Comment by Joseph Wheeler, IALPG: MH17 Annex 13 Report released by Dutch Safety Board

Joseph Wheeler is Principal of the International Aerospace Law & Policy Group (IALPG)

The original article can be found here: http://www.ialpg.com/about-1/news/

13 October 2015: MH17 Annex 13 Report released by Dutch Safety Board

If anyone had any doubt that this much anticipated report would serve as a quasi-criminal dossier then the Dutch Safety Board (DSB) made it abundantly clear that it would not be, starting with the title it gave the MH17 report: “MH17 Crash”. There could be no doubt that this was an air safety investigation report with this controversial and somewhat offensive, in my view, characterisation of the events which unfolded over Ukraine on 17 July 2014.

In short, the report of 13 October 2015 is concerned with why the plane left controlled flight and struck the ground resulting in the death of all occupants – not exactly with who caused a weapon to be fired to accomplish that – just how, and considered reasons as to why that chain of events was permitted to happen.

Analysis in reports such as this, aligned with and facilitated by Annex 13 to the Chicago Convention is limited to examining contributing causes of the accident from an air safety perspective. Thus, those causes typically line up with suitable recommendations to prevent such incidents happening again in future rather than ascribing legal blame

Therefore, it is no surprise that the DSB report focuses on why MH17 should not have been allowed to fly through airspace which could have been closed to civil air traffic altogether, and arguably should have been so prohibited, rather than the much anticipated question of who or which entity caused the weapon to be fired on the aircraft at all. The report considers three simulations done (by Ukraine, Russia and the Dutch) to determine the likely area within which the BUK missile was fired at the aircraft, but falls short of ascribing responsibility to any particular country, group or individual for “pulling the trigger”.

The weapon of destruction

The DSB report confirms the West’s curiosity about the kind of projectile used to down the aircraft – a BUK missile is convincingly demonstrated to have been the fatal medium of destruction (with a warhead described as 9M314M). It is considered to have detonated to the front left (high) side of the cockpit sending hundreds of projectile bow tie and other oddly shaped shrapnel fragments into the skin of the aircraft primarily into the cockpit, killing the flight crew and causing the cockpit to break apart from the aircraft, leading to sudden depressurisation and the mercifully reasonably quick deaths of the occupants. The “crash” was characterised as unsurvivable.

The vexing question of conflict zones

A major theme of the report which is gratifying to have been examined in such detail is the question of civil aviation flight over armed conflict zones. In short, the DSB concluded that almost all operators flew over the dangerous part of Eastern Ukraine without sufficient consideration of the risks involved, and notwithstanding the NOTAMs issued by Ukraine restricting all traffic to increasingly higher altitudes.

Almost all operators flew over the combat zone with no thought that civil aviation was at risk. From 14-17 July 61 operators from 32 states flew above the area and on the day of the “crash” 160 flights operated above until airspace was closed following the tragedy. All operators undeniably considered civil aviation at cruise altitudes in this area were safe from risk.

Sixteen aircraft were shot down in the month before MH17, and Ukraine did not close their airspace when it was responsible for doing so given that there was evidently, in the eyes of the DSB, sufficient risk to justify such an exercise of the state’s sovereign (and thus unshared) power to do so.

The DSB continued that the risk to civil aviation was not adequately identified by ICAO or Ukraine or anyone else.

The clear recommendations about this by the DSB is that states involved in conflict need to put more effort into notifying airspace others about the risk of danger in certain locations; also, operators should be more transparent about the routes they take and the DSB would seek to see changes to regulations internationally to recognise how matters may be improved.

The launch location of the missile

This was considered by the Board and narrowed down to a small area in the east of Ukraine. Shared data with the international team and its own simulations ran by the Dutch and Russians indicate a converging and comparable area thought to have been where the missile was fired from – however, additional forensic work is required to determine launch area and that is for the criminal investigation, being outside the scope of the Annex 13 safety investigation.

