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DSB 13.10.15:MH17 Crash Appendix W - Consultation Part B

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APPENDIX W


CONSULTATION PART B: FLYING OVER CONFLICT ZONES

State /
Organisation

Ministry of
Security and
Justice of The
Netherlands

Page

1

Section /
Paragraph

LETTER

Text to be corrected
(frst... last word)

Part of the Dutch Safety Boards investigation was conducted by
the CTIVD. The Dutch Safety Board distances itself from an
important point made in the conclusions of the CTIVD report.
This is notable. The CTIVD concludes that the threat factors that
Services use constitute a good basic principle for assessing
whether a specifc threat exists. These factors offer an insight
into the severity and the probability of a threat. However, the
Dutch Safety Board proposes a different system.
because the existing one offers insuffcient insight into possible
threats. I would like to ask that you reconsider this conclusion

Argumentation /
substantiation

Dutch Safety Board
response

The Dutch Safety Board concludes that the parties concerned
consider there to be a threat when it is established that there is
capability, potential and intention. If it is not suffciently clear
whether there is intention or capability, it is assumed that there
is no threat. The Dutch Safety Board recommends that this be
reconsidered.

State /
Organisation

Ministry of
Security and
Justice of The
Netherlands

Page

1

Section /
Paragraph

LETTER

Text to be corrected
(frst... last word)

The report cites the NOTAM issued by the Russian Federation
on 16 July for the Rostov FIR. The NOTAM specifes the reason
for the partial closure of the airspace: combat actions on the
territory of Ukraine near the state border with the Russian
Federation and the facts of fring from the territory of Ukraine
towards the territory of the Russian Federation. This NOTAM
effectively imposed the same altitude restrictions as the
Ukrainian NOTAMs. However, at the bottom it was stated that it
applied to the part of the airspace from ground level to FL530 (a
higher flight level than that which has to be taken into account).
Therefore, this Russian NOTAM cites two different altitudes. The
Dutch Safety Board links to no further analysis or context, which
means that this individual fact raises more questions than it
answers. I suggest that the NOTAMS be linked to further
analyses so that this can be placed more in context.
The report suggests that it was possible that weapons were
present in Eastern Ukraine that could reach aeroplanes at
cruising altitude. The report also states that the presence (to
date) of such weapons on Ukrainian territory controlled by
separatists cannot be confrmed. The suggestion that weapons
that could reach cruising altitude were present in the area is not
substantiated. I ask that you add this substantiation to eradicate
or avoid any further discussion about this point.

Argumentation /
substantiation

Dutch Safety Board
response

The Dutch Safety Board requested additional information about
these two NOTAMs from the Russian Federation, but did not
receive any. Therefore, the reason for the difference in altitude
in the two NOTAMs was not clarifed.
In the report, the Dutch Safety Board also states that the way in
which a conflict develops (in this case, expanding to the air)
could be relevant to the risk assessment. Moreover, the Ukrainian
authorities reported, in connection with two incidents (on 14 and
16 July 2014) that there was possible use of medium-range
surface-tot-air or air-to-air weapons from the Russian Federation.
These can also pose a threat to civil aeroplanes at cruising
altitude in Ukrainian airspace

3

State /
Organisation

Ministry of
Infrastructure and
the Environment
of The
Netherlands

Page

15

Section /
Paragraph

1

Text to be corrected
(frst... last word)

In the context of this report, the term safety is meant as an
overarching term that encompasses intentional threats to civil
aviation (security) as well as safety in the sense of the word that
does not entail intentionality (safety). The report only mentions
security when referring to the specifc activity focused on
managing intentional threats (see also, for example, Chapter 6,
page 87). This leads to confusion.

Argumentation /
substantiation

Dutch Safety Board
response

The defnitions of safety and security used are included in
Section 12, Abbreviations and Defnitions

State /
Organisation

Ministry of
Infrastructure and the
Environment of The Netherlands

Page

23

Section /
Paragraph

2/3

Text to be corrected
(frst... last word)

If, based on its AOC, an airline is authorised to fly and thus land
in a certain area, a National State can only impose a flight
prohibition on its airlines if this action is explicitly included in its
national legislation. The Netherlands cannot do so. This needs
to be clear from the diagram (or at least include a reference to
the third paragraph on page 25). Check wording

Argumentation /
substantiation

Dutch Safety Board
response

The diagram is not specifcally relevant to the Netherlands, but
to a limited number of other countries. It is a simplifed diagram,
which is explained in more detail in the text.

4

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

31

Section /
Paragraph

Text to be corrected
(frst... last word)

After Following a period of unrest add:, during which RF
troops occupied strategic positions without Ukraines consent,

Argumentation /
substantiation

The unrest was orchestrated by the RF. President Putin later admitted
this in an interview

Dutch Safety Board
response

The Dutch Safety Board does not provide any political
interpretation of the events.

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

32

Section /
Paragraph

Text to be corrected
(frst... last word)

Add: The international community does not recognise the
illegal annexation.

Argumentation /
substantiation

Make it clear here that the annexation is contrary to international law

Dutch Safety Board
response

The Dutch Safety Board does not provide any political
interpretation of the events

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

32

Section /
Paragraph

Text to be corrected
(frst... last word)

This conflict increasingly spread to the airspace. Proposed
addition: and targeted military aircraft up to an altitude of ca.
6 km. Insofar as is known, MH17 was the frst and to date the
only civil flight to be shot down above 6.5 km.

Argumentation /
substantiation

Dutch Safety Board
response

The Dutch Safety Board was not able to verify the exact
altitudes of the aircraft that were downed prior to 17 July.
Altitudes that were announced by the Ukrainian authorities are
included in the fgure and cited in the text. The weapon systems
cited by the RNBO can hit aeroplanes at higher altitudes. The
Dutch Safety Board deems this report to be relevant to the risk
assessment by Ukraine.

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

35

Section /
Paragraph

Text to be corrected
(frst... last word)

List of aircraft shot down: insofar as is known, until MH17, it only
concerned military aircraft up to an altitude of ca. 6 km.

Argumentation /
substantiation

Dutch Safety Board
response

The Dutch Safety Board was not able to verify the exact
altitudes of the aircraft that were downed prior to 17 July.
Altitudes that were announced by the Ukrainian authorities are
included in the fgure and cited in the text. The weapon systems
cited by the RNBO can hit aeroplanes at higher altitudes. The
Dutch Safety Board deems this report to be relevant to the risk
assessment by Ukraine.

5

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

37

Section /
Paragraph

Text to be corrected
(frst... last word)

Add nuance to the entire section using other statements:
Ukraines briefng on 14/7 and the press statement on 15/7.
Refer also to the CTIVD investigation and other references,
which disproved even before 17/7 that a weapon at cruising
altitude could have been involved in the Antonov incident.

Argumentation /
substantiation

See the accompanying letter. Too much value is attached considering
the complex of facts known before and after 17/7 about the cause of
the Antonovs crash

Dutch Safety Board
response

The Dutch Safety Board was not able to verify the exact
altitudes of the aircraft that were downed prior to 17 July.
Altitudes that were announced by the Ukrainian authorities are
cited in the text. The weapon systems cited by the RNBO can hit
aeroplanes at higher altitudes. The Dutch Safety Board deems
this report to be relevant to the risk assessment by Ukraine. In
the investigation referred to, the possibility that the aeroplane
was shot down with an air-to-air missile was not addressed.

State /
Organisation

Ministry of
Foreign Affairs of
The Netherland

Page

39

Section /
Paragraph

Text to be corrected
(frst... last word)

Western military sources doubted this notion (see also
Chapter 6)

Argumentation /
substantiation

Elaborate or delete

Dutch Safety Board
response

This concerns a reference to an elaboration in Chapter 6.

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

43

Section /
Paragraph

Text to be corrected
(frst... last word)

Delete The weapon systems that were explicitly mentioned in a
press statement could pose a risk to civil air traffc at cruising
altitude.

Argumentation /
substantiation

This sub-conclusion goes too far. There were several statements by
the Ukrainian authorities. The systems mentioned in the statement by
the RNBO (p. 38) were, according to that statement, fred by the RF.
The AIVD/MIVD investigation demonstrated (before 17/7) that this
was unlikely.

Dutch Safety Board
response

If an armed conflict is being fought in an area and expands to
the airspace, and there are uncertainties pertaining to the
weapons present, a potential threat to civil aviation should be
taken into account. In the investigation referred to, the
possibility that the aeroplane was shot down with an air-to-air
missile was not addressed.

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

59

Section /
Paragraph

Text to be corrected
(frst... last word)

Delete The weapon systems that were explicitly mentioned in a
press Statement could pose a risk to civil air traffc at cruising
altitude.

Argumentation /
substantiation

This conclusion goes too far: there is no linear connection between
risks to military aircraft and risks to civil aircraft if weapons that can
reach cruising altitude are not available during the conflict. As
revealed by the investigations cited in the report, such as those of the
AIVD/MIVD, there were no indications of any danger to civil aviation
prior to 17/7.

Dutch Safety Board
response

If an armed conflict is being fought in an area and expands to
the airspace, and there are uncertainties pertaining to the
weapons present, a potential threat to civil aviation should be
taken into account. In the investigation referred to, the
possibility that the aeroplane was shot down with an air-to-air
missile was not addressed.

6

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

59

Section /
Paragraph

Text to be corrected
(frst... last word)

Delete The threatsin a press statement

Argumentation /
substantiation

As stated before, the explanation on p. 38 must be elaborated. It
involved a suspicion that RF troops had shot down the Antonov - an
accusation that directly formed the rationale for the AIVD/MIVD
investigation. Furthermore, there were statements made by Ukrainian
authorities as well as data (see CTIVD: the fact that there were
survivors and that the aeroplane did not break up in mid-air) that
place this statement in a different light

Dutch Safety Board
response

The Dutch Safety Board deems this report by the Ukrainian
authorities related to the flight altitude and weapon systems
possibly used to be relevant to the risk assessment by Ukraine.
In the investigation referred to, the possibility that the aeroplane
was shot down with an air-to-air missile was not addressed.

[td]Section /
Paragraph

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

[60/td]

Text to be corrected
(frst... last word)

Add after was incorrect: However, there is other information
known (see AIVD/MIVD investigation) that indicates that this
statement was incorrect.

Argumentation /
substantiation

Dutch Safety Board
response

See previous comment.

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

61

Section /
Paragraph

Text to be corrected
(frst... last word)

Add: It must also not be ruled out that, based on its own
information position, Ukraine concluded that there were no risks
to air traffc above FL320.

Argumentation /
substantiation

The report states that the armed forces did not consider that there
were any risks to civil aviation. Therefore, there was no rationale for
Ukraine to close its airspace above FL320.

Dutch Safety Board
response

How the risk assessment was performed in Ukraine is described
in detail in Chapter 6.

State /
Organisation

Ministry of
Foreign Affairs of
The Netherland

Page

62

Section /
Paragraph

Text to be corrected
(frst... last word)

Add: As is customary, the NOTAM stated

Argumentation /
substantiation

The Dutch Safety Board established that NOTAMs rarely contain any
motivation

Dutch Safety Board
response

his is already addressed in another conclusion.

7

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

62

Section /
Paragraph

Text to be corrected
(frst... last word)

Add: non-binding recommendation

Argumentation /
substantiation

Repeat what has already been stated, that this document is nonbinding

Dutch Safety Board
response

Elsewhere the report states that ICAO Docs are non-binding,
which does not need to be repeated here.
This sub-conclusion relates to the fact that Ukraine did not act
according to the spirit of this recommendation. Although the
recommendation is not binding, it isnt non-committal either.

State /
Organisation

Ministry of
Foreign Affairs of
The Netherland

Page

62

Section /
Paragraph

Text to be corrected
(frst... last word)

Delete: The weapon systemsclosed.

Argumentation /
substantiation

See previous comments. In light of the information available prior to
17/7, too much value is attached to the suspicions that the RNBO
expressed in its statement

Dutch Safety Board
response

The Dutch Safety Board was not able to verify the exact
altitudes of the aircraft that were downed prior to 17 July.
Altitudes that were announced by the Ukrainian authorities are
included in the fgure and cited in the text. The weapon systems
cited by the RNBO can hit aeroplanes at higher altitudes. The
Dutch Safety Board deems this report to be relevant to the risk
assessment by Ukraine in itself.

State /
Organisation

Ministry of
Infrastructure and
the Environment
of The
Netherlands

Page

69

Section /
Paragraph

5/4

Text to be corrected
(frst... last word)

The difference between safety and security is not explicit
enough.
Safety of the flight in the flight phase (= safety). A security
department assesses the situation on the ground (= security),
but the airline is also ultimately responsible for in-flight security
measures (on board the aeroplane) to be taken as well as for
those taken. Sentence 16 is also incorrect: security is translated
as beveiliging. Page 70 then goes on to discuss the safety
situation (line 1)

Argumentation /
substantiation

Dutch Safety Board
response

This section describes the organisation at Malaysia Airlines. In
Section 12, Abbreviations and Defnitions, the concepts are
explained.

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

69

Section /
Paragraph

Text to be corrected
(frst... last word)

The Security Department is responsible for security. Analysts
that produce threat analyses mainly examine the situation on the
ground and not in the airspace. The Security Department is not
responsible for studying aeronautical information such as
NOTAMs and threats to airspace.

