“The purpose is to bring the MH17 matter to court”
16 oktober 2017
Fred Westerbeke, Chief Prosecutor with the Dutch National Prosecutors Office, in an exclusive interview to Pavel Kanygin, a special correspondent of the Novaya Gazeta.
A red brick building on the Rotterdam harbor bank. A guard is smiling behind the glass of the checkpoint. A modest plaque nearby, saying “Prosecutor’s Office”. We meet Fred Westerbeke, Chief Prosecutor, at the round table in the reception area. Mr. Westerbeke brings along a stack of notes, some print underlined, a whole paragraph added by hand.
Chief Prosecutor Fred Westerbeke is the head of the joint investigation team (JIT) that is looking into the Malaysian Boeing downing on 17 July 2014 over the Donbass. The MH17 Amsterdam – Kuala Lumpur liner carried 298 civilians — 283 passengers, and the crew of 15. They all died. In addition to the Netherlands, the investigation group is represented by Malaysia, Belgium, Australia and Ukraine.
In September 2016, JITpresented its findings, evidencing that the passenger flight was shot down by the surface-to-air missile launched by the Buk system from a site near Pervomayskoye (a settlement close to Snezhnoye), a Donbass area then controlled by the so-called “DPR”. The group also presented evidence that the Buk system was delivered to Donetsk Oblast from Russia, only to be whisked away immediately after the deadly shot. Based on the JIT materials, one may conclude that the Buk transportation was supervised by a militant who went under the moniker of “Khmuriy”. Based on the JIT materials it can be concluded that the insurgent called Khmuriy was responsible for the Buk transportation; records of intercepted telephone conversations involving Khmuriy were added to the case files.
The Novaya Gazeta ran its own investigation early in 2017 and identified “Khmuriy” who happened to be one Sergey Dubinskiy. Presented in the photo Dubinskiy usually wears a uniform of a Major General of the Russian army. It is unclear yet whether Dubinskiy was in military service on July 2014. Dubinskiy-Khmuriy was identified by his fellow officer Sergey Tiunov, an Afghan war veteran. In an exclusive interview with the Novaya Gazeta, Tiunov said that he and Dubinskiy discussed the consequences of the MH17 tragedy, and he offered legal help to Khmuriy. By request of the newspaper, experts of the International Association of Criminalistic Phonetics and Acoustics (IAFPA) carried out the analysis of the voices of Khmuriy and Dubinskiy and concluded that they belong to one and the same person.
In our conversation, Fred Westerbeke explained how the official investigation is “closing in” on identifying every single accessory to the MH17 crash, including top officials and military commanders who made the decision to bring the Buk system to Ukraine. Westerbeke went on to explain what guarantees are in store for the witnesses and what people like Khmuriy are to expect, if they wish to cooperate with the prosecution.
— Mr. Westerbeke, how does the investigation go on? What stage are you in?
— The investigation goes on and I cannot tell when this matter will be put to rest. But it is going to happen, no one should doubt it. We presented our preliminary findings on 28 September 2016 and answered the questions about what had happened to MH17 and where the Buk missile was launched from. Back then, we outlined the individuals involved, to a varying degree, in the tragedy. We have been looking for these people ever since.
— How do you mean “put to rest”?
— When those responsible for the downing of the passenger airliner are brought before the court, this will be the result of the JIT efforts.
— When the investigation team announced the cause of the MH17 catastrophe, it became all too clear that Russian would be the principal place of search for the individual suspects. Are you getting any cooperation from Moscow in identifying these people?
— We have been focusing our efforts on identification of these people over the last year. We know that the Buk system was delivered to the launch site by Snezhnoye from the border between Russia and Ukraine. We know that the system was smuggled back to Rostov Oblast after the fatal launch. We keep digging on and on, to find the answer to the questions: who brought the system, who escorted it, who pushed the button, who gave the order. So far, I cannot say that we have a finalized list of suspects. We keep gathering information from everywhere, and we welcome any cooperation from Russia, Ukraine and other countries and individuals who are in the know. Any information about who was behind this heinous crime would be greatly appreciated.
— A year ago, you said that you had information about a hundred individuals involved in the MH17 tragedy. Can you give us the names of those whose involvement is beyond any doubt? Who are these people?
— No, I cannot. The investigation goes on and we have no right or wish to disclose the names of the suspects or witnesses. But we will disclose everything when this investigation is over, and we will give the names at the trial.
— Not exactly the most transparent investigation.
