Latest, News, Our Picks, Sections

Joint Investigation Team on MH-17: Why the case is still open

A disregard of Russian technical evidence, a failure to produce US evidence, and a heavy reliance on social media, video, radio intercept, and eye-witness evidence originating from Ukraine, leaves the case open.

As widely anticipated the so-called Joint Investigation Team (JIT) investigating the circumstances of the shooting down of MH17 delivered a preliminary report on Wednesday 28th September 2016 which said that MH17 was shot down by the east Ukrainian militia from a location near the town of Snezhnoe with a BUK missile supposedly smuggled to them from Russia.

This theory has been in circulation since almost immediately after MH17 was shot down.  It relies heavily on social media reports and videos of a BUK missile launcher supposedly being moved around eastern Ukraine.  Some of this evidence is also backed by claims by eye-witnesses, and radio intercepts.

The first point to make about the investigation that published these findings on Wednesday is that its instigator is Ukraine.

Ukraine as the country in whose airspace MH17 was shot down has the right to set up an inquiry to look into the facts of the tragedy, and that is what it did.  It also invited a selected group of other countries to join its inquiry, and that is what happened. 

That Ukraine is the instigator of this investigation is confirmed by UN Security Council Resolution 2166 of 21st July 2016, whose paragraph 4 reads as follows:

“(The Security Council) recognises the efforts under way by Ukraine, working in coordination with ICAO and other international experts and organisations, including representatives of States of Occurrence, Registry, Operator, Design and Manufacture, as well as States who have lost nationals on MH17, to institute an international investigation of the incident, and calls on all States to provide any requested assistance to civil and criminal investigations related to this incident.”

(bold italics added)

In other words this is a Ukrainian investigation which certain other countries, namely the  Netherlands, Australia and Malaysia – all allies of the US and of Ukraine – were invited to join, and which they agreed to join. 

Contrary to some claims, this is not an investigation set up by the Security Council, which merely “recognised” Ukraine’s intention to set it up. 

Russia was not invited to join the investigation, and has played no role in it. 

Reports say it was the Ukrainians who carried out most of the field work, and who produced most of the evidence.  The nature of the evidence presented on Wednesday confirms that this is so.  It is the sort of evidence that could only have come from Ukrainian sources.

The countries which agreed to join the investigation were required to sign a non-disclosure agreement which gave Ukraine the right to veto publication any findings of the investigation.  The fact Dutch officials have taken the lead in presenting the findings of the investigation and appear to have played a significant role in it, should not obscure the fact that it was Ukraine that set up the investigation, and which mainly conducted it.

At the time the investigation was set up Ukraine was or ought to have been a suspect in the case.  MH17 was shot down in its airspace at a time of armed conflict. Its military possess the means to shoot aircraft such as MH17 down, and there was at the very least a possibility that they might have shot it down.

Any investigation set up by a suspect in a case in which the suspect continues to play a major role by definition cannot be impartial or independent. This investigation therefore is not impartial or independent.  The fact certain countries agreed to join an investigation set up by Ukraine in such circumstances amounts to a presumption on the part of those countries of Ukraine’s innocence and of others’ guilt.  The fact the report adopts Ukrainian political language (for example the east Ukrainian militia are called “separatists”) is a sign of this.

The report is therefore best understood as what it actually is: a presentation of the prosecution case in the case Ukraine wants to bring against the people it accuses of shooting down MH17.  What has happened is that Ukraine has brought in the help of outside countries – first and foremost the Netherlands but to a certain extent also the US – to lend its case credibility and to strengthen some of its technical aspects.

A  separate investigation into the tragedy was also carried out by the Dutch Safety Board, which reported last year.  This investigation was conducted under the aegis of the International Civil Aviation Organisation. 

This investigation also receives mention in Resolution 2166, whose preamble reads in part as follows

“Stressing the need for a full, thorough and independent international investigation into the incident in accordance with international civil aviation guidelines, noting in this regard the crucial role played by the International Civil Aviation Organization (ICAO) in aircraft accident and incident investigations, and welcoming the decision by ICAO to send a team to work in coordination with the Ukrainian National Bureau of Incidents and Accidents Investigation of Civil Aircraft in this investigation, following a request for assistance by Ukraine to ICAO and others”.

