tag:theconversation.com,2011:/fr/topics/flight-mh17-11559/articlesFlight MH17 – The Conversation2023-02-09T04:03:27Ztag:theconversation.com,2011:article/1995832023-02-09T04:03:27Z2023-02-09T04:03:27ZPutin is now implicated in the downing of flight MH17 – so why is the investigation shutting down?<figure><img src="https://images.theconversation.com/files/509081/original/file-20230209-13-9cects.jpg?ixlib=rb-1.1.0&rect=262%2C31%2C5040%2C3609&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Peter Dejong/AP</span></span></figcaption></figure><p>The investigation into the downing of Malaysian Airlines flight MH17 has found “<a href="https://www.npr.org/2023/02/08/1155401602/malaysian-airlines-flight-mh17-putin-missiles-investigation">strong indications</a>” that Russian President Vladimir Putin authorised the supply of the missiles used by separatists to shoot down the plane.</p>
<p>However, the joint investigative team leading the investigation said it has reached the limits of its investigation, largely due to Russia’s refusal to cooperate. At this time, it will not initiate further prosecutions. </p>
<h2>What investigators looked at</h2>
<p>On July 17 2014, flight MH17 was travelling from Amsterdam to Kuala Lumpur when it was shot down over eastern Ukraine. All 298 people onboard were killed.</p>
<p>This atrocity shocked the international community and raised many questions of legal responsibility that are <a href="https://www.youtube.com/watch?v=vGa-_lPh9P0">still being grappled with today</a>.</p>
<p>One early response was the formation of the joint investigative team, which brought together investigators and prosecutors from five countries most affected by the tragedy – The Netherlands, Ukraine, Malaysia, Australia and Belgium. Its role was to carry out the “full, thorough and independent international investigation” called for by the UN Security Council.</p>
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<img alt="" src="https://images.theconversation.com/files/509084/original/file-20230209-18-jazuwu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/509084/original/file-20230209-18-jazuwu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/509084/original/file-20230209-18-jazuwu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/509084/original/file-20230209-18-jazuwu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/509084/original/file-20230209-18-jazuwu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/509084/original/file-20230209-18-jazuwu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/509084/original/file-20230209-18-jazuwu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The reconstructed wreckage of Malaysia Airlines Flight MH17 in 2015.</span>
<span class="attribution"><span class="source">Peter Dejong/AP</span></span>
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<p>The team’s work was complex and protracted, particularly as the crash site was located in a conflict zone. It was mid-2015 when the investigators gained proper access to the site in Ukraine. They subsequently questioned 200 witnesses and intercepted and analysed 3,500 conversations. The team also studied 20 weapons systems and scrutinised five billion internet pages. </p>
<p>Ground samples were taken in various international locations and missile launch sites were simulated in the five countries leading the investigation. Thousands of parts from the plane wreckage were examined. </p>
<p>The key initial finding was the plane was shot down by a missile launched by a BUK-TELAR system, located on farmland in an area of Ukraine controlled at the time by pro-Russian separatists. The investigators determined the missile and launcher were transported from Russia before the attack and returned there afterwards.</p>
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<img alt="" src="https://images.theconversation.com/files/509083/original/file-20230209-16-lvbliw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/509083/original/file-20230209-16-lvbliw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/509083/original/file-20230209-16-lvbliw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/509083/original/file-20230209-16-lvbliw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/509083/original/file-20230209-16-lvbliw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/509083/original/file-20230209-16-lvbliw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/509083/original/file-20230209-16-lvbliw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Prosecutor Digna van Boetzelaer of the Netherlands announcing the suspension of the investigation.</span>
<span class="attribution"><span class="source">Peter Dejong/AP</span></span>
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<h2>Dutch criminal prosecution</h2>
<p>One important outcome of the team’s work was the <a href="https://theconversation.com/mh17-convictions-pave-the-way-for-war-crime-prosecutions-from-ukrainian-invasion-194909">prosecution</a> of four separatist fighters in the Netherlands. Three of them – Igor Girkin, Sergey Dubinskiy and Leonid Kharchenko – were <a href="https://www.theguardian.com/world/2022/nov/17/three-men-found-guilty-of-murdering-298-people-in-flight-mh17-bombing">found guilty</a> last year of bringing down the plane and murdering all 298 people onboard. </p>
<p>Prosecutors did not allege the men had pressed the launch button for the missile, but that they played significant roles in transporting, positioning and returning the missile launcher to Russia. </p>
<p>The men received <a href="https://www.youtube.com/watch?v=w1oX01rjwnA">sentences</a> of life imprisonment and were ordered to pay more than 16 million euros (A$24.7 million) in compensation to the victims’ families. But since they were tried in absentia, it is highly unlikely any of them will face a real penalty. </p>
