On 17th of July 2014 Malaysia Airlines MH 17 was directed to vary its scheduled flight path flying over Ukraine en route to Kuala Lumpur from Amsterdam. Air traffic control ordered the playing to fly 200 km north of its original flight path.
The new route took it directly over a war zone where the Kiev regime, that had seized power in a right wing coup five months earlier, was waging war on its own, predominantly Russian speaking citizens, in the Donbass and Lugansk region of Ukraine.
While flying at 10,000 m over Ukrainian territory MH17 was shot down, killing all 298 passengers and crew on board, mainly Malaysians, but also including significant numbers of Dutch and Australian citizens or residents.
When such a tragedy occurs, there are certain procedures that are normally followed. These procedures include setting up an independent air accident investigation team to carry out a forensic examination of the scene, and to recover as much as possible of the remains of both the aircraft and of the passengers and crew. Ancillary investigations would include obtaining and analyzing material such as radar data, satellite data where available, and air traffic control records.
Where, as in this case, there is a plausible reason to believe that the plane’s destruction resulted from an unlawful act, then additional protocols of a criminal investigation also come into play.
One of the dominant features of the MH 17 tragedy however, are that nearly all of these procedural safeguards have being violated. To take some obvious examples.
Less than one hour after the plane came down, the air traffic control tapes were seized by members of the Ukrainian secret police, the SBU, and have never been seen since.
The then United States Secretary of State John Kerry revealed that the United States knew what had happened because of their satellites in stationary orbit overhead. That data was later made available to the joint investigation team (JIT) sent up to control the investigation, but on condition the contents of the satellite data were not made public.
To date that is still the case. If the satellite data did in fact provide support for the “blame Russia” meme that has been one of the constant aspects of this whole saga, one might have thought its early release would have been a priority.
Another feature of a criminal investigation is that the investigation is carried out by persons with no stake in the outcome. This is reflected in a very old maxim of natural justice, nemo judex in causa sua; literally, no one should be a judge in their own case.
Astonishingly, the joint investigation team initially set up was comprised of the Netherlands, Australia, Belgium and Ukraine. The first two are explicable in that the flight originated in Amsterdam, and both the Netherlands and Australia lost a large number of their citizens or residents.
Belgium’s participation is only explicable given the geopolitical context of this tragedy (see Kees van der Pijl Flight MH17, Ukraine and the New Cold War Manchester University Press, 2018) that it is the headquarters for NATO. To include Ukraine however, is a fundamental violation of that basic principle. It was, and for the reasons discussed below, is even more so today the prime suspect. Malaysia was initially excluded from the investigation team, again for no plausible reason.
Not only was the structure of the investigation compromised, that compromise was compounded by the signing of a secret agreement in August 2014 by the four countries that no information from the investigation would be released without the approval of all of the parties to the agreement. This is unprecedented. It gives the prime suspect, Ukraine, an effective veto over the results of the investigation.
It is little wonder that the countries involved have refused to release the text of the agreement.
The other fundamental principle of any investigation is that judgement is withheld until all of the evidence is collated, has been tested, and the culpability of a person(s) or nation(s) has been established to an appropriately high standard.
This basic principle has also been violated. The Australian government in particular (one can discount for obvious reasons anything the Ukrainians might say) has been especially outspoken in its condemnation of Russia from a very early stage of the investigation.
This reached its pinnacle in a joint statement by Foreign Minister Julie Bishop (now relegated to the backbench) and Prime Minister Malcolm Turnbull (now sacked by his colleagues and out of parliament) on 21 May 2018 when they said “we hold Russia responsible for its role in the downing” (of MH17. The joint statement referred to the “further significant findings” of the joint investigation team, “including that the missile system used to down MH 17 belonged to the Russian army.”
Bishop and Turnbull were both notorious for their “joined at the hip” attachment to the United States view of the world, which included an irrational dislike of Russia, matched only by their profound ignorance of that country. Their replacements as Foreign Minister and Prime Minister are even worse.
Whether through ignorance or embarrassment, the Australian government has been remarkably silent in the face of the release of actual evidence by the Russian government. The JIT briefing in May 2018 disclosed the identification numbers of the BUK missile attributed with the shooting down of MH 17.
This was nearly four years after the event and it is a fair question to ask why it took so long for this fundamental evidence to be disclosed. The cynic might suggest that the JIT (excluding Malaysia) were committed to pinning the blame on Russia, and using discredited sources such as Bellingcat to “prove” the transport back and forth across the Russia/ Ukraine border of the BUK missile. As a result, the manifold flaws in the investigation and real evidence were systematically disregarded.
On 17 September 2018 Russian defence ministry spokesman General Igor Konashenkov and the head of the main Missile and Artillery Directorate Lieutenant General Nikolai Parshin provided the breakthrough that had long been missing from the investigation and which had only become possible once the JIT had released the crucial data enabling identification of the BUK missile.
The Russian authorities were then able to search through the relevant records (now declassified) and as a result of the investigation the following facts have been established:
(a) That the missile was made in Dolgoprudny, Russia in 1986.
(b) It was delivered by rail to Ukraine on 29th of December 1986 where it was subsequently deployed. It was never returned to Russia.
(c) The unit that had possession of the BUK was located “in the city of Stryi in the Lvov region, where it has been repeatedly involved in so called anti-terror operations in the Donetsk and Lugansk regions.”
(d) That analysis of the Bellingcat video relied upon by the JIT purporting to show the missile launcher being returned to Russia was fake (per spokeswoman Svetlana Petrenko).
(e) That Russia had audio recordings of telephone conversations involving Ukrainian Colonel Ruslan Grinchak, which implicated Grinchak’s unit in the shooting down of MH 17.
(f) Grinchak’s unit was also responsible for radar tracking and on 17 July 2014 was tracking MH17 (which also confirms that the Ukrainian authorities were lying about the radar being “closed for maintenance” that day.
It seemingly never occurred to Western journalists to ask an obvious question: if all the radar was “closed” that day, how was it possible for any flights to safely traverse Ukrainian air space?
The Dutch authorities have acknowledged receipt of the Russian material, made available pursuant to Russia’s obligations under the provisions of United Nations Security Council resolution 2166.
And the reaction from the United States and Australian governments, normally so quick to condemn Russia? A total silence. It would be naïve to expect anything approaching an apology for the appalling statements made about Russia over MH 17 and its President Vladimir Putin. That would be breaking the habits of a political lifetime.
Perhaps however, there will be less of a rush to judgement in the future. The earlier premature and unwarranted accusations have only added to the pain brought about by this tragedy. It is clear that that tragedy is overwhelmingly likely to have been caused by the corrupt and dangerous regime infesting Ukraine. It is long past time for the Western nations to acknowledge that reality and adjust both its rhetoric and its policies accordingly.
James O’Neill, an Australian-based Barrister at Law, exclusively for the online magazine “New Eastern Outlook”.