The long-awaited MH17 trial has recently started in the Netherlands. And while the first two days only saw preliminary hearings, they already revealed crucial new information about the fatal July 2014 plane downing.
"Despite all of our efforts in trying to find out everything we could about the ongoing investigation, we had no idea that the Joint Investigation Team had actually secured tens of witnesses, some of whom are actually the volunteers or the mercenaries, the Russian citizens who are in eastern Ukraine, and who have decided to speak to the prosecution triggered by conscience or by the cause for witnesses by the Joint Investigation Team," says Christo Grozev, a lead investigator at Bellingcat investigative outlet.
"So these specific witnesses that were mentioned were completely new to us and we find that very interesting and optimistic," he added.
The trial hearings have coincided with the coronavirus pandemic around the world and the Netherlands have seen hundreds of positive cases as of March 13.
Will the pandemic affect the course of the trial that is set to resume on March 23? How is Russia trying to de-legitimize the court process? We spoke to the Bellingcat's lead investigator, Christo Grozev, to find out.
How would you rate the progress of the case so far?
The case [has only] just started. But I think the first week gave results that were surprising even for us who have been watching this case since the beginning, I think it brought many more specific results and concreteness than I would have expected in the first week. It gave a preview of what evidence the Joint Investigation Team (the JIT) has gathered. And it came with very strong words of warning to Russia to not meddle anymore, if at all this is a realistic warning. But I think it came with a lot more power and concreteness than expected by anybody.
Did you learn anything new from the trial?
Absolutely. We did not know anything about the protected witnesses. And I think it's very good that we don't know about it because it means that despite all of our efforts in trying to find out everything we could about the ongoing investigation, we had no idea that the Joint Investigation Team had actually secured tens of witnesses, some of whom are actually the volunteers or the mercenaries, the Russian citizens who are in eastern Ukraine, and who have decided to speak to the prosecution triggered by conscience or by the cause for witnesses by the Joint Investigation Team. So these specific witnesses that were mentioned, were completely new to us and we find that very interesting and optimistic.
Do you think Russia can alter the course of the trial?
Well, Russia cannot influence the course of the trial and it lost its hope to do that quite a few years ago. I think Russia's current strategy is to try to delegitimize the outcome of the trial as much as possible. And that will not be successful, that will not be easily achievable for the political establishment of the world. But they can do it for at least the useful idiots that are looking for anything that they can grab on to to have a sort of anti-establishment narrative.
I think they might be able to do it also for some less transparent governments, maybe Malaysia will ultimately decide to come up with a non-binding endorsement of [Russia’s reaction to] the outcome of the case. I know that over the last few years, Russia has tried to establish a sort of a back channel with Malaysia and tried to essentially bribe the government and the political leaders of Malaysia to take a position that will delegitimize the outcome of the court case.
But in terms of influencing the actual legal court case, there's no way for Russia to do anything about it. I think what Russia may not be aware of is how independent the court system in the Netherlands is, it's independent of the government. The judges could care less about what the government thinks. And there are many cases when individuals or companies, including a company that I ran in the Netherlands have sued the government in one multi million and billion court case against the government. So the Dutch court is extremely independent, extremely professional, and there's absolutely no way they will be brought into a situation where they would just misplace evidence or believe propaganda as opposed to hard facts.
Do you think the testimony of these new Russian witnesses will have implications beyond the case itself?
Well, already the implications are clear. Yesterday, on the second day of presenting the case the Joint Investigation Team actually quoted its own findings that confirmed the very close involvement of the FSB and GRU in the activities in eastern Ukraine. This has never been said publicly by an actual investigative body, a European investigative body, before. It was a preview of what's to come and in the next two years there will be hard evidence played on video in the courtroom and phone calls played out in audio in the courtroom. Because that's part of the whole case of investigating the chain of command of who allowed for MH17 to be shot down, [this evidence] will prove the actual involvement of Russia’s secret services and military in eastern Ukraine on the ground. And there's no way that this will not have a major implication on the rest of the world because while now Russia can say that “well, nobody's proven that” and “we don't believe journalists and Bellingcat investigators,” this will be the first time that an actual investigative body with a court judgment will actually set the facts straight. And the facts will include the facts of involvement of Russian military and secret services in eastern Ukraine.
You’re in quarantine for the coronavirus. Could you tell us a bit more about that? Could the coronavirus impact the court hearings?
Well, we don't know what's going to happen the next couple of months there, but I think we're in the early days of governmental response, across Europe, to the coronavirus pandemic. I know that in Austria universities were closed completely shut down last week and schools may be closed the next couple of weeks. And I know that in the Netherlands all public gatherings are going to be banned and and even the sacred Queen's Day event is going to be canceled for the first time ever. So we cannot predict what the impact may be on the court hearings. But the court hearings themselves will continue in any case, they may just not allow the audience to sit in the courtroom, and everybody will be forced to watch via livestream like I did because I was in quarantine. So I don't think the schedule of the court hearing will suffer, but the way it is done may be completely different this year.
(Editor's Note: Since the recording of this interview, the Council for the Judiciary has announced that they will be considering making changes to the trial process. Their decision will be announced by March 18.)
Some experts have predicted the case stretching for four or five years and we know that the hall where the hearings take place are booked on-and-off into the next year. Do you think that the case may lose its impact if it stretches out for that long?