The Dutch Safety Board investigation said that MH17 was shot down by a BUK missile but failed to identify the precise launch point, and did not name those responsible for launching the missile. 

It is often claimed that the Dutch Safety Board was prevented by paragraph 3.1 of Annex 13 to the Convention on International Civil Aviation (which says that “it is not the purpose of this (investigation) to apportion blame or liability”) from identifying the launch point and from saying who was responsible for the launch of the missile.  This is to confuse the question of “blame and liability” – which depends on circumstance and intention – with the wholly separate question of cause.

The Dutch Safety Board decanted the question of the location of the launch point and the identity of those responsible to the team that reported on Wednesday.  It is difficult to avoid the feeling that this was done because as the Dutch Safety Board investigation was carried out under ICAO rules the Russians were parties to it and had a right to submit evidence and receive and comment on the findings.  By contrast since the Russians have no role in the investigation which reported on Wednesday, they were frozen out of its work. 

I have discussed the Dutch Safety Board report at length.  Briefly in my opinion it suffered from two fundamental flaws. 

The first was the failure to discuss the verified presence of Ukrainian BUK missile launchers in the area where MH17 was shot down.  Here is what I had to say about that

“The elephant in the room that the report refuses to see is however the Ukrainian BUK missile launchers we know from Russian satellite imagery were present in the area at the time of the tragedy.

Attempts to discredit the Russian images of these launchers have been made by the Ukrainian authorities and by Bellingcat. They have ended in abject failure. The presence in the area at the time of the tragedy of these launchers is incontrovertible.

The report in fact admits that the Ukrainians were known before the tragedy to have had anti-aircraft systems capable of shooting down MH17 in the area. The report does not however say that some of these were BUK missile launchers.

The report makes no reference to these launchers though their relevance to the question of how MH17 was shot down is all too obvious.

The silence about the Ukrainian BUK missile launchers contrasts oddly with the report’s lengthy discussion of the anti-aircraft systems the militia was believed to possess before the tragedy took place. Inconclusive speculations about militia anti-aircraft systems were apparently considered more worthy of inclusion in the report than incontrovertible evidence of the presence of Ukrainian BUK missile systems, despite the fact that it was a BUK missile that shot MH17 down, and despite the fact the Ukrainians have a previous history of shooting down civilian airliners with such missiles.

As it happens the report confirms that neither the Dutch nor it seems the intelligence agency of any other Western power believed before the tragedy that the militia possessed anti-aircraft systems capable of shooting MH17 down, even though other Ukrainian aircraft had been shot down in the previous days over the same area, and even though the area was under the close observation of Western intelligence agencies.

The silence in the report about the Ukrainian BUK missile launchers continues the pattern of Western silence about these launchers that has been evident ever since the Russians first revealed them in their intelligence presentation of 21st July 2014. It is doubtful that more than a tiny fraction of the Western public knows about them. If it did it would radically alter the Western public’s view of the tragedy.”

The second arguably even more fundamental flaw was the way the evidence of Almaz-Antey, the Russian company which manufactures the BUK missile system, was misrepresented

“The single greatest flaw of the report is its failure to take heed of the Russian technical advice – specifically that of Almaz-Antey – even though it is the properties of a Russian weapons system – the BUK missile of which Almaz-Antey is the manufacturer – which is being discussed.

In the case of Almaz-Antey insult is added to injury by the way its advice is misrepresented in the report so as to make it seem that Almaz-Antey has corroborated the Dutch Safety Board’s view that the missile was launched from within the 320 square kilometre area the Dutch Safety Board identifies as the probable launch area. Almaz-Antey actually pinpoints the launch point as being outside this area, but the report makes no mention of the fact.

Even if Almaz-Antey’s objectivity as a Russian state company is doubted, its expertise as the BUK missile’s manufacturer ought to grant its opinion a measure of attention and respect. It should at the very least be the subject of comment and discussion, even if it is in the end rejected.”

Almaz-Antey has pinpointed the launch site not in the 320 square kilometre area from where the Dutch Safety Board says the missile was launched, but from a different area near the village of Zaroshchenskoe near Shakthorsk where Russian military satellite imagery has shown a Ukrainian BUK missile launcher present at roughly the time of the tragedy.

