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The month that has been: MH17

(Please note, this matter is not currently being litigated in Australia)

In the month since flight MH 17 was criminally downed by an entity or entities who still remain at large, and which continue to fail to take responsibility, the world has once again joined in grief with hundreds of families of Malaysia Airlines passengers and crew.

The international community, primarily through the intercession of the Australian government as a new and vocal member of the United Nations Security Council, swiftly condemned the actions which caused the death of so many civilian lives and uniformly attracted the anger and fury of all nations.

The last month has been characterised by a dangerous and unparalleled mission to give international investigators access to retrieve the remains of those lost, and commence investigations at the dual crime/aircraft debris fields. At the request of Ukraine, the International Civil Aviation Organisation (ICAO) set up an international team of investigators led by the Netherlands. Several other countries played a key part in the initial activities and recovery effort, including Australia and Malaysia. In this regard Malaysia’s Prime Minister has been instrumental in securing from pro-Russian separatists in the region of the sites the aircraft’s cockpit voice and flight data recorders (black boxes). The black boxes were sent, pursuant to normal protocols and agreements between European aviation accident investigation authorities, to the United Kingdom for download and analysis.

Formal results, and a preliminary report are due to be released within weeks, including some analysis of the black box contents. Readings from the black boxes will give some indication of whether the crew had any advance warning or knowledge at all of the impending attack.

Crisis management compared

The disappearance of Malaysia Airlines flight MH370 and downing of Malaysia Airlines flight MH17 present a stark contrast in relation to crisis management and airline public relations following such tragedies.

Flight MH370, in the absence of debris, became the official responsibility of the Malaysian government to explain to the world that it was the lead investigating state to locate and investigate the causes of the loss of the aircraft. However, with flight MH17 the remains of which landed in Ukrainian territory, albeit in the midst of a socially civilian battle and disputed territorial sovereignty, a new spokesperson for the disaster emerged from Dutch authorities, as the Ukraine quickly asked for assistance to not take on the great responsibility of investigation and public relations. But apart from tactful sincere messages of condolences and restrained anger, the Malaysian government is visibly invisible in the aftermath of flight MH17. Perhaps this is a good thing, as given the victims and the aircraft itself are clearly understood to have been attacked and are known where to have come to rest, there remains little to be gained by public relations posturing.

In the month which has passed, predictably, the ICAO has taken steps to raise potential regulatory changes which should be revealed in time as a result of this atrocity. However, as has been said on the Shine Lawyers Aviation Department website previously, we have a sense of pessimism about the reality of ICAO to palpably do anything substantial to prevent the occurrence of such attacks in future. The truth is, this is not the first attack of its kind and international aviation regulatory responses thus far have failed to protect innocent lives.

Who must push for pragmatic change to prevent re-occurrence of airliner attacks?

The fact is the aviation industry itself and the international community need to make a stand with conviction against attacks at this time, in a way that the ratification of Article 3bis of the Chicago version (see here for a description of this) is unable to do, the perpetrators must be brought to justice in a criminal sense, but in a civil sense too. In other words they must be made to pay.

While there is practical sense then for fortifying and improving aviation and terrestrial security intelligence sharing with the commercial airline industry to ensure airlines have the best practical information upon which to make their crew flight safety risk assessments, diplomatic and political challenges, as well as international security issues that such cooperation raises, will likely prove to be the subject of intense debate as suitable and a workable resolution is found. In the meantime, airline safety risk assessments are entirely the domain of the airline, with their sometimes competing economic and safety incentives.

As such, airline customers may prove to be the true motivator of change in respect of forcing the international community or international aviation community to alter its behaviour and take wide berths around combat zones.  That is, passengers may simply pick airlines depending on information they have themselves which would indicate which airlines avoid warzones and those who take risks of traversing them. It’s a way of determining whether one will be using an airline which would be (relatively) “safe”.

No unauthorised weapons means no risk to civilian planes

As Tony Tyler of the International Air Transport Association (IATA) said, considerations of security threat information sharing between states and airlines is one element that needs to be considered to prevent such occurrences in future. Sustained efforts must also be pursued to ensure international arms policies prevent those who access such weapons as that used to down flight MH17, will only be for those nations with a suitable level of international credibility and responsibility.



Written by Shine Lawyers. Last modified: August 26, 2014.

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