While the intent of the United Nations resolution supporting an independent investigation of the downing of MH17 is clear, the investigation itself isn’t going to be quick or straightforward.
Who is investigating the flight recorders?
The first thing to be discarded in the UN-sanctioned independent investigation into the MH17 disaster has been its own rules. Under Annex 13 of the UN body, the International Civil Aviation Organisation (ICAO), Ukraine as the state where the Malaysia Airlines Boeing 777 fell to earth should lead the accident investigation.
But it won’t. This part of Annex 13 is widely ignored or bypassed in air disasters.
Without any formal structure for an investigation being announced, the pro-Russian separatists blamed for shooting down the airliner have handed over the apparently intact black box flight recorders to Malaysian investigators.
Malaysia then handed them to Netherlands authorities, who in turn requested that the United Kingdom’s Air Accidents Investigation Branch read and analyse the data following a request by the Dutch government, according to a tweet by British PM David Cameron.
It is not clear to whom the UK AAIB will forward its analysis of the flight data recorders at this stage.
If ICAO Annex 13 is taken as a guide, Malaysia should receive them, as the state in which the airliner was registered and operated from.
Malaysia can and undoubtedly will formally invite all of the states whose nationals died in the disaster to join the yet-to-be-fully defined investigation as participants or observers. This is normal practice. Australia has already contributed directly to the investigation with its successful initiative in the UN Security Council and through the task of identifying and repatriating the victims through its positioning of an RAAF C-17 and a team of forensic experts in Amsterdam.
Other participants will include Boeing as the jet maker, the jet’s major systems makers, the US Federal Aviation Administration as the agency that certified the 777 design, and EASA, the European Air Safety Agency.
What is happening to the victims’ bodies?
Back at the crash site, it is horribly apparent that far fewer bodies have been collected than claimed yesterday when a refrigerated train removed hundreds of bagged remains from the rebel-held area to a Ukraine-held area. The remains have been flown to Amsterdam for forensic examination and DNA and dental record identification.
This process could take months. Not all bodies will be found or positively identified.
What’s the legal difference between MH370 and MH17 recovery and investigative efforts?
Baffling though the loss of MH370 is, the legal obligations in that disaster are much less complex than for MH17. Malaysia is the lead investigator for the loss of that flight, which set out for Beijing from Kuala Lumpur on March 8 with 239 people on board.
Malaysia has engaged a very wide and deep range of international investigators to assist it in understanding what information about MH370 has been extracted from satellite and radar data even in the absence of a single physical item from the missing 777.
Australia is the lead co-ordinator of the search for MH370, fulfilling its international obligations arising from the jet going missing within its Indian Ocean maritime search-and-rescue zone.
Have passenger planes gone down in war zones/disputed territories before? What was the result? Did international investigators get access?
Although many civilian airliners have been shot down, there are none that fit the exact circumstances of MH17. The nearest was the destruction of an Iran Air A300, carrying 290 people over the Persian Gulf when it was shot down by the US guided missile destroyer the Vincennes in July 1988.
The aircraft was clearly identified as a passenger airliner and was in Iranian territorial airspace when it was destroyed. Massive efforts to rewrite the facts have been made over the Vincennes atrocity, which in an infamous BBC documentary in 2000 was described in a US statement as a case of mistaken “scenario fulfillment”.
Shoot-downs have never been properly investigated in the past. In the USSR era two Korean airliners were brought down by fighter intercepts, involving a 707 in 1978 and a 747, in the more famous KAL 007 disaster, in 1983.
Both crashes had their origins in navigational errors by pilots. The USSR refused to release the black box recorders from either jet, although after the fall of the Soviet Union, the data recordings from KAL 007 were released, much to the embarrassment of the airline and the conspiracy purveyors on both sides, who had churned out hate-filled rubbish in the absence of crucial data.
Why did ICAO and the air traffic control entities in Europe and the Ukraine fail to properly describe the risks of overflights like those being done by MH17 (in close proximity on the day to other 777s, a 787 and an A380)?
There were clear warnings given to airlines as to the risks of missile shoot-downs, which airlines like Cathay Pacific, British Airways and Air France acted upon up to months ago. But other airlines took ICAO as saying something that was clearly unsafe was safe and flew those routes without doing their own risk and intelligence analyses.
We need to learn the lessons arising from these failings, but expect certain airlines and ICAO to resist such questions even being posed, let alone answered.