Five years ago, scenes of horror unfolded across the sunflower fields of eastern Ukraine.
Shot out of the sky, the smoldering fuselage of Malaysia Airlines Flight MH17 tumbled back to earth with 298 passengers aboard, unwitting victims of the single deadliest incident of a still-festering civil war on Europe’s periphery.
Bound for Kuala Lumpur, the Boeing 777-200ER’s flight path took it directly over conflict-ridden areas of Ukraine where Russian-backed separatists and government forces were engaged in fierce combat. The plane disappeared from radar nearly four hours after departing from Amsterdam and crashed in Donetsk, a separatist-led breakaway republic bordering Russia.
International investigators concluded in 2016 that the plane was hit by a Russian-made Buk-9M38 missile fired by separatist fighters. The missile system in question is said to have been brought across the border into eastern Ukraine to aid the Russia-backed rebels and quickly rolled back after the MH17 disaster to avoid detection.
A multinational Joint Investigation Team (JIT) believes the Soviet-era surface-to-air rocket was supplied by the Russian military’s 53rd Air Defense Missile Brigade, a charge the Kremlin has strongly and consistently denied.
Moscow points to its own findings that suggest Ukrainian forces targeted the Malaysian jetliner in a false flag attack, a narrative panned as “disinformation” in the West. Russia’s Foreign Ministry rejects any involvement in the downing of MH17 and has called accusations an attempt at “discrediting the Russian Federation in the eyes of the international community.”
It’s a view shared by the famously outspoken leader of the very country which claims ownership of the ill-fated aircraft.
“We are very unhappy, because from the very beginning it was a political issue on how to accuse Russia of the wrongdoing,” said Malaysian Prime Minister Mahathir Mohamad in bombshell remarks to reporters last month. “Even before they examine, they already said Russia. And now they said they have proof. It is very difficult for us to accept that.”
The 94-year-old premier’s remarks are sharply at odds with the stance taken by Western leaders and even Malaysia’s own JIT representative, prosecutor Mohamad Hanafiah bin Zakaria, who publicly endorsed the findings of the five-member investigation team which includes Australia, Belgium, the Netherlands, Malaysia and Ukraine but not Russia.
Mohamad Hanafiah, who leads Malaysia’s Attorney-General’s Chambers trial and appellate division, is tasked with conducting high-profile public interest cases and has said the JIT’s findings are “based on extensive investigations and also legal research.” But according to Mahathir, claims by international investigators are “only hearsay.”
“You need strong evidence to show it was fired by the Russians. It could be by the rebels. It could be the Ukrainian government because it too has the same missile,” said Mahathir in separate remarks at the Japanese Foreign Correspondent Club in Tokyo in late May.
“As far as we are concerned, we want proof of guilt. So far there is no proof,” he said.
Those claims set off a firestorm of controversy in the Netherlands, which is leading the investigation. Dutch Prime Minister Mark Rutte told reporters last month that the relatives of MH17 victims “must be very disappointed” over his Malaysian counterpart’s comments.
Nearly two-thirds of passengers on MH17 were citizens of the Netherlands. The Dutch premier added that Mahathir’s remarks had sowed “confusion.”
That appears to be true in Malaysia, too, where the relatives of the 31 Malaysian victims who perished on MH17 recently issued a statement calling on their country’s authorities to clarify their stance on the matter.
Remarks by Mahathir have “caused anguish” and are “inconsistent with the position taken by Mohamed Hanafiah,” read the statement, which called the JIT “the only body that has been working tirelessly for the last five years to uncover the truth behind the MH17 incident and to hold accountable those responsible for the tragedy.”
International media reports covering Mahathir’s remarks have focused on his country’s economic and defense ties with Russia, which recently offered to substantially increase its purchases of Malaysian palm oil in exchange for defense offset packages amid moves by Kuala Lumpur to replace its ageing fleet of Russian-made fighter planes.
Others believe Malaysia’s stance on the MH17 tragedy is influenced more by principle than profit.
“I don’t think this issue has been clearly explained to the people, this obvious difference of opinion.” said Chandra Muzaffar, a Malaysian political scientist and public intellectual. “As far as Mahathir is concerned, and I think this is evident from his position, there are very serious gaps and we want more investigations to be done.”
