Photo Fred Westerbeke (ANP Robin van Lonkhuijzen)
This article is published in Opportuun November 2018 – magazine of the Dutch National Public Prosecution Service.
How much longer will it take?
It is probably the most frequently asked question in recent months to the 'face' of the Public Prosecution Service in the investigation into the downing of flight MH17.
”I said it on 24 May, when we gave the last update and again made a call for witnesses: in any case shorter than it has taken already. And the moment will come when we say: we are going to make a decision now whether to proceed with prosecution or not."
Fred Westerbeke had just become Chief Public Prosecutor of the National Public Prosecution Service when flight MH17 crashed in 2014. “I remember where I was when it happened, but did not realise at that moment that it would be an investigation for us. If you hear about a plane that crashes, you usually think of an accident first.”
The crash: accident or crime?
On 17 July 2014, flight MH17 travelled from Amsterdam to Kuala Lumpur in Malaysia. There were 298 people on board. Once in Ukrainian airspace the plane was hit by a missile, as demonstrated by later investigations. The plane came down in pieces. Plane parts, luggage and victims were found scattered over a large area.
In fact, there were quite a few signs that it was not an accident, according to Fred Westerbeke. And with that, the National Public Prosecutor’s Office (hereafter: LP) was the designated prosecutor's office to lead the investigation, with support from many staff members from other public prosecutor’s offices. And it's a special investigation. "If you look at the size, the deployment of the police and the Public Prosecution Service, there are other large investigations that can take so long. But if you look at the impact on a large number of surviving relatives, the complexity, the gigantic pressure from the media, the many forms of cooperation and alignment and the international dimension, then of course it is a very special investigation", according to Westerbeke.
Fred Westerbeke emphasises the complexity. “Not only with regard to the forensic and technical side, but especially regarding the different international aspects. To begin with, the many victims from many different countries. And of course the fact that the plane crashed in a war zone which, to this day, we are not allowed to enter. In other words, a criminal investigation without having access to the crime scene."
Already on the day after the crash, a investigation team was set up. In the beginning everything was focused on bringing the victims over to the Netherlands, identifying them, giving the relatives the opportunity to say goodbye, and assisting those relatives with all the formal actions that were needed for a funeral or cremation. “We received help from various regional prosecutors and police units, who are more experienced with assisting victims."
Assisting and informing the next of kin has been given a permanent and important place within the team. Still a lot of information is shared via the special website that was created by the Netherlands Victim Care (Slachtofferhulp Nederland). Because of our experience, this procedure has been used as an example for the 'government'. At this moment we are looking at how to set up the website when it comes to the prosecution of the perpetrators.
During that first phase, everything was focused on recovering and identifying the victims, but at the same time a criminal investigation had been started behind the scenes. Because if there was a crime, people had to be held accountable for that as well, Westerbeke said already in 2014. It soon became an investigation in the form of a so-called JIT: a Joint Investigation Team. The Netherlands was asked to take the lead. Besides the Netherlands, the JIT consists of Belgium, Australia, Malaysia and Ukraine.
“We certainly wanted to make that step forward. An investigation by a special committee of the United Nations would also be an option, but then you get stuck with confidentiality at some point because such committees are usually not allowed to share their findings with the Justice Department. The same could be the case in the Netherlands with the investigation of the Dutch Safety Board (OVV). You have to make agreements about that."
In October 2015, the OVV presented its conclusions. That was actually the first time the relatives were told in detail what had happened. Westerbeke was impressed by that presentation as well. "The reconstruction of the aircraft in the background was stifling and overwhelming, the attention was enormous. The aircraft is still located at Gilze Rijen air base. Obviously, attachment has been levied on it."
Information to the relatives
Prior to the public presentation, the relatives were the first to be informed about the investigation results by the OVV. They were also the first who were allowed to see the airplane in the closed-off environment of the hangar. “This had a huge impact on them. You cannot just confront them with such an image. Not even on television."
The investigation team makes every effort to inform the relatives before anyone else and to inform them as completely as possible, in other words to inform them in advance, Westerbeke wants to emphasise. “Especially in the first year, in retrospect, we have let too much time pass before we informed the relatives about what we were doing", he now says. "People need information, even if only about the procedure that you are working on. We were, of course, very careful not to publicly announce any information or conclusions too soon in an investigation like this. Normally we are not used to telling what we are doing in large-scale criminal investigations."
Both at the presentation in 2016 and during the press conference this year special attention was given to the relatives, in the form of a presentation in advance, or the setting up of a livestream (2018).
