The agreement gives one of the prime suspects in the atrocity, Ukraine, an effective veto over any investigations result that attributed blame to them. This is an astonishing situation.
On 17 July 2014 Malaysian Airlines Flight MH17 en route from Amsterdam to Kuala Lumpur was shot down over the Eastern Ukraine.
Although the precise circumstances were at that point unknown the western media were quick to blame Ukrainian 'rebels'. The means by which MH17 was destroyed, the media alleged, was a surface to air BUK missile supplied to the 'rebels' by Russia.
For a host of reasons it was almost certainly not a BUK missile that caused the crash. The stage was set however, for a demonization of Russia in general as the alleged supplier of the missile, and President Vladimir Putin in particular.
The relentless propaganda enforcing this view has continued unabated to this day, although the evidential foundation for the allegations remains at best remote.
First the verdict ... and hide the evidence
The Russians produced an initial denial of involvement. Four days after the tragedy however, as anti-Russian hysteria was escalating to extreme levels, the Russian military held a press presentation. The fact of this presentation was barely reported in the western media. The content, more importantly, was either ignored or misrepresented.
The Russians disclosed, inter alia, their radar and satellite data. These data showed that MH17 had been diverted from its scheduled route so that it flew directly over the war zone in eastern Ukraine. They asked for an explanation but one has never been forthcoming.
These data also showed that MH17 had been shadowed during its last minutes by two SU25 fighter jets, a model flown by the Ukrainian air force. Again the Russians asked why this had happened.
The main response was a claim that the SU25 could not fly above 10,000 metres. Not only is this untrue, as an examination of military resources readily demonstrates, but the Wikipedia entry on the SU25 had been altered days before the shoot down to claim that the SU25's operating ceiling was only 7,000 metres. Again the western media ignored this obvious alarm bell.
The Russians further disclosed that at the precise time of the shoot down an American spy satellite was directly overhead the scene and would have recorded the sequence of events.
The Russians invited the Americans to share these data with the official investigation that had been launched, but to date the Americans have failed to do so. Again, the western media are singularly incurious as to the reason for this lack of cooperation.
IATA rules misapplied to excldue Malaysia
Under IATA Rules, the parties responsible for the investigation would be the Malaysians, as owners of the plane and home country of the airline, and the Ukrainians over whose territory the atrocity occurred.
It was the Dutch however, who took the lead role, citing two facts: the plane had departed from Amsterdam; and they had suffered the largest number of their nationals as victims.
The Malaysians were initially excluded from the inquiry for reasons that have never been satisfactorily explained. They were finally invited to join the Joint Inquiry on 2 December 2014.
Instead, the initial inquiry group consisted of Ukraine, the Netherlands, Australia and Belgium. The Australians suffered the third largest loss of life but had no standing to be one of the investigatory nations, and certainly less of a claim than the Malaysians.
The Australian Prime Minister and some other politicians had been at the forefront of making extreme allegations against Russia and President Putin. Why Belgium was included remains a mystery.
Secret agreement gives Ukraine a veto on the findings
On 8 August 2014 these four investigating nations signed an agreement that the results of the investigation would not be published unless all four countries agreed.
This gave one of the prime suspects in the atrocity, Ukraine, an effective veto over any investigations result that attributed blame to them. This is an astonishing situation and probably without precedent in modern air crash investigations.
More significantly however, is that the existence of this secret agreement was not announced by the Australian government, nor to the best of my knowledge has any report about the existence of the agreement or its extraordinary terms, been published in any mainstream publication.
The Dutch magazine Elsevier, under Dutch Freedom of Information laws, sought a copy of the agreement. On 19 November they announced that the request had been refused on the grounds that it "could endanger the relations with other countries involved."
An Australian citizen (name redacted) wrote to the Minister for Infrastructure and Regional Development (Deputy Prime Minister Warren Truss) seeking a copy of the agreement. By letter dated 15 October 2014 the Department of Foreign Affairs and Trade (DFAT) replied on behalf of the Minister, refusing the requester a copy of the agreement as its contents were "classified".
The present writer wrote to DFAT on 21 August 2014 seeking a copy of the agreement of 8 August 2014 under the Freedom of Information Act. The department declaimed responsibility and said that they had passed my request on to the Attorney-General's Department.
Australia's federal police refuse FOI request
This was odd, but even odder was advice from the Attorney General that my request had been passed in turn to the Australian Federal Police who were the responsible body.
This must be the first time in Australian history since 1901 that negotiations and agreements between sovereign nations had been conducted on Australia's behalf by the Federal Police.
On 2 December 2014 the Australian Federal Police finally gave their decision on the FOI request. It was declined on the basis that disclosure of the document (which they acknowledged existed) under section 33 would, or could reasonably be expected to, cause damage to:
- (i) the security of the Commonwealth; or
- (ii) the defence of the Commonwealth; or
- (iii) the international relations of the Commonwealth
The refusal also relied upon section 37(1)(a) of the Act which exempts a document if it could reasonably be said to prejudice the conduct of an investigation.
Thirdly, the Federal Police relied upon section 37(1) (c) where disclosure could reasonably be expected to endanger the life or physical safety of a person.
The fourth ground of refusal was under section 37(2)(b) which exempts disclosure where it might reasonably be expected to prejudice an investigation by disclosing methods of investigation or detection of unlawful activity.
In the circumstances of this case it is very difficult to see how any of those provisions would apply. The agreement, it should be remembered, is to give any one of the four investigating countries a veto over publication of the results. A final report would be entitled to withhold details of the investigation that would truly prejudice matters of national security.
An investigation of a crash of an aeroplane is however, carried out under IATA Rules and its procedures are well established and well documented. Whose life or safety might be endangered by releasing the agreement is unspecified.
Geopolitics trumps justice
One is left with the conclusion that 33 (iii) is the real ground and the 'international relations' referred to are the difficulty Australia and other nations have got themselves into by prematurely blaming Russia when all of the emerging evidence points squarely at Ukraine.
Given the existence of this agreement it is difficult to see how anyone can have any confidence in whatever final report is published by the Dutch. The preliminary report was careful not to apportion blame or even state the cause of the crash other than to say that the plane was hit a by a large number of "high velocity objects" which were undefined.
Another major question is why have the mainstream media kept up a barrage of misinformation up to and including the recent G20 debacle, when they know, or ought to know that the investigation is a sham?
It is also difficult to see how the continued demonization of Russia and Mr Putin for manifestly geo-political reasons (and the probable reasons for the shoot down in the first place) represents any form of justice for the families of the 298 victims and in particular the 37 who were Australian citizens or residents.
It is clear that the Government's professed support for Security Council Resolution 2116 (2014) for a "full, thorough, and independent international investigation into the incident in accordance with international civil aviation guidelines" is no more than window dressing for a much wider geopolitical agenda.
James O'Neill is a former academic who has practiced as a barrister for the past 30 years. He has a special interest in international human rights issues. He may be contacted at firstname.lastname@example.org