Recommendations to ICAO

Overall the report is consistent with a safety investigation in that the DSB really had no choice but to focus on those contributing causes to the “accident” which lend themselves to recommendations to ICAO – ie Ukraine should have done more to control the risks of flying by in its airspace by way of NOTAM which identified the risks and/or closing the airspace altogether, and operators need to be more rigorous with their own risk assessments of where to fly. The airspace remained open for unclear reasons, potentially financial. It was not possible to make recommendations in relation to armed conflicts per se and hence there are no recommendations with respect to the pursuit of or use of weapons within armed conflicts.

The criminal report will take up the matter of the entity which pulled the trigger – that was outside the scope of this investigation.

The three recommendations thus are:

Level 1 – Airspace management in conflict zones

Given that the principle of sovereignty determines that each state is responsible for its own airspace, the DSB recommends thought be given to how better enticements can be given to states to manage their airspace more carefully, coincidental with greater international regulation of airspace by amending the Chicago Convention and its underlying standards and recommended practices to clarify when airspace should be closed.

The flipside to this recommendation betrays a reason why the characterisation of the non closure of Ukrainian airspace on or before 17 July 2014 is not convincing – Art 9 of the Convention permits states to prohibit access to their airspace for reasons of military necessity or public safety (uniformly to aircraft of all states), but, importantly, “[s]uch prohibited areas shall be of reasonable extent and location so as not to interfere unnecessarily with air navigation”. That is an important qualifier and arguably one which makes the actions of Ukraine (legally) reasonable in the circumstances (ie, closing certain altitudes off from civil air traffic, rather than its entire airspace).

In addition, the DSB presents an analysis of the airspace closures or restrictions in other conflict zones around the world demonstrating that airspace restrictions are the usual international practice. This is a finding which suggests against any conclusive indication of airspace closure by Ukraine being the “silver bullet” indirectly suggested by the DSB to have been something which would have prevented the attack, or at least something which was solely to blame.

In a somewhat simplistic characterisation of what may be achievable on this front through and within ICAO internationally the DSB calls for amendments to the Chicago Convention. While it is the case that amendments have been made to the Convention previously (including in relation to the shooting down of civil aircraft with the addition of Article 3 bis, more on which is below) such amendments take a significant amount of time (up to a decade or more). Also, any system which devolves control of sovereign airspace to an external body (even the international civil aviation regulator, ICAO) would necessitate some sharing or informed sharing of sovereignty by states with another actor(s) by virtue of legislating a responsibility to give out sensitive information to other states which the relevant state may or may not even have.

Background on legal concept of sovereignty in international air law

The concept of sovereignty underpins international civil aviation and has since the inception of the Chicago Convention in 1944 and the creation of ICAO at the same time. Article 1 of the Convention states:

The contracting states recognise that every State has complete and exclusive sovereignty over the airspace above its territory.

It is such an important concept that even in areas such as the economic and practical exchange of “rights to fly” by and for airlines between countries, there has been no concluded multilateral solution for these non-controversial, though valuable, rights to be exchanged. It is at best wishful thinking to think that a multilateral solution could be found under the auspices of ICAO for multilateral ceding of sovereignty by all states to ICAO to in some way proactively manage airspace for the purpose of preventing civil flights traversing conflict zones. Even the concept of using ICAO as a clearing house for information from states about conflicts (already being trialled in its Conflict Zone Information Repository website since April 2015) is of limited practical usage.

By way of background Art 3 bis came to pass on 10 May 1984, when ICAO adopted a legal instrument which purported to regulate the law in this area (the Protocol relating to an Amendment to the Convention on International Civil Aviation [Article 3bis]). It entered force on 1 October 1998. This action followed the events of the early 1980s in which unintentional straying into national airspace by certain civilian airliners resulted in military force being used against them (eg, the downing of Korean Air Lines Flight 007 “KE007”). ICAO nations took action to codify the customary international law which already prohibited such uses of force except in exceptional circumstances.

