1. Introduction
1.1. The
downing of flight MH17 and the ensuing investigations and legal
proceedings
1. On 17 July 2014, Malaysia
Airlines flight MH17 was shot down over eastern Ukraine. The plane
was en route from Amsterdam to Kuala Lumpur. On board were 283 passengers
and 15 crew members. Among the passengers were 196 Dutch nationals.
All 298 people on board died.
2. On 21 July 2014, the United Nations Security Council unanimously
adopted
Resolution
S/RES/2166 (2014) demanding that those responsible be held to account
and that all States co-operate to establish accountability.
3. After every air disaster, two parallel strands of investigation
must be distinguished: the air safety investigation under the Convention
on International Civil Aviation (Chicago Convention) (Annex 13)
shall determine the causes of the disaster and draw lessons from
any shortcomings in safety arrangements found for purposes of improving
future air traffic safety, without apportioning any blame or responsibility.
In parallel, the competent law enforcement bodies shall attempt
to establish criminal responsibility of individual perpetrators
of a (negligent or intentional) offense. The international competence
for criminal investigations and prosecutions can derive from the
place where the crash occurred or from where it was caused (locus delicti), the place of origin
of the flight, and the nationalities of the perpetrators or the
victims of the offense.
4. As far as the downing of MH17 is concerned, the air safety
investigation under the Chicago Convention was delegated to the
Dutch Onderzoeksraad Voor Veiligheid (OVV),
on proposal of the
National
Bureau of Air Accidents Investigation of Ukraine, on account of the large number of Dutch victims and
the fact that the flight originated in Amsterdam.
The OVV presented its final report
on 13 October 2015. It concluded that flight MH17 was brought down
by a Russian-made 9M38-series Buk missile carrying a model 9N314M
warhead.
5. The parallel criminal investigation by the Joint Investigation
Team (JIT) led by the Dutch Prosecution Service and the Dutch National
Police in co-operation with their colleagues from Australia, Belgium,
Malaysia and Ukraine has the purpose of holding to account persons
who may bear criminal responsibility for the catastrophe. The Dutch
prosecution service has indicted four suspects: Igor Girkin, Sergey
Dubinskiy, Oleg Pulatov and Leonid Kharchenko. Three of the four
suspects named by the Dutch prosecution service have Russian nationality
and one is Ukrainian. As they are out of reach of the Dutch and
Ukrainian authorities, the suspects are being tried in absentia in the Netherlands.
In December 2021, the Dutch prosecutors have requested life sentences
against all four accused. A first instance judgment, which will
be open to appeal, is expected later this year.
6. In January 2017, Ukraine instituted proceedings against the
Russian Federation before the International Court of Justice (ICJ)
based on the International Convention for the Suppression of the
Financing of Terrorism and of the International Convention on the
Elimination of All Forms of Racial Discrimination (
Ukraine v. Russian Federation ). This application also covers the
MH17 case in so far as the Russian Federation is formally accused
of having provided the separatists with the missile used to shoot
down the Boeing.
7. In July 2020, the Netherlands lodged an interstate application
against the Russian Federation before the European Court of Human
Rights under Article 33 of the European Convention on Human Rights
(ETS No. 5) in “the pursuit of truth, justice and accountability”.
Previously, individual applications
under Article 34 of the Convention were lodged by 380 relatives
of the victims (
Ayley and Others v. Russia and
Angline and Others v. Russia). The
Dutch Government participates in those proceedings as a third party
under Article 36 paragraph 1 of the Convention. The Dutch Minister
of Foreign Affairs announced that
“[t]he
contents of the interstate application will also be incorporated
into the Netherlands’ intervention in the individual applications
submitted by the victims’ next of kin against Russia to the European
Court of Human Rights.” The MH17 case is also part of the interstate application
Ukraine lodged against the Russian Federation in 2016 (
Ukraine v. Russia, No. 8019/16). On
27 November 2020, the Court’s Grand Chamber decided to join the
cases of
Ukraine v. Russia (re
Eastern Ukraine),
Ukraine v. Russia (No.
43800) and
The Netherlands v. Russia (no.
28525/20) into a single case “
Ukraine
and the Netherlands v. Russia”. A first oral hearing
focusing on admissibility issues took place on 26 January 2022.
I attended part of it.
8. In March 2022, the Netherlands and Australia also launched
proceedings against the Russian Federation before the International
Civil Aviation Organization (ICAO) under an article of the Chicago Convention
designed to protect civilian aircraft from weapons fire introduced
in 1984 after the downing of a South Korean airliner by Soviet fighters
the year before.
1.2. Interpretation
of the mandate and objectives of the report
9. In the words of the authors
of the motion underlying this report
,
it is of “utmost importance that justice be done and that all member
States fully co-operate with the efforts in this respect by those
States that have jurisdiction. Under Article 2 of the European Convention
on Human Rights, all States Parties have the duty to carry out effective
investigations to identify and punish those responsible for the
loss of life that occurred under their jurisdiction. Suspects for
serious crimes should be either extradited on the request of the
State undertaking the investigation and prosecution or prosecuted
in their home State, if this State does not extradite its own nationals.”