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Read more:
<a href="https://theconversation.com/mh17-convictions-pave-the-way-for-war-crime-prosecutions-from-ukrainian-invasion-194909">MH17 convictions pave the way for war crime prosecutions from Ukrainian invasion</a>
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<h2>Putin’s potential involvement</h2>
<p>The <a href="https://www.prosecutionservice.nl/topics/mh17-plane-crash/documents/publications/mh17/map/2023/report-mh17">report</a> released this week by the MH17 investigation team focused on the crew members responsible for the missile launcher and those above them in the chain of command. </p>
<p>While the investigators uncovered considerable information about the decision-making before the plane was shot down, the evidence was insufficient to prosecute further suspects. The key problem is access to information: Russia has consistently refused to accept responsibility and has prevented the investigators from gathering evidence from Russian nationals. Russia is also accused of falsifying evidence.</p>
<p>Investigators believe the launcher crew were members of the 53rd brigade of the Russian military, based in Kursk. It seems likely those crew members, if they were available for questioning, could explain what their assignment was in Ukraine and why MH17 was shot down. </p>
<p>The team also found evidence the separatists were in touch with Russian intelligence and the Kremlin. They requested, and were granted, access to heavier air defence systems. Investigators believe Russia was actually in control of the “Donetsk People’s Republic” separatist movement in July 2014. Russia denies this.</p>
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Read more:
<a href="https://theconversation.com/what-legacy-will-vladimir-putin-leave-russia-195444">What legacy will Vladimir Putin leave Russia?</a>
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<p>However, it’s <a href="https://www.theguardian.com/world/2023/feb/08/mh17-plane-missile-putin">Putin’s potential involvement</a> that’s capturing the most attention. </p>
<p><a href="https://www.prosecutionservice.nl/topics/mh17-plane-crash/news/2023/02/08/jit-mh17-strong-indications-that-russian-president-decided-on-supplying-buk">According</a> to investigators, there are “strong indications” Putin decided to supply the BUK-TELAR launcher to the separatists. </p>
<p>Intercepted phone calls served as evidence that Putin is the only person with authority to approve the provision of heavy air defence systems like the BUK-TELAR to the separatists. The team believes Putin authorised the delivery of even heavier air defence systems, but it does not have conclusive enough evidence to pursue charges. </p>
<p>In any case, at the moment, Putin enjoys head of state immunity. </p>
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<h2>Can Russia still be held accountable?</h2>
<p>While the investigation is now suspended, it could be revived in the future. Investigators said they are available to <a href="https://www.prosecutionservice.nl/topics/mh17-plane-crash/news/2023/02/08/jit-mh17-strong-indications-that-russian-president-decided-on-supplying-buk">receive evidence</a> from the Russian authorities or Russian witnesses, and that further information could lead to future prosecutions.</p>
<p>Digna van Boetzelaer, deputy chief public prosecutor of The Netherlands, <a href="https://www.prosecutionservice.nl/topics/mh17-plane-crash/news/2023/02/08/jit-mh17-strong-indications-that-russian-president-decided-on-supplying-buk">reflected</a> on what the team has achieved to date:</p>
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<p>The purpose of this investigation was to find out the truth, and I think we have come further than we ever imagined in 2014. </p>
<p>The bar for establishing individual criminal liability is high. At the moment we do not meet that bar for the persons discussed in the remaining investigation. </p>
<p>The findings we have uncovered about the Russian involvement up to the highest level can play an important role in proceedings where the liability of this state is at issue.</p>
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<p>Van Boetzelaer’s last comment references other judicial actions that are still ongoing in relation to MH17. </p>
<p>One of these is an <a href="https://www.ejiltalk.org/the-european-courts-admissibility-decision-in-ukraine-and-the-netherlands-v-russia-the-good-the-bad-and-the-ugly-part-i/">action</a> launched by Ukraine and The Netherlands against Russia in the <a href="https://www.justiceinfo.net/en/90187-ukraine-russia-european-court-of-human-rights-can-do.html">European Court of Human Rights</a>. That court delivered an interim ruling last month that attributes some responsibility to Russia for crimes committed on Ukrainian territory. </p>
<p>Meanwhile, Australia and The Netherlands have launched a separate <a href="https://theconversation.com/does-the-un-aviation-body-have-the-power-to-punish-russia-for-the-mh17-downing-an-aviation-law-expert-explains-179288">action</a> against Russia before the International Civil Aviation Organization. </p>
<p>Ukraine is also pursuing an <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/FlagPost/2022/August/Ukraine_v_Russia_at_the_International_Court_of_Justice">action</a> against Russia before the International Court of Justice. It claims Russia financed terrorist acts by separatists and is responsible for gross humanitarian violations against Ukrainian civilians.</p>
