MH17 and the JIT: A flawed investigation

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Tony Abbott milking MH17. (Cartoon courtesy John Graham)

The JIT report into the downing of MH17 in the Ukraine is no more than a sorry charade of an investigation. The victims and their families surely deserve better, writes James O'Neill.

ON TUESDAY, 28 September 2016, the results of the Joint Investigation Team (JIT) investigation into the shooting down of Malaysian Airlines Flight MH17 on 14 July 2014 were released. Their report has been widely awaited and was expected to provide answers to many of the key questions left unanswered by the report of the Dutch Safety Board released a year earlier.

Instead of answers, however, the JIT investigation left as many questions unanswered as before. Worse, the conclusions it did present were so fundamentally flawed that any residual confidence in the integrity of the investigation has been eliminated.

In any criminal investigation, there are certain basic principles that need to be observed. Without being in any way exhaustive, the following points can be made that demonstrate that none of those basic principles have been observed.

First, the investigators must be independent and seen to be independent. 

The members of the JIT team were drawn from five nations (initially only four):

  • The Netherlands, whose citizens accounted for the greatest number of casualties and was where the flight originated;
  • Australia, who had the second largest number of casualties;
  • Ukraine, where the plane crashed;
  • Belgium, for undisclosed reasons; and
  • Malaysia who joined the investigation later and only after signing the agreement to be discussed below and who owned the plane.

With the possible exception of Belgium, none of the other countries were independent investigators. They all had a stake in the outcome. In the case of Australia, our position should have been untenable. Then Prime Minister Tony Abbott had made inflammatory and prejudicial remarks about the shooting down, blaming Russia in general and Mr Putin in particular. This was before there was a shred of evidence available. It is a pattern that has been repeated ever since in the western media, regardless of whatever evidence emerged.

Prejudging the outcome of any investigation is a violation of another basic principle of investigation.

Quite why Belgium was included in the investigation has never been made clear. None of the victims were Belgium citizens. If Belgium had any expertise in air crash investigations it has never been disclosed.

Neither has the identity of the Belgium representative on the JIT been disclosed. This secrecy reinforces the widely held suspicion that Belgium, as the home of NATO headquarters, has an interest in blaming Russia as part of the ongoing demonisation of that country. The shooting down of MH17 occurred in the context of the aftermath of the February 2014 American inspired coup in Ukraine and the civil war that followed.

Ukraine is the antithesis of an independent investigator. It is, for very good reasons, the prime suspect as the perpetrator of the crime. The investigation has been conducted while Ukraine is in repeated and blatant violation of the Minsk Accords to which it agreed. Those violations are never the subject of criticism in the western media. It would be naïve to separate the criminal investigation from the geo-political context.

There is nothing in the JIT report to indicate that Ukraine’s possible culpability was examined in any objective detail.

The second fundamental principle is that the evidence adduced by an inquiry is transparent and testable. Instead, it appears from the JIT report that much of the “evidence” was collected by the Ukrainian security services — hardly a disinterested body. The report claims that they have eye witness statements that support their reported conclusions. 

But none of these statement makers are known, the contents of their statements have not been revealed, there is no evidence as to the circumstances under which the witnesses were located and interviewed, nor whether there were other witnesses whose statements did not accord with the versions we have been given.

None of this is acceptable procedure in a criminal investigation and none of it would be likely to survive forensic examination in a properly constituted court.

A third fundamental principle is that an investigation should gather all relevant material. In this case, there are significant gaps as to relevant information being obtained, information obtained and not evaluated, and information that the investigators may or may not have, but for which there is no satisfactory explanation for its absence.

Published 28 July, 2014

(This is the famous "censored BBC Russia broadcast" where a BBC reporter investigated the alleged site of the "BUK missile launch", found the alleged BUK smoke trail was probably smoke rising from homes burnt out by Kiev forces, then interviewed eyewitnesses who said they saw two Ukrainian military jets shadowing the Malaysian Airlines MH17 passenger jet just before it "exploded.")

For example, Almaz-Antay, the Russian manufacturer of the BUK missile that is the attributed cause of the crash, did exhaustive investigations and released previously classified material. Their investigation included analysis of the damage to the airliner to determine the trajectory of the missile. This information was effectively ignored by the JIT. One critical consequence of the JIT’s approach is that their claim that the missile was fired from separatist held territory cannot be matched to the pattern of damage to the aircraft, which is consistent only with the missile being fired from a different (Ukrainian held) part of Donbass.

