Dutch prosecutors have announced international arrest warrants and criminal charges against three Russians and a Ukrainian whom they accuse of being part of a chain of Russian military and political command leading to the downing of Malaysia Airlines Flight MH17 over eastern Ukraine on July 17, 2014.
The four are accused of acting in the Ukrainian civil war “to gain ground at the expense of the Ukrainian State and its armed forces”; of cooperating together in actions “which ultimately led to the shooting down of the MH17… Although they did not press the button themselves, it is alleged they worked closely together to get the BUK TELAR [anti-aircraft missile] to the firing location with the aim of shooting down an aircraft. They are therefore suspected to be held jointly responsible for shooting down flight MH17.”
In the anonymous voiceover of a video clip, presented during the June 19 press conference in The Netherlands, the allegation is reported that there was a Russian chain of command for the deployment of a Buk Telar anti-aircraft missile battery of the Russian Army. “It was through this chain that the suspects were able to get heavy military equipment from Russia to the battlefield in eastern Ukraine. And in this way the BUK-Telar of the 53rd brigade could be transported to the agricultural field in Pervomaiskiy and its missile could be fired with terrible consequences.”
Could isn’t the same as did.
The Australian police official at the presentation expressed “faith in the Dutch legal system”. He made no commitment to the Dutch allegations or to the specific claims against the named suspects. He added: “we will also continue the investigation. The step we have taken today gives us the energy to continue. We will not let go. To progress, we are again appealing for witnesses today.”
The Malaysian government representative refused to endorse the allegations which were announced by the Dutch.
To understand how much, and also how little, has been presented by the Dutch and Australian-led Joint Investigation Team (JIT), start by reading this official summary of the press conference on Wednesday at Nieuwegein.
Four suspects were accused; they were named as Igor Girkin, Sergei Dubinskiy, Oleg Pulatov, and Leonid Kharchenko. Girkin was identified as a former colonel of the Federal Security Service (FSB); Dubinskyiy and Pulatov were reported as serving officers of the military intelligence GRU. Kharchenko has been reported by the Dutch as having “no military background. He received his orders directly from Dubinskiy and in July 2014 he was commander of a combat unit in the Donetsk region. At that time, there was an armed conflict in that area between pro-Russian fighters and the Ukrainian armed forces.”
The criminal charge and allegation against the four is that they “cooperated to obtain and deploy the BUK TELAR at the firing location with the aim of shooting down an aircraft.”
No evidence was presented of their location at the time of the MH17 crash, nor evidence of their intention, as charged, of “causing the crash of flight MH17” and of “the murder of the 298 persons on board of flight MH17”. The Dutch law cited as the legal basis for the arrest warrants and a trial in court are Articles 168 and 289 of the Dutch Criminal Code. The trial of the allegations has been scheduled for March 9, 2020.
Here is the Dutch law. Note that the two articles require evidence of intention and premeditation to destroy and to kill. The conventional court standard for this evidence in Europe is proof beyond reasonable doubt.
Listen slowly and carefully to the speeches which were made at the JIT presentation. No claim can be found in the transcript and recording of evidence of the accused men’s intention and premeditation to attack the MH17.
Fred Westerbeke (right) is the Chief Public Prosecutor of the National Public Prosecution Service in the Netherlands. Westerbeke has been the principal accuser in the JIT process, and his earlier claims have been analysed here. This is what he now claims in his testimony: “Today we will not comment on all the facts that led to the suspicion against these individuals. When it comes to the concrete actions of and our evidence against individuals, the courtroom is the only place where we as the Public Prosecution Service want to speak openly. But we can tell you the following:
“In July 2014, Girkin, Dubinskiy, Pulatov and Kharchenko were active in the armed conflict in Donetsk province. Their common goal during this period was to gain ground at the expense of the Ukrainian State and its armed forces. Anti-aircraft was also used during the fighting. The Public Prosecution Service believes the cooperation between suspects Girkin, Dubinskiy, Pulatov and Kharchenko, their plans and their actions on and around 17 July 2014, ultimately led to the shooting down of flight MH17.