The new protocol was based on a provision in the United Nations Charter and customary principles which prohibit “recourse to the use of force in international relations between States”. In summary, Article 3bis is declaratory in nature and codifies the:

  • obligation of States to refrain from resorting to the use of weapons against civil aircraft in flight;
  • obligation, in the case of interception, not to endanger the lives of persons on board and the safety of aircraft; and
  • right of States to require landing of aircraft in their airspace (without authority) at a designated airport, if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of the Convention.

The shooting down of flight MH17, whether by surface to air missile, and no matter by whom, constitutes a breach of Article 3bis if it was performed by a State actor.

Level 2: Risk assessment

The second recommendation concerns the view of air operators (airlines) and recognises, quite fairly that these should not take it for granted that “open” airspace is “safe”. Improving airlines’ access to information is needed, and yet is also fraught with difficulty given the sensitivity of military information in many cases. As well as availability of threat information the DSB also recommends ICAO and IATA take steps to facilitate better airline risk assessments of where they should fly – by encouraging states to make information they have available in a timely way, and for IATA, to make their own audits include an assessment of an airline’s risk assessment protocols.

The recommendations about sharing information on a platform which promotes exchange of good practice about such risk assessments is in principal positive, as is the Conflict Zone Information Repository website already in place. The practical issue with such mechanisms is take up across the globe and reliability of the information. In my view there is no substitute for an airline’s own assessment informed by whatever it deems necessary to make its decision on where to fly, using especially public information which is clear and widely available and telling about the risks to aviation including to Malaysia Airlines which cannot argue it was unaware of the downing of aircraft in Ukraine in the week and months prior to MH17 traversing that airspace.

ICAO promulgated its first new Annex to the Chicago Convention in late 2013 (on safety risk management – putting together provisions from other annexes about safety risk assessment as a concept and practical tool). It is arguably already incumbent on airlines to be overseen by their states of registry in terms of risk assessments and to include whatever factors are relevant to determining where and when each flight should plan its route.

Level 3: Operator accountability

This particular recommendation perhaps holds the most promise because it focuses more on the practical rationales for commercial aviation rather than regulation which impact on how disparate and sensitive information is shared amongst perhaps conflicting governments and competing private entities (airlines).

The one thing which will prevent airlines flying through combat zones and taking unnecessary or marginal risks is commercial imperative.

If, as the DSB recommends, IATA encourages airlines to be publicly accountable for the routes it chooses then potential passengers will be able to safeguard their own decisions on where to fly by deciding with whom they will fly. This would inevitably mean that riskier carriers would be pushed out of the aviation market, leaving a positive and lasting impact on air safety than legal or regulatory change alone could never achieve.

Conclusions for liability?

The liability of the airline involved in this case is uncontroversial and has been the subject of previous comment. International law dictates the liability of the carrier as strict in relation to compensating families for the loss of their loved ones. The calculation of damages is a complex question and one which cannot be discussed in detail now as the process is ongoing for passengers’ families.

However, the liability of the entity (or entities, be they states or otherwise) which contributed to the destruction of the aircraft is certainly still an issue at large. The DSB report would tend to suggest some responsibility lies with Ukraine but my view would be that that assertion is overly simplistic and denies the reality of the practical context in which aviation decisions are made to control airspace.

It may seem like an example from left field but the world will recall the debacle which resulted from closures of airspace following the Icelandic volcano eruption in 2010. The solution of that dilemma for the future was the creation of operator guidelines for risk assessment leaving the ultimate decision on where and when operators would fly or risk flying near to volcanic ash to airlines themselves – it was a commercial reality that regulation at international level was resisted in favour of an industry solution that left something which could so affect the primary driver of airlines (profitability) in their own hands.

Thus, it is suggested that the third recommendation by the DSB will be the one which prompts airlines to make their risk assessments more carefully than any changes to international standards and recommended practices through ICAO rule changes. Passengers vote with their airfares – and those which take ostensibly dangerous risks with passenger lives will fail to flourish post MH17.

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