<p>All of these actions are operating in the increasingly complex and tragic circumstances of Russia’s full-scale invasion of Ukraine and the ongoing war there. But as Australian Foreign Minister Penny Wong <a href="https://www.foreignminister.gov.au/minister/penny-wong/media-release/suspension-joint-investigation-downing-flight-mh17">stressed</a> this week, the countries impacted by the tragedy remain committed to holding Russia accountable.</p><img src="https://counter.theconversation.com/content/199583/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The key problem is access to information: Russia has refused to accept responsibility and prevented the investigators from gathering evidence from Russian nationals.Amy Maguire, Associate Professor in Human Rights and International Law, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1949092022-11-18T05:00:57Z2022-11-18T05:00:57ZMH17 convictions pave the way for war crime prosecutions from Ukrainian invasion<figure><img src="https://images.theconversation.com/files/496084/original/file-20221118-14-hzn3fw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Remko de Waal/EPA/AAP</span></span></figcaption></figure><p>On November 17 2022, the Hague District Court in the Netherlands <a href="https://edition.cnn.com/2022/11/17/europe/mh17-trial-verdict-intl/index.html">convicted two Russians and a Ukrainian of murder</a> in relation to the downing of flight MH17 by a Buk-TELAR surface-to-air missile in 2014 over rebel-held territory in Ukraine. </p>
<p>This conviction is the first concluded legal action in relation to the incident. It is important not only because it provides some answers for the families of the 298 people killed on that flight, but because it demonstrates that states intend to pursue justice against Russian acts of violence connected with the Ukrainian conflict, regardless of the time or cost involved. </p>
<p>This conviction can, in some respects, be <a href="https://www.abc.net.au/news/2022-11-17/the-families-of-mh17-crash-victims-still-searching/101668740">considered shallow</a>. Many family members have still not achieved closure in terms of recovery of their loved ones’ remains. Those most responsible have not been prosecuted or held to account. </p>
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Read more:
<a href="https://theconversation.com/mh17-charges-who-the-suspects-are-what-theyre-charged-with-and-what-happens-next-119155">MH17 charges: who the suspects are, what they're charged with, and what happens next</a>
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<p>However, this prosecution is an important first step in bringing those responsible to justice. It serves as an indicator that the international community will not tolerate such actions; and as a signal to Russians involved in atrocities in the ongoing Ukrainian conflict that they may yet be held to account.</p>
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<p>It further demonstrates the value of in-absentia trials – where those who are being tried do not have to be present. The Dutch convictions regarding the downing flight MH17 occurred without having custody over the perpetrators. The convicted men remain at large, and it is <a href="https://www.bbc.com/news/world-europe-28357880">unlikely Russia will agree</a> to their extradition. </p>
<p>However, their convictions will remain in place for their entire lives and can form the basis of subsequent legal action in relation to the incident.</p>
<p>Australia’s <a href="https://www.legislation.gov.au/Details/C2022C00156/Html/Volume_2#_Toc101884664">war crimes prosecution regime</a> allows for the prosecution of crimes without any traditional jurisdictional nexus to the perpetrators; that is, without connection in geography or citizenship to the victims. It does not allow for prosecution without the presence of the accused. </p>
<p>It does, however, allow for proceedings to begin with the attorney-general’s permission. Extradition requests could then be sent to the Russian government to seek custody over the alleged perpetrators in order to continue the prosecution. Such action sends a strong message in support of the rule of law and accountability, even if the prosecution does not proceed. </p>
<p>The principle of double jeopardy (or <em>ne bis in idem</em>) <a href="http://classic.austlii.edu.au/au/journals/MelbJIL/2012/5.html">does not apply between countries</a>. That is, prosecutions in Australian will not prejudice other states from prosecuting the same offending. This means there is little risk to Australia in pursuing this course of action in terms of jeopardising other mechanisms for justice related to these crimes. </p>
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<span class="caption">In 2014, 298 people were killed when flight Malaysian Airlines flight MH17 was shot out of the sky over Ukraine.</span>
<span class="attribution"><span class="source">Evgeniy Maloletka/AP/AAP</span></span>
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<p>Australia <a href="https://www.abc.net.au/news/2022-11-17/mh17-dutch-trial-verdict-australia-role-seeking-justice/101659918">provided expert investigators</a> from the Australian Federal Police to support the MH17 investigation. Their evidence was used to secure these convictions. </p>
<p><a href="https://www.smh.com.au/world/europe/australia-asked-to-help-in-ukraine-war-crimes-investigation-20220717-p5b25k.html">Australian investigators</a> will also support the investigation of war crimes in Ukraine. The prosecution of war crimes offences in Ukraine is going to take many years and will likely overwhelm their domestic criminal justice system. </p>
<p>One concern if these prosecutions occur outside of Ukraine is that victim participation will be reduced. Careful case selection and victims being able to participate remotely through technology can mitigate this. </p>
