de escalate the Ukrainian conflict.
The fact that assurances have to be given repeatedly to reassure the Western public and the families of the victims that the resolve to bring the perpetrators to justice remains unchanged, is a sure sign such doubts exist.
One way to get round the difficulty – and to avoid the embarrassment of simply dropping the case – might be to bring charges against lesser people on the grounds that the more important people who were supposedly responsible are either dead or beyond reach.
It is anyway inconceivable that the Russians – who have repeatedly made it known that they will never extradite anybody – will surrender anyone accused of a crime to the JIT or to any court considering a case brought by it, and that fact alone makes it unlikely a trial will ever take place.
Regardless of what happens to the JIT, one case is already underway.
This is the case Almaz-Antey is bringing before the European Court of Justice against the sanctions the European Council has imposed on it.
As of now, on the basis of Almaz-Antey’s presentation and in light of previous precedents, that case looks undefendable.
It will be interesting to see if the lawyers who advise the European Council are of the same view, and if they take any steps to settle it.
There is a third case that is now round the corner.
Prior to the shooting down of MH17 the Ukrainians claimed the Russians had shot down two of their aircraft: an AN26 transport and an SU25 ground attack bomber.
These aircraft were flying in the same general area in which MH17 was shot down.
The Ukrainians say these aircraft were flying at an altitude of more than 6,000 metres, much higher than short range man portable anti aircraft missiles (“MANPADS”) of the sort known to have been possessed by the militia could reach.
The Ukrainians claimed these aircraft were shot down by the Russians using either a Pantsir surface to air missile or an air to air missile launched by a MiG29 fighter.
Those claims are almost certainly untrue.
As the report says, examination of the wreckage of the AN26 suggests it was shot down at a much lower altitude than the Ukrainians say, almost certainly by a MANPADS missile.
The Ukrainians however refuse to retreat from these claims.
By doing so they have hoisted themselves on their own petard.
By claiming some of their aircraft were shot down from a much higher altitude than a MANPADS missile can reach, the Ukrainians have opened themselves up to criticism in the report that they should have closed the airspace through which MH17 was flying to commercial aircraft.
This criticism almost certainly exposes the Ukrainians to claims in negligence from the victims’ families.
It is likely Western governments, who the report says were given this information by the Ukrainians but who also failed to warn their aircraft to stay away from the area, are now exposed to claims in negligence as well.
There are difficulties of sovereign immunity and jurisdiction in the way of bringing such claims. Ways round these obstacles however almost certainly exist. It is a certainty there are lawyers looking for those ways as I write this.
If or rather when claims in negligence are brought, it will be interesting to see if Almaz-Antey is called as an expert witness. If that happen then the situation will become, as the lawyers say, very interesting.