— We are open where we can afford it. We keep the victims’ families and the public up to date. You may consider in this light our presentation in the autumn of the last year. Our laws and regulations allow us only to be completely transparent about a criminal investigation once the files are moved to the court. So that will be the moment when we can and will be totally transparent about the details of criminal investigation.
— But how are you going to find these people if you are not willing to disclose their names?
— If we want to have someone arrested, we will turn to the Interpol. We have procedures to follow. This stage is yet to come, but we will do it, if any arrests are required.
— Are the Russian officials willing to cooperate with JIT at all?
— All I can say is that we have made several official requests to Moscow and I have talked with my Russian colleagues. If you are asking whether they are willing to cooperate, I would say they had given us some information. Are they willing to cooperate in honest? Well, a lot of people in the Netherlands find it hard to understand why it took the Russians grand total of two years after the plane crash to provide the original data from their radar in Rostov Oblast? And why did they time it exactly two days prior to our MH17 report? Anyway, they have given us these details. And I can say, there is a cooperation of sorts. Nothing goes smoothly there, as it is common to every international investigation, but there is the cooperation. Next year will show, if we are going in the right direction. So far, I have no reason whatsoever to doubt it.
— What do you think about the alternative report made by the Russian government-owned Almaz-Antey company?
— Their conclusion [saying that the Buk was launched from the area next to village of Zaroshchenskoye, allegedly controlled by the Ukrainian army] is the total opposite of ours. We disagree with it. My mission is to collect all pertinent information and give the file to the court. From this point of view, what Almaz-Antey did is a small technical detail, part of the extensive investigation carried out by our team. They made a test, blew a missile next to an airplane and drew some conclusions. Fine, we used their data. But we also made a similar test and gathered quite a few information: photos, videos, intercepted telephone conversations and, what really matters, found the eyewitnesses – individuals who saw the Buk. This trumps everything what Almaz-Antey has. However, I am not going to judge whether their conclusions are wrong or right.
— Why? Aren’t they making your job harder?
— I see a lot of diverse data around this matter. And a lot of, mildly put, fairy tales. First there was that story about a fighter shooting down the Boeing with the air-to-air missile, then they came up with a Buk launched from Zaroshchenskoye. My task is to check and verify every fact, no matter how hard it would be…
— You are very delicate, when you talk about disinformation that had been long refuted by mass media and your colleagues.
— Firstly, I am a functionary who has been a cop and a prosecution officer for 37 years. Secondly, I am not in the least bit inclined to argue who sees what as disinformation or whatever. That is totally beyond my mission.
— However, since we started about it… You mentioned an SU-25 fighter version. Have you really given it a thought in your investigation?
— Of course, we have. This was one of the wildest versions. At first glance, the evidence was rock solid, including the radar data, photographs and even a pilot (one captain Voloshin – editor’s note)… However, our experts immediately disregarded all these data as total rubbish. For example, the fighter jet on the pictures was larger than Boeing 777. Then we established that on that tragic day there were no fighter jets in the area, not a single one.
— According to the JIT report, the Buk system was brought to Ukraine from Russia and after the shot it was smuggle out back. Does it mean that the system was Russian?
— As a prosecutor, I can only talk about what I can prove. Even if it is perfectly clear for someone whose system that was, it is still not a legally established fact. It simply does not work this way. This is what everyone unhappy with the lengthy investigation should understand. So far, we have conclusive evidence of where the system came from and where it went back. Next, we need to establish the identity of the operators and, what is even more important, those who were in charge – the chain of command that made the decision about the Buk. Only when we are totally confident about our evidence, we will present it to the court and to the public. However, and I would point this out, no one is going to blame the entire population of the country whose officers owned that Buk. I am only interested in specific individuals involved in the attack: who pushed the button, who gave the order and those who approved the delivery of the Buk to Ukraine. We need some more time, to gather the evidence. The investigation is further hampered, because we cannot visit the areas controlled by the militants. And we are unable to make any arrangements there, including interviews and arrests. It all would take more time than I’d like to admit.
— Do you communicate in any way with the self-proclaimed “DPR” and ‘LPR”?
— We do not recognize these entities.
— Mr. Westerbeke, if Russian authorities fully cooperate with you, what can they expect as a quid pro quo?
— Quite honestly, I do not understand your question.
— Well, it’s all obvious to me.
