MH17 trial: Opening days raise key questions around suspect

In the two days that it has run so far, the Dutch court hearing into the 2014 MH17 disaster, though largely focused on procedural detail, has already opened some quite unexpected and tantalising avenues towards discovering the truth behind the 298 deaths.

Before the case began on Monday, certain key facts had already been well trailed: we already knew the identities of the four defendants. We knew they were charged with murder. We knew they would not appear in court.

We also knew that at least a dozen witnesses had been granted anonymity because they feared for their lives.

What was not revealed in advance was the most important single development: that one of the four accused, Oleg Pulatov, a former special forces soldier attached to Russian military intelligence, had chosen to be legally represented and denied any part in the downing of the Malaysia Airlines jet.

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That gave the case immediate traction.

What had widely been expected to be a forensic recitation of the evidence painstakingly gathered by investigators from the Netherlands, Malaysia, Ukraine, Australia and Belgium, followed by four guilty verdicts in absentia, but never leading to a day in jail, suddenly became a trial.

‘Sabotage’ accusation

That change in tone was much in evidence on the second day, when comments by prosecutor Thijs Berger, which in the absence of legal representation for the defendants would have gone unchallenged, suddenly became contentious.

Berger bluntly accused Russia of "attempting to sabotage" the investigation into events before and after flight MH17 was hit – the prosecution alleges – by a Russian-made Buk surface-to-air missile over eastern Ukraine on July 17th, 2014, with the loss of all on board.

That attempted sabotage, he said, cast “a dark shadow” over the opening of the case, especially since Russia would not hesitate to deploy its security services, believed to have been responsible for multiple murders around the world.

At the same time, he contended, the pro-Russian breakaway Donetsk People’s Republic (DPR) was a place where “the rule of violence has replaced the rule of law” and where a UN report last year showed the threat of random imprisonment and torture still existed.

Boudewijn van Eijck, counsel for Pulatov, took issue with those comments, pointing out that given the allegation that his client, a Russian national, had been deputy head of intelligence in the DPR, and allegedly culpable in the MH17 attack, they were “sailing a little too close to the wind”.

‘Exculpatory evidence’

However, what was in fact more striking in Berger's address were his reassurances that "any exculpatory evidence" in relation to the four defendants – Pulatov, Igor Girkin, Sergey Dubinsky, and Leonid Kharchenko – would be added immediately to the case file.

Insofar as they were relevant to Pulatov they would be shared with his lawyers.

Berger explored the possibility that Pulatov might, at some point, consider making a statement to the court, and where and how that might be done, whether in the Netherlands or elsewhere. He even raised the question as to whether Pulatov night apply for immunity.

A full week had been allocated for the first section of this case but in the event it was adjourned on Tuesday after only two days, primarily to give Pulatov’s defence team, who only joined the proceedings in January, time to prepare for the substantive case.

Those two days had raised several fascinating questions.

Why, of the four suspects, did Pulatov choose to engage with the court? Does that decision indicate a divide between himself and his former comrades? Is there a possibility that he may seek indeed immunity? What impact might that have on the course of this extraordinary case?