10. In line with the motion, I saw it as my task to “inquire
about the extent to which countries have carried out investigations
required under the European Convention on Human Rights and co-operated
with one another as instructed by the United Stations Security Council
and to make appropriate recommendations”.
11. I will not attempt to second-guess or anticipate on behalf
of the Parliamentary Assembly the results of the air safety investigation
or the findings of the JIT. The Assembly has neither the mandate,
nor the expertise, nor the resources to do such a thing. But it
is mandated to inquire and assess whether all States Parties to
the European Convention on Human Rights have fulfilled their duty,
under Article 2, to properly investigate and sanction any loss of
human life. This assessment, which I submit to the Assembly in this
report is political, not judicial, as the Assembly is not a court
of law. On a personal basis, and without prejudice to future independent judicial
determinations, I feel obliged, especially vis-à-vis the victims’
families and friends, to share also my own conclusions also on the
question of how flight MH17 was destroyed. I base myself solely
on objective facts, which I interpret impartially.
12. In this report, before drawing conclusions in line with my
mandate, I will briefly present the investigations carried out so
far at national and international levels, focusing on progress made
and obstacles encountered by the investigators.
1.3. Fact-finding
visit to The Hague and Kyiv (31 January-4 February 2022)
13. I should like to express my
thanks to the Dutch and Ukrainian delegations for organising very
useful meetings with all relevant stakeholders in The Hague and
Kyiv. I was particularly moved by the dignity and emotional strength
displayed by the numerous relatives of the crash victims I met in
The Hague. These meetings brought home the unspeakable horror of
what the passengers and crew of flight MH17 must have gone through
when their plane was hit by a missile, and the unending suffering
of their friends and relatives. It is obvious that in order to find
closure, they need to know the whole truth about what happened to
their loved ones, and how and why, and to see some measure of justice
meted out to those responsible for this tragedy. Instead, their
suffering was prolonged and made even worse by the outright lies
and ever-changing “versions” of the events that were spread by the
Russian authorities and the rulers of the so-called people’s republics
of Donetsk and Luhansk and by the total lack of respect for the
victims’ remains displayed by the pro-Russian separatists who were
in control of the crash site.
2. Investigations at international and
national levels – progress and obstacles
14. After the catastrophe, and
the diffusion in the international media of the horrible images
of the wreckage of the plane and the human remains scattered over
a large area in the conflict zone in eastern Ukraine, it soon became
clear that the cause of the crash was not a malfunction of the plane
or pilot error, but the impact of a weapon of war. Investigations
were hampered by the fact that the crash site was located in a zone
under the effective control of separatist militias supported by
Russia. There were even reports of looting of the personal belongings
of crash victims. Only days after the crash, investigators from
Ukraine, Malaysia and Australia and journalists, accompanied by
observers of the Organization for Security and Cooperation in Europe
(OSCE), were able to access the crash site.
15. As after every air disaster, two types of investigations have
to be carried out urgently, and independently from one another,
namely an air safety investigation to identify the causes of the
crash and criminal investigations to establish any criminal responsibilities.
2.1. The
Air Safety Investigation under the Chicago Convention
16. The objective of the technical
investigations conducted under the international requirements established by
Annex 13 to the Chicago Convention is not to apportion blame, but
to draw appropriate lessons from any air disaster for the sake of
improving air traffic safety in future.
17. The OVV which conducted the air safety investigation under
the Chicago Convention presented its final report on 13 October
2015. It concluded that flight MH17 was brought down by a Buk missile,
more precisely by a 9N314M-type warhead of a 9M38M1-type surface-to-air
missile, mounted on Russian-built Buk mobile air defence systems.
The warhead was identified beyond doubt by characteristic (bow-tie
shaped and square) fragments found in the wreckage and in the remains
of crew members. The fuselage had suffered the impact of more than
800 high energy objects originating from one spot outside the plane,
their shape excluding air-to-air cannon shot. The OVV report also
carefully considers and excludes any other causes for the crash
such as a lightning strike, a hit by a meteorite or space debris,
an explosion on board, expansive engine failure, lack of airworthiness
of the plane and the crew.
18. The investigators identified characteristic sound peaks in
the last 20 milliseconds of the CVR (Cockpit Voice Recorder) recording
and located their source as being outside the plane, above the left
side of the cockpit. The OVV report also establishes that no alerts
or warnings of technical malfunctions were recorded on the CVR and
the FDR (Flight Data Recorder). The OVV notes that the flight recorders
could not be recovered by the Annex 13 investigation team. They
were removed by two unknown officials and handed over only on 21 July
2014 to a Malaysian official in separatist-controlled Donetsk.
19. Radar data made available to the OVV by the Ukrainian and
Russian authorities show that no other planes were in the vicinity
of MH17, with the exception of three other commercial airliners,
the closest at a distance of about 30 km. The OVV notes that the
Russian authorities provided only video recordings of radar screens
and not the raw radar data, which the Russian Federation claimed
were not stored as they did not concern Russian airspace. The OVV
recalls that this violates ICAO standards.