Argumentation /
substantiation

This shortcoming at airlines appears to have been given little weight
in the fnal assessment.

Dutch Safety Board
response

The shortcoming that arises from Annex 17 of the Chicago
Convention is cited elsewhere in the report (Chapter 9)

8

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

69

Section /
Paragraph

Text to be corrected
(frst... last word)

situation on the ground was indeed verifed properly by
Malaysia Airlines with regard to a possible charter flight to
Yemen on 17/7. Obviously not in the case of the eastern part of
Ukraine.

Argumentation /
substantiation

Dutch Safety Board
response

Malaysia Airlines did not operate to any destinations in Ukraine
and therefore did not assess the situation on the ground

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

73

Section /
Paragraph

Text to be corrected
(frst... last word)

Prior to 17 July, the airline possessed no information that there
could be long-range anti-aircraft missiles and air-to-air missiles
in the area.

Argumentation /
substantiation

The presence of such systems prior to 17/7 and after (with regard to
the period prior to 17/7) was not demonstrated. Moreover, their mere
presence does not constitute a risk in itself (after all such systems are
present all over the world).

Dutch Safety Board
response

The text refers to the information Malaysia Airlines did or did not
possess.

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

76

Section /
Paragraph

Text to be corrected
(frst... last word)

States - airlines. Another word must be used instead of based

Argumentation /
substantiation

The sentence is basically correct, but in light of paragraph 1 it seems
to suggest that States can also address those airlines that are not
based in the country, but do have a representation or sales offce.

Dutch Safety Board
response

Considering the context the addition is not considered
necessary

State /
Organisation

Ministry of
Foreign Affairs of
The Netherland

Page

82

Section /
Paragraph

Text to be corrected
(frst... last word)

Add just as all the other airlines after did

Argumentation /
substantiation

As demonstrated by the Dutch Safety Board, not a single other airline
took action.

Dutch Safety Board
response

This section specifcally refers to Malaysia Airlines

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

82

Section /
Paragraph

Text to be corrected
(frst... last word)

Delete despite fghter plane

Argumentation /
substantiation

With todays knowledge, too much value is attached to the statement
on page 38. See also above.

Dutch Safety Board
response

The Dutch Safety Board deems this report by the Ukrainian
authorities related to the flight altitude and possible use of
weapon systems to be relevant to the risk assessment.

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

84

Section /
Paragraph

Text to be corrected
(frst... last word)

conflict increasingly spread to the air. Proposed addition: until
17/7/2014, military aircraft were shot down up to ca 6.5 km. See
also previous point

Argumentation /
substantiation

Dutch Safety Board
response

The Dutch Safety Board was not able to verify the exact
altitudes of the aircraft that were downed prior to 17 July.
Altitudes that were announced by the Ukrainian authorities are
included in the fgure and cited in the text. The weapon systems
cited by the RNBO can hit aeroplanes at higher altitudes. The
Dutch Safety Board deems this report to be relevant to the risk
assessment by Ukraine.

9

State /
Organisation

Ministry of
Foreign Affairs of
The Netherlands

Page

87

Section /
Paragraph

Text to be corrected
(frst... last word)

This section also mentions the airlines based in a particular
state

Argumentation /
substantiation

In the context of the Netherlands, airlines are only based in the
country if they possess a Dutch Air Operation Certifcate, are under
the legal control of the Dutch government and are Dutch/European
property. Malaysia Airlines does have a representation in the
Netherlands, but in this sense was not based in the Netherlands.

Dutch Safety Board
response

The context reveals that, with regard to a flight prohibition or
restriction, Malaysia Airlines is not referred to.

State /
Organisation

Ministry of The
Interior and
Kingdom
Relations of The
Netherlands

Page

89

Section /
Paragraph

6.3

Text to be corrected
(frst... last word)

Addition by the CTIVD is missing: It is then up to the AIVD to
consider whether the provision of information is one of its tasks.

Argumentation /
substantiation

Dutch Safety Board
response

For the full text, refer to Appendix T.

State /
Organisation

Ministry of The
Interior and
Kingdom
Relations of The
Netherlands

Page

89

Section /
Paragraph

6.3

Text to be corrected
(frst... last word)

It is important to explicate the interaction between the AIVDs
different legal tasks here. Namely that the focus of the AIVDs
A and D tasks arising from the WIV2002 does not involve
conducting research into the safety of an airspace. Since the C
task, which is being referred to here, is an extension of the A
task, it may have little or no relevant information related to the
safety of flight routes.

Argumentation /
substantiation

Dutch Safety Board
response

he footnote refers to the Appendix in which this is explained.

State /
Organisation

Ministry of The
Interior and
Kingdom
Relations of The
Netherland

Page

90

Section /
Paragraph

6.3

Text to be corrected
(frst... last word)

After the sentence: in accordance with the AIVDs policy
intention (motives) add: these factors offer an insight into the
severity and the probability of a threat. This makes it clear that
the AIVDs efforts are linked to those of the NCTV and that the
system is used of the Monitoring and Security system, of which
conceivable threats are an integral component.1
1. For details, see the circular on monitoring and security accessible to
the public (the new circular entered into force on 1 July 2015).
https://zoek.offcielebekendmakingen.nl/ … -3324.html

Argumentation /
substantiation

Dutch Safety Board
response

This part specifcally refers to the AIVD and the MIVD. For a
more comprehensive description, refer to Appendix T.

State /
Organisation

Ministry of
Foreign Affairs of
The Netherland

Page

94

Section /
Paragraph

Text to be corrected
(frst... last word)

Add nuance to The Dutch Safety Board civil aviation. The
embassy in Kyiv performed its task properly. The information
obtained was assessed in The Hague and used to arrive at the
necessary conclusions.

Argumentation /
substantiation

At several points it is stated that no connection was made between
risks the conflict posed to civil aviation. Here also applies that the
diplomatic service reported the information that was shared with it.
This information was used to arrive at specifc conclusions in The
Hague, i.e. AIVD/MIVD: there were no indications/actual threat. See
the AIVD/MIVDs wording on p. 92-93

Dutch Safety Board
response

This concerns a factual representation of the communications.
Moreover, the embassy reports concern not only a literal
account of what was shared, but also a political and military
interpretation thereof. Paragraph 8.4 explicitly states that
identifying risks to civil aviation is not one of the embassys or
the defence attachés tasks.

State /
Organisation

Ministry of The
Interior and
Kingdom
Relations of The
Netherlands

Page

106

Section /
Paragraph

7.3

Text to be corrected
(frst... last word)

Firstly, it requires an integral risk assessment to be performed.
Parties that view the conflict from a military or geopolitical angle
should be more aware of potential secondary effects on civil
aviation. Knowledge of the main flight routes could increase this
awareness. Airlines that want to fly over a conflict area must take
into account the potential risks posed by that conflict

Argumentation /
substantiation

Airlines can conduct independent research in this respect

Dutch Safety Board
response

The Dutch Safety Board agrees, but also sees a role for states in
this, as descibed.

10

State /
Organisation

Ministry of
Defence of The
Netherland

Page

106

Section /
Paragraph

Text to be corrected
(frst... last word)

In Chapter 7, on page 106, you state that domestic armed conflicts
could pose a risk to civil aviation due to their unpredictability. The
system of responsibilities and the risk assessment process are
allegedly inadequately equipped in this respect. You then
advocate more responsibility for states with regard to the safety of
their airspace, but also expect other parties to make additional
efforts. It is unclear whether you are alluding to an expansion of
the AIVD and MIVDs statutory safety and intelligence tasks, such
as conducting independent research into the safety of a foreign
airspace and the safety of flight routes. However, an assessment of
the threat to beneft the safety of civil aviation abroad includes
more aspects than just the safety of the airspace at cruising
altitude above ground. This especially concerns the safety on and
near the take-off and landing locations and flying above sea.
This would greatly expand the tasks of the intelligence services
and therefore demand an increase in the existing intelligence
capability. The proposed working method, which takes more
account of possible threats, risk-increasing factors and
conceivable scenarios could, in extreme cases, also lead to the
closure and/or signifcant diversion of many flight routes.
Consequently, it is unclear to us what recommendations you
specifcally have in mind

Argumentation /
substantiation

Dutch Safety Board
response

In Section 11, Recommendations, the required additional efforts
of parties are addressed.

State /
Organisation

Ministry of
Infrastructure and
the Environment
of The
Netherlands

Page

107

Section /
Paragraph

8

Text to be corrected
(frst... last word)

Here there is no context as to whether this was or was not
compulsory (please outline the legal context)

Argumentation /
substantiation

Dutch Safety Board
response

The Dutch Safety Boards reference framework is not limited to
the legal context (see Section 4.3).

State /
Organisation

Ministry of
Foreign Affairs of
The Netherland

[b]Page

107

Section /
paragraph
(e.g. 3.1.2)

8

Text to be corrected
(frst... last word)

Delete Consequently it was possible expanded

Argumentation /
substantiation

This conclusion could be made with the knowledge acquired with
hindsight, but could have far-reaching consequences for Ukraines
potential liability and must therefore be formulated with care. See
previous comments regarding that it cannot be ruled out that Ukraine
had no reason to assume that civil aviation risked any danger.

Dutch Safety Board
response

The Dutch Safety Board draws its conclusions based on the
signs that existed at the time, and the impact they should have
had on the risk assessment at that time. Liability does not come
into this.

State /
Organisation

Ministry of The
Interior and
Kingdom
Relations of The
Netherlands

Page

108

Section /
Paragraph

8

Text to be corrected
(frst... last word)

The AIVD cannot agree with the conclusion formulated with
regard to the Services activities. As explained above, the
Services also include the conceivable threat in the threat
analyses they provide, in accordance with the system of the
Circular on Monitoring and Security.
Moreover, it is indicated above that a great deal of relevant
information is publicly accessible and freely available to airlines,
which can use it to arrive at their own considerations.

Argumentation /
substantiation

Dutch Safety Board
response

The Dutch Safety Board clarifed the wording of these two
points in the report. For the sake of completeness: the
conceivable threat, according to the circular on Monitoring and
Security, is also based on the factors of intention, potential and
capability. The Board states that a risk can also be present if an
intention or capabilty is unclear

State /
Organisation

Ministry of
Infrastructure and
the Environment
of The
Netherlands

Page

125

Section /
Paragraph

Appendix B

Text to be corrected
(frst... last word)

Reference is made here to an Aviation Security Manual,
whereas ICAO refers to the National Civil Aviation Security
Program

Argumentation /
substantiation

Dutch Safety Board
response

ICAO stipulates that every state must introduce a National Civil
Aviation Security Programme. The Aviation Security Manual
specifes how the standards and recommendations of Annex 17
can be introduced in national legislation.

State /
Organisation

Ministry of
Infrastructure and
the Environment
of The
Netherlands

Page

188

Section /
Paragraph

Appendix F

Text to be corrected
(frst... last word)

In accordance with ICAO Annexes 17 and 6, the focus in Flight
Security as it is referred to here is not only on the on the
ground but also on in-flight security

Argumentation /
substantiation

Dutch Safety Board
response

The report points out that with regard to aviation security, the
focus is on the ground. Above the fgure it says: For airlines,
Annex 17 predominantly provides provisions related to airport
security or in-flight security. Security of flight routes through
foreign airspace is not included in the provisions.

11

State /
Organisation

USA/FAA

Page

Overall
Comments
regarding:
Operations
Specifcations

Section /
Paragraph

Overall
Comments
regarding:
Operations
Specifcation

Text to be corrected
(frst... last word)

Argumentation /
substantiation

Assuming that neither the FAA nor the air navigation service
provider managing the airspace has restricted or prohibited the
use of particular airspace, in choosing routes of flight, US Air
Carriers are required to adhere to their Operations Specifcations
(OpSpecs).
In general, OpSpecs are not prohibitive; they allow operations
within the requirements of the regulations in Title 14 CFR based on
specifc conditions and limitations. 14 CFR Part 121 Subparts E and
F contain the requirements for Approval of Routes.
119.49(a)(6),(b)(6) and (c)(4) (depending on the kind of operations
conducted) state that the certifcate holder must obtain operations
specifcations that list the areas of operations and, in some cases,
routes. OpSpec B050 lists the authorized areas of en-route
operation for the certifcate holder. How the general areas are
divided can be found in Order 8900.1, Volume 3, Chapter 18,
Section 4 for B050.

Dutch Safety Board
response

State /
Organisation

USA/FAA

Page

40

Section /
Paragraph

3.4

Text to be corrected
(frst... last word)

Non-concur with oversimplifcation of the graphic that
presents Ukrainian military aircraft shot down by the ProRussian separatists. The graphic should include an altitude
representation to more accurately represent and clarify the
signifcant difference in threat conditions based on aircraft
altitudes. As stated in the report, the separatists were known to
be supplied/equipped with MANPADS and AAA weapons capable
of engaging aircraft at lower altitudes. The separatists also had a
demonstrated intent to target military aircraft conducting combat
and combat support missions at lower altitudes. There was no
indication (as stated in the report) the separatists had any intent to
target civil aviation, and prior to July 17, there was no indication
that they had any operational weapon system capable of targeting
civil aviation at high altitude (e.g. MH17 at 33,000ft).

