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Yves here. If you’ve been following John Heelmer’s series on the MH17 downing, he has focused relentlessly on the evidence and sourcing. Today, he describes obfuscation by the head of the Dutch Safety Board.
By John Helmer, the longest continuously serving foreign correspondent in Russia, and the only western journalist to direct his own bureau independent of single national or commercial ties. Helmer has also been a professor of political science, and an advisor to government heads in Greece, the United States, and Asia. He is the first and only member of a US presidential administration (Jimmy Carter) to establish himself in Russia. Originally published at Dances with Bears
Tjibbe Joustra, chairman of the Dutch Safety Board, wants it to be very clear that Russia is criminally responsible for the destruction of Malaysian Airlines Flight MH17 on July 17, 2014; that a Russian-supplied ground-to-air missile, fired on Russian orders from territory under Russian control, exploded lethally to break up the MH17 aircraft in the air, killing everyone on board; and that Russian objections to these conclusions are no more than cover-up and dissimulation for the guilty.
Joustra also wants to make sure that no direct evidence for what he says can be tested, not in the report which his agency issued last week; nor in the three Dutch government organs which prepared and analysed the evidence of the victims’ bodies, the aircraft remains, and the missile parts on contract to the Dutch Safety Board (DSB) – the Dutch National Aerospace Laboratory (NLR), the Netherlands Organization for Applied Scientific Research (TNO), and the Netherlands Forensic Institute (NFI). So Joustra began broadcasting his version of what he says happened before the release of the DSB report. He then continued in an anteroom of the Gilze-Rijen airbase, where the DSB report was presented to the press; in a Dutch television studio; and on the pages of the Dutch newspapers.
But when he and his spokesman were asked today for the evidence for what Joustra has been broadcasting, they insisted that if the evidence isn’t to be found in the DSB report, Joustra’s evidence cannot be released. So, if the evidence for Joustra’s claims cannot be found in the NLR, TMO and NFI reports either, what exactly is Joustra doing – is he telling the truth? Is he broadcasting propaganda? Is he lying? Is he covering up for a crime?
In the absence of the evidence required to substantiate what the DSB chairman is broadcasting, is the likelihood that Joustra is concealing who perpetrated the crime equal to the probability that he is telling the truth? And if there is such a chance that Joustra is concealing or covering up, is this evidence that Joustra may be committing a crime himself? In English law, that may be the crime of perverting the course of justice. In US law, it might be the crime of obstruction of justice. In German law, it might be the crime of Vortäuschung einer Straftat. By the standard of World War II, Joustra’s crime might be propagandizing for the losing side, that’s to say the enemy of the winning side.
When William Joyce, an Anglo-American broadcaster on German radio during the war and known as Lord Haw-Haw, was prosecuted in London in 1945, he was convicted of treason and hanged. The treason indictment said he “did aid and assist the enemies of the King by broadcasting to the King’s subjects propaganda on behalf of the King’s enemies.” The legality of this indictment and the conviction was upheld by the Court of Appeal and the House of Lords.
By the customary civilized standard, Joustra must be considered innocent of any crime of broadcasting unless he’s proven guilty. And the proof of such a crime would require evidence admissible in court, acceptable to a judge or jury beyond reasonable doubt. Of course, such a standard of Joustra’s innocence will be the standard by which his public statements must also be judged. But if Joustra lacks the evidence for what he is claiming in his broadcasts then perhaps the evidence is also lacking for his innocence of crime.
Joustra, 64, has served most of his career as a Dutch government apparatchik, first at the Ministry of Agriculture; then at the agency for unemployment benefits; then coordinator of anti-terrorism operations; and since February 2011 at the DSB. Last Tuesday, after presenting the DSB report to the press, but not allowing questions, Joustra spoke briefly to Dutch reporters. He told them what had not been reported in several hundred pages of the DSB’s report and appendixes – that he has pinpointed the launch area for the Buk missile, and that it “was controlled by separatists at the time. The area that we designate as launch location is located within this area.” “So they [separatists] are responsible?” the reporter asked. “We can’t answer this question. It’s not for the DSB to do this.” The reporter asked: “One plus one equals two, doesn’t it?” “Yes, that’s true,” Joustra said. “Sometimes another person needs to make this calculation.”
