Malaysia Airlines Flight 17/Criminal Investigation

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Event.png Malaysia Airlines Flight 17/Criminal Investigation Rdf-entity.pngRdf-icon.png
MH17 suspects.jpg
Date28 July 2014 - Present
DescriptionThe investigation into the fate of Malaysia Airlines Flight 17

On 19 June 2019, Bellingcat published a report based on SBU phone intercepts that were said to allow the identification of most of the individuals alleged to be involved in the downing of MH17, and some new suspects.[1] On the same day, at a press conference in the Netherlands by the Joint Investigation Team (JIT), the Dutch chief prosecutor, Fred Westerbeke announced that four suspects are to face murder charges for the shooting down of MH17 in a trial due to start in March 2020 in the Netherlands. The suspects were named as Igor Girkin, a former colonel of Russia’s FSB spy service; Sergey Dubinskiy, employed by Russia’s GRU military intelligence agency; and Oleg Pulatov, a former soldier with the GRU’s special forces spetsnaz unit. All were Russian soldiers previously sent abroad. A fourth suspect, Leonid Kharchenko, is a Ukrainian who was alleged to have led a military combat unit in the city of Donetsk.[2]

Initial meeting

On 28 July 2014, a meeting was held at Eurojust in The Hague. Public prosecutors and investigators from the 12 countries involved in the investigation into the crash of MH17 met to discuss their judicial cooperation strategy. Those present were from Ukraine, where MH17 went down, plus the 11 countries whose citizens had been victims - the Netherlands, Australia, Malaysia, UK, Belgium, Germany, the Philippines, Canada, New Zealand, Indonesia and the USA. Europol and Interpol representatives were also present. A criminal investigation had already commenced, at that time, by Ukrainian, Dutch, Australian, American and Malaysian investigators. The Dutch Public Prosecution Service, having already started the coordination of international cooperation, had requested the assistance of Eurojust in arranging the coordination meeting. Additionally, the meeting was to discuss establishing a Joint Investigation Team (JIT), which was to focus first on the technical and forensic investigation in Ukraine.[3]

Investigation Team

Authorities from from the Netherlands, Australia, Belgium and Ukraine signed an agreement, on 7 August 2014, to set up a joint investigation team (JIT) to investigate the crash of Malaysia Airlines Flight MH17. The announcement from The Dutch National Public Prosecutors Office, stated that this would be with the "participation" of Malaysia and Eurojust.[4] The following day, the four investigating nations signed an agreement that the results of the investigation would not be published unless all four countries agreed. Freedom of Informatin requests in Holland and Australia, for details of this agreement, have been refused on grounds that "it could endanger the relations with other countries involved", "the agreement's contents were classified" and that disclosure of the document "could reasonably be expected to, cause damage to the security, defence, or international relations of the Commonwealth"(Australia) [5][6]

According to a BBC report of 17 August 2014, because two-thirds of the 298 people on board Malaysia Airlines Flight MH17 were from the Netherlands, the Dutch had taken the lead in identifying the bodies, trying to establish what caused the crash and running the criminal investigation. Wim de Bruin from the Dutch prosecution service, who had been dealing with press inquiries from all over the world as passengers from 10 different countries were on board Flight MH17, said "Never before have we had a murder case with so many victims." Ten Dutch prosecutors and 200 police officers were involved in gathering and preparing the evidence for a criminal trial. The Dutch prosecutors were still in the initial stages of the criminal investigation, but they had already dismissed speculation that the trial could be held at the International Criminal Court in The Hague. The ICC only takes cases if countries are unable or unwilling to prosecute. The Dutch are willing and able.

Under the current plan, the suspects would be extradited to face trial at the District Court in The Hague. But extradition would require the host country's co-operation, once the suspects are identified. Wim de Bruin says they are considering "several grounds and possibilities" concerning the charges:

"Of course murder, but we also have the crime of 'wrecking an airplane' and we could use international criminal law - that would mean possible charges of war crimes, torture and genocide."[7]

On 12 September 2014, prosecutors in the Netherlands said that they needed to know where a missile that may have shot down Malaysia Airlines flight MH17 was fired from in eastern Ukraine before criminal charges could be laid. "When we know from where it was fired, then we can find out who controlled that area," and possibly prosecute, Dutch chief investigator Fred Westerbeke told journalists in Rotterdam. Westerbeke said that they had not yet obtained US satellite photos of areas from which a missile might have been launched. Intercepted telephone conversations between separatists allegedly talking about shooting down the plane have not yet been authenticated. "We are studying the intercepted telephone call," Patricia Zorko of the Dutch national police said of one of the conversations. "The conversation is between rebels who allegedly shot down the plane, but we really need to authenticate it," she said. The remains of the victims have been examined and forensic autopsies used to gather evidence. There were about 500 particles / traces found on bodies and luggage. About 25 metal particles needed to be examined to determine whether they originated from a possible weapon, or parts of the interior of the aircraft or from the aircraft itself. The prosecutors appear to believe that a SAM (surface-to-air missile) is the more likely scenario but, because the preliminary crash investigation hadn't specifically identified a SAM as the cause, other possibilities still needed to be eliminated. see Prosecution Report 12 Sep

In November 2014, Malaysia protested at its exclusion from the Joint Investigation Team (JIT), which includes the Netherlands, Belgium, Ukraine, and Australia. Malaysian police chief Khalid Abu Bakar demanded the "active participation of Malaysian experts in the work of the joint investigative group" and said he would travel to Amsterdam on 3 December 2014 to discuss Malaysia’s participation in the process with JIT members, joined by attorney general Abdul Gani Patail.[8][9] On 1 December 2014, it was announced that Malaysia had been accepted as a full and equal member of the MH17 Joint Investigation Team.[10] Although, with two of the parties (Ukraine and Australia) having already declared that Russia is guilty, and able to veto the publication of the investigation's results, it is unlikely that anything will come to light unless the JIT can prove that Russia and/or the dissidents did this. The JIT has had 2835 days to establish this so far.