German Lawyer of the Dead MH17 Passengers: “Ukraine Is Guilty of the Catastrophe”

Translated by Ollie Richardson & Angelina Siard


The fourth year started since that tragic day when in the East of Ukraine a civil plane — a Boeing 777-200 Malaysia Airlines airliner flying flight path number MH17 from Amsterdam to Kuala Lumpur — was shot down by a missile. Soon it will be three years since the Joint Investigation Team (JIT) created in August, 2014, began to study the circumstances of this catastrophe.

For almost as much time — since November of the same year — the appeal of a group of citizens of Germany against Ukraine has been considered in the European Court of Human Rights. It was done on behalf of the victims by the German lawyer Elmar Giemulla — a well-known expert in the field of aviation law, a professor at two German and American universities, who in different years advised the authorities of a number of countries concerning the development of aviation control. Periodically professor Giemulla acts as the defender of the interests of relatives of the victims of plane crashes.

In an exclusive interview to RIA Novosti Dr Giemulla explained why he considers the State of Ukraine responsible for the tragedy of 2014 — regardless of what missile shot down the plane. And also — why he is sure that the case on the catastrophe will eventually be “swept under the carpet”.

Mr lawyer, you submitted a claim to the ECHR, without waiting neither for the results of the JIT investigation, nor the judgment of the court, which, as it is already known, will take place in the Netherlands. You consider Ukraine to be guilty of the catastrophe, whereas the preliminary conclusions of international investigators points to Russia: according to them, the plane was shot down by a Russian “Buk” surface-to-air missile system. Don’t you consider the submission of your appeal premature?

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“The claim made by me isn’t based on attributing fault to this or that country, irrespective of who the ‘Buk’ belonged to, and who served with it. I am convinced that Ukraine didn’t properly fulfil the obligation of providing safety of the air space.

The authorities of this country at that time weren’t the owners of its east part, where already there was fighting. The authorities knew that the militia had arms much more powerful than SAM systems. Moreover, they knew that just a few days before this catastrophe a Ukrainian military transport plane was shot down over this territory at a large height. However instead of completely closing the air space in this region in all its depth, Ukraine closed it only up to the height where there is movement of civil aircraft.

It turned out that the Ukrainian authorities simply closed their eyes to the danger that threatened the lives of 298 people and didn’t prevent it, although they we were able to protect these people.”

Who are your clients, how many are there? Who did they lose in this catastrophe?

“They are three German families. A mother, who lost her adult daughter; two adult children, who lost their father; a young man who was left without a mother.”

And all of them completely share your confidence that it is precisely Ukraine that is responsible for the death of their relatives?

“Yes, they, as well as I, consider that Ukraine is guilty of this catastrophe. It could and should have prevented this tragedy.”

Five states, which Ukraine is one of, take part in the international investigation. What do you think of this?

“It is a serious mistake. Ukraine itself is responsible for this catastrophe. The danger is in the fact that Kiev has the opportunity to influence the course of the investigation.”

What do you think about the preliminary conclusions of JIT?

“All of them are very preliminary and fragmentary. Key questions still remain without answers.”

Immediately after the tragedy happened, the President of Ukraine Petro Poroshenko blamed the militiamen of Donbass. The following day the President of OSCE Parliamentary Assembly Ilkka Kanerva declared that the liner was shot down by a missile launched from “regions controlled by the militia”. And just afterwards the same statement was made by the then President of the US Barack Obama, and two days later the US State Department stated that they have proof that the Boeing was brought down precisely by the militia. Three years later this evidence still hasn’t been presented. This means that, in conclusion, politicians named the culprit already long before receiving the results of investigation and court case?

“I believe that no politician is interested in the truth coming to the surface. After all, whoever appears as ‘guilty’, peace in Europe would anyway find itself under threat. That’s why, most likely, nobody will be declared as ‘guilty’.”

What is the destiny of your appeal in the ECHR today? At what stage is the consideration at now?

“During preliminary consideration both we, and the respondent — Ukraine — gave two statements each. After this the court reported that consideration of the appeal continues. Because of the fact itself that we were not immediately refused in view of unacceptability of the appeal, and that they carry out a careful investigation, it is possible to consider this as a sign that the appeal will be considered in its essence.”

From catastrophe to court

In September, 2016, the JIT submitted its preliminary report in the course of the investigation into the circumstances of the catastrophe of MH17. According to the conclusions of international investigators, the plane was shot down by a missile launched from a “Buk” surface-to-air missile system from the territory that was under the control at that time of the militia of the self-proclaimed Donetsk People’s Republic. The system itself was allegedly delivered from the Russian territory and the next day returned back to Russia.

The investigation team was based on the materials provided mainly by Ukraine, and also by the so-called independent research group Bellingcat, whose methods the experts repeatedly called “amateur” and “untrustworthy”.

Russia disproved the assumptions of JIT, having put forward its arguments. In particular, the defense concern “Almaz-Antey” presented its own professional calculations based also on natural experiments, according to which the missile was launched from the territory that was controlled by the Armed forces of Ukraine. Besides this, judging by the character of the striking elements, it was a one of the missiles of old modification, which was removed from the armaments of Russia long ago, but remained with the troops of Ukraine.

Meanwhile, specialists in aviation safety accuse Kiev of consciously not closing its skies for flights of civil aviation over the zone of military operations, thereby providing the possibility of a catastrophe happening. Such statements were made, in particular, by representatives of the international advisory and analytical agency “Safety of Flights”, and also foreign experts in aviation safety.

The international investigation team must present its final conclusions before January 1st, 2018. However it was already declared that the court case in relation to the catastrophe will take place in the Netherlands.

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