On July 17, 2014, a surface-to-air missile downed Malaysian Airlines Flight 17 (MH17) over Ukraine's occupied east, killing all 283 passengers and 15 crew members onboard.
Three years later, investigators have a much better understanding of how the the tragic events of that day unfolded. Yet legal justice remains elusive. Increasingly, "conviction in absentia appears to be the only option," says Olena Zerkal.
As Ukraine’s Deputy Minister of Foreign Affairs for European Integration, Zerkal is responsible for overseeing the Ukrainian side of the international investigation into the airliner's downing.
For the last three years, an international team of investigators based in the Netherlands has been examining the downing of flight MH17 over Ukraine’s separatist controlled Donbas region. In that time, they have concluded that the missile in question was fired from a Buk air-aircraft missile launcher transported from Russia . However, the investigation has yet to name any suspects in the case.
Meanwhile, relatives of the deceased and independent online investigators are still pushing for answers. On July 17, 2017, the third anniversary of the crash, the victims’ relatives held a demonstration near the Russian Embassy in the Hague, Netherlands, accusing Moscow of obstructing the international investigation. The open source investigative unit Bellingcat also released a report summarizing the evidence uncovered so far to mark the anniversary.
In an exclusive interview with Hromadske, Olena Zerkal discusses the progress being made on the case, Ukraine’s cooperation with international partners, and the legal options for trying the perpetrators.
Has there been progress on the MH17 case in the last three years? What are the biggest problems?
Olena Zerkal: As you know we signed a bilateral agreement on the transfer of jurisdiction to bring justice to those responsible for the aircraft’s crash. Of course, the agreement is a compromise that everyone had to agree to given that the UN Security Council resolution on the creation of a separate tribunal did not pass [Russia blocked the resolution]. We found the most balanced formula for achieving justice.
It takes time to ratify the agreement. It is linked to human rights and different principles of justice. Furthermore, the investigation is not yet complete. I don’t think we should expect quick results.
Everyone remembers the Lockerbie case, about the plane that exploded in 1988. Everyone remembers how long it lasted [on December 21, 1988 an explosion occurred on board a Pan AM plane over the Scottish town of Lokerbie. 270 people were killed including passengers, crew and residents of the town on which the plane fell. After a long investigation, the prosecution put forward representatives of the Libyan Security Services. As a result of the court decision, Libya finally agreed to pay compensation to the relatives of the victims and partially acknowledged their responsibility in 2003].
Within a year of the [MH17] plane crash our ambassador took part [in the opening ceremony of a memorial] in the Netherlands along with the relatives of the dead. Of course, they are waiting, they want to see the perpetrators. They hope that the investigation will reach the top and that all of those who took part in it will be punished, not just those who pressed the buttons.
The relatives would also really like to see the location of the tragedy and right now it’s located in uncontrolled Ukrainian territory. We’re in a situation where we would really like to help but regardless of all the defense risks we still, to this day, cannot do this. In addition, the investigation has been going on for so long because this is a process in which the investigators need to not only become familiar with the wreckage, but also listen to a lot of negotiations and study all the communications that happened at that time. To get the commanders, we still need to do a lot of work.
What else is needed in order to find out about the commanders, for example? The official investigation already named a figure of around 100 suspects, both Russian and Ukrainian citizens, who fought in the so-called Donetsk People’s Republic at that time and who could have been involved in the assault. We also know the results of the Bellingcat investigation in which they found the commander, “Khmury,” and also discovered where he lives.
Olena Zerkal: This is a criminal investigation. The courts will have to take evidence from all the expert examinations. They don’t just need to draw the whole picture, as Bellingcat does. They need to have an expert examination of all the voices and confirm who they belong to.
They have to investigate the people who were at the scene, it’s not only necessary to question them but also to convince them to testify in the trial. They need to build an investigation and bring it to its logical conclusion.
The Netherlands Public Prosecution Service is very thorough. At each stage they have to be convinced that the court is considering the entire evidence base that they have.
Is there something that the investigation needs from the Ukrainian side?
Olena Zerkal: The investigative group is constantly working with [Ukraine’s] Security Service. But it seems to me that they need to look at the case more complexly. Not just the moment of the Boeing’s crash, not just how the Buk [missile] was launched from Ukrainian territory. But in general, what happened on the ground and who participated in the transportation of Buk-A.
Now everyone is working not only to study the footage and analyze the voices, in fact they’re carrying out a sequential analysis of the events. In addition, they’re attracting witnesses via video calling and adding actual suspects. It’s a fairly new process.
The Dutch were worried about a conviction in absentia because we can’t hand over our citizens. We can only transfer them for the duration of the trial or provide video communication. This will be a challenge for both the Ukrainian and Dutch judiciary.
Does the Netherlands generally practice trial in absentia? Moreover, we’re talking about citizens of other countries.
Olena Zerkal: They are making changes in the legislation. That’s why negotiations for an agreement took so long.
To make this possible, along with the submission of the ratification of this agreement, they will file for changes in their criminal and criminal procedural codes. The agreement states that it will be Dutch law and the decision will be up to the Dutch court.
You said that relatives want to see the site of the tragedy. Is Russia ready to assist in ensuring their security, as the country that exercises actual control over this territory?
Olena Zerkal: This is a complex question because all of this is Ukrainian territory that is currently uncontrolled. Of course, the question is whether we can guarantee the safety of the relatives.
According to international agreements, we provide a special mission access to the site of the tragedy, but access occurs with the involvement of the OSCE mission.
We will talk to the OSCE about whether they’re ready to provide an opportunity for relatives to visit this territory. But proceeding from an exacerbation [of the situation in Donbas], this is highly doubtful.
I wanted to ask about new details from the official report. For example, Russia, as it turns out, had practically completely closed airspace over Rostov around half a day before the plane was shot down. But despite the ban on flights, Rostov continued to accept planes.
Olena Zerkal: This was already known in the autumn of 2015, when the report from the Netherlands’ Transport Safety Council was made public. All of this is in the technical report, but no one paid any attention to it. The majority are concentrated on whether Ukraine is somehow at fault.
Russia did not provide any information. There was a lot of speculation around this. For example, allegedly Ukraine did not provide radar data for a long time. This is Russian speculation, which is also indicated in the report.
Speculation also appeared in the discussion about closing Ukraine’s airspace. There are no standards that would oblige us to close airspace. We have no complaints.
Earlier you spoke about the possibility of establishing a hybrid tribunal because Russia did not support the UN Security Council decision to form an international tribunal. Is it now a matter of just convicting the perpetrators in absentia?
Olena Zerkal: The hybrid tribunal was abandoned as the most costly method. The creation of a separate court is a compromise solution. Indeed, conviction in absentia appears to be the only option. Although, while the investigation is underway the trial will take place, perhaps something will change in the UN Security Council. We hope for the best.
/Interview by Nastya Stanko
/Text by Eilish Hart