MH17 trial: Fighter jet witnesses out of the picture

 By Eric van de Beek

Ukraine did not close its airspace above a war zone - and countless people witnessed fighter jets  when MH17 came down. The Dutch Public Prosecutor turns a blind eye to these facts in its trial  against those responsible for the air crash. Did the Ukrainian authorities knowingly risk or even provoke an incident?

A Ukrainian SU-25 flies below a passenger plane during military exercises near Zhytomyr city on Sept. 27, 2012. © ANP 2020/Photo by Sergey Supinsky

Four military leaders of the Donetsk Peoples Republic (DPR), three Russian nationals and one Ukrainian, are standing trial in The Netherlands for the downing of MH17 on 17 July 2014 in the eastern part of Ukraine, which led to the death of all 298 passengers, most of them Dutch. The Dutch Public Prosecutor views these men as "leading players who took delivery of a Buk-TELAR from the Russian Federation and deployed it as part of their own military operation, with the aim of shooting down an aircraft."

Air space kept open on purpose?

It's still to be seen if MH17 indeed was shot down by a Buk anti-aircraft installation from Russia. But suppose everything went exactly as described by the Dutch Public Prosecutor, the Dutch Safety Board (DSB), which investigated the cause of the crash - and the Joint Investigation Team (JIT), which is leading the criminal investigation. Suppose MH17 was indeed taken down in rebels' territory with a Buk-TELAR delivered from Russia. Then why is it only DPR rebels and Russia are blamed? Why are those who were responsible for the Ukrainian air space not being criminally prosecuted? Had Ukraine fully closed its airspace above the eastern part of the country it would have been impossible to take down an airplane.

According  to the Ukrainian authorities, at least 16 Ukrainian armed forces' aircraft, among which helicopters, fighter jets and military transport planes, were shot down in the months and days preceding the MH17 incident, with machine guns, MANPADS and surface-to-air missile systems called 'Igla' and 'Strela'. It seems there had even been more alarming indications that should have led Ukraine to fully close its airspace. Immediately after MH17 was downed Ukraine declared this happened using a Buk installation. They came up with a video of a Buk transport and phone taps from the rebels who asked for a Buk or talked about the transport and the delivery of a Buk.

Still passenger planes kept flying over the warzone. Why did the Ukrainian civilian air traffic control allow them to keep using this part of its airspace?

From a confidential JIT document that was published by Bonanza Media it shows that the rebels were convinced the authorities in Kiev weren't blundering. They kept the air space open on purpose. "Telephone calls indicate that they thought that military aircraft flew close to civil airplanes in order to be safe," Manon Ridderbeks of the Dutch Prosecutor's Service declared in a JIT Field Office meeting on 25 January 2018.

Some rebels even thought Ukrainian fighter jets were provoking an incident. A month before MH17 came down, on 18 June 2014, they sent out a warning to the world. In a video a young woman in uniform can be seen, armed with a machine gun. She presents herself as Elena from the city of Sloviansk. She says she joined the rebels because of the daily bombings from the Ukrainian army and the dire consequences for the inhabitants of the city.

"An incident happened recently," Elena recalls. "A passenger plane was flying by, and a Ukrainian attack aircraft hid behind it. Then it lowered its altitude a bit and dropped bombs on a residential sector of Semenovka town. Then it regained altitude and hid behind the passenger plane again. Then it left."

"They wanted to provoke the militia to shoot at the passenger plane," Elena concludes. "This would have caused a global catastrophe. Civilians would have died. Then they would say that terrorists did it. But there are no terrorists here. Just regular people that came out in defence of their own city." 

Targeting fighter jet, hitting MH17?

Could it be a Buk-TELAR crew shot down MH17 while they were targeting a Ukrainian fighter jet? This scenario would seem more likely than the possibility the crew mistook a passenger plane for a fighter jet. "I cannot believe they really fired and I still cannot find an explanation for that," a former commander of a Finish Buk battalion, Esa Kelloniemi, declared in an interview with Dutch weekly De Groene Amsterdammer. "They should have known the altitude of the plane. They have meters for that."

MH17 flew at an altitude of 10 kilometres. That's much higher than fighter planes normally get.

As far as is known the Dutch Safety Board (DSB), which investigated the cause of the accident, did not consider the scenario of fighter jets being shot at leading to the downing of MH17. They simply concluded that there was "no evidence of other aircraft, civil or military, in the direct vicinity of flight MH17". Judging from their final report, which was published in October 2015, they reached this conclusion based upon secondary radar data from Ukraine and a video-recording of a radar screen from Russia, on which no other aircraft were visible near the Malaysian Boeing. They derived this conclusion also from an investigation by the National Aerospace Laboratory (NLR) that had concluded there were no traces on the wreckage of an air-to-air gun or an air-to-air missile being used.

However, the DSB investigators must have received reports of civilians who had seen or heard fighter jets before or after MH17 came down. JIT had interviewed several of them. One of these interviews was published by Bonanza Media. The male witness from the town of Krupskje, reported to have heard two fighter jets and to have seen one of them in the sky circling over the town a few minutes before the crash. "Before the Boeing fell down I heard a very loud bang over my head," he said. "No missiles were fired from the surface."

In the past six years countless witnesses of fighter jets were interviewed by journalists, many of them shortly after the crash,  on camera and under their real names, among which several by Bonanza Media, here,  here and here. Russian BBC journalist Olga Ivshina produced a much-discussed report about witnesses of fighter jets. It was published on 23 July 2014, then taken offline by the BBC, and republished two days later, now containing a spokesperson of the Ukrainian military who denied that the Ukrainian air force had been flying over rebels' territory on the day MH17 came down.

