No Appeal Filed in The MH17 Case – Ursula von der Leyen Proposes The Start of a New Show Trial

Yves here. John Helmer has been dogging the MH17 case for many year. Even if you are new to the story, it’s not hard to understand the legal incoherence of this ruling.

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

There will be no Russian appeal to the high Dutch courts in the case of Malaysia Airlines Flight MH17.

A district court judge, Hendrik Steenhuis, ruled on November 17 to acquit one Russian and convict two other Russians and a Ukrainian, all fighting for the Donbass separatists against the Kiev regime. The four men were charged with murder in the destruction of the aircraft and deaths of its 298 passengers and crew on July 14, 2014.

The Ukrainian and Dutch case has created a new legal doctrine of “functional co-perpetration” in combat – guilt by association in civil war and wars of national liberation when one side puts the opposing side on trial, applying evidence created by secret intelligence services and heard by state agents behind closed doors.  In English legal history this is known as a Star Chamber proceeding; in France, Lettre de cachet; the Yamashita doctrine in the US Supreme Court; and in Australia, a kangaroo court.

Steenhuis ruled that “Moscow”, the “Russian Federation”, and “high-ranking persons in the Russian Federation” had directed the accused men to commit war crimes. But he also judged there had been no war in eastern Ukraine; no right of self-defence on the Donetsk battlefield; and that because of their “lack of combat immunity, the suspects, like any other civilian, were not entitled to shoot at any aircraft, including a military aircraft, and thereby kill the military occupants.”

The Rechtspraak in The Hague reported on Thursday that no filing in the case 0909/748007-19 had been received.

This means that no Russian appeal will be presented to challenge the legality in Dutch and international law of the findings and convictions of Colonel Igor Girkin, Colonel Sergei Dubinsky, and Leonid Kharchenko.  On December 1, Dutch state prosecutors had announced they would be filing no appeal in the case.

The judgement in the case has been analysed here,  together with links to the court’s judgements as read out  and later written down.

They concluded with the order: “To the extent permitted by law, an appeal may be lodged against this decision within fourteen days.” Counting court working days from the date the judgement was published on November 17, this deadline expired at the end of Wednesday this week, December 7.

Anatoly Kovler, a former European Court judge and founder of the Moscow law firm Kovler & Partners,  supervised the legal preparations for the defence of Lieutenant-Colonel Oleg Pulatov, and instructed  the two Dutch defence lawyers in court, Boudewjin van Eijck and Sabine ten Doesschate.  Pulatov was acquitted in last month’s ruling.

Kovler had refused to respond to questions or make comments on the case until November 17, when Vzglyad reported him as saying:  “Russia was not included in the international investigation team, although Australia and Malaysia were included only because among those killed in the crash of flight MH17 were citizens of these countries. But excuse me, where is Australia and where is the crime scene area?…Nevertheless, the court showed some objectivity and noted the lack of evidence that Russia, as a state, was involved in the commission of this catastrophe…[Kovler also points out that] the investigation included only convenient witness statements in the evidence base, ignoring information about the missile launch from the village of Amvrosiivka – the location of the Armed Forces of Ukraine. The reason for the refusal was that this zone is too far from the point where the plane disappeared from radar. This practice is called selective application of evidence. The trial must use all the evidence that the lawyers demanded to provide. Although Dutch justice is characterized by a high degree of meticulousness and scrupulousness, but in this case, apparently exceptions were made…Unfortunately, there was no such objectivity in the MH17 case.”

Kovler, the Russian Ministry of Internal Affairs,  and the Russian Ministry of Justice, which the Kovler firm has represented,  declined to answer questions on whether the Russian side was considering an appeal in the case. The Russian Foreign Ministry said it was studying the legal documents but has said nothing since.

The Dutch Government is continuing a claim it filed in July 2020 against the Russian Government in the European Court of Human Rights,  where several cases have been launched but suspended for several years.

An attempt by the European Commission to create a new international tribunal to start proceedings against Russia has also commenced. Christopher Black, a Canadian barrister and specialist in war crime tribunal law, explains.


By Christopher Black

On Wednesday November 30, Ursula Von der Leyen, the German president of the European Commission, stated that the European Union will set up a specialised tribunal, backed by the United Nations, to investigate and prosecute possible war crimes committed by Russia in Ukraine. The French foreign ministry and Kiev regime echoed her remarks.

