Flight MH17, the unanswered questions (Part 1)

Hours after the crash of Flight MH17 which killed all passengers and crew members on board, the tabloids and hordes of self-proclaimed experts on Social Media already had all the answers. The who, how and what was already known even before the rest of the world started to comprehend the magnitude of the tragedy. Who needs facts when all that matters are sales numbers and online attention?

Facts are what the families and friends who lost their loved ones on Flight MH17 are looking for, and every human being will understand that facts about the events will be a significant part of the mourning process and and step forward towards being able to handle life after the tragedy. Several weeks ago, I had the privilege and honor to meet a brave man who is trying to coop with losing his daughter on Flight MH17 and is searching for honest answers and facts about why and how his daughter was murdered. Searching for a confirmation that whomever is responsible for this will have to face justice. This father made a statement with tears on his face which is engraved in my mind:

Whenever I try to find an answer, I end up with more questions!

Regretfully, I must confirm this statement. The total lack of transparency in the investigation and the results, the never ending waves of misleading information in the press and online media and all those who purposefully create misinformation, make it close to impossible to even be able to form an educated opinion, let alone find reliable answers. I can’t even start to imagine how this must be for the families of the victims. The horrible reality is that all they know for sure is that their loved ones will never come back. Killed while flying over the conflict zone in Ukraine.

Here are some of the questions we all have and some attempts to at least find some logical explanations.

CAUTION: These are opinions, theories, thoughts and logical questions. Please do not confuse these with facts and evidence, as so many do without showing any kind of respect to the victims of Flight MH17 and their loved ones.

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Why was the airspace over the conflict zone not closed after so many Ukrainian aircraft have been shot down over the conflict zone in the days and weeks before the crash of Flight MH17?

Not only the amount of shot down aircraft increased, also the flight level from which they were shot down significantly increased in the days leading up to the downing of Flight MH17. Kiev authorities informed the authorities of countries flying through Ukrainian airspace, airlines where informed and all this is in line with the standing regulations. The true question is why did Ukraine decide to declare the airspace safe in which Flight MH17 and 3 other commercial aircraft were flying at  the moment of the incident, despite the prior incidents? To put in perspective, the airspace over Crimea was declared off limits moths earlier as a matter of safety.

There is a plausible and very sobering theory to answer this question. Ukraine, just like all other countries, gets a fee for each commercial aircraft which crosses its airspace and utilizes its Air Traffic Control services. If Ukraine would have decided to close its airspace over the conflict zone, it would have closed 2 important and intensively used routes to and from Russia and Asia.

• Did Ukraine’s interest in the income resulting from these routes dilute the required objective evaluation of the risks for the aircraft crossing the conflict zone?

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Why didn’t Malaysia Airlines and Air France-KLM follow the example of the few airlines that decided to avoid the airspace over the conflict zone?

Even with Ukraine’s questionable decision not to close the airspace over the embattled conflict zone, why did the airlines not take their own responsibility for their passengers and their crews serious, as we would expect of them every time we use their services, and decide to avoid the risk full airspace over the conflict zone? We know by now that some airlines did, fulfilling their responsibility for their passengers. The airlines operation Flight MH17 didn’t, with tragic results and consequences. The standing rules and regulations provide adequate reason for the airlines to follow the formal notification by the authorities over the airspace they use, but this does not relieve the airlines of their obligations towards their passengers and crews, including risk evaluation and mitigation.

Once again, there is a sobering and plausible theory which could explain why this decision was made. Alternative routes not in line with issued local notifications, not consumed agreed volumes for corridors and passages, deviations not caused by emergency, etc. can lead to additional costs for the airlines, depending on the agreements with the ATC services.

• Did the additional costs of alternative routes, north or south from Ukrainian airspace, have any influence on the decision to continue using the airspace over the conflict zone?
• Did evaluating costs outweigh the evaluation of risks?
• Will there be changes in the regulations now that Flight MH17 has shown that the standing regulations leave margin for fatal error when the safety of passengers and crews is not the first priority?

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Why did The Netherlands sign a mutually binding exclusive Non Disclosure Agreement for the investigation with Ukraine?