<p>Historical examples, such as in the case of Rwanda, demonstrate that concentrating prosecutions in one tribunal means prosecutions can continue for decades after the conflict; and justice delayed is justice denied.</p>
<p>Australia has the expertise and the opportunity to be seen as a leader in at least pressing for accountability for crimes in Ukraine. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/does-the-un-aviation-body-have-the-power-to-punish-russia-for-the-mh17-downing-an-aviation-law-expert-explains-179288">Does the UN aviation body have the power to punish Russia for the MH17 downing? An aviation law expert explains</a>
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<p>Among other judicial activism in response to Russia’s invasion of Ukraine, Australia and the Netherlands have <a href="https://www.foreignminister.gov.au/minister/marise-payne/media-release/australia-and-netherlands-initiate-mh17-legal-proceedings">commenced proceedings</a> against Russia in the International Civil Aviation Organization, on the basis that Russia is internationally responsible for downing the aircraft. </p>
<p>The Russians have rejected this legal action and the Netherlands prosecution <a href="https://www.pravda.com.ua/eng/news/2022/11/17/7376856/">as acts of “political favour”</a>, which should be dismissed for a lack of impartiality. Effectively, Russia accuses Australia of using tactics of “lawfare” – using the law to affect a strategic outcome. </p>
<p>Rather than resile from these claims, Australia should embrace them, and continue to use lawfare to seek accountability for war crimes committed in the Ukraine conflict. There is value in launching carefully investigated domestic prosecutions for atrocity crimes. There is also value in reinforcing international criminal justice and accountability measures. This would prevent impunity and discourage further atrocity crimes being committed in this and future conflicts.</p>
<p>Specifically, there is political value in reinforcing the importance of the rule of law. Our political motivations should be to seek out and punish those guilty of committing atrocities.</p><img src="https://counter.theconversation.com/content/194909/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lauren Sanders receives funding from the Truster Autonomous Systems CRC. She is a Reserve Legal Officer, however, the views presented do not represent the views of the Australian Defence Force or the Australian Government. </span></em></p>The Dutch example in the convictions relating to the MH17 crash is one other courts, including in Australia, should follow in response to Ukrainian war crimes.Lauren Sanders, Senior Research Fellow on Law and the Future of War, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1792882022-03-15T06:19:41Z2022-03-15T06:19:41ZDoes the UN aviation body have the power to punish Russia for the MH17 downing? An aviation law expert explains<figure><img src="https://images.theconversation.com/files/452038/original/file-20220314-15-mtxdln.jpg?ixlib=rb-1.1.0&rect=225%2C23%2C4687%2C3422&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Peter Dejong/AP</span></span></figcaption></figure><p>Australia and the Netherlands <a href="https://www.abc.net.au/news/2022-03-14/australia-netherlands-mh17-legal-proceedings-against-russia/100909240">have launched legal proceedings</a> against Russia over the downing of flight MH17, which killed 298 people in 2014.</p>
<p>What’s so unusual about this new legal action is that it’s being brought before the International Civil Aviation Organisation (ICAO). Australia, the Netherlands and Russia are all contracting parties to what is known as the <a href="https://www.icao.int/about-icao/history/pages/default.aspx">Chicago Convention of 1944</a>, which set up the ICAO to provide standards and recommended practices for international aviation.</p>
<p>Normally, proceedings like this would be brought in domestic courts like the <a href="https://www.usnews.com/news/world/articles/2021-12-21/suspects-in-dutch-trial-fully-responsible-for-mh17-downing-prosecution-says#:%7E:text=AMSTERDAM%20(Reuters)%20%2D%20Dutch%20prosecutors,be%20found%20guilty%20of%20murder.">existing prosecution</a> being mounted by the Dutch authorities against the four individuals they believe were responsible for the downing of MH17. </p>
<p>But the ICAO is a body responsible for setting standards for international aviation and doesn’t frequently settle disputes between nations. </p>
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<h2>ICAO doesn’t police the skies</h2>
<p>The ICAO has been quite successful in its role. There are 192 nations that are contracting members to the Chicago Convention and are obliged to comply with its various standards and recommended practices. </p>
<p>And we have a very harmonised international aviation sector as a result, with requirements for flight crew licensing, aircraft manufacturing and environmental regulations that are all routinely met by the member states.</p>
<p>The ICAO does have <a href="https://www.icao.int/about-icao/FAQ/Pages/icao-frequently-asked-questions-faq-3.aspx">provisions</a> for settling disputes between member countries under article 84 of the convention. This is where the Australian and Dutch authorities have brought their action.</p>
<p>Normally, if there’s a dispute brought before the organisation, it’s against a particular airline, not a country itself. So, if an airline has done something wrong, ICAO can impose restrictions on where it can fly. This can’t happen when you bring a case against another nation.</p>