“We are ready to start working with the international community to get the broadest international support possible for this specialised court,” von der Leyen said.

That this proposal is the opening scene in a staged drama for the entertainment and manipulation of the western public is apparent from the fact that there can be no “backing” of such a tribunal by the United Nations since only the Security Council has any possible jurisdiction to approve such a tribunal and clearly, both Russia, and China, which can expect the same treatment for itself from the West as Russia, will veto any motion in the Security Council to establish such a body.

If Von der Leyen is intending to rely on a vote in support by the UN General Assembly, then one wonders what her knowledge of the UN Charter is since the General Assembly votes have no legal force. But we can suppose that they may float such a proposal hoping the US and EU can coerce, bully and bribe a sufficient number of servile nations to give their stamp of approval so that they can claim they have the support of the “international community,” that is themselves and the nations under their sway.

The UN Charter does not provide any jurisdiction for the creation of quasi-judicial bodies under Chapter VII, which states that the only means permitted to be used against nations in violation of international law are military and economic, not judicial.  The fact that the ad hoc tribunals for Yugoslavia and Rwanda, the ICTY [International Criminal Tribunal Yugoslavia] and ICTR [International Criminal Tribunal Rwanda], were created is a sad testimony of how the UN system can be abused. The Security Council had no powers under the Charter to create them and acted outside its powers when it did so, or as lawyers like to say, it acted ultra vires of its powers.  That Russia did not veto the creation of these tribunals in the early 90’s can be explained by the fact that Russia had then a government that was weak and under the direct influence of the Americans and other NATO countries. It would never have allowed it if Presidents Putin or Medvedev had been in charge at the time.

The Chinese, however, realised the problem, expressing a willingness to vote for it only with the caveat that the adoption of the resolution should not prejudice China’s position on future resolutions on the subject.  On 23 May 1993, when the UNSC was engaged in debate on Draft Resolution 827, which established the ICTY and adopted its statute, the Chinese representative explained his affirmative vote after the resolution was adopted by stating that China disputed the approach for the establishment of the tribunal by way of a UNSC resolution, rather than a treaty, with the latter route being the one China had preferred all along. He explained that, resembling a treaty, the statute should have been “negotiated and concluded by sovereign States and ratified by their national legislative organs. “Otherwise, its implementation would bring problems, unspecified, in both theory and practice.”

Secondly, the Chinese representative expressed the hope that this resolution would be a one-off exercise in setting up an ad hoc institution, and should not constitute a precedent. With that consideration in mind, Resolution 955, which approved the establishment of the second tribunal in 1994, for Rwanda, was obviously not agreeable to China as a repetition of the resolution-based approach, and China abstained in the voting on the resolution.

When the ICTY prosecutors issued their report on the US missile and bomb attack on the Chinese Embassy in Belgrade on  May 7, 1999, they concluded there was no legal or criminal culpability or the two US B-2 aircrews who had launched the lethal attacks or the chain of their command at the Pentagon and White House: “the aircrew involved in the attack should not be assigned any responsibility for the fact they were given the wrong target and that it is inappropriate to attempt to assign criminal responsibility for the incident to senior leaders because they were provided with wrong information by officials of another agency [CIA]. Based on the information available to it, the committee is of the opinion that the OTP should not undertake an investigation concerning the bombing of the Chinese Embassy”  -- read more.  China’s abstention in the UN Security Council vote on Resolution 955 (1994) creating the Rwanda tribunal has been reported here.  

The fact that these tribunals were illegally created under the UN Charter and so in law do not exist was raised time and again by a number of defence lawyers representing accused at those tribunals. Of course, our arguments were dismissed out of hand and those of us who persisted were threatened with consequences.  Nevertheless, as a matter of law the judgements and decisions of the ‘judges’ of those tribunals are all invalid and have no force or effect.

And just as the Germans first proposed and pushed for the creation of the ICTY it is again the Germans who are pushing for the creation of another kangaroo court whose sole purposes will be to put out propaganda against Russia, to cover up their own war crimes and crimes against humanity committed in Ukraine since 2014, and to attempt to justify their aggression against Russia and their support of fascists in Ukraine.

