Arthur Flieger’s Position Paper Regarding MH17 (and KL4103)

Presented to the Dutch Parliament on 22nd January, 2016

On 13th October 2015, the Dutch Safety Board (DSB) published its final report on the disaster involving flight MH17, an impressive report that provides a very wide-ranging insight into the actual facts of the shooting-down of the Boeing 777 of Malaysian Airlines. The investigation was conducted in a special geopolitical context, and the DSB directed its recommendations not just to the parties directly involved, but also to the international airline community.

In particular, regarding flight routes over potential conflict zones, recommendations were made to the International Civil Aviation Organisation (ICAO) and concerning the actions of the Ukrainian authorities. In addition, the DSB pointed out a number of sovereign and regional aspects, which were not included in the recommendations. This gives scope for closer exploration, and possibly for further elaboration. The IFPA wishes to contribute to this.

The recommendations of the DSB regarding the role and responsibility of the relevant governments in the considerations concerning flying over conflict zones seem to be limited to:

• the exclusive responsibility of the sovereign state encountering in or above its territory conflict, which has relevance for civil aviation, to rule the (partial) closure of its airspace;
• the finding that a national government has no control over the assessment of the safety of the airspace of other states; and
• the finding that the airline has final responsibility for the risk analysis of a route to be flown.

According to this vision, a government must notify threats or risks elsewhere in airspace known to it to the airlines, which are subject to its regulations and supervision, without there being any question of an explicit duty of care. The government, as (system) supervisor for aviation safety, is responsible for an airline located in its own country. Indeed, this also includes the assessment of the manner in which the airline interprets this responsibility.

This interpretation places governments other than the relevant territorial state in a passive role with diffuse and limited responsibilities. This leads to a number of fundamental problems:

• Each sovereign state is responsible for the safety of the air traffic above its own territory. In addition, a state bears responsibilities for the safety of airlines, aircraft and aviation personnel, which fall under its national and the applicable EU regulations. This is also established internationally in the Chicago Convention and the principles of the ICAO. This responsibility also includes the assessment of a threat analysis in close cooperation with the airlines concerned and, where necessary, other states.
• Of course, a state whose airlines are subject to national safety regulations also has a duty to uphold those rules, inter alia, where necessary, by imposing a flight ban above conflict zones. This also prevents airlines reaching different conclusions and applying different measures on the basis of the same information.

The DSB report indicates that several states acknowledged and assumed their public responsibility for maintaining safety and security. Foremost in this is the US, with its Special Federal Aviation Regulations (SFAR), already applicable for a number of years, of which the gravest implementation is the imposition of flight bans for risk zones on American airlines. More recently, the UK, Germany and France have taken similar steps. The last two countries only decided to do this after the MH17 disaster.

It is very important that we gain further insight into the motivating reasons of the governments, which, before and after the flight MH17 disaster, identified areas in which aviation safety can be jeopardised by external threats. Where necessary, a flight ban is imposed on their airlines for such zones. France is one of the countries that meanwhile has given its government a more active role: as a result flight bans are imposed on French airlines. Of course, another express aim was to avoid different interpretations of security information by airlines.

We can therefore state that following the disaster of flight MH17, leading aviation nations in Europe also assumed their responsibilities in accordance with the Chicago Convention and the basic principles of the ICAO. The parties even wished to (and could) decide this without awaiting the facts of the DSB report. The guiding principle of that policy is the de facto duty of care of a government for the ‘safety and security’ of its citizens, and the right of citizens to this.

The introduction of rules for a systematic approach to the safety of airline and air traffic services does not release the legislator from its responsibility to provide effective supervision. In particular, in the event of intelligence relating to security – which often cannot be or is insufficiently validated – the power of the relevant state to impose flight bans on its airlines is vital. In this context, it should be noted that the ICAO website only contains non-binding security information, which is accompanied by a full rejection of any responsibility on the part of ICAO for the information provided.

At any event, it is clear that a state is free to regulate this. This is also confirmed by ICAO. A number of aviation legislations therefore recognise general (crisis) powers, which can be called upon in urgent matters. Therefore, now that the obligation to monitor aviation safety is regarded as a general standard, it hardly seems possible to refer to ICAO as an argument for the absence of national rules or other opportunities to act.

Of course the question is, whether the possible absence of specific, national regulations for forbidding flights by Dutch carriers and Dutch-registered aircraft can be regarded as culpable negligence. This is the time for legal-theoretical reflection on government liability and international obligations in the event of responsibility. Anyway, there is an urgent question as to whether, after flight MH17, all of this should not be tackled with some vigour.

