Two months shy of the second anniversary of the disaster, seven Australian families who lost loved ones on board MH17 initiated legal proceedings against Malaysia Airlines for flying over a known conflict zone. The claims accused the airline of failing to monitor the situation in eastern Ukraine in the months leading up to the disaster and failing to perform its own risk assessment of the worsening conflict.
On 17 July 2016, two years after the plane was brought down, Malaysia Airlines struck a deal to settle the damages claims relating to most of the victims. Soon afterwards, relatives were invited to attend an official press conference to be held by the JIT on 28 September, at which the initial results from the team’s criminal probe would be revealed.
According to the JIT, there was now irrefutable evidence that Flight MH17 had been downed using a Buk rocket of the 9M38 series. They had also been able to pinpoint the launch area, a farmer’s field near Pervomaiskyi that had been under the pro-Russian separatists’ control at the time. Witnesses at the launch site near the village of Pervomaiskyi reported hearing ‘a very loud noise’ and ‘a high whistling sound’, but they were unsure whether this sound had come from the falling debris of the MH17. Afterwards, the Buk was said to have been transported back to Russia.
Around a hundred people had been identified who could be linked to the downing of MH17 or the transport of the Buk; the JIT did not name any suspects but said they would try to find out who gave the order to smuggle the Buk system into Ukraine, and who gave the order to shoot down MH17. The investigators—which included representatives from Australia, Malaysia, Ukraine and Belgium—said their conclusions were based on a wealth of supporting evidence, such as forensic examinations, witness statements, satellite images, radar data and intercepted telephone calls.
A video reconstruction of the Buk’s alleged journey was shown at this JIT press conference. It was seen leaving rebel-held Donetsk on a low-loader, heading east. After arriving in Snizhne on the afternoon of 17 July, it was offloaded and driven into a field south of the town. Early the next day it was taken back across the Russian border via the rebel-held city of Luhansk.
The one question that was not answered was this: if the separatists or the Russians were responsible, what were they aiming at? Surely not a commercial aircraft. A Ukrainian airforce Su-25 jet maybe? But the difference in shape, size and speed between a commercial plane and an Su-25 is quite significant, so how could a mistake like this have been made? Such questions could only be answered by the perpetrators.
Russia immediately dismissed the findings. Dmitry Peskov, Vladimir Putin’s press spokesman, said the ‘whole story is unfortunately surrounded by a huge amount of speculation and unqualified, unprofessional information’. Attempts to extradite Russian citizens to stand trial would be difficult if not impossible if Russia continued on its course of dismissing all findings and allegations.
For the relatives it was a disappointment because investigators were unable to say how long their inquiry into the suspected criminals would take. Were they looking at months, or would it be years? The chief Dutch prosecutor, Fred Westerbeke, said he could not make any promises in that respect, but he expected it to be a ‘long haul’: ‘The work is going on with all countries, and our best people,’ he said.
In a surprising interview with The Guardian, Igor Girkin surfaced in June 2016 and criticised Russia’s role in Ukraine. Portrayed as a hero in Russia and as a criminal in Ukraine, Igor Girkin had been a key actor in the pro-Russian separatist movement in Ukraine over the course of 2014. Girkin’s main criticism of Putin was that the Russian president had not gone far enough; he claimed that Putin had got himself ‘stuck in the middle of a swamp’ by stopping at the annexation of Crimea.
The Netherlands, in anticipation of suspects being arrested, had discussed the prospect of an international tribunal with Australian foreign minister Julie Bishop. It was to be similar to the one following the 1988 Lockerbie bombing, when Pan Am Flight 103 was blown up while flying over Scotland. In that special case a Scottish court had been set up in the Netherlands to facilitate the trial of the two Libyans charged over the disaster. A special court to preside over the trial of the MH17 accused would not need UN approval, and this meant the countries involved would not have to deal with a Russian veto. The court could be established through a treaty with all the countries that lost citizens and residents in the disaster.
But the Lockerbie example cast serious doubts on this plan of action. In that case, the two men accused had been eventually extradited ‘voluntarily’ by Libya and tried in the special Scottish court in the Netherlands. But it was highly unlikely that Russia would surrender any of its citizens for trial elsewhere. Due to Russia’s power of veto there, the Security Council would lack the capacity to impose the same amount of pressure as was brought to bear on Libya. In the Lockerbie case only one person was ever convicted for the bombing and today, more than thirty years after the downing of Pan Am 103, many questions still persist over his guilt. It was a highly unsatisfactory outcome.
For the MH17 relatives it was important that first and foremost the individual perpetrators were identified and tried. But they wanted more than just that. To be able to feel that any kind of justice had been done, they wanted Russia to be held accountable for ‘wrongful death’ and Ukraine for ‘gross negligence’.
But in the face of Russian obstinacy the question arose as to whether the Western powers would be willing to risk a major conflict with Russia over the MH17 disaster. And in August 2016 Ukraine celebrated its twenty-fifth year of independence with a grandiose military parade through downtown Kiev. ‘Our parade is a signal to the enemy: Ukrainians are seriously ready to fight for their independence,’ said Petro Poroshenko, the president of Ukraine.
Chapter 23
2017
All through January 2017 hostilities between the separatists and Ukraine’s military forces continued. Some thirty incidents of shots being fired were reported each day, especially around the Donetsk area, causing casualties on both sides as well as civilian deaths when villagers were caught in the crossfire. But the greatest cause of death were the landmines.
By now the ongoing war in Ukraine had become once again almost invisible to the rest of the world. In this strange war no party appeared to book any gains and both parties appeared to be just shooting intermittently at each other. The world had turned away and lost interest in the simmering war that neither side had declared. Every day sniper rifles, machine guns and loud booms from grenade launchers could be heard reverberating across the fields in the Donbas region.
The war also wasn’t always prominently visible. In fact, the towns and cities involved seemed to be going about their everyday business: buses drove through the streets, shops were open, and the garbage was being picked up. But the sound of war could be heard almost everywhere in the region.
Despite almost 1.8 million people having fled the conflict area, some 800,000 civilians still remained in their houses close to the battlefields, facing the risks involved on a daily basis. The elderly didn’t want to lose what little they possessed and stayed home to guard it; some stayed because they had nowhere else to go; farmers still worked the fields and miners still entered the mineshafts every morning.
On 17 January 2017, Ukraine went to the International Court of Justice in The Hague to file a suit against Russia. But the news around President Donald Trump taking office, and the mass protests, controversial executive orders and pending lawsuits that followed, meant that news of the Ukrainian suit escaped almost everyone’s attention.