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<p>In the 78 years of ICAO’s existence, <a href="https://www.icao.int/about-icao/FAQ/Pages/icao-frequently-asked-questions-faq-3.aspx">only five disputes</a> have been brought under this article. It’s not used that often because ICAO can’t really compel states to comply with it. It’s a bit of a toothless tiger when it comes to disputes of this nature.</p>
<p>Russia could also be held accountable under <a href="https://www.mcgill.ca/iasl/files/iasl/montreal1984.pdf">article 3bis of the Chicago Convention</a>, an amendment signed in 1984 after the Soviet military <a href="https://www.washingtonpost.com/archive/politics/1983/09/17/by-26-2-vote-icao-deplores-soviets-shooting-of-plane/f3017e07-b009-4ff2-be03-272fd0dec561/">shot down</a> a South Korean airliner the previous year. </p>
<p>This article says member states “must refrain from resorting to the use of weapons against civil aircraft in flight”. A state can initiate proceedings to the ICAO Council, which could then be appealed to the International Court of Justice.</p>
<p>But the council has previously been <a href="https://utrechtjournal.org/articles/10.5334/ujiel.368/galley/165/download/">described</a> as “less as a court of law than as a facilitator for settlement”, limiting itself to technical issues and avoiding political matters. Only one council dispute has ever been referred to the ICJ.</p>
<h2>So what can ICAO do in this case?</h2>
<p>Australia and the Netherlands are using the legal action to try to force Russia back to the negotiating table to resolve the dispute over compensation for the families of the MH17 victims. Russia <a href="https://www.npr.org/2022/03/14/1086449199/australia-netherlands-malaysia-airlines-mh17-russia">unilaterally withdrew</a> from the talks in 2020. </p>
<p>Australian Attorney-General Michaelia Cash said the ICAO is “the sole body that has jurisdiction to deal with this matter”, <a href="https://www.abc.net.au/news/2022-03-14/australia-netherlands-mh17-legal-proceedings-against-russia/100909240">asking the body to order</a></p>
<blockquote>
<p>the parties immediately enter good faith negotiations to resolve expeditiously the matters of full reparation for the injury caused by Russia’s breach.</p>
</blockquote>
<p>ICAO can say to Russia that it must return to the negotiating table, but in terms of being able to enforce it, the most it can do is suspend Russia’s voting rights in the ICAO Council and ICAO Assembly. </p>
<p>Russian President Vladimir Putin is unlikely to care very much about that because Russia would still be part of the Chicago Convention. </p>
<p>And expelling a member from ICAO has never been tested to date. </p>
<figure class="align-center ">
<img alt="Relatives of flight MH17 victims walking past memorial in the Netherlands." src="https://images.theconversation.com/files/452049/original/file-20220315-130208-1jo8ve3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/452049/original/file-20220315-130208-1jo8ve3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/452049/original/file-20220315-130208-1jo8ve3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/452049/original/file-20220315-130208-1jo8ve3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/452049/original/file-20220315-130208-1jo8ve3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/452049/original/file-20220315-130208-1jo8ve3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/452049/original/file-20220315-130208-1jo8ve3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Relatives of the victims of flight MH17 walk along 298 empty chairs in a park opposite the Russian embassy in the Netherlands, each chair representing one of the 298 people killed.</span>
<span class="attribution"><span class="source">Peter Dejong/AP</span></span>
</figcaption>
</figure>
<h2>Other international treaties that could be relevant</h2>
<p>The <a href="https://treaties.un.org/doc/Publication/UNTS/Volume%20974/volume-974-I-14118-english.pdf">1971 Convention for the Suppression of Acts Against the Safety of Civilian Aviation</a> (otherwise known as the Montreal Convention) deals with individual acts that endanger the safety of civilian aviation.</p>
<p>This convention imposes an obligation on states to provide for the safety of civilian flights and refrain from using weapons against civilian aircraft. It also has near-universal ratification, including Russia.</p>
<p>Article 14 of the Montreal Convention also allows disagreeing states to refer their dispute to the ICJ when negotiations fail. As Russia withdrew from negotiations with Australia and the Netherlands regarding the liability for the downing of MH17, this is an increasingly possible route.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/mh17-justice-takes-several-forms-none-simple-49221">MH17 ‘justice’ takes several forms, none simple</a>
</strong>
</em>
</p>
<hr>
<h2>Is there much hope for the ICAO case?</h2>
<p>The current case being brought before the ICAO demonstrates what the Chicago Convention was designed to do and what it wasn’t designed to do. </p>
<p>The fundamental objective is to increase cooperation and standardisation between states with respect to international aviation. We’re talking here about a specific dispute over compensation for an act of aggression – it’s outside the ambit or jurisdiction of what the ICAO was set up to do.</p>
