by John Helmer, Moscow
Bribes; early release from prison; threats to kill; covert operations inside Russia, including rendition; and intimidation of relatives.
These have been five of the methods planned for obtaining witness testimony for the trial of the criminal destruction of Malaysia Airlines Flight MH17 on July 17, 2014. The trial opens on Monday, March 9, in The Netherlands. The Dutch prosecution alleges that three Russians and one Ukrainian intended to murder the 298 passengers and crew on board the aircraft by firing a BUK missile.
Details of the witness tampering plan have been released to reporters in The Hague by Bonanza Media this weekend. In their secret conference police officers and prosecutors from The Netherlands, Australia, Belgium and the Ukraine acknowledged they knew what they were planning was a violation of the law of the states they represented. This was acceptable to the Australian police representative so long, he said, as it was a “covert operation”. The Ukrainian prosecutor said he “sees no problem if this is done by The Netherlands. It’s like a regular intelligence operation.”
The group meeting was a regular part of the Joint Investigation Team (JIT) created after the downing of MH17. Malaysia, the fifth state member of the JIT, was not invited or included at the session. The Malaysian Government is the only JIT member refusing to endorse the allegations of Russian culpability in the shoot-down.
Attending the two-day session at a Dutch criminal police office at Driebergen on January 25 and 26, 2018, were eight officials, plus an interpreter for the Ukrainian and a Dutch minute recorder. The names of those discussing the witness tampering scheme are listed at the top of the official minute.
For the full 14-page record, click to read . Bonanza Media releases can be followed here . To date, the JIT has not challenged the authenticity of the leaked documents; the Australian Federal Police has confirmed they are genuine.
“The meeting’s goal,” Maartje Nieuwenhuis began the session, was “to update each other what we are working on in our investigation and what the plans are for this year.”
Left to right: Detective Superintendent of the Australian Federal Police (AFP), David Nelson; Lieve Pellens, spokesman for the Belgian federal prosecutors’ office; Maartje Nieuwenhuis, a Dutch prosecutor.
David Nelson, an Australian Federal Police (AFP) officer with detective superintendent rank, has been the senior Australian policeman in the JIT investigation. He told an Australian newspaper on June 20, 2019 : “Key people in a leadership role in Donetsk, who had a strategic military goal to get anti-aircraft missile defence to help their strategies have been named, this is significant…As for the people below and above, we have the call for witnesses, including those in and around the 53rd brigade to identify the crew of BUK Telar and higher up the chain (to find those) that furnished the BUK Telar to the separatists.’’
Nelson omitted to disclose that his public call for witnesses also involved the secret plan he had agreed to at the earlier meeting. There, he said he favoured entering Russian secretly to reach witnesses and persuade them to testify to the Russian role in the shoot-down. He said he “considers this to be a covert operation. Should be possible with witnesses, as long as no criminal offences are being committed.” He preferred that entering Russia covertly should be done by the Ukrainians or the Dutch, not by the AFP. “The SBU [Ukrainian Security Service] is needed for witness opportunities…[I am] willing to have someone work on the witness approach but a SBU investigator is needed to join.”
What the Australian and Ukrainian representatives at the Driebergen conference meant by “witness opportunity” and “witness approach” was spelled out by Gerrit Thiry, a Dutch policeman (right). He mentioned a telephone call to an individual he called Budik, who was being held in prison as a “prisoner of war” when MH17 was destroyed. “Our approach”, according to Thiry, is “to try to reach out to potential witnesses or people related to POIs that live in countries where we can work. For instance a relative of a POI in the USA.”
Paying to influence their witness testimony, or threatening them or their families for the same effect were the methods Thiry intimated were justified because, he claimed, that’s what the Russians were doing elsewhere. He then told the meeting “about Russian influence in elections in several countries like Bosnia and Montenegro and parallels with the eastern Ukrainian conflict.”
“Our ambition is to gather evidence,” Thiry went on. The difficult job of finding witnesses and getting them to talk “depends on the help of the SBU to do the interviews in Ukraine.” The Ukrainian official at the session, Oleg Peresada, said the SBU, to which he said he belonged, was over-worked on other jobs and had run out of agents to work on MH17 witnesses. He explained that Ukrainians took sides in the conflict, and that the only witnesses who would agree to testify were those “on our side”.
According to Peresada, the SBU was tapping the telephones of targets. “We (SBU, not the Ru[ssian]-speaking officers at the FiO) are monitoring potential witnesses as well as suspects and trying to get them on our side. Actually we are in contact with someone who was on the launch site and we are trying to get that person at our side.”