The idea for special war crimes tribunals originated with the United States Department of the Army in the early 1990’s, which alone should tell you something about its true purpose. The rhetoric used to justify such a body to the general public was of course heavily seasoned with concerns for “human rights” the “dignity of the individual”, “genocide” and “democracy,” just as it is now.

In order to accelerate the break-up of Yugoslavia into quasi-independent colonies, principally of Germany and the United States, it was necessary to discredit their leaderships. An effective propaganda weapon in such an exercise is of course a tribunal with an international character which the public will accept as a neutral instrument of justice but which is controlled for political ends. NATO has the same objective with regards to Russia now.

Yugoslavia was the first experiment in using a quasi-judicial international body to attack the principle of sovereignty. And as the Americans have learned so well, the best way to get your domestic population behind you as you proceed to break another country, economically and militarily is to get them to hate those in power in that country. The Serb leadership was targeted, and transformed into caricatures of evil. There were comparisons to Adolf Hitler, a comparison used with surprising frequency by the United States against the long list of nations it has attacked in the last 50 years, though sometimes they are just labelled as common criminals, like Manuel Noriega, or mad like Qaddafi, if the leader or the country is too small to make the Hitler comparison stick. I think Saddam Hussein was the first to be compared to Hitler, and declared a common criminal and a madman all at the same time. We are hearing the same vile rhetoric about President Putin from western leaders and the mass media, which indicates what their ultimate objectives are.

Fort Worth Telegram, Texas – March 31, 1999

Ukrainian cartoon published by Washington Post, March 19, 2022

Again, the European Union, Britain, Canada and the USA are targeting another world leader, President Putin, and his government for the same reasons as they did President Milosevic, political ones.  In this regard it is important to remember that in a statement to the Secretary-General of the United Nation, Mr. Boutros-boutros Ghali, on January 21, 1994, Antonio Cassese, the first President of the ICTY, made the Tribunal’s political character quite clear when he said in reference to the role of the Tribunal, “The political and diplomatic response (to the Balkans conflict) takes into account the exigencies and the tempo of the international community. The military response will come at the appropriate time.” In other words, the Tribunal is considered a political response. He went on to state, “Our tribunal will not be simply “window dressing” but a decisive step in the construction of a new world order.”

Left: Dutch guard holds Yugoslav President Slobodan Milosevic at his ICTY trial in The Hague, February 2002; centre, the Italian chief judge of the ICTY, Antonio Cassese; right, District Court judge Hendrik Steenhuis.

There you have it. Von der Leyen on behalf of the EU and NATO is proposing the creation of another politically motivated kangaroo court, an illegal tribunal, without any jurisdiction, as part of the continuing US and NATO effort of establishing global hegemony, the construction of their new fascist world order, a tribunal to be used to fabricate indictments, conduct show trials, to propagandise against Russia, its leadership and people, while covering up and excusing their own crimes and justifying their aggression against Russia and the world.  This use of what is nothing less than criminality to further more criminality is proof that the EU and NATO have openly adopted the techniques and ideology of fascism.

For once President Putin is “indicted” by this fake tribunal, there will be no possibility that any Western leader or government will be able to negotiate a peaceful resolution of the  military conflict with him or any other Russian leader “indicted” with him nor negotiate over Russia’s security concerns. As with President Milosevic, President Putin will be labelled a criminal, and all possibility of negotiation, whether with the USA or EU, on resolution of the military conflict will be permanently blocked.  Their intention is to make negotiations a complete impossibility. This means that war will be the only avenue for the resolution of the strategic political issues at stake. This is, in fact, the position of the Kiev regime with their mantra, “No negotiations with a war criminal.” And now it is the position of the EU and NATO. It is clear what their intentions are.

[*] Christopher Black  is an international criminal lawyer based in Toronto. He is known for a number of high-profile war crimes cases and published his first novel Beneath the Clouds in 2016; it can be read here.   He writes essays on international law, politics and world events, especially for the online magazine New Eastern Outlook.  His essays and poetry can be read on his blog.  

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  1. caucus99percenter

    Yesterday evening I dropped in at a neighborhood Christmas party organized by the local AfD chapter — having regretfully come to the conclusion that, in Germany, the AfD is at present the only halfway-viable parliamentary channel for registering a “No!” to the war and to the current government’s course of limitless escalation against Russia and other targets dictated by U.S. neocons.

