October 16, 2015

On October 13, 2015, the Dutch Safety Board published its report on the crash of Malaysia Airlines flight MH17 over Hrabove, Ukraine. The report says that the crash of flight MH17 on July 17, 2014 was caused by the detonation of a 9N314M-type warhead launched from the eastern part of Ukraine using a Buk missile system. The 279 page report contains extensive technical detail on various aspects of the crash but it does not address questions of blame and liability. Yet, some see it as a vindication of their claims as to those responsible for the disaster. Others contest part, if not all, of its findings. There are accusations, rebuttals and counter-accusations. With the Ukraine conflict far from settled this is only to be expected.

Starting from the day of the disaster, discussion regarding the downing of MH17 has generally focused on the exact location where the missile was fired from since this could make it a lot easier to put the blame squarely on one side or the other. If one is to assume that MH17 was flying on an internationally designated air route deemed safe for civilian flights this is indeed logical. But the report by the Dutch Safety Board also addresses “the situation in the eastern part of Ukraine and signals for civil aviation” during that period, adding substance to earlier criticism regarding air safety over the conflict zone.

According to the report, the Dutch Safety Board has examined the extent of the availability of aeronautical information that could have signaled increasing deterioration of the safety of the airspace above the eastern part of Ukraine. Here are some of their findings:
• Following her annexation of Crimea on March 18, 2014, Russia issued NOTAMs (notice to airmen) for the Simferopol FIR (Crimea). Ukraine rejected these. The led the ICAO to advise Member States to give consideration to measures to avoid the airspace and circumnavigate the Simferopol FIR with alternative routing. (Simply put, this was an extension of the dispute regarding sovereignty over Crimea.)
• The US Federal Aviation Administration (FAA) published a NOTAM on March 4 and warned operators and airmen that were flying to, from or over Ukraine to be careful in connection with potential instability. The NOTAM referred to an increased military presence in the airspace over Ukraine and in the vicinity of military aerodromes; warned that flight operations in the Ukraine, particularly Crimean region, may be exposed to military activity; and, advised extreme caution.
• On April 3, the FAA issued another NOTAM which contained a warning related to all other Ukrainian FIRs.
• NOTAMs published by the Ukrainian authorities regularly closed parts of eastern Ukrainian airspace or restricted their use for brief periods of time.
• During the period between the conflict breaking out in the eastern part of Ukraine in April 2014 and the day of the crash of MH17 on July 17, a number of Ukrainian military aircraft were shot at (mostly from the ground).
– On April 22, a Ukrainian Antonov military aircraft was shot at during flight above Slavyansk.
– In June and July, Ukrainian transport and fighter aircraft were downed as well as helicopters, in some cases with a significant number of fatalities.
– On July 14, a Ukrainian Antonov transport aircraft was downed at Luhansk region killing two members of the crew.
– On July 16, a Ukrainian Sukhoi Su-25 fighter jet was shot at in the Donetsk region.

The Dutch Safety Board consequently says: “…it is clear that between April and July, the armed conflict in the eastern part of Ukraine was continuing to extend into the air. Ukrainian armed forces aeroplanes and helicopters conducted assault flights and transported military personnel and equipment to and from the conflict area. The armed groups that were fighting against Ukrainian government attempted to down these aeroplanes. In May 2014, mainly helicopters were downed, while in June and July also military aeroplanes were downed, including fighter aeroplanes.”

There has been never any doubt that MH17 was downed by a missile and the Dutch Safety Board report confirms that. It is totally understandable that the countries of the victims and others demand that those responsible for this crime be brought before justice whatever its wider political implications. The sad reality is that this is not going to happen any time soon. But there is the civil aviation aspect of the downing of MH17 which is no less disturbing. The international community and its institutions designed to ensure the safety of aviation have dismally failed in this tragedy. In spite of concrete evidence regarding growing instability over eastern Ukraine with aircraft being fired at or downed, international mechanisms have proven inadequate in taking necessary steps to close the area to civilian air traffic and thus preventing a disaster situation. This may be due to inadequate international procedures and ineffective international cooperation. But whatever the reasons, flight safety over conflict zones has now become a priority issue for the international community and its relevant agencies. The recommendations by the Dutch Safety Board offer good advice for launching a new endeavor to address the problem.