Letter to the House of Representatives Concerning The

Letter of 14 April 2015 to the House of Representatives from the Minister of Security and Justice, Ard van der Steur, the Minister of Foreign Affairs, Bert Koenders, the Minister of Defence, Jeanine Hennis-Plasschaert, and the State Secretary for Infrastructure and the Environment, Wilma Mansveld, concerning the state of affairs with regard to the MH17 air disaster

We are writing, on behalf of the prime minister, to give you an overview of the current state of affairs with regard to the disaster involving Malaysia Airlines flight MH17. This letter will also discuss the following: • the request made by the Permanent Committee on Foreign Affairs (and Security and Justice), hereinafter ‘VKC’, for a response to the report on RTL Nieuws entitled ‘It was a BUK missile’ (20 March, 201504979/2015D10238); • the VKC’s request concerning the consequences of the amnesty arrangement in the Minsk Agreement of 12 February 2015 for suspected perpetrators of or persons responsible for the downing of flight MH17 (additional to the previous response of 12 February 2015, House of Representatives, 2014-2015, 33997-35); • MP Raymond de Roon’s request (7 April) for a letter concerning the report entitled ‘Secret report leaked: the Netherlands knew about MH17 air defence missiles’ (Rtlnieuws.nl, 4 April 2015) and the debate requested previously by MP Pieter Omtzigt on the same subject (22 January 2015): • the actions resulting from the motion submitted by MP Sjoerd Sjoerdsma on consultations with the aviation sector with a view to improving information gathering and risk analysis (House of Representatives, 2014-2015, 33997-32, 12 February 2015).

As ever, the government remains fully focused on the three previously stated objectives: 1. repatriating human remains and personal belongings; 2. investigating the circumstances of the crash; 3. conducting a criminal investigation.

Fact-finding mission and possible resumption of the repatriation mission Due to weather conditions and the security situation, the National Forensic Investigation Team (LTFO) has been unable to conduct any forensic investigation at the fire-ravaged sites over the past few months. The intention was always to resume the operation as soon as the circumstances allowed, preceded by a fact-finding mission (FFM).

AVT15/JU115207B 1 The FFM was carried out from 20 to 28 March 2015, to gain insight into the necessary conditions and parameters in the area around Donetsk and at the two fire-ravaged sites. The entire operation is being led by Pieter-Jaap Aalbersberg of the National Police. When the repatriation mission is resumed by the Interim Presence of the Combined Interagency Task Force (IP-CTJF) at the crash site, led by a representative of the Ministry of Defence, the emphasis will very clearly be on forensic investigation. The government also hopes that the results of the mission, and the repatriation of human remains that took place on 28 March, will lead to identification of the last two Dutch victims. The task force will also assess when recently found personal belongings can be transported to the Netherlands.

During the FFM, experts from the National Police (NP) and the Ministry of Defence established that the actual soil conditions and other local conditions are currently favourable. After Orthodox Easter (from Wednesday 15 April) and if the security situation allows, the repatriation mission will resume its activities at the crash site. It is estimated that it will take 14 working days to recover practically all human remains still at the site. A team of experts from the NP and the Defence organisation will dig up part of the soil and search it by hand on site. Malaysian and Australian experts will also be assisting. The repatriation mission’s home base is at Kharkiv. Part of the mission team will travel back and forth from Donetsk to the crash site every day. No one will stay overnight at the crash site.

The Ukrainian State Emergency Service (SES) will again be assisting on site, through the Organization for Security and Co-operation in Europe (OSCE). The OSCE team in Donetsk will escort the team to and from the crash site. This local OSCE team in Donetsk plays an important role in providing local security advice. They are very well informed in terms of local sentiment and possible threats.

If any human remains or personal belongings are found after the mission has ended, they can be handed in to the local authorities so that they can be transported to the Netherlands. Previous agreements on this matter still stand.