The premier had previously voiced strong objections to Malaysia’s initial exclusion from the JIT, said Muzaffar. The Southeast Asian nation was only invited to join the criminal probe as an equal member on November 28, 2014, over four months after the downing of MH17 and after repeated requests to be included.
According to International Civil Aviation Organization (ICAO) protocols, responsibility for an investigation belongs to the state within which an incident occurs. While the Ukrainian government initiated the probe, it requested that the Netherlands lead it.
Malaysia, as the state which owns the fallen aircraft, was entitled under those same protocols to appoint observers to the probe and be briefed on its findings.
According to then-deputy transport minister Abdul Aziz Kaprawi, Malaysian officials were “not invited to attend certain meetings” and denied opportunities to view the aircraft at the crash site.
Fauziah Mohd Taib, Malaysia’s then-ambassador to the Netherlands, wrote in a recent article that Malaysia was excluded from the JIT “until it protested.” She claimed the JIT’s initial decision to bar Malaysia’s participation was “because it could not be determined if Malaysia would be supportive of Russia and not the West.”
Others in Malaysia’s academia and civil society have publicly aired criticism of the Dutch-led multilateral probe’s inclusion of Ukraine and not Russia. That, critics say, raises the possibility that Kiev had undue influence over the supposedly impartial probe.
Some in Malaysia have also raised transparency concerns over the JIT’s methodology, while others back Russia’s claim that investigators have ignored various Moscow-provided findings which suggest Ukrainian complicity in MH17’s downing.
Malaysia’s Ministry of Foreign Affairs said last month that it remains committed to the JIT process, but that “conclusions must be based on evidence and not politically motivated.”
In separate remarks, Foreign Minister Saifuddin Abdullah said the matter would be considered as “still under investigation” unless “concrete evidence” of Russia’s involvement is presented.
“Mahathir has gone as far as possible with his statement, he has said his piece. I don’t think the government can take a very strong position either because it involves bilateral ties, other actors and so on,” Muzaffar told Asia Times.
“If Mahathir is firm on this issue and signals that he is not going to compromise with those people who blame the Russians, I suspect the Ministry of Foreign Affairs will choose to keep quiet. They know the prime minister has said this and they can’t go against that.”
Ukrainian officials, of course, see it differently.
“My sense is that the overwhelming majority of the Malaysian public, as well as those who are looking into the matter professionally, have a strong opinion about who actually is responsible for the attack,” said Olexander Nechytaylo, Ukraine’s Ambassador to Malaysia, in an interview with Asia Times.
“For many Malaysians, it became quite obvious in July 2015, when Russia vetoed the Malaysian-sponsored resolution in the United Nations Security Council (UNSC) calling for the establishment of an international tribunal for MH17. The JIT’s findings [have] only reinforced that view,” he said.
Russia, a veto-wielding permanent member of the UNSC, blocked the Malaysian-sponsored proposal at the time in favor of its own rival draft resolution, which would have granted the UN greater oversight over the MH17 investigation, but would not have mandated the creation of an international tribunal.
Kiev’s top diplomat in Malaysia said he regarded Mahathir as “one of the world’s most outstanding leaders and visionaries” and that “as far as MH17 matter is concerned, one can’t argue that we should treat it, first and foremost, as a criminal investigation and not be swayed by [the] political weight of the implicated culprit.
“What is particularly important is that Malaysian families of MH17 victims express their full support to the JIT and the findings which have since been presented,” said Nechytaylo.
“From day one Ukraine has been fully cooperating with the international investigation. All available information, including voice recordings, mobile communication and traffic control data, has been handed over to the investigating team,” he told Asia Times.
When asked about the lack of flight restrictions on the airspace in eastern Ukraine on the day the incident occurred, however, Nechytaylo said: “No comment.”
Despite ongoing military hostilities in the east of the country in areas outside government control, Ukraine did not close its airspace to commercial planes, a decision criticized by the Dutch Safety Board (DSB), an independent administrative body that investigated MH17, in its final report on the incident published in October 2015.