There is no attempt by the JIT to explain this obvious discrepancy between their claims and the forensic evidence. This is a fatal flaw in their analysis and the conclusions that flow from it.

There is also the problem with the transcripts of the communications between air traffic control and the pilots of the plane. We had previously been told that there was complete silence for the final four seconds of the tapes recovered from the black boxes.

Yet, the JIT’s version of the missile’s trajectory would have it coming toward the plane directly in line of sight of the pilots. It defies credulity that there would be total silence in those final four seconds if, in fact, the missile was coming directly towards them.

We were further told that Ukraine did not have radar data for that critical period. This is nonsensical, yet appears to have been accepted by the JIT without critical comment.

Perhaps the most important missing data however are the information from the U.S. satellites, three of which were known to be in orbit over Donbass at the critical time. It was that information that was, apparently, the basis of the U.S. Secretary of State’s boast four days after the crash that they had all the information they needed. That information has never been released publicly. It is unacceptable to claim possession of vital relevant information yet refuse to allow any independent evaluation of that evidence. A court of law does not take such claims on trust.

In a letter to victim’s families earlier this year, lead Dutch investigator Fred Westerbeke indicated that the U.S. data had been released to the investigation but their disclosure involved unresolved security issues as to the extent to which the data could be released. A cynic might suggest that satellite data showing Ukrainian culpability would be the ultimate “security” issue from the American point of view.

One might also suspect that, if the satellite data showed conclusively that either Russians or Russian backed separatists had been responsible, this information would have been broadcast long and loud in the western media.

The fact that the data have not been publicly released leads to an irresistible inference that they do not support the official narrative of blaming Russia or the Russian backed separatists.

This view is reinforced when one examines the claims made at the JIT press conference that the BUK missile carrier was transported across the border from Russia, fired, then transferred back into Russia. 

If true, then this would be damning evidence. But the allegation was made without a shred of supporting evidence other than vague and unsubstantiated claims about what the Ukraine secret service supposedly uncovered. The allegation is therefore utterly without merit. It would certainly not survive a proper court process.

Whether there will ever be a court process is an open question. At the JIT press conference Westerbeke said that although they had identified more than 100 of the alleged perpetrators, the identification of which we were not allowed to know, the chain of command of those persons was not yet determined. This is nonsensical. If the investigators were able to identify individuals, then their affiliations must also be known. That would provide the command structure.

It does not take 100 persons to fire a BUK missile. By withholding any salient details about the alleged 100, it is impossible to evaluate the evidential value of the claim. It is really little more than allegation by innuendo and that, again, would not withstand even minimal court scrutiny. It is, at best, pseudo evidence.

The real court that is being pursued by the JIT is the court of public opinion. Ever since the downing of MH17, the public have been inundated with constant allegations of Russian involvement with no evidence ever being adduced. The British disinformation website Bellingcat was a favoured conduit and one of the more alarming features of the JIT report is the extent to which they rely on that organ of fake evidence. This latest report is no more than a continuation of that process of disinformation.

We are also told that the investigation is to continue through until 2018. Given the refusal of the JIT to properly consider the evidence already available, one is left wondering exactly what they hope to achieve over the next year or more. It is more likely on the evidence available that the extended time frame is simply to continue the demonisation of Russia. 

There are two further aspects that need to be mentioned, because they are never discussed in the western mainstream media and the JIT did not consider that they were important enough to include in their report.

The first fact is the existence of the agreement of August 2014 between the four initial investigating nations that no findings of the investigation would be released unless all of the parties to the agreement consented.

It beggars belief that one of the prime suspects for perpetrating this atrocity, Ukraine, should be given what is in effect a veto over any adverse findings. The existence of this agreement fatally compromises the integrity of the investigation. It is no more than a hollow sham.

The second aspect is the old Latin maxim, cui bono — or, differently expressed, who benefited from this crime. Despite two years of relentless propaganda there has not been a single explanation of how Russia, or for that matter the separatists, could expect to benefit from shooting down a civilian airliner with significant loss of life.

There has been no such explanation, because none exists. On the contrary, culpability for such an atrocity would do enormous harm to the perpetrator and Russia had absolutely no motive to bring such opprobrium upon itself.

Ukraine, on the other hand, had every motive to do so, as well as the means and, as the Almez Antay evidence clearly demonstrates, the opportunity as well.

The JIT report is no more than a sorry charade of an investigation. The victims and their families surely deserve better.

James O'Neill is a former academic and has practiced as a barrister since 1984. He writes on geopolitical issues, with a special emphasis on international law and human rights. He may be contacted at joneill@qldbar.asn.au.

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