Argumentation /
substantiation

The graphic as presented gives the false impression that all of the
shoot downs were equal in circumstances. It fails to portray the
signifcant altitude difference between the low altitude shoot downs
of military aircraft conducting active combat operations or combat
support operations (less than 21,000ft) and the higher altitude attack
against a civil air carrier (MH17 at 33,000ft) flying a heavily travelled,
well-defned overflight air route on a pre-coordinated commercial
flight plan.
The Ukrainian-issued NOTAMs in place effectively prohibited civil
aviation in the altitude layers impacted by the lower altitude
separatist weapons systems and the associated military aircraft shoot
downs.

Dutch Safety Board
response

The fgure only includes incidents that were confrmed by the
Ukrainian authorities. The Ukrainian authorities provided an
altitude indication for three of these incidents: An-30, An-26,
Su-25.
The Dutch Safety Board concludes that the airspace restrictions
were inadequate for protecting civil aviation at greater altitudes
against the weapons systems that, according to the Ukrainian
authorities, were used on July 14 and July 16.

State /
Organisation

USA/FAA

Page

45

Section /
Paragraph

3.5

Text to be corrected
(frst... last word)

Add to the words Except for the FAA NOTAMs issued in the
spring of 2014, to the beginning of the following sentence,
Despite the Western political and military focus on the conflict,
its escalation and its air component, none of the politicians or
authorities quoted publicly made a connection between the
military developments in Eastern Ukraine and risks to civil air
traffc

Argumentation /
substantiation

As written, the sentence inaccurately suggests that the FAA had
made no public statements regarding hazards to civil aviation
resulting from the conflict in Eastern Ukraine. The FAA issues flight
advisories and flight prohibitions for U.S. civil aviation operating in
airspace that the U.S. does not manage via NOTAM. Flight prohibition
NOTAMs are followed up by flight prohibition SFARs, as appropriate.
For the FAA, these documents are public statements and, in addition
to publishing the information in the NOTAM system and, for SFARs, in
the Federal Register, the FAA publishes information about its flight
prohibitions and restrictions for U.S. civil aviation on the internet at
http://www.faa.gov/air_traffc/publicati … rictions/.

Dutch Safety Board
response

his paragraph concerns the interpretations of the conflict by
politicians and diplomats, not FAA publications.

State /
Organisation

USA/FAA

Page

47

Section /
Paragraph

3.7

Text to be corrected
(frst... last word)

This paragraph reflects inaccurate assumptions, as least so far as
the U.S. is concerned, about the role of the diplomatic corps in
addressing weapons-related hazards to civil aviation. In the U.S.,
it is the FAAs role, as the civil aviation authority, to make
determinations about whether it is safe for U.S. operators and
airmen to continue operating in particular airspace managed by
another State, in coordination with other elements of the U.S.
government, as appropriate

Argumentation /
substantiation

Protection of civil aircraft from aviation safety hazards related to
conflicts and other weapons-related situations has been and should
remain a technical matter for civil aviation authorities and air
navigation service providers to address, supported by those elements
of their respective governments who provide them with information
about risks to civil aviation, as opposed to a foreign affairs matter. We
would recommend that the Dutch Safety Board consider carefully the
potential negative impact on international aviation safety of making a
technical aviation safety matter the focus of international political
discussions between States

Dutch Safety Board
response

he fact that civil aviation authorities do perform risk
assessments of potential dangers posed to civil aviation by
conflicts does not rule out diplomatic services being able to
pick up signals of such dangers and passing them on to relevant
parties.

State /
Organisation

USA/FAA

Page

47

Section /
Paragraph

3.8
5.6
5.6

Text to be corrected
(frst... last word)

Non-concur with the similar implication in the following
sentences or statements, (pages 47, 80, 81)
During the period from 1 March through 17 July 2014, foreign
authorities and international organisations such as ICAO did not
issue any specifc safety warnings related to using the airspace
above Eastern Ukraine. In diplomatic circles, no connection was
made between the armed conflict and risks to civil aviation
either.
The FAA did not issue a ban or any other warnings related to
flying in the area above Eastern Ukraine.
Insofar as the Dutch Safety Board was able to ascertain, between
the end of April and 17 July 2014 no States issued any formal
warnings about the safety of the airspace in Ukraine, let alone
about the airspace above Eastern Ukraine. It was precisely during
this period that the conflict spread to the air.
These statements imply the FAA took no action to safeguard
civil aviation in eastern Ukraine during the time period prior to
the MH17 incident.

Argumentation /
substantiation

This is an inaccurate implication with regards to the FAA and the
United States.
The FAA actively monitored the conflict in eastern Ukraine for any
indication of change in the potential threat to U.S. civil aviation in
order to determine whether any action by the FAA was necessary. The
FAA along with other U.S. Government agencies monitored and
analysed the conflict for any indications that new separatist or Russian
anti- aircraft weapons were introduced or if there was an indication of
possible hostile intent toward civil aviation. The FAA also monitored
Ukrainian-issued NOTAMs to ensure that the steps being taken by
Ukraine, as the State responsible for providing air navigation services,
were suffcient to address the risks to U.S. civil aviation.
The FAA did issue NOTAMs in the spring of 2014 that advised of
hazards to U.S. civil aviation in all of the Ukrainian FIRs. However, the
FAA determined that there was no need to take additional action
between the time that it issued the second of the two April 2014
NOTAMs and the crash of MH17, since there were no indications of a
signifcant change in threat levels to U.S. civil aviation during that time
in airspace not already addressed by existing Ukrainian NOTAMs (e.g.
geographic-based altitude restrictions). Based on the information
available to the FAA at the time, the Ukrainian NOTAMs provided
suffcient protection for U.S. civil aviation for the assessed threat level

Dutch Safety Board
response

The wording has been specifed to the period during which the
conflict expanded to the airspace. In this period, not a single
state, for as far as the Dutch Safety Board was able to ascertain,
explicitly warned its operators and pilots that the airspace above
the conflict zone was increasingly unsafe, nor did they issue a
flight prohibition. This was also the case when, according to the
Ukrainian authorities, the shooting-down of an Antonov An-26 on
14 July 2014 and that of a Sukhoi Su-25 on 16 July 2014 occurred
while these aeroplanes were flying at altitudes beyond the
effective range of MANPADS.The weapon systems 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.

State /
Organisation

USA/FAA

Page

109

Section /
Paragraph

8

Text to be corrected
(frst... last word)

Non-concur with the statement, None of the aviation
parties involved adequately identifed the risks that the
armed conflict in Eastern Ukraine posed to civil air traffc
flying overhead. No integral risk assessment was performed

Argumentation /
substantiation

Dutch Safety Board
response

See above.

12

State /
Organisation

USA/FAA

Page

109

Section /
Paragraph

8

Text to be corrected
(frst... last word)

Non-concur with the statements, None of the other parties
involved - the airlines, the States of the Operators or third
parties such as ICAO - identifed potential risks that the conflict
in Eastern Ukraine posed to civil air traffc and The States that
did gather information about the conflict in Eastern Ukraine
focused on its potential geopolitical and military-strategic
consequences and not on its possible impact on civil aviation.

Argumentation /
substantiation

Same as above. This is an inaccurate statement with regards to the
United States. The FAA and other U.S. Government agencies
specifcally monitor, assess, and implement mitigating actions in
response to civil aviation safety/security concerns. This is done in
alignment with a Presidentially-directed National Strategy for Aviation
Security (March 2007) as it applies to the global air domain to use the
full range of its assets and capabilities to prevent the Air Domain from
being exploited by terrorist groups, hostile nation-states, and criminals
to commit acts against the United States, its people, its infrastructure,
and its other interests. Second, the Nation must ensure the safe and
effcient use of the Air Domain. Third, the Nation must continue to
facilitate travel and commerce.

Dutch Safety Board
response

See above

State /
Organisation

USA/FAA

Page

109

Section /
Paragraph

8

Text to be corrected
(frst... last word)

The system that is intended to ensure the safety of civil aviation
is not suffciently equipped for identifying and assessing the
risks that armed conflicts within States pose to civil aviation

Argumentation /
substantiation

Conclusion is based on a false premise that coordination beyond
basic safety risk does not exist in some States. The FAA consistently
collaborates with other U.S. Government agencies to ensure that the
identifcation and assessment of risk posed by armed conflicts is
factored into the evaluation of risk to U.S. civil aviation.

Dutch Safety Board
response

This conclusion concerns the system of responsibilities and
therefore goes further than a countrys working method. With
regard to the situation in the United States, the FAA says that
there were no indications of a signifcant change in threat levels.
Based on the analysis in its report, the Dutch Safety Board
concludes that there were indeed developments that implied a
change in the threat level.

State /
Organisation

USA/FAA

Page

143

Section /
Paragraph

Appx D

Text to be corrected
(frst... last word)

1980 DC-9 Aerolinee Itavia flight 870, crashed in the Tyrrhenian
Sea on 27 June 1980. On 23 January 2013, the highest Italian
legal authority ruled that there was clear evidence that it had
been shot down by an anti-aircraft missile

Argumentation /
substantiation

The cause of this crash has never been defnitively determined from a
technical perspective; suggesting the cause was a SAM is speculative
for this report

Dutch Safety Board
response

This section does not specifcally refer to a surface-to-air missile
(SAM), but to an anti-aircraft missile, which can also be an air-toair missile. The fact that no technical report was published does
not mean that there was no evidence of a shoot-down.

State /
Organisation

USA/FAA

Page

187

Section /
Paragraph

Appx F

Text to be corrected
(frst... last word)

There was also the idea that some authorities possessed threatrelated information that they could or should have shared.

Argumentation /
substantiation

Prior to the MH-17 shootdown, the FAA did not have any information
to suggest the presence in Eastern Ukraine of a separatist controlled
SA-11 or any other SAM system capable of targeting aircraft in
Eastern Ukraine (Dnepropetrovesk FIR) above the flight level of FL320
identifed in the Ukrainian NOTAM. At the time, the FAA maintained
a flight prohibition for US operators, US- registered aircraft and
US-certifcated airmen for the Simferopol FIR due to contested
airspace between Ukraine and Russia. FAA did provide US air carriers
classifed threat briefngs on the conflict in Eastern Ukraine to include
man-portable air defense systems (MANPADS) shootdowns of
Ukrainian military aircraft. It also confrmed that no US operators were
flying at altitudes that could be engaged by MANPADS

Dutch Safety Board
response

General statement; no specifc parties are mentioned here.

State /
Organisation

USA/FAA

Page

195

Section /
Paragraph

Appx F

Text to be corrected
(frst... last word)

In other countries, airlines revealed that they had to request
information and verify it using their own network. In these cases,
the contacts are often informal and personal, unstructured and
not institutionalised

Argumentation /
substantiation

While this can promote the free exchange of threat information, it also
can perpetuate bad information if the source is not known or vetted
by intelligence or other knowledgeable government entity (e.g.
Following MH-17 shootdown there was reporting in air carrier
channels of an alleged ISIL SA-11 threat in Iraq that was incorrect.)

Dutch Safety Board
response

It is up to the relevant parties to check information for
correctness as much as possible.

State /
Organisation

USA/FAA

Page

203

Section /
Paragraph

Appx F

Text to be corrected
(frst... last word)

Civil aviation played no role in these analyses. This explains why
they did not make a connection between the possible presence
of powerful surface-to-air missiles and risks to air traffc flying
over the area.

Argumentation /
substantiation

This is inaccurate. NOTAMs were issued by countries regarding the
threat situation and the possible impact to civil aviation. FAA began
warning in March 2014 when it issued Advisory NOTAM regarding the
potential risk from military activity to U.S. civil aviation in the fve
Ukrainian FIRs as a result of the separatist unrest and deepening
crisis. FAA later issued a flight prohibition NOTAM for Simferopol FIR
in April 2014 which was subsequently incorporated into SFAR-113.
However, there was no information to suggest that operational high
altitude SAMs were in the hands of the separatists or that the
separatists had an intent to threaten civil aviation; and therefore this
specifc threat (high altitude SAM) was not identifed in the FAAissued NOTAMs or SFAR

Dutch Safety Board
response

The NOTAM from March has been incorporated in the report.
The later NOTAMs did not specifcally concern the eastern part
of Ukraine and no longer referred to military (air) activities. The
FAA did not issue any new NOTAMs during the period in which
the conflict expanded to the airspace.

13

State /
Organisation

Russian
Federation

Page

35

Section /
Paragraph

3.1

Text to be corrected
(frst... last word)

This chapter describes information that the Dutch Safety Board
found in public and closed sources, related to the situation in
Eastern Ukraine during the period between 1 March and 17 July
2014. Were there events and developments prior to the crash of
flight MH17 that States or airline could have interpreted as
signals of a possible decrease in the safety of the airspace
above the area and thus of an increasing risk to aircraft flying
over it?

Argumentation /
substantiation

General comment to section 3 of the report:
The report uses multiple references to the sources of information mainly
limited by the statements of the US, NATO and Ukraine offcials, which
were not proved by any documents. The report does not mention the
materials from the briefng held by the Russian Ministry of Defense
(the link is given below) which presented the objective facts,
characterizing the threats to safety of civil aviation flights observed
before the crash on July 17, 2015.
http://www.mid.ru/brp_4.nsf/newsline/
f6c3bbd89ac2532d44257d1d00203ccf
It is necessary to complement the report with the data provided by
the Russian Ministry of Defense regarding MH17 crash.

Dutch Safety Board
response

The briefng referred to in the comment was held on 21 July
2014, four days after the crash. The section concerns signals
prior to the crash.

