The vague role of Malaysia in the Joint Investigation Team
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At August 7 2014 a Joint Investigation Team (JIT) was formed to start a criminal investigation into the downing of MH17. States initially participating in the JIT were the Netherlands, Ukraine, Australia and Belgium.
A Joint Investigation Team (JIT) is an investigation team set up for a fixed period, based on an agreement between two or more EU Member States and/or competent authorities, for a specific purpose. Non EU Member States may participate in a JIT with the agreement of all other parties. (source Europol)
Two Europol member states should participate in a JIT. That is the reason for Belgium to be part of JIT. There has been no information on any activities of Belgium into the criminal investigation of the downing of MH17. Therefore I conclude the role of Belgium is a formal one.
Remarkably, Malaysia was initialy not part of JIT. Only after Malaysia threatened to not cooperate in the investigation, Malaysia was accepted as member of JIT.
Unknown why Malaysia was not member of JIT right from the start
In November 2014 it was made known public by Malaysia that they were not part of the JIT. Also information became public revealing that the JIT agreement was secret. The Dutch government did not release the content of the JIT agreement.
At November 28 2014 the Dutch prosecutor officialy acknowledged that Malaysia was accepted as a full member of JIT. (source)
At the end of March 2015 a delegation of the Dutch prosecutor went to Malaysia to finalize the agreements with Malaysia on the full JIT membership. (source)
Officially it was never made public why Malaysia joined JIT only after almost 4 months after the start of JIT. Background in this post.
Politics
MH17 is a very political crash. This is one of the reasons why after almost two years the public still does not know what happened. Politics started when Ukraine did not want the Netherlands to recognize Luhansk and Donetsk People Republic (LPR/DPR). For recovery of bodies documents had to be signed. Dutch staff of the recovery team had to make sure their signature was not an acknowledgement of the LPR or DPR.
Ukraine probably did not trust Malaysia as Malaysia has friendly relations with Moscow. This might be a reason for Ukriane to veto participation of Malaysia.
Russia Today quotes Mohamed Harridon, a professor in Malaysia.
“When the crash happened, we did not blame any parties, neither Russia nor Ukraine, as we would like to take a look at the concrete evidence,” head associate professor in research and aviation at Kuala Lumpur University, Dr. Mohamed Harridon, told RT. He added that unlike “western counterparts,” Malaysia has taken a “neutral role,” and not “pointed fingers at Russia,” which could be the reason for the country’s exclusion from the investigation.
Crucial role of Malaysia in obtaining black boxes.
Malaysis did not obey to Western politics. They negotiated with the separatists who recovered the black boxes. Prime Minister Razak had telephone coversations with leaders of the DPR. It resulted in the black boxes being handed over to Malaysia. The complete story is documented here.
In this article in a Malaysian newspaper transport Ministry explains Msia’s “reluctance” to cooperate in MH17 probe
Unknown role of Malaysia in JIT investigation
In the limited number of public communications by JIT it is not mentioned what the role of Malaysia is in the criminal investigation. The public was informed by JIT that both Dutch and Australian police officers are working on the case. However there is no information on the role of Malaysian policemen.
JIT released an e-zine with information on the progress of the criminal investigation. In the e-zine we see a videoconference with Malaysian policemen. While Australia and the Netherlands are present in a so called field office in Ukraine, Malaysia is not present in Ukraine as it seems.
Response of JIT about questions on role
I asked the spokesman of the Dutch prosecutor, Wim de Bruin, two questions about the role of Malaysia in JIT:
- why wasn’t Malaysia a full member of JIT right from the start of JIT?
- what is the role of Malaysia in the criminal investigation?
The answer of de Bruin was:
I would like to merely refer to previous communications about the membership of Malaysia, a member of the JIT.
I searched for previous communications by JIT about the delayed membership of Malaysia and their role but was not able to find any.
Questions asked in Dutch parliament
Member of Parliament Omtzigt and Bontes requested at June 2 2016 that the Dutch government informs the parliament about the status of the criminal investigation. This because the Malaysian PM Razak stated that Malaysia will cooperate with Russia after JIT released a report in October. JIT denied it will release a report in October. Around mid June a response is expected.
Russia and Malaysia cooperating
End of May 2016 PM Razak announced Malaysia will cooperate with Russia in the investigation to identify the parties responsible for the tragedy in Ukraine in July, 2014 (source)
To be continued..
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IMO, there might be these two reasons:
-Ukraine dislike Malaysia’s direct negotiation with terrorists on Ukraine soil
-Malaysia is furious to Ukraine because they allowed flights over area where military aircrafts had been shot from high altitude
-Malaysia is furious to Ukraine because … there was a lot of indicators that rebels had BUK
+ I hope RU is not using Malaysia to interfere with the investigation
(Malaysia has access to NDA material of JIT)
I can add to that: Malaysia believes the investigation takes too much time. Malaysia believes there is more to the story than has been told so far
A brief review of JIT history and Malaysia’s participation is in order.
