The Malaysian Airlines MH17 Incident and Relevant Legislation

Executive Summary The accident of Malaysian Airlines MH17 is considered one of the worst in the history of Ukrainian aviation history and more so in the history of aircraft destructions. The death of 280-odd civilians flying from Amsterdam to Kuala Lumpur on 17th July, has been horrific and has shocked the entire world. The crash took place in Ukraine in an area where political instability had been a concern for few months prior to the date of accident.

After the accident, there were serious implications and it has led to political tensions between Russia and Ukraine. The Dutch Safety Board was the body that is the main investigator for the crash and they have brought out a preliminary report on 9 September 2014, which will be discussed in the report. The final report by the same safety board is expected to come in 2015. The major legislations and annexes relating to the accident in respect of the ICAO Convention is mentioned in the report and also the role of non-ICAO agencies. Introduction Malaysian Airline flight MH17 carrying 283 passengers and 15 crew, was flying from Amsterdam to Kuala Lumpur on 17 July 2014 and was presumably shot down killing all passengers and the crew on board. It is considered as one of the worst air disasters in the history of Ukraine, and also the Dutch history owing to the large number of these passengers being Dutch and it was the third air crash of a Boeing 777, a year after the crash that happened on the way to Kuala Lumpur from Amsterdam. The flight crashed near an area in Ukraine over an area where political tensions had been fuming for quite a period. It was reported by the US Intelligence sources that pro-Russian separatists shot down the plane using a surface-to-air missile from the territory which was controlled by them. However, the Ukrainian Government was blamed for the accident by the Russian government. The Dutch Safety Board is the main investigation board for the accident and they issued a preliminary report on 9 September, the details of which will be discussed in this report. Furthermore, this report deals with the issues faced after the downing of the aircraft and brings out the associated Annexes and documents relating to the accident and the role of non-ICAO agencies.

The aftermath of the accident which has caused tensions between Ukraine and Russia reaching new heights has been explained in the report. History of the flight Malaysian Airlines flight Boeing 777-2H6ER with its operating name MH17 was scheduled to fly to Malaysia from Netherlands on 17 July 2014. It departed from Amsterdam Airport in Netherlands at 10.31 hrs. The flight plan for MH17 was filed by the Airlines and it was approved by air traffic control centres in all regions and according to it, MH17 was to fly at an altitude of 33,000 feet (FL 330) above Ukraine until it reached Dnipropetrovsk where it was to change to an altitude of 35,000 feet (FL 340). As it reached Dnipropetrovsk according to plans, at 12.53 hrs, the air control at that area asked MH17 whether it was able to be at the specified altitude of FL 350 and also avoid collision with another Boeing 777 flight flying at FL 330. The crew wanted to remain at FL 330 and the request was agreed to by the air traffic control by pushing the other flight above. At 13.00 hrs, the flight crew requested for a diversion 20 NM to the left because of the weather conditions, and this request was also approved.

The crew were told by the ATC that FL 340 was not available when that was asked for and hence they maintained at FL 330 for a short period. At 13.19 hrs, the ATC data showed that there was a deviation of 3.6 NM north from the centreline of the approved airway and the crew were directed to change the route. The flight was then transferred to the Russian air control in Rostov-on-Don (RND) and they tried to inform the flight crew about the airfield track at RND, but there was no response from them at 13.20 hrs. Seconds after that, the data from digital cockpit voice recorder and flight data recorder stopped and RND confirmed the disappearance of the flight after it couldn’t be located on the radar. Investigation Investigation is currently done by an international group to understand the reasons for the aircraft crash. The lead has been taken by the Netherlands in conjunction with the co-operation of the Ukrainian government.

The international investigation group comprises 24 investigators including member countries like Australia, the UK, the US, Germany, Malaysia, Russia and Ukraine. Additionally, the Dutch Safety Board (DSB) will independently investigate the choice of the flight route. The investigation was delegated to the DSB by the National Bureau of Air Accidents Investigation of Ukraine (NBAII) because of the fact that the majority of passengers in the flight were Dutch and also due to the reason that the flight’s departure was from Amsterdam Airport. The International Civil Aviation Organisation (ICAO) has supported the DSB in procedures that comply with the standards and recommended practices (SARPs) mentioned in Annex 13. Basically, Annex 13 deals with the Aircraft Accident and Incident Investigation – to the Convention of International Civil Aviation, SARPS are explained to conduct the accident investigation in civil aviation. The area where the accident took place about 500km from Kiev, has been constantly under the radar and monitoring of all NOTAMs and pilots were warned of the risks flying in the region. The UK NOTAM issued several warnings to their pilots such as the possibility of dangerous situations in Ukraine airspace, especially in the regions of the Black Sea, Crimea, and the Sea of Azov.