State /
Organisation

Russian
Federation

Page

36

Section /
Paragraph

3.3

Text to be corrected
(frst... last word)

Following Crimeas accession to the Russian Federation, the
Russian Federation issued NOTAMs for the Simferopol FIR
(Crimea), in which a Russian air navigation service provider for
Crimea was introduced. At the same time, the Ukrainian air
navigation service provider issued NOTAMs for that area, which
contradicted this message. This was followed by more NOTAMs
from Ukraine as well as from the Russian Federation. The situation
thus created led to the possibility that civil air traffc over the area
would receive conflicting instructions, as the various NOTAMs
made it clear that there were two air navigation service providers
that both claimed responsibility for air traffc management. This
could present a risk to the safety of air traffc due to possible
conflicting instructions.
On 2 April 2014, ICAO published a State Letter (EUR/NAT 14-0243.
TEC (FOL/CUP)) in which Member States were informed of the
potential risks to the safety of civil flights in the Simferopol FIR, as a
result of the conflicting instructions: Due to the unsafe situation
where more than one ATS provider may be controlling flights within
the same airspace from 3 April 2014, 0600 UTC onwards,
consideration should be given to measures to avoid the airspace
and circumnavigate the Simferopol FIR with alternative routings.
Also on 2 April, and in response to the ICAO State Letter, the
Network Manager at EUROCONTROL urgently recommended that
airlines avoid Crimean airspace (the Simferopol FIR) and select
alternative routes. On 3 April 2014, EASA issued a Safety
Information Bulletin (SIB), in which EASA highlighted ICAOs
warning.
In the State Letter, ICAO also announced it that would closely
monitor the developments together with all parties to detect any
potential dangers to civil aviation: ICAO continues to actively
coordinate with all involved authorities, international organizations,
airspace users and other States in the region regarding
developments as they unfold, specifcally those which could impact
flight safety.
However, during the period between 2 April through 17 July 2014,
the period during which the armed conflict in Eastern Ukraine
broke out and intensifed, ICAO did not refer again to the situation
in Ukraine

Argumentation /
substantiation

Proposed text:
1. Delete this text from the report.
2. Delete all references to the ICAO Letter EUR/NAT 14-0243.TEC
(FOL/CUP) of April 2, 2014 on Safety of civil aircraft operating in
the Simferopol Flight Information Region (FIR) as having no
relation to the review of flight safety issues over the armed conflict
zone in Dnepropetrovsk FIR.
Argumentation:
1. The crash of MH17 occurred in Dnepropetrovsk FIR. Simferopol FIR
has no relation to Dnepropetrovsk FIR covering the territory of
Eastern Ukraine both before and after ICAO letter of April 2, 2014.
2. In the flight safety report, Simferopol FIR is associated with the
events in Eastern Ukraine (Dnepropetrovsk FIR) for no reason at all.
This conclusion from the standpoint of international civil aviation
and ICAO standards is not supported and substantiated by any
facts at all.
3. The report completely distorts the idea of ICAO letter of April 2,
2014. The contents of item 3 of ICAO letter of April 2, 2014
unambiguously indicates that ICAO decision was not related to the
threats arising from the armed conflict zone requiring the action in
accordance with the recommendation of ICAO Doc 9554.

Dutch Safety Board
response

The developments in Crimea were relevant to understanding
why it was prohibited to fly over Crimea, which affected
decision-making pertaining to flight routes over the eastern part
of Ukraine

State /
Organisation

Russian
Federation

Page

41, 42

Section /
Paragraph

3.4

Text to be corrected
(frst... last word)

On 14 July, three days prior to the crash of flight MH17, a
Ukrainian air force transport aeroplane, an Antonov An-26, was
shot down in the Luhansk region, killing two members of the
crew. On the same day, Ukraines National Security and Defence
Council (RNBO) published a press release that Stated that the
aircraft was flying at an altitude of 6,500 metres when it was hit
(see the box for the text, literally translated into English). Given
this altitude, according to the Ukrainian authorities the aircraft
must have been hit by a more powerful weapon than a
MANPADS. The Ukrainian government assumed there were two
possibilities, either a modern Pantsir anti-aircraft system or an
X-24 air-to-air missile that was allegedly fred from a Russian
aeroplane. Both weapons systems could most probably reach
civil aeroplanes at cruising altitude, but this risk was not
mentioned by the Ukrainian authorities (see also chapter 4).
{}
According to a press release of 15 July 2014, a committee was to
investigate the causes of the crash and report on the matter.
However, no indications were identifed that established that the
results of this investigation were later published. In December
2014, President Poroshenko did award a posthumous medal to
the pilot of the AN-26, who died in the incident. The
corresponding press release States that the aeroplane was hit by
an air-to-air missile. It is relevant to the investigation into the
crash of flight MH17 that none of the public communications
established a connection with risks to civil air traffc

Argumentation /
substantiation

Proposed text:
Delete this text from the report and replace it with the following:
On April 14, 2014 the crash of Ukraine Armed Force Antonov-26
aircraft occurred in the area of Lugansk. Ukrainian authorities did not
investigate the Anotnov-25 crash and the causes of this accident
therefore remained unclear. The statement of Ukrainian offcials on
the circumstances of this crash contained the information which was
both contradictory and unconfrmed in by other sources and therefore
could not be used for risk assessment of civil aircraft flights in the
conflict zone. No relation between Boeing 777-200 (MH17) crash and
Antonov-26 crash was identifed during the investigation. The
hostilities in the territory of Ukraine had already taken place before
Antonov-26 crash, which required the Ukrainian authorities
responsible for provision of air traffc services to assess the hazards
for civil aircraft flights and determine whether it was necessary to
restrict flights in the conflict zone or continue flight operations with
due regard to the certain conditions as stipulated by item 10.3 of
ICAO Doc 9554. After the Antonov-26 crash, Ukrainian authorities did
not evaluate the flights safety risks over the armed conflict zone for
civil aircraft and did not take necessary measures to fully close the
airspace over Eastern Ukraine. This is an additional confrmation to
the fact that irrespective of the statements of Ukrainian offcials the
Antonov-26 was not hit by heavy anti-aircraft weapon system or airto-air rocket shot by an unknown aircraft. The provision of a priori
untrustworthy and distorted information by the offcial authorities of
Ukraine with the reference to a non-existing weapon system of the
Russian manufacture i.e. X-24 air-to-air missile could have
misinformed ICAO, other States as well as the airlines during the
planning of flights over the armed conflict zone.
The report reflects what the Ukrainian authorities reported
about the incident. The reports about the altitude and possible
weapons used are relevant to gaining insight into the decisionmaking process related to airspace management.
Argumentation:
1. The Antonov-26 crash of July 14, 2014 in the area of Lugansk is
mentioned throughout the report exclusively as an indirect
confrmation of use of heavy anti-aircraft weapon system in the
armed conflict zone creating the threat to safety of civil aviation.
No evidence of any relation between July 14 (Antonov-26) and July
17 (Boeing 777-200) events has been identifed during the
investigation. The offcial documents received in the course of
investigation do not provide any single proof of the Russian
Federations involvement in Antonov-26 crash.
2. The report does not consider the issue of deliberately distorting
the information on Antonov-26 crash by Ukrainian authorities which
repeatedly confrmed in other sections of the report including the
data from the Dutch Intelligence (section 6.4.2 of the report). In the
report the Antonov-26 crash is presented as the only circumstance
which should have encouraged the complete prohibition of flights
over Eastern Ukraine beforehand. However, the very fact that
Ukrainian authorities did not take adequate measures should have
aroused mistrust to the information they provided.

Dutch Safety Board
response

The report reflects what the Ukrainian authorities reported
about the incident. The reports about the altitude and possible
weapons used are relevant to gaining insight into the decisionmaking process related to airspace management.

State /
Organisation

Russian
Federation

Page

43

Section /
Paragraph

3.5

Text to be corrected
(frst... last word)

Public interpretations of the conflict by politicians and
diplomats.

Argumentation /
substantiation

Proposed text:
Exclude completely this section from the report as politically biased
and having no direct or indirect relation to the investigation
objectives established by Annex 13 to the Chicago Convention.
Argumentation:
1. In accordance with Standard 3.1, Annex 13 to the Chicago
Convention, the sole objective of the investigation of an accident
or incident shall be the prevention of accidents and incidents. It is
not the purpose of this activity to apportion blame or liability. The
objective of the MH17 crash investigation is not to establish the
reasons and analyze the development of the conflict in Lugansk
and Donetsk regions of Ukraine. The contents of section 3.5 do not
contain any analysis which could substantiate the recommendations
on flight safety. The section 3.5 does not meet the standard 3.1 of
Annex 13 to the Chicago Convention.
2. The section 3.5. reviews the statements of US politicians and NATO
offcials. The idea of all these statements is that the Russian
Federations Armed Forces reportedly participate in the conflict in
Eastern Ukraine. However, the report is missing any statements
from the offcials of the Russian Federation that repeatedly pointed
out at the direct safety threats arising from the armed conflict in
Eastern Ukraine

3. The list of reference to the statements of the offcials is done lopsided without regard to the fact that the investigation shall answer
the question as to why the Ukrainian authorities did not close the
airspace over the conflict zone before July 17, 2014?
In this connection for instance it would be worthwhile drawing
attention to the statement of Vladislav Seleznev, a Ukraine spokesman
for the antiterrorist operation (please see the reference link below)
made on July 12, 2014 on putting on highest alert Ukraines Air
Defense forces (highest degree of application readiness).
https://www.facebook.com/vladislav.sele … 7802786689
783?pnref=story
Also publicly available is the information broadcast on July 16, 2014
by the Offcial video hub of TV & radio studio of the Ministry of
Defense of Ukraine on the use of BUK-M1 anti-aircraft weapon system
for airspace control over the anti-terrorist operation zone in Eastern
Ukraine: https://www.youtube.com/watch?v=Q3MomxNHnUA
This statement and information from Ukraine Ministry of Defense
coincide with the data of the Russian Ministry of Defense presented
on July 21, 2014 on movement and intensifed activity of BUK-M1 antiaircraft weapon systems of Ukraine Armed Forces in the conflict zone.

Dutch Safety Board
response

The public statements are important for obtaining an idea of the
context in which the decision-making process about the flight
route and airspace management was organised

State /
Organisation

Russian
Federation

Page

45

Section /
Paragraph

3.6

Text to be corrected
(frst... last word)

Reports in the media related to possible available weaponry
capacity

Argumentation /
substantiation

Proposed text:
Delete completely this section from the report as politically biased
and having no direct or indirect relation to the objectives of the
investigation as established by Annex 13 to the Chicago Convention.
Argumentation:
The respective argumentation is given in the comments to section 3.5
of the report.

Dutch Safety Board
response

This paragraph is necessary to provide an effective overview
and understanding of the circumstances that could have
contributed to an assessment of the risks to civil aviation.

State /
Organisation

Russian
Federation

Page

45

Section /
Paragraph

3.7

Text to be corrected
(frst... last word)

Non-public sources.

Argumentation /
substantiation

Proposed text:
Delete completely this section from the report as politically biased
and having no direct or indirect relation to the objectives of the
investigation as established by Annex 13 to the Chicago Convention.
Argumentation:
The respective argumentation is given in the comments to section 3.5
of the report.

Dutch Safety Board
response

See above.

14

State /
Organisation

Russian
Federation

Page

47

Section /
Paragraph

3.8

Text to be corrected
(frst... last word)

Sub-conclusions.

Argumentation /
substantiation

Proposed text:
1. Change the date indicated in item 1 and 3 from April 1 to April 14.
2. State item 4 as follows: The cause of the Antonov-26 crash has not
been identifed The review of the statements made by Ukrainian
authorities on the causes of the Antonov-26 crash raises doubts
about their trustworthiness. There are no objective evidences that
the Antonov-26 crash was a result of it being hit by weapon. After
the Antonov-26 crash, the Ukrainian authorities did not take any
measures to completely ban flights of civil aircraft over the conflict
zone.
3. It is necessary to add one more conclusion: 5. The circulation of a
priori untrustworthy and distorted information by the Ukrainian
authority regarding the situation in Eastern Ukraine was creating
additional uncertainty concerning the decision-making on
continuation of flights over the armed conflict zone.
Argumentation:
1. The starting point for the armed conflict in Eastern Ukraine shall be
considered April 14, 2014 i.e. the issuance of Ukraine Presidents
Decree N 405/2014 On the decision of the National Security and
Defense Council of April 13, 2014 on the immediate actions on
overcoming the terrorist threat and saving the territorial integrity of
Ukraine.
2. In the course of the MH17 crash investigation by the international
commission established in accordance with Annex 13 to the
Chicago Convention, there was received no trustworthy
information on the circumstances and causes of Antonov-26 crash
on July 14, 2014 in the area of Lugansk.
3. The information contained in the report indicates that Ukrainian
authorities did not provide any trustworthy information on the
actual risks and threats to the safety of civil aircraft flights over the
conflict zone in Eastern Ukraine.

Dutch Safety Board
response

What the Ukrainian authorities, as the airspace manager,
established with regard to the events surrounding the Antonov
An-26 is relevant. The Dutch Safety Board does not provide any
political interpretation of these events.