A little later Joustra gave an interview to the Dutch newspaper Volkskrant, which published the text of his remarks on October 16. Joustra told the newspaper the evidence of the Buk missile was “irrefutable”. He was “certain”, he added, that the firing position was from what the newspaper described as “pro-Russian rebel held territory.” Joustra told the reporters to look closely at the DSB document for the evidence. “I thought it was clear.” He claimed his saying-so was “factual, not a slip”.
Joustra went further, dismissing criticism of the DSB’s evidence and conclusions. “Every time the Russians come up with different stories and different speakers,” Joustra told Volkskrant. “I’ve got the impression that they are trying to take the report back and it does not matter what argument.” Russia is trying to protect the guilty, he added. “How did that Buk battery get there – where did it come from exactly? Who ordered it to do so? I expect that it is possible to make that clear.” To Joustra it was already clear. Russia is protecting the guilty. “Several countries are not eager to deliver [suspected] people at all,” he told Volkskrant, which added that he meant Russia, and believed that Russian suspects have already been identified in the Dutch investigation.
Joustra said today through spokesman, Sara Vernooij, that he had been accurately quoted in Volkskrant. When he spoke of meetings with Russians, Vernooij says Joustra was referring to meetings held this year on February 17-20; May 6-7; and August 11-12. He refuses to identify the Russians by name “due to privacy reasons.”
For evidence of his “certainty” and for the “ irrefutability” of the evidence of missile and warhead, Joustra replied that he is relying on “appendix X the NLR report, appendix Y TNO report, appendix Z TNO report. Data that are not mentioned in the reports or appedicces [sic] will not be released.”
These reports, Joustra and Vernooij were then asked, “do not refer to direct evidence. They refer to computer simulations based on parameters of missile and warhead which originated from the Dutch Ministry of Defence; are classified; and are not disclosed in the TNO documents. The direct evidence available is that the missile model and the warhead type cannot be fired together. A computer simulation is not evidence that they were. Is there any other evidence on which Mr Joustra relies for his certainty and irrefutability?”
“I have nothing to add to the final report”, Joustra and Vernooij have replied.
For more details on what the DSB, the NLR and TMO reports call evidence, and the conclusions they draw, read this and this. For the DSB’s summary of the Russian evidence and Russian objections to what the Dutch call evidence, see Appendix V.
Additional physical evidence of Joustra’s claims about the missile and warhead are residues of the explosive from the warhead, and paint from the missile traces or parts which have been found, according to the DSB, in the aircraft wreckage and on the ground. The DSB says it relied for analysis of this evidence on the Netherlands Forensic Institute (NFI). The NFI is an agency of the Dutch Ministry of Justice and Security. It has publicly acknowledged participating in the MH17 case by analyzing DNA samples from victims during the identification phase of the examination of bodies in August of 2014. Here is the NFI’s release of August 28, 2014.
Not since then has the NFI admitted to doing anything more on the MH17 case. But it did do chemical analysis of explosive residues and paint samples, NFI spokesman Suzan Demirhan said today. “That’s correct, we did.” Asked to say when the analysis was commenced, and when the NFI report was delivered to DSB, Demirhan said: “We are not allowed to discuss this. The Public Prosecutor [Service] ordered [the study]. I cannot confirm [the details]. We are not allowed to bring anything to the public. You have to ask your question to the Ministry of Justice and Security.”
According to the DSB (page 35), analyses of explosive and paint residues “were performed by the Netherlands Forensic Institute (NFI) at the request of the Public Prosecution Service and shared with the Dutch Safety Board”. The Ukrainian Government in Kiev had refused to cooperate in this part of the investigation, the DSB has also reported (same page). “The Dutch Safety Board attempted to obtain reference material of the suspected weapon in order to further substantiate the origin of the fragments. The objective was to establish that the chemical composition of the fragments was consistent with that of the suspected weapon. This was not achieved, so this verification could not take place.”
Jean Fransman, spokesman for the Justice Ministry, was asked to address these DSB disclosures about the source of the evidence in the NFI report, and say where, if not the Ukraine or Russia, the evidence came from. He replied he cannot answer. “This is all part of the independent investigation of the DSB. We as a ministry have no say or involvement in this investigation. The NFI has done its work for the DSB investigation and for them only.” When it was pointed out that the NFI claims it was up to Fransman to respond as the ministry had “coordinated” the evidence-gathering, analysis and reporting, Fransman insisted he can say nothing at all. “And thank you for your friendly and non-insinuating questions.”