Security situation in eastern Ukraine The security situation in eastern Ukraine has remained practically unchanged over the past few weeks. The number of clashes and other violent incidents has dropped. Distrust between the parties prevails, however, and fighting could break out again without warning. Some small-scale skirmishes are still taking place, but there are no signs that the fighting will flare up again in the very near future. The security situation around the crash site improved

AVT15/JU115207B 2 recently because the front line has moved.

This development depends heavily on the parties’ intentions regarding the Minsk II agreement. Up to now, there have been conflicting indications in this respect. There are signs that internal tensions are rising among the rebel groups. This may lead to violent incidents in the separatist hinterland, which includes the crash site.

Identification process DNA profiles have been obtained from all human remains received in the Netherlands before 28 March 2015, insofar as it was technically possible. For some remains it was impossible to establish a DNA profile. The team in Hilversum again received human remains on 28 March. These have been categorised and samples have been taken from some for profiling by the Netherlands Forensic Institute (NFI). It is expected that the repatriation mission will recover more human remains. The aim is to identify the last two victims. Samples must therefore be taken from all human remains and the investigation in Hilversum and at the NFI may take several more months. Returning the identified remains currently still in Hilversum is a process carried out with great care and in consultation with the next of kin. Many of the next of kin have opted to wait before receiving the identified remains, in the hope that more remains will be identified. This, too, means that the activities in Hilversum are set to continue for some time.

Most of the death certificates for the non-Dutch victims have now been issued and the authorities are working hard to issue the remaining death certificates. The embassies of the countries involved are given regular progress reports.

Next of kin In the week of 2 March 2015 the Dutch Safety Board (OVV) offered the next of kin of the victims the opportunity to see the wreckage of the aircraft. In total, 533 next of kin of 151 victims, including victims from abroad, made use of that opportunity. At Gilze-Rijen Air Base they were taken to the three locations holding pieces of wreckage: the hangar where the investigation is being conducted and the two shelters where the rest of the wreckage is being stored. In the hangar, the next of kin were able to stand on a platform to view the wreckage parts most relevant to the investigation, and they had an opportunity to lay flowers. The family liaison offers and the case managers from Victim Support Netherlands played an important role in the preparations for this visit and on the day.

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The next of kin are kept informed of relevant developments through the Information and Referral Centre and in twice-weekly newsletters. Case manager support will remain available throughout 2015. The family liaison officers remain in contact with the next of kin regarding the criminal investigation.

Remembrance ceremony on 17 July The next of kin united in the MH17 Foundation are organising a remembrance ceremony on 17 July 2015 at the same location in Nieuwegein where previous gatherings have been held for the next of kin. Central government, Victim Support Netherlands and Impact (part of the Arq Psychotrauma Specialist Group) will provide the Foundation support in organising the commemoration. The costs of the commemoration will be borne by central government.

Airspace safety / civil aviation safety Following the motion submitted by MP Sjoerd Sjoerdsma and others (House of Representatives, 2014-2015, 33997-32, 12 February 2015) an assessment was made, together with the Dutch airlines and the Dutch Airline Pilots Association (VNV), of what form consultations should take on improving information gathering and risk analysis with regard to flying over conflict zones. It was decided on the basis of that assessment that further consultations would be held at the end of this month, under joint chairmanship of the Ministry of Infrastructure and the Environment and the Ministry of Justice. The meeting will discuss the international developments at the International Civil Aviation Organization (ICAO) and the European Aviation Safety Agency (EASA), as well as the Dutch system of information- sharing and risk analysis. The State Secretary for Infrastructure and the Environment informed you by letter of 25 March concerning the implementation of the motion, progress within the ICAO and the specific ICAO Task Force on Risks to Civil Aviation arising from Conflict Zones (House of Representatives, 2014-2015, 31936-263, 25 March 2015).

Technical investigation The technical investigation by the Dutch Safety Board (OVV) into the circumstances of the crash is well under way. The OVV has said it expects to complete the report in October 2015.

