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06.09.2019 | Halya Coynash

MH17 suspect release incriminates Russia, but leaves Ukraine compromised

Volodymyr Tsemakh from the video archived by Bellingcat
   

Russian President Vladimir Putin did not try to conceal the link between Ukraine’s release of key MH17 witness (or suspect) Volodymyr Tsemakh and the release of Ukrainian hostages held in Russia.  Within minutes of the Kyiv court ruling, Putin announced that negotiations between Russia and Ukraine on a release “are entering the final stage”. He said that the exchange would be major, and would “play a positive role in normalizing bilateral relations”.  Russian propaganda media are producing carefully edited versions of who Tsemakh is, yet it is undoubtedly incriminating that Russia should have made its handover of Ukrainian political prisoners and 24 PoWs contingent on the release of a man implicated in the downing by a Russian BUK missile of Malaysian airliner MH17 on 17 July 2014.  It appears that the Kremlin believes the cosmetics of the situation are less important than preventing Tsemakh’s testimony in an international court.  Putin may be right, since the outrage when the news broke on 5 September was largely directed against Ukraine for freeing Tsemakh, with western media presenting the news as being about Ukraine, not Russia, obstructing justice over MH17.

Tsemakh was captured on 27 June 2019, in an extremely dangerous operation carried out by SBU Ukraine’s Security Service] officers.  This was in itself an important capture due to Tsemakh’s role as commander of an ‘air defence’ unit in militant-controlled Snizhne which had been involved in downing Ukrainian military transport planes.  He was formally charged under Article 258-3 of Ukraine’s Criminal Code, with creation of a terrorist organization,  It was clear from the outset, however, that Tsemakh was a vital witness and, perhaps, suspect, in the investigation over the downing of MH17.   Bellingcat has archived a video in which Tsemakh seems to admit to playing a role in the attempt to conceal the BUK missile launcher after it became clear that a passenger airliner had been downed, and not the Ukrainian military transport plane that the militants boasted of downing, with this immediately and widely reported on Russian TV.

It seems clear that Tsemakh could have provided invaluable testimony at the court hearing due to begin in Holland in March 2020. 

Russia has, in general, shown interest in returning only those Russians who could otherwise provide incriminating testimony, and it is quite likely that Tsemakh was always planned to be part of any exchange agreement. 

This, however, was first reported on 30 August after a night of wildly inaccurate reports in the Ukrainian and independent Russian media, and on social media, suggesting that Ukrainian political prisoners were already on their way home.  The real source of what proved to be false information remains unclear, but by the following day, reports emerged, suggesting that Tsemakh’s inclusion in the list was the stumbling block for any exchange.

By 2 September, there was a report in the reputable Dutch NRC, saying that the Dutch Prosecutor had asked Ukraine not to hand over Tsemakh who was identified as a suspect in the MH17 investigation.  Then on 4 September, a letter from 40 European Parliament deputies was sent to Ukrainian President Volodymyr Zelensky noting that Russia had demanded that Tsemakh be involved in an exchange of prisoners.  The authors write that they appreciate the context within which the negotiations are taking place, but stress that Tsemakh is a suspect in the MH17 investigation, and he must be available for questioning by the Joint Investigation Team [JIT].  He is also a Ukrainian citizen and is in Ukrainian custody.

It is the latter point that makes Tsemakh’s release by the Kyiv Court of Appeal on 5 September so disturbing.  Tsemakh was freed merely on an undertaking to appear at court hearings, without even an electronic bracelet.  The move was strongly opposed by the prosecutor who pointed out the danger, not just that Tsemakh could abscond, but that he could be killed.  He refused to comment on rumours that Tsemakh was to be part of an exchange, saying that this was a political question, outside of his competence.

Russia has expended huge effort and expense over the last five years to deny any involvement in MH17 and for it to now seek a Ukrainian citizen wanted over the illegal transportation back to Russia of the BUK missile launcher used to down MH17 seems like a damming admission of guilt.  One Russian with incriminating information about Russia’s invasion of Crimea and war in eastern Ukraine, Dennis Voronenkov has already been gunned down in the centre of Kyiv, and Tsemakh would not be the first Donbas militant to die a violent death not in battle.

The only thing that seems near certain, unfortunately, is that his release on 5 September was, in one way or another, aimed at preventing him from testifying at any trial over MH17.  It can only be hoped that the JIT investigators have already managed to question him. 

Russia is currently holding around 120 Ukrainian political prisoners in occupied Crimea or Russia.  This includes 24 seamen, seized after Russia attacked three Ukrainian naval boats near Crimea on 25 November 2018.  The latter are prisoners of war, in accordance with the Geneva Convention, and Russia was ordered by the International Tribunal for the Law of the Sea on 25 May this year to release the men.  They remain in custody despite the ITLOS ruling being binding and one which Russia cannot afford to ignore for long.

That is important to bear in mind since the planned exchange appears to be of these  24 seamen, as well as up to 10 or 11 other political prisoners.  The latter are believed to include Ukrainian filmmaker Oleg Sentsov and some others, but not one of the over 60 Crimean Tatar political prisoners.  What kind of ‘normalization of relations’ can be possible when so many political prisoners remain incarcerated, and when Russia’s occupation of Crimea continues? 

Many of Ukraine’s western friends do understand the dilemma that Ukraine is in with so many political prisoners held by Russia, as well as hostages and PoWs held by the Russian-controlled militants in Donbas. The problem, however, is akin to that faced by governments dealing with terrorists. In this case, Russia itself and / or its leaders are implicated in a monstrous crime, and Ukraine was not free to hand over a person suspected of involvement in that crime.

While everybody (except Moscow) wants the Ukrainian political prisoners, or at least some of them, to be free at last, it is not at all clear that the prisoners themselves would approve of such a deal.  Sentsov is among the political prisoners who have spent the longest in Russian captivity.  It is for him to state his position now, however back in 2016, he wrote the following:  “There is no need to get us out at any price – that won’t bring victory any nearer. Use us as a weapon against the enemy – that yes.  Be aware that we are not your weak point.  If it’s intended that we become the nails in the coffin of the tyrant, then I would like to be such a nail.  Just remember, that this nail will not bend.”

By helping Russia to avoid accountability for MH17 and other crimes, as well as to create the impression that it is making concessions, Ukraine’s leaders could help those countries who are seeking to end sanctions against Russia.  Since there is no let up in the latter’s persecution of Crimean Tatars and other Ukrainians in occupied Crimea  nor of its aggression against Ukraine in Donbas, any such removal of sanctions would be a disaster.

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