In March 2015, the US Department of Transport (DOT) drew the attention of the code-sharing partners of U.S. carriers to their potential liabilities, when the FAA introduces a flight ban for U.S. airlines. This may instigate further discussion about comparable scenarios with different global alliances of airlines.

Given our knowledge of the arrangement in both the U.S. and a number of EU member states, it now seems to be the right moment for the Dutch government to address this subject expressly in response to the recommendations of the DSB. Amongst others, a question arises concerning the government’s viewpoint on its role, mindful of the change in the policy of a number of leading aviation nations, as a result of flight MH17, some of which have been in operation for some time.

At this time, we cannot rule out the fact that an airline’s risk analysis of a flight over a conflict zone departing, for example, from Amsterdam may differ substantially from that of another flight departing from London, Paris or Frankfurt. This situation is unacceptable. In particular, in a pan-European context there is every reason for an in-depth investigation of a harmonisation of sovereign responsibilities at European level.

At this time, the European Commission has extensive regulatory powers for aviation and air traffic management in the EU and the other European States associated with it. The European Commission will soon be putting forward further proposals, amongst others, a review of SES regulations and EASA powers. This seems to be a good starting point for European initiatives concerning flight over conflict zones, which will unequivocally address responsibility for maintaining safety for flights over conflict zones at both European and International level.

Amongst others, this concerns the problems of assessing potentially incomplete security information, decision-making and the corresponding responsibilities.

Also for the Netherlands, the question arises whether states other than the state on or above whose territory a conflict has arisen can take decisions to protect their airlines, aircraft, crew and passengers. In particular, the duty of care for the safety and security of the civil aviation of these different categories of states is of great importance here.

In my view, this question was not well expressed in the DSB report, which, for the rest, does indicate that after the flight MH17 disaster, the United States, the United Kingdom, France and Germany banned their airlines from flying through (parts of) Ukrainian airspace.

It should also be noted here that the report by the Review Committee on the Intelligence and Security Services (CTIVD), annexed to the DSB report, recorded the finding that the National Government has no control over the choices made by Dutch airlines regarding the use of foreign airspace, and therefore bears no responsibility for them. This seems to be a disputable finding.

MH17 was a code share with KL4103.  The question which presents itself here is whether the Dutch Minister of Transport, on the basis of Section 4.5, or by analogy with this, of the Dutch Aviation Act, should or could have given any indications concerning the operation of the flight. The route in question was known to be dangerous.

The ban on flying under 32,000 feet was possibly insufficient, and the risk was underestimated.
If the perpetrators are to be tried, there must be a proper criminal investigation. The question, which arises is whether there is a proper objective investigation. In my view, everyone does as he pleases, without the existence of any proper control of what must be examined, or monitoring of the method of objective investigation.

The next question that arises is how the perpetrators can be tried. In my view, there are two options: firstly, a trial at the Court of The Hague or the International Criminal Court, and secondly, perhaps also at the Courts of Ukraine.

For prosecution at the International Criminal Court there must indeed be a question of a war crime. According to a number of votes, there is indeed a question of a war crime here. The perpetrators took the risk of making civilian victims by firing a missile. Personally, I doubt whether the perpetrators were conscious of the high probability that firing the missile in question would result in civilian victims. In my opinion the perpetrators did make a mistake. The question also arises, whether the actual perpetrators are known. The BUK missiles in question were in the possession of the Russians, the Ukrainians and the separatists.

If it is the intention to bring the case before the Court of The Hague, I believe it is not only those who fired the missile, but also their commanding officer, for example, a general or political leader. Heads of state cannot be tried as they have immunity. To prove a war crime, intent must be demonstrated. The Public Prosecutor must present this objectively. Also, evidence must be reliable.

The same problem of proof is posed by proceedings before the International Criminal Court. The Court is able to judge war cases.

One problem that does present itself, is that it is a UN organisation, and the nations must also accept the relevant competency of the Court.

If a special Criminal Court is opted for, a relevant agreement must exist.

However, I fear that such proceedings are very lengthy, and that we have learnt from the past that scant results can be expected.

Moreover, the suspects must be physically present.

Regarding the Criminal Court, it is a fact that, amongst others, Russia has used its veto to approve the resolution.

In my opinion the whole MH17 problem is currently being used for geopolitical ends, and the actual prosecution of the perpetrators per se is being used as an element for political purposes. Of course the perpetrators must be prosecuted, but it now looks as if politics is playing a more important role than the actual prosecution.

The differences of opinion between the protagonists, i.e. USA, Western Europe and Russia, are currently such that I fear there is little chance of such a trial occurring.