“Although they did not press the button themselves, it is alleged they worked closely together to get the BUK TELAR to the firing location with the aim of shooting down an aircraft. They are therefore suspected to be held jointly responsible for shooting down flight MH17.”
“It is possible the suspects wanted to shoot down a military aircraft instead of a passenger aircraft. Even if that is the case, we still hold them accountable for downing MH17. What the suspects actually knew, wanted and ultimately did must be determined by the court in criminal proceedings.
“We realise this brief summary of the accusations does not yet provide answers to many questions, for example about the available evidence. I emphasise that today we only disclose the accusations against these suspects. It is up to the district court of The Hague to pass judgement on these accusations. The suspects have the opportunity to explain their side of the story at the court hearing.”
“We are still waiting for an answer to the question of where the BUK-TELAR, filmed in June 2014 in a convoy of the 53rd brigade in the Russian Federation, was located on and around 17 July 2014. We asked this question more than a year ago. Other questions the Russian Federation refuses to answer. For example, whether suspect Dubinskiy worked for the Russian government in July 2014. These are simple questions that can be answered quickly. We invite the Russian Federation to swiftly answer these and other questions from the requests for legal assistance.”
JIT has also issued an official version of Westerbeke’s evidence in the form of video clips. The second of these presentations alleges there was a chain of command running from the battlefield in eastern Ukraine, where MH17 came down, through each of the four suspects to Moscow. According to Video-2, “it was through this chain that the suspects were able to get heavy military equipment from Russia to the battlefield in eastern Ukraine. And in this way the BUK-Telar of the 53rd brigade could be transported to the agricultural field in pervomaisky and its missile could be fired with terrible consequences.”
In the clip, there is no identification of what “heavy military equipment” the four names were directly engaged in deploying and operating, nor where. Note that the term “could”, used twice over, is conditional and subjunctive. It doesn’t qualify as a crime in the Dutch Criminal Code, Articles 168 and 289.
Peter Crozier (right) is an assistant commissioner of the Australian Federal Police. This is what he testified at the JIT presentation.
Australia, Belgium, Malaysia and Ukraine, these representatives of Canada, Germany, Indonesia, Italy, New Zealand, Romania, South Africa, the United States, the United Kingdom and have expressed their faith in the Dutch legal system. The Dutch Public Prosecution Service has gratefully accepted that faith in the knowledge that a complex international criminal case such as this one will demand a lot from us all in the coming years. As a JIT, we will also continue the investigation. The step we have taken today gives us the energy to continue. We will not let go. To progress, we are again appealing for witnesses today. My colleague Wilbert Paulissen will tell more about that.”
The most detailed presentation of the Dutch evidence of a crime against the four accused came from Wilbert Paulissen (right), Head of the National Criminal Investigation Service of the Netherlands.
Paulissen omitted to say where the recorded telephone conversations he presented as evidence came from, or what chain of custody for that evidence has protected it from tampering or fabrication, before it reached the JIT.
“The call for witnesses I’m about to make,” Paulissen announced, “is intended to achieve maximum clarity about the entire chain of responsible parties. The message we give today is therefore twofold: we’re going to prosecute four suspects, but the investigation into the involvement of other people continues.
“Last year we asked questions about the BUK TELAR and its crew in a witness call. Of course we also put those questions to the Russian Federation. The Russian Federation has indicated that it sees no reason to answer these questions. Even without that cooperation, we made progress in the investigation. Partly for this reason we turn to the public again with questions to which we would like to receive answers.
“We will let you listen to parts from recorded telephone conversations and show you parts from a chat. In this presentation these are shown in English translation. The complete audio files of these wiretapped conversations and the partial text of the chat will be made available on the JIT website.”