They warned the UK aircraft operators that Russian and Ukrainian authorities could potentially provide conflicting instructions with respect to air traffic control and that it would be advisable to be avoiding the areas until further notice. As far as Ukraine was concerned, a unilateral course of action covering both International High Seas airspace and its own sovereign airspace, contradicted the ICAO Annex 11 standards. It continued to provide Air Traffic Services (ATS) in the designated airspace and Russia also provided ATS in the same airspace. Hence, Ukraine NOTAM issued messages and prohibited the area over the Crimean peninsula for operations below FL290 and closed various routes, and Russian NOTAM directly conflicted with them. In effect, confusions and conflicting attitudes by sending the ATC instructions, had occurred in the particular airspace. In accordance with paragraph 7.1 of ICAO Annex 13, a preliminary report was presented by the Safety Board on 9 September. This preliminary report provides an overview of the initial, provisional facts. The report has been sent to ICAO for consideration. ICAO president Aliu remarked that ICAO is encouraged to see that the MH17 investigation is proceeding with the productive collaboration of accredited international representatives.

Investigations into the circumstances of the accident will be co-ordinated by Netherlands and they will be in charge for the conduct of the investigation in accordance with the laws of Chapter 5 of Annex 13 to the Chicago Convention. The Netherlands will ensure the participation of other parties concerned, in particular Ukraine as the State of Occurrence, Malaysia as the State of Registry, the United States of America as State of Manufacture and the International Civil Aviation Organization (ICAO). The Netherlands will communicate the report and findings to the concerned states. Ukraine will use every means available to facilitate the investigation The paragraph 7.1 of Annex 13 also states the need for the State doing the investigation to send the preliminary to the other main parties that are involved such as the State where the airline operator is from, the State where the aircraft is registered, or the State where design and manufacturing of the aircraft were made. Annex 13 mentions that the States of operator, registry, design and manufacture all have the right to appoint an Accredited Representative to the investigation. All the facets of the investigation shall be participated in by the Accredited Representative with assistance from their investigators or advisers. The Accredited Representatives of the Sates that participate in the MH17 are Australia, the United States of America, the United Kingdom, Malaysia, the Russian Federation and Ukraine and the preliminary report was submitted to these investigators for review.

The suggestions of all the representatives were assessed by the Dutch Safety Board and appropriate amendments were made to the report. In Article 1 of the Chicago Convention, it is defined that the States are sovereign in the airspace over their territory and article 28 obliges them to provide air navigation facilities to account for air navigation at the international level. Article 9 of the Convention describes the airspace over a country which can be made “controlled” or “restricted” or “prohibited”. With respect to Ukraine, there were restrictions placed on its territorial airspace in order to satisfy conditions of the military and to safeguard the safety of the public, which required civil aircraft to fly above the three dimensional airspace area.

Malaysian Airlines has not changed their view that they flew lawfully above the airspace restricted by Ukraine. It could still be argued that the flight was inside the restricted area or above the that was reasonable or not but the main discussion is that the dangers of flying within or anywhere near that zone was still known in advance and MH17 should have been more proactive in dealing with such warnings. Currently, airlines’ decision to fly rests with themselves after receiving risk assessments owing to loopholes in the international laws and agreements. Recently, airline regulators under ICAO have called for taking control of the informing airlines about the potential warnings about dangerous airspace but this is highly unlikely to happen in the near future given the inadequacies of the law permits under the Chicago Convention. According to the paragraph 3.1 of ICAO Annex 13, “The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability”. The preliminary reports released by the DSB only describe the factual details of the accident and it does not analyse the larger picture that explains the contributing causes. An accident reporting database system is maintained by ICAO known as Accident/Incident Reporting or “ADREP” system through which details analysed from investigations conducted and those which are of absolute importance to prevent accidents in the future, are shared among the worldwide Contracting States. The European Union “ECCAIRS” (the European Co-ordination Centre for Aviation Incident Reporting System) designed the program platform that is used in ADREP system. As per the SARPs, in the case of criminal activities, the inferences from a technical investigation report is not deemed to be used. It is required that an independent judicial investigation be held by the competent prosecution and police and it is possible that this could prove to be an important factor during trials where the investigations by the board could lead to an expert witness at the hearing in the court.

The European Counsel proposed EU Directive 94/56 through which it is required for all member states to form an independent accident investigation board so that the board is not partial and so not to compromise on the findings of the board. This was done so as to eradicate any chance of conflicting interests that may occur when a government body is the investigation board. Article 26 of the Chicago Convention puts Ukraine with the responsibility to conduct the crash investigation .Paragraph 5.1 of Annex 13 states the rule for the State where the accident occurs, to be responsible for conducting the investigation of the accident but it also mentions that either a part or the entire investigation to be conducted may be delegated to another State through mutual co-operation and agreement. Ukraine, being the State of Occurrence, was actually required to be taking responsibility for the accident investigation, but it filed a written petition to the ICAO requesting them to delegate the responsibility to the DSB and a team of technical advisers and accredited representatives under them. This agreement took place on 23 July 2014. The international team consisted of representatives of the State where the accident occurred (Ukraine), State where the aircraft design and manufacture took place (the United States of America), the State of Registry and Operator (Malaysia), State where the engine design and manufacture was done (the United Kingdom), State that provided information on request (Australia, Russia) and the ICAO. AFTERMATH OF MH17 The Ukrainian government’s attitude of not seriously following the obligations of the Chicago Convention and the ICAO regulation DOC 9554/932, led to the MH17 crash. Article 3bis of the Convention states that the signatories “refrain from resorting to the use of weapons against civil aircraft in flight” as this kind of behaviour deviates from the required norms and standards that regulate cross country interactions. As a result, no country has the right to use ongoing military confrontation on its territory to attack any civil or commercial aircraft. In addition to this, ICAO in its Safety Measures manual, defines “the responsibility for initiating the co-ordination process rests with the States whose military forces are engaged in the conflict,” in accordance with paragraph 10.2 of the respective international agreement.

