The first two days in the trial of three Russians and a Ukrainian over the downing of Malaysian Airlines Flight 17 (MH17) over Ukraine on July 17, 2014, have demonstrated just how incriminating the proceedings will be for Russia. The latter’s track record of state-organized killings in Qatar, the United Kingdom, Germany, Turkey and Bulgaria was cited as one of the reasons why certain witnesses’ identity must be kept secret, with the need for such protection having been recognized by the examining magistrate.
Such witnesses include the person identified as M58 who “has stated that Russian military personnel, whom the DPR fighters said were from the FSB, were with the Buk TELAR at the launch site.” Witness S24 was said to have expressed fear of reprisals by the Russian Federation, of being killed “so as to prevent the truth from coming out.”
The Joint Investigation Team (JIT) notes that it found evidence that the same Russian FSB (security service) and GRU (military intelligence) involved in state-sponsored killings abroad “are also closely involved in the armed conflict in Ukraine.”
Such evidence is not confined to witnesses’ accounts, but is found also in intercepted phone calls which, the prosecutor explains, were subjected to rigorous verification procedure. Such phone conversations reveal “various forms of involvement on the part of the GRU and FSB in the armed conflict in eastern Ukraine.” There are also some calls in July 2014 where members of the armed groups discuss having received “the green light from Moscow to execute somebody” and “an order from Moscow to shoot someone.”
This is constantly denied by Moscow, which claims that the Russians whose presence cannot be denied are there as “volunteers.”
The prosecution names other “clear indications that Russian security services are actively attempting to disrupt efforts to establish the truth behind the shooting down of flight MH17,” including the involvement of Russian GRU agents in hacking attacks against both the Dutch Safety Board during its investigation of the MH17 downing and of the Malaysian investigative and prosecution authorities. Nor are the Russian security services seen as acting independently, with the prosecutor stating that there “are strong indications that the Russian government is very keen to thwart this investigation, and that it is not averse to deploying the Russian security services to do so.”
Four men are accused of involvement in the downing by a Russian Buk missile of MH17, and the killing of 298 passengers and crew members. The Dutch Public Prosecutor asked the Russian authorities to interview the three Russian defendants: Igor Girkin, former FSB colonel; Sergey Dubinsky (former GRU) and Oleg Pulatov (former GRU spetsnaz). A response was only forthcoming in early March, with Mr. Pulatov alone having turned up. The latter, however, invoked his right to remain silent, saying that this was on the advice of his lawyers. The only Ukrainian, Leonid Kharchenko, is in the so-called Donetsk people’s republic (DPR), and it is unclear whether he was able to be directly contacted.
Certainly the only person who is reacting – to some extent – is Mr. Pulatov, who has hired two Dutch lawyers and a Russian legal consultant. The Dutch lawyers have acknowledged that they do not know who is paying them, and it frankly seems highly unlikely that it is Mr. Pulatov himself who is funding his defense. The public prosecutor points out that they have no idea at present of Mr. Pulatov’s position, except that he denies involvement in the downing of MH17 and that the defense has appealed against the magistrate judge’s agreement to allow threatened witness status for several witnesses.
Given the hard-hitting words about Russia’s efforts to prevent the truth from being revealed in this case and the lengths to which it seems willing to go, it is hard to imagine that a court of appeal would reject the need to protect witnesses.
The Public Prosecutor points out that, although Mr. Girkin is not present and has made his unwillingness to participate in the trial clear, he is evidently following proceedings. They therefore ask for an answer to one question. It seems that in February 2015 Mr. Girkin made a witness statement to the Russian authorities in which he reported being informed that “the air defense” had hit a Ukrainian aircraft. This complies with the original reports from the militants immediately broadcast on Russian television, but not with the facts, since only one aircraft was hit that afternoon – not the Ukrainian military plane reported, but the MH17 passenger airliner. Thus, the prosecution invites Mr. Girkin to provide an explanation.
Mr. Girkin is also believed to have been responsible for extrajudicial executions and other war crimes in the Donbas, yet remains perfectly free in Russia. During numerous interviews, he has repeatedly denied that the militants downed MH17, with many speculating as to whether he was not in fact only denying militant culpability and therefore openly holding back from denying that others, probably the Russian military, might have launched the missile. Such speculation would seem to have backing in the testimony of witness M58, who spoke of Russian military personnel, identified by the DPR fighters as FSB, being with the Buk TELAR at the launch site.
During the second day of hearings, March 10, the Public Prosecution Service spoke of various allegations from the Russian Federation of supposed manipulation of material, many of which contradicted each other. It also mentioned a new accusation of manipulation included in the Russian Federation’s written statement of December 31, 2019, in proceedings before the European Court of Human Rights brought by relatives of MH17 victims. Russia challenged the authenticity of a video recording of the BUK Telar, made on July 17, 2014, near the presumed launch site at Snizhne. This is one of the pieces of evidence showing the movement of the Buk TELAR convoy from the 53rd Anti-Aircraft Missile Brigade in Kursk, western Russia. Russia argues that the video cannot be authentic since the metadata of the video shows its creation date to be July 16, 2014, i.e., the day before the plane was downed.
The Dutch Public Prosecutor answered only that it had other evidence also of the convoy moving through Snizhne specifically on July 17, 2014. The prosecution says it wonders why a video that the Russian Federation is claiming was created by the Joint Investigation Team for propaganda should have been made on a day that contradicted this alleged propaganda aim, but that “expert knowledge is needed to respond to the substance of this point concerning the encoded date.”
Within hours, Bellingcat had issued a report about why there was a discrepancy in the metadata that the Russian Federation has tried to use as proof of manipulation. Bellingcat’s statement that this was “a glitch in an open-source video format conversion algorithm used by Google” is easily confirmed or refuted. If confirmed, then Bellingcat is surely justified in asking why Russia should have submitted “a formal defense statement to the European Court of Human Rights without the most basic of due diligence into its validity and into the probity of its arguments.”
These first two days of hearings were essentially about explaining the case, procedure, etc. Appropriately enough, given the extensive efforts to obstruct its search for the truth, the Public Prosecution Service ends with a discussion about the disinformation campaign around MH17 which, it says, began as soon as it became clear that it was a passenger airliner that had been downed – not the Ukrainian military plane initially reported on the Russian LifeNews and other propaganda channels.
“The Russian narrative is aimed solely at sowing doubt about the evidence pointing to a Russian Buk missile and at disqualifying the JIT’s investigation… ,” the prosecution says. “The fate of flight MH17 has become known as a textbook example of a disinformation campaign by the Russian government. It is clear we have not yet seen the end of it. “
A letter from the Dutch government to Parliament in 2019 had stated that “we must be prepared for disinformation aimed at adversely affecting the criminal proceedings and undermining trust in the independent judiciary.” The Public Prosecutor notes that the warning proved to be justified and gives a detailed account of new attempts to discredit the investigation, based on leaks which it believes may be linked to the earlier attempts by the Russian GRU to hack the Malaysian police and attorney general’s office.
“The cynical disinformation campaign regarding the fate of Flight MH17, which has gone on for more than five years now, places a heavy strain on many of the next of kin. As we already stressed in our opening statement, the next of kin of victims of serious offenses deserve to receive clarity about what happened and who is responsible, at the earliest possible moment. Especially if government authorities are involved,” the Dutch Public Prosecutor underscored.
The next hearing of the MH17 case is scheduled for March 24.