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by John Helmer, Moscow 

A Dutch Government prosecutor has told the court trying charges of murder against the Russian state, three Russian soldiers and a Ukrainian in the shooting-down of Malaysia Airlines Flight MH17 that satellite images were requested from the US, Russia and China. The Russian reply, announced yesterday in court by prosecutor Thijs Berger, was that the Russian satellite images were “not stored”. The Chinese reply, he added, was that there had been a Chinese satellite above eastern Ukraine at the time of the MH17 downing, but it was “not operational”. All three governments – the US, Russia, and China – refused to provide satellite images.

Thijs Berger is one of the three state prosecutors presenting the state case in the courtroom at Schiphol, which resumed open hearings on June 8.  The prosecutors are expected to take several days summarizing their sources of evidence, the methods of their investigation, and the results to date. The presiding judge, Hendrik Steenhuis, announced on Monday that this is a preliminary or pre-trial procedure to enable the court to decide whether further investigations are required before the trial of the four defendants can commence.

The Dutch defence lawyers, appointed to represent the single Russian defendant Oleg Pulatov, will follow with their comments on the prosecution’s case to date, and argue for Steenhuis to rule on requiring the production of additional evidence;  additional time for the defence to analyse the prosecution file;  and possibly summary dismissal of the charges, if the prosecution summary falls short of establishing evidence that meets the criminal law standard, required by Dutch law – proof beyond reasonable doubt.

Before the MH17 case began, Berger (right) was a prosecutor of the Dutch War Crimes Unit, a state entity. In Europe it has prosecuted war crimes alleged by the NATO alliance in its war on Serbia from March to June of 1999.  A recent report to which Berger contributed, entitled Universal Jurisdiction Annual Review 2019, sponsored by a Taiwan promotion group and the Oak Foundation, funded by the Duty Free Shop owner Alan Parker, identifies a case which Berger pursued of war crimes in Afghanistan; those alleged crimes were not of the US and allied forces in Afghanistan, but of the local Afghans fighting against them. For more on Berger, click to read.

Berger spent the morning of the June 9 court session reviewing the radar evidence of the last minutes of the MH17 flight, its mid-air destruction and crash on July 17, 2014.  He said the available radar data came from a NATO airborne AWACS aircraft, the Ukraine, and Russia. He reported that no “relevant data” were registered by the NATO source.

View and listen to the full court proceeding of June 9 here.

The Ukrainian radar data provided to the prosecution, according to Berger’s testimony, was fragmentary and incomplete. He reported the Ukrainian claim that their Chuguev radar station,  closest to MH17’s flight path,  had been switched off for “routine maintenance” during July 17, 2014, and at the time of the crash. Berger also claimed the Ukrainians had said their air-traffic control radar at Dniepropetrovsk was “out of range” of MH17 at the point of its break-up. Berger then reported a telephone record between a Dneipropetrovsk radar operator and a Russian air traffic control operator at Rostov, proving the Dniepropetrovsk radar had been within range,  tracking MH17 before its disappearance from the radar screens.

Berger’s presentation illustrating the Ukrainian claim of the range of the Dniepropetrovsk radar (left) and MH17 beyond it (right).   Min 30:14.

Primary and secondary radar data had been provided by Russia, Berger said. He illustrated several of the Russian screen plots, and reported expert consultants who had been asked to evaluate what the Russian radar capabilities were at the time for detection of civilian aircraft, military fighters, missiles, and drones,  and what they may have missed.

Illustration of Russian primary and secondary radar plots of MH17, with  Singapore Airlines and Air India flights to the northwest and northeast. Min 45:03.

In a surprise conclusion, Berger told the court the radar evidence from all sources was inconclusive, short of proof beyond reasonable doubt of the alleged Russian-fired BUK missile. He acknowledged that in proving his case that the missile had been fired at MH17 by the defendants from a location they prepared in advance, there was direct conflict of evidence between the Dutch Safety Board and European consultants hired by the prosecution on the one hand, and on the other, the evidence of the Russian Defence Ministry and the missile builder, Almaz Antey. For more detail of the Russian radar presentations in 2016, read this.  