<p>This is probably a last-ditch attempt by Australia and the Netherlands to get an outcome for the victims of the tragic MH17 crash.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/bellingcats-report-on-mh17-shows-citizens-can-and-will-do-intelligence-work-118836">Bellingcat's report on MH17 shows citizens can and will do intelligence work</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/179288/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ron Bartsch AM does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ICAO is responsible for setting standards for international aviation and doesn’t frequently settle disputes between nations.Ron Bartsch AM, Lecturer in Aviation Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1792092022-03-14T09:32:23Z2022-03-14T09:32:23ZAustralia launches action against Russia over MH17, in bid for reparations<p>Australia and the Netherlands have started legal action against Russia in the International Civil Aviation Organisation for the downing of Malaysia Airlines Flight MH17 on July 17, 2014. </p>
<p>The two countries are seeking to have Russia’s action declared a breach of the Convention on International Civil Aviation, Russia ordered into “good faith” negotiations on reparations and its ICAO voting power suspended until the negotiations reached “a satisfactory outcome”.</p>
<p>The missile attack, over eastern Ukraine, killed 298 people, 38 of them Australian citizens and permanent residents. The plane was flying from Amsterdam to Kuala Lumpur.</p>
<p>Australia and the Netherlands hold Russia responsible under international law. </p>
<p>Foreign Minister Marise Payne told a news conference on Monday evening this latest action was an “important step in the fight for truth, justice and accountability” for the victims.</p>
<p>The ICAO is a United Nations agency funded by more than 190 governments to support co-operation in air transport.</p>
<p>Attorney-General Michaelia Cash, speaking at the news conference, said the Russian action had been a clear breach of the convention, which required states to refrain from using weapons againt civil aircraft in flight.</p>
<p>In October 2020 Russia withdrew from negotiations with Australia and the Netherlands about the plane’s downing, and refused to return. </p>
<p>In a statement Scott Morrison, Payne and Cash laid out the evidence on which the two countries will rely. This includes that</p>
<ul>
<li><p>the plane was shot down by a Russian Buk-TELAR surface-to-air missile system </p></li>
<li><p>that system was transported from Russia to an agricultural field in eastern Ukraine, an area controlled by Russian-backed separatists, on the morning of July 17, 2014 </p></li>
<li><p>the missile system belonged to Russia’s 53rd Anti-Aircraft Military Brigade, and was accompanied by a Russian crew </p></li>
<li><p>the missile fired from the launch site brought down the plane</p></li>
<li><p>the missile could only have been fired by the trained Russian crew of the Buk-TELAR, or at least by someone acting under their instruction, direction or control</p></li>
<li><p>the missile system was returned to Russia soon after the plane was downed. </p></li>
</ul>
<p>The government said in its statement: “The Russian Federation’s refusal to take responsibility for its role in the downing of Flight MH17 is unacceptable and the Australian Government has always said that it will not exclude any legal options in our pursuit of justice”.</p>
<p>It said the joint action under Article 84 of the Convention on International Civil Aviation was in addition to the Dutch national prosecution of four suspects for their individual criminal responsibility </p>
<p>“Russia’s unprovoked and unjustified invasion of Ukraine and the escalation of its aggression underscores the need to continue our enduring efforts to hold Russia to account for its blatant violation of international law and the UN Charter, including threats to Ukraine’s sovereignty and airspace,” the statement said.</p>
<p>It reaffirmed that Australia would “pursue every available avenue to ensure Russia is held to account” over MH17.</p>
<p>Also on Monday the government announced fresh sanctions on 33 Russian oligarchs, prominent businesspeople and their immediate families.</p><img src="https://counter.theconversation.com/content/179209/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia and the Netherlands have started legal action against Russia in the International Civil Aviation Organisation for the downing of Malaysia Airlines Flight MH17 on July 17, 2014.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1188362019-06-26T20:27:04Z2019-06-26T20:27:04ZBellingcat’s report on MH17 shows citizens can and will do intelligence work<figure><img src="https://images.theconversation.com/files/280836/original/file-20190623-61747-ktbthw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Large groups inherently possess more diverse knowledge, expertise and perspectives.</span> <span class="attribution"><a class="source" href="https://unsplash.com/photos/uD1ieQvG81c">Tim de Groot/Unsplash</a></span></figcaption></figure><p>Amid the news last week that the perpetrators responsible for shooting down Malaysia Airlines Flight 17 (MH17) will be put to trial next March, a report was released identifying further suspects responsible for <a href="https://www.washingtonpost.com/opinions/global-opinions/peeling-away-russias-lies-about-the-downed-malaysia-airlines-flight/2019/06/20/611a7a1c-92b6-11e9-aadb-74e6b2b46f6a_story.html?utm_term=.2fd974c37198">escorting the missile to and from the launch site</a>.</p>
<p>Who were the investigators behind the report? The CIA? MI6? No. It was <a href="https://www.bellingcat.com/">Bellingcat</a>, a large group of mostly volunteers working from laptops using only information available to anyone with an internet connection. </p>
<p>In February, Bellingcat also <a href="https://www.bbc.com/news/uk-47246317">identified a third suspect</a> alleged to have been involved in the poisoning of MI6 double agent Sergei Skripal and his daughter Yulia in the United Kingdom last year. </p>
