‘Dit vergt het uiterste van je kunnen’
Interview with Fred Westerbeke
Chief officer Fred Westerbeke leads the team that conducts criminal investigations into the downing of flight MH17. "That BUK missile didn't just happen to end up in the wrong hands"
Fred Westerbeke would like to give an interview at the end of a year in which many Dutch people have become impatient and finally want to know who was responsible for the disaster, more than three years ago, with flight MH17.
Westerbeke (55) is chief officer of the national public prosecutor's office in Rotterdam and is responsible for the management of the Joint Investigation Team (JIT). In this team, the Netherlands, Ukraine, Malaysia, Australia and Belgium are working on the criminal investigation into the crash on 17 July 2014. The aircraft of Malaysia Airlines was shot down above East Ukraine by a BUK missile. All 298 passengers and crew members, including 196 Dutch, died. We speak with Westerbeke at the national public prosecutor's office in Rotterdam.
How do you look back on this year?
There is no investigation on which so many policemen have worked. You talk about an average of fifty to seventy full-time people. That is a lot. And rightly so, because it is a terrible crime. The people from the four countries with which we work have to be added to this. Many policemen from Australia in particular are still involved, here and in our field office in Kiev.
Many people say: can the investigation not go faster?
I understand that very well. People who are emotionally involved, because they are relatives of victims, who certainly remember their loved ones at this time of year, ask themselves this question. On the other hand, there are many investigations lasting four, five or six years. We have coldcase studies from the last century. Recently, in Germany, the lawsuit was opened for a music festival in which people were squeezed to death, seven years later. I cannot say how fast things are going. However... we do everything we can to get the truth out on the table.
For the outside world, little seems to have happened.
It seems quiet, but a lot is happening. We are not in a dead end. On the contrary. We still find material. Let me give you an example. Intelligence services from Ukraine have recorded hundreds of thousands of telephone calls in what for them are terrorist investigations. Many recordings are currently being made available, they can only now be released once the criminal cases have been completed. It is a search for a number of pins in a haystack. But there are relevant discussions. They take us to witnesses and possible suspects. The picture is coloured step by step. Witnesses are incredibly important. We are trying to persuade people. One witness can be enough for the kind of colouring we need.
Isn't it late to persuade witnesses?
Time can work to your advantage. People think: this needs to be clarified. They become more remorseful. Or they don't want to talk until their safety is assured. We have provisions for this. To this day, people are seeking contact with us. That is not easy by the way, for example, they are in areas where we cannot come. I'm not going to tell details, but there are methods for secure communication.
You hardly ever tell anything about your results. This paves the way for all kinds of theories.
We have not published any new material, but the judiciary has never done so in current criminal cases. You can put your own investigation in trouble if you do so. Judges also take offence, they believe that evidence should be shown at the hearing. And rightly so. Many people ask: when will your report come out? But there will be no report. There will be a criminal file and that goes to the trial. That is where we can be transparent. However, we inform the next of kin as much as possible about what we are doing. We want them to be able to trust us. We want them to know that all kinds of conspiracy theories are wrong. I have said to them on many occasions: yes, I would like nothing better than to say a lot more, but I would put the investigation at risk. I am confident that we will succeed, that we can bring a number of people to account.
Is it a difficult investigation?
Last year in September, we released what exactly happened. This had never been done before in a Dutch investigation. We have told you that MH17 shot down with a BUK, where the BUK came from, and that there were about a hundred persons or interest involved in the operation. But we also said at the time that the most difficult work is yet to come. We are faced with difficult circumstances. We couldn't talk freely to witnesses. Forensically it was very complicated. That has not changed. A civil war is taking place. We cannot get there. The area is still in the hands of what many people call separatists. We are now zooming in on the responsibility of certain people. Who are possible suspects? What have they done? What have they known? What was their purpose? This is even more complicated than determining exactly what happened.
What exactly are you focusing on?
