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Отчет DSB 13.10.15: Crash MH17, 17 July 2014

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https://www.onderzoeksraad.nl/en/page/3 … -july-2014
https://www.onderzoeksraad.nl/en/media/ … _crash.pdf

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6. Such states rarely close their airspace or provide aeronautical information with
specifc information or warnings about the conflict. In some cases, other states
issue restrictions or prohibit their operators and pilots from using the airspace
above these conflict areas.
7. There is a lack of effective incentives to encourage sovereign states faced with
armed conflicts to assume their responsibility for the safety of their airspace.

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7 FLYING OVER UKRAINE: WHAT DID
MALAYSIA AIRLINES AND OTHERS DO?

7.1 Introduction

Operators, as users of the airspace, bear responsibility for safe flight operations.*151, *152 In
the case of MH17, the operator was Malaysia Airlines. This Section provides a
reconstruction of the flight preparations and flight operations of flight MH17 on 17 July
2014. This is followed by a description of Malaysia Airlines’ decision-making process
related to flying over conflict areas: how was it organised and how was the system applied
in the case of flight MH17? What information did Malaysia Airlines possess about the
security situation in the eastern part of Ukraine, how were potential risks assessed and
what constituted the basis for the decision to fly over the eastern part of Ukraine on
17 July 2014? Finally, the decisions made by other states and operators related to flying
over the eastern part of Ukraine will be described.

Malaysia Airlines
Malaysia Airlines is Malaysia’s national operator. Since 2013, Malaysia Airlines has
been an alliance partner in oneworld, along with operators such as American
Airlines, British Airways, Qantas, Cathay Pacifc and Japan Airlines. During the period
prior to 17 July 2014, the operator flew 91 civil aeroplanes and six cargo aeroplanes
to 60 destinations (code share flights not included). Kuala Lumpur International
Airport, the home base of Malaysia Airlines, is a major hub for flights between
Europe and Asia and on to Oceania.


7.2 Flight MH17

As described in Section 2.1 (part A), flight MH17 took off at 10.31*153 from Amsterdam
Airport Schiphol for a scheduled flight to Kuala Lumpur International Airport in Malaysia.
Malaysia Airlines (MAS) had submitted a flight plan for this flight at 07.07, which
established, among other things, MH17’s route: the air navigation waypoints, airways and
altitudes at which MH17 would fly. In Appendix C an explanation of this flight plan of
flight MH17 and flight plans in general is provided.
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*151 This is established, for example, in Annexes 17 (Security) and 19 (Safety Management) to the Chicago Convention
(see ICAO HLSC/15-WP/3).
*152 National authorities are responsible for certifcation and the continuous monitoring of airlines based in their States.
*153 All times mentioned in this report are in UTC unless specifed otherwise. See the list of abbreviations for a further
explanation.

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MH17 flight plan with air navigation waypoints, airways, altitudes and speeds
-EHAM1000
-N0490F310 ARNEM UL620 SUVOX UZ713 OSN UL980 MOBSA DCT POVEL DCT
SUI L980 UTOLU/N0490F330 L980 LDZ M70 BEMBI L980 PEKIT/N0480F350 L980
TAMAK/N0480F350 A87 TIROM/N0490F350 A87 MAMED B449 RANAH L750 ZB
G201 BI DCT MURLI DCT TIGER/N0490F370 L333 KKJ L759 PUT R325 VIH
A464 DAKUS DCT
-WMKK1137 WMSA WMKP

All air traffc control centres involved accepted MH17’s flight plan for the route in their
regions. The planned route ran from the Netherlands to Germany, Poland, Ukraine, the
Russian Federation, Kazakhstan, Turkmenistan, Uzbekistan, Afghanistan, Pakistan, India,
Myanmar and Thailand to Kuala Lumpur. Malaysia Airlines’ head offce in Kuala Lumpur
established this route a few hours before take-off on 17 July

https://c.radikal.ru/c25/1907/57/b6e8e7b74afd.png
Figure 84: Diagram of the route planned. (Source: Google, INEGI)

According to the flight plan, flight MH17 would fly at flight level 330 (FL330, circa
10,058 metres) above Ukraine to the PEKIT navigation waypoint, which lies on the
boundary of the flight information region (FIR) between the Kyiv FIR (UKBV) and the
Dnipropetrovsk FIR (UKDV). From the PEKIT navigation waypoint, the flight plan specifed
FL350 (circa 10,668 metres high) for the remaining part of the flight above Ukraine.
As established in Section 2.1 (part A), the aeroplane entered the Dnipropetrovsk FIR at
FL330 instead of the planned FL350.

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https://b.radikal.ru/b26/1907/e5/e40d21eafc39.png
Figure 85: Image of the Dnipropetrovsk FIR (UKDV), CTA 1 and 4, and the flown (black line) and intended
               (dotted black line) route of flight MH17. The yellow line represents the centre of airway L980.
               (Source: UkSATSE and Google, Landstat)

The data supplied by EUROCONTROL reveal that Malaysia Airlines was flying through
Ukraine’s airspace several times a day, also through the Dnipropetrovsk FIR (UKDV). On
17 July 2014, seven Malaysia Airlines flights flew through UKDV, two from Kuala Lumpur
to London, one flight from Kuala Lumpur to Amsterdam, two flights from London to Kuala
Lumpur, one flight from Paris to Kuala Lumpur and one flight from Amsterdam to Kuala
Lumpur.

7.3 Code sharing with KLM

Flight MH17 was a daily flight, operated by Malaysia Airlines, from Amsterdam Airport
Schiphol to Kuala Lumpur International Airport. It was a very popular flight. This was due
to the transit options and the favourable time of departure from Schiphol: this slot was a
good connection for incoming flights from the United States and would arrive in Kuala
Lumpur early in the morning. KLM also runs a daily flight between Amsterdam and Kuala
Lumpur. A code share agreement between Malaysia Airlines and KLM applies to both
flights.
In the case of flight MH17 on 17 July 2014, eleven passengers had booked their ticket
with KLM and 269 passengers with Malaysia Airlines. There were also two passengers
with a Qantas ticket and one with a ticket from Garuda Indonesia.*154 The passengers with
a KLM ticket travelled in accordance with the code share agreement with Malaysia
Airlines. The passengers who booked via Qantas and Garuda Indonesia travelled on a
combined flight, which was operated partly by these operators and partly by Malaysia
Airlines (transfers).
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*154 See Dutch Safety Board report MH17 - Passenger information.

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The code share agreement between Malaysia Airlines and KLM entered into force on
1 July 1998. The partners renew this agreement every three years. Prior to each season
(summer-winter), they adjust the timetable in the appendix to the agreement. The
agreement does not specify any details related to the routes to be flown (with the
exception of departure and destination locations). However, the agreement does
establish that the partners exchange ‘safety’ and ‘security’ information and that they
provide each other with technical and material support in the area of ‘safety’ and
‘security’. There is no specifc reference to the flight route. The Dutch government issued
its required approval for this agreement.
The code share agreement between Malaysia Airlines and KLM requires that Malaysia
Airlines treats code share passengers the same as its own passengers in terms of
handling, on-board service and claims, and vice versa. The responsibility for safety and
security is fully borne by the operator operating the flight, in this case Malaysia Airlines.
In accordance with the agreement, KLM played no part in flight preparations or
operations. For their code share agreement, KLM and Malaysia Airlines used the IOSA
audit described in Appendix Q to assure themselves that they adhered to equivalent
safety standards.

7.4 Flight preparation at Malaysia Airlines

For this investigation, the Dutch Safety Board conducted interviews with offcials from
Malaysia Airlines. The Dutch Safety Board requested and received various documents
from Malaysia Airlines. Request by the Dutch Safety Board to interview offcials of the
Malaysian civil aviation authority (the Department of Civil Aviation, DCA) were not
granted. Requests for relevant documentation were also not accepted by the DCA.
Nevertheless, the Dutch Safety Board believes it has suffcient information to compile an
overview of the flight preparations performed by Malaysia Airlines.
This Section describes the distribution of tasks related to the safety assessment of flight
routes at Malaysia Airlines. This involves producing threat analyses, planning routes and
the procedure for compiling a flight plan.
7.4.1 Security
In the Security Department, analysts focus on the security of flight operations. The
primary task of the head of this department is to provide updates and advise Malaysia
Airlines’ CEO on what is required for the safety of the operations. This involves matters
such as security at departure and arrival at aerodromes, passengers, baggage, cargo,
staff (during the flight and on location) and the aeroplane itself. This department assesses
the situation on the ground, and not in the airspace. Malaysia Airlines does not fly to
destinations in Ukraine and therefore does not perform any risk analyses related to
(destinations in) this state.
The Security Department is not responsible for studying aeronautical information such as
NOTAMs and threats to foreign airspace. Malaysia Airlines bases its approach on
Annex 17 to the Chicago Convention and on national provisions issued by the Malaysian
Department of Civil Aviation (DCA) and by Malaysia Airlines itself.