The investigation team which reported on Wednesday has repeated and compounded these flaws. 

It has nothing to say about the Ukrainian BUK missile launchers, whose presence is not acknowledged.  As for Almaz-Antey’s evidence about the launch point being Zaroshchenskoe, that was summarily dismissed by Wilbert Paulissen, the Dutch chief investigator, with these words

“From the wealth and diversity of the other evidence gathered by the JIT, we have no doubt whatsoever the conclusions that we’re presenting today are accurate and that conclusion is that on 17 July flight [2014] MH17 was shot down by a Buk missile, shot from farmland in Pervomaiskiy and the system was brought in from the Russian Federation territory and then returned to the Russian Federation afterwards.”

This fails to address the scientific basis of Almaz-Antey’s evidence.  Instead what Paulissen is in effect saying is that because his team has a “wealth and diversity of other evidence” they feel they can just ignore it.

As to what that “wealth and diversity of other evidence” is, that became all too clear during the presentation on Wednesday: a mixture of social media reports, intercepted radio communications, videos, and eye-witness testimony, all of which must ultimately come from Ukrainian sources, and most of which has been in the public domain for a long time.  Scientific evidence is discussed in the report but barely featured in the press conference and goes unmentioned in most Western media reports.  As Almaz-Antey somewhat acidly commented

“In today’s event the JIT presented the conclusions it has arrived at so far. In the course of the presentation the technical aspects of the investigation were not touched upon. Practically none of them was mentioned.”

Almaz-Antey continues to complain that its expert advice – unparalleled in this field – is going unheeded

“As early as in May, when the documents were turned over to Dutch experts, we understood that they were unlikely to be used for certain reasons. That is why the Russian side sent classified documents to the International Technical Commission on July 29, 2015 and submitted the main characteristics, which correspond to a model used by Almaz-Antei. The commission did not take account of that document.”

Almaz-Antey also says that because its evidence is being ignored the entire model of the tragedy upon which the team is working is wrong

“the entire model was from the outset built for only one version that the missile flew towards the airliner [i.e. from the Snezhnoye settlement].  The full-scale experiment as well as all the previous and subsequent experiments made the Almaz-Antey experts to conclude that the Dutch version of a missile exploding on a head-on course was unreliable. There is a whole number of factors, the unreliable damages in the first place, which prove that.”

This has been the consistent pattern from the earliest days of the tragedy.  The Russians have made public and have provided both teams of investigators – the Dutch Safety Board and the investigators who reported on Wednesday – with reams of technical evidence including scientific tests, satellite imagery and radar pictures.  The fate of this evidence is however to be either misrepresented or ignored.

Meanwhile the US, which immediately after the tragedy claimed to have evidence that pinpointed the location of the missile launch, and which said it was in “militia controlled territory”, refuses to make public the evidence upon which it made that assertion. 

The team on Wednesday claimed the US concurs with its finding the missile was launched from militia controlled Snezhnoe and has provided a statement that supposedly explains the reasons why it on the basis of the evidence in its possession it came to this conclusion.  However since the US has not disclosed the evidence upon which this reasoning is based there is no way to corroborate this.   Instead we are asked to accept that the fact the US has shown its evidence to Dutch intelligence (which agrees with its analysis) is corroboration enough.

In a bizarre twist the US is now actually saying that it is the findings of the team which are corroborating its assertions

“The Team’s interim findings corroborate Secretary Kerry’s statement in the days following the tragedy that MH17 was shot down by a BUK surface-to-air missile fired from Russian-backed, separatist-controlled territory in eastern Ukraine.”

(bold italics added)

Whilst it is difficult to know quite what to make of this, on the face of it it suggests that the claims the US made in the immediate aftermath of the tragedy about the launch point were not as conclusive or as factually based as the US led everyone to think they might be.  Why if they were would they need the team’s “corroboration”?

Regardless of that, the current position is that whilst the Russians provide a deluge of technical evidence, and the US publishes none, the team which reported on Wednesday bases its conclusions principally on information originating from Ukrainian sources.  This of course includes the eye-witness, radio intercept, video, and social media evidence etc.

Most of this evidence has already been in the public domain for some time, where it has been vigorously contested.  There is for example much argument about the interpretation of some of the radio intercept evidence, much of which does not seem to be very conclusive, and which is capable of being interpreted in different ways.

