MH-17 Trial: U.S. Satellite Imagery and Foreign Confidential Intelligence in a Public Trial

[Alexander Wolffenbuttel is a Ph.D. student in International Law at the Graduate Institute Geneva. He is a former legal consultant at the International Criminal Court and a former apprentice at Sjöcrona van Stigt advocaten defending Oleg Pulatov. The opinions and comments expressed in this publication are those of the author.]

Photo credit: BBC

MH-17 Trial: U.S. Satellite Imagery and Foreign Confidential Intelligence in a Public Trial

On the 9^th of June 2020, the Public Prosecution Service (PPS) in The Netherlands demonstrated that it had submitted several requests for mutual assistance to the United States (U.S.), The Russian Federation, and China for satellite imagery. In the case of China and the Russian Federation, these requests were mostly futile; however, the U.S. did have information on the detection of missile launches, the so-called “early warning systems.”

The request for mutual assistance was a consequence of several public statements that were made with regard to the MH-17 flight accident by the U.S. For example, the American Secretary of State confirmed on the 20^th of July 2014 that:

“We detected a launch from that area, and our trajectory shows that it went to the aircraft.” The Director of National Intelligence confirmed this information and stated in writing that: “At the time that MH17 dropped out of contact, the US Intelligence Community detected an SA-11 surface to air missile (SAM) launch from approximately six kilometers south of the town of Snizhne in Eastern Ukraine.”

Legal Framework for Secret Intelligence Used in Court

During the session on the 9^th of June, the Dutch PPS clarified that it had been given the opportunity to verify the statement by the Director of National Intelligence on the basis of secret sources. Such testing of the correctness of a statement with underlying secret sources, according to the PPS, is based on Article 66, Paragraph 4, of the Law on the Intelligence and Security Services 2017. This Dutch law provides that “Upon a request by the designated member of the Public Prosecution Service, access will be given to all information on which the notification is based which are necessary for the assessment of the accuracy of the notification.” This means that underlying secret sources from a statement by the National Intelligence Services in The Netherlands can be corroborated by a member of the Dutch PPS.

The PPS in The Netherlands claims that on an “exceptional basis,” the National Public Prosecutor for Counterterrorism, Intelligence and Security Services was offered the same testing of underlying secret sources by the U.S., as provided for in the Law on the Intelligence and Security Services 2017. According to the Prosecutor, the written statement by the Director of National Intelligence finds support in the classified and unclassified secret sources that he was shown during an intelligence briefing with several U.S. officials.

In its reaction on the 26^th of June to the Defense request to hear Stolworthy from the Office of the Director of National Intelligence concerning the written statement, the PPS mentions that not all underlying sources could be seen anyways by the National Public Prosecutor for Counterterrorism, Intelligence and Security Services. For this reason, the PPS emphasizes that as a result of this deficiency in the evidence. “[the] court will have to take this into account in your assessment.” Thus, the probative value of the evidence provided in the written statement by the Director of National Intelligence was reduced by already stating that not all underlying sources could be scrutinized. On the same day, Judge Steenhuis asked the PPS whether any requests for satellite imagery had been made to the U.S. after 2016 (June 26^th session, 2020), and this was not the case. The decision of the court on the 25^th of November 2020, mentions that the hearing of Stolworthy is pending depending on the results of the mutual assistance request for satellite imagery that has now again been sent by the examining magistrate to the U.S.

Analysis: Confidential Intelligence in a Public Trial

The new push from the examining magistrate to obtain satellite imagery from the U.S. can be explained by the legal precedent of not allowing foreign secret intelligence, unverifiable to the Defense, to be used as direct evidence in court. The fear of adaptation strategies by adversaries leads to the country providing the evidence not wanting to reveal its methods of gathering intelligence to the wider audience, and consequently it is impossible for other parties such as the Defense to verify the intelligence.

A previous example of adaptation strategies when learning of secret intelligence gathering is the issue of predator drones used in the former Yugoslavia. Once armed groups realized that the drones observed them, Mi-8 HIP helicopters shot down the drones. Another example of adaptation concerns the Bosnian Serbs realizing the importance of the evidence that satellite imagery can provide, and as a result waiting for weather patterns that could obscure the imagery or using locations that would be hard to detect by satellite imagery. (For these and other examples, see Secrets in Global Governance: Disclosure Dilemmas and the Challenge of International Cooperation by Allison Carnegie and Austin Carson.)

The MH-17 trial has demonstrated that the U.S. has been fearful of adaptation strategies being utilized by adversaries. The PPS stated that:

“At the same time, we must be realistic and understand that the United States, like other states, has a great interest in keeping its military instruments for detecting missile launches confidential.”

The PPS further expanded on the possible adaptation strategies by adversaries and commented that:

“If the enemy becomes familiar with the operation of an early warning system, that system can be bypassed. It is, therefore, not surprising that the United States has remained reluctant to grant access to the metadata of the detection of a Buk missile.”

One of the approaches identifiable at the ICTY is that confidential intelligence information can be used solely for the purpose of generating new evidence (Rule 70, Rule of Procedure and Evidence ICTY). The initial information and its origin cannot be disclosed by the prosecutor “without the consent of the person or entity providing the initial information.” Rule 70 provides that the initial evidence cannot be used in court if not disclosed to the accused, though the information newly generated from the initial evidence can be so used. In a similar manner, Article 54 of the Rome Statute states that information that the Prosecutor obtains “solely for the purpose of generating new evidence,” must be kept confidential and not be disclosed unless the provider of the information consents.

Defense counsel van Eijck mentioned on the 26^th of June (June 26^th session, 2020) that the bilateral treaty on mutual assistance between The Netherlands and the U.S. contains a provision on confidentiality of intelligence derived from a mutual assistance request. Such evidence cannot be used when “disclosure is necessary as evidence in a public trial.” Thus, the mutual assistance agreement seems to hint at the verification of evidence by other parties in the process, and that if this is not possible the evidence can merely be used as lead evidence to other evidence used during the trial. The Dutch PPS, even though it acknowledged deficiencies in the evidence derived from the Director of National Intelligence, departed from precedent at the ICTY and the ICC by seeking to use a written statement with underlying non-disclosed confidential intelligence that is merely verified by the PPS itself.

When using confidential intelligence in a public trial, it is important to have the evidence and those providing the evidence be tested and verified by other parties in the process. The European Convention on Human Rights provides for certain fair trial rights in Article 6, including the right to confrontation by the Defence to test the reliability of witness evidence. When the source of information cannot be verified, the reliability of the evidence cannot be tested. It is of utmost importance that foreign confidential evidence, such as the evidence provided by the Director of National Intelligence, if not verified by the Defense, is used solely as a lead for further public evidence presented during trial.

The Trial Continues

On the 1^st of February 2021, Judge Steenhuis mentioned (February 1^st session, 2021) that the examining magistrate request for satellite imagery had “led to a response,” but that, to date, the request had not yet been completed. The trial continues on May 21^st and the satellite imagery will remain an important topic during this process. The international community would do well to stay up to date on this case.