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Additional activities are only carried out if Malaysia Airlines is considering flying to a new
destination. Well in advance of 17 July 2014, the operator received a request from its
government to fly a charter flight to Yemen, to evacuate a group of Malaysian citizens.
The head of the Security Department arranged for the situation to be assessed on
location, and in a consultation with the CEO, the charter department and Flight
Operations advised that the flight should not be conducted. This was because the
situation was not considered safe on the ground at the destination location.
In order to determine the security situation in a state, Malaysia Airlines’ Security
Department occasionally receives intelligence from Malaysian embassies and High
Commissioners (equivalent of Ambassadors in Commonwealth states). In addition, public
sources are consulted, such as newspapers and television and local stations that report
on worldwide events. Local police sources are also used. Malaysia Airlines receives daily
security recommendations from a private service provider about to the various ground
stations. Information is also shared among the Association of Asia Pacifc Airlines (AAPA).
Malaysia Airlines *155 has stated in interviews that it did not receive any security information
about foreign states from the Malaysian authorities. The explanation for this was that the
Malaysian authorities only collect information related to its interior. The Dutch Safety
Board has not been able to verify this information with the Malaysian authorities because
they did not answer questions about this. As a result, it is not possible to establish the
extent to which the Malaysian intelligence services possessed information about the
situation in the eastern part of Ukraine.
7.4.2 Route planning
At Malaysia Airlines, the Flight Operations (Flight Ops) Department is responsible for
flight operations as a whole, including safety, flight execution in accordance with the
statutory rules and the effciency of flight operations. To fulfl this responsibility, Flight
Ops uses different information sources; Aeronautical Information Publications (AIPs),
Aeronautical Information Circulars (AICs), NOTAMs (Notice to Airmen), EASA bulletins,
information from the air traffc service centres of states whose airspace will be used and
EUROCONTROL. An employee from the department assesses the details supplied in the
NOTAMs as an additional verifcation step. The department also monitors media reports,
but these can be seen as potentially too superfcial and speculative. Therefore, Flight Ops
depends upon the NOTAMs as offcial and primary sources of information to use in flight
planning. Flight Ops relies on the flight plan system (Sabre), which searches for relevant
NOTAMs via the OPUS system and automatically verifes whether these constitute any
restrictions to the planned flight. Compiling an inventory of and interpreting threat
information is not one of the duties of the Flight Operations department.
If Malaysia Airlines decides to use a new route, Flight Ops examines matters such as the
applicable rules in the state concerned (communicated via AIPs), restrictions (such as
minimum flight altitudes) and agreements (such as overflight permits), distances,
operational requirements (such as deviation aerodromes) and general weather conditions
(wind direction/speed), and determines the most effcient route on this basis.
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*155 A representative from the Department of Civil Aviation (DCA) was present at these discussions as an observer.

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An operator may have several routes for a single destination and selects one based on
the aforementioned considerations. For the flight from Amsterdam to Kuala Lumpur,
prior to 17 July 2014 Malaysia Airlines had a choice of four routes:*156
• Via Ukraine and the Rostov zone in the Russian Federation (the most effcient of the
four routes, which was also the one actually used);
• Via Iraq;
• Via Iran;
• Via Saudi Arabia.
7.4.3 Flight plans
Once the routes have been established, a flight plan is compiled per flight. The flight
plan is compiled by the Navigation and ATM Planning Team of the Flight Dispatch
Department. The Operational Control Centre (OCC) is concerned with operational risk
analyses (wind, fuel consumption etc.) and is purely an executive body. If there are no
special reports, the OCC’s work follows the usual routine. The department assesses
routes daily, based on the current situation. Specifc conditions (weather, temporary
airspace closures, etc.) may necessitate a deviation from the optimal route.

The Flight Dispatch Department handles 385 flights per day. They do so in
accordance with a fxed procedure:

• Malaysia Airlines uses an electronic system that compiles and verifes flight plans.
The department assesses whether the proposed route conflicts with any
procedures or temporary restrictions specifed in the NOTAMs from states along
the route.
• The route is verifed using legal provisions issued by the relevant states.
• Six hours prior to the flight’s take-off, Flight Dispatch at Malaysia Airlines verifes
whether the flight plan can be executed, taking into account the current weather
situation and the aircraft’s technical condition and load.
• Three hours before the flight’s departure, Flight Dispatch at Malaysia Airlines
submits the flight plan electronically to EUROCONTROL (for flights trough
European air space) and to all states whose airspace will be used. This is done to
obtain advance approval and permission from EUROCONTROL and each of the
respective states whose airspace will be used beyond Europe.
• Shortly before the flight’s departure, Malaysia Airlines’ ground handler at the
departure aerodrome provides the pilot-in-command with all the flight
documentation, including the NOTAMs, flight plan and weather data received
from Malaysia by e-mail.
• Lastly, the flight crew also assesses the NOTAMs.

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*156 At the time of writing (April 2015) just one route was available: via Iran, south of Ukraine. The additional costs
        involved in using this route amount to approximately EUR 3.75 million (MYR 15 million) per month (price level of
        January 2015). Malaysia Airlines says that it no longer flies over Afghanistan or Iraq, due to military activities on the
        ground and a lack of clarifcation regarding the situation there.

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When a Malaysia Airlines flight departs from a foreign aerodrome, the Flight Dispatch
Department sends a briefng package to the station manager or ground handler in the
state of departure. The latter’s most important task is to ensure that the pilot-in-command
receives the briefng package in consultation with the ground handling service.
To summarise: Malaysia Airlines assesses the safety of the flight in the flight phase based
on aeronautical information. The Security Department only assesses the situation on the
ground (departure and arrival location, aircraft, crew, baggage, passengers etc.).

7.5 The risk assessment performed by Malaysia Airlines prior to flight MH17

Following the crash on 17 July 2014, the question was raised why operators were flying over
the eastern part of Ukraine while an armed conflict was taking place there. This Section
describes what information Malaysia Airlines possessed about the security situation in the
eastern part of Ukraine, how this operator assessed potential risks and what constituted the
basis for the decision to fly over the eastern part of Ukraine on 17 July 2014.
7.5.1 Aeronautical information
In July 2014, four relevant NOTAMs*157 were in force in the airspace in the Dnipropetrovsk
FIR (UKDV).*158 The airspace in the eastern part of Ukraine was open above FL260 and
later above FL320. Malaysia Airlines automatically processed these NOTAMs via the flight
plan system used for this purpose. All the cited NOTAMs were included in the briefng
package for flight MH17. For Malaysia Airlines, these NOTAMs did not constitute any
basis for not operating the flight through Ukraine’s airspace.
Malaysia Airlines was aware of the ICAO State Letter published on 2 April 2014 about the
Simferopol FIR,*159 which informed Member States about the potential risks to the safety of
civil flights in the Simferopol FIR (Crimea) due to two air traffc control centres claiming the
same region. The same applies to EASA’s subsequent Safety Information Bulletin (SIB),
which confrmed the warning issued by ICAO. But since Malaysia Airlines did not operate
any flights over Crimea, this safety warning had no effect on Malaysia Airlines’ operations.
Therefore, the decision to shift the route to the north or south of Crimea did not apply.
Malaysia Airlines says it was not aware of SFAR 113, issued by the U.S. aviation authority
(Federal Aviation Administration, FAA), dated 23 April 2014. In this safety warning, the
FAA prohibitted U.S. operators and airmen from flying over Crimea. Because Malaysia
Airlines no longer flies over the United States, the operator has ceased monitoring the
SFARs issued by the FAA. They also viewed them as a U.S. matter because, for example,
U.S. operators have a risk profle that differs from that of Malaysia Airlines. The NOTAM
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*157 This involves the following NOTAMs issued by Ukraine: A1383/14, A1384/14, A1492/14, A1493/14.
*158 See Section 5.3.
*159 EUR/NAT 14-0243.TEC (FOL/CUP).

