The Absence of Caution — The Tragedy of Malaysia Airlines Flight MH 17

Following the downing of Malaysian Airlines flight MH 17 over the Ukraine on July 17, the airline’s website featured senior officials with hang-dog looks offering condolences to the families of the 298 passengers and crew blasted to oblivion, likely by a surface-to-air missile fired by Ukrainian separatists.

Captain Izham Ismail, the airline’s Director of Operations, vowed a week later, “Safety has always and always will be our utmost priority.”

If so, one has to ask what the airline was doing flying at 33,000 feet over an active war zone where the antagonists were equipped with SA-11 missiles capable of striking jets flying as high as 49,000 feet. At least ten aircraft and helicopters had been shot down in the three months leading to the missile hit that destroyed the airliner. A Ukrainian military jet was shot down just the day before.

Other airlines had chosen to re-route their flights, accepting the slight increase in fuel consumption for the assurance of a flight outside the missile-striking envelopes of the combatants.

Before the missile attack, the Ukrainian government had closed airspace below 32,000 feet because of security concerns — note that flight MH 17 was cruising just 1,000 feet above. Eurocontrol, the air traffic controller for Europe, had banned flights below 26,000 feet since July 1, after rebels shot down a Ukrainian military aircraft. Some other airlines had already elected to avoid Ukrainian airspace, at any altitude, and were routing their airplanes to skirt any possible threat from the fighting below.

Belatedly, Malaysian Airlines now touts its avoidance policy, declaring it flies around Ukrainian airspace altogether. The once-popular aerial east-west highway is now empty.

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Malaysian Airlines now faces liability estimated in excess of $1 billion. The lives lost are incalculable. Captain Ismail’s fervent commitment to safety is not only belated, it lies in tatters.

His words are not the only ones bereft of real meaning.

The International Civil Aviation Organization (“ICAO”) proclaims safety first and efficiency third in its priorities:

“ICAO sets international standards necessary for the safety, security and efficiency of air transport…”

Consider the Articles of Association listed by the International Air Transport Association (‘IATA”), of which Malaysian Airlines is a member:

“The mission of IATA is to represent, lead and serve the airline industry. In carrying out this mission IATA shall: 1. Promote safe, reliable and secure air services for the benefit of the peoples of the world; 2. Provide means of collaboration among Airlines in compliance with applicable law; 3. Cooperate with the International Civil Aviation Organization and other relevant international organizations.”

Each — Malaysia Airlines, IATA, and ICAO — failed to fulfill its of safety role, as the burned, twisted remains of flight MH 17 mutely attest.

The distancing from accountability was noteworthy for its brazenness. On July 18, Malaysia Airlines asserted on its website and on Twitter that MH 17’s flight plan was approved by Eurocontrol, which is solely responsible for determining flight paths over Europe, and further asserted that MH 17’s route was approved by ICAO. Contemporaneously, IATA issued a statement that “it is important we are very clear: safety is the top priority” and “[a]irlines depend on governments and air traffic control authorities to advise which air space is available for flight, and they plan within those limits.” ICAO President, Dr. Olumuyiwa Benard Aliu, was blessedly more circumspect, stating only that “ICAO strongly condemns the use of weapons against international civil aviation.”

At a fundamental level, the international community appears to be in agreement that whoever launched the missile bears responsibility for the crime of slaughtering the innocents 33,000 feet above. Who, though, bears responsibility for the conditions that allowed this civilian airplane to enter an area of active conflict? Further, how does this accident get prevented in the future?

1. Malaysia Airlines and IATA Knew Or Should Have Known

On July 14, three days prior to the MH 17 missile strike, an Antonov An-26 belonging to the Ukrainian government similar to the one pictured below was shot down by a missile at a reported altitude of approximately 21,325 feet.

An Antonov An-26 in Ukrainian military colors similar to the one shot down on July 14, 2014 near the village of Davido-Nikolsk, in the Luhansk region

An Antonov An-26 in Ukrainian military colors similar to the one shot down on July 14, 2014 near the village of Davido-Nikolsk, in the Luhansk region

An Antonov An-26 in Ukrainian military colors similar to the one shot down on July 14, 2014 near the village of Davido-Nikolsk, in the Luhansk region

The news of this event was widely reported in the media, including the altitude at which the airplane was struck. However, the significance of such an event escaped appreciation by officials at Malaysia Airlines, KLM (which stuck to the preferred fuel-saving route) and IATA. Lost was the understanding of the weaponry be used to bring down an aircraft from such an altitude. Lost was the understanding of the of the escalation of hostilities in the area, and lost was the understanding that the flight plan for MH17 “threaded the needle” between the restricted air space over and near Crimea to the south, and that of the Luhansk region to the north where the An-26 was shot down earlier that week.

