THE June 19 press conference by the Joint Investigation Team (JIT) over the downing of MH17 has caused some dissension in international affairs. Because of the murkiness of the situation and the many angles, I believe it is worthwhile for us to break down the matter into components before looking at it as a whole again.
Facts of the case: Malaysia Airlines MH17 was shot down by an air missile near Donetsk in the eastern part of the Ukraine five years ago on 17 July. All 298 passengers, including crew members, were killed. MH17 was flying from Amsterdam to Kuala Lumpur passing through a zone of conflict in eastern Ukraine.
The JIT: The team comprises prosecutors from the Netherlands, Malaysia, Australia, Belgium and Ukraine. The purpose was to establish the facts of the case, determine the truth of what happened, gather criminal evidence and identify those responsible.
Malaysia was initially excluded from the JIT until it protested, justifying that we have ownership to the aircraft and the number of Malaysians who perished were considerable.
JIT findings: MH17 was shot down by a BUK missile transported into the separatist-controlled territory of eastern Ukraine from Russia. The Dutch findings were based on physical evidence where some 35 per cent of the aircraft’s remnants were transported in 11 containers to the Netherlands. According to the Dutch Safety Board, each piece of evidence was meticulously examined at least five times.
Based on these findings, the JIT held a joint press conference in The Hague to announce four suspects to be charged with the downing of the MH17 aircraft. Of the four, three are Russian nationals while the fourth is Ukrainian.
They are said to be responsible for bringing in the deadly weapon into eastern Ukraine, which according to the JIT had only one purpose — to shoot down a plane. The suspects were eliminated from hundreds of others based on screened big data, tapped telephone conversations and the social media.
Under Dutch criminal law their act is punishable even though they were not active soldiers and did not pull the trigger.
Despite the findings, JIT has left many questions unanswered. These questions, I believe, are more pertinent to the case:
FIRST, none of the four suspects were the crew members of the vehicle from which the surface to air missile was shot. The JIT was unable to identify who they were, how many of them, and how they were linked to the four suspects. What was their chain of command and what was the instruction? What was the intent of firing the missile? Was the incident a conscious and deliberate act intended to hit the Malaysian commercial aircraft per se or was the Malaysian aircraft caught in a crossfire?
Under criminal law, it is usually the act and intention at the same time that constitute a crime. The plaintiff has to prove that the civilian aircraft was intentionally shot. The defence is successful simply if it raises a reasonable doubt.
SECOND, there were 160 commercial flights flying over the Ukraine on that day. Why did the Ukraine air traffic controller direct MH17 to fly at a lower flight path, at 33,000 feet, over the conflict zone that put our aircraft in danger? Is the Ukraine not also culpable for directing MH17 to fly at that level, knowing that it was allowing a commercial airliner to fly straight into a zone of conflict?
THIRD, JIT members were drawn from the countries involved in the downing of MH17. But why was Russia not included in the JIT? Some press statements have alluded that Russia was invited to join the JIT, but declined. Was this the same way that Malaysia was initially excluded from joining the JIT, because it could not be determined if Malaysia would be supportive of Russia and not the West?
According to the JIT, the suspects are innocent until proven guilty and it is now in JIT’s hands to show that they are innocent. Witnesses have been asked to come forward. This comes after five years of the establishment of the JIT. It shows how little evidence they have to begin prosecution yet the trial will still begin on March 9 in The Hague next year.
For Malaysians, the fact that the four suspects are linked to the Russian government is not relevant. We should not be caught in a geopolitical feud between the West and Russia. After all, from the very beginning, the Russians have been blamed by the West either directly or indirectly for the incident.
What is relevant for us is the truth. What happened on that fateful day? Who caused it, and was it intentional? If it was intentional, then why us?
The writer was Malaysia’s Ambassador to the Netherlands when the MH17 incident occurred