ICAO provides a clear and comprehensive framework for handling the proceedings and investigation. The Netherlands has a legal framework for criminal investigations when committed against citizens of The Netherlands outside of the territory of The Netherlands. The United Nations announced and executed an emergency meeting on Flight MH17. Nevertheless, The Netherlands entered into a NDA which is so exclusive that the Government, despite various requests by opposition members in Parliament, has denounced to make the content and reach of this NDA available. This agreement was entered by Ukraine, The Netherlands, Belgium and Australia.

Although Malaysia must be involved in all ongoing proceedings and investigations in accordance with ICAO regulations, Malaysia is not a party in this agreement, Ukraine, entitled to lead the investigation since the incident took place over its territory, is on the other hand also a possible perpetrator of this horrible crime in which 298 innocent people lost their lives. This combination of excluding a party representing the victims and including a prime suspect and possible perpetrator in an agreement which gives this prime suspect an unconditional power base over the investigation itself and the outcome, leaves one question: WHY?

Ukraine had the means to shoot down Flight MH17 in the form of SAM or AAM and the required fighter jets to do so. And Ukraine certainly had a possible motive to do so. “Game changer”, that hated expression, by which Ukraine could drag other countries into a conflict which it is not able to control itself. “Smoke screen” to draw the attention away from the increasing reports about atrocities committed by Ukraine’s armed forces against the population of Donbass. And last but not least, Ukraine has already shot down a commercial airliner “by mistake”, killing its crew and passengers. In any criminal investigation, this adds up to a prime suspect or as criminal investigators call it “a hot suspect”.

It is hard to believe that the government of The Netherlands was not aware of this. Nevertheless, The Netherlands entered into a mutually binding exclusive non disclosure agreement with Ukraine, a prime suspect in the killing of all passengers and crew members of Flight Mh17.

• Why did The Netherlands decide to enter this agreement?
• What motives does The Netherlands have to allow Ukraine to have such influence on the investigation which reaches far beyond the roles and responsibilities stipulated by ICAO rules?
• Was the government of The Netherlands even authorized to enter such agreement under its applicable constitution and laws?
• What exit strategy does The Netherlands have in case evidence emerges that Ukraine is responsible for the tragedy of Flight MH17?

Recommended reading: “De doofpot deal” by Joost Niemoller

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Why was the team of investigators and forensic experts from the Netherlands kept in Kiev for days before being allowed to approach the crash site?

The experts of the identification and disaster teams from The Netherlands are recognized worldwide for their expertise and accuracy. Their services are requested on many occasions by countries dealing with disasters. These are the experts you want in the field as soon as possible when you are honestly interested in getting the answers. The local emergency services, doing an incredible job in the middle of a war zone, requested support and instructions on handling the victims. Yet another reason to dispatch the experts from The Netherlands to the crash site as soon as possible. To put this in perspective, during the aftermath of the earthquake in Turkey, experts from The Netherlands were airlifted to the area of need to avoid losing time.

None of this applied in the first days after their arrival in Kiev. Paperwork and safety reasons were given as reasons for this delay. When the teams finally reached the fields of the crash site, the fighting continued and even intensified, despite the UNSC resolution and personal commitment by the President of Ukraine. The risks of this fighting around and even at the crash site intensified to the point that the fully understandable decision was made to withdraw the repatriation and investigation team from the crash site. So the safety of the team was not the main concern of Ukrainian Government.

• Which kind of paperwork can be so complex and voluminous that it will keep the experts from investigating the crash site? The same experts other countries do their utmost for to get them on site as soon as possible,
• What is the real reason that the arrival of the experts was delayed by keeping them in Kiev?
• Did Ukraine use this time frame to pressure the government of The Netherlands in to entering the NDA?
• Is it coincidence that only those countries that entered the mutually binding exclusive non disclosure agreement with Ukraine were allowed to dispatch experts to Ukraine?
• What further influence did Ukraine have on the work by these experts?

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Every attempt to find an answer leads to more questions, and all these questions again raise more questions. Questions for which the Government of The Netherlands carries the responsibility to the victims, their families and its citizens, to ensure these will be answered adequately and promptly. Until we know the content of the NDA, we don’t know if the Government of The Netherlands didn’t enter in to an agreement which hinders it from fulfilling this obligation. The lack of information and transparency gives reason to believe that this might be the case. The easiest way to counter this believe is providing answers to honest questions.

Part 1 of unanswered questions related to Flight MH17. More will follow.

Kind regards,

Pavel