Some more nuggets of evidence were produced on Wednesday, but I have no doubt they will be quickly contested as well. 

To get a flavour of what is coming, consider the dispute over which party was in control of Zaroshchenskoe, the village near Shakhtorsk from where Almaz-Antey says the missile that shot down MH17 was launched. 

The team on Wednesday supported longstanding Ukrainian claims that on the day of the tragedy Zaroshchenskoe was under militia control.  Since they base their findings on information the Ukrainians give them they could hardly do otherwise.  The claim incidentally appears to be largely based on a radio intercept from June 2015, which would be almost a year after MH17 was shot down.  One might have expected more weight on such a subject to be placed on Ukrainian military records.  Regardless, this claim has been strongly disputed by others who have produced a mountain of evidence which they say proves that Zaroshchenskoe was in fact under Ukrainian control. 

Realistically there was no possibility that a team set up by Ukraine would implicate Ukraine, and no possibility Western leaders and the Western media, with their credibility on the line, would ever press for a truly independent inquiry that might have come to that conclusion.

At this point it is worth reiterating that the presentation on Wednesday does not have the status of a court judgment or a board of inquiry report.  Instead it is a presentation by prosecutors of parts of the case they intend to bring in the (unlikely) event of a criminal case being brought against those they accuse of shooting MH17 down.  That by definition makes the presentation provisional and open to challenge, and especially given Ukraine’s involvement accounts for its structural bias.

If the claim by the team the militia was responsible for shooting down MH17 was a foregone conclusion, have we nonetheless learnt anything new from the evidence they have provided?

Until this evidence is thoroughly and independently examined I cannot say.  However I have to say I doubt it.  None of the new evidence presented on Wednesday looked to me especially compelling.  Radio intercept evidence is always subject to interpretation, eye-witness evidence is rarely reliable, and despite the team’s earnest protestations that the video evidence is reliable, there have been too many cases in the past where that has turned out to be not so.  As for the technical evidence, that is being fiercely challenged by Almaz-Antey, whose expertise in this field is unmatched. 

The fact that the Western media’s reporting of the presentation on Wednesday was so understated – none of the British newspapers made it anything close to a headline story – suggests that they too found the case they heard less than compelling. 

I suspect part of the problem was that so much of this evidence was already known – and was already known to be hotly contested – that in the end it could not be completely persuasive.

The key problem however is that the most important evidence of all simply wasn’t there. 

This is the evidence the US says it has which supposedly pinpoints the launch point, and which in the immediate aftermath of the tragedy the US claimed proved it was the militia which launched the missile that shot down MH17.

Not only does the US continue to refuse to publish this evidence, but it has never given a really satisfactory reason why it refuses to do so. 

If the evidence is so highly classified that it cannot be released – as is often said (though not to my knowledge on the record by US officials) – then the US should never have spoken of it at all.  By doing so the US foreclosed the possibility of a truly open-minded inquiry whilst denying the militia the possibility to refute what is said to be the strongest evidence against them.

There is also the problem that the US has in the past published evidence when it suits it.  The US for example did so in the run-up to the 2003 Iraq war. That evidence turned out to be wrong, a fact which means that few today are prepared to take US claims about its evidence on trust, something the US seems to struggle to understand. Certainly relying on another NATO intelligence agency – in this case Dutch intelligence – to give the US’s evidence its support will convince few people.

Regardless, given that the US has a previous history of releasing this sort of evidence, it needs at the very least to provide a satisfactory explanation of why it is not doing so now if it is going to persuade the doubters.  This is especially so given that the very high stakes in this case make it difficult for many people to believe the US would not have found some way to publish at least some of its evidence if it really wanted to.

In the absence of this evidence the sort of evidence that came from the team on Wednesday looks too much like an attempt to piece together a case that was supposed to have been already proved in the days immediately after the tragedy to convince the skeptics and still the doubts.  The selective way in which some of the facts were presented in what ultimately was the prosecution’s presentation of its case, and the State Department’s rush to claim the team’s findings corroborate its original assertions (rather than the other way round) is only going to reinforce those doubts. 

Previous ArticleNext Article
Alexander Mercouris
Editor-in-Chief atThe Duran.

Follow me:Facebook