— Let me put it this way. There is this UN Resolution No. 2166, signed by Russia, actually. The Resolution says that every state in the conflict region shall provide assistance to international investigation. Full [unconditional] cooperation is the only way for the investigation to proceed. Five countries, not the Netherlands alone, are carrying out this investigation. And none of us may make bargains with any government. Our sole mission is to establish the facts. In case somebody missed this, I repeat: the truth is non-negotiable issue. This kind of approach does not work in the Netherlands.
— Suppose the Russian side agrees to extradite “Khmuriy” and close the issue of its involvement in the tragedy…
— I have read your investigation about that individual. Publications like this get us closer to the solution. However, the answer would be the same: no bargains when it comes to establishing the truth. If there is an individual [with the Russian authorities] who knows what happened to MH17, all I can say is: here’s the UN Resolution No. 2166, and your country has signed it. We would be happy to interview [Khmuriy] and anyone else who can share some information, but I have nothing to offer them in return. Everything is crystal clear. What else is there to offer?
— How about lobbying to lift the sanctions?
— But it does not work this way in the Netherlands. Someone in Russia may have a hard time believing it, but the prosecutor’s investigation in the Netherlands is independent. The minister of foreign affairs cannot just pick up the phone and tell me, hey, buddy, here’s the deal… Likewise, I cannot turn to the minister or anyone else with similar offer. This is the advantage of the Netherlands: the investigation is out of reach of politicians and officials. And we stay out of their business. I expect your question about the role of Ukraine in the investigation group. The answer is obvious: the crime happened within its jurisdiction. If we want to investigate the crime, we need to do it with them. In fact, the Ukrainians never once disappointed us in the course of joint operation. They provide everything we ask them for, omitting nothing, hiding nothing and doctoring nothing. Officers representing the other four countries participating in the JIT will corroborate this statement. Ukraine is a trusted member of our group. I would add, if MH17 were shot down over Russia, I would have suggested that Russia be made a member of the JIT group.
— I hear you. However, just to wrap things up with “Khmuriy”, if he or any other figure, like Strelkov, Boroday, etc., wish to testify, what guarantees you could give them?
— Every Russian citizen, not just Khmuriy, who wish to cooperate will be offered a number of options. If it is being a protected witness, we are ready to guarantee their safety and security, giving them a safe place anywhere in the world. If the figure is a party to the tragedy but wishes to cooperate, there may be a deal envisaged by the laws of the Netherlands.
— Asylum can be given to figures who are a party to the tragedy?
— Normally, we would not give any asylum to such figures. However, one needs to understand the extent of their involvement, assess the information they can share and how they can help the investigation. It’s all negotiable.
— Going back to specifics of cooperation with Moscow. The data from the primary radar that Moscow intended to provide to the JIT, allegedly refuting the involvement of separatists in the Boeing attack. Have you ever checked them?
— Let me tell you how it happened. About 2 days prior to publishing of our report in September 2016, the Russian side made a statement about the original data from the Utyos-T radar in Rostov. We obtained these data from the Russians only one month thereafter. We simply could not update our report on the basis of the new information. If you ask me whether or not we used those data back then, the answer is “we did not have it at the time”. It maintained that if the Buk had been shot from around Snezhnoye, the area controlled by pro-Russian separatists, the Rostov radar would have been able to detect the launch. Allegedly, that radar never detected any such launch. At least according to what the Russians told us two years after the tragedy. However, by the time of the report, we had an extensive and diverse package of evidence, testimony given by real eyewitnesses, photographs, videos, satellite photos – and all these unrelated sources indicated that the Buk had been launched from a site close to Snezhnoye.
— Anyway, have the Rostov radar data ever been used? Have you ever studied it?
— We received it a month ago and have been working on it ever since. Nothing to report so far. Why did it take us so long to start studying it? It’s quite simple: for some reason, Moscow first provided the data in Russian format, although we had specifically requested it in international form. We would say, if you have any new information, please share it in the form we would be able to study! We ended up waiting and waiting, until we have finally received it in the required format recently. Your readers, like everyone else who is following our investigation, may rest assured that all data provided by the Russian Federation will be filed to the case and be submitted to the Court.
— There is this one more thing that the Russians officially use to whitewash the involvement of pro-Russian separatists in the MH17 downing – the JIT report contains no primary data from the radars in Dnepropetrovsk. Moscow claims that the Ukrainians deleted the data immediately after the incident in an effort to cover things up. Meanwhile, the official Kiev claims these radars were simply shut down. What do you think about it?