“We also previously posted the following conversation of 17 July 2014 at 21.32 hours online. It is a conversation between the suspect Kharchenko and a man, whom he calls ‘Ryazan’ and who addresses Kharchenko as ‘commander’. Apparently, one of the crew members of the BUK TELAR who had just shot down MH17 lost contact with the rest of the crew. Kharchenko orders the crew member to be brought to him. The JIT would like to know who that crew member was.
“This telephone conversation does not demonstrate to which Brigade this crew belongs. The JIT does have evidence from other sources that at that time, Russian soldiers of the 53rd Brigade were present near the border with Eastern Ukraine.
“Many soldiers were active on social media. We now show you a passage from a chat of 2015 in which a soldier of the second battalion of the 53rd Brigade looks back on the summer of 2014.”
“In the months prior to 17 July 2014, the leadership of the self-proclaimed Donetsk People’s Republic requested military support from the Russian Federation on several occasions. These requests were made both by the so-called ‘Prime Minister’ Aleksander Borodai, as well as by the suspect Igor Girkin, the so-called ‘Minister of Defence’.
“We know from our investigation the suspect Girkin was in contact about this matter with Sergej Aksyonov, the Russian leader of Crimea appointed by the Russian government. The Ukrainian peninsula was annexed by the Russian Federation in the spring of 2014.
“Girkin spoke with one of the staff members of Aksyonov on 8 June 2014. In that conversation Girkin asks for military support from Russia, including a good anti-aircraft system with trained personnel. Please listen with us.”
“This conversation of 11 July 2014 shows that there were indeed talks about military support between ‘the prime minister’ of the self-proclaimed Donetsk Peoples Republic and a high government official of the Russian Federation. The anti-aircraft system that was already requested as from June 2014, was actually delivered after 11 July. We would like to know who was involved in the decision-making in the Russian Federation and with what mission the anti-aircraft system was sent to Ukraine.
“The JIT has the following questions: Who decided to send a Russian anti-aircraft system, specifically the TELAR with the 3 and the 2 on the side, to Ukraine? Who decided which persons should be members of the crew? What instruction was given to that crew? Who gave that instruction? Do you have information? Our contact details are listed on the JIT website (www.jitMH17.com). Here you will also find information about our comprehensive witness protection program. Thank you for your attention. We will now proceed with the questions.”
Video-3 was presented to illustrate Paulissen’s allegations. It purports to be a conversation between a Russian soldier and his girlfriend. Watch and listen.
The voiceover, an official of the JIT, says: “This chat indicates that member of the 3rdbattalion [of the 53rd Anti-Aircraft Brigade] went west to eastern Ukraine.” The soldier doesn’t say so; his girlfriend is guessing; the soldier replies the guess means she is “not only beautiful but also smart”. The Dutch have presented this conversation to the world as evidence that the Kremlin ordered the shooting-down of MH17.
In this excerpt the voiceover claims: “The JIT has documents regarding the 53rdbrigade which show exactly which members were present in July 2014 in the area near the Ukrainian border…Members of the 53rd brigade might know the identity of that specific Telar crew. Those members, and perhaps also people from their immediate environment form an important group of witnesses.”
In English, as in Dutch, the word “might” signifies the subjunctive mood of a verb. The dictionary meaning of subjunctive is that it is a mood of verbs expressing what is imagined or wished or possible.
Toward the end of the press conference the Malaysian representative present, Mohammed Hanafiah Bin Al Zakaria (right), Solicitor General of the Malaysian Attorney General’s Chambers, was asked how he responded to Prime Minister Mahathir’s criticism
of the JIT claims. A report of Mahathir’s criticism can be read here.
Zakaria replied: “Malaysia would like to reiterate our commitment to the JIT seeking justice for the victims…The objective of the JIT is to complete the investigations and gathering of evidence of all witnesses for the purpose of prosecuting the wrongdoers and Malaysia stands by the rule of law and the due process.” [Question: do you support the conclusions?] “Part of the conclusions [inaudible] – do not change our positions.”
Source: Dances with Bears
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