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Looking for a smoking gun

Fiona Clark, MoscowOctober 18, 2015

The Dutch report into the downing of MH17 was not designed to apportion blame for the shooting, but Russia seems to be going out of its way to say it wasn't its missile. Fiona Clark looks at some of the reasons why.

A plane flies in the sky above a Buk missile system
Image: picture-alliance/dpa/M. Shipenkov

They say the first casualty of war is the truth, and the conflict between Russia and Ukraine is no exception. It's not just a war on the ground but a vicious propaganda war waged by both sides in the mainstream press and social media. But the release of the Dutch report into the downing of a Malaysia Airlines flight in Ukrainian airspace has sparked fresh vitriol from Russia aimed at discrediting the report.

There seems to be a clear misunderstanding of the purpose of the report, which was intended to say what happened to the plane, not who did it. That will be the subject of a different report due out later. But this point seems to be lost on Russian media, which claim that the report's failure to pinpoint who pushed the button and from exactly where (other than a few hundred square miles of rebel-held territory) means, as one opinion piece on Russia Today states, that there's "no smoking gun."

But even though media may report that that's the case, one party that is especially at pains to disagree with the report's findings is Almaz-Antey, the producer of the missile that the Dutch Safety Board says shot the plane down. The company has conducted its own tests that allegedly prove that its warhead was not involved in the tragedy, which ended the lives of 298 people on July 17, 2014.

According to the Dutch report a Buk missile system carrying a 9N314M missile detonated about a meter (3 feet) from the cockpit, tearing through the plane's shell and causing the front section to separate from the rest of the plane. Various shapes of shrapnel were found in the wreckage and the victims' bodies, including bow-tie-shaped pieces, which the report claims are consistent with that type of warhead.

Almaz-Antey disagrees, as do most Russian officials, who have labeled the report biased and claim that it delivered a preconceived result. Almaz-Antey instead claims the bow-tie-shaped shrapnel comes from an older warhead - a 9M314 - that was decommissioned in Russia back in 1982, but was, it says, still in use in Ukraine until 2005.

The reconstructed airplane serves as a backdrop during the presentation of the final report into the crash Malaysia Airlines flight MH17 over Ukraine
The Dutch focused on why the plane crashed, not who did itImage: Getty Images/AFP/E. Dunand

Does it really matter which Buk missile was used to shoot down MH17? Why is Almaz-Antey so keen to show it wasn't a current model? By way of background, Almaz-Antey is a Kremlin-controlled arms manufacturer. It was set up in 2002 by presidential decree to combine various elements of the military industrial complex and now includes more than 60 branches and employs around 94,000 people. It is the world's 12th largest defense contractor and in 2013 it earned more than $8.3 billion in arms sales.

But, with Russia's annexation of Crimea and subsequent activities in eastern Ukraine, Almaz-Antey was placed on the sanctions list by Europe and the US, and as a result this monolith has gone from printing hard currency to hemorrhaging it. That's not good for a struggling Russian budget. So apart from Russia saying "we didn't do it," there's clearly pressure to ensure that Almaz-Antey looks squeaky clean so it can argue for an end to the sanctions against it.

Legal ramifications

Apart from looking clean, there are legal ramifications for the involvement of a current Russian warhead. Could Russia in some way be held culpable for the downing of the plane, if it is found that it supplied the arms or somehow allowed access to them, and therefore face legal proceedings against it?

Bill Bowring, a barrister who is taking Marina Litvinenko's case to the European Court of Human Rights, can see a parallel between the case of her husband's poisoning by polonium and that of the warheads in question. In the case of the 2006 poisoning of Alexander Litvinenko, the polonium could only have been obtained with Kremlin consent, and it's the same with the newer warhead. "The victims could argue there's complicity, in that the state allowed the troops access to the missiles," he says.

Konstanina Tzouvala, a lecturer in law and global justice at Durham University in the UK, says there are other possibilities too.

"Russia is denying that it is supplying the pro-Russia rebels with weapons, which is very important for international law," Tzouvala says. She adds that it would be very hard to prove under current international law that Russia had "effective control" over the rebels, which "is taken to mean that Russia told the rebels what to do in detail: 'Go to place X and shoot the plane.'

"If Ukraine and the Netherlands manage to show that Russia is arming the rebels, this would constitute a violation of international law in its own right. Arming rebels, in itself, constitutes a violation of the rule of nonintervention in the domestic affairs of another state and is a violation of Ukraine's sovereignty. Thus, even if Russia was not found responsible for the act of shooting down itself, arming the rebels as such would still be a violation of international law."

A fire fighters extinguishes flames at the crash site
Russia - and Almaz-Antey - dismiss any role in the downing of the planeImage: Oleg Vtulkin

Tzouvala says there's only a slim chance that such a case would be brought, but that it's "an important argument in the political arena."

For Bowring the argument over whether or not it was a new or old warhead is a red herring aimed at distracting from what will most likely end up being a tragic mistake in shooting down a civilian aircraft by not-very-bright pro-Russian rebels.

In the meantime the propaganda machine will grind on until the release of the next report, which should reveal exactly where the smoking gun was fired.

Fiona Clark is an Australian journalist currently living in Russia. She started her career with the Australian Broadcasting Corporation as a TV reporter in the mid-1980s. She has spent the past 10 years working on publications such as The Lancet and Australian Doctor and consumer health websites. This is her second stint in Moscow. She also worked there from 1990 to 1992.