20. The OVV notes that it was first given access to the crash
area only on 4 November 2014 and could only recover the wreckage
in two missions starting on 16 November 2014 and 20 March 2015.
It was however given access to information collected by other investigators
given access earlier. But the OVV also notes that some pieces of
wreckage identified as having been in the wreckage area shortly
after the crash were not found during the recovery missions. The
conditions of the transfer of the human remains for purposes of
identification are not described in the report (see pages 83-86
and 164-165). The description of the likely effect of the impact and
the subsequent disintegration of the plane into three main segments
(cockpit, cabin, tail) on the passengers makes for chilling reading
(page 165).
21. A large part of the OVV report is dedicated to describing
and analysing the degree of risk of flying over a conflict zone
such as that in eastern Ukraine (but also Afghanistan, Syria, Iraq,
South Sudan, which commercial airliners overfly routinely in altitudes
considered safe, as being out of the effective range of weapons
used in these conflicts, such as “MANPADS” (portable surface-to-air
missiles). It notes that in the months and days preceding the downing
of MH17, the Donbass conflict had indeed extended into the air. Several
Ukrainian helicopters, transport planes and even fighter jets were
downed by the separatists supported by Russia, who clearly had “MANPADS”
at their disposal. Most of the Ukrainian military aircraft shot
down were hit at low altitudes.
But
in two cases, a military transport plane (Antonov AN-26) and a fighter
jet (Sukhoi SU-25) were hit at altitudes nearing the prescribed
cruising altitude for commercial aircraft.
These
incidents, which were well-known also to Western observers, did
not give rise to the complete closure of the airspace for commercial
aircraft by Ukraine (lower altitudes had been closed beforehand),
or to warnings by governments addressed to their national carriers
to avoid flying over this region. The OVV merely states the facts,
without apportioning blame to the one or other government. It does
however state that the Dutch authorities were neither obliged nor
even legally entitled to prevent Malaysian Airlines from using the
route over eastern Ukraine mapped out in the flight plan, even though
flight MH17 was a “code share” with the Dutch national carrier,
KLM, and originated in the Netherlands. The airspace over the eastern
part of Ukraine was heavily travelled on the day of the MH17 crash.
Until the airspace was closed, 160 commercial airliners flew over
the area.
22. During my meetings in The Hague and Kyiv, I asked several
interlocutors where a specific warning against flying over the conflict
zone in the Donbass region was given or received. I was told that
this was not the case, as the presence of the Buk missile system
at the disposal of the separatist fighters was not known before
the tragedy happened.
2.2. Criminal
investigations by the Joint Investigation Team
23. The JIT is made up of police
officers and forensic experts from Australia, Belgium, Malaysia,
the Netherlands and Ukraine.
It is led by the Dutch national
police and has a field office in Kyiv. The JIT, set up under the
auspices of Europol, is currently 50-strong
and has access to the
full array of forensic, aviation and military expertise (including
radar, missiles, weapons and explosives experts). The JIT has carried
out extensive forensic analysis of the human remains, and aircraft
debris transported to the Netherlands, stored and analysed at Gilze-Rijen
Air Force Base. The JIT also has access to information collated
by the OVV. It may use information from all sources, but its task
is to gather evidence in accordance with the high standards of evidence
required for use in criminal court proceedings.
24. On 30 March 2015, the JIT released
a video calling for witnesses in eastern Ukraine to come forward with
information regarding the transport of a Buk anti-aircraft system
through eastern Ukraine on July 17th (the day
of the MH17 crash) and 18th, 2014. In
the video, the JIT summarise the transport route of the Buk from Donetsk,
through Zuhres and Torez to Snizhne, to Luhansk, and back to the
Russian Federation with photographs and videos of the Buk along
with intercepted phone calls between separatists. The majority of
this information has been in the public domain since a report by
Bellingcat dated 8 November 2014
. In addition, this video presents
intercepted phone calls made shortly after the downing of MH17 that
further implicate the Russian Federation and the separatists supported
by the Russian Federation. In these three previously unpublished
phone calls, separatists discuss a Volvo low-loader truck hauling
a Buk from Snizhne to the Russian territory shortly after the downing
of MH17.
25. On 28 September 2016, the JIT announced that MH17 was shot
down by a missile of the 9M38 series, launched from a Buk TELAR
system, which had been transported from the Russian Federation to
an agricultural field near Pervomaiskyi, in eastern Ukraine, from
where the missile was launched. After firing – with one missile
missing – the system was transported back to the Russian Federation.
26. On 24 May 2018, the JIT announced its conclusion that the
Buk TELAR system used to shoot down MH17 belonged to the Russian
armed forces’ 53rd Anti-Aircraft Missile
Brigade stationed in Kursk. The JIT also launched a call for witnesses
such as members of the 53rd Brigade in
question.