Hence the safe journey of the MH17 flight could have been achieved if it was co-ordinated properly as per the manual. FINDINGS FROM THE REPORT There were no controversies regarding the choice of flight level and the flight plan description set to be used by the corresponding ATC authorities for MH17 and this was confirmed from aeronautical sources that the aircraft was flying in an unrestricted area outside the restricted airspace mentioned by the Ukrainian NOTAMs. The report also indicated that there was no question of the qualifications and experience of the flight crew as they had proper licensing and medical certifications to operate the flight. The airworthiness requirement of the aircraft had also been through a maintenance overhaul in 2013 and an inspection in the following year, so that was also discarded as a cause of the accident. As per the report, there was no evidence of cockpit voice and flight data recorders being manipulated or any malfunctioning of these found by the DSB. Furthermore, there were no engine issues and the last known altitude, flight path and the cruise settings of the engine were understood to have progressed without any problems. The main cause of the accident was found to be objects of high energy impacting and penetrating the aircraft. Aftermath of the accident The United States said that the plane was brought down by a ground-to-ait missile fired by the rebels armed by Russia. Russian President Vladimir Putin blamed the Ukrainian Government for the loss of the innocent civilians. He was of the view that the political tensions in Ukraine had been the major cause of this tragedy.

This accusation led to both Putin and Sergei Lavrov, who is the foreign minister for Russia, to put steps forward for a thorough international investigation. At the present situation, it appears that the plane was shot down by a missile fired by a system designated “Buk” in the Soviet Union which are now co-owned by Ukraine and Russia. Ukrainian armed forces is bearing the brunt of the Russian defence ministry because they believe that the Buk systems were used in parts of Donbass controlled by Kiev. Tensions have soared high between Russia and Ukraine after that with the prediction of Russian experts that Ukraine possibly prepared to gun down a Russian aircraft if war occurs. Role of non-ICAO agencies Ukrainian State Air Traffic Service Enterprise (UkSATSE) issued NOTAMs adding a restricted area over the current one from FL320 to an unlimited altitude on 17 July 2014. On the next day, it issued another NOTAM to increase the restricted area size and also put a limit from the surface to an unlimited altitude. A meeting was arranged on 29 July 2014 and ICAO along with Civil Air Navigation Services Organisation (CANSO), Airports Council International (ACI) and International Air Transport Association and the outcomes were discussed with regard to risks associated with civil aviation due to various conflict zones and that ICAO along with its partners decided to:

• set up a task force at the senior-level comprising industry and state experts in order to resolve the issues relating to national security and civil aviation in general and also gather and disseminate information in an effective way.
• submit the findings of the task force immediately to a special meeting of the ICAO Council for action.

A high level conference along with all 191 member states of ICAO will be convened by ICAO in February 2015. IATA has asked ICAO to address two main tasks. Firstly, it is required to ensure that necessary and relevant information be provided to the airlines by the government in order to assess the risks posed by various threats in an efficient way. It is absolutely important to pass accurate data or information as the risks associated with this is time-critical. One such example of information that was not provided properly was that flights going above Ukraine’s airspace above 32,000 feet would not create problems.

This guidance proved to be wrong and so threats to aircraft, crew and passengers need to be minimised by the State by passing consistent and accurate information to the airlines. Secondly, it is required to control the design, manufacture and usage of anti-aircraft weapons. These powerful weapons are in the hands of non-State entities and international convention or law does not account for such form of ammunitions and MH17 brings out the limitations in the international system that must be rectified. Conclusion The MH17 accident was the worst incident in the history of Ukraine with a large number of passengers killed. It has posed serious questions on the future of the airlines especially because it happened just few months past the disappearance of the other MH370 flight. The initial part of the report focussed on how the crash occurred and detailed information about the timeline of the entire crash episode was provided. The various inferences and conclusions derived from the investigations carried out by the Dutch Safety Board were then analysed. The findings from the preliminary report were explained and the various circumstances that lead to the accident and its aftermath, in respect of the ICAO Convention and all the legislations covering the accident such as Annexes and Articles of the Chicago Convention were explained in detail.

The role of non-ICAO agencies is also important in disseminating quality information after risk assessment so that accidents could be prevented in the future.

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