The Malaysian Airlines Flight 17 Investigation and the Politics of Fact-finding

Publication Date: 
Thursday, September 4, 2014

Just as humanitarian professionals emphasize the need to maintain the humanitarian space to undertake aid operations with independence, neutrality, and impartiality, in the domain of international fact-finding, political engagement is often required to carve out the space necessary to implement a thorough, objective investigation. Indeed, investigators involved in gathering information relevant to the downing of Malaysia Airlines Flight 17 (MH17) — which crashed in the eastern part of the Ukraine on July 17 — have consistently grappled with this challenge. In particular, investigators have struggled over the past month and a half to secure territorial access to the crash site. Thus, the preliminary report of the investigation, scheduled to be released in the coming days, will reflect not only the technical skills of a wide array of investigators and forensic analysts but also the political efforts, including public advocacy and behind-closed-doors direct engagement, undertaken to gain access.

 Initially, investigators hoped to obtain territorial access to the crash site without issue. On the day of the crash, the Trilateral Contact Group, composed of senior representatives from the Ukraine, Russia, and the Organization for Security and Co-operation in Europe (OSCE) announced an agreement reached with representatives of the Donetsk People’s Republic, the separatists who declared independence from the Ukraine on April 7 and who control the territory on which the crash occurred. According to this agreement, the separatists agreed to the following four points:

1.   As a matter of priority, they shall close off the site of the catastrophe and allow local authorities to start preparations for the recovery of bodies;

2.   they shall provide safe access and security guarantees to the national investigation commission, including international investigators, in the area under their control; 

3.   they shall provide safe access and security guarantees to OSCE monitors;

4.   they shall cooperate with the relevant authorities of Ukraine on all practical questions arising in the course of the recovery and investigation works.

However, when efforts by OSCE monitors to reach the site were unsuccessful, two contrasting narratives emerged that reflected the various political interests involved in the conflict. One narrative blamed the rebels for blocking access. This viewpoint was fueled by reports that rebels had not only actively impeded investigators from reaching the crash site but also had tampered with evidence. The second narrative placed blame on the Government of Ukraine. According to this view, access problems arose primarily from the fact that the Ukrainian government would not agree to a ceasefire in eastern Ukraine, thus inevitably leading to an unstable security environment not conducive to the safety of investigators.

These conflicting narratives were expressed in statements offered, on the one hand, by the United States, various European governments, and the Ukrainian government, and on the other hand, by Russian government officials and pro-Russian Ukrainian separatists. Both sides blamed each other for the instability and for the difficulties in securing access. However, these actors did agree on the desirability of a thorough investigation, a view that coalesced with the adoption of United Nations Security Council resolution 2166, which states that the Council “[s]upports efforts to establish a full, thorough and independent international investigation into the incident in accordance with international civil aviation guidelines.” Along the same lines, German Chancellor Angela Merkel and Russian President Vladimir Putin agreed that the International Civil Aviation Organization should quickly be granted access to the site, and the OSCE passed a resolution “[c]all[ing] for immediate, safe and secure access to the site and surrounding area.”

Concurrent with these very public declarations, diplomats pursued more quiet avenues. Particularly significant were confidential negotiations that occurred between Najib Razak, the Prime Minister of Malaysia, and Alexander Borodai, then Prime Minister of the self-declared Donetsk People’s Republic. As The New York Times notes, Malaysia’s neutral stance regarding the conflict in the Ukraine made Najib a promising interlocutor:

One possible advantage for Malaysia is that it has long been a leading member of the nonaligned movement of developing countries that sought during the Cold War to steer a neutral course between the United States and the Soviet Union. More recently, Malaysia has tried to maintain good relations with Russia, China and the United States at the same time.

While the Netherlands is a member of NATO, an organization seen as threatening by many pro-Russian separatists in eastern Ukraine, Malaysia is a distant Southeast Asian nation that has stayed largely silent on the turmoil there. Almost three-fifths of Malaysia’s population is Muslim, and the country’s foreign policy has often been more focused in recent years on the Middle East, including heavy criticism in recent days of Israel for its military operation in Gaza.

As a result of these negotiations, Borodai agreed to transfer victims’ remains to the Netherlands, to hand over MH17’s two black boxes to the Malaysian investigative team, and to guarantee access for investigators to the crash site. Though access continued to be a problem, thus requiring additional negotiations between Najib and Borodai, the transfer of the remains and the black boxes was executed successfully. As Najib, who bore the brunt of domestic political criticism for not being more vocal about the issue, stated, “[S]ometimes, we must work quietly in the service of a better outcome.”

The OSCE also has been perpetually involved in access negotiations and has grappled with issues related to both logistics and security. As Alexander Hug, Deputy Chief Monitor of the OSCE Special Monitoring Mission to Ukraine, has stated

It takes our convoy three hours to drive from our base in Donetsk to the crash site. We plan the daily route each previous evening and negotiate with rebels and government officials and to secure a silence of arms for our route. But the security situation has usually changed by the morning. So we have to change our route and negotiate again. Also, we must always secure a quick retreat route.

The struggle to negotiate access to the MH17 crash site saliently elucidates the notion that international fact-finding requires both technical and political acumen. Additionally, the investigation evokes several other challenging questions.

First, what is the appropriate level of transparency that international fact-finders should exercise? As examined by the author of this post in a recent working paper published by the Program on Humanitarian Policy and Conflict Research at Harvard University, fact-finding practitioners have adopted different approaches to this issue. In the context of the MH17 investigation, fact-finders are bound by strict confidentiality pledges that prevent these practitioners from publicly discussing preliminary findings. Nonetheless, Russian officials have called for the release of transcripts of conversations between air traffic controllers and MH17 leading up to the crash and have claimed that the failure to make this material public indicates a lack of sufficient transparency that brings the legitimacy of the investigation into question. 

Second, how can the security of investigators — and of the crash site — most effectively be guaranteed? Though officials from the Netherlands, Australia, and Malaysia discussed the possibility of sending in an international armed force to secure the crash site, this option was not pursued due to the “real risk that an international mission would immediately be involved in the conflict in Ukraine,” as noted by Mark Rutte, the Prime Minister of the Netherlands. In this sense, the technical process of securing and preserving the evidence for forensic analysis could have inadvertently yielded unintended political and military effects.

As all of these dilemmas suggest, the technical and political components of fact-finding cannot so easily be kept distinct from one another. The objective, of course, is to undertake an investigation insulated from political considerations. However, in order to achieve this task, fact-finders must always consider how to engage strategically with the surrounding political environment.

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