      1. caucus99percenter

        Sahra Wagenknecht’s own party, Die Linke (“The Left”), keeps denouncing her and trying to kick her and her supporters out.

        She is popular with a lot of people on both the “far” (= insider-cartel-disapproved) Left and “far” (ditto) Right. I suppose that makes her particularly dangerous to the establishment.

        Supreme irony here: the “right-wing populist” Compact magazine thinks she would make an excellent chancellor…

        … while the “Green / alternative left” daily newspaper has taken to referring to her as “Lady Voldemort”:!t5013304/

        The conventional left-right labelling in Germany is a total crock at this point.

        1. Felix

          Sarah Wagenknecht has been sold as a Communist, Putin Versteher by the media. She is not politically acceptable. Her husband, La Fontaine was a long term SPD leader and then founder of the Linke when the SPD turned right. If the AFD could get rid of its far right neo Nazi reputation and its neoliberal economic orientation (Alice Wiedel is a Goldman Sachs alumna) a fusion of forces might make sense but that is not going to happen. And recent events regarding this so called Puttsch suggest that the future of the AFD is in doubt.

        2. digi_owl

          The left-right only barely made sense up to the 30s, after that it became far too rough a yardstick.

          For all the joking about it etc, i find the concept of the political compass intriguing. This by detaching the cultural/social from the economic.

          As such, i suspect WagenKnecht leans more “right/conservative” culturally while still being very much left economically (not to be confused with fascism that pretended to be left economically while putting anything even hinting of labor organizing in practice).

          This is a political segment that has scant few outspoken members since the USSR imploded.

    1. Col 'Sandy' Volestrangler (ret)

      They’re working on smashing what’s left of the opposition with this totally obvious fake ‘Neo Nazi Coup Plot’- it’s exactly the ‘Jan 6 Plot’ but staged in Germany. I mean- the number of staunch monarchitsts in Germany has got to be so minuscule they had to invent some.

    2. Futility

      The AfD is an astroturf organization of neoliberalism with a large fraction of far- right and nazi-adjacent members. That they sometimes utter something of value is purely incidental.
      Sarah Wahenknecht seems much more sincere but the “left” is trying hard to relegate her to insignificance, at least electorally.

  2. gene

    Is it really fair to call this a “show trial?” Because it’s not going to be much of a show.
    It’s reaching levels of media spectacle ourbouros question begging that shouldn’t be possible.
    Either this kind of deliberation isn’t broadcast and is called some sort of “bureaucratic secret committee.”
    Or the deliberation is allowed to be broadcast, and there’s a high level of transparency, and then the press can scandalize it how they want, then it becomes a “virtue signalling” “show trial.”

    What’s the actual knife edge platonic ideal definition that makes a trial “free and fair,” because as long as journalists have an axe to grind, they’ll always oscillate to whichever characterization is more of a spectacle, all while ruing the spectacle.
    Even the concept that this is somehow beyond the charter of the EU, and is extra-judicial, and is some sort of conspiracy is pretty weak for anyone who understands the conundrum of “hard cases make bad law.” There will always be legal exceptions, and more transparency is actually a better approach than less.

    And obviously, this is nothing like the Moscow Trials, and won’t be a mandatory broadcast, and is not a party purge.

  3. Stephen

    Sad to hear that they are the only option.

    Here in the UK I do not think we have an anti war option at all though.

    Nigel Farage of all people seems the only politico here who is not fully behind the narrative, although I do not follow him in detail. And that comes with a whole host of other baggage too.

    I fear that we the countries of Europe are collectively making the same type of errors that we all made in 1914 and 1939.

  4. Not Again

    Isn’t this just a “legal” way to steal all the Russian assets that the EU has frozen? I believe that the USA set the precedent by stealing Libya’s state funds to compensate victims of flight 103 that exploded over Lockerbie, Scotland.

    The EU has frozen $17 billion of Russian assets. They don’t intend to give them back and this is their “legal” excuse. Always follow the money.