What we are looking at in particular is the precise context of events. We also outlined this context in general terms last year. There was an armed conflict, taking place both on the ground and in the air, with separatists suffering serious losses in the days before 17 July 2014. They needed an anti-aircraft system and have been given a BUK. What is incredibly important to us in this situation is: what has made it possible that the BUK was used to bring down an airplane, and not a fighter plane or an Antonov of Ukraine? Because that was probably the intention.
So you assume that MH17 was more or less accidentally taken down?
"A lot of material points to this scenario. And so it is important to know how that happened. The fact that something happens' accidentally' does not mean that you are not criminally liable." He puts his right hand in front of both eyes. "Let me make this comparison. When, with my hands in front of my eyes, I empty my gun on a group of people, I can say that I did not want to kill anyone. But if that happens afterwards, I am responsible. The question is: what did the crew know about the BUK? What did the superiors know? On the basis of what information did they reach decisions, and what can be attributed to them? In order to gain more insight into this, witnesses are so important."
The fact that the BUK was there, isn't it a crime yet? Because it was war?
Well, it wasn't formally a war. It was a civil war. Compare it to a group of Dutch people who stand up and say they want to belong to Germany. If we say that Twente starts a war with the support of Germans, then we do not say that this is a war, then it is a terrorist act. That is how you have to consider it.
But bringing down MH17 wasn't a stupid act of a drunken soldier or something like that?
That is not obvious. To shoot a BUK, you have to be properly trained. Several people are involved. That BUK missile didn't just happen to end up in the wrong hands.
If it was an error of judgement, it was made by several people?
Let me put it like this: there have been several people involved in the operation. There is no chance that this was a personal mistake of one person.
How can multiple people commit such a blunder?
That is exactly what our research focuses on. Your question indicates why this is not a simple investigation.
The spokesman of Westerbeke is also present at the meeting. He takes the floor and says:
"For the sake of clarity, this is a direction of investigation. There is not yet a preliminary conclusion that it happened 'accidentally'. Westerbeke: "It is a real, very important scenario that we are investigating."
In any case, it is a more realistic scenario than the fact that MH17 was shot down by a Ukrainian fighter plane, as the Russians once claimed.
That has been referred by us to the realm of fables. The Russians have moved on. The story about the fighter aircraft later turned out to be demonstrably incorrect. The Russians have been changing their scenario over a period of three years, in line with the evidence we got in our hands. This is a remarkable fact in itself.
A kind of compliment to you.
Well. Apparently they were struggling more and more. Their last scenario is that although a BUK may have been involved, it was fired from another area. Two years later, they suddenly came up with new radar data on which there is no BUK to be seen and so, they said, the BUK was not there. That is not true. We have always mentioned this: the absence of evidence is not the evidence of absence. Every radar expert can explain that because of its small surface area and its speed of three times the sound is probably also not visible on good radar images.
The Russians also said that the BUK had been fired from another area.
They said that he could have been shot from another area. But that other area was also in the hands of the separatists. Remarkable. If I may say so.
You talk about the radar data that has been so much of a matter before. What does it say?
We immediately said: we are going to study the radar data and add them to the file. The investigation did not have the greatest priority for us in terms of speed. Because their position was wrong. If nothing can be seen on it, it does not say anything. We are almost done now. But I am not going to say anything else about it.
The radar images don't matter anyway? There is an overwhelming amount of other evidence?
That is it. We have so much material about what has happened that there can be no doubt that it has gone that way. There is plenty of evidence. Legal and convincing evidence. So stop being restless about radar data.
How is the cooperation with Russia going?
You have to make a distinction. I am dealing with my colleague from the Public Prosecutor's Office there. We make requests for legal assistance. We got a lot of material. That takes time. Something else is what the Government of the Russian Federation is doing. If these other versions are made public, I have my reservations about them, but they do not make cooperation with my Russian colleagues any more difficult.
No? Because your Russian colleague is as independent of politics as you are here?