One can only speculate as to why there's nothing in the final DSB report on witnesses of fighter jets and the possibility that fighter jets had been shot at by a Buk-TELAR. Probably DSB sailed blind on the Ukrainian secondary radar data and Russian video-recording that did not show any jets. Also, the purpose of the DSB investigation was to find the cause of the crash, not to criminally prosecute those who were responsible.

However, DSB judged harshly about not having fully closed the airspace above the eastern part of Ukraine. "Decision-making processes related to the use of Ukraine's airspace was dominated by the interests of military aviation," DSB wrote in its final report. "The Ukrainian authorities took insufficient notice of the possibility of a civil aeroplane at cruising altitude being fired upon."

No jets on radar, but no missile either

DSB had asked both Russia and Ukraine for primary radar data. Why didn't they deliver these? The Federal Air Transport Agency of the Russian Federation stated that because the crash had occurred outside Russian territory, no radar data were saved.

The Ukrainian Ministry of Defence declared Ukrainian civil primary radar stations in the area were not functioning at the time of the crash due to scheduled maintenance. According to the ministry, the military primary radar stations were also not operational, because there were no Ukrainian military aircraft in the sector through which flight MH17 flew.

The Ukrainian statement was contradicted by a former air wing commander from Ukraine, who was interviewed by citizen journalist Stefan Beck. According to him Ukrainian military radar stations were put on high alert on 17 July 2014.

After the DSB had already published its final report, much to anyone's surprise both Ukraine and Russia presented primary radar images, although no images from Ukraine’s military radar stations still. Again, no jets were visible, but no Buk missile either. According to JIT, the absence of a Buk on the radar images can be explained by the speed of the missile. Fast-moving objects are sometimes not spotted by radar. In reaction, Russian arms manufacturer Almaz-Antey, which designed the Buk missile system, declared that, given the launch location designated by JIT, the missile should have been visible on the images of the Russian radar station.

“The absence of evidence does not mean the evidence of absence”, Wilbert Paulissen, head of the National Investigative Department of the Dutch police, stressed at the 2016 press conference of the JIT. He was referring to the absence of a Buk missile on the radar images.

The JIT did not come up with a technical explanation for the fact that there were no military jets visible on the images, such as flying under the radar. Probably they did not even reflect on this because they had already decided that a Russian Buk-TELAR had downed MH17.

In the MH17 trial the Public Prosecutor now follows the logic of JIT. It explains the absence of a Buk on radar images by saying that the absence of evidence does not mean the evidence of absence. But he does not apply this principle to the absence of fighter jets on the radar data.

Instead the Public Prosecutor tries to convince the court there was not a single jet by referring to the final DSB report, which misses an analysis of the raw primary radar data, because they were not available at the time DSB published its report. Like DSB and JIT the Public Prosecutor simply appears not to have considered the scenario of low flying SU-25s or other Ukrainian military aircraft that used passenger planes to avoid getting shot at.

A political trial after all?

Had Ukraine closed its airspace no passenger plane would have been downed in the first place. But still there are no Ukrainian officials standing trial. It's only military leaders of the Donetsk Peoples Republic (DPR). Why is it the Dutch Public Prosecutor made this choice? Is the MH17 trial a political trial after all? A trial with "de facto the Russian regime sitting in the dock" as the former chief public prosecutor Fred Westerbeke put it?

"The question of whether public authorities could have done more to prevent a murder can never absolve the murderer," Public Prosecutor Ward Ferdinandusse said in his opening statement. "A criminal trial deals with whether the defendant is guilty or not guilty. The question of whether Ukraine should or should not have closed its airspace is therefore outside the scope of these proceedings."

Nevertheless in 2018 the Dutch government declared it's holding the Russian Federation liable for the downing of MH17. Why doesn't it hold the Ukrainian state liable for not having fully closed its airspace? And what's more: What if the issue is not about Ukraine not having prevented a murder, but having provoked a murder? As has been stated in this article before: From the images and audio that Ukraine presented after the downing of MH17 about the presence of a Buk installation in eastern Ukraine it becomes clear that Ukraine must have known about the danger the airliners were in.

On 31 May 2018 Dutch MP Sadet Karabulut of socialist party SP asked minister of Justice Ferdinand Grapperhaus about the liability of Ukraine. The minister's reply was that failing to fully close the airspace had never been the subject of a criminal investigation by the JIT or any other body. And indeed, on the first day of the trial lawyer Boudewijn van Eijck of the defendant Oleg Pulatov noted that the prosecution file reveals that none of the twelve Ukrainian air traffic controllers that had been interviewed by JIT was asked what the exact reasons had been for not fully closing the air space. "This decision leads to the fact that we cannot determine whether the individuals that took decisions in Ukraine with respect to the air space can be criminally prosecuted in The Netherlands," Van Eijck concluded. 

Van Eijck also wondered which role Ukraine, as a member of the JIT had played in the decision not to conduct a criminal investigation into the restricted closure of its air space. And he reminded of the fact that this question had been raised in the Dutch House of Representatives before, and that it's still been left unanswered. "We therefore still don't know what exactly happened."

Van Eijck might want to invite witnesses of fighter jets to the courtroom. The Public Prosecutor offered to examine their testimonies during the main court sittings. A trial without taking them into account can hardly be taken serious and is not doing justice to the victims and the next of kin.

Obviously witness statements cannot be taken at face value, but since so many witness statements about fighter jets coincide, it would make no sense to categorically dismiss all of them.