Thus, it appears that certain parties are withholding information, which of course raises questions as to the possibility of a proper, objective criminal investigation.

It is essential that reference be made to the relatives of the victims, as the relatives attach great value to complete clarity concerning the international and also national aspects of this, in particular, in order to achieve the greatest possible certainty that others can also be confronted with all of their suffering. However, in my view, this is not the case in this case.

For the sake of completeness reference must be made to the existing possibilities for trial.

The Joint Investigation Team is doing the criminal investigation and the outcome will still require examination.

Regarding the possibilities, in my view, there are six courts.

1. An international or hybrid court could be established with the support of two thirds of the United Nations Member States. In this case the court would have international legitimacy. UN sanctions could perhaps be imposed on Member States, which fail to cooperate with the relevant court. However, obtaining two thirds of 193 Member States could be a very difficult exercise.

2. A court comprising members of the states involved: the five nations that set up the Joint Investigation Team (i.e. the Netherlands, Belgium, Ukraine, Malaysia and Australia) could establish a court themselves. This would be very unique. In my view, the problem is that the states, which would be involved in establishing the court, are also involved in the event, which of course cannot give the impression of an impartial legal authority.

3. A Dutch Court: the Netherlands could try international crimes by a national court. The question is whether all of this can be dealt with objectivity. At the very least, it may create the impression that the relevant court is not impartial.

4. An independent Court in a third state: there would be no problems of legitimacy with this. However, what country would be prepared to have such a court on its territory and bear the expense? And possible political problems must also be taken into account. In this regard I refer to the Lockerbie court in the Netherlands at which Scottish judges were seated.

5. International Criminal Court: The case could be brought by the country where the crime was committed: this would be Ukraine. However, Kiev is still not a member of the Court, the Court would only deal with the individual criminal law responsibility of the perpetrator(s), and not of the countries involved. The court would also have to decide whether the facts are serious enough.

6. International Court of Justice: If the investigation is pointing out that a state is liable, an International Court of Justice, as the highest judicial instance in the framework of the United Nations, could hear the case, but the state(s) involved would have to accept the Court’s jurisdiction.

Until now, there has been a lot of finger-pointing and very little action. It is possible to establish an International Tribunal on the basis of the agreement between the most closely involved states such as the Netherlands, Belgium, Ukraine, Malaysia and Australia. This tribunal will not be able to take place under UN flag. This kind of Tribunal was previously brought about in order to prosecute the suspects in the Lockerbie disaster, and in the case of flight MH17, Dutch judges could be appointed together with public prosecutors from different countries. However, I have several doubts about this, due to the abovementioned reasons.

I also want to point out that Ukraine and Malaysia, which are very much involved in the MH17 disaster, are not parties to the International Criminal Court. Its judicial authority is therefore extremely limited.

The UN Security Council could establish a court on the basis of Chapter 7 of the UN Charter, but it is very unlikely that this would be effective.

As far as the criminal investigation is concerned, I want to draw the attention to the fact that on 8th September 2015 Ukraine accepted the competence of the Criminal Court for crimes committed on its territory since 20th February 2014, and it promised to cooperate with the Criminal Court and extradite suspects. However, Russia is not cooperating in this area. Indeed, Russia’s point of view is understandable, for the abovementioned reasons.

I also refer to the agreement of 12th February 2015 between Ukraine, Russia and the Organisation for Security Cooperation in Europe (OSCE) and the separatists, in which a ‘Package of Measures for the Implementation of the Minsk agreements’ 13 points were signed in order to achieve a cease fire in Eastern Ukraine and in order to stabilise the situation.

Article 5 of this package stipulates: ‘Ensure pardon and amnesty by enacting the law prohibiting the prosecution and punishment of persons in connection with the events that took place in certain areas or the Donetsk and Luhansk regions of Ukraine.’

In my opinion, it is not very clear whether this will lead to national amnesty, but this will certainly be used in order not to proceed to the prosecution of potential suspects.

However, when approving Resolution 2202, it was clear that the representatives of New Zealand, Malaysia, and also Australia, Belgium, Canada, Indonesia, the Netherlands and the Philippines insisted on prosecution.

In this context, we can state that this kind of prosecution has little chance of succeeding in the short term.

For further information and comment, please contact Arthur Flieger (flieger@fliegerlaw.com, +32 3 238 77 66)

© 2016 A. Flieger – This publication is defined to provide accurate and authoritative information in regard to the subject matter covered. It is transmitted with the understanding that the publisher is not engaged in rendering legal, or any other professional services. If legal advice or other expert assistance is required, professional services should be sought. You can always contact A. Flieger at flieger@fliegerlaw.com.