— Indeed, in our 2016 presentation we pointed out that the Ukrainian station that would normally trace the flights over the area in question had been out of service, and the other station had been under repair. We have checked this information once again and got quite a lot of supporting evidence: the stations indeed were under repair. Later on, we found yet another radar close to the area in question. We gathered data from it, used it in our findings and properly reported it. Still, I would say, too much attention is given to radars of every kind, whereas there is an abundance of other evidence. There are eyewitnesses. Live people saw this Buk! There is a video of Buk going to Snezhnoye! It all makes me want to cry out, “Enough already! We no longer need anything about the radars! We have more than enough evidence and proof of what had happened. Imagine: you have eyewitnesses of a crime where one individual shot another. And you have video records and photos of the perpetrator buying the gun. And he discussed all this on the phone. And you have every bit of proof. So, what’s the point in looking for and investigating other guns in the city, and keep asking oneself, “Where are the radar data?”?
— In addition to the radars, Ukrainian Buk systems are a hot item as well. As you know, Moscow insists that the Boeing was shot down by a Ukrainian missile launched from Zaroshchenskoye. And Moscow doubts that Kiev has provided data on where its Buk systems are stationed and stored.
— My answer would be the same: no point looking for other Buk systems which could have shot down the airplane, if we already know exactly where and whose Buk had been shot. These questions were answered way back in 2015 in the report of the Dutch Safety Board, aided by the experts from a dozen countries, Russia included. For our own part, we in the JIT have established that the Buk has been brought from Russia. We have not an iota of a doubt in our absolutely unbiased conclusions.
— The JIT report mentions satellite photos, which also prove that the Buk was launched from the Snezhnoye area. Are these photos made by the US satellites? Did you really get them?
— Yes, we have these photos. An officer from my department who has clearance for handling the intelligence papers stamped “top secret” and “national security” saw and studied satellite data kept by the United States.
— Can you share more details about these photos? Do they provide the broad picture of the incident?
— Unfortunately, it’s nothing like the movies showing the unlimited abilities of satellite observation and zooming. Mass media made a lot of people believe that the U.S. space technologies are capable of virtually continuous video recording of the events down on Earth. It does not quite work that way…
— So how does it work? Where else would the U.S. keep its satellites at the time of unprecedented hostilities in Europe?
— I assure you, not even the U.S. satellites are able to see everything all the time. Besides, as you remember, that day was overcast. I cannot talk about what was on these photos, because they were seen by my authorized officer with proper clearance for handling sensitive data. He saw the report and conclusion of the U.S. side, and we used their data in our investigation as well.
— Are you satisfied with the involvement of the U.S. team?
— I am. This tiny piece only adds up to the evidence that the missile was launched from the Snezhnoye area.
— Why tiny?
— Because they [photos] are just a fraction of an immense body of evidence. It is all about the testimony of our eyewitnesses that is worth more than all data from the radars or satellites.
— But you could publish these photos and put an end to all speculation, couldn’t you?
— There is just this little simple thing: those who wish to speculate, will keep speculating regardless of whether we publish anything or not. Quite honestly, all speculation should have ended in September of the year before when we came out with extremely hard evidence that the attack on MH17 originated from Snezhnoye. Yet it never ended. Any idea why?
— Regardless, Russian propaganda labels the evidence from your report as "fakes from the Internet" and keeps demanding the American photos.
— Then whoever is doing that [propaganda] should be aware that we made our presentation for the report on the basis of the original data which we gathered anywhere but the Internet. Our witnesses recorded these frames with their cameras and phones. These are authentic and verified materials we would vouch for. I would personally vouch for them, and I am a professional with 37 years of prosecution under my belt. You can watch this video any time you want. As for the updates, please, wait till the trial. We will present everything to the court. We are doing our best, to bring that day when we hold enough evidence to start the trial. We may need a few months more, maybe a year or so. Or it may be a matter of a couple of weeks, if a couple of witnesses turn up tomorrow and tell us the entire story and offer the evidence. We count on it, and we hope that new witnesses will find a way to get in touch with us.
— Mr. Westerbeke, what kind of trial it will be?
— We would very much like it to be a tribunal under the UN auspices. Unfortunately, Russia has vetoed this idea in the UN Security Council. That is why the countries participating in the JIT chose it to be the trial in the Netherlands and it will be held in accordance with our national laws. I think our legal system has proven itself as reliable, transparent, independent and fair. We are doing everything to make this trial happen. Hundreds of families around the world are waiting for it and it keeps us on our toes. Nothing will stop us until we have found every party involved, including the commanding officers and the top brass. This is our warning to those who still hope that they will get away with this massacre of the innocent.