By Eric van de Beek
Still from a video of a Buk missile launch as showed by Dutch Public Prosecution Service in court.
Malaysian flight MH17 was downed by a Buk missile delivered from Russia and fired from territory controlled by rebels in eastern Ukraine. This narrative was propagated from day one by the Ukrainian secret service SBU. Most people take it for a fact now. But the MH17 trial has just started. It's not even been established yet a Buk was fired; let alone a Russian Buk.
“We saw the take-off. We saw the trajectory. We saw the hit. We saw this aeroplane disappear from the radar screens. So there is really no mystery about where it came from and where these weapons have come from.”
These legendary words were spoken on August 12, 2014 by then US minister of Foreign Affairs John Kerry at a press conference in Sydney, Australia. Until now the US refused to provide the Joint Investigation Team (JIT) with satellite imagery that supposedly substantiates this claim. The MH17 court now has called upon the Dutch Public Prosecution Service to once again try to get the imagery from the US. Subsequently a group of MH17 next of kin sent a letter to the US embassy in The Hague asking for help to get the imagery released.
If the imagery exists at all, little can be expected from it. "Satellite images showing how on July 17 flight MH17 over Ukraine was shot out of the sky by a missile do not exist," former chief prosecutor Fred Westerbeke said in an interview in December 2014. "There has been a misunderstanding about this. There are no satellite images in the sense of a movie where you see a missile going into the air. There is no conclusive evidence from intelligence services with the answer to all the questions.”
Until now the only information received from the US in response to the request for the imagery is a written statement, sent by the Director of National Intelligence (DNI), in which he says MH17 was downed by a "SA-11 surface to air missile" (a Buk missile) that was launched "about 6 kilometres south from the village of Snizhne".
No Buk on radar
Russian radar data taken 2 minutes and 9 seconds before shootdown MH17
JIT, the international organization commissioned to lead the criminal investigation, received primary radar data from both Russia and Ukraine. On the imagery no Buk missile can be spotted. 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. “The absence of evidence does not mean the evidence of absence”, as Wilbert Paulissen, head of the National Investigative Department of the Dutch police, put it. Buk missile manufacturer Almaz-Antey does not share this explanation of JIT. It declared that, given the launch location designated by JIT, the missile should have been visible on the images of the Russian radar station.
Dutch Military Intelligence and Security Service MIVD provided JIT with all known positions of Buk installations around July 2014. They concluded that "flight MH17 flied out of reach of all known places where operational Ukrainian and Russian 9K37M1 Buk-M1 systems were located." In its report MIVD does not explain how it pinpointed the locations of the Buk installations, but since MIVD has access to satellite data of the European Space Agency (ESA) and is in close contact with intelligence services of other NATO member states, it's safe to say MIVD will not have been short on high-quality information.
The MIVD document was leaked by Bonanza media, just before the start of the MH17 criminal trial. On the second day of the trial, on 10 March, Public Prosecutor Dedy Woei-A-Tsoi confirmed the report was genuine. She however stressed that the MIVD had not concluded that there was no Russian Buk system present in eastern Ukraine on the 17th of July. "The report of the MIVD concerns only locations where Buk systems were stationed for longer periods of time. Short operations whereby a Buk system is delivered, used and removed immediately fell outside the scope of the MIVD's observations as described in the reports," she said.
This statement speaks for itself. The prosecutor did not deny the fact that MIVD had not spotted any Russian Buk in Eastern Ukraine. Nor did she deny the possibility that one of Ukraine's Buk systems could have quickly been moved from one position to another.
Nevertheless, the Dutch Public Prosecution Service is convinced a Russian Buk system shot down MH17 from rebels' territory in eastern Ukraine. And so what evidence did they provide for this claim?
SBU's phone taps
Snapshot from video with intercepted conversation rebels, put on YouTube by SBU.
From July 17 2014 on the Ukrainian secret service SBU has been putting intercepts on YouTube of conversations between the rebels. In some of these intercepts a Buk system is mentioned, and in others the targeting and hitting of planes. The SBU presented these intercepts in a way that strongly suggests the rebels shot down MH17. However, none of the intercepts provide sound evidence they really did. In fact some conversations about bringing down planes strongly indicate they are talking about incidents with other planes. Before the MH17 crash the rebels had already downed at least sixteen military planes of Ukraine.
Regarding their conversations in which a Buk is mentioned: It's quite possible the rebels had received a Buk installation from the Russian armed forces, shortly before the crash, and maybe even more than one. Or maybe they had confiscated one or more installations from the Ukrainian army. But this doesn't necessarily mean they had used it on MH17.
For further reading on the SBU phone taps please read the article We will down another Boeing
Local residents interviewed by BBC said to have seen fighter jet beside MH17.
Over the past six years many witnesses have shared their experiences with the press, whether anonymously or by name and on camera. Some of their statements coincide or complement each other; others however are mutually exclusive. These statements range from having seen the transport and launch of a Buk missile to having seen a fighter jet shooting at MH17 and having heard the pilot of this jet (Vladislav Voloshin) talking about "a plane in the wrong place at the wrong time".
It seems JIT very much leaned on the SBU for its selection of witnesses to prove its case MH17 was taken down by a Russian Buk. It even felt compelled to push them to come up with useful witnesses. "We simply cannot move on with our investigation without them," Maartje Nieuwenhuis of the Dutch prosecutor's service begged the SBU at a JIT Field Meeting on January 2018. "Only the SBU is able to locate witnesses and bring them in," her colleague Manon Ridderbeks added.
In the end SBU provided several witnesses. Some of them had been arrested by the SBU in investigations into other crimes in Ukraine and had subsequently been heard as witnesses regarding the shooting of MH17. According to the lawyers of defendant Oleg Pulatov such witnesses cannot be trusted. "Witnesses who have been arrested for other crimes and who have been identified as suspects in those cases are not the most reliable witnesses," they noted.
What's more: dozens of witnesses put forward by the SBU and the prosecution, if not all, have made statements on the condition of anonymity. They don't want to testify in court on account of fearing for their lives. The council chamber of the District Court of The Hague ruled that the statements of twelve of them are allowed in court. Two anonymous witnesses, X48 and M58, have declared to've seen the launching of the Buk missile that allegedly hit MH17.
When asked if any witness who claims to have seen the transport of the Buk Telar or the missile launch will possibly testify in court, the press officer Wim de Bruin of the Public Prosecution Service told me that no press-officer was available to answer questions about MH17 and that all relevant information about witnesses could be found on the website of the Public Prosecution Service.
Coming up: Russian ghost Buk haunts MH17 court part II. About the physical evidence put forward by the prosecution for a Russian Buk.