ICAO’s Condemnations of Assaults on Civil Aviation
Are Not Satisfactory
There Must Be Convictions & Consequences
Dutch Public Prosecutor Fred Westerbeke presented the conclusions as to the causes of the MH-17 tragedy as made by the Joint Investigative Team (JIT). The outline of the findings is as follows:
“Malaysia airlines flight MH17 was shot down with a BUK missile of the 9M38 series fired from the ground. The missile launching system came from Russia and was afterwards returned to Russia, are the preliminary conclusions of the Joint Investigation team. The missile was fired from a field near Pervommajsk, which was in the hands of pro-Russian separatists.
…According to Westerbeke, these conclusions were made based on legal and convincing evidence, though a court still has to judge it. Not all the evidence can be shown, as to not alert those suspected of involvement.
According to Paulissen, there was heavy fighting in the Donetsk region around the time of the disaster. Pro-Russian separatists needed anti-aircraft missiles to fight Ukrainian air attacks preventing them from creating a thoroughfare to the Russian border…
Paulissen states that a piece of glass from the MH17 cockpit was found on one piece. ‘We can convincingly prove that MH17 was shot down by a BUK missile of the 9M38 series.’
‘The BUK was transported to the firing location under the guidance of separatists’, Paulissen said. IT was transported in a white Volvo truck with a red trailer. Many witnesses saw this vehicle with armed men in uniform. A convoy including the truck eventually went from Donetsk to Snizhne, arriving around noon on July 17th. From there the truck continued without a convoy, also filmed by eye witnesses. The final destination was an agricultural field, 21 km from where MH17 crashed.
According to the investigators, this agricultural field is without a doubt the location where the missile was fired from that hit MH17…
The conclusion for the missile’s firing location is supported by information received from the Americans and the European Space Agency (ESA). A report published by the Americans supports the JIT’s conclusion on this. The ESA had experts assess the footage and images, and came to the same conclusion…
Discarded scenarios included an attack from within the plane, disproved by the Dutch Safety Board’s investigation, and an accident. The JIT also ruled out that the plane was shot down by another plane, as this would have been visible on radar images. He added that the discussion over the radar images is concluded as far as the investigation is concerned – they have enough for the investigation purposes…
Dozens of containers of wreckage was investigation. Five billion pages were assessed for relevant material. Half a billion photos and videos were looked at. More than 200 witnesses were questioned. 150 thousand telephone conversations were assessed. 3,500 tapped conversations were translated and analysed.”
[excerpted and emphasis added]
The JIT is a special body, established by the Netherlands to conduct a criminal investigation, needed when two or more countries are cooperating to establish a legal record in order to initiate prosecution in the interested jurisdictions. Its members included representatives of Australia, Belgium, Malaysia, the Netherlands and Ukraine.
The missile killed 283 passengers and 15 crew members. The tragedy impacted the lives of families around the globe.
The Flight Safety Foundation issued a press statement in which it made a distinction worth noting:
“’Flight Safety Foundation often has been in the forefront of opposing efforts to essentially criminalize honest mistakes in aviation that happen to have catastrophic consequences,’ said President and CEO Jon Beatty. ‘In the case of MH17, however, evidence is mounting that this shoot-down of a civilian aircraft was a premeditated act, where criminal investigation and prosecution may well be appropriate, if authorities find out who knew about or gave the command to fire a deadly missile at this plane. We urge all states to cooperate fully in this investigation. Also, because Russia claims the Joint Investigation Team to be biased and difficulty remains in obtaining all evidence, we again call on all states to support a resolution at the U.N. Security Council to form an independent, international panel to fully investigate this tragedy. The 298 souls on board MH17 and their loved ones deserve nothing less.’”
The International Civil Aviation Organization welcomed the Dutch Safety Board’s accident investigation Final Report for Malaysia Airlines flight MH17 a year ago. As of the date of this posting it has not responded to the FSF call for a UN panel.
The 36 State Council of the International Civil Aviation Organization (ICAO), during its 203rd Session unanimously adopted a Resolution condemning, in the strongest terms, the downing of Malaysia Airlines Flight MH17 over eastern Ukraine.
Sadly MH-17 is not a unique point in history. At least 12 civil aircraft have been brought down by military attacks and five involved circumstances in which the flag of the targeted airliner and the nationality of the source of hostile fire were in combat.
ICAO has issued condemnations in response to a number of these assaults on civil aviation, but none of its responses are entirely satisfactory to a goal of SAFE global aviation civilian flight, particularly as viewed by the families of the victims. Perhaps the most notable, recent confrontation over the shooting down by the USSR of an airliner was KAL-007 in 1984. Arguably any such violent action should be a breach of Article 2(4) of the UN Charter. In response to KAL 007, ICAO adopted a resolution condemning the Soviet Union for the attack, a repeat of responses to prior similar incidents.
It did take the further unusual step of drafting and adopting an amendment to the Convention on International Civil Aviation section 3(d). The new language, Article 3BIS, warned the Member States that “the contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered.” [emphasis added]
Article 3 BIS has had little deterrent value.
The FSF call for criminal prosecution should be supported by the United States government (US Representative to ICAO Ambassador Lawson) and all members of the JIT. There must be consequences to these actions in which innocent lives are sacrificed. Resolutions, as embarrassing as they may be, are not as impactful as convictions of the responsible parties. Such an outcome, the criminal condemnation would be a lasting legal (in addition to this physical) memorial to the lives lost on MH-17, particularly if that punishment deters future reckless fire.