27. On 19 June 2019, the Dutch authorities announced that based
on the investigation conducted by the JIT the Public Prosecution
Service of the Netherlands would prosecute four suspects for bringing
down the airplane, namely Igor V. Girkin (aka Strelkov), Sergey
N. Dubinskiy, Oleg Y. Pulatov and Leonid V. Kharchenko. The first
three are Russian nationals, Mr Kharchenko is Ukrainian. Mr Girkin
is a former colonel of the Federal Security Service (FSB). On 17
July 2014, he was “Minister of Defence” and commander of the army
of the self-proclaimed Donetsk People’s Republic (“DPR”), from where
MH17 was shot down. As the highest military commander, he also maintained
contact with the Russian Federation. Mr Dubinskiy is a former officer
of the GRU (the Russian military intelligence service). He was one
of Girkin’s deputies in 2014. He headed the intelligence service
of the “DPR” and also maintained contact with the Russian Federation. Mr Pulatov
is a former military officer of the Russian “Speznaz-GRU”, the special
units of the Russian military intelligence service. At the relevant
time, he was one of the deputies of Dubinskiy. Mr Kharchenko, the
only Ukrainian suspect, has no military or special services background.
Receiving orders directly from Dubinskiy, he was commander of a
combat unit in the Donetsk region.
29. On 14 November 2019, the JIT released another call for witnesses,
linked to the publication of several intercepted telephone calls
on its website. The JIT announced that recent analysis of information
obtained by the JIT, including witness statements by former “DPR”
members, revealed that Russian influence over the “DPR” went beyond
military support, as shown by recorded telephone conversations between
the leaders of the “DPR” and high-ranking Russian officials. In
its latest call for witnesses, the JIT reveals details about secure means
of communication used between “DPR” fighters and Russian officials.
The telephone numbers, used daily, belonged to the same series and
appeared to be provided by the FSB. The JIT called for information
on who used these telephone numbers and witnesses who can share
information about those who ordered the deployment of the Buk TELAR
in question.
30. International arrest warrants had been issued and the four
suspects have been placed on national and international lists of
wanted persons. Three of the suspects have Russian nationality,
the fourth is Ukrainian. As the constitutions of both countries
do not allow extradition of nationals, extradition was not requested.
The trial started on 9 March 2020 before the District Court of The
Hague.
31. On 2 December 2019, the Dutch Public Prosecution Service
(PPS) announced that it had informed the Russian authorities of
its request for the provisional arrest of a fifth suspect (“person
of interest”), Mr Vladimir Tsemakh. He was arrested in Ukraine
for other criminal offenses.
The investigation into his role in the downing of flight MH17 is
still ongoing. The JIT, who questioned him several times, considers
him a suspect. But it could not prevent him from being transferred
to the Russian Federation on 7 September 2019 as part of a prisoner
exchange. The PPS immediately requested Russia to arrest Mr Tsemakh
for the purpose of extradition to the Netherlands. As Mr Tsemakh
is a Ukrainian citizen, the Russian Constitution would not prevent
his extradition. The PPS received confirmation of receipt of its
request before the plane even landed in Moscow. But Mr Tsemakh was
not arrested, despite repeated warnings by the PPS that he might
flee to the “DPR”. On 23 September 2019 and several more times after
this date, the Russian authorities requested additional information,
which the PPS said it provided promptly, even though it had no relevance
for the arrest of Mr Tsemakh. The request for his arrest was repeated
at the highest political and diplomatic levels, to no avail. On
19 November, the PPS received notification from the Russian authorities
that the request for the arrest of Mr Tsemakh could not be executed
because his whereabouts were unknown. According to media reports,
Mr Tsemakh had already returned to his residence in separatist-controlled
eastern Ukraine. The PPS concluded that “Russia willingly allowed
Mr Tsemakh to leave the Russian Federation and refused to execute the
Dutch request. While under the European Convention on Extradition,
it was obliged to do so.”
32. Rather astonishingly, Mr Tsemakh has turned to the European
Court of Human Rights to complain about the conditions of his detention
and interrogation in Ukraine.
33. The alleged failure of the Russian authorities to co-operate
with the JIT on the arrest of Mr Tsemakh clearly falls within my
mandate as rapporteur. I have raised it in my meetings in The Hague
and Kyiv. The chronology of events indicated by the PPS was not
contradicted. My Ukrainian interlocutors stressed the fact that
the Russian side had strongly insisted on the inclusion of Mr Tsemakh
in the exchange of prisoners and that the Dutch investigators had
been given the opportunity to interrogate him before he was allowed
to leave for the Russian Federation.
2.3. Investigations
by Bellingcat
34. Bellingcat, a collective of
researchers specialising in fact-checking based on “OSINT” (Open
Source Intelligence) was founded by British journalist Elliot Higgins
and started making a name for itself for investigating the use of
chemical weapons in Syria. It describes itself as “an independent
international collective of researchers, investigators and citizen
journalists using open source and social media investigation to
probe a variety of subjects – from Mexican drug lords and crimes
against humanity, to tracking the use of chemical weapons and conflicts
worldwide. With staff and contributors in more than 20 countries
around the world, we operate in a unique field where advanced technology,
forensic research, journalism, investigations, transparency and
accountability come together.”
Regarding the downing of flight MH17,
Bellingcat carried out several investigations.