On 28 September 2016, Fred Westerbeke, together with the head of the National Criminal Investigation Service of the National Police, Wilbert Paulissen, was able to announce the first results of the criminal investigation into the crash. “We have found a lot of evidence that flight MH17 was shot from the air with a Buk missile, from a field near a Ukrainian city, and that the device was then quickly taken to the territory of the Russian Federation. But to establish who are responsible for this in a criminal sense takes longer”, we announced. "Many journalists, and some relatives, think we are not going fast enough and the reaction from the Russians was very negative. I said it then, I still say it: we want to present this case to a court. That is our goal. And until we make that decision, we have to be careful and sufficiently certain of our case," the Chief Public Prosecutor said.
In addition, the investigation team consists of people from the five JIT countries, with different criminal procedure rules, methods and forms of cooperation between the police and the Public Prosecution Service. "The Australian Prosecution Service is not involved in the investigation at all. The police formally work very differently there. I met the - new - Malaysian Attorney General, together with one of the case officers. We flew to Malaysia and back in two days to give him a comprehensive update on the investigation. If you want to work well together internationally in a team, you need to get to know each other, meet face to face. Then there can be mutual trust. And once you have met, you do not need to see each other every week." Of course there is also contact with the various Embassies and Ministries of Justice and Security and Foreign Affairs.
World news again
The commotion caused by a new press conference, such as on 24 May 2018, was a surprise. "It was world news again. This is what we wanted, because we made another call for witnesses. That was actually the main goal. This call was supported by new investigation findings. We can now safely say that the missile was fired by a Buk-Telar that came from a brigade of the Russian army."
Certain missile parts were presented at the press conference to support that message. On some of those you can see letters and numbers that people have put on them. “Those may be recognised by witnesses, and then we may be a step closer to the people who are responsible for the missile attack."
Here Westerbeke wants to say something about the Dutch prosecution team that conducts the investigation, and sometimes had to find new ways to get results. For instance the search for witnesses - and thereby obtaining witness evidence - is particularly complicated in this investigation. The direct approach of witnesses, for example by means of interviews with local residents or people passing by, was not possible in this case because of the war situation. Finding witnesses who are willing to make a statement is therefore a hell of a job. In addition, each witness calls for an individual consideration of the importance and reliability of the statement versus the safety of that witness. That means that there is plenty of work for the prosecutors who work on special witness programmes.
"The impact that the investigation has had and still has on the prosecutors, senior legal officers and support staff ... these colleagues are under tremendous pressure and deliver a great performance. And they continue to stay motivated, just like the police team." The prosecutor’s office management also tried to ensure that they could do their work "in relative peace".. “But the constant (media) pressure also does something with them. I have a lot of respect for that."
Developments in 2018
The meeting on the 24th of May was not the only one where the crash of MH17 drew full publicity. A day later, the Dutch government announced (together with Australia) that it will hold the Russian State liable for the downing of the airplane and the enormous suffering and damage that this has caused. This represents a special procedure under international law that is separate from the criminal investigation and any possible prosecution.
Suddenly in September there was this press conference of the Russian Ministry of Defence in which they announced that the missile found on the crash site, which was shown in the Netherlands in May, had been delivered to Ukraine. The JIT announced that it would study the information, but also that they maintained their previous conclusions.
At the United Nations General Assembly in late September, Prime Minister Rutte once again called attention to the investigation and called on Russia for mutual consultation. MH17 is "an open wound", according to the prime minister who asked all countries to cooperate in getting justice for the victims and their loved ones.
In October it was announced that a Russian intelligence service may have attempted to invade systems of agencies involved in the MH17 investigation in Malaysia.
And then of course there was the fourth commemoration of the crash in July, at the special memorial site in Vijfhuizen where a monument and a line of trees have been created. Fred Westerbeke was there together with one of the four case officers, just like he had also visited previous meetings with the relatives. “Many relatives recognised me. I know many stories that they have told me themselves. I am touched by that, of course. Especially the reading of all the names of the victims by the next of kin is very emotional." In his office at home he has a postcard from a victim’s mother. "She is confident that we do everything we can to resolve the matter, no matter how long it takes."
This brings Westerbeke back to the initial question: how much longer will this investigation take? “We are in the last phase and we work towards possible prosecution.” In the meantime, the location of a possible trial is known: this will be the Judicial Complex Schiphol (JCS), as a subsidiary of the Hague District Court.
"But who will be prosecuted and for which crime, I cannot say yet", according to Westerbeke. And how long it will take before the decision is made to do so is not yet known. “But something can happen tomorrow and matters could be accelerated." According to his firm conviction there comes a time when the file is sufficiently solid “and then we will be ready."