Moscow Faces Trial in The Hague Next Year Over Downed MH17 Airliner

Repercussions of the downing of Malaysian Airlines Boeing 777 Flight MH17, which was shot down over occupied Donbas (eastern Ukraine) on July 17, 2014, continue to haunt the Russian authorities. Everyone on board—283 passengers, including 80 children, and 15 crew members—was killed. The 298 victims were from 10 different countries, but most were from the Netherlands. A Dutch-led international Joint Investigation Team (JIT) continued its work throughout all these years. Finally, on June 19, 2019, Dutch prosecutors charged the first four suspects: Igor “Strelkov” Girkin, Sergey Dubinsky, Oleg Pulatov and Leonid Kharchenko—all of them pro-Russia “rebel” commanders associated with the Moscow-backed separatist “Donetsk People’s Republic” (DPR). Today, the accused reside in Russia—with the possible exception of Kharchenko, who may still be in Donbas. The Russian Constitution forbids extraditing its nationals for trial, so the Dutch prosecutors announced they will not bother to send a formal extradition request. The trial is planned to begin in The Hague on March 9, 2020, in absentia. The Netherlands’ chief prosecutor, Fred Westerbeke, told journalists the four accused did not directly “press the button” that launched the surface-to-air BUK M1 missile (known in the West as the SA-11 Gadfly) that destroyed Flight MH17. But they, nevertheless, were in charge of deploying and guarding the BUK M1 as it was moved from the 53^rd Air Defense Brigade in Kursk, Russia, into firing position near Snegnoye, in the Russian/rebel-controlled part of Donbas (Interfax, June 19).

Westerbeke accused Russia of failing to cooperate: “We have proof Russia was involved in this tragedy, this crime. They knew almost immediately what actually happened but continued to withhold information.” In the absence of truthful Russian-provided official information, the Dutch prosecutors plan to use their own expertise and data, which will be produced during the coming trial to pinpoint the culprits who fired the BUK M1 at Flight MH17 and who ordered the launcher with missiles to be sent into war-torn Donbas. Additional indictments may be pending (Interfax, June 19). According to Westerbeke, the trial in The Hague could last up to a year; and while the actual culprits will likely be absent, Russia will be in the dock.

The Russian Ministry of Foreign Affairs flatly rejected all of the JIT’s findings, denouncing them as “unfounded accusations based on dubious information sources” and complaining that “data submitted to the investigation by Russia continues to be willfully ignored” (Mid.ru, June 19). Moscow has indeed spent time and money in a major public relations effort to prove the improbable: that Flight MH17 was hit by the Ukrainian military, which then framed the Donbas rebels and Russia. Inter alia, the Russian military accused the Ukrainians of using a Soviet-built Su-25 Frogfoot attack plane to shoot down Flight MH17—a scenario whose details were technically impossible. The BUK producer Almaz-Antey ran a series of elaborate and costly explosion experiments to “prove” Ukrainian guilt. In July 2015, Russia vetoed a United Nations Security Council (UNSC) draft resolution that would have set up an international tribunal to investigate and prosecute those involved in the Flight MH17 case. Today, the trial is scheduled to happen in The Hague regardless, under Dutch law; and Moscow will have even less control over the proceedings than if it allowed a tribunal under UNSC auspices.

The Dutch authorities are not seeking a confrontation with Moscow, and Westerbeke offered a plausible way out of the impasse, by suggesting the destruction of Flight MH17 happened by “mistake,” if the so-called rebels mistook the Boeing 777 jet for a Ukrainian military transport aircraft (which could have been a legitimate target in a war zone). Yet, according to Westerbeke, even if such an interpretation is plausible, the trail must still go ahead for the court to decide the gravity of the crime (Interfax, June 19).

In the summer of 2014, the Ukrainian military attempted to reestablish control of the Russian-Donbas border to stop the inflow of arms and men and suffocate the Moscow-inspired and Russian-backed rebellion. But Kyiv’s plan devolved into a total disaster: A string of Ukrainian outposts on the border were bombarded from the Russian side while Russian/rebel forces harassed them and cut their supply lines. Meanwhile, the Ukrainian outposts were under orders not to shoot back. Ukraine’s military then began sending in transport aircraft to parachute supplies to its beleaguered troops. These aircraft flew in at altitudes over six kilometers to avoid the enemy’s manned portable surface-to-air missiles (MANPADS). Flight MH17 was overflying the Donbas region higher than 10 km and seemed safe. What the Ukrainian command apparently did not know at the time was the introduction of Russian BUK M1 missiles capable of shooting targets at up to 18 km. According to Ukrainian Lieutenant General (ret.) Igor Romanenko, a rebel (Russian) spy texted a message on July 17, 2014, about a Ukrainian An-26 military transport propeller-driven aircraft taking off to fly over Donbas to the Russian border on an aerial supply mission. The spy’s message was intercepted and the An-26 flight was canceled; but the Russian/rebel BUK M1 crew had already been alerted that a high-value target was coming. It is, therefore, possible to speculate that the relatively primitive radar targeting equipment of the BUK M1 launcher did not allow the crew to recognize the difference between an An-26 and the Malaysian Boeing 777, which was hit by “mistake” (Novaya Gazeta, July 11, 2015).

Instead of stonewalling and constantly lying, Moscow could have tacitly—without taking full legal responsibility—recognized a measure of guilt in the tragedy of Flight MH17 by, say, agreeing to pay compensation to the families of the victims. The United States did something similar in 1988, when the USS Vincennes mistakenly shot down Iran Air Flight 655, resulting in the loss of all 290 people on board, including 66 children. The US warship confused Flight 655 for an attacking Iranian F-14 jet.

The missile strike on Flight MH17 was apparently unpremeditated and, it could be argued, the victims were accidental “collateral damage” in an ongoing armed conflict. But instead of accepting the facts of the deadly incident, Moscow launched a disinformation campaign, aggravating the situation into a PR disaster. It seems improbable anyone in the Kremlin will have the courage to take up Westerbeke’s offer and try make amends by tacitly accepting the “mistake” narrative. As has happened many times before, it will require a new tsar taking over the Kremlin for Russia to move from full denial to disclosure on the downed civilian airliner.