<p>Bellingcat describes itself as citizen journalists, but its activities illustrate a growing phenomenon my colleagues and I call “citizen intelligence.” This is work that would count as intelligence gathering or analysis within an intelligence organisation, but it’s undertaken by citizens operating outside the traditional intelligence ecosystem. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-clever-people-help-societies-work-together-better-93463">How clever people help societies work together better</a>
</strong>
</em>
</p>
<hr>
<h2>The rise of citizen intelligence</h2>
<p>Citizen intelligence has been made possible by the internet in various ways. </p>
<p>Since its advent, we’ve seen an explosion of “open source” information. That is, data that’s accessible without any special organisational privileges. For example, just by opening Google Earth you can view satellite data of the kind only available to analysts in government agencies not many years ago. </p>
<p>There are now free new tools for gathering and analysing these vast troves of information, such as the analysis platform <a href="https://www.paterva.com/web7/buy/maltego-clients/maltego-ce.php">Maltego</a>. Aspiring citizen analysts can now train themselves using resources available online or in workshops offered by various organisations. </p>
<p>Expertise in intelligence work is no longer the preserve of those hired and trained by traditional organisations. Powerful collaboration platforms, such as Google Docs, allow interested individuals to work effectively together, even when scattered around the world. </p>
<h2>It could get even bigger</h2>
<p>We’ve all seen how global, cloud-based marketplaces such as Amazon, Airbnb and Uber have transformed their respective domains. Citizen intelligence could grow even faster if a suitable marketplace is developed. At <a href="https://www.swarmproject.info">the SWARM Project</a>, we’ve begun exploring the potential design of a platform where those seeking intelligence can transact with those willing to provide it.</p>
<p>What might that look like? A marketplace for citizen intelligence could be built on a “sponsored challenge” crowdsourcing model. </p>
<p>Imagine an organisation with an intelligence question. Say, for example, the organisation wants to identify potential threats to a proposed infrastructure development in an unstable region. The organisation pays to have the question posed as a challenge on the platform, with a prize for the best answer. Groups of citizen analysts self-organize and submit reports. When the deadline is up, the best report garners the prize – and bragging rights. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-cant-expect-intelligence-services-to-prevent-every-terrorist-attack-36676">We can't expect intelligence services to prevent every terrorist attack</a>
</strong>
</em>
</p>
<hr>
<h2>Why crowdsourced citizen intelligence could be effective</h2>
<p>There are reasons to think that crowdsourced citizen intelligence could match, or outperform, traditional intelligence organisations on some kinds of tasks. Traditional organisations have advantages, such as access to classified information and highly trained analysts, but crowdsourcing has compensating strengths. </p>
<p><strong>Scale</strong></p>
<p>Many intelligence organisations are small and under-resourced for the number and complexity of issues they are supposed to handle. Crowdsourced intelligence can potentially draw from much larger pools of citizens. For example, the analytics crowdsourcing platform <a href="https://www.kaggle.com/">Kaggle</a> has over a million people signed up, and it gets literally thousands of teams competing on big challenges. </p>
<p><strong>Diversity</strong></p>
<p>With scale comes diversity. Large groups inherently possess more diverse knowledge, expertise and perspectives. A question like the one in the example above might require fluency in an obscure dialect, or specific technical know-how. No intelligence agency can maintain in-house everything it might need for any problem. </p>
<p><strong>Agility</strong></p>
<p>Crowds can be more agile than agencies, which are risk-averse bureaucracies. For example, individuals can more quickly access and use many of the latest analytical methods and tools. </p>
<p><strong>Passion</strong></p>
<p>Perhaps most importantly, intelligence work by unpaid volunteers is driven primarily by passion. Passion certainly exists within agencies, but is often stifled in various ways. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-popular-culture-gets-australian-spy-work-wrong-78902">How popular culture gets Australian spy work wrong</a>
</strong>
</em>
</p>
<hr>
<p>The SWARM Project ran a tournament-style experiment in 2018 that illustrated how everyday citizens can sometimes beat the professionals. Teams tackled four tough, fictional intelligence problems over four weeks. Some teams were made up of analysts provided by organisations with intelligence functions, some of analysts recruited via Facebook, and some of citizens (non-analysts) recruited via Facebook. </p>
<p>On average, the citizen teams outperformed the professional analysts – and some of the citizen reports were astonishingly good. </p>
<h2>How this could affect the intelligence industry</h2>
<p>Citizen intelligence will likely create some headaches for intelligence agencies. For example decision makers might increasingly look to citizen sources over formal intelligence agencies – particularly where citizen intelligence delivers reports more quickly, or with more “convenient” findings.</p>
<p>On the other hand, citizen intelligence could have a lot to offer intelligence organisations. A suitably designed marketplace might enable the traditional agencies to take advantage of the power inherent in the crowd. Such a platform could be a “force multiplier”, at least for certain aspects of intelligence.</p>