AVT15/JU115207B 4 Criminal investigation International cooperation on the criminal investigation is still progressing well, both in the Netherlands and at the ‘field office’ in Ukraine, where the Joint Investigation Team (JIT) countries share information. The various investigative tasks have been divided among the members of the team according to their particular expertise. In addition to the cooperation within the JIT, new requests for legal assistance have been made to other countries since the previous letter to Parliament. On 8 and 9 April a delegation from the Public Prosecution Service and the National Police attended consultations in Moscow. They discussed the implementation of the request for assistance at length with the competent authorities. At the end of March, representatives from the Dutch Public Prosecution Service visited Malaysia to finalise the agreements concerning full JIT membership for Malaysia. For that purpose, new working arrangements were drawn up in consultation with all other JIT partners.

The forensic investigation of the wreckage is also well under way. Specific international expertise has been called in, in close consultation with the OVV, as an extra guarantee that the investigation will be carried out with the utmost care.

On 30 March 2015 the JIT appealed to all members of the public who might have any more information about the circumstances of the crash to contact them. This appeal for witnesses was posted on the websites and social media outlets of the police and justice system, and via the news websites of newspapers and radio and television broadcasters. It consists of a video which includes pictures of a BUK missile system being transported through eastern Ukraine on a flatbed truck. The appeal also includes fragments of tapped phone conversations. Within a week of the appeal going out, a large number of witnesses had contacted the international investigation team. The Public Prosecution Service has said that more than 300 responses were received, several dozen of which were useful. They received 170 emails, 135 phone calls, one Skype call and a response via VKontakte, a Russian social media platform.

The government is currently considering various options for criminal prosecution and trial. As soon as the international investigation permits, your House will be informed confidentially. The parliamentary questions which MPs Sjoerd Sjoerdsma and Pieter Omtzigt put to the Minister of Security and Justice and the Minister of Foreign Affairs regarding the strategy for prosecuting and trying persons suspected of downing flight MH17 on 17 July 2014 (submitted on 9 April 2014, ref. 2015Z06415) will be answered as soon as possible.

AVT15/JU115207B 5 Leaking of report The government regrets that the report of the briefing of 14 July 2014 in Kyiv has been leaked. As has been said before, the government is of the opinion that it must be possible to write reports of such briefings and other diplomatic contacts in the knowledge that they will be treated confidentially, all the more so because such reports may also document the views of the host country and other countries’ representatives. Confidentiality is crucial for the proper functioning of international diplomatic relations. That is why the House was previously informed that the report itself would not be published and why the tenor of the report was set out in earlier letters to Parliament. The report was also made available to the OVV for the purpose of the technical investigation into the circumstances of the disaster.

Request for response to RTL Nieuws report On 19 March 2015 news broadcaster RTL Nieuws aired a report in which a reporter found pieces of a BUK missile at the crash site. In response, the OVV said that the material found would be included in the investigation. The OVV wants the final conclusion to be confirmed by information from several sources, which is a complex and lengthy process. For each source of information they must ascertain its connection to the Malaysia Airlines aircraft, for reasons including the fact that the aircraft crashed in a conflict zone. The technical investigation into the circumstances of the crash is in full swing and focuses on much more than just fragments. Additional material for investigation is welcome, but it is important to establish beyond any doubt that there is a connection between the material and the crashed aircraft.

The Public Prosecution Service has announced that the criminal investigation into the MH17 crash will include looking at the possibility that the passenger aircraft was brought down by a BUK missile. The criminal investigation is also still in progress.

The media have speculated before about flight MH17 having been downed by a BUK missile. The response then, too, was that it must be established beyond doubt what happened before any conclusions can be drawn, particularly in view of the Netherlands’ leading role in the both investigations.

Amnesty arrangement The Netherlands is working to ensure that the questions that MP Pieter Omtzigt asked the Committee of Ministers of the Council of Europe are answered in a timely fashion, in

AVT15/JU115207B 6 accordance with his motion of 11 March 2015.