Regarding the Russian radar evidence, in order to resolve the conflict of evidence, Berger claimed proof by double negative: “According to the two [European] experts and the Dutch Safety Board, the absence of [radar-detected] echos of the missile in the Russian air traffic radar could be explained in different ways… The experts and the Dutch Safety Board believe that the data of the Russian air traffic radar do not provide evidence for the absence of a missile” (Min 53:54).

“Intermediate conclusion now,” Berger summed up the prosecution’s radar evidence of the  murder weapon and the crime:  “we cannot find a registration of a missile or a fighter jet in the vicinity of MH17… That no registration was found according to these [Dutch government] experts doesn’t mean to say that there never was such a missile…Based on these findings, we have reached the conclusion that investigation based on radar data is complete…. We do not expect that new radar data or new radar insights can be obtained” (Min 59:55).

Berger then made his presentation of the prosecution’s satellite evidence.  “The investigation team has made enormous effort to collect the right satellite data, and appeals were made to commercial entities and to governmental organisations” (Min 1:02:22). Geoserve and Google Earth were the commercial satellite image sources consulted. Asked for images of the MH17 in the air, the crash site, the missile firing site, and the movement of BUK missile batteries on the ground, Geoserve replied, according to the prosecutor, there were “no images of the relevant areas” (Min 1:03:10). Images of the alleged missile firing location were “not suitable because of cloud cover” (1:03:25).

A Google Earth image was purchased, he said, of a BUK-Telar (transporter), taken on July 17. But he admitted its interpretation was less than conclusive. “Several sources”, according to Berger, who didn’t identify who were they were, had claimed the missile transporter was on its way to the launch site. No image of a BUK unit at the firing location the prosecution is alleging is in the prosecution’s evidence.

The Dutch asked three states for satellite images – the US, Russia, and China. “The United States did not send us images but did send us other information” (Min 1:05:04), Berger said, repeating the substance of the prosecution’s written response to Judge Steenhuis’s order for disclosure, which Steenhuis announced in court yesterday; click.

Berger said a Dutch request for satellite images of the alleged missile launch, trajectory and detonation was replied to by “a representative of the American Office of the Director of National Intelligence” (1:06:36). The written reply included a copy of the “same image which had been posted on the [July 22, 2014] Facebook page of the US Embassy in Kiev.” Berger did not display this image to the court or comment on its evidential value.  

On July 22, 2014, a Washington newspaper published a selection of satellite images which originated with the Office of the Director of National Intelligence; click to view.   These were analysed here.  

Source: https://www.washingtonpost.com/

According to Berger, “the American authorities by way of exception [sic] have allowed our colleague [National Counter-terrorism Prosecutor Simon Minks] the opportunity to assess that information.  The United States offered the prosecutor an intelligence briefing by several American officials, and also gave access to several classified and non-classified documents…The American authorities have informed us they do not have any other information. They cannot provide any other information on the detection of the missile other than the information provided in the written statement, and no more information than was provided confidentially to the Dutch National Prosecutor [Minks]” (Min 1:07:42-1:08:36).

The Dutch also applied to Moscow for satellite images, starting with a letter on October 15, 2014. The Russian reply provided “digital copies in a lower resolution” of images which had been published publicly on July 21, 2014,  by the Defence Ministry. “Despite repeated requests we did not receive the underlying image files of the satellite images. And it was only in March 2020, just before the first [court] hearing, that the Russian authorities replied that the satellite photos of the location at Zarochenskoye had not been stored” (Min 1:10:07).

“A broader request to the Russian Federation to provide all other satellite images…and all other satellite information concerning the course of events of the crash of Flight MH17 remained unanswered” (Min 1:10:37).

Berger also revealed the prosecutors had asked the Chinese Government for satellite images of eastern Ukraine at the time of the shootdown.  “They let us know there was a satellite orbiting there but the satellite was not operational” (Min 1:11:00).

Berger summed up for the court the prosecution’s “intermediate conclusion. A lot of effort was made to access all relevant satellite data… The prosecution believes that in this respect it has made all efforts that can reasonably be expected to have been made.”

In Dutch criminal law the onus on the Dutch prosecution is not reasonable effort but proof beyond reasonable doubt. According to Berger, the prosecution is not claiming its radar and satellite evidence satisfy this onus.


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