Well, yeah. Justice delayed is justice not only denied but forgotten. And I think the Dutch court is extremely conscious of the pain that the families of the victims are still going through. And I think that's the primary driver that will make the judges decide to, to not allow spurious requests for delays. Typically, in any sort of criminal case, there's a lot of little tricks that the defense is doing to to cause a delay as much as possible. And I think it was clear from the first two days that the court is not going to allow that. So I don't think it will stretch to 4-5 years.
I do think it will be about 2 years and no less than that. But 2 years is enough to keep the fire burning and to keep global media focused on this. If it goes anywhere beyond that, then, I agree with you, it could be a bit risky for people to forget this most important court case of the last few years, of the last decades.
Only one suspect has defense lawyers in this trial – do you believe the defense’s arguments will be effective?
So far they've been very, very strange and ineffective. I attribute that probably to the little time that the defense team has had to acquaint themselves with the case. But the only argument so far that has been presented is not an argument in defense of their defendant, their client, it's an argument accusing the Ukraine of also being guilty – in addition to their client.
So I think given the hard evidence that will be presented in court of the Russian direct involvement in the downing the only thing that the defense for Mr. Pulatov may try to argue is that he was not critical or crucial in the chain of command, and he was just a low-level volunteer who was doing what he was asked to do without understanding the gravity of his actions. So I think it's going to be a mitigating strategy as opposed to a strategy of trying to prove that Russia didn't shoot down MH17 and that he had no role in it.
What are the chances that the prosecution will call new suspects in the trial?
Well, it's always a matter of pragmatic decision making by the prosecutor. They are unlikely to go for somebody that is not within the reach of being arrested or more brought to justice, if he's going to be at the same level or lower in the chain of command than the four defendants that already are serving or are going to be served justice. So I believe that the next suspects are going to be at a higher level in the chain of command. I think there will be military and I think there'll be secret service officers. And ultimately, I do believe that the chain of command of indictments will go to somebody at the political level, be that a deputy minister or, or the head of the southern region of the military command of Russia, or maybe even a minister.
But there's no way with the way the Dutch legal system works... They have to get to the person who is responsible, who authorized the delivery of the Buk and the use of the Buk. And it's clear from now that this cannot be the people on the ground. It was somebody from Moscow, from Russia.
I don't think [Volodymyr] Tsemakh will be brought in as a suspect unless he suddenly ends up being rearrested by the [Security Service of Ukraine] and, if that happens, then I do think he might be brought as a indicted person. But if he remains outside the reach of law enforcement or in Russia, then he's not going to be brought in, nor will anybody else of a low level.
My estimate is that there will be at least two or three in the mid-level chain of command, such as generals that were probably in retirement but were allocated to curate the separatists and the militants. And this will be the second wave. And then I expect there will be a third wave as well of somebody of the type of the head of the Southern military command unit in [the Russian city of] Rostov, or maybe even [Vladislav] Surkov or [Konstantin] Malofeev, who knows. So I think in total, probably another 6-8 defendants I expect to be brought into the court.
Close to 84 relatives of the MH17 victims filed for financial compensation. Who’s really on the hook here – the Russians, the separatists, or the accused suspects personally?
In this criminal case, the only party that can be indicted to pay and forced to pay are the suspects. I think it's more of a symbolic opportunity for people to claim damages in this process, but it cannot be the Russian state. However, it is important for people to claim their stake here and to present in front of the court the reasons why they're damaged, because the findings of this court, which will be very detailed and and exclusive, because only the Joint Investigation Team has received access to a lot of the evidence, and relatives don't have access to that evidence. But the findings of this court can be automatically used in the court by the relatives – that is ongoing – against the Russian state at the European Court of Human Rights in Strasbourg and, also, in separate cases that are led by other relatives in the United States against the Russian state. So it's an important step for the relatives to now claim their stake here, in terms of damages, but they cannot really collect it from Girkin or Dubinsky. But the facts that will be claimed here will be automatically reused in the European Court of Human Rights and in other civil litigation by the families against the Russian state. And then the Russian state will be on the hook. And it's an enforceable hook because the Russian state owes a lot of property around the world, it owns airplanes. And any country that decides to go after the enforcement of the payment relatives will be able to just confiscate property. And that's going to be how the relatives can actually get their money back or to get the money they're owed.
There is a court case in the European Court of Human Rights and that court case is going slowly, because it needs to allow for the findings from the criminal case to be incorporated into that court case. So there's no question this will happen. The only question is, will Russia in the meantime decide that everything [that is happening] is too damaging for it in the long term and try to prevent, let's say the second or the third wave of indictments. That will be very sensitive from a political fallout view because the moment it is proven in front of the court that the Russian military was directly involved – and that becomes part of the court file – then a lot of governments will be forced to take a new wave of sanctions against Russia.
So I think my prediction is that at some point before the end of the case in the fourth or the third wave of indictments, the Russian government will probably decide to come to a compromise and say “well, sorry, it was a Russian Buk, but the government was not responsible, it was some rogue officers. And oh, by the way, they died in Syria already, so too bad. But we acknowledge the responsibility of making that mistake and making that possible. But we don't acknowledge that we authorized that and we're not going to pay the families.”
READ MORE: MH17 Trial – Will Justice Be Served?
So I expect that there will be a cheaper result for Russia than the 20 years that they face of being a pariah state, if they don't acknowledge the outcome and the findings. So I wouldn't be surprised if in the next two years we see a partial recognition by Russia.
/By Maria Romanenko