35. On 8 November 2014, Bellingcat published a report on the
“Origin of the Separatists’ Buk”. Based on social media posts, in
particular photographs posted online, using different tools permitting
to identify the location where the photographs were taken, and individualising
one particular Buk missile launcher (“3x2”, the x representing the
illegible middle number) by comparing its distinctive features with
others, Bellingcat documented the transportation route of a Buk
system originating from the base of the 53rd Anti-Aircraft
Missile Brigade in Kursk, via a larger convoy from which it separated
and moved close to a separatist-held border crossing. “3x2” was
inside separatist-controlled territory on 14 July 2014, moving from
Donetsk via Zhures and Torez to Snizhne, where it was unloaded from
the (allegedly stolen) civilian low-loader truck about three hours before
the downing of MH17 and taken under its own power to a field near
the village of Pervomayskyi, from where the fateful missile was
fired. A video taken in the early morning of 18 July 2014 shows
the Buk being transported on top of the same low-loader truck through
Luhansk, in the direction of the Russian border – missing one missile.
36. Bellingcat’s 31 May 2015 report on “Forensic Analysis of
Satellite Images Released by the Russian Ministry of Defense” analyses
satellite images showing Ukraine’s Military Unit A-1428 north of
Donetsk on 14 and 17 July 2014, which were presented by the Russian
Ministry of Defence (MoD) at a press conference on 21 July 2014.
Bellingcat compares the Russian images with commercial satellite
images acquired by Bellingcat from Digital Globe of the same location
on 17 July 2014 and images available on Google Earth showing the
same location at several different dates during 2014. Bellingcat
finds that: “It is clear from these comparisons that there are multiple
differences between the Digital Globe 17 July imagery and the Russian MoD’s
14 July 2014 and 17 July 2014 imagery. These discrepancies can only
be explained if the Russian MoD imagery is incorrectly dated. Similarities
between the Russian MoD imagery and Google Earth satellite imagery from
May and June clearly demonstrate that the Russian MoD imagery was
at least a month old on 17 July 2014.”
37. In its conclusion, Bellingcat excludes that the Russian Ministry
of Defence misdated the images accidentally. In a reply to previous
allegations of misrepresentation, the Ministry of Defence had made
the following statement: “The images released by the Russian Defence
Ministry on July 21 are absolutely accurate in terms of the location
and time.”
38. If the Russian MoD deliberately provided misleading satellite
imagery, this would be a clear violation of the Russian Federation’s
duty to co-operate with the investigation into the causes of and
responsibilities for the MH17 disaster.
39. On 17 July 2017, Bellingcat presented its report “MH17, The
Open Source Investigation, 3 Years Later”
. It sums up the information establishing
the transport path and launch site of the Russian Buk that was used
to shoot down flight MH17. The report also includes information
on narrowing down the possible launch site of the missile, including
through geolocation of a photographed missile smoke trail. The researchers
also present detailed information and analysis disproving several
“alternative scenarios” presented in the meantime by the Russian
authorities and the manufacturer of the Buk system, Almaz-Antey.
These include the use of one of the Buk systems in the possession
of the Ukrainian army and the downing of MH17 by a Ukrainian fighter jet.
Last but not least, the Bellingcat researchers also took a first
look at the roles and identities of potential suspects.
40. Bellingcat’s detailed report “’A Birdie is Flying Towards
You’, Identifying the Separatists Linked to the Downing of MH17”
(dated 19 June 2019) establishes the identities of most of the individuals
heard or mentioned in the intercepted conversations released by
the Ukrainian Security Service and the JIT. Bellingcat, again, based
itself on open (mostly digital) sources, trawling through social
networks, online forums, reading leaked messages, using facial recognition
tools and analysing interviews given by separatist soldiers and published
telephone conversations. The researchers thereby established the
hierarchy of the “DNR” forces involved in obtaining and making use
of the Buk system used in the downing of MH17. According to Bellingcat, the
“GRU DNR” led by Sergey Dubinskiy (one of the four suspects named
by the Dutch OVV) was responsible for procuring the Buk missile
launcher in question, and for guarding the Buk at the launch site
around the time when MH17 was shot down. Dubinskiy’s group also
oversaw the transport of the Buk back to the Russian Federation
in an attempt to hide evidence of its deployment – which was “seemingly
approved by the DNR’s most senior commander – Igor Strelkov.”
Strelkov
is one of the aliases of Igor Girkin, another of the four suspects
named by the Dutch OVV. According to Bellingcat, the other two suspects
named by the OVV, Oleg Pulatov and Leonid Kharchenko, also played
key roles in procuring and guarding the Buk. Valery Stelmakh, a member
of another group of separatists first spotted the aircraft (the
“birdie”) and misidentified it as a target; he first reported this
information to his commander, Igor Bezler, shortly before the downing
of the plane. As of Bellingcat’s report, it remains unclear who
channeled this message to the Buk crew – which, according to intercepts,
had definitely come from Russia.
