Response PM Rutte to JIT presentation of criminal investigation MH17

Letter of 23 June 2016 from the Minister of Security and Justice, Ard van der Steur, and the Minister of Foreign Affairs, Bert Koenders, to the President of the House of Representatives concerning the current state of affairs with regard to the MH17 disaster

We are writing to fulfil the undertaking made during the debate on parliamentary business on 2 June 2016 to outline the current state of affairs with regard to the downing of Malaysia Airlines flight MH17. This letter provides information about cooperation among the members of the Joint Investigation Team (JIT), the criminal investigation and the prosecution and trial of the perpetrators.


Cooperation within the Joint Investigation Team

As the House was informed by letter of 12 October 2015 (Parliamentary Paper 33997, no. 52), a Joint Investigation Team (JIT) was established with a view to coordinating the efforts of several of the countries affected (Australia, Belgium, Malaysia, the Netherlands and Ukraine). Under the auspices of the Dutch Public Prosecution Service, the JIT is conducting a criminal investigation into the precise circumstances of the downing of flight MH17. The Public Prosecution Service has informed us that all the countries involved continue to work together satisfactorily.

At the end of May, an Australian news site posted a report suggesting that Malaysia intended to launch a ‘joint investigation’ with Russia, separate from the JIT. That report was incorrect. It was based on the misrepresentation of a statement made by Prime Minister Najib Razak of Malaysia during a meeting with President Putin in the margins of the ASEAN-Russia Summit in Sochi. At that meeting the Malaysian prime minister indicated that the results of the independent international criminal investigation would be presented later this year. He was referring to the JIT investigation, in which the Dutch Public Prosecution Service has assumed a leading role.

Malaysia has confirmed that, like the other JIT countries, it is fully committed to the JIT and has explicitly requested that no credence be given to any media reports that suggest otherwise. The JIT countries maintain open lines of communication with a view to identifying and correcting any misinformation as it emerges.

Misinformation about MH17 is not a new phenomenon. Back in January 2015 the EU Foreign Affairs Council expressed concern in its Conclusions about attempts to discredit the investigation conducted by the Dutch Safety Board. At the time of the UN Security Council vote on establishing an international tribunal and the publication of the Dutch Safety Board’s report, there were multiple unsubstantiated reports apparently aimed at discrediting the investigations carried out by the Dutch Safety Board and the JIT. Within the international community, however, the independence and quality of these investigations are beyond dispute.


Progress of the criminal investigation

With due regard for the need to observe caution in sharing information, the Public Prosecution Service endeavours to provide insight into the JIT’s work whenever possible. To that end, the JIT published an online magazine, or ‘e-zine’, on 6 June 2016, containing information about the way in which the JIT investigation is being carried out.

The criminal investigation is still under way and it cannot be said with certainty how long it will take. Earlier this year, the JIT announced that it expected to complete its investigation into the weapon used to bring down flight MH17 and the exact location from which the weapon was fired by the second half of this year. This part of the investigation is at a very advanced stage but the JIT has said that a number of matters require more time to investigate than was previously assumed. The matters in question are a number of issues concerning the forensic analysis and information for which requests for legal assistance have been lodged. For example, the JIT is waiting for information about Buk installations from the Russian Federation.

The JIT expects to be able to release the first concrete results of the criminal investigation into the downing of flight MH17 after the summer, first to the next of kin and then to the general public. The information released at that time will concern the weapon used to shoot down the aircraft and the exact location from which the weapon was fired. Of course, a briefing can be organised for the House at its request.


Facilitating the criminal investigation

The government considers it vital that the investigating and prosecuting authorities working together in the JIT be able to proceed with the criminal investigation independently and unimpeded (see the letter to parliament of 12 October 2015, 33997-52). The quality and integrity of the criminal investigation are paramount. The investigation must be carried out with the utmost thoroughness and care to ensure that the truth is uncovered.

The government is facilitating the investigation wherever possible and necessary, for instance by forwarding requests for legal assistance from the Public Prosecution Service to the relevant countries. In addition, at political level the government is committed to securing the full cooperation in the criminal investigation of all the countries involved. As the House was informed earlier, the downing of flight MH17 and the related requests for legal assistance are a regular topic of discussion with all the countries that are relevant to the investigation. In February of this year, in a discussion with Russia’s Minister of Foreign Affairs, Sergey Lavrov, reference was made again to UN Security Council resolution 2166 and the Russian Federation was urged to lend its full cooperation to the criminal investigation. The same message has been communicated to the Russian Federation and other countries in discussions at senior official level and through diplomatic channels.


Prosecution and trial

In the aforementioned letter, the House was informed about the Dutch government’s efforts to bring about the establishment of an international tribunal by the UN Security Council. The letter also stated that, despite Russia’s veto in the Security Council, the Netherlands’ efforts to establish a mechanism to prosecute and try any suspected perpetrators would continue unabated.

In the same letter, the House was informed that immediately after the vote the Dutch government conferred with the other countries involved in the JIT about what the next steps should be. The heads of government of the countries concerned decided to make legal preparations for alternative mechanisms for prosecution and trial, including national prosecution and trial in the countries involved in the criminal investigation and an option for international prosecution and trial by a tribunal established by multilateral treaty.

Since 12 October 2015 representatives of the JIT countries have held consultations several times, in both multilateral and bilateral configurations, and important steps have been taken towards shaping a mechanism for prosecution and trial. The discussions have covered a range of important aspects of such a mechanism, such as jurisdiction issues, cooperation with third countries and international organisations, the role of the next of kin in the criminal proceedings and the enforcement of sentences. The JIT countries aim to finalise as many of the details of these options as possible before the criminal investigation is finished. The House will be updated on these efforts as soon as possible.

As the government has explained to the House before, the criminal investigation and the possible strategies for prosecution and trial based on it could be adversely affected if information were to be made public prematurely. At the same time, the government has undertaken to inform the House about the prosecution options when the JIT’s criminal investigation so allows.


In conclusion

Soon it will be two years since the MH17 disaster. It is difficult, especially for the next of kin, to accept that those responsible have not yet been brought to justice.

Bringing the perpetrators before a court remains the government’s highest priority. Thoroughness has precedence over speed. It is therefore vital to give the JIT the time it needs to conduct a thorough investigation. The recent e-zine provides insight into the complexity and scope of the JIT’s task. The government asks for your continuing understanding as it will take some time to complete the investigation with the necessary care.