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that referred to the SFAR in question *160 was also not included in the briefng package
that Malaysia Airlines had compiled for MH17’s flight route, because this particular flight
did not take-off from or land in the United States or pass through the latter’s airspace.*161
During the period between 23 April and 17 July 2014, foreign or international parties did
not issue any NOTAMs or other formal information communication about the eastern
part of Ukraine. Malaysia Airlines says that, in the months leading up to 17 July, it did not
receive any warnings related to the situation in the eastern part of Ukraine from other
parties either, including the Malaysian authorities and intelligence services.
The briefng package for flight MH17 also included two NOTAMs related to the Rostov
FIR, which the Russian Federation published on 16 July 2014 and became effective from
17 July 2014. These NOTAMs, which stated that the use of a number of flight routes on
the Russian side of the border with Ukraine were subject to altitude restrictions, included
a reference to the armed conflict in the eastern part of Ukraine as the reason for the
flight restriction. The information provided in these NOTAMs was, however, not clear-cut:
in addition to the altitude restriction, which was effectively the same as the restriction in
force in the neighbouring Ukrainian UKDV FIR, it included a second flight restriction: the
airspace was restricted below FL530 (see Section 5.2). The automatic flter applied by the
automated flight plan system used by Malaysia Airlines accepted the NOTAM despite
this contradiction, and this did not lead to a route change. Whether the reference to the
armed conflict was picked up by Malaysia Airlines is unknown, but in any case the route
was not changed.
7.5.2 Media reports
During the period between the conflict breaking out in the eastern part of Ukraine in
April 2014 and the day of the crash of flight MH17 on 17 July 2014, various reports
appeared in the media regarding aircraft of the Ukrainian armed forces being shot down
(see Section 5). The Ukrainian authorities have confrmed some of these incidents (see
Section 5.3) The Dutch Safety Board asked Malaysia Airlines which of these signals
reached the operator.
Malaysia Airlines was aware that the situation in the eastern part of Ukraine was unstable
and that a conflict was taking place on the ground. The operator did not consider this as a
reason for monitoring the area more closely, especially given the fact that it did not fly to
any Ukrainian destinations. Since Ukraine’s airspace restrictions had no impact on the flight’s
planning, Malaysia Airlines saw no reason to consciously reflect on the safety of this route.
The operator stated that it did not pick up any signals in the media that indicated a threat.
Prior to 17 July 2014, Malaysia Airlines was not aware that, according to the Ukrainian
authorities, on 14 July 2014 an Antonov An-26 flying above the eastern part of Ukraine was
downed at an altitude of 6,500 metres with a weapons system that could reach cruising
altitude (see Section 5). Prior to 17 July, the operator possessed no information that there
could be medium or long-range surface-to-air missiles or air-to-air missiles in the area.
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*160 NOTAM FDC 4/7667. Valid from 23 April 2014 through 27 April 2015.
*161 Another reason for this is that Malaysia Airlines is not a U.S. operator. For U.S. operators, an SFAR is a ‘regulation’,
regardless of whether or not the flight passes through U.S. airspace.

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7.5.3 Other information
As described in Section 7.4, Malaysia Airlines explained that the operator did not receive
any threat-related information from its national authorities about foreign states. In other
words, prior to 17 July 2014, its authorities did not represent a source of information
related to the safety of the airspace above the eastern part of Ukraine.
Malaysia Airlines is a member of the Association of Asia Pacifc Airlines (AAPA), an interest
organisation for international operators in the Asia-Pacifc region. Within AAPA, Malaysia
Airlines is also a member of the Security Group in which operators exchange security
information about security on the ground, and the Flight Ops Consultation, which is
concerned with various matters including flight routes. Malaysia Airlines did not receive
any signals via this network about the deteriorating safety situation in the eastern part of
Ukraine.
In April 2014, Malaysia Airlines received signals from other operators that the satellite
communication (SatCom), and possibly also GPS, may be disrupted in Ukraine’s airspace.
Malaysia Airlines warned its pilots and asked them to be vigilant in this respect and
directly report any irregularities encountered. However, the operator did not view this as
a major risk to the navigation capability because the navigation beacons on the ground
were still operational. After a while no such disruptions to equipment had been reported.
Prior to 17 July 2014, Malaysia Airlines did not contact other operators with regard to the
situation in the eastern part of Ukraine, including the operators that had changed their
flight route(s). In interviews with the Dutch Safety Board, Malaysia Airlines stated that
operators continuously alter their routes, for various reasons. For example, because - unlike
Malaysia Airlines - they do have authorisation to fly over a particular country, or because
they have inserted a stopover in their route. Malaysia Airlines expects that other operators
would have made contact if the airspace had not been safe. Malaysia Airlines stated that,
if it altered a route for safety reasons, it would communicate the fact to its alliance
partners. In the case of the eastern part of Ukraine, other operators, including its alliance
partners, did not share any safety information with Malaysia Airlines. As many operators
were flying there, there was no reason for Malaysia Airlines to doubt the safety of the
airspace.
When planning a route, operators must also take unexpected scenarios into account.
One example is a disruption to normal flight operations such as engine failure resulting in
a drift down.*162 When determining the flight plan, the operator must select the route in
such a way that, in case of such an event, the aircraft can always meet the minimum
altitude above ground, especially in mountainous terrain. Specifcally in this case, the risk
of an aircraft descending to below FL320 (and earlier FL260) due to a drift down was
considered as very unlikely. Malaysia Airlines is confdent that the pilots are trained in the
procedure for this type of situation and that they will receive assistance from air traffc
control enabling them to reach a safe area.
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*162 Drift down is the situation in which an aeroplane, with one malfunctioning engine, is forced to descend from
cruising altitude to the altitude at which the aeroplane can continue to fly on the remaining engine with the
maximum permitted engine capacity

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7.6 What did ICAO and other states do?

Following the crash involving Malaysia Airlines flight MH17, the question was raised what
other states did and did not do with regard to the use of the airspace above the eastern
part of Ukraine, in relation to the intelligence they had.
Therefore, it was investigated how ICAO and other states acted and what options were
available to them. To obtain information on this subject, the Dutch Safety Board
predominantly used surveys and interviews, with or without the assistance of its foreign
sister organisations. The examples cited in this Section are not exhaustive, but serve
purely to put Malaysia Airlines’ decision into perspective. The key question is: did ICAO
and other authorities perceive any risks related to flying over the eastern part of Ukraine
during the period leading up to 17 July 2014?
7.6.1 ICAO
After the frst State Letter on 2 April, ICAO did not distribute another State Letter about
the potential threats in the Simferopol FIR. In answer to the Dutch Safety Board’s questions,
ICAO stated that it did not receive any additional information that justifed issuing a new
State Letter. ICAO did not issue any State Letters about the eastern part of Ukraine during
this period. The statement made by the Ukrainian authorities with regard to the
Antonov An-26 being shot down on 14 July, which referred to weapon systems that can
reach cruising altitude, did not constitute a reason for ICAO to issue a State Letter either.
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 state in
the event of an armed conflict, ICAO Doc 9554-AN/932, paragraph 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 co-ordination with the responsible State, with other provider and user States
concerned, and with IATA and IFALPA.’
In response to the questions submitted by the Dutch Safety Board, ICAO stated that the
organisation has no mandate to actively intervene in the decision-making by states with
regard to closing their airspace. ICAO can only notify the state in question if the former
has received information about potential threats. ICAO stated that it has neither a
mandate nor the facilities to investigate all risks present in states.
7.6.2 States’ interpretation of their role
The investigation into airspace management above conflict areas revealed that indications
that could point to risks to civil aviation arising from armed conflicts, often originate from
third parties. Despite the international character of civil aviation, there are major
differences in the role of national authorities with respect to flying over conflict areas (see
also Appendix U). Before addressing the question of what other states did with regard to
the eastern part of Ukraine, it is necessary to examine these differences.