41. In its most recent report on this matter dated 28 April 2020
“Key MH17 Figure Identified as Senior FSB Official: Colonel General
Andrey Burlaka”
,
Bellingcat identified an obviously high-ranking person referred
to in intercepted telephone conversations as “Vladimir Ivanovich”
as Colonel General Andrey Ivanovich Burlaka. The report explains
in detail the methodology used for this “man-hunt” based on public
and leaked data and voice identification tools, which led to the
identification of the person who was clearly in charge of authorising the
delivery of all kinds of military hardware to the ostensibly independent
separatists and without whose consent a large and complex weapons
system such as a Buk TELAR could not have been transported over the
border to Ukraine.
42. The Bellingcat investigations are highly professional and
enjoy a great deal of credibility, based on its track record. In
the letter I sent to the Russian authorities, as authorised by the
committee, I referred to the Bellingcat reports and invited the
Russian authorities to provide me with explanations and data that
might put Bellingcat’s findings into question. I did not receive
any reply, although the letter was sent well before the Russian
Federation’s exclusion from the Council of Europe. This strengthens
my conviction that these findings reflect the actual facts.
2.4. Different
versions of the events spread by Russian authorities and media
43. The Russian Federation rejects
the findings of the Dutch OVV, the accusations made by the JIT and
the information and analysis published by Bellingcat outright.
44. In particular, the Russian Ministry of Defence stated that
no Russian army missile system had ever crossed the Ukrainian border.
At a press conference on 21 July 2014, the MoD presented satellite
imagery to show that a Buk battery belonging to the Ukrainian military
might have brought down MH17 (this was rebutted by Bellingcat, see
above). At the same press conference, the MoD presented images purporting
to show that the video showing the transport of a Buk battery through
(separatist-held) Donetsk was in fact filmed in (government-held)
Krasnoarmeysk, as evidenced by a billboard purportedly showing the
address of a car dealership in this town. But in its article of
16 July 2015 “Russia’s Colin Powell Moment – How the Russian Government’s
MH17 Lies Were Exposed”,
Bellingcat
convincingly established that the video was indeed filed in Donetsk
and that the images presented by the MoD were manipulated.
45. In June 2015, Almaz-Antey (the State-owned Russian manufacturer
of Buk missile systems) held a press conference in Moscow presenting
the results of their own investigation into the destruction of MH17 which
confirmed that it was hit by a Buk 9M38M1 surface-to-air missile
armed with a 9H314M warhead. Shrapnel holes in the plane were consistent
with that kind of missile and warhead, it said. Such missiles had not
been produced in the Russian Federation since 1999 and the last
ones were delivered to foreign customers. Almaz-Antey added that
the Russian armed forces now mainly use a 9M317M warhead with the Buk
system. It also said that Ukraine’s armed forces still had nearly
1 000 such missiles in its arsenal in 2005, when it held talks with
Almaz-Antey on prolonging their lifespan. But the Russian military
still has 9H314M warheads for Buk missiles, too.
The Almaz-Antey study
also postulates an alternative zone for possible launch sites.
46. To further bolster the thesis that a Ukrainian Buk brought
down MH17, the Russian Ministry of Defence presented additional
radar data “accidentally discovered” in September 2016 during “scheduled
maintenance” which purports to show the missile coming from Ukrainian
Government–held territory, namely from a field south of Zaroshchenske.
But this radar data is considered inconclusive by the JIT and other
international experts.
Given
the fact that Zaroshchenske itself and its surrounding areas were
held by separatist forces around 17 July 2014, this location would
have been an unlikely choice for the Ukrainian military to expose
a vulnerable and valuable missile system.
Also, the field south of Zaroshchenske
was not within the area of possible launch sites depicted in the
investigation by Almaz-Antey.
Bellingcat, with the help
of commercial satellite imagery of the same area at different times,
demonstrated conclusively that satellite images provided by the Russian
Ministry of Defence in support of its “Ukrainian Buk theory” were
misdated.
47. In an article dated 22 April 2016,
Bellingcat
published a detailed response by the Russian Ministry of Foreign
Affairs to Bellingcat’s findings until then, followed by a rejoinder
refuting the MFA’s replies point-by-point. The MFA’s reply to Bellingcat
is the closest I could find in terms of an engagement of the Russian authorities
with the findings of the various international investigations.
48. As to the purported “motive” for Ukrainian forces shooting
at an airliner mentioned by Russian sources – namely that Ukraine
intended to shoot down a plane carrying President Putin (who was
travelling around this time from Moscow to Warsaw) – experts pointed
out that a missile fired from Zaroshchenske could not possibly reach
a plane flying much further north between Moscow and Warsaw.
49. Another “version” spread by Russian officials was that flight
MH17 was shot down by a Ukrainian fighter jet. But that version
was also widely rejected by international experts. The type of aircraft
allegedly used (a SU-25 ground attack plane) was technically not
capable of carrying out such a high-altitude attack, and the purported
“witness”, Evgeny Agapov, who described how a Ukrainian pilot (Captain
Voloshin) returned from a combat mission distraught and with a missile
missing from its plane did not withstand scrutiny; nor did the radar and
satellite imagery and the tweet of a Spanish air traffic controller
in Kyiv presented in support of this version.
Another variant of the “jet fighter
version” purportedly involved a Ukrainian MiG29 or SU-27 fighter jet,
both of which are technically capable of high-altitude attacks.