Dutch prosecutor Nieuwenhuis conceded that without the SBU and its methods for persuading people to talk, “we simply cannot move on with our investigation without them.” Manon Ridderbeks, a Dutch prosecutor who has served in the Dutch colonial administration in the Caribbean, added: “only the SBU is able to locate witnesses and bring them in.”
There were alternatives to the SBU methods the Dutch, Australians, Belgians and Ukrainian agreed. One was to penetrate Russia secretly and either bribe or force target witnesses out of the country. Nieuwenhuis and Anne van Dooren, a third Dutch prosecutor, asked “the question about the breach of Russia’s sovereignty through the approach of witnesses who most probably reside in the RF [Russian Federation] without informing the RF authorities.” This was acceptable as a Dutch operation inside Russia, they added, so long as everybody around the table agreed. “As JIT we all must agree and endorse this point, although work might be done by the Netherlands alone.”
Thiry said he was using Russian social media like VKontakte to reach his Russian targets. That was risky, the Ukrainian SBU official said. “The danger lies in the fact that VK/OK [VKontake/Odnoklassniki] was created by the RF [Russian Federation] intelligence agencies. The risks could be that we will end up with dead witnesses or witnesses who have been instructed to provide a testimony that leads us down the wrong path.” Everyone at the table agreed that Russian influence led “down the wrong path”.
Van Dooren asked what the others thought of the legality of schemes of “luring the witness”; and the admissibility in court of such witness evidence as could be gathered by covert operations. The others answered the schemes were legal, particularly if someone else did the job.
Lieve Pellens, the Belgian prosecutor, said “approaching/making contact with a witness is not a problem for Belgium, that’s just an act of investigation (“onderzoeksdaad”). Even when the witness will actually be interveiwed via video link this is acceptable, as long as the witness is cooperating. Belgium has worked in this manner with certain African countries.”
“To lure a witness is no problem at all,” added Wouter Waumans, the Belgian police representative. “We don’t have to do anything with luring of the suspect if it’s done by the Netherlands. When it’s the JIT it’s another question… It would not be a problem if they would make the suspect travel to another country.”
Detective Superintendent Nelson said he wasn’t sure that “making the suspect” would be legal in Australia, or admissible in court as witness evidence. “It wouldn’t be admissible according to Australian law.” But “covert action happens in Australia”, he added. If the Dutch ran the operation inside Russia and got the target out to a third country, the legality might be acceptable to the Australians. He “has to discuss this back home,” Nelson said.
The Dutch weren’t troubled about the legality of covert operations to induce or compel Russians out of the country to testify in the MH17 trial. But they were worried, Nieuwenhuis admitted to the others, about getting caught and exposed in public. “It is important,” she said, “that we have consensus on these issues with all JIT partners, so that we will also show consensus to the world in case an operation like this would happen and become known.”
Dealing with the skepticism of the press was a bigger problem, the Dutch said, than they expected the trial court and the Dutch judges to be. Thiry and van Dooren said they had gone to London a few days earlier “to talk about the UK experience in the [Alexander] Litvinenko case. The case officer and the SIO [Senior Investigating Officer] of the Litvinenko investigation explained various counter-strategies that they encountered from the RF [Russian Federation].”
Nelson was asked by the AFP’s  house publication if there are differences in the way the Australian and Dutch police have been operating in the MH17 investigation. “All the team members,” he replied, “are very committed to their work, both Dutch and Australian. These men and women only have one mission: to find the truth and to ensure that the perpetrators are brought to justice. So in our drive there is no difference.”
Left: AFP Assistant Commissioner Peter Crozier at a JIT press conference last June confirming the evidence of telephone tapes despite their having been faked by the SBU. Right: ex-Australian Prime Minister Tony Abbott, who prepared an military invasion of Ukraine with Australian and Dutch forces after the MH17 crash; for details, read this . Yesterday Abbott told the Australian media: “It is impossible for Australia to regard Russia as a normal country when the Russian government, from the president down, to this day connives and covers up this atrocity."
The exposure of Nelson’s covert operations for evidence-gathering has not been reported in the Australian media. But it will be part of the defence lawyers’ case in the Dutch court. Nelson’s superior at the AFP, Assistant Commissioner Peter Crozier, has told the Australian press he has been hopeful there would be no appearance in the Dutch court by Nelson or cross-examination. “There’s a possibility [of Australian police giving evidence]”, Crozier said . “But it’s just a case of whether the evidence that’s required to be tested will be tested. Some of it might just be accepted. So we’ll wait and see.”