State /
Organisation

Russian
Federation

Page

62

Section /
Paragraph

4.6

Text to be corrected
(frst... last word)

Since the actual management of the airspace above Eastern
Ukraine was the responsibility of the Ministry of Defence, the
civil air navigation service provider, UkSATSE, was no longer
able to effectively fulfl its role. However, the dominance
exercised by the Ministry of Defence did not release the
responsible people at the civil air navigation service provider
from their obligation to ensure the safety of civil air traffc.
UkSATSE and SASU Stated that they were not aware of the
substantive reasons for the airspace restrictions. Despite the
lack of information, the civil aviation authorities were of the
opinion that it was not necessary to avoid the conflict area and
that use of the airspace could continue subject to the conditions
of the cited altitude restrictions. However, since they did not
possess any information and the decisions made by the military
traffc control were not up for discussion, it was not possible for
UkSATSE and SASU to assess the military considerations. As a
result, they were not able to perform any assessments of their
own regarding the safety of civil air traffc

Argumentation /
substantiation

Proposed text:
After this text, add the following:
Pursuant to the information of the Russian Ministry of Defense
presented at the offcial briefng on July 21, 2014, on the date of
Boeing 777 crash, the Ukraine Air Defense command in the vicinity of
Donetsk had at least three - four divisions of BUK-M1 anti-aircraft
weapon systems which were capable of hitting targets at the range of
35 kilometers and at heights of up to 22 kilometers. By July 17, 2014
the activity of Ukraine radar stations 9S18 Kupol-M1 of BUK-M1 antiaircraft weapon systems was at maximum. Thus, if on July 15, 2014
there were 7 active stations, then on July 16 there were 8 and on July
17, 2014 there were 9. Starting from July 18, 2014 the activity of these
radar stations sharply decreased and equaled to 2-3 per day.
The reason for deploying such strong air defense command by the
Ukrainian Armed Forces in the vicinity of Donetsk remains unknown.
For example one of the justifcation for their deployment in the
conflict zone could be an exercise or an actual application against
aerial targets. In this case, in accordance with item 3.2 of ICAO Doc
9554 such military activity creates a potential threat to the civil aircraft
and therefore requires an appropriate coordination with ATS services
of Ukraine.
Further on July 17, 2014 neither primary radar data at Dnepropetrovsk
ACC nor primary radar data from Ukraines Air Defense was available,
which created additional risks unaccounted by Ukraines authorities in
case of possible disruptions on the ground or onboard the aircraft
flying over the armed conflict zone.
Thus, the military authorities and Ukraines Air Traffc Service units did
not coordinate their activities during deployment of heavy antiaircraft weapon system of Ukraines Air Defense (BUK-M1) in the
conflict zone as well as in the view of temporary unavailability of
primary radar data from both Dnepropetrovsk ACC and Ukraines Air
Defense, did not assess the risks and did not take additional safety
measures as required by Annex 15 to the Chicago Convention and
ICAO Doc 9554.
Argumentation:
Further on July 17, 2014 neither primary radar data at Dnepropetrovsk
ACC nor primary radar data from Ukraines Air Defense was available,
which created additional risks unaccounted by Ukraines authorities in
case of possible disruptions on the ground or onboard the aircraft
flying over the armed conflict zone.
Thus, the military authorities and Ukraines Air Traffc Service units did
not coordinate their activities during deployment of heavy antiaircraft weapon system of Ukraines Air Defense (BUK-M1) in the
conflict zone as well as in the view of temporary unavailability of
primary radar data from both Dnepropetrovsk ACC and Ukraines Air
Defense, did not assess the risks and did not take additional safety
measures as required by Annex 15 to the Chicago Convention and
ICAO Doc 9554.
Argumentation:
1. In accordance with items 10.2 and ICAO Doc 9554 the State
providing air traffc services in the airspace affected by a conflict
shall bear the responsibility for taking special measures aimed at
ensuring safety of international flights of civil aircraft. Ukraine was
responsible for taking such measures.2. This section makes an analysis only with regards to answering the
question whether the opposition forces possessed heavy types of
weaponry capable of destroying aircraft at high altitudes. No
consideration is given to an accidental rocket launch by Ukraines
Armed Forces in this section. Tough such risk can not be excluded
and it is assumed in section 7.3.3 of the report.3. This section of the report does not mention the presence of
Ukraines Armed Forces BUK-M1 anti-aircraft weapon systems in the
conflict zone. The objective data indicating this fact presented by
the Russian Ministry of Defense are not mentioned in this section.
The report does not either investigate the reasons for deploying
BUK-M1 in the conflict zone as well as the probability of their use.
4. This section does not consider the risk of an accidental (due to
improper operation or other factors) launch of Ukraines Air Defense
rocket against an aerial target, while there was such a precedent in
the past when Ukraine Armed Forces accidentally shot down Sibir
Airlines Tupolev 154 in 2001. Such risk should be separately
evaluated in the report considering the data presented at the
briefng of the Russian Ministry of Defense and intensifcation of
Ukraines Air Defenses activity a few days before the crash.

Dutch Safety Board
response

The proposed text is too far removed from the quoted text.

State /
Organisation

Russian
Federation

Page

64

Section /
Paragraph

4.7

Text to be corrected
(frst... last word)

The NOTAMs issued by the Ukrainian authorities also lacked
background information about the military nature of the
decisions. Therefore, users of the airspace were not informed
about the underlying reasons for the altitude restriction. As a
result, the Ukrainian NOTAMs did not draw their attention to the
need to perform their own risk assessment with regard to use of
the airspace above the conflict area in Eastern Ukraine. Chapter
5 discusses the decision-making process related to the use of
the airspace.

Argumentation /
substantiation

Proposed text:
Insert the following text after this text:
When introducing flight restrictions below FL260 and then below
FL320, the Ukrainian authorities did not develop and publish the
special procedures for the event covered by bullet e of item 3.9.
ICAO Doc 9554 (coordination in the event of aircraft emergencies
aircraft or other unforeseen circumstances).
Argumentation:
In accordance with the recommendation of item 3.1., ICAO Doc 9554
Coordination between the responsible military authorities and the
appropriate ATS authorities is essential to the safety of civil aircraft
operations whenever activities potentially hazardous to such
operations are planned and conducted by any military units. Pursuant
to item 3.9 ICAO Doc 9554 the objective of the normal co-ordination
process should be to reach agreement on coordination in the event
that civil aircraft emergencies or other unforeseen circumstances
require discontinuation of the activities or parts thereof.

Dutch Safety Board
response

The special procedures that are referred to involve the
possibility of stopping a military exercise in the event that an
aeroplane is in distress. This is clearly a provision for air
operations in peace time.

State /
Organisation

Russian
Federation

Page

66

Section /
Paragraph

4.7

Text to be corrected
(frst... last word)

4. The weapon systems that the Ukrainian State reported in
relation to the Antonov An-26 being shot down on 14 July
2015, could represent a danger to civil aeroplanes because
these weapons can reach aeroplanes cruising altitude.
However, this connection was not made and the airspace was
not closed as a precaution

Argumentation /
substantiation

Proposed text:
Add the following to this text:
There are no suffcient grounds to consider the information on
Antonov-26 being shot down to be objective and substantiated.
Argumentation:
The different sources of information used in the report actually show
that Anotonov-26 could not have been shot down by heavy antiaircraft weapon systems.

Dutch Safety Board
response

The Dutch Safety Board was not able to verify the exact event,
but deems this report by the Ukrainian authorities relevant to
the risk assessment by Ukraine.

State /
Organisation

Russian
Federation

Page

76

Section /
Paragraph

5.5

Text to be corrected
(frst... last word)

Malaysia Airlines says it was not aware of SFAR 113, issued by the
American aviation authority (Federal Aviation Administration,
FAA), dated 23 April 2014. In this safety warning, the FAA
banned American operators and pilots from flying over Crime

Argumentation /
substantiation

Proposed text:
Delete this text from the report.
Argumentation:
There are no biding requirements for the airlines to familiarize with
the internal documents of other States given that ICAO letter on
Simferopol FIR was issued 20 days before the FAA Directive. Besides
the report lacks the logical link between the need to jointly consider
the decision on introduction of flight restrictions in Eastern Ukraine
and the use of Simferopol FIR (which had no armed conflict)

Dutch Safety Board
response

The developments in Crimea were relevant to understanding
why it was prohibited to fly over Crimea, which affected
decision-making pertaining to flight routes over the eastern part
of Ukraine.

State /
Organisation

Russian
Federation

Page

78

Section /
Paragraph

5.6

Text to be corrected
(frst... last word)

The statement made by the Ukrainian authorities with regard to
the Antonov An-26 being shot down on 14 July, which referred
to long-range anti-aircraft missiles that can reach cruising
altitude, also did not constitute a reason for issuing a new State
Letter.

Argumentation /
substantiation

Proposed text:
State the text as follows:
The unjustifed and unconfrmed statements of the Ukrainian
authorities regarding the Antonov-26 aircraft on July 14, 2014 could
not become the basis for issuing a respective ICAO State letter.
Argumentation:
ICAO should not take decisions based on unverifed and unconfrmed
information whatever sources it may come from.

Dutch Safety Board
response

The fact that the Ukrainian authorities reported it as such makes
it relevant to an assessment of the risk analysis by Ukraine. ICAO
could have sought verifcation from Ukraine of these reports

15

State /
Organisation

Russian
Federation

Page

78, 79

Section /
Paragraph

5.6

Text to be corrected
(frst... last word)

ICAO stated that it did not receive any request for advice from
Ukraine pertaining to the possibility of taking safety measures.
With regard to the possibility of assisting a landing in the event
of an armed conflict, ICAO Doc 9554-AN/932, par. 10.10 says:
ICAO may assist in the development, co-ordination and
implementation of necessary safety measures in the event that
the State(s) responsible for the provision of air traffc services in
an area of armed conflict cannot, for some reason, adequately
discharge the responsibility referred to in 10.2 above. The
specifc nature and scope of such action will depend upon the
particular circumstances involved. In such circumstances, ICAO
will work in close coordination with the responsible State, with
other provider and user States concerned, and with IATA and
IFALPA

Argumentation /
substantiation

Proposed text:
Insert the following after this text:
As can be seen from the analysis of situations in other armed conflict
zones shown in section 4.5 of the report, ICAO has never used the
practice of issuing recommendations or restricting civil aircraft flights in
these countries. Consequently, while having the possibility as
described in item 10.10 ICAO Doc 9554, to offer Ukraine its assistance
to develop and implement necessary measures in Eastern Ukraine,
ICAO acted passively and did not take any necessary steps in this area.
Thus, Boeing 777-200 (MH17) crash shall be viewed with regards to the
fact that ICAO lacks leverages encouraging States to accomplish
coordination between the military and civil authorities to comply with
the requirements of the Chicago Convention and ICAO Doc 9554.
Argumentation:
The outcomes of the investigation indicate that Ukraines military and
civil authorities did not comply with the recommendations of ICAO
Doc 9554. This lead to the appearance of risks to flights of civil aircraft
over the armed conflict zone in Eastern Ukraine. In this situation after
July 14, 2014 based on the recommendations of item 10.10 ICAO Doc
9554, ICAO could have taken a more active stance in implementing
ICAO objectives as stated in part h of Article 44 of the ICAO
convention i.e. foster the safety of flights and international navigation

Dutch Safety Board
response

This point is already addressed in a different manner in
Section 6

State /
Organisation

Russian
Federation

Page

86, 87

Section /
Paragraph

5.9

Text to be corrected
(frst... last word)

1. Insofar as the Dutch Safety Board has been able to ascertain,
no airline altered its route for safety reasons related to the
conflict in Eastern Ukraine, not even as a result of the
Antonov An-26 being shot down on 14 July 2014, possibly
with a weapons system that could reach cruising altitude, as
suggested by the Ukrainian authorities. Data supplied by
EUROCONTROL revealed that from 14 through 17 July,
62 airlines from 32 countries used the airspace above Eastern
Ukraine. The airlines did not view developments on the
ground as a threat to their safety when flying overhead

Argumentation /
substantiation

Proposed text:
1. Add a new conclusion before this conclusion (change the
numbering of the conclusions) as follows:
1. As DSB could fnd out, Ukraines authorities did not issue
respective NOTAMs as stipulated by Annex 15 to the Chicago
Convention and recommendations of ICAO Doc 9554 confrming
the hazard of flying over the armed conflict zone in Eastern
Ukraine.
2. This conclusion (lines 39 - 42) shall be paraphrased as follows:
3. Ukrainian authorities did not take all necessary measures aimed at
ensuring safety of civil aircraft in the airspace of Dnepropetrovsk
FIR after the Antonov-26 crash on July 14, 2014 and deployment of
BUK anti-aircraft weapon systems by Ukrainian Armed Forces in the
conflict zone. Meanwhile, the regular references to the Antonov-26
crash, including in the preliminary conclusions were based on
unproved statements of the Ukrainian offcials that were in
contradiction with their further actions (inactions) with respect to
exclusion of risks to ensure safe air traffc in Dnepropetrovsk FIR.
Argumentation:
1. The conclusion is based on the false statement that Antonov-26
was hit by a heavy anti-aircraft weapon. No evidence was
presented either at the moment of the crash or afterwards
confrming that the Anotonov-26 was indeed shot down by a longrange air-to-air or ground-to-air rocket.
2. The report does not consider the possibility of deliberate
misinformation or disclosure of partial or unverifed information by
Ukraines military authority. The lack of further steps by Ukraines
aviation authorities aimed at full closure of the airspace over the
conflict zone underlined the fact that the information on
Antonov-26 crash was not trustworthy
3. As indicated in the report, Ukraine was issuing NOTAMs to ensure
restriction-free flying of Ukraines Air Force below FL320 rather
than preventing the threat of shooting down the civil aircraft from
the ground or in the air which also confrms the untrustworthiness
of the statements made on the Antonov-26 crash. All the
information both from offcial and unoffcial sources provided in
the DSB report indicates that the opposition forces at Lugansk and
Donetsk regions of Ukraine did not possess ground-to-air rockets
able to hit high-flying targets.

