But will it stand up in court?

MH17 tragedy. Arguments remain about the model of missile used, the location where it exploded and its launch site

The joint investigation team (JIT) responsible for the criminal investigation of the downing of Flight MH17 over Ukraine in July 2014 have delivered the preliminary results of their investigation.

Wilbert Paulissen, the head of the Dutch National Detective Force announced their findings at a press conference in the Dutch city of Nieuwegein, saying:

“We have no doubt whatsoever that conclusions we are presenting today are accurate.”

The important question, though, is not the beliefs or conviction of the JIT spokesperson – but whether or not a court of law will accept these conclusions.

The scenario

The JIT has often been accused of deciding on the scenario they would investigate early in their investigation and subsequently restricted their investigation to that scenario – despite claims to the opposite. In other words, not giving proper consideration to other possibilities.

The presentation is online at “Presentation preliminary results criminal investigation MH17 28-09-2016.” It  asserts:

“The BUK-TELAR that was used was brought into Eastern Ukraine from the territory of the Russian Federation.”

They rely on “intercepted telephone conversations and videos and photographs on the social media” for this assertion. Readers who have followed the social media discussion will not be surprised to find this scenario is exactly the same as that advanced by Bellingcat – a controversial site run by British journalist and blogger Eliot Higgins (formerly known Brown Moses). This site is well known for advancing apparently plausible but cherry-picked information promoting Higgin’s political arguments against Syria and Russia.

The problem is that having decided on this scenario last year, the JIT’s search for evidence involved the presentation on social media of a video outlining the scenario and asking residents in the area if they could contribute any evidence. It seems no other credible scenarios were  investigated.

The Ukrainian Army had many BUK systems and missiles in the area. I would have thought these should have been given at least as equal consideration – especially compared with an implausible scenario which involved very tight movement of  a system from the Russian Federation and its return to account for the fact that intelligence agencies had reported just days before the crash that the separatist groups did not have any such missile systems (see Flight MH17 in Ukraine – what do intelligence services know?)

As it stands a court may consider the sort of evidence promoted by Bellingcat and the JIT regarding this scenario as circumstantial at the best. Especially if JIT continues to base their scenario on “classified” US information they cannot reveal to the court. And how will the JIT respond to defence lawyers asking if they had catalogued all the BUL systems and accompanying missiles in possession of the Ukrainian Army at the time?

The other press conference

For some balance, I checked out another press conference occurring at a similar time today – that given by technical experts from the manufacturer of the BUK missile system – Almaz-Antey. Unfortunately, you are unlikely to see that press conference on our main-stream media.

Here is a video from this press conference – I appreciate it is hard to follow technical information presented in a foreign language and relying on translators – but it is worth watching and thinking about.

Credit: MH17 Malaysian Facebook feed.

Almaz-Antey, of course, does not have any responsibility to determine what the real scenario was and who was responsible. But they do have the technical skills to evaluate conclusions being drawn about the missile system, its detonation near the aircraft and its launch site.

Here they repeat data presented last year evaluating the conclusions drawn by the Dutch Safety Board in their final report. They also carried out an experiment testing these conclusions using a real missile and aeroplane fuselage. They found  that the Board was mistaken – holes and marks on the experimental fuselage did not correspond to those on the MH17 wreckage – and concluded that the missile used was actually an older version (not in the current Russian service but still used by the Ukrainians), that the detonation took place differently to what the Board had concluded and, therefore, the launch site could not be in the region the Board had concluded.

The primary radar data discussed was new – having been recently found among calibration data stored by a subsidiary company. This data could not find any record of a missile on a trajectory assumed by the Dutch Safety Board – and their estimate was that if a missile had been on that trajectory for the required time the chance of it being recorded in the primary radar data is more that 99%.

Unfortunately, that primary radar was not capable of recording any signal from the different trajectory and launch site indicated by the Almaz-Antey analysis of fuselage damage on MH17.

The company has passed on this information to Russian investigators who, I understand, have in turn passed it on to the JIT.

Conclusion

So, I am not convinced that the JIT has produced a case that will stand up in court. if they included further information – such as a survey of the BUK systems known to be in Ukraine at the time, and actual satellite data the US claims to have – then their circumstantial case may be more credible.

As for the Almaz-Antey information – I find it technically credible. But of course, that can only be tested by people with the same level of expertise. Until that is done it should not be rejected out of hand as the Dutch safety Board (and the JIT) appear to have done.

Let’s note that Wilbert Paulissen said: “there was conclusive evidence that a missile from the Russian-made Buk 9M38 missile system downed the passenger flight on July 17, 2014.” This relates to the missile system and should not be opportunistically interpreted to mean the JIT has “conclusive” evidence for the Bellingcat scenario they are pursuing.

I think most people now accept that a BUK missile system was the most likely weapon used. Tthe arguments are about the model of the missile, the detonation point and the launch site. I cannot see any credible argument from the JIT for their claims on these aspects to be conclusive.

Update

Here is the video of the JIT presentation referred to at the beginning of the article. It is quite difficult to follow (foreign language, translators and the problem of sound levels of each) but I managed to stick with it to the end.

The first half essentially follows the text linked to above (Presentation preliminary results criminal investigation MH17 28-09-2016) but the last parts are interesting with statements from the countries involved (illustrating the political nature of the event) and the questions.

The video confirms for me that the JIT investigators had started with a preferred scenario and are not willing to consider others. I can’t see this standing up in court – if it ever gets to a reputable court.

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