Turnbull, Hanson, Putin and the truth behind MH17

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Malaysia Airlines Flight 17 (image via en.wikipedia.org).

Despite his rush to blame Putin, Turnbull hasn't even declared the shooting down of MH17 a terrorist attack – so the families of victims can be compensated – nor has a "full, thorough and independent investigation" yet taken place, writes James O'Neill.

A MINI UPROAR has occurred in the wake of Pauline Hanson’s interview on last Sunday’s Insiders programme with Barrie Cassidy.

Hanson offered praise for Russian President Putin’s “strong leadership”.

An aghast Cassidy responded by repeating the standard lazy slur of Australian journalists that Putin was responsible for the shooting down of MH17 over eastern Ukraine in July 2014, with the loss of 39 Australian residents.

Prime Minister Malcolm Turnbull response was quoted in the Sydney Morning Herald:

'Mr Turnbull said Mr Putin’s Russia was responsible for the "shocking international crime" of shooting down the MH17 airliner.'

As a former barrister, Turnbull ought to know better than to definitively pronounce guilt before the evidence is available and properly assessed.

In the case of MH17, that caution should be exercised more carefully than with many political pronouncements. Unfortunately, Turnbull’s rhetoric only added to the obfuscation, evasion, omission of relevant facts and downright lies that have characterised political comment on the tragedy.

There has, in fact, been one report on the tragedy — that of the Dutch Safety Board (DSB), which reported on 13 October 2015. That report did not determine responsibility for the firing of the BUK missile, that the DSB concluded was responsible for the destruction of the airliner. Rather, they narrowed the likely origin of the missile to a 320 square km area that was contested at the tie both by the Donbass militia and units of the Ukrainian military.

As is typically the case with official reports, there is more value found in the appendices than can be gleaned from the report itself.

In the case of MH 17, "Appendix T" was an assessment provided by the Dutch security services. Their analysis concluded that there was no evidence the “separatists” had possession of an operable BUK missile; no evidence that they had the training or expertise to fire such a missile and no evidence of any intention or motive to fire such a missile. Needless to say, none of this was reported in the Australian mainstream media.

The second report that has been published is an interim report of a criminal investigation team under Dutch leadership and including representatives of the Australian Federal Police (AFP).

Their deadline for producing a final report has been extended to 2018. Turnbull knows, or ought to know, that one cannot establish guilt on the basis of a preliminary investigation, much less when the preliminary report has not been subjected to the court procedures with which we are all familiar.

There are other serious reservations about the efficacy of even the preliminary report. That report has been dissected in a number of credible analyses that are readily available, so I will mention only two significant flaws to make the point.

The first is that the investigation team ignored, did not have available, or failed to include, relevant information from a number of sources. This included, for example, technical analyses, including classified information, by Almaz-Antay, the BUK’s manufacturer.

Another gap in the evidence was the data from the two U.S. satellites in geostationary orbit over Donbass at the relevant time — data which was boasted about by John Kerry shortly after the tragedy.

Fred Westerbeke, the Dutch head of the criminal inquiry, confirmed in a letter to the Dutch victim’s families in February 2016 that the American satellite data had been provided “confidentially” to the criminal investigation. The report, however, is silent about what those satellite images established. If they had confirmed what Turnbull rhetorically claims, it is a reasonable assumption that they would have been lauded long and hard.

The second major flaw in the report is that it relies heavily on information gathered by the Ukrainian authorities to reach its initial opinions. This breaches one of the fundamental principles of a criminal investigation. It even has its own Latin maxim, which translates as "no one is judge in their own cause".

Any “evidence” collected from such a source is inevitably irretrievably tainted. In the unlikely event of there ever being a criminal trial, or even a hearing of the various civil claims currently outstanding, this fatal flaw will provide ample ammunition for defence counsel.

The travesty of the inquiry does not stop there. In another development that the Australian mainstream media have never seen fit to enlighten their viewers/listeners/readers is the existence of an agreement signed by Australia, Belgium, Netherlands and Ukraine on 7 August 2014. This agreement provides that nothing shall be published arising out of the DSB or criminal inquiry unless all four parties agree. This effectively gives Ukraine a power of veto over any adverse findings. This is beyond astonishing.

There are a number of reasons for suspecting Ukraine as the perpetrator of the tragedy, apart from having means, motive and opportunity. In 2001, for example, Ukraine shot down a Siberian Airlines civilian airliner en route from Tel Aviv to Novosibirsk.

In the aforementioned letter to victim’s families by Fred Westerbeke, he also said that 'there was no evidence of direct involvement of a Russian unit' in the shoot-down of MH17.

If the Russians are ruled out, and also the “separatists”, as established in Appendix T of the DSB report, then that logically leaves only one suspect. I cannot definitively say that Ukraine is the guilty party, although the weight of evidence points that way.

What can be said is that in order to reach some sort of definitive conclusion there needs to be what UN Security Council Resolution 2166 demanded:

' ... a full, thorough and independent investigation.'

That manifestly has not been the case thus far.

An inquiry was made of the AFP as to whether a similar letter to Westerbeke’s would be sent to the families of the Australian victims. Their reply was to the effect that the inquiry had been passed on to the joint criminal investigation team!

There is one further curiosity that is worth mentioning. Under legislation passed by the Gillard Government, families of the victims of terrorist attacks are entitled to apply for compensation up to $75,000. First, however, there has to be a declaration by the prime minister that it was indeed a terrorist attack.

Despite the passage of more than two-and-a-half years since MH17 was shot down, Turnbull has yet to make such a declaration. An FOI inquiry as to why this was the case failed to elicit an answer. The opposition and the media have shown a distinct lack of interest in asking why this might be the case.

Instead of the evasiveness and overblown rhetoric from the politicians and the media on this issue, one might have thought that if they truly had the interests of the victims in their minds, they would support what the UNSC resolution properly demanded: a full, thorough and independent investigation.

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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