AP

Introducing a New Word to the Existing Arsenal: The Crash of MH17

AP

On September 9, 2014, the Dutch Safety Board (OVV) released their report describing what happened to Malaysia Airlines Flight MH17 over Eastern Ukraine. In their findings, the investigators introduced a new term to the preliminary report: crash.

The International Civil Aviation Organization (ICAO)’s standards and procedures, which the OVV followed, only refers to accidents or incidents – and not to a crash (ICAO’s Annex 13). Nor does the United Nations Security Council, which called for an inquiry under ICAO’s standards and procedures, and spoke of the downing of the MH17 (Resolution 2166).

The OVV must have carefully chosen its wording, but does not define what a crash entails. A preliminarily finding of a likely cause is noted: probably, as the result of structural damage caused by a large number of high-energy objects that penetrated the aircraft from outside, flight MH17 with a Boeing 777-200 operated by Malaysia Airlines broke up in the air. The OVV also appears to rule out an internal cause: there are no indications that the MH17 crash was caused by a technical fault or by actions of the crew.

Although the OVV will have to keep strictly to its mandate of conducting an inquiry that is not intended to issue any statements concerning guilt or liability, the report seems to imply the likelihood of an external attack on the plane by a system that can cause fragmented, shrapnel entry. After all, the report includes pictures of debris and ends with a similarly initial finding.

The careful reader of the report is therefore well advised to pay attention to the references of further inquiries that the OVV has initiated, or hopes, to conduct.

Amongst the additional inquiries are pathological investigations, which according to the OVV’s chairperson Mr. Tjibbe Joustra on television, have to include the bodies of the crew for objects that might have come from outside of the plane. Other avenues for further inquiry are air traffic management and meteorological investigations, the cockpit voice recorder that is subject to ongoing research, and forensic investigations that will follow once the debris is recovered. Whether or not such forensic examinations might take place in the future will depend on actual access to the region, which at this point seems difficult to say the least.

These further inquiries are essential because the OVV has been heavily (if not fully) dependent on third-party fact-finding. Ukrainian investigators (the National Bureau of Air Accident Investigation, NBAAI) have made short visits to the location and made pictures of the debris, which the OVV received. Moreover, a Malaysian research team inquired on its own initiative, and provided the OVV with its pictures and report.

Even if the OVV would be able to conduct these inquiries itself, however, it remains to be seen how this report or the underlying information can be used (if at all) in the available accountability mechanisms. All such mechanisms suffer from many difficulties for evidentiary, legal and political reasons, as Mr. Benjamin Ferencz articulated so eloquently for a case before the International Criminal Court.

Therefore, it is of the essence that the OVV will ensure that it allows for oversight by a body that in no way is open to claims of bias. That body should also ensure coordination, like the Joint Investigation Team intends to do for information exchange and proper recording of items and their chain-of-custody.

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