However, the hostilities in the region were appreciated by several other IATA member airlines. Take for example, Korean Air which experienced the shoot down of KAL Flight 007 in 1983 at the hands of the Russian military. Korean Air, an IATA member airline, ceased flights over Ukrainian air space on March 3, 2014, or more than four months prior “due to the political unrest in the region.” Reportedly, Asiana Airlines, Qantas Airlines and China Airlines, all IATA members, had diverted flights around Ukraine well prior to July as well.

2. IATA and ICAO Lacked Redundant Security Intelligence

Counter-intuitive to its mission of promoting secure air services for the peoples of the world, it appears IATA never set up a system of intelligence sharing between its members relating to route-of-flight safety and security, including threat assessments. Instead, IATA rejected responsibility for any such thing on its part or its member airlines in a position paper submitted to ICAO which included the statement:

“IATA believes that governments have direct responsibility for aviation security and its funding. This responsibility includes protection of its citizens in the air and on the ground…”

Under such a position, safety and security would only be as good as the worst government upon whose information the flying public is expected to rely. Ukraine is a signatory to the Chicago Convention and should have followed its provisions and those in its annexes. Annex 17 to the Convention contains a provision that “[e]ach contracting state should constantly review the level of threat to aviation in their territory and establish any new procedures accordingly, as well as notify ICAO of the changes.”

So, did the Ukrainian government appreciate the threat that existed to civil aviation over its air space? Apparently not. Ukrainian controllers approved MH 17 to travel along the route and at the altitude it did. Again, only as good as the worst, and precisely why ICAO cannot solely rely on the provisions of Annex 17.

Certainly, ICAO has the personnel and expertise to have appreciated the threats that existed over Ukraine prior to the downing of MH 17. However, there was no system in place to independently gather and assess such available information. It seems that even with the report run by the CBC television in Montreal on July 14, where ICAO’s headquarters are located, no one at ICAO believed they were expected or empowered to do anything with the information published on the downing of the An-26 or the escalating violence in the region.

Nevertheless, the flying public was led to believe that the MH 17 route-of-flight was safe because, as Malaysia Airlines stated, it was an ICAO approved route. The reality is the ICAO approval of the route was not an endorsement of its safety on July 17, 2014 or at any other time.

The evasiveness and rationalizations are astounding.

Contrary to its mission, ICAO eschewed the duties of its self-proclaimed role as coordinator for international cooperation in all areas of civil aviation

3. Safety of International Civil Aviation is a Mutual Responsibility

The courts will eventually sort out the legal responsibility for the tragic downing of MH 17, but the airlines, industry and governments around the world know now where the systemic vulnerabilities to safety and security exist. Empty words in mission statements and vague declarations that safety is the highest priority are not enough when airliners are routed over active conflict zone.

Regulatory bodies, Eurocontrol, and airlines might take a page from the procedures used to avoid volcanic ash.

When Iceland’s Eyjafallokull erupted in 2010, ejecting huge amounts of ash into the upper atmosphere — and right into the path of international flights — jetliners were either grounded outright until the hazard had passed, or they were re-routed into safer climes by air traffic controllers.

The 2010 eruption of Iceland's Eyjafallokull volcano  disrupted international flights

The 2010 eruption of Iceland’s Eyjafallokull volcano
disrupted international flights

In just three days the volcano spewed 100 million tons of fine particulate matter into the atmosphere. The fine ash, not detectable by radar, scours windshields and gums up engines, causing them to wind down to a stop as the ash collects like glass on turbine blades and other components (See “The Hazard of Flying Through an Ash Cloud”, Aviation Safety Journal, May 17, 2010; see http://asj.nolan-law.com/2010/05/the-hazard-of-flying-through-an-ash-cloud/.

For volcanic ash clouds, the international aviation policy is strict avoidance with a 100 mile buffer for uncertainty.

Such a standard would make eminent sense as well for flying jetliners over the world’s conflict zones. The standard could be a part of an airline’s standard operating procedure (SOP), utilized by both dispatchers and pilots. It could be written into air traffic control procedures. The policy could be codified by ICAO and IATA. Certainly the policy should be enforced by government regulatory bodies.

As in the case of volcanic eruptions, flying trusting passengers over a conflict zones just begs the question: Why wasn’t the airspace banned (at all altitudes), and what was the airline thinking? The absence of caution invited disaster.