  5. The Rev Kev

    And this is what the Rules-based order looks like – with a heavy dose of lawfare. First really noticed this with the 2005 Beirut bombing of Rafic Hariri. A UN Special Tribunal was set up but you had the feeling that they were making up the rules as they went along and different people were accused of it depending on prevailing political whims. But von der Leyen is playing with fire if she imagines that she can get together a Special tribunal that will only look at Russian “crimes” that will probably have hearings being held in the Hague for the next twenty years. The European Parliament is demanding that Russia be declared a terrorist organization and this would be a parallel development. Of course this would result in the cutting of all diplomatic relations between the EU and the Russian federation but likely Ursula would see that as a win. Perhaps she wants a preliminary judgement that would give her some sort of legal cover to spend the money that the EU stole from Russia in the Ukraine – with the appropriate kickbacks of course.

    But there are so many snakes mentioned in this article that I do not know where to start but here is one. It mentions the Chinese Embassy in Belgrade that was bombed by the US in 1999. During that war, 1,000 NATO aircraft flew over 38,000 combat missions over that country. And in that war, only one, repeat, one mission was selected by the CIA to be carried out. And that was the one that “accidentally” hit the Chinese Embassy that killed several of their people. And the Chinese had to take it as they had no real military. But as a direct result, China has built up their military force so that there will never be again such an “accident”. That is why it is so huge and modern right now to an extent. And that is precisely why you don’t do stupid stuff like that. But the CIA at the time went all macho and so the die was set.

    1. Left Angle

      Hi Rev Kev,

      I’ve read a bit about the Chinese embassy bombing thing but this is the first time I’ve seen the CIA involvement referenced, do you (or anyone else) have any sourcing on the specifically CIA-involvement in the ‘accidental’ targeting of the embassy? (I’m fully convinced and it seems obvious they did it deliberately, since they would have been aware of the locations of all of these type of institutions)

  6. bwilli123

    From Peter Lee’s blog in 2015

    British, Canadian and French air targeteers rounded on an American colonel on the morning of May 8. Angrily they denounced the “cock-up”. The US colonel was relaxed. “Bullshit,” he replied to the complaints. “That was great targeting … we put three JDAMs down into the (military] attache’s office and took out the exact room we wanted …

    This story died the death in the U.S. media (I only saw references to it in the English papers at the time) and, to its everlasting credit, FAIR (Fairness and Accuracy In Reporting) took the matter up.

    In an October 22, 1999 article, FAIR wrote:

    So far, the reaction in the mainstream U.S. media has been a deafening silence. To date, none of America’s three major network evening news programs has mentioned the Observer’s findings. Neither has the New York Times or USA Today, even though the story was covered by AP, Reuters and other major wires. The Washington Post relegated the story to a 90-word news brief in its “World Briefing” (10/18/99), under the headline “NATO Denies Story on Embassy Bombing.”By contrast, the story appeared in England not only in the Observer and its sister paper, the Guardian (10/17/99), but also in their leading rival, the Times of London, which ran a follow-up article on the official reaction the next day (10/18/99). The Globe and Mail, Canada’s most prestigious paper, ran the full Reuters account prominently in its international section (10/18/99). So did the Times of India, the Sydney Morning Herald and the Irish Times (all 10/18/99). The prominent Danish daily Politiken, which collaborated with the Observer on the investigation, was on strike, but ran the story on its website.

    FAIR and its supporters rattled a few media cages, and got dismissive replies from the New York Times and USA Today.

    The Times’ Andrew Rosenthal characterized the Observer article as “not terribly well sourced”.

    In its rebuttal, FAIR stated:

    FAIR contacted journalists at both the Observer and Politiken. According to the Observer’s U.S. correspondent, Ed Vulliamy, its foreign editor, Peter Beaumont, and Politiken reporter Jens Holsoe, their sources included the following:

    –A European NATO military officer serving in an operational capacity at the four-star level – a source at the highest possible level within NATO–confirmed three things: (1) That NATO targeted the Chinese embassy deliberately; (2) That the embassy was emitting Yugoslav military radio signals; and (3) That the target was not approved through the normal NATO channels but through a second, “American-only” track.

    –A European NATO staff officer at the two-star level in the Defense Intelligence office confirmed the same story.–

    Two U.S. sources: A very high-ranking former senior American intelligence official connected to the Balkans – “about as high as you can get,” according to one reporter — confirmed that the embassy was deliberately targeted. A mid-ranking current U.S. military official, also connected to the Balkans, confirmed elements of the story and pointedly refused to deny that the embassy had been bombed deliberately.