That is difficult to assess. I assume that there will be influence, but I see it as two separate channels. In any case, I am not dealing with official government positions, but with my own investigation.
There are regular publications about possible suspects, such as a Russian General Tkatshov, and an old colonel Dubinsky. Are they correct?
We make no statements about people and their involvement. I am not going to do that in this interview either. But all material in media, on the internet or from the Bellingcat research site, is a fuel for our research. For us every identification of a person we are looking for is interesting.
But is that information surprising to you?
We have never been surprised by this kind of news. We have the people that are mentioned very well on our radar. What the newspaper says, we have been working on that for months. We often have known the content of these messages a long time ago. That is what these dozens of people are working on with us every day.
Can you offer prison relief to suspects?
Under Ukrainian law, there are possibilities for reducing sentences in exchange for statements. If an MH17 suspect makes an essential contribution to the investigation, a deal can be made with us about discounting the penalty to be demanded by us. In the Netherlands, this can be at most half that figure. Suppose someone can get an x-number of years for transportation of the BUK, then we can reduce the penalty by half.
It is a pity that Russia does not extradite nationals, not?
Suppose that we will soon be dealing with Russian suspects, then the question is: can we hear them? Yes, it must be possible, because that is possible in the context of mutual legal assistance.
But extradition is not possible.
They are not allowed to extradite people for trial elsewhere. We see it when it comes to that point. I have learned to climb a staircase per step ".
Soon you will have a nice file and the suspects will not come to court. Isn't that frustrating?
I would be very sorry indeed. If that happens, it is second best. Frustrating is not the word that comes to mind .
And that the trial will be in the Netherlands? Not a UN tribunal?
The fact that the international community entrusts the Netherlands with the task of bringing the case to trial is an appreciation for the Dutch legal system. That is good. Furthermore, all legal rules have been elaborated in an existing legal system. There is case law. Everything you can get on legal questions has been discussed before. This gives a lot of predictability in the prosecution. That is an advantage over a tribunal. The establishment of a tribunal is still subject to the formation of the law.
It is even better than a tribunal?
As a professional, as a public prosecutor, I have a preference for trial in an existing, independent system. It is important, however, that the trial has an international reputation. It should be available internationally via a website, with interpreters and subtitling. We are thinking about that.
Nevertheless, the Dutch government wanted a UN tribunal.
You can look at it in two ways. I look at it professionally. In my opinion, the very best would have been a UN tribunal. The advantage of this is that all countries are bound by its conditions. Russia should also contribute to this.
And they must extradite suspects.
In my opinion, yes, indeed.
How do you experience this work personally?
It is not the only job I do. Yet is is the most important. I have often spoken to relatives. I see what this investigation means to them. That is why you are motivated to do this right within every fibre of your body. Just like all other colleagues from the police and the Public Prosecution Service who are working on this investigation. A mother once sent me a photo of her fallen child. That photo is on my desk at home. Let me not be dramatic. I regularly look at that photo.
Professionally, it's the biggest challenge I've ever had. I have been working as a policeman and officer for 36 years now and this is the most complicated thing I have ever had on my hands It takes the utmost of your ability.
Is it difficult to be held accountable for this investigation everywhere?
The most difficult moments are when things are said that just don't fit, especially for the next of kin. The only thing I can do is repeat: don't worry, forget the wild tales, we're going on relentlessly.
When are you ready?
I cannot say that. You can reasonably plan to build a house. You know when materials come. We do not know that. You are dependent on your own professionalism, but also on a windfall. And sometimes you have to be a little lucky with witnesses. With someone who says: and now I am fed up, I am coming. We are ready when it the moment arrives. It must be done carefully and completely.
What happens if you don't work carefully?
What matters in every criminal case is the question: can the evidence be interpreted differently? That is at the heart of the famous Meer en Vaart-Judgement of the Supreme Court. If the evidence does not rule out an alternative scenario, then the case is not complete, then the verdict becomes acquittal. We must be able to exclude all alternatives.
BBM