Pavlo Klimkin, Ukraine’s foreign minister, defended the country’s decision not to close its airspace at the time on grounds that MH17 was on an approved international flight path and authorities in Kiev were unaware that separatist forces, who were thought to possess only conventional weapons, had gained “highly sophisticated anti-air missile capabilities.”
But in the eyes of some victims’ next-of-kin, Ukraine’s decision not to close its airspace to passenger planes is tantamount to criminal negligence. Elmar Giemulla, a German aviaton lawyer, represents three German families bringing a legal challenge against Kiev in the European Court of Human Rights (ECHR).
“The Ukrainians recognized the lethal danger in their country and in their airspace,” said Giemulla in reference to Ukraine’s decision to partially close its airspace below 9,750 meters, a restriction put in place four days before MH17 was shot down.
“They closed the airspace to protect their own military aircrafts, but what they did not do was protect the civilian flights crossing their airspace.”
Authorities in Kiev knew separatist militias defending unrecognized, self-proclaimed republics in Donetsk and Luhansk possessed man-portable air defense systems and anti-aircraft guns, which were used to shoot down more than a dozen military aircraft flying at lower altitudes than passenger planes in the months leading up to the MH17 tragedy.
Nechytaylo told Asia Times that Ukraine accuses Russia of supplying such weapons to separatist forces in violation of the UN’s anti-terrorism convention, a charge Moscow has repeatedly denied. Ukraine filed a case against Russia in the International Court of Justice (ICJ) in 2017 over its alleged support for separatists. Hearings in the case are ongoing.
Kiev raised its restricted airspace ceiling on July 14, 2014, after one of its Antonov An-26 military aircraft was shot down at 6,500 meters, indicating an insurgent attack using a sophisticated projectile weapon. The airspace above the restricted zone remained open while, according to the DSB report, more than 61 airlines continued to operate over the conflict-hit region.
“The government of a country owns the airspace as part of their sovereign area. My position is that this was a clear violation, a clear threat and an endangering of human lives in Ukraine’s own area of responsibility,” Giemulla told Asia Times. He expects proceedings in the ECHR to begin later this year.
“The families seek a sentence from the court stating that each state has a responsibility for their airspace, and the Ukrainian government disregarded this and neglected it, and that the Ukrainian government is reminded of its responsibility for its own airspace,” he said. Such a ruling would set a precedent “for all states in the world” and prevent future occurrences that “threaten the system of aviation,” Giemulla believes.
Although the DSB, which operates independently of the Dutch government, recognized that Kiev should have closed the airspace over the conflict zone, Rutte’s administration in The Hauge “refuses to draw the same conclusion,” said Max van der Werff, an independent Dutch filmmaker who co-produced a newly released documentary on the MH17 tragedy.
Stef Blok, the Dutch minister of foreign affairs, has not ruled out that the Netherlands could, at some point, hold Ukraine accountable for failing to close its airspace, though last June he claimed there was “no concrete legal ground” to do so.
“At the moment, we have no legally convincing evidence proving that Ukraine, having left the airspace open, committed a crime that is subject to criminal prosecution,” Blok was quoted as saying.
“Another formal argument of the Dutch government is that they need Ukraine for the investigation to find the culprits, and that if Dutch authorities help these family members sue Kiev or if the Dutch government takes legal action by itself, it would be jeopardizing the investigation,” van der Werff told Asia Times.
“I think a major problem already arose when Ukraine was excluded as a potential suspect from the investigation. It became a biased investigation by not allowing Malaysia, the country which owns the plane, from the very beginning. This was a political decision,” he remarked.
Giemulla also voiced skepticism of the Dutch-led probe. “Speaking from a purely legal point of view, all of those who are suspected must have a word in it, a chance to defend themselves to bring counter-arguments which are taken seriously, whatever the result is. Russia hasn’t been part of this investigation,” he told Asia Times.
“This is a formal aspect that I would say is critical. Investigators must be independent,” he added.
“Maybe it was Mr. Putin, I do not know…The world believes the Russians have done it. This, of course, is a piano you can play on,” claimed the German aviation law expert. “My impression is there are suspicions that governments have played on it.”
The second installment of this two-part investigative series may be read here.