MH17. Tattered flight
Ukraine and the Netherlands have released technical investigative reports on causes of a crash of Malaysia Airlines Boeing 777 shot down out of the sky over Donetsk in July 2014. UNIAN correspondents witnessed both presentations.
Five of the countries whose nationals were on board the ill-fated plane - the Netherlands, Malaysia, Australia, the UK and Belgium - have not learned anything new about what happened on July 17, 2014. Just like a year ago, the investigation announced that the plane had been shot down. It was downed by a missile from an air defense systems Buk-M1 (manufactured in Russia only). Those who launched a deadly missile and those who gave a criminal order were left behind the scenes and behind a multiple-volume technical report which was fully disclosed only to a limited number of people.
On the morning of October 13, the Dutch authorities – as the Netherlands is the most affected party and coordinator of the main body of the investigation – said that the details will be presented behind closed doors to the relatives of victims and the officials from the Dutch Safety Board. Chairman of the Board Tjibbe Joustra noted that the press will only be briefed on technical aspects and told how the tragedy took place. The official urged the journalists not to specify any other details.
The presentation of the Dutch report was held in a large hangar at a Gilze-Rijen air base. Behind a speaker stood the reconstructed sections of the front of the downed Boeing 777 passenger jet. And it was in tatters. This is how a cockpit looked, penetrated with high energy metal fragments of the Buk missile. Three members of the crew died immediately, the rest in a few seconds lost consciousness. The passengers were “barely able to comprehend the situation in which they found themselves.” The aircraft broke apart in mid-air.
Joustra stressed that the Board’s investigation was not aimed at revealing the exact site of a missile launch within a 320 square kilometer area, as this issue is beyond its mandate. The official said Ukraine and Russia should do it. However, The Board’s chief expressed doubt that there a few chances an objective investigation will be held considering Russia’s behavior.
This was tacitly confirmed in Moscow. A correspondent of a Dutch TV channel was reporting from the Russian capital just ahead of the presentation, passing the news that the Russian side continues to stubbornly deny complicity in the crash. He recalled that when the Americans bombed a hospital in Afghanistan, they acknowledged their mistake and apologized. "Is it possible in the case with Russia?" the studio asked. The journalist’s answer was negative.
Representatives of the Dutch Safety Board said that the investigation will continue, to identify those responsible - down to the executors of a fatal launch. And when we will know who has done it, it won’t be that significant to know where it has been done from. It will be important to punish those who launched the missile and those who gave the order.
"It was a terrorist attack. The missile was directed specifically to hit the crew, so that even an emergency landing was not possible."
A Ukrainian report was presented simultaneously in Kyiv at a Government’s press center packed with reporters. Four dozen TV cameras captured a video simulation of the airplane’s collision with the missile. "The missile was fired from a militant-controlled territory, [the village of] Snizhne. It was a Russian Buk-M1 missile. It was a planned terrorist attack,” said Gennadiy Zubko, Vice Prime Minister of Ukraine, head of the interdepartmental commission for the investigation into the causes of the MH17 crash. “The missile was set on a collision course. Its trajectory clearly suggested that it was supposed to hit the crew, so that even an emergency landing was not possible."
He stressed that the technical findings of the Ukrainian experts fully support the conclusions of the Dutch investigators on how the tragedy happened, and caused it. "It was a terrorist act," said Zubko, immediately dismissing all insinuations about fighter jets which “attacked” a Malaysian airplane or a tip-off of the air traffic controllers.
Zubko also confirmed that, after the technical stage of the investigation the criminal stage will follow. "A criminal investigation should be completed in February 2016. And we expect that the criminal investigation will give definite answers to the questions on this terrorist act,” Zubkov said. “Of course, this term may be extended. But what we see in the technical report lets us see how cynical this terrorist act was."
At the same time, Zubko stressed the importance of not only identifying those responsible, also preventing such situations in the future. Dmytro Babeychuk, head of the State Air Traffic Service UkSATSE, shared this opinion. "Unfortunately, we have sad experience. Yes, we have become experts in the investigation of air crashes... Now our task is not only to ‘dot the i’s,’ but also to prevent such accidents in the future," said Babeychuk, adding that Ukraine’s experience will be actively used in developing the protocols on aviation safety of the International Civil Aviation Organization (ICAO).
However, the judicial prospects of the case still look dim. While the Ukrainian experts say that Ukraine, in cooperation with an international team of investigators, is able to prove the guilt of those complicit in the crime, everybody believes that it is unlikely that the perpetrators will be punished. In the best case, it may be possible to prosecute the executors of the terrorist act (the Buk’s combat crew), but not those who gave the order to bring down a plane (or deploy and put to combat readiness military equipment that has killed hundreds of innocent people in the separatist-controlled territory).
The fact that, under current construction of the world's legal system all the war crimes and crimes against humanity must be considered by the UN Security Council, as stressed by Deputy Foreign Minister of Ukraine Lana Zerkal. Without this body’s resolution no trial or prosecution are possible of senior officials of the Russian Federation, who gave consent to deployment and use of air defense systems in the militant-controlled areas of the Ukrainian territory. Today, Russia is not just an interested party but also a permanent member of the UN Security Council and has the right to veto any resolution. Zerkal reminded that it was Russia, which stalled a UN SC resolution on setting up an international MH17 tribunal. So now it is necessary to find a different way to establish such a tribunal, says the Deputy Foreign Minister. Otherwise, the diplomat said, Ukraine's efforts aimed at prosecuting the criminals will be in vain.
"The prosecutor decides who to prosecute and what the grounds are for prosecution. However, for the prosecutor to express his opinion there must be some kind of trial," says Zerkal.
Who will bear responsibility?
The human rights activist Stanislav Batrin has told UNIAN that, in his opinion, it is only possible to really speak of the responsibility of Russian mercenaries – the Buk’s crew who shot down a civilian airliner. "And only after that can we talk about the tribunal against Russia for aiding terrorism. It is not too late to do it. It’s important that that the Ukrainian authorities record the evidence and legalize it in courts. In the form of ‘guilty’ verdicts," said Batrin.
International lawyer Roman Marchenko, a senior partner at the Ilyashev and partners law firm has told UNIAN that if the culprits will be identified in the course of the criminal investigation, as Ukraine and the Netherlands hope, Ukraine may open its own criminal case declared those accused wanted in Interpol. "If they get caught anywhere in the world any civilized country should extradite them to Ukraine for trial. Also, such a criminal case can be initiated not only by a country where a crime took place, but also in the other states, for example, in the Netherlands and Malaysia. These countries can also expect to bring the perpetrators to justice. In addition to criminal liability, there is also civil responsibility. That is, all the victims - the carrier and the relatives of the victims may file civil claims for damages against the individuals who controlled the Buk. Accordingly, we are talking about two main things - civil and criminal liability," said Marchenko.
So far, these are the only directions where legal developments can lead. However, the investigation will continue. In memory of the victims. To prevent this from repeating. "Ukraine, like other countries, may refer to the Russian criminal case. There is a principle of "extradite or prosecute" in international law. Accordingly, if Russia refuses to extradite them, the case may be forwarded to Russia," said Marchenko, adding that Russia it is unlikely that someone will hand the case over to Russia in the hope of a fair trial. He also noted that even if the perpetrators are hiding in other countries, including Russia, legal practice will know mechanism of prosecution even for such cases.
Iryna Somer, Gilze-Rijen, the Netherlands; Olesia Safronova, Kyiv