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The international framework provides room for states to assume less or more responsibility
with regard to decisions regarding flight routes. The more limited the state’s role is, the
more operators must do themselves to get an impression of conflict areas and the risks
they present to civil aviation. However, gathering intelligence about what precisely is
going on in conflict areas is diffcult. Operators have fewer possibilities to do so than
states, which can rely on their diplomatic and intelligence services in this matter. If the
authorities are totally uninvolved, there is the chance that the information position of the
operators based in the relevant state will be too limited to enable them to perform an
adequate risk assessment of conflict areas.
On the basis of information provided by Malaysia Airlines, the Dutch Safety Board
concludes that the Malaysian authorities did not consider that they had any role to play in
identifying and managing risks in foreign airspace. In their intelligence activities, the
national authorities focus on national security. This does include the security of
aerodromes located in the state, but not the safety of civil aviation in foreign airspace.
When it came to further assessing foreign airspace, Malaysia Airlines had to rely on other
sources than the Malaysian authorities.
In certain states, the authorities can prohibit operators and airmen based in that state
from flying to specifc destinations or from using a particular state’s airspace (or part
thereof). In this case, the aviation authorities produce their own threat and risk analyses if
they feel this is necessary.
In the United States, the Federal Aviation Administration (FAA) can issue a flight
prohibition or warning.*163 The Department for Transport (DfT) in the United Kingdom can
also issue a flight prohibition, pursuant to on the Aviation Security Act of 1982 (see
Appendix U for details). In practice, the DfT mainly focuses on performing risk analyses
and advising and possibly warning operators. This requires an extensive intelligence
position in all states that could present a risk to civil aviation. In April and July 2015
Germany announced flight prohibitions for the airspace of Libya and Yemen.*164, *165 For
many states, this is not standard practice and simply not feasible.
Between these two extremes, there are states that go no further than (informally)
providing operators with information and states that issue recommendations to operators
based in their territory.*166 States can share relevant safety information with those
operators about foreign airspace and armed conflicts, so that the operators can use the
information in their risk assessment. Moreover, states can share relevant information with
the international aviation sector, for example through NOTAMs.
Lastly, there are states that go beyond sharing information. The authorities in these states
also produce aviation-specifc risk analyses and provide their operators with these or
issue advice based on the analyses. France is an example of one such states. The
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*163 For an explanation of ‘SFAR’, see Section 12, Abbreviations and Defnitions.
*164 http://www.bmvi.de/SharedDocs/DE/Artike … emen.html. consulted on 19 August 2015.
*165 http://webcache.googleusercontent.com/s … rtikel/LR/
verbot-luftraum-libyen.html%3Fnn%3D62482+andcd=1andhl=nlandct=clnkandgl=n
*166 This often involves information that has been obtained as supplementary to other activities

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authorities advise, issue formal recommendations and warnings, which can be urgent or
not. The formal requests are applicable to the French operators. Therein the authorities
actively participate in the decision-making about flying over conflict areas, while the fnal
responsibility remains with the operators.
7.6.3 What did other states do?
As described in Section 5, on 4 March 2014, the U.S. aviation authority (FAA) issued a
NOTAM that contained a general warning to U.S. operators and airmen flying in Ukraine’s
airspace pertaining to potential instability and an increasing military presence in the
airspace. On 3 April 2014, the FAA issued a prohibition on U.S. operators and airmen
flying in Crimea’s airspace (Simferopol FIR). In NOTAM 4/2816, the operators were also
warned to exercise extreme caution with regard to flying in other parts of Ukraine, due to
the persistent risk of instability. On 23 April, this warning, which also referred to, but was
not limited to, the eastern part of Ukraine, was repeated in a NOTAM. Both NOTAMs
made no reference to military activities. After these NOTAMs, and before 17 July 2014,
the FAA did not issue any other warnings or prohibitions related to flying in the area
above the eastern part of Ukraine.
On 30 June, the authorities in the United Kingdom issued a recommendation to avoid
the airspace above Crimea,*167 but did not issue any further warnings related to flying over
the eastern part of Ukraine.
The ‘scope’ of the general warnings about Ukraine was limited (see the explanation in
the text box below). This was also demonstrated by the risk assessment performed by
Malaysia Airlines which, while basing its threat analysis on aeronautical information, did
not actively monitor U.S. NOTAMs and SFARs because the operator no longer flew over
or to the United States.

The visibility of NOTAMs
If a state issues a NOTAM about an other state, the NOTAM only appears in the
selection of NOTAMs that are relevant to a flight, if the flight is passing through the
state that issued it. This means that a NOTAM issued by the United Kingdom about
an other state (such as Ukraine) is only visible to operators that take off from, land in
or fly through the airspace of the United Kingdom. NOTAMs issued by a state about
its own territory always appear in the selection of NOTAMs if a flight passes through
the FIR concerned, in this case the UKDV FIR (Dnipropetrovsk FIR).

In summary: insofar as the Dutch Safety Board was able to ascertain, between the
beginning of March and 17 July 2014, one warning was published about the safety of the
airspace in Ukraine in relation to military activities. The United States warned of potential
instability, an increasing military presence and possible confrontation with military
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*167 NOTAM EGTT B1258/14, dated 30 June 2014. This NOTAM does not contain any new information compared with
earlier publications by ICAO and the FAA in April.

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activities in the airspace. The NOTAM that included this warning was only valid and
visible in March 2014. Between the end of April and 17 July 2014, no formal warnings
were issued about the safety of the airspace in Ukraine, including the eastern part of
Ukraine. It was precisely during this period that the armed conflict expanded into the
airspace.
7.7 What did other operators do? *168
This Section describes how other operators reacted to the changing situation in Ukraine.
Here, only international flights that passed through Ukraine’s airspace are included, as flight
MH17 did, and not domestic flights or flights that operators operated from or to Ukraine.
Data that the Dutch Safety Board received from EUROCONTROL reveal that, during the
period between April and 17 July 2014, no noticeable reaction was observed from
operators with regard to the situation in Ukraine; a large number of operators continued
to use routes over the eastern part of Ukraine. EUROCONTROL data were used to
compile several lists (see also Appendix R). The frst is a list of all the flights that flew over
the entire region of the eastern part of Ukraine during the months of April, May, June
and July 2014 (through 17 July 2014). Section 6 already explained that, between April
through 17 July, an average of 1,300 flights per day were operated throughout all of
Ukraine.
The list from EUROCONTROL reveals that the average number of international flights
that flew through the UKDV region (Dnipropetrovsk FIR) per day did not change after the
unrest intensifed in the eastern part of Ukraine and the armed conflict increasingly
expanded into the airspace. Even following the Ukrainian NOTAMs*169 on 6 June, 1 July
and 14 July 2014, there was no signifcant change in the number of flights through UKDV;
on average there were approximately 220 flights per day (see Figure 86).
-----------------------------------------------------------------------------------------------------------------------------------
*168 The information about the way in which airlines reacted to the situation in Ukraine was mainly obtained through
surveys and using data supplied by EUROCONTROL.
*169 NOTAMs A1255/14, A1256/14, A1383/14, A1384/14 - the restriction below FL260 from 6 June 2014 and NOTAMs
A1492/14 and A1493/14 - the restriction below FL320 on 14 July 2014.

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https://c.radikal.ru/c02/1907/16/ebba3_9e775.png
Figure 86: Daily number of flights through UKDV shown for the period between 1 April - 17 July 2014. (Source:
                EUROCONTROL)

A minor shift can be observed in the distribution of the number of daily flights in the
airspace above the area within UKDV mentioned in the NOTAMs and the flights operated
just south of this area (see Figure 87). In April 2014, an average of 152 flights were
operated per day in the airspace above the part of UKDV to which the NOTAM refers; in
June, the average was 147 and in July it was 145 per day. In the same period, there was a
slight increase in the number of flights south of the NOTAM area, where the altitude
restrictions did not apply; these amounted to 68, 76 and 79 respectively per day.
The Dutch Safety Board used the flight data supplied by EUROCONTROL to produce a
list of all operators that flew over the NOTAM area between 14 and 17 July (i.e., the
period between the publication of the NOTAM that restricted the airspace up to FL320
and the crash of flight MH17). The Dutch Safety Board also produced a list of all flights
that passed UKDV on 17 July (the day flight MH17 crashed) until the airspace was closed
at 15.00. There were 160 flights. Both lists are included in Appendix R.
All the lists reveal that there is no noticeable change in behaviour; in the period between
14 and 17 July 2014, 61 operators from 32 states flew over the area. These also included
operators from Ukraine itself and the Russian Federation.
The following points must be taken into account when assessing the data supplied by
EUROCONTROL:
• The data were automatically generated by EUROCONTROL. No verifcation of the
data’s accuracy was performed.
• These are the operators whose flight numbers are used to identify the flights and to
which the overflight fees are charged. This is not necessarily the operator that actually
operated the flight.