Dutch Safety Board
response

The Dutch Safety Board was unable to verify the circumstances
surrounding the crash of the Antonov An-26. If the Ukrainian
authorities issued their own reports about it, this is mentioned in
the text. The weapon systems cited by RNBO can hit aeroplanes
at higher altitudes. The Dutch Safety Board deems this report
relevant to the risk assessment by Ukraine.

State /
Organisation

Russian
Federation

Page

87

Section /
Paragraph

5.9

Text to be corrected
(frst... last word)

3. Airlines and the States in which the airlines are based did not
realise that the armed conflict in Eastern Ukraine constituted a
potential threat to civil aviation. They assumed that the open
airspace (above FL320) was safe. This was despite the fact that
the conflict was increasingly spreading to the air and the
possible presence of weapon systems that could reach civil
aeroplanes at cruising altitude.

Argumentation /
substantiation

Proposed text:
Delete the following words from the last sentence: and the possible
presence of weapon systems that could reach civil aeroplanes at
cruising altitude.
Argumentation:
The only factor that could indirectly indicate a potential risk for flights
of civil aircraft was the deployment of BUK type anti-aircraft weapon
systems by Ukraine authorities in the conflict zone on the ground of
conducting exercises or protection of their airspace. Nevertheless the
information on the deployment of weapon systems was not
considered by Ukraine authorities as the basis for safety
considerations under Annex 15 and recommendations of ICAO Doc
9554. Ukraine authorities did not either issued a respective NOTAM
based on this information which did not allow the airlines and other
States taking adequate safety measures well beforehand

Dutch Safety Board
response

The conclusion refers to reports by the Ukrainian authorities
about the weapon systems used. The Dutch Safety Board deems
this report relevant to the assessment of the risk analysis by
Ukraine.

State /
Organisation

Russian
Federation

Page

96

Section /
Paragraph

6.4.2

Text to be corrected
(frst... last word)

In addition to the Separatists, two other parties were involved in
the conflict in Eastern Ukraine, namely the Ukrainian armed
forces and the Russian armed forces

Argumentation /
substantiation

Proposed text:
1. Delete this text.
2. In the text of the report the term separatists shall be replaced
with the term rebels as recommended by OSCE.
Argumentation:
Any mentioning of Russian Armed Forces shall be excluded as the
Russian Federation is not a party of this conflict.

Dutch Safety Board
response

The terminology has been changed to armed factions fghting
the Ukrainian government.

State /
Organisation

Russian
Federation

Page

106

Section /
Paragraph

7.3.4

Text to be corrected
(frst... last word)

The scenario involving civil aeroplanes at cruising altitude being
hit, either intentionally or unintentionally, by anti-aircraft missiles
or air-to-air missiles is improbable, also from the perspective of
risk analysis. Statistically, the probability of such an event taking
place is low. Similar events only occurred a few times in the past
(see Appendix D). In relation to the total number of civil flights,
the number is so small that statistically the probability is
extremely low

Argumentation /
substantiation

Proposed text:
Add the following text after this text:
All the accidents listed in Appendix linked to shooting of civil aircraft
are associated with the activities of the military units of the offcial
authorities. There are no known cases (including MH17 crash) when
opposition forces had an opportunity to utilize heavy weapon
systems again high flying civil aircraft. Besides, the offcial authorities
have a greater potential and motivation to prevent the use of such
types of weaponry, including by the groups controlled by individual
politicians or the so-called business oligarchs who possess signifcant
fnancial resources, exercise large influence and have a wide scope of
personal interests. The probability of using heavy weapon systems by
illegal armed groups in Ukraine who are not part of the offcial armed
forces or the rebels but are rather controlled by the Ukrainian
oligarchic entities should not be disregarded. Consequently, the
probability of uncoordinated actions or inaction of various agencies
and detachments of the offcial authorities represents an even higher
risk for flight safety. Mitigation or exclusion of this risk is done through
the appropriate oversight by ICAO of compliance with the generally
accepted flight safety standards such as Annex 15 and ICAO Doc
9554..
Argumentation:
The inclusion of the proposed text to the report is necessary to
highlight the responsibility of State for timely reacting to the existing
and potential threats arising from the military activity

Dutch Safety Board
response

The passage concerns a statistic approach of risks. Elsewhere in
this report it is stressed that risk-enhancing factors should also
be considered in the risk assessment.

State /
Organisation

Russian
Federatio

Page

109

Section /
Paragraph

8.1

Text to be corrected
(frst... last word)

c. None of the other parties involved - the airlines, the States of
the Operators or third parties such as ICAO - identifed
potential risks that the conflict in Eastern Ukraine posed to
civil air traffc. Airlines assumed that any open airspace was
safe, did not receive any information pertaining to the
underlying reasons for the closures of portions of airspace,
and did not perceive any threat for overflying as a result from
developments on the ground. None of the airlines stopped
flying over Eastern Ukraine as a result of the armed conflict in
the area. The States that did gather information about the
conflict in Eastern Ukraine focused on its potential
geopolitical and military-strategic consequences and not on
its possible impact on civil aviation.

Argumentation /
substantiation

Proposed text:
The following text shall be added after this text:
The absence or provision of distorted (untrustworthy) information by
Ukraine about possible risks of flying over the armed conflict zone
would eliminate the possibility of their evaluation and mitigation of
the consequences.
Argumentation:
See the comments to the other parts of the report.

Dutch Safety Board
response

The proposed text is not supported by the fndings in this
investigation.

16

State /
Organisation

Russian
Federation

Page

110

Section /
Paragraph

8.2

Text to be corrected
(frst... last word)

c. It is diffcult for airlines to gather the information they need to
adequately assess the risks involved in overflying conflict
areas. When States possess information that is relevant to this
risk assessment, it is desirable that they share this information
with the airlines in a structured manner. In addition, States
that collect information about conflict areas could take
airspace usage patterns by civil aviation more into account

Argumentation /
substantiation

Proposed text:
The following text shall be added after this text:
While analyzing the information in the conflict zone, the States,
airlines and ICAO should consider such factors as provision of false,
strongly distorted or unverifed information by the conflicting parties
which would mean that the possible risk awareness would be
incomplete or erroneous.
Argumentation:
See the comments to the other parts of the report.

Dutch Safety Board
response

The proposed text is not supported by the fndings in this
investigation.

State /
Organisation

Ukraine

Page

General
comments

Section /
Paragraph

General
Comments

Text to be corrected
(frst... last word)

Argumentation /
substantiation

The format of fnal report recommended by Annex 13 to the
Convention on International Civil Aviation should be applied to this
document (draft fnal report should be sent to States involved as one
structured document).
The report contains a large number of politically charged statements/
references, broadly reflecting the views of the Russian Federation on
the nature, underlying causes and drivers of the crisis in and around
Ukraine. Among those there is the assessment of the Russian
aggression as an intra-national (or intra-state) conflict throughout the
text. Importantly, the role and involvement of the Russian Federation,
its offcials and military units in igniting the hostilities as well as in
willful fnancing and supplying arms, personnel and equipment
(including those capable of bringing about the downing of MH17) to
the conflict area have been scarcely reflected in the text. Moreover,
the document contains some information based on unclear sources.
Similar concerns arise as to various references in the report to the
developments in and around the Autonomous Republic of Crimea
and the city of Sevastopol, which ignore the unlawful nature of their
occupation, pre-planned (and publically recognized as such by
Russias offcials) and carried out by the Russian military, and their
illegal annexation by the Russian Federation. Thus, the report fts in
the general pattern of Russias narrative regarding the events in
Ukraine: the conflict is internal by its nature, of which the separatists
and the Ukrainian government are the sides, and the incorporation of
the Crimean peninsula into the Russian Federation was not a result of
illegal occupation and annexation but rather the decisions taken by
the Crimean legitimate authorities. Ukraine resolutely rejects this
interpretation.
In view of the above, the references to separatists in the text do not
cover participation of Russian military personnel and/or military units
in the hostilities and should be replaced with a more general term
illegal armed groups or militants, while the developments in the AR
Crimea and the city of Sevastopol should be termed as illegal
occupation/annexation by the Russian Federation. In the same vein,
the defnition intra-national conflict should be deleted throughout
the text, while the word conflict should be suffcient and neutral
enough to refer to the developments in the eastern part of Ukraine.
In addition, there is a need to move to chapter Defnitions and
Abbreviation the defnition of conflict area, (page 33 of the draft
report). In our opinion, such a defnition needs to be modifed in the
following way:
The Dutch Safety Board defnes conflict areas as area of certain
districts of Donetsk and Luhansk regions of Ukraine, in which the
counter-terrorist operation is taking place between Ukrainian
government armed forces and illegal armed formations, groups,
irregulars and mercenaries fnanced, aided and abetted by the
Russian Federation, including Russian military personnel, who carry
out acts of armed force.
Also it is important to replace throughout the text the words Eastern
Ukraine with eastern part of Ukraine as the hostilities take place only
in the small part of the two Eastern regions of Ukraine.
The document containes a large number of references to ICAO
documents accompanied by their various interpretations. It is the
opinion of the Ukrainian side that ICAO documents should be quoted,
referred to or otherwise used in the text without interpretation to
avoid misunderstandings or misleading conclusions.
Information provided by Ukraine was not always correctly reflected by
the Dutch Safety Board in the report. Therefore, conclusions
contained in some parts of the report should be revised, in order to
properly reflect the information earlier provided by the Ukrainian side
both in writing and orally. (Additional information recently requested
by the Dutch Safety Board will be provided by the Ukrainian side in
the near future.)
It should also be noted that conclusions in the draft report Flight
MH17 and flying over conflict areas do not correspond to conclusions
contained in the draft report Crash of Malaysia Airlines Boeing 777-
200, 9M-MRD, flight MH17. Moreover, safety recommendations are
absent in the text of the former and the purpose of that document is
not quite clear, considering that the main objective of the
investigation is to prevent such events in the future.
Absence of - the text proposed by the Ukrainian Side to be deleted
or modifed. with aviation activities - the text proposed by the
Ukrainian Side to be added.

Dutch Safety Board
response

The Dutch Safety Board does not provide any political
interpretation of the conflict and strives to use politically neutral
terms as much as possible. Interpretations by other parties are
those parties responsibility.

State /
Organisation

Ukraine

Page

14

Section /
Paragraph

Abbreviations
and
Defnitions

Text to be corrected
(frst... last word)

Security Absence of (ie protection against) external threats
(intentional)
Security refers to the protection against threats that stem from
intentional acts (e.g. terrorism) or unintentional acts (e.g. human
error, natural disaster) affecting aircraft, people or installations
on the ground. Adequate security is a major expectation of the
ATM community and of citizens. The ATM system should
therefore contribute to security, and the ATM system, as well as
ATM-related information, should be protected against security
threats. Security risk management should balance the needs of
the members of the ATM community that require access to the
system, with the need to protect the ATM system. In the event
of threats to aircraft or threats using aircraft, ATM shall provide
the authorities responsible with appropriate assistance and
information

Argumentation /
substantiation

ICAO defnition of Security should be used (ICAO Annex 17, Doc
9854 Global Air Traffc Management Operational Concept). The
document contains a lot of references to ICAO docs. Therefore, usage
of terms different from ICAO defnitions leads to misunderstanding or
misinterpretation.

Dutch Safety Board
response

Safety in the broad sense of the word is intended here,
encompassing safety as well as security. See also Section 12,
Abbreviations and Defnitions.

State /
Organisation

Ukraine

Page

25

Section /
Paragraph

2.1

Text to be corrected
(frst... last word)

This chapter describes the tasks and responsibilities of the
parties involved in the safety of civil airspace securit

Argumentation /
substantiation

The term safety of airspace is inconsistent and should be replaced
with Airspace Security (defnition provided by Eurocontrol Manual for
National ATM Security Oversight properly reflects the subject of the
Report).

Dutch Safety Board
response

The Dutch Safety Board uses the term safety of airspace based
on the consideration that this is the desired situation, which is
achieved by including threats as well as hazards. In this
approach, airspace security is a part of airspace safety and
includes the analysis of threat information and the measures
based thereon

State /
Organisation

Ukraine

Page

28

Section /
Paragraph

2.3.1

Text to be corrected
(frst... last word)

It is not explicitly established anywhere that the State managing
the airspace must should guarantee the safety of the airspace
concerned airspace security.
Each contracting State may, for reasons of military necessity or
public safety, restrict or prohibit uniformly the aircraft of other
States from flying over certain areas of its territory, provided that
no distinction in this respect is made between the aircraft of the
State whose territory is involved, engaged in international
scheduled airline services, and the aircraft of the other
contracting States likewise engaged.
Such prohibited areas shall be of reasonable extent and location
so as not to interfere unnecessarily with air navigation.