Russian State TV showed satellite images purporting to show MH17
and an approaching fighter jet. But a closer look at the images
revealed that they were clearly manipulated: the Boeing in the picture
did not have the Malaysian Airlines markings in the right place
and the scale of the planes, in relation to features visible on
the ground, was completely wrong.
50. In my above-mentioned letter, I asked the competent Russian
authorities for clarification regarding the obvious contradictions
between different “versions” and supporting
materials presented to the international investigators. I did not
receive any answer. In light of all available information, it appears
that the one or the other, if not all of the different “versions”
spread by the Russian authorities are false. Such misleading statements,
let alone the presentation of manipulated radar and satellite data,
clearly contravene the Russian Federation’s international obligations
to co-operate in the establishment of the truth.
2.5. The
Malaysian position
51. On 17 July 2019, Malaysian
Prime Minister Mahathir Mohamad was quoted by the Russian News Agency
TASS as claiming that the Malaysian investigators had been excluded
from the investigation, that the case was political and that investigators
were blaming Russia from the beginning without examination. He had been
awarded
the Russian Order of Friendship by Vladimir Putin in 2003.
52. By contrast, the Malaysian prosecutor Mohamad Hanafiah bin
Zakaria, who was part of the JIT, said at
a
press conference in the Netherlands on 19 June 2019 that the findings
of the investigation “are based on extensive investigations and
also legal research,” adding: “We support the findings.”
3. Conclusions
and final comments
53. The Dutch OVV, the Joint Investigation
Team and Bellingcat published their results successively, step-by-step,
always providing more detail and further corroboration of the narrative
according to which a Buk missile originating from Russia, launched
from a separatist-held territory in eastern Ukraine, was used to
shoot down MH17. By contrast, the Russian Federation has been spreading
different “versions”, even simultaneously, according to which one
or another Ukrainian fighter jet, or a Ukrainian Buk had brought
down the plane. As shown by evidence collected meticulously by international
investigators, including the OVV, the JIT and Bellingcat, much of
the satellite, radar and video material presented by the Russian
authorities in support of these versions lacks credibility. By submitting
manipulated data, the Russian authorities clearly failed in their
duty to co-operate with international investigators in establishing
the truth.
54. During my information visits to The Hague and Kiyv, I made
it clear that it is not within my mandate to take position on the
legal apportionment of individual guilt or State responsibility
for the downing of MH17. The criminal responsibility of individual
perpetrators will be determined in due course by the Dutch courts
dealing with the accusations brought against the persons identified
by the JIT; and State responsibility will be determined by the European
Court of Human Rights in Strasbourg, which deals with the interstate
applications brought by Ukraine and the Netherlands against the
Russian Federation, and within the limits of their competences by
the ICJ and the ICAO. But my mandate allows me to present the Assembly
with a conclusion as to whether all States potentially involved
have fulfilled their duty to co-operate in establishing the truth
about what exactly happened to flight MH17, and why.
55. One of the key takeaways from my information visits is the
unanimous view of all my interlocutors that the Russian authorities
failed to provide data they must have in their possession, such
as relevant primary radar data, and that they were generally not
responsive or co-operative, but responded in a dilatory and formalistic
manner. One mutual legal assistance request from the Netherlands
to interrogate certain individuals in the Russian Federation was
refused outright, with the tell-tale explanation that answering
it would run against the interests of the Russian Federation.
I was told that the information submitted
by the Russian Federation was never sufficient or complete; sometimes
it was even wrong. They had “only bad memories”, and the Dutch OVV
even discovered an attempt to hack into its server emanating from
a Russian location. My Dutch interlocutors expressed their frustration
with the “bad faith” of their Russian counterparts in even stronger
terms than the Ukrainian officials who, in light of their previous
experiences, had clearly not expected any better from the Russian
Federation. By contrast, the Dutch and Ukrainian officials were
all pleased with the level of co-operation they received from each
other.
56. Most importantly for the purposes of this report, my interlocutors
in the Hague and Kiyv pointed out that the Russian authorities actively
spread disinformation and provided manipulated data – which were convincingly
disproved by international investigators, as we have seen above
(paragraphs 43-50).
57. This said, I cannot help noting that I did not receive data
I requested from the United States authorities either, including
data likely to have been collected by Airborne Warning and Control
System (AWACS) aeroplanes over the conflict zone, warships participating
in a naval exercise taking place in the Black Sea at the time or
satellite data that should be available given the fact that the
downing of MH17 took place in a conflict zone that must have been
under close surveillance from several sides. My interlocutors in
The Hague hinted that the United States had shared certain data
with the Dutch prosecution and the OVV on a confidential basis. It
would be preferable if these data could be made public at some stage,
provided this does not create security risks by exposing working
methods, capabilities and sources.
58. Given that it is in any case not the role of the Assembly
to take position on the issue of individual criminal responsibility
or State responsibility, I do not consider it necessary to wait
for the completion of the ongoing legal proceedings, in the Netherlands
and before the European Court of Human Rights, the International
Court of Justice and the International Civil Aviation Organisation.
