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Dangerous Skies: MH17 and the Culpability of Civil Aviation

It shows a degree of poor sight from a civil aviation perspective, but disturbingly, the refusal on the part of Ukrainian authorities to heed concerns that the airspace in the eastern part of the country should have been closed to civilian aircraft prior to the downing of Malaysia Airlines flight MH17 last year was always a telling point. The reality of military losses inflicted by surface to air weapons systems was already a pressing reality.

The release of the Dutch Safety Board report at the Gilze-Rijen air force base by Tjibbe Joustra capped off a day of duelling theories, though these did not dispute the role played by a missile in the destruction of MH17. Hours prior, the state-owned Russian arms manufacturer Almaz-Antey had given its own, heavily simulated variation about what it claimed took place. Yan Novikov, the company’s director, suggested that, “The results of the experiment completely dispute the conclusions of the Dutch commission about the type of rocket and the launch site.”

Earlier, Mikhail Malyshevky claimed that MH17 was “definitely” downed “by a 9M38 from the area of Zaroshchenske village,” making the missile one of older vintage that had been decommissioned by the Russian forces in 2011. The Safety Board report suggested that the projectile was a later 9N314M BUK.

Despite Russian consternation at disputes over the missile system used, and the contested suggestions that it was launched from rebel-held territory, the overwhelming sense here was that such commercial airliners should not have been flying over eastern Ukraine at the time. Even at the time MH17 was shot down, publications such as Der Spiegel noted how crowded that particularly route was. According to Joustra, there were 32 countries still sending their airliners through the airspace. “MH17 was one of the 160 flights that operated there.”

The Chicago Convention on International Civil Aviation, also cited by the Dutch Safety Board report, makes it clear that responsibility for aviation safety is the preserve of the sovereign state in question. As the chief executive of the International Air Transport Association, Tony Tyler, explained last year, “Airlines depend on governments and air traffic control authorities to advise which air space is available for flight, and they plan within those limits.”

Ukrainian aviation authorities were certainly not going to restrict commercial flights, which provide overflight fees exacted similar to road tolls. The cash incentive, one made more pronounced by Ukraine’s poor finances, tended to take precedence over airline safety.

The other obvious point here is the commercial airline industry itself. Judgment here was deferred to decisions made by Ukrainian authorities, despite mounting evidence that increasingly powerful weapons were being deployed in the conflict. The same guidelines had been also approved by the International Civil Aviation Organisation and the IATA – a closure of that airspace to commercial flights was never encouraged.

This did not stop flight thresholds from being used, an implicit admission that the threat was real. These were lifted from 26,000 feet to 32,000 after the downing of a military cargo jet at 21,000 feet. Evidently, some airlines heeded this as a dire warning, and were conspicuously absent on the routes. “During the period in which the conflict in the eastern part of Ukraine expanded into the airspace,” noted the DSB, “neither Ukraine nor other states or international organisations issued any specific authority warnings to civil aviation about the airspace above the eastern part of the Ukraine.”

The onus was on the Ukrainian authorities to take measures that simply never eventuated. “The weapons system mentioned by the Ukrainian authorities in relation to the shooting down of these aircraft can pose a risk to civil aeroplanes, because they are capable of reaching their cruising altitude. However, no measures were taken to protect civil aeroplanes against these weapon systems.”

Instead of acknowledging that aspect of the report, Ukrainian President Petro Poroshenko did what sides in this conflict have done from the start: politicise tragedy. Joustra had made it clear that allocating blame was “outside the mandate of the safety board”, though this restraining feature of the findings did not deter the government in Kiev. “The missile was launched from the territory occupied by Russians. Dutch investigators cannot reveal the surnames of criminals. It should be done by the international tribunal.”

For Poroshenko, the downing of MH17 never had anything to do with the insufficiency of Kiev’s warnings or concerns over a conflict zone – it was an act of presumed Russian criminality. Any contrary assertion has been dismissed.

In this attitude, he keeps company with such individuals as former Australian prime minister Tony Abbott and Dutch prime minister Mark Rutte. On Tuesday, Rutte simply stated what to him was an obvious, if prematurely judged assertion. “We must do the utmost so the people who did it will not avoid… punishment.” To even attribute a mixed regime of responsibility for the deaths of 298 people has proven too much to stomach in this most polarising of conflicts. But the words of the Board still ring true for future reference. “Operators cannot take it for granted that open airspace above a conflict zone is safe.”

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Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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