Argumentation /
substantiation

The term safety of airspace is inconsistent and should be replaced
with Airspace Security (defnition provided by Eurocontrol Manual for
National ATM Security Oversight properly reflects the subject of the
Report).
See ICAO Doc 7300 Article 9.

Dutch Safety Board
response

Must has been replaced by should; also see above.

State /
Organisation

Ukraine

Page

35

Section /
Paragraph

3.1

Text to be corrected
(frst... last word)

Were there events and developments prior to the crash of flight
MH17 that States or airline could have interpreted as signals of a
possible decrease in the safety of the airspace of the airspace
security above the area and thus of an increasing risk to aircraft
flying over it?

Argumentation /
substantiation

Annex 17 ICAO considers the destruction of an airplane in service as
an unlawful act of interference

Dutch Safety Board
response

The Dutch Safety Board uses the term safety of airspace based
on the consideration that this is the desired situation, which is
achieved by including threats as well as hazards. In this
approach, airspace security is a part of airspace safety and
includes the analysis of threat information and the measures
based thereon

17

State /
Organisation

Ukraine

Page

36

Section /
Paragraph

3.3

Text to be corrected
(frst... last word)

The Dutch Safety Board examined the extent of the availability
of aeronautical information that could have signalled increasing
deterioration of the safety of the airspace security above
Eastern Ukraine (also refer to Figure 2).

Argumentation /
substantiation

Defnition airspace security provided by Eurocontrol Manual for
National ATM Security Oversight properly reflects the subject of the
Report

Dutch Safety Board
response

ICAO defnitions allow room for the selected interpretation,
which includes accidents as well as intentional acts.

State /
Organisation

Ukraine

Page

38

Section /
Paragraph

3.3

Text to be corrected
(frst... last word)

On 16 July 2014, the Russian Federation authorities published
two NOTAMs
The aforementioned FL530 that is specifed at the end of the
NOTAM is much higherthan the Ukrainian airspace restriction.

Argumentation /
substantiation

Dutch Safety Board did not defne why and how Russian Federation
decided (decision making process) to close airspace up to FL320 at
ATS routes segments and why the NOTAM published on July 16
entered into force on July 17, which may indicate planned Russian
military actions at the Ukrainian territory.

Dutch Safety Board
response

The considerations cited here are not substantiated with facts.
De Dutch Safety Board did not receive any clarity on the
meaning of the restriction to FL530.

State /
Organisation

Ukraine

Page

38

Section /
Paragraph

3.4

Text to be corrected
(frst... last word)

During the period between the conflict breaking out in Eastern
Ukraine the eastern part of Ukraine in March 2014 and the day of
the crash of flight MH17 on 17 July, a number of Ukrainian
military aircraft were shot at by the illegal armed groups with the
support from the territory of Russian Federation (mostly from
the ground).

Argumentation /
substantiation

Illegal armed groups were, and until present remain, under effective
control of the Russian Federation, receiving fnancial and other forms
of support from Russia

Dutch Safety Board
response

The account is factual without going into the question of who
was responsible for the shootings.

State /
Organisation

Ukraine

Page

42

Section /
Paragraph

3.4

Text to be corrected
(frst... last word)

It is relevant to the investigation into the crash of flight MH17
that none of the public communications established a
connection with risks to civil air traffc

Argumentation /
substantiation

Considering the ongoing investigation into the downing of the
military plane which was flying at an altitude of 6,500, it was not
possible to predict with due certainty, within such a short period of
time, the consequences and the risks to civil aviation

Dutch Safety Board
response

Given the statements by Ukrainian authorities on the weapon
systems that were probably used and the altitude of the
aeroplanes

State /
Organisation

Ukraine

Page

47

Section /
Paragraph

3.8

Text to be corrected
(frst... last word)

The weapon systems that the authorities cited in their public
Statement are most probably capable of reaching cruising
altitude and can therefore pose a risk to civil aviation. However,
this connection was not established - not by the Ukrainian
authorities, but also not by Western diplomats, who had their
doubts about the degree of truthfulness of Ukrainian reports
about the altitude at which the Antonov An-26 had been shot
and the presence of weapon systems with this kind of range in
the conflict area.
The aircraft was hit by a weapon system probably capable of
reaching cruising altitude, which most likely fred from the
Russian Federation. Upon available information, illegal armed
groups did not have such type of weapon.
Ukraine is not able to assess unexpected threats arising from
undeclared military activity of neighbouring State. The shooting
down of civil aircraft by Military Forces of neighbouring State
was not considered as a realistic scenario. (see comments to
section 3.4).
However, the connection between shooting down of Antonov 26
and risks to civil aviation was established neither by the
Ukrainian authorities, nor by Western diplomats.

Argumentation /
substantiation

Considering the available information, it was not possible to estimate
with due certainty, within such a short period of time, whether such
weapon systems can be used against civil aircrafts.
There is nothing in the report and there is no single reference to a
credible source or fact suggesting that Western diplomats [] had
doubts about the degree of truthfulness of Ukrainian reports. Such
meritless and ungrounded statements undermine the credibility of
the report.

Dutch Safety Board
response

Responsibility for the safety of its airspace for civil aviation
means that all hazards to civil aviation in that airspace,
intentional as well as unintentional, must be recognised.

State /
Organisation

Ukraine

Page

54

Section /
Paragraph

4.3

Text to be corrected
(frst... last word)

Later it was revealed that there would have had to be a formal
reason for closing the airspace. UkSATSE felt that until the
report on the investigation into the exact cause of the crash of
the AN-26 had been published, there was no such formal
reason

Argumentation /
substantiation

This conclusion does not follow from the written response of
UkSATSE.
The only reason for closing the airspace at that moment would be the
availability of offcial request or information about hazards for civil
aircraft in defned volume of airspace.
The aircraft was hit by a weapon system probably capable of reaching
cruising altitude, which most likely fred from the Russian Federation.
Upon available information, illegal armed groups did not have such
type of weapon.
Ukraine is not able to assess unexpected threats arising from
undeclared military activity of neighbouring State. The shooting down
of civil aircraft by Military Forces of neighbouring State was not
considered as a realistic scenario. (see comments to section 3.4, p. 41)

Dutch Safety Board
response

Responsibility for the safety of its airspace for civil aviation
means that all hazards to civil aviation in that airspace,
intentional as well as unintentional, must be recognised.

18

State /
Organisation

Ukraine

Page

56, 57

Section /
Paragraph

4.4

Text to be corrected
(frst... last word)

Financial consequences (entire chapter should be deleted

Argumentation /
substantiation

Financial aspects are not the subject of investigation in accordance
with ICAO Annex 13. They do not have any relations to the airspace
management in Ukraine

Dutch Safety Board
response

For the investigation, all the factors that could play a role in the
decision-making process are important, including potential
fnancial consequences

State /
Organisation

Ukraine

Page

61, 62

Section /
Paragraph

4.5

Text to be corrected
(frst... last word)

In conflicts in which States are involved (directly or indirectly)
that possess these types of weapon systems, it is possible that
these weapons will become available for non-State related
armed factions. A number of conflict areas have seen fghting
factions seizing such types of systems that pose a risk threats to
civil aviation from the States armed forces or obtaining them
from another State or organization involved in conflict. It cannot
be ruled out that these factions possess the knowledge and skill
needed to actually use the seized systems, or that they are able
to obtain the necessary knowledge and skill by supporting
another State or organization involved in conflict.

Argumentation /
substantiation

There could be another ways for terrorists to obtain weapon,
necessary knowledge and skills.

Dutch Safety Board
response

The wording does not rule out these other possibilities

State /
Organisation

Ukraine

Page

62

Section /
Paragraph

4.6

Text to be corrected
(frst... last word)

This decision involved the consideration that military air traffc
had to be able to fly unhindered to and from the areas where
operations were being carried out. In determining this altitude,
the military authorities assumed that Ukraines enemies only
possessed MANPADS, which have a limited altitude range. The
decision was therefore prompted by the possibility that military
planes could be hit by weapons from the ground. According to
the Ukrainian authorities, the safety of civil air traffc was
ensured by allowing this traffc to only fly above FL260. In other
words, any consideration of the safety of civil aviation was only
related to preventing collisions between civil air traffc and the
lower-flying military air traffc and the notion that military air
traffc had to be able to fly unhindered. The military authorities
viewed the possibility that weapons from the ground could
present a danger to civil aircraft at cruising altitude as unrealistic
and Stated that they did not include this possibility in their
considerations.
The decision was based on information available about weapon
systems used in conflict zone in the Eastern part of Ukraine.
When restricting the airspace to FL260, Military authorities did
consider that military flight at FLs 230 and 240 could not be hit
from the ground and there were no associated threats for
military flights. Consequently, it would be safe for civil aviation
to perform flights at higher flight levels taking into account
buffer zone - 3000 feet. That is why the military authorities
viewed the possibility that weapons from the ground could
present a danger to civil aircraft at cruising altitude as
unrealistic.

Argumentation /
substantiation

The statement made by the Dutch Safety Board misinterprets
information offcially provided by Ukraine.
As we suggested earlier military and civil aviation authorities
considered dangers to civil aviation

Dutch Safety Board
response

The weapon systems and altitudes cited by Ukraine in its
statements also represent a hazard to civil aviation at cruising
altitude. A possible threat to civil air traffc from the ground did
not play an explicit role in establishing the airspace restriction to
FL260.

State /
Organisation

Ukraine

Page

62

Section /
Paragraph

4.6

Text to be corrected
(frst... last word)

As a result, the Ukrainian authorities supposedly had a limited
ability to adequately estimate the safety of the airspace.

Argumentation /
substantiation

The text should be deleted as unwarrantable assumptions. Moreover
the safety is not a subject of consideration within the volume of
restricted airspace

Dutch Safety Board
response

The text is based on statements by the Ukrainian authorities.
The possible presence of aircraft, especially military aircraft,
making unauthorised use of the airspace could pose a risk to
civil aviation

State /
Organisation

Ukraine

Page

63

Section /
Paragraph

4.6

Text to be corrected
(frst... last word)

Such a development may constitute a threat to civil aviation
because the increase in military air traffc and shootings at
military aeroplanes also increase the risk that a civil aeroplane
could be hit.

Argumentation /
substantiation

The text should be either deleted as an unwarrantable assumption or
modifed.
There is no basis for this conclusion, as information from the Ministry
of Defence used by UkSATSE at that time did not provide suffcient
grounds for closing the entire airspace. Moreover, the Ukrainian
authorities, taking into consideration the relevant concerns of the
military, established an additional buffer zone in order to provide
additional flight safety for civil aircraft. All these measures were in line
with the provisions of the Convention on International Civil Aviation
(Chapter 9), its Annex 11 and ICAO Doc 9554-AN/932

Dutch Safety Board
response

Given the statements by Ukrainian authorities on the weapon
systems that were probably used and the altitude of the
aeroplanes shot down, the Dutch Safety Board also believes that
measures should have been taken as a precaution.

State /
Organisation

Ukraine

Page

64

Section /
Paragraph

4.6

Text to be corrected
(frst... last word)

UkSATSE and SASU Stated that they were not aware of the
substantive reasons for the airspace restrictions. Despite the
lack of information, the civil aviation authorities were of the
opinion that it was not necessary to avoid the conflict area and
that use of the airspace could continue subject to the conditions
of the cited altitude restrictions. However, since they did not
possess any information and the decisions made by the military
traffc control were not up for discussion, it was not possible for
UkSATSE and SASU to assess the military considerations. As a
result, they were not able to perform any assessments of their
own regarding the safety of civil air traffc.
UkSATSE and SASU stated that they were aware of the main
reason for the airspace restrictions below FL320. However there
was no information regarding any threats above. Therefore,
there was no reason to doubt the safety of civil air traffc above
airspace restrictions.

Argumentation /
substantiation

Viewed from the perspective of the Ukrainian civil aviation authorities
the necessity of airspace restriction was to protect civil aviation from
military activity.
The statement should reflect the reality and information provided by
Ukraine. Other mentioned statements are based on assumptions and
incorrect interpretations of information provided by Ukraine.

Dutch Safety Board
response

The statements made by the Ukrainian authorities in which they
reported that a military aeroplane had been shot down on
14 July, and in which they mentioned weapon systems that were
able to reach the cruising altitude of civil aeroplanes, provided
suffcient reason for closing the airspace above the eastern part
of Ukraine as a precaution.

19

State /
Organisation

Ukraine

Page

64

Section /
Paragraph

4.6

Text to be corrected
(frst... last word)

The parties concerned did not use the opportunity to explain
the content of the restrictions issued, as recommended in ICAO
Doc 9554-AN/932. In this (non-binding) document, ICAO
prescribes that, in the case of conflicts, information must be
provided in NOTAMs about the nature of a threat that forms the
rationale for the NOTAM.

Argumentation /
substantiation

The text should be either deleted or modifed.
As it is mentioned in the report, ICAO Doc 9554-AN/932 is a nonbinding document and does not prescribe to the States to provide
information about the nature of the activities in restricted area or
threats.
Nevertheless, all airspace closures were set in accordance with the
forementioned ICAO Doc.
Doc 9554 contains only two examples of NOTAM. No references in
the text of the document that obligue the States to publish reason of
airspace restriction set. Para 10.3 of Doc 9554 An international
NOTAM containing the necessary information, advice and safety
measures to be taken should then be issued and subsequently
updated in the light of developments.