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https://c.radikal.ru/c14/1907/b1/7801564f9c39.png
Figure 87: Flight routes through the eastern part of Ukraine with cited the area referred to in the NOTAMs in
                Section 6 indicated by a red line. The routes outside the NOTAM area (i.e. south of it) but inside
                UKDV are shown in purple. (Source: Dutch Safety Board)

The Dutch Safety Board also conducted a survey to try to obtain a better understanding of
operators’ motives for deciding whether or not to fly over the eastern part of Ukraine.
Nineteen operators from eight states participated in the survey. Four operators stated that
they had never flown over the eastern part of Ukraine and one operator already stopped
flying over Ukraine in 2011. Six of the surveyed operators flew over the eastern part of
Ukraine until MH17 crashed on 17 July 2014. In April, one of these six operators decided to
no longer fly over Crimea but did continue to fly over the eastern part of Ukraine. Eight
other operators already stopped flying over the eastern part of Ukraine in March and April
2014, stating that it was due to the uncertainty of the situation in the Simferopol FIR
(Crimea), with regard to which they were also warned by various aviation authorities.
The Dutch Safety Board also obtained information about the reason behind the decision
whether or not to fly there, from interviews with and observations of operators. In one of
these interviews, one of the operators stated that the security department constantly

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monitored the situation in Ukraine in the months leading up to the crash of flight MH17, but
that the focus was on the situation in and around Kyiv, because it was a landing location.
The operator deemed the situation in the eastern part of Ukraine to be non-threatening,
because it assumed that the fghting parties did not consider civil aircraft to be targets.
Another operator stated that it stopped flying over Ukraine as a whole in March, because
it did not consider the situation throughout Ukraine to be adequately safe as a result of
the developments in Crimea. This operator did continue to monitor the developments
and after the Antonov An-26 was shot down on 14 July 2014, concluded that it had made
the right decision, since the aircraft had to have been shot down with a more powerful
weapon than a MANPADS.
The investigation also revealed that two U.S. operators were no longer flying over the
eastern part of Ukraine as of 14 and 15 July, for practical reasons. When questioned, it
turned out that one of the two operators had not planned any flights over the eastern
part of Ukraine during the period between 14 and 17 July 2014. The other operators
reported that the decision was the result of the NOTAM with the FL320 altitude restriction
that was issued after the Antonov An-26 had been shot down. This operator indicated
that it was quicker for it to select a different route than to implement the new altitude
restriction in its flight plan program. The new NOTAM was therefore the immediate
reason for this operator to alter the route and not potential information related to the
armed conflict and possible dangers it posed to overflying civil aeroplanes. For that
matter, other U.S. operators did not alter their route and continued to fly over the eastern
part of Ukraine.

7.8 Analysis: what did Malaysia Airlines do and what did others do?

7.8.1 Malaysia Airlines and other operators
Malaysia Airlines operates according to the requirements for Security and Flight
Operations as established in ICAO’s international standards and recommended practices.
Malaysia Airlines knew that there was an armed conflict on the ground in the eastern part
of Ukraine, but assumed that the airspace would be safe based on the offcial airspace
status information, as provided by the national aviation authorities and EUROCONTROL.
Malaysia Airlines stated they did not actively seek information and did not actively
monitor media reports about the situation in the eastern part of Ukraine. At the same
time, Malaysia Airlines did not receive any threat-related information from its own
authorities or from other states, international organisations or other operators.
Malaysia Airlines was not approached by any other operators, nor did it receive
information via its alliance network. There was also no exchange of information related to
the situation in the airspace above the eastern part of Ukraine with KLM, which was the
code share partner on flight MH17. Since, based on its own risk analyses, KLM saw no
reason to stop flying over the eastern part of Ukraine, there was no reason for KLM to
approach Malaysia Airlines regarding any potential risks involved in the route.*170
------------------------------------------------------------------------------------------------------------------
*170 See also Section 8.

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In other words, Malaysia Airlines based its decision virtually exclusively on aeronautical
information (selection of NOTAMs) and did not perform its own additional risk
assessment.
Insofar as the Dutch Safety Board has been able to ascertain, Malaysia Airlines complies
with all standards relevant to ‘air operators’: the operator has an AOC, through which the
Malaysian State indicates that the operator complies with ICAO standards and national
regulations. Malaysia has a security programme, with which the operator fulfls the
requirements set out in Annex 17 of ICAO. Malaysia Airlines fltered, processed and used
aeronautical information for preparing and executing the flight. The way in which Malaysia
Airlines prepared the flight therefore complies with the requirements for Security and
Flight Operations as defned in ICAO’s international regulations.
The Dutch Safety Board observes that, insofar as could be determined, Malaysia Airlines
complied with its legal requirements but did not make any additional efforts to obtain an
overview of the safety of the airspace above the eastern part of Ukraine. Malaysia Airline’s
information position related to potential threats in the airspace was limited, in part as a
result of decisions it made independently and because the operator was not able to
obtain any intelligence related to foreign airspace from its national authorities. At the
same time, the question is whether a more effective information position would have led
to a different decision with regard to the flight route. Malaysia Airlines was not in a unique
situation: there were many operators that were still flying over the conflict area, including
operators that did generally seek additional information about conflict areas or operated
in a context in which their national authorities played a more informative or steering role.
7.8.2 ICAO
In the State Letter related to Simferopol FIR (Crimea) on 2 April 2014, ICAO stated they
would continue to actively coordinate with the parties active in the region with respect to
the developments in the realm of flight safety. This may have created expectations that
ICAO would continue to monitor the situation in all of Ukraine.
However, after issuing the State Letter up and to the crash of flight MH17, the civil aviation
organisation did not take any additional action with regard to Ukraine. ICAO relies on
other states for information and stated that it did not receive any information during this
period that justifed publishing a new State Letter. The statement made by the Ukrainian
authorities related to the Antonov An-26 being shot down on 14 July did not constitute a
reason for ICAO to take any further action, despite the fact that the statement included
the possibility of the involvement of a much more powerful type of missile or the
intervention by a fghter aeroplane. In addition, ICAO did not receive a request for
assistance from Ukraine (as recommended in ICAO Doc 9554-AN/932), on the basis of
which ICAO could have played a role. ICAO stated that it actively seeks verifcation in the
case of unverifed reports about a lack of safety in an airspace, frst and foremost from
the state that manages the relevant airspace. Based on this interpretation of its role,
ICAO could have offered Ukraine its assistance and, if necessary, could have issued a
State Letter as a precaution. Doc 9554-AN/932 also does not preclude such an active
role for ICAO. The Dutch Safety Board does understand ICAO’s point of view that it
cannot issue a warning or State Letter based on unverifed reports or media reports, but
it is of the opinion that this does not apply to offcial statements made by the relevant

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authorities. In the Dutch Safety Board’s opinion, it would have been appropriate in this
regard for ICAO to have requested clarifcation from Ukraine and/or offered its services,
in relation to the statements made by the Ukrainian authorities about the Antonov An-26
being shot down on 14 July.
7.8.3 Other states
Various states collected information about the conflict in the eastern part of Ukraine.
Although the FAA issued a warning about Ukraine’s airspace at the beginning of March
2014, this was only valid till the end of March and concerned the whole of Ukraine. After
the end of April 2014, when the conflict in the eastern part of Ukraine expanded into the
airspace, the risk posed to civil aviation by flying over the area was not recognised by any
states. States did not issue any specifc recommendations related to flying over the
conflict area. The explanation for this is that states gathered and assessed the information
from a military-strategic and geopolitical perspective. Western states’ fear of an invasion
of Ukraine by the Russian Federation and the consequences for stability in Europe and
the world were paramount. These states did not realise that the conflict could present a
risk to civil aeroplanes flying over, even when the fghting increasingly expanded into the
airspace and the Ukrainian authorities reported on weapon systems that can reach
cruising altitude.
7.8.4 Other operators
From the relatively unchanged number of flights across the area above the eastern part
of Ukraine, the Dutch Safety Board deduces that also operators other than Malaysia
Airlines did not realise that the armed conflict could pose a risk to civil aviation either.
The Dutch Safety Board was able to establish that just one operator decided to no longer
fly over Ukraine for safety reasons. However, this decision was already made in March
2014 as a result of developments in Crimea. The armed conflict had not yet erupted in
the eastern part of the country at that time. Evidently, most operators considered that
there was no reason to assume that civil aviation was in any danger while flying over
Ukraine at high altitude.
The investigation highlights the fact that the developments in Crimea were the rationale
behind eight of the nineteen surveyed operators altering their flight routes and no longer
operate over the eastern part of Ukraine. This took place a few months before 17 July 2014,
when there was no or virtually no talk of an armed conflict in the eastern part of Ukraine.
Some caution has to be applied when drawing conclusions related to the extent to which
operators altered their flight routes.
As mentioned above, just one operator stated that the general safety situation in the
Ukraine was the rationale for the decision. Decisions related to altering routes may also
arise from other considerations, such as changes in meteorological circumstances,
changes in destinations or other operational circumstances. This also applies to the small
increase in the number of operators that flew south of the area described in the NOTAMs
over the eastern part of the Ukraine.