Malaysia’s chances for major roles in the investigations were compromised on 7/22/14 when they handed over the black boxes. Malaysia could have placed the black boxes in a diplomatic pouch, taken them to Malaysia, and then released copies (not the originals) of the data to whomever they pleased. Or they could have hosted an international investigation of the black boxes. Possession of the unreleased black box data would have been sufficient leverage to give Malaysia a lead role in the technical and criminal investigations
The JIT’s origins date back to 7/29/14. That is when prosecutors and investigators from 12 countries met at Eurojust in The Hague to discuss their judicial cooperation strategy. The meeting was requested by the Dutch Public Prosecution Service. Attending were representatives of the Netherlands, Australia, Malaysia, UK, Belgium, Germany, the Philippines, Canada, New Zealand, Indonesia, USA, Ukraine, Europol and Interpol. The purpose of the meeting was to was to discuss cooperation and ways of broadening and accelerating the investigations, including the establishment of a Joint Investigation Team.
http://www.eurojust.europa.eu/press/PressReleases/Pages/2014/2014-07-28.aspx
Eurojust held a second coordinating meeting 12/04/14. The list of countries and organizations attending was not specified in the Eurojust press release. They were described as “all concerned countries, plus Eurojust and Europol”. At this meetings representatives of the JIT (the Netherlands, Australia, Ukraine and Belgium) agreed that Malaysia could join the JIT.
http://www.eurojust.europa.eu/press/PressReleases/Pages/2014/2014-12-04.aspx
However, NST wrote two days earlier that, according to Attorney-General Tan Sri Abdul Gani Patail, Malaysia was accepted as a full member of the JIT in a letter dated 11/28/14 from the Dutch National Public Prosecutor’s Office. Moreover, the Eurojust coordinating meeting on 12/04/14 was described by NST as the third such meeting. Perhaps there was a second meeting, which remains undocumented by Eurojust, on 08/07/14 when the JIT was formed. If so then could there be 12 countries who have copies of the covert JIT agreement?
http://www.nst.com.my/news/2015/09/malaysia-full-member-joint-probe-team
Despite previous announcements of Malaysian membership in the JIT, the NST wrote 12/15/14 that Malaysia was waiting for an agreement from Eurojust. The nature of this agreement was not specified. Apparently an agreement from Eurojust was necessary to confirm Malaysia as the fifth member of the JIT. Also, the NST article contradicted the 12/02/14 article by saying that the 12/04/14 meeting at Eurojust was the first (not the third) coordination meeting. Maybe this contradiction just reflects confusion at the New Straits Times.
http://www.nst.com.my/news/2015/09/mh17-malaysia-awaits-eurojust-agreement
There has been no further information about Malaysia formally joining the JIT except for this vague statement dated 04/15/15: “In late March, the Dutch OM visited Malaysia in the context of finalizing the agreements on the full membership of Malaysia to the JIT. This requires, in consultation with other partners JIT new working arrangements drafted.” If the Dutch government source of this information is correct, then multiple agreements had to be executed in order to integrate Malaysia into the JIT. I have seen no public confirmation that these agreements were ever executed.
https://zoek.officielebekendmakingen.nl/dossier/33997/kst-33997-38?resultIndex=1&sorttype=1&sortorder=4
The recently released JIT “e-zine” indicates no significant role for Malaysia in the operations of the JIT. It is as if the agreement in principal for Malaysia to join the JIT was never turned into a working partnership. If Malaysia has never formally signed the JIT’s nondisclosure agreement then, like Russia, Malaysia is not gagged and can report whatever they please as they investigate independently of the JIT.
>then released copies (not the originals) of the data to whomever they pleased.
Not a simple task. RU tried to decode KAL007 BB data for 9 years and only managed to destroy some of the BB data. That’s why special ICAO approved aviation laboratories do the decoding.
+ witholding evidence from ICAO might cause legal actions …
>they investigate independently of the JIT.
Is there any “evidence” of Malaysia doing it’s own independent investigation.
IMO, without NDA, they can not be in JIT.
Eurojust does not provide additional information about the vague status of Malaysia on the JIT.
My question to Eurojust:
“Please advise whether Malaysia has executed all of the agreements necessary to be a full member of the JIT that is investigating the downing of Malaysian flight MH17.”
Reply from Eurojust:
“Thank you for your inquiry.
Eurojust advises you to direct your inquiry to the JIT coordinator, Dutch Chief Prosecutor Fred Westerbeke.”
Today I made a phonecall with the spokesman of JIT. He could not provide me with a reason why Malaysia was not full member of JIT right from the start. Malaysia did participate in searching in the early days.
We know Malaysia stressed it wanted to become a full member.
So this is all very very mysterious