The Finnish Investigation

One of last week’s major stories was the Joint Investigation Team (JIT) presenting their ‘interim results’, again confirming what has been seen as the most likely explanation since the immediate aftermath of the 2014 tragedy: that MH17 was brought down by a Russian-supplied Buk-M1 surface-to-air missile. I won’t discuss the details here, as they have been given in a number of different forums, including by Bellingcat as well the earlier investigative report and now the JIT. Suffice to say, the amount of evidence found in both open and non-open source has reached such levels that the question of whether a Russian supplied Buk shot down MH17 can now be considered a litmus test for whether you are under the influence of Russian propaganda or not.

For Finland, the interesting part came when Dutch newspaper Telegraaf broke the story that Finland had provided data and performed secret tests on our Buk-missiles, which are of the same M1-version as the TELAR used for downing MH17. To begin with, this ‘important contribution’ by the Finnish authorities was cheered by Finnish media (#Suomimainittu), but the party was cut short by the announcement that JIT had in fact not been allowed by Finnish authorities to see the evidence. This in turn caused a minor uproar that was rapidly shaping into a political storm when the Finnish President called a press conference on the issue.

But first, let’s rewind to how the by now infamous SAM-system ended up in Finland. By the end of the Cold War, the Soviet economy was in a very poor shape. This was also seen on the clearing accounts which formed the basis for Finnish-Soviet trade. Under this system, anything exported by Finland was ‘cleared’ from the account when items to a corresponding value were imported by Finland from the Soviet Union. When the Soviet Union disintegrated, the Soviet balance sheet was squarely in the red, i.e. the Soviets owed Finland goods. During the years since, this has gradually been paid off as goods, services, and cash payments, until the last payment was made three years ago.

One of the early payments was the Buk-system, which arrived in Finland in the mid-90’s and replaced the earlier (and outdated) Soviet-made S-125 ‘Neva’ (SA-3 GOA), local designation ItO 79. The Buk-M1 was introduced under the ItO 96-designation (now ITO 96), and served for roughly a decade until concerns over its vulnerability to countermeasures caused its gradual withdrawal in favour of the medium-ranged NASAMS II (ITO 12). The last batch of conscripts trained on the system in 2005, but the system was scheduled to remain in service at least for a further ten years.

Fast forward to 2014, when the Dutch prosecutor’s office contacted Finnish authorities and asked for technical assistance as part of the criminal investigation into the fate of the MH17. Exactly which Finnish authority received the request is unclear, but eventually a small circle of top politicians were the ones who made the decision on whether to answer the call or not. The decision was made to collaborate with the Dutch prosecutor’s office in full,  and to keep the cooperation secret from the general public. The last part was due to the Dutch authorities requesting that this would be the case, and was not seen as anything unusual given the circumstances. Evidence gathering is a tricky matter even in a ‘normal’ case, and as such it was understood that the cooperation would not be disclosed until during the eventual trial, at the earliest.

All this was revealed during the press conference, where the President stressed that the decision was not taken lightly. The acquisition document of the Buk, which isn’t public, forbids the disclosure of information concerning the system to third parties. This was then weighted against the UN Security Council Resolution calling upon all parties to provide any requested assistance to the investigation(s). During the investigation a number of requests have been made, with the most ‘special’ one probably being the request to detonate a warhead and collect part of the shrapnel (contrary to some reports, no missile firings seems to have taken place). This was done in an undisclosed location in Finland by the Finnish Defence Forces in the presence of Dutch officials, and the requested shrapnel was handed over to the Dutch authorities.

Key to the story is that throughout it was the Dutch prosecutor’s office that was in contact with the Finnish authorities. According to president Niinistö, Finland has handed over all information requested by the Dutch authorities, and at no single point have the investigators expressed any kind of disappointment that the data wouldn’t have been thorough enough. The current issue came about as a result of the Dutch prosecutor asking permission that the evidence be handed over to JIT. The letter which requested this did not include any time frame for when the answer was needed, and as such it was decided to send a small committee over to the Netherlands to discuss how this change had come about, and exactly which part of the evidence was needed (the president confirmed that it was preferred and legally more straightforward to cooperate with the prosecutor’s office rather than the JIT). Before the Finnish administration had had time to put their plan into action, the JIT published their interim report and the fact that Finland was involved was leaked.

The President was clearly not happy with how the Finnish actions had been portrayed in the media, or with the fact that the Dutch had leaked the info after being the ones who originally requested secrecy.

Enter the follow-up discussion on what the press conference meant, and how Finland’s reactions should be seen (especially in the light of our relations vis-a-vis Russia).

Some have been quick to argue that there are traces of Finlandisation all over the handling of the issue. The simple fact that the decision to supply the evidence was taken by the political leadership and not by the officials normally handling these kinds of requests point in this direction, as do the continued emphasise on how hard the decision was due to the acquisition document forbidding this kind of information sharing. The critics also point to the fact that Finland did inform the Russian authorities of the request for evidence and that we were going to collaborate with the Dutch investigation. ‘We told no-one, except the Kremlin’, does indeed have a somewhat bad ring to it.

On the other hand, there are also a number of issues here that point directly in the opposite direction, perhaps the main point being that Finland decided to inform Russia that we were going to disclose technical details of their SAM system to an investigation that quite likely was going to result in Russian citizens being charged. The key word here is ‘informed’, the government never asked for permission, something the president clearly stated had been decided against when asked about the issue. The investigation has also spanned over the latest set of parliamentary elections, showing that there is broad support for it to continue.

(A third point of view was the pro-Russian trolls who now argued that this shows that the JIT isn’t trustworthy and that the ‘true source’ of the bow tie-shaped fragments now has been revealed. As noted, the disinformation campaign on the MH17 has long since lost all its credibility.)

I am personally a bit torn over the issue, and felt the beginning of the presser emphasised how hard the decision was a bit too much considering the nature of the issue. On the other hand, I find it hard to be too shocked over the fact that the request for assistance wasn’t dealt with as a run-of-the-mill case. It should be noted that as the original acquisition deal for the Buk-missiles was handled through the government-to-government discussions on the clearing account, the ban on publishing the information is not a buyer-supplier NDA, but most likely part of a government-to-government agreement. Pointing to this is also the fact that it indeed was the president and the Foreign Minister who hosted the press conference, showing that this was dealt with as a matter of foreign policy and not one of a strictly legislative nature.

There has also been discussions regarding if the information handed over to the Dutch actually included such data that was covered by the ban in the first place. This is all pure speculation, as no-one in the public has seen neither the acquisition document nor the details on what information has been requested. However, my personal opinion is that if the information was indeed of such a nature that the Dutch prosecutor needed to get it from an operator of the system, it is also likely to be covered by the secrecy clauses.

In the end, while the exact pattern of decision making might or might not have followed the letter of the law to the point, the whole issue was probably best described by FIIA’s Mika Aaltola who noted that the whole issue is a “storm in a teacup”. This has been further confirmed by the Dutch Foreign Minister Koenders apologising to FM Soini for the leaks, as well as by the chair of the JIT, Gerrit Thiry, who clarified that it certainly wasn’t his intention to criticise the Finnish authorities, but that it was an unfortunate misunderstanding between the Finnish journalist and the Dutch police making the statement. Thiry is extremely satisfied with the assistance provided by the Finnish authorities, and as such everything is back to normal.