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7.9 Sub-conclusions

1. As operating carrier, Malaysia Airlines was responsible for the safe operation of
flight MH17 and therefore for the choice of the flight route on 17 July 2014. The
way in which Malaysia Airlines prepared and operated the flight complied with
the applicable regulations. Malaysia Airlines relied on aeronautical information
and did not perform any additional risk assessment. Malaysia Airlines did not
receive signals from other operators or via any other channels indicating that the
airspace above the eastern part of Ukraine was unsafe.
2. Malaysia Airlines was also responsible for the safety of the passengers who had
booked via its code share partner KLM. Since KLM, just like other operators, saw
no safety reason to avoid the airspace above the eastern part of Ukraine, Malaysia
Airlines and KLM did not exchange any information about the armed conflict.
3. A single operator decided to stop flying over Ukraine because of growing unrest
in the country. This decision was made in March 2014, i.e. before the armed
conflict broke out in the eastern part of Ukraine.
4. Insofar as the Dutch Safety Board was able to ascertain, no other operators
changed their flight routes for safety reasons related to the conflict in the eastern
part of Ukraine after this. This did not change after the Antonov An-26 had been
shot down on 14 July 2014, which, according to the Ukrainian authorities, had
been done using a more powerful weapon system than MANPADS.
5. Data provided by EUROCONTROL reveal that during the period between 14 up
to and including 17 July, 61 operators from 32 states used the airspace above the
eastern part of Ukraine. On 17 July 2014, 160 flights were performed in UKDV
until the airspace was closed at 15.00 (17.00 CET).
6. Operators - including Malaysia Airlines - assumed that the unrestricted airspace
above FL320 over the eastern part of Ukraine was safe. This was despite the fact
that the conflict was expanding into the air and that, according to the Ukrainian
authorities, weapon systems were being used that could reach civil aeroplanes at
cruising altitude.

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7. When, between the end of April and July, the armed conflict in the eastern part
of Ukraine expanded into the airspace, 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 unsafe, nor did they issue a flight
prohibition. States that did gather information about the conflict in the eastern
part of Ukraine were focusing on military and geopolitical developments.
Possible risks to civil aviation went unidentifed.
8. During the period in which the conflict in the eastern part of Ukraine expanded
into the airspace, ICAO did not ask the Ukrainian authorities about airspace
management and did not offer any assistance. This did not change after the
statement made by the Ukrainian authorities on 14 July 2014 on the
Antonov An-26 that had been shot down.

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8 THE STATE OF DEPARTURE OF FLIGHT
MH17 - THE ROLE OF THE NETHERLANDS

8.1 Introduction

The crash involving flight MH17 on 17 July 2014 raised the question why operators were
flying over the eastern part of Ukraine when there was an armed conflict in the area. In
the Netherlands, this was followed by the question whether there was anything the Dutch
State could have done to prevent the crash.*171 This was because there were 193 Dutch
citizens on board, because the aeroplane departed from the Netherlands and because
eleven passengers booked their flight with a Dutch operator (KLM).
The Dutch Safety Board has investigated the extent to which the state in which an
international flight takes off must - or can - play a role in the decision-making related to
flight routes. Firstly, this role concerns flights by operators based in the state in question,
because the ICAO framework provides states with room to inform, warn or prohibit
operators based in their territories from crossing certain airspaces. However, citizens
from these states can also travel with operators that are based in another state. It is
therefore conceivable that states, out of concern for their citizens, share information
related to threats with all operators that operate flights from these states. In this Section,
the situation in the Netherlands was chosen as a starting point because the Netherlands
was the state of departure for flight MH17. The Dutch Safety Board is of the opinion,
however, that other states can also draw lessons from the fndings.
Specifc research questions for this Section are:
• What role did the Dutch State play in the decision-making process with regard to the
flight route of flight MH17, which took off from the Netherlands?
• What options did the Dutch State have to influence the decision-making related to
foreign flight routes?
• What indicators did the Dutch State (including the intelligence and security services,
the AIVD and the MIVD *172) have with regard to the safety of the flight route used by
flight MH17 in the airspace above the eastern part of Ukraine?
The investigation by the CTIVD
At the request of the Dutch Safety Board, the Dutch Minister of the Interior and Kingdom
Relations and the Dutch Minister of Defence asked the Dutch Review Committee for the
Intelligence and Security Services (CTIVD) to conduct an investigation into the question
whether the AIVD and the MIVD have a legal duty with regard to the decision-making
pertaining to flight routes and how they implement it. The CTIVD is the body in the
-------------------------------------------------------------------------------------------------------------------------------
*171 See for example Dutch Parliamentary documents II, 2014/2015, 33997, No. 36.
*172 AIVD: General Intelligence and Security Service of the Netherlands. MIVD: Military Intelligence and Security
Service of the Netherlands.

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Netherlands that monitors the legality of the implementation of the Intelligence and
Security Services Act and the Security Clearances Act, and is authorised to view classifed
information.
The CTIVD’s report *173 answers the following questions:
• Do the Services have a legal duty with regard to the security of flight routes through
foreign airspace?
• How is the formal consultation structure organised between the AIVD and the MIVD
and the civil aviation parties with regard to security issues, and what information
exchange takes place in this respect?
• What information did the Services possess prior to the crash regarding the security of
civil flights above the eastern part of Ukraine, and did they share this knowledge with
external parties?

8.2 Formal responsibilities for flight MH17

As explained in Section 4, states are responsible for managing the airspace within their
borders (See Figure 76). States shall make all reasonable attempts to ensure the safety of
civil aviation in the airspace. They can decide to open, close or restrict the airspace for
civil aviation. It is their sovereign right to do so. In the case of flight MH17, the State of
Ukraine was responsible for the airspace management in the area where the crash
occurred.
Based on the decisions made by the Ukrainian authorities, on 17 July 2014 civil aeroplanes
were permitted to use the airspace above the conflict area (Dnipropetrovsk FIR) above
FL320. This also applied to Malaysia Airlines flight MH17 (also see Section 6 and 7).
Flight MH17 was a flight operated by a Malaysian operator. It is regulated by the Malaysian
authorities. Only the State of the Operator, i.e. Malaysia, could (in theory) have prohibited
the operator from using the open flight route above the conflict area or have issued the
operator with recommendations or instructions related to flying over the area. Regardless
of whether Malaysian legislation offers this possibility, it can be established that the
Malaysian authorities did not issue any flight prohibition or restriction. The responsibility
for the decision to fly over the area is therefore fully borne by Malaysia Airlines.
The above means that Ukraine, Malaysia and Malaysia Airlines bore certain responsibilities
with regard to the operation of flight MH17 based on national and international law. The
Dutch State did not bear such responsibilities. A state does not bear any responsibility
with regard to flights operated by a foreign operator in foreign airspace, even if the
operator departs from the state’s territory.
--------------------------------------------------------------------------------------------------------------------------------
*173 See Appendix T. The CTIVD is responsible for the content of the appendix, including the terminology used. This
may deviate from the terminology used by the Dutch Safety Board.

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The fact that a code share agreement with KLM applied to flight MH17 had no impact on
the Dutch State’s responsibilities. According to this agreement, the operator that actually
operates the flight is responsible for the flight’s safety (see also Section 4).*174 Based on
this agreement, KLM also had no obligation to warn Malaysia Airlines about any potential
danger.*175

8.3 The options open to the Dutch State in relation to flight routes

Although the Netherlands played no formal part in selecting the route taken by flight
MH17, it is conceivable that the state could have informally exerted some influence, such
as by warning operators about threats posed by the conflict area. The Chicago
Convention and its Annexes, provide room for States to prohibit operators based in their
territory from using foreign airspace, or issue recommendations on the matter (see also
Section 7). Every state, so also the state of departure, can provide information about
foreign airspace. Although this type of information is usually intended for its ‘own’
operators, it can also be made available to operators that take off or land in the state
issuing the information or fly through its airspace.
This Section describes how the Dutch State interprets its role with regard to these types
of situations.
8.3.1 Civil aviation safety in the Netherlands
In the Netherlands, the responsibility for the safety and security of the airspace is shared
between different departments.*176 The NCTV *177 is responsible for civil aviation security in
the Netherlands. This concerns the measures at aerodromes that are meant to prevent
unlawful acts that form a danger to civil aviation.
The Ministry of Infrastructure and the Environment is responsible for civil aviation safety
and is also responsible for in-flight security. An aircraft is deemed ‘in flight’ as from the
moment that the exterior doors are closed after boarding and the engine power is used
to take off. This part of aviation security is specifcally related to security measures on
board an aircraft. These measures are often subject to the certifcation requirements of
the aircraft (think of the reinforced cockpit doors). An exception to this is the deployment
of air marshals.*178 The deployment of air marshals takes place under the responsibility of
the Ministry of Security and Justice because it involves a policing task. As soon as the
door of the aeroplane is closed, in the context of this report and Section (security), it
becomes a matter of ‘in-flight security’, not ‘in-flight safety’.
-------------------------------------------------------------------------------------------------------------------------------------------
*174 In accordance with the code share agreement between KLM and Malaysia Airlines. This is a common provision in
such agreements.
*175 KLM states that it would have passed on any actual threat-related information to code share and alliance partners
if any had existed. However, KLM, partly based on informal contacts with the Dutch intelligence services and other
airlines, did not perceive any threat and also flew over the eastern part of Ukraine.
*176 Ministry of Security and Justice/NCTV: National Civil Aviation Security Programme (NCASP), April 2014.
*177 The National Coordinator for Security and Counter-terrorism (NCTV), part of the Ministry of Security and Justice.
*178 An air marshal or sky marshal is an armed, plain-clothed security offcer who travels on a commercial aircraft to
combat any potential acts of terrorism.