Dutch Safety Board
response

The altered text makes it clearer that ICAO Doc 9554 AN/932 is
non-binding. However it isnt non-committal either.

State /
Organisation

Ukraine

Page

65

Section /
Paragraph

4.6

Text to be corrected
(frst... last word)

This meant that airspace users were not fully informed

Argumentation /
substantiation

Unwarranted assumption, taking into account Annex 15, Doc 9554
par. 10.3

Dutch Safety Board
response

See above

State /
Organisation

Ukraine

Page

65

Section /
Paragraph

4.6

Text to be corrected
(frst... last word)

Considerations other than those related to safety may have
played a role in Ukraines decision not to close the airspace to
civil aviation completely. If portions of airspace are closed,
airlines may fly over other countries, which means that a country
may miss out on revenues. Indeed, in 2014, UkSATSEs revenues
did decrease. The fact that closing the airspace could lead to
the impression that the State has lost its grip on part of its
territory may also have played a role. With regard to fnancial
and other possible motivations, the Dutch Safety Board has not
been able to establish whether they played a role in Ukraines
decision-making process.

Argumentation /
substantiation

This statement is of a prejudiced nature and is based on unconfrmed
probability of Ukraines motivations.
Moreover, such statements are inappropriate and do relate neither to
safety nor security nor airspace management.
It is not a subject of fnal report accordantly to ICAO ANNEX 13.

Dutch Safety Board
response

All possible factors should be investigated. On the basis of this
investigation, the Dutch Safety Board concludes that it was not
evident that these factors played a role.

State /
Organisation

Ukraine

Page

66

Section /
Paragraph

4.7

Text to be corrected
(frst... last word)

Sub-conclusions
1. The decision-making related to the airspace above Ukraine
was dominated by the military authorities and the interests of
military aviation. Due to a lack of information related to the
substantive decisions made by the military authorities, the
civil aviation authority and air navigation service provider
were not able to perform an independent assessment of the
safety of the airspace for civil air traffc at cruising altitude.
2. Ukraines military authorities took into consideration a threat
to military aircraft posed by shelling from the ground or
another aircraft, but did not take into account the possibility
of a civil aeroplane being shot down.
3. The Ukrainian State established a higher minimum flight level
for civil air traffc by means of NOTAMs and left the airspace
open to civil aeroplanes at cruising altitude. The NOTAMs did
not specify any substantive motivation for the altitude
restrictions. Therefore, Ukraine did not act in accordance with
the recommendation in ICAO Doc 9554-AN/932.
4. The weapon systems that the Ukrainian State reported in
relation to the Antonov An-26 being shot down on 14 July
2015, could represent a danger to civil aeroplanes because
these weapons can reach aeroplanes cruising altitude.
However, this connection was not made and the airspace was
not closed as a precaution.
5. It is rare for a State that is faced with an armed conflict to
close its airspace, and NOTAMs containing specifc
information or warnings about the conflict are not generally
issued. In the international system of responsibilities, the
primary responsibility for the safety of airspace is borne
exclusively by the sovereign State concerned. The Dutch
Safety Board concludes that the basic principle of sovereignty
is vulnerable when States face an armed conflict on their
territory and in their airspace.

Argumentation /
substantiation

Ukrainian side disagrees with the sub-conclusions. The subconclusions should be totally revised upon the Ukrainian comments to
text of the document.
There is no basis for this conclusion, as such coordination was in place
at that time and continues to be the case now. Decisions on concrete
steps relating to closing the airspace is taken by the States in
coordination both of military and civil components. Moreover, both
components (military and civil) are involved to the decision making
process as it was mentioned in the answers of the Ukrainian side
This statement is prejudiced and groundless and is based on
unconfrmed probability of Ukraines motivations.
The action taken by the Ukrainian authorities is not in conflict with
Doc 9554-AN/932 and other ICAO documents.
There is no basis for this conclusion - considering the available
information, it was not possible to estimate with due certainty, within
such a short period of time, whether such weapon systems can be
used against civil aircrafts.

Dutch Safety Board
response

The text of the conclusions have been modifed slightly in
response to the comments, but their essence remains
unchanged.

State /
Organisation

Ukraine

Page

97

Section /
Paragraph

6.4.2

Text to be corrected
(frst... last word)

virtually daily. Initially, the emphasis was on the situation in
Crimea, but after its accession to illegal occupation by the
Russian Federation

Argumentation /
substantiation

UN RESOLUTION ARES8

Dutch Safety Board
response

The Dutch Safety Board does not provide any political
interpretation of the situation.

State /
Organisation

Ukraine

Page

102

Section /
Paragraph

7.2

Text to be corrected
(frst... last word)

As far as Ukraine was concerned, the military interests took
priority in the management of its airspace

Argumentation /
substantiation

We do not agree with such conclusion in view of the above mentioned
argument

Dutch Safety Board
response

The fndings in this investigation point out that decisions related
tot the airspace were primarily taken from the perspective of the
militarys interest, in which a potential risk to civil aviation was
not the subject of explicit consideration.

20

State /
Organisation

Ukraine

Page

107

Section /
Paragraph

7.3.5

Text to be corrected
(frst... last word)

The above shows that intra-national armed conflicts especially
those, where a foreign states in possession of long-range
surface-to-air weapons systems are suspected to be involved
can pose risks to civil aviation due to their unpredictability, and
that the system of responsibilities and the risk assessment
process are still inadequately equipped in this respect. In States
that have to cope with an intra-national conflict, the safety of the
airspace above the conflict cannot be guaranteed in advance,
not even at cruising altitude

Argumentation /
substantiation

There exists overwhelming evidence that armed bands, groups and
mercenaries, from the outset of their activities until present time, were
under effective control, and received fnancial and other support of
the Russian Federation, and included military and paramilitary
personnel of the Russian Federation; the pattern of their activities
broadly fts in the defnition of aggression in UN General Assembly
resolution 3314 (XXIX) of 14 December 1974.
For the aims of this report such circumstances must be taken into
account as only analysis of the full picture can lead to the
recommendations that can make civil flights over the conflict zones in
the future safer.

Dutch Safety Board
response

With regard to the type of the conflict the terminology has been
modifed throughout the report, with the aim of making it as
neutral as possible. The proposed terminology is not accepted.

State /
Organisation

Ukraine

Page

101

Section /
Paragraph

7

Text to be corrected
(frst... last word)

Argumentation /
substantiation

The abovementioned corrections and amendments (including but
not limited) to Chapter 7 Assessing the risk of overflying of
conflict areas should be taken into consideration by Dutch Safety
Board during the revision of the chapter as it is proposed by
Ukrainian Side

Dutch Safety Board
response

See above.

State /
Organisation

Ukraine

Page

109

Section /
Paragraph

8

Text to be corrected
(frst... last word)

Main conclusions (all lines)

Argumentation /
substantiation

Ukrainian side disagrees with main conclusions. The main conclusions
should be totally revised upon the Ukrainian comments to text of the
document.
Moreover, the Ukrainian authorities took necessary measures in line
with provisions of the Convention on International Civil Aviation,
appropriate Annexes, the International Air Services Transit
Agreement, ICAO Doc 9554-AN/932.
As it is generally recognized that the hostilities in the areas relevant to
the report have international dimension (direct involvement of the
foreign party), it is incorrect to use the Ukrainian case as to conflict
within state. Moreover there are credible grounds to believe that
shooting down of the MH17 was performed with the weapon system
secretly provided by this foreign party. For the aims of this report
such circumstances must be taken into account as only analysis of the
full picture can lead to the recommendations that can make civil
flights over the conflict zones in the future safer.
There exists overwhelming evidence that armed bands, groups and
mercenaries, from the outset of their activities until present time, were
under effective control, and received fnancial and other support of
the Russian Federation, and included military and paramilitary
personnel of the Russian Federation; the pattern of their activities
broadly fts in the defnition of aggression in UN General Assembly
resolution 3314 (XXIX) of 14 December 1974.

Dutch Safety Board
response

The argumentation and the conclusions have been clarifed
based on all considerations. The essence of the comment by
Ukraine is that the risk was adequately assessed. When
implementing the mentioned measures, the Ukrainian
authorities took insuffcient notice of the possibility of a civil
aeroplane at cruising altitude being fred upon.

State /
Organisation

Ukraine

Page

109

Section /
Paragraph

8

Text to be corrected
(frst... last word)

Argumentation /
substantiation

The abovementioned corrections and amendments (including but not
limited) to Chapter 8 Main conclusions should be taken into
consideration by Dutch Safety Board during the revision of the
chapter as it is proposed by Ukrainian Side.

Dutch Safety Board
response

See above.

State /
Organisation

Ukraine

Page

111

Section /
Paragraph

Appendix A

Text to be corrected
(frst... last word)

regional newspapers newspapers controlled by the militants
(illegal armed groups)

Argumentation /
substantiation

This term is inapplicable for the media representing illegal armed
groups acting in certain areas of Donetsk and Luhansk regions of
Ukraine

Dutch Safety Board
response

This is a reference to regional newspapers in general terms.

State /
Organisation

Ukraine

Page

145

Section /
Paragraph

Appendix E

Text to be corrected
(frst... last word)

conflict in Ukraine situation in Ukraine

Argumentation /
substantiation

There was no conflict in Ukraine at that time in full sense of the word

Dutch Safety Board
response

The Appendix is used as input for the main report. The
terminology in the main report is leading.

21

State /
Organisation

Ukraine

Page

145

Section /
Paragraph

Appendix E

Text to be corrected
(frst... last word)

was annexed was illegally occupied.

Argumentation /
substantiation

Based upon the generally recognized interpretation of the actions of
the Russian Federation in the Autonomous Republic of Crimea

Dutch Safety Board
response

See above

State /
Organisation

Ukraine

Page

145

Section /
Paragraph

Appendix E

Text to be corrected
(frst... last word)

pro-Russian separatists (referred to hereafter as the
Separatists) Russia-backed militants (referred to hereafter as
the militants)

Argumentation /
substantiation

This term is inapplicable for the illegal armed groups acting in certain
areas of Donetsk and Luhansk regions of Ukraine.

Dutch Safety Board
response

See above.

State /
Organisation

Ukraine

Page

145

Section /
Paragraph

Appendix E

Text to be corrected
(frst... last word)

The MIVDs information indicates that the Separatists illegal
armed groups were procuring an increasing number of weapons
in the months prior to the crash through uncontrolled sections
of the Ukrainian border. Since they were also attacked targeted
from the air by the Ukrainian armed forces, mainly after the
Ukrainian government had reactivated its so-called antiterrorism operation in the course of May 2014, the illegal armed
groups tried to acquire anti-aircraft systems to attack Ukrainian
military aircraft with the aim of defending themselves.

Argumentation /
substantiation

Inapplicable as the counter-terrorist operation was offcially launched
by the Government of Ukraine and this is its offcial name, not
so-called
From the text it appears that illegal armed groups were the victims of
attacks of Ukraines military, which did not reflect the real situation.

Dutch Safety Board
response

See above.

State /
Organisation

Ukraine

Page

145

Section /
Paragraph

Appendix E

Text to be corrected
(frst... last word)

so-called

Argumentation /
substantiation

Inapplicable as the counter-terrorist operation was offcially launched
by the Government of Ukraine and this is its offcial name, not
so-called.

Dutch Safety Board
response

See above.

22

State /
Organisation

Malaysia

Page

85

Section /
Paragraph

5.8

Text to be corrected
(frst... last word)

In other words, Malaysia Airlines based its decision virtually
exclusively on aeronautical information (selection of NOTAMs)
and did not perform its own additional risk analysis.
Malaysia Airlines will perform its own additional risk analysis
when alerted by any aeronautical information or when any
concern is identifed from its various sources.

To delete the wordings in strikethrough and replace with the
proposed wordings in red.

Argumentation /
substantiation

It is incorrect to state that MAS did not perform its own additional risk
analysis. MAS will perform its own additional risk analysis when
alerted or any concern arises, please refer to the amendments made

Dutch Safety Board
response

In this specifc case, Malaysia Airlines did not perform its own
risk analysis.

State /
Organisation

Malaysia

Page

86

Section /
Paragraph

5.8

Text to be corrected
(frst... last word)

Some caution has to be applied when drawing conclusions
related to the extent to which airlines including Malaysia Airlines
altered
their flight routes.
To add the wordings in red above.

Argumentation /
substantiation

To be more precise and clear on the position of Malaysia Airlines in
this aspect.

Dutch Safety Board
response

This paragraph concerns airlines that stopped doing so in
response to the Simferopol NOTAM. Malaysia Airlines stated it
did not operate any flights over Crimea.

State /
Organisation

Malaysia

Page

114

Section /
Paragraph

Appendix A

Text to be corrected
(frst... last word)

The Dutch Safety Board would also have liked to meet with the
Malaysian civil aviation authority (the Department of Civil
Aviation, DCA) but this body did not cooperate, neither by
participating in interviews nor by answering the written
questions or supplying the requested documents.
To delete the above wordings (as per strikethrough).

Argumentation /
substantiation

DCA has provide cooperation by answering the written questions and
attended meeting / discussion organized by DSB

Dutch Safety Board
response

Requests by the Dutch Safety Board to interview offcials from
the Malaysian civil aviation authority (the Department of Civil
Aviation, DCA) in relation to the flight route part of the
investigation were not granted. Written questions and requests
for relevant documentation also went unanswered by the DCA.


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