On 12 February 2015 representatives of Ukraine, the Russian Federation, two separatist leaders from Donetsk and Luhansk provinces and a representative of the Organization for Security and Co-operation in Europe (OSCE) reached agreement in Minsk on a package of measures to implement the Minsk Protocol and the follow-up memorandum of September 2014, which provide for a cease-fire and gradual stabilisation of the situation in eastern Ukraine. Section 5 of this agreement refers to amnesty for persons in relation to ‘events that took place in particular districts of Donetsk and Luhansk oblasts of Ukraine’ by way of enacting a law that forbids persecution and punishment of these persons.

Section 6 of the Minsk Protocol, which was signed by the same parties in September 2014, also refers to such a law, in almost identical wording. The law was adopted later that month by the Ukrainian parliament and has yet to be approved by the parliament’s chairperson and the president. The law excludes the perpetrators of the air disaster and persons who hinder the investigation into the disaster from the amnesty arrangement. In response to questions from the Dutch embassy in Kyiv, the Ukrainian authorities and the OSCE representative indicated that section 5 of the Minsk Agreement of 12 February 2015 refers to this law and that the persons indicated will not fall under the amnesty arrangement.

In addition, the prime minister discussed this matter with President Poroshenko of Ukraine in the margins of the informal meeting of Council of Europe members in Brussels on 12 February. President Poroshenko assured the prime minister that the amnesty law to which the Minsk Agreement of 12 February 2015 refers will not apply to possible perpetrators of or persons responsible for the downing of flight MH17. The government immediately informed your House accordingly (House of Representatives, 2014-2015, 33 997, no. 35).

In its resolution 2166 of 21 July 2014 the United Nations Security Council demanded that those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability. Amnesty for those responsible for downing flight MH17 would not be accordance with that resolution.

In addition to the UN Security Council resolutions, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation is also important in assessing the legitimacy of the amnesty agreement. That convention stipulates that the perpetrators of such offences must be extradited or tried. Russia, Ukraine and the Netherlands are among the states party to this convention.

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Given these circumstances the government is of the opinion that the amnesty arrangement referred to in the Minsk Agreement of 12 February 2015 does not apply to those responsible for downing flight MH17.

International efforts The government continues to call for international attention to be focused on cooperation with the investigations and the importance of finding and trying the perpetrators. For instance, efforts by the Netherlands led to the latest Security Council resolution on the situation in Ukraine (no. 2202 of 13 February 2015) including a reaffirmation of resolution 2166. In a statement on the resolution, Malaysia, the Netherlands and six other grieving nations were united in emphasising that all UN member states must cooperate fully with efforts to bring those responsible to justice.

In part at the insistence of the Netherlands, the EU member states have also spoken out regarding MH17 on several occasions. For instance, the Council of Europe meeting of 18 December 2014 called for unhindered access to the crash site of MH17 in the interest of the ongoing investigations. The Foreign Affairs Council of 19 January expressed concern over Russian remarks calling into question the independence of the investigation into the circumstances of the crash, emphasised that the investigation is fully in line with ICAO rules and called on all parties to cooperate fully with the investigation. The Netherlands will continue to do its utmost to keep MH17 high on the European agenda. To ensure that the processes concerning MH17 proceed as smoothly as possible, the government ministers involved are in very regular contact with the countries most affected. On 13 April the OVV and the Public Prosecution Service held a briefing at the Ministry of Foreign Affairs for the entire diplomatic corps. The government will take the opportunity to discuss MH17 with various foreign representatives at the Global Conference on CyberSpace on 16 and 17 April.

Evaluation of the crisis organisation by WODC Following a tender procedure, the Research and Documentation Centre (WODC) decided to have a team of researchers from the University of Twente conduct the independent evaluation of the central government crisis organisation in the aftermath of the MH17 air disaster. The team is headed by Professor René Torenvlied, professor of Public Management at the University of Twente’s Public Administration department. The aim of the evaluation is to gain insight into how the national crisis management organisation functioned

AVT15/JU115207B 8 in the aftermath of the MH17 disaster. The results are expected in the autumn of 2015 and will of course be shared with your House. The annexe to this letter gives an outline of the evaluation.

The government remains fully focused on the three previously stated objectives. You will be kept abreast of progress on the priorities in a subsequent letter.

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