The national and international courts and specialised organisations
concerned can be trusted to adjudicate the cases before them in
full independence and without any political interference. The questions
before the courts are difficult ones – did the crew of the Russian
Buk know they were targeting a civilian plane? If not, should they
have known? Was their mistake caused by negligent or even reckless
behaviour? Is the Russian Federation responsible for the actions
of the Buk crew, either because it made such a powerful weapon available
to unreliable operators, or because the crew members were effectively
controlled by, or even belonged to the Russian military? How high
in the military or political hierarchy does any criminal responsibility
reach? These questions, however important, do not fall within the
mandate of the Assembly as such.
59. But on a personal basis, as indicated above, I should also
like to express my own conclusion as to how flight MH17 was destroyed.
I have studied the detailed findings of the Dutch OVV as well as
those by the JIT and Bellingcat. I met with numerous interlocutors
in The Hague and Kyiv, including representatives of the Ukrainian
Security Service (SBU), and I listened to the intercepted communications
between separatist commanders shortly before and after the downing
of flight MH17. In light of all the information I collected, I cannot
help concluding that it was indeed a Russian Buk missile from the
53rd Brigade in Kursk transported to separatist-held
territory in Ukraine shortly before the tragedy which shot down
the Malaysian Boeing. The final determination is of course up to
the courts, which will also decide on who exactly has incurred criminal responsibility
for this tragedy, whether they acted intentionally or recklessly,
and whether State responsibility attaches to the supply by the Russian
Federation of the Buk missile truck in question (without the central
radar unit) for use in a conflict zone over which numerous civilian
aircraft were still passing at high altitude. This said, I believe
that I owe it to the victims’ families, whose despair coupled with
dignity has deeply impressed me to state clearly what I believe
has actually happened to flight MH17.
60. As far as the Assembly’s mandate is concerned, my findings
are sufficiently clear and solidly based to conclude that the Russian
Federation has indeed failed to fulfil its obligation under international
law to co-operate in good faith with the international investigations
led by the Dutch OVV, the JIT and the Dutch prosecutor’s office,
which were properly delegated to perform these investigations by
the countries concerned.
61. The second issue the Assembly is entitled and indeed duty-bound
to comment on is the devastating effect that the Russian failure
to co-operate and its disinformation campaign has had on the families
and friends of the 298 victims of this tragedy. I was moved very
much by the testimonies of family members I met in The Hague, and
I am appalled by the callousness of the Russian authorities’ response
to their pleas for help with establishing the truth. To expose the
victims’ relatives to disinformation and changing “versions” of
the events prolonged and worsened their suffering. In order to find
closure, the victims’ families and friends need the truth about
all the circumstances that allowed such a tragedy to happen, and
they need a measure of accountability of those responsible. It is
my deeply felt wish that the Assembly makes a small contribution
to this end.
62. I should like to add a final observation. Already in 2016,
the Assembly, in the report by our former colleague Marieluise Beck
(Germany, ALDE),
established beyond reasonable doubt
that the separatists operating in the Donbass region of Ukraine
were fully controlled by the Russian Federation. Their leaders were members
of different Russian security services. They enjoyed military support
not only in the form of ample supply of weaponry, including the
notorious Buk battery which shot down flight MH17, but also in the
form of regular Russian soldiers including those who intervened
in the notorious battle of Ilovaisk, where up to 400 Ukrainian soldiers
were killed at short range in the safe “corridor” they had been
promised for retreat.
The fact
that these Russian soldiers wore no insignia, as did the “green
men” who took over Crimea shortly before, or that they were purportedly
“on holiday” from the army does not change the fact that they were
Russian soldiers.
63. The creation of an “alternative reality” through the endless
repetition of false allegations and the official denial of obvious
facts can also be observed very clearly during the ongoing full-scale
aggression against Ukraine. While pictures show beyond any doubt
the almost complete destruction of the city of Mariupol, including
hospitals, schools, theatres and residential areas, the Russian
propaganda claims that Russian bombs and rockets hit only military
objectives. After the discovery of the atrocities committed by Russian soldiers
in the vicinity of Kiyv, and in particular in Bucha, the Russian
Government offered mutually exclusive alternative “versions” – namely
that the murders of hundreds of civilians discovered after the departure
of the Russian military had been committed by Ukrainian “nazis”,
or that the bodies filmed were in fact those of actors taking part
in a “provocation” by Ukraine. The ample video footage, witness
testimony, satellite imagery showing that the bodies were already
littering the streets before the departure of the Russian troops
are simply refuted as “fake”.
64. This is the same modus operandi Russia
used in the MH17 case: obfuscating the truth by creating confusion,
alternative “versions” supported by fake evidence, with the intention
to let the general public tire and end up concluding that there
is no truth and that nothing, or just anything, can be believed.
We must continue to resist this perfidious strategy, by performing
thorough, unbiased research and meticulously documenting evidence,
using all the technical tools available to establish the truth and
debunk lies. This is what the Dutch OVV, the JIT and non-governmental
groups such as Bellingcat have done to establish the circumstances
of the downing of flight MH17.