    –A NATO flight controller based in Naples and a NATO intelligence officer monitoring Yugoslav radio broadcasts from Macedonia each confirmed that NATO’s signals intelligence located Yugoslav military radio signals coming from the Chinese embassy in Belgrade. When they informed their superiors, they were told that the matter would be handled further up in the chain of command. Two weeks later, the embassy was bombed.

    –An official at the U.S. National Imagery and Mapping Agency told the reporters that NATO’s official explanation, which involves a faulty map of Belgrade, is a “damned lie.”

    Finally, the Times, still coasting on its Pentagon Papers reputation in those halcyon, pre-Judy Miller days, replied to one correspondent:

    “There is nothing in the distinguished history of the Times — where reporters have risked their lives, been threatened with jail and indeed gone to jail to protect the public’s right to know things the government does not want to get out — to suggest that we would withhold such a story.”

    When weighing the credibility of the Observer report, it is also worth recalling that, by CIA Director Tenet’s own admission, of the 900 targets struck during the Kosovo war, the CIA was responsible for only one targeting package—the bombing that was ostensibly meant to take out an insignificant Yugoslavian paper-shuffling operation and ended up destroying the Chinese embassy’s intelligence directorate instead.

  7. Savita

    Forget the show trial. I’m entirely dubious of ALL the alleged facts regarding the very incident itself. To me, the actual allegations of the plane coming down and all the data around it, is on par with the Rudyard Kipling inspired narrative surrounding the Skripals of Salisbury. Do you recall all the weird stuff being broadcast at the time of that alleged event? Every passenger took a selfie of themselves before they died, apparently, and these photos were recovered (?) and published. There was one report that the passengers bodies were contained in the craft, and everyone covered in some sort of slime. And their blood had been siphoned from their bodies. It is so strange to even write this but I recall reading it. Viewing the actual footage of the plane coming down, it is plain to observe the craft is a handmade model of the sort kids make. With damage that doesn’t match the type of weapon, and smoke spirals that don’t concur with genuine, damaged aeroplane behaviour. But the narrative is designed to get us focusing on this individual or that uniform, this good guy or that bad guy. From the deep state perspective,even us questioning the legality of the show trial is desirable because it is a smoke and mirror construction worlds away from whatever really occurred that day. Stagecraft, folks. Look at the pretty assistant, not at the hat.

    1. Candide

      Clowns are not in short supply in the infotainment world. After the US Navy shot down an Iranian passenger plane, the denials and distractions were quickly deployed. NPR’s Scott Simon, during the following Weekend Edition, offered a story that the plane that was shot down had been intentionally aimed at US naval vessels after being loaded with dead bodies, to create a propaganda victory for Iran.
      Checking for a date, I found this 1988 CNN item: “Iran Air Flight 655, an Airbus A300 with 290 people on board, was blown from the skies by a missile fired from the guided-missile cruiser USS Vincennes as it flew over the Persian Gulf from Iran …” A Snopes entry notes the Vincinnes was in Iranian waters at the time.

      1. Polar Socialist

        Not just that, but nearby (not in the Iranian waters) USS Sides did correctly identify the flight 655 as civilian and transmitted that information to USS Vincennes.

  8. mehitabel

    The MH17 disaster has basically been swept under the rug. The official story has more holes in it than Swiss cheese. The Ukrainian security services seized the recordings of the conversation between Kiev air traffic control and the pilots right after the disaster – I don’t think they have ever been made public. The NSA declassified and made public the transcripts of the intercepts during the shooting down of KAL 007 in 1983, because that was a slam-dunk case. The NSA’s data-collection capabilities surely have grown by an order of magnitude in the ensuing three decades – if it was the Russians’ fault, why hasn’t the NSA released transcripts? All we could do was trot out a pathetic Google Earth diagram of the flight path of MH17. I’m sure we and Russia know full well who did it – both sides have kept quiet, because it would mean revealing our intelligence capabilities. The whole thing stinks.

  9. Mak

    When it comes to Russia and Ukraine this blog has started to read like a conspiracy theory website.

    I am disappointed.

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