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Dutch airspace security is the joint responsibility of the Ministry of Infrastructure and the
Environment and the Ministry of Defence. Air traffc services security (including air traffc
control) also falls under the primary responsibility of the Ministry of Infrastructure and the
Environment. Whenever the Ministry of Security and Justice bears primary responsibility,
the Ministry of Infrastructure and the Environment is involved, and vice versa.
In the Netherlands, aerodrome security falls under the responsibility of the NCTV. With
regard to the aerodromes, the NCTV is the competent authority for the Royal Netherlands
Marechaussee. The Royal Netherlands Marechaussee is charged with the execution of
the policing task at Schiphol Airport and at the other aerodromes indicated by the
Minister of Security and Justice and the Minister of Defence, as well as with civil aviation
security. For aerodrome security, the NCTV, in the context of the Counterterrorism Alert
System, asks the AIVD, the MIVD and the Central Intelligence Service of the National
Police (DLIO) to produce semi-annual updates of the threat analysis for civil aerodromes.
The NCTV acts on the basis of the information provided by the services and the police.
In its threat analysis, the AIVD not only includes threats to national aerodromes, but also
associated threats to inbound aeroplanes in the Netherlands (e.g. those arriving from risk
areas), threats to Dutch operators abroad (e.g. the safety of a Dutch crew during their
stay abroad), the security at foreign destination aerodromes, threats from terrorist groups
to civil aeroplanes that are going to land in or possibly overfly the Netherlands and
threats to aircraft departing from the Netherlands (e.g. a threat in the Netherlands).*179
Once a year, the NCTV produces a threat analysis for the aviation sector, which primarily
concerns national aspects and the threat of terrorism in the Netherlands. This also
includes attacks inside the aeroplane or external attacks directed at the aeroplane in
Dutch airspace.
Dutch operators can also ask the Dutch intelligence services for information about
potential threats abroad. In the event of an actual threat against Dutch operators, the
authorities consider it their duty to actively share information. The intelligence and security
services play a major role in this respect (see paragraph 8.3.2). In other words, the
Netherlands provides information to operators both on request and on an unsollicited
basis, but does not issue any recommendations pertaining to flying over conflict areas. In
interviews with the Dutch Safety Board, respondents from the NCTV and the Ministries of
Infrastructure and Environment and Foreign Affairs provided the following reasons for
this:
• The state that manages the airspace may view any interference with this management
as a violation of its sovereignty, which could damage diplomatic relations with the
state concerned;
• Operators are responsible for safe flight operations. By directing in this area, the state
assumes this responsibility and this is not a desirable situation;
• The Netherlands can never have suffcient information at its disposal to guarantee the
safety of civil aviation (and civilians in general) in other states;
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*179 See Appendix T.

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• The state has no legal power to impose an over-flight prohibition pertaining to other
states on national operators, and furthermore has no right to impose such a
prohibition on foreign operators departing from the Netherlands;
• Adopting a directing role with regard to flying over other states could result in an
increase in liability claims.
Despite the above, the Ministry of Foreign Affairs has recently begun including advice
concerning the flight route - if relevant - in travel advice about areas with a possible threat.*180
8.3.2 The tasks of the AIVD and the MIVD
In short, the legal security duties of the AIVD and the MIVD involve the Services
conducting investigations into threats to national security.*181 In doing so, the AIVD
focuses on civil aspects and the MIVD on military aspects. The AIVD and the MIVD are
also charged with the task of conducting investigations regarding other states.*182 This is
called the foreign intelligence task. The AIVD and the MIVD also have a task to promote
measures to protect the interests served by the Services.*183 This is called the security
promotion task.
The legal security and intelligence tasks of the AIVD and the MIVD do not include
conducting independent investigations into the safety of foreign airspace, and thus into
the safety of flight routes that use it.*184 This is because the Services’ task allocation is
linked to the central government’s responsibilities. The Dutch authorities have no control
over and thus no responsibility for any foreign airspace. The safety of foreign flight routes,
however, is part of the AVID’s security promotion task.*185 This is not an independent
investigative duty, but a task that is mainly fulflled using information collected by
investigations performed as part of the security and intelligence task.
As part of its security promotion task, the AIVD makes a contribution to the provision of
information to Dutch operators, by sharing information about actual threats, on its own
initiative, with the NCTV and Dutch operators and also by acting as a source of
information for Dutch operators. For this purpose, the AIVD has an account manager for
the civil aviation sector who maintains contact with (among others) the security managers
of Dutch operators. The CTIVD concludes that, as part of the AVID’s security promotion
task, the Service cannot be expected to independently assess which information
operators need. Therefore, operators are expected to take the initiative; they have to
approach the AIVD.*186
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*180 One example is the travel advice for Egypt, Jordan and Israel. It warns of threats in the airspace above the Sinai
desert: ‘The air traffc that makes use of the airspace above the Sinai may encounter a terrorist threat. Prior to your
trip, ask your airline or travel organisation whether they take this threat into account with the flight route.’ http://
rijksoverheid.nl/onderwerpen/reisadviezen, consulted on 22 July 2015.
*181 This is the so-called ‘a’ task of the AIVD (Article 6 paragraph 2 subsection a Wiv 2002) and the ‘a’ and ‘c’ tasks of
the MIVD (Article 7 paragraph 2 subsections a and c).
*182 This is the so-called ‘d’ task of the AIVD (Article 6 paragraph 2 subsection d Wiv 2002) and the ‘e’ task of the MIVD
(Article 7 paragraph 2 subsection e).
*183 This is the so-called ‘c’ task of the AIVD (Article 6 paragraph 2 subsection c Wiv 2002) and the ‘d’ task of the MIVD
(Article 7 paragraph 2 subsection d). This task of the MIVD is completely concerned with the defence sector,
including the defence industry. Civil aviation is not part of its scope.
*184 See Appendix T.
*185 This task focuses on promoting the protection of important and vulnerable parts of society in the Netherlands (see
Appendix T).
*186 See Appendix T.

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The MIVD shares actual threat information with the NCTV. The MIVD maintains only
informal contacts with the operator KLM.
The AIVD has shared actual threat information in the past. This was done, for example, in
October 2013, when there were indications that armed groups in the Sinai desert (Egypt)
possessed portable surface-to-air missiles and that they had the intention of shooting
down civil aeroplanes. At the time, the AIVD issued a report to the NCTV, the Ministry of
Foreign Affairs and Dutch operators.*187
In accordance with the AIVD’s policy, the Service considers there to be an actual threat if
three threat factors are present: capacity (availability of resources), potential (capabilities
of resources and actors) and intention (motives). The AIVD uses these factors to estimate
the severity and probability of a threat. The MIVD uses slightly different terminology, but
adopts a similar approach for determining a threat. The MIVD derives intention from the
objective (or strategic objective) of the enemy or group, its ideology and its military
doctrine. The MIVD includes the possibilities of the resources and of the actors (potential)
in the capacity factor and also uses the activity factor (the series of acts involved in
executing the threat).
The CTIVD concluded that the threat factors used by the AIVD and the MIVD constitute
an effective basis for assessing whether an actual threat exists. The Committee does
however recommend that the Services examine the extent to which they can align the
terminologies they use.*1_
8.3.3 The tasks of the NCTV
Setting rules or issuing recommendations about flying through foreign airspace is not
one of the NCTV’s tasks. However, if, for example, information from the intelligence
services (that is not directly related to the NCTV’s legal duty) is received by one of the
NCTV directorates, the NCTV, the Ministry of Foreign Affairs and the Services do share it
with parties whom it could beneft. This also applies to information related to risks to civil
aviation in foreign airspace.
The investigation of the Dutch Safety Board demonstrates that the NCTV bases the
severity and probability of a threat on threat factors: capacity (availability of resources),
potential and intention. Potential refers to the possibilities of the resources and actors to
actually cause damage (in this case to aviation). Intention presupposes acting with a
preconceived motivation. The NCTV only considers there to be an actual threat if there is
potential and intention. In that case, the NCTV will actively issue a warning to operators.
When there is potential, but there are no indications of intention, the NCTV does not
consider it has any role to play. The NCTV assumes that, in such a case, other parties (i.e.
the State that manages the airspace as well as the operators) will take responsibility.
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*187 See Appendix T.
*1_ See Appendix T

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8.4 What information did the Dutch State possess and what did it do with it?

This Section describes how the Dutch State acted with regard to flying over the conflict
area in the eastern part of Ukraine prior to the crash involving flight MH17. In doing so, it
addresses the main sources of information, the information related to the armed conflict
and possible threats to civil aviation (especially Dutch operators) that was available, and
what was done with this information.
8.4.1 Information position
During the months leading up to the crash of flight MH17, the Netherlands gathered
information about the situation in Ukraine both via the intelligence and security services
and from the embassy in Kyiv. With regard to military developments, the Netherlands had
virtually no information position in Ukraine from the autumn of 2013 onwards. A Dutch
team that was once put together to conduct observations in Ukraine was dismantled in
August 2013.
The AIVD did not have a separate investigative mission focusing on Ukraine. The AIVD
did conduct an investigation into the Russian Federation, which originated from the 2011-
2016 Foreign Intelligence Designation Order. This concerns the AIVD’s foreign intelligence
task. As part of this task, the AIVD gathers intelligence that can support the government
in determining foreign policy and conducting international negotiations. This is also
called ‘political intelligence’.
When the unrest in Ukraine escalated from February 2014, the Ministry of Foreign Affairs
requested the AIVD to also report on developments in political circles in Ukraine in
March 2014. During the period prior to the crash, the AIVD team’s focus was on the
political power play in Ukraine and the Russian influence on the latter. The AIVD team
examined the information it received from this perspective. The AIVD team did not
collect information related to the military capacities of the parties involved in the armed
conflict in the eastern part of Ukraine. The team did receive information that offered a
broader perspective of the conflict in the eastern part of Ukraine and of the military
capacities and activities of the parties involved. The team used this information as
background information to support its investigative mission.
The MIVD did not have an investigative assignment focused on Ukraine.*189 However,
there was an MIVD team that focused on the Russian Federation’s foreign, security and
defence policies. This involved the team examining the proliferation of Russian weapons,
military knowledge and technology. In March 2014, the MIVD was assigned the mission
of providing weekly reports on the crisis between Ukraine and the Russian Federation.
This led to a slight shift in the focus of the investigation into Russian military capacities
and capacities in the vicinity of Ukraine. Attention was also devoted to the possible threat
of a Russian invasion of Ukraine. This working method provided a more complete picture
of the Russian capacities than those of the Ukrainian armed forces and the armed groups
that were fghting the Ukrainian government.*190
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*189 See Appendix T.
*190 See Appendix T.

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Some of the information about the situation in the eastern part of Ukraine that the Dutch
State possessed originated from the Dutch embassy and from the defence attaché who
worked there. The defence attaché falls under the responsibility of the Chief of Defence
and reports in the frst instance to the Ministry of Defence, although he can also gather
information to beneft the MIVD’s implementation of its tasks. He serves as a (military)
adviser to the ambassador (Chef de Poste). In 2013 the Netherlands had a defence
attaché for Ukraine, but the post in Kyiv was a ‘travelling defence attaché post’ based at
the station in The Hague. The post in Kyiv was combined with the ones in Warsaw and
Prague. The defence attaché visited the post in Kyiv three or four times a year.
From the end of February 2014, when internal tensions and concern about the role of the
Russian Federation therein increased, the role of travelling defence attaché was scaled
up to ultimately become a permanent station in Kyiv (‘resident defence attaché).
Henceforth, the defence attaché was assigned the mission of making an inventory of the
parties in the conflict, noting signifcant developments and indicating their possible
consequences for the Netherlands and Europe.
The defence attaché’s tasks did not include identifying potential risks to civil aviation. He
had no contact or virtually no contact with Dutch operators.
8.4.2 The information that was available
8.4.2.1 The MIVD and the AIVD
The MIVD had information that, in the months prior to the investigation into the crash of
flight MH17, the groups fghting the Ukrainian government were increasing their military
capability. They were also trying to get hold of anti-aircraft systems, because they were
being attacked from the air by Ukrainian armed forces. The MIVD knew that the armed
groups possessed MANPADS and possibly short-range ‘vehicle-borne’ air defence
systems. Both types of systems are considered surface-to-air missiles (SAMs), but do not
pose a threat to civil aviation at cruising altitude due to their limited range.*191 Statements
made by NATO General Breedlove at a press briefng on 30 June 2014 about build-up of
weapons and training across the border in the Russian Federation (see Section 5) contained
little new information for the MIVD. The terms ‘vehicle-borne capability’ and ‘air-defence
vehicles’ are generic and are also used to refer to short-range air defence systems.
The AIVD was also aware that the groups fghting the Ukrainian government were
obtaining more and increasingly powerful weapons during the months leading up to
17 July, including MANPADS and possibly short-range, vehicle-borne air defence systems.
On 16 July, the AIVD received a report from a reliable source stating that there was no
information to indicate that the armed groups fghting the Ukrainian government
possessed anti-aircraft systems which could have downed the Antonov An-26 from
6,500 metres on 14 July (see Section 5).*192
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*191 See Appendix T (Section 5.2.2. of the CTIVD report).
*192 See Appendix T.

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The MIVD launched an investigation into the downing of the Antonov An-26 on 14 July.
The reason for this were the statements in the media by the Ukrainian authorities that the
aeroplane was flying at 6,500 metres*193 and was shot down with a powerful anti-aircraft
system (a medium-range surface-to-air missile or an air-to-air missile) by, or even from
inside, the Russian Federation. If this was the case, then Russian participation in the
conflict would have become a fact; this was suffcient reason for the MIVD to launch an
investigation. On 17 July 2014, the MIVD shared the results of this investigation with
several parties, including the NCTV and the AIVD. According to the MIVD’s assessment,
it was unlikely that the Antonov had been shot down with a powerful air defence system
(aside from the question of whether this occurred inside Russian territory). Images of the
wreckage and eye witness statements showed that the aeroplane was struck in the right
engine and that subsequently 5 to 6 parachutes appeared. After these events the
Antonov crashed. On the basis of this information the MIVD concluded that the damage
to the aeroplane was not consistent with the damage that would be caused by a powerful
anti-aircraft system. In that case the aeroplane would have been destroyed in the air.
According to the MIVD the wreckage and the eyewitnesses support the fact that the
aeroplane was downed with a MANPADS originating from inside Ukrainian territory. This
is only possible if the Antonov was flying considerably lower than 6,200m or 6,500m.
Another possibility is that a short-range vehicle-borne air defence system was used. The
information received from the MIVD does not point to the use of a powerful air defence
system. The possibility that the aeroplane was shot down with an air-to-air missile was
not mentioned.
The CTIVD established that neither Service possessed any information prior to 17 July 2014
that indicated that the groups fghting the government had operational and powerful air
defence systems such as a Buk (SA-11). Although the MIVD had various unconfrmed
reports that the armed groups had at least one Buk M1 (SA-11), most probably from the
Ukrainian air defences, based on various reliable intelligence sources, the MIVD concluded
that the system was not operational. Both the MIVD and the AIVD possessed information
that the armed groups fghting the government were motivated to shoot down military
aircraft. However, the services had no indication that the armed groups had the intention
of shooting down a civil aeroplane.
The CTIVD’s investigation revealed that the MIVD and the AIVD possessed information
that the Ukrainian and Russian forces did have powerful air-defence systems. The Russian
armed forces on the territory of the Russian Federation near the border with the eastern
part of Ukraine; the Ukrainian armed forces in the west of Ukraine and a number in the
eastern part of the country. The Services did not possess any information indicating that
one of these actors had the intention to shoot down a civil aeroplane.
The CTIVD concluded that the Services had no indications of an actual threat against civil
aviation prior to the crash of flight MH17. The material available to the Services does not
indicate that any of the actors involved in the armed conflict in the eastern part of Ukraine
displayed a combination of military resources, abilities and the intention to shoot down a
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*193 In a briefng for diplomats, an altitude of 6,200 metres was mentioned; in response to additional questions by the
Dutch Safety Board, in July 2015 an altitude of 6,300 metres was mentioned.


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