<p>In view of these potential threats and opportunities, the Australian intelligence community should get on the front foot, shaping the future of citizen intelligence rather than just reacting to it. </p>
<hr>
<p><em>This is a condensed version of a presentation given at the Technology Surprise Forum, Safeguarding Australia Summit, Canberra May 2019</em></p><img src="https://counter.theconversation.com/content/118836/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim van Gelder receives funding from the U.S. Intelligence Advanced Research Projects Activity, via the SWARM Project at the University of Melbourne. He is a member of the Australian Institute of Professional Intelligence Officers. </span></em></p>Intelligence work is no longer the sole preserve of intelligence agencies. Powerful platforms now allow everyday people to gather intelligence collaboratively – even from opposite sides of the world.Tim van Gelder, Enterprise Research Fellow, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1191552019-06-20T05:42:47Z2019-06-20T05:42:47ZMH17 charges: who the suspects are, what they’re charged with, and what happens next<p>Four men – three Russians and one Ukrainian – will be <a href="https://www.abc.net.au/news/2019-06-19/mh17-downing-airline-ukraine-suspects-charges-loom/11224216">charged</a> in relation to the shooting down of the Malaysia Airlines flight MH17, which killed all <a href="https://theconversation.com/much-more-to-be-done-before-mh17-findings-can-support-a-war-crime-trial-49054">298 passengers and crew</a> on board. </p>
<p>Dutch prosecutors will launch a criminal trial in The Hague on March 9, 2020. But the accused are beyond the jurisdiction of the court, and will most likely be tried <em>in absentia.</em> This means the accused will not be physically present in the court room.</p>
<p>The prosecutors argue the four accused were jointly responsible for obtaining a BUK TELAR missile launcher (a launcher for self-propelled, surface-to-air missiles allegedly <a href="https://www.nytimes.com/2018/05/24/world/europe/russia-malaysia-airlines-ukraine-missile.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer&login=email&auth=login-email">owned by the Russian military</a>) in the city of Kursk, and launching it from Ukraine. </p>
<p>They say the four men are responsible for the atrocity because they had the intention to shoot down an aircraft, and obtained the missile launcher for that purpose.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ukraine-with-parliament-dissolved-new-president-must-now-get-serious-heres-how-117451">Ukraine: with parliament dissolved, new president must now get serious – here's how</a>
</strong>
</em>
</p>
<hr>
<p>While investigators have not accused any suspects of actually firing the missile, they say in future they may identify others with that responsibility.</p>
<p>For the victims and their loved ones, these Dutch criminal trials present the best hope of legal acknowledgement for the tragedy.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1141375877592129536"}"></div></p>
<h2>The MH17 atrocity</h2>
<p>On July 17, 2014, flight MH17 was travelling from Amsterdam to Kuala Lumpur when it was <a href="https://www.theguardian.com/world/2014/jul/18/mh17-twenty-seven-australians-were-on-board-crashed-malaysian-plane">shot down</a> over Ukraine. </p>
<p>The <a href="https://www.om.nl/onderwerpen/mh17-crash/@96068/jit-flight-mh17-shot/">Joint Investigative Team</a> (JIT), led by Dutch authorities and comprising investigators from Malaysia, Australia, Belgium and Ukraine, concluded in 2016 that the flight was shot down by a Russian BUK missile. </p>
<p>The JIT identified the launch location as a field in eastern Ukraine, which at the time was in territory controlled by pro-Russian fighters.</p>
<p>The countries central to the investigation – including Australia, which lost 38 people – and the victims’ families have explored a range of legal strategies to assign blame for the attack. </p>
<p>Then Foreign Minister Julie Bishop initially proposed a <a href="https://www.theaustralian.com.au/nation/foreign-affairs/julie-bishop-urges-mh17-war-crimes-tribunal/news-story/b772ca0bb6bd28715819909f71c2be56">war crimes trial</a> for MH17, but this was <a href="https://russia-direct.org/opinion/why-russia-opposes-international-tribunal-mh17">vetoed</a> by Russia in the UN Security Council. </p>
<p>Some <a href="https://theconversation.com/challenges-persist-for-multiple-legal-actions-regarding-mh17-77722">civil claims</a> on behalf of victims’ families are ongoing before the European Court of Human Rights. </p>
<p>And <a href="http://www.ukrweekly.com/uwwp/russias-justification-for-mh17-and-other-surreal-moments-at-icj/">hearings</a> are ongoing before the International Court of Justice, where Ukraine seeks to <a href="https://www.icj-cij.org/en/case/166">make a case</a> against Russia. Ukraine cites the MH17 atrocity as characteristic of broader <a href="https://www.icj-cij.org/files/case-related/166/19314.pdf">Russian aggression</a> and lack of respect for Ukrainian sovereignty and independence. </p>
<h2>Russia’s response</h2>
<p>The Russian Foreign Ministry <a href="https://www.abc.net.au/news/2019-06-19/mh17-downing-airline-ukraine-suspects-charges-loom/11224216">rejected</a> this week’s announcement, in line with its earlier rejections of the JIT conclusions. It said:</p>
<blockquote>
<p>Once again, absolutely groundless accusations are being made against the Russian side, aimed at discrediting the Russian Federation in the eyes of the international community.</p>
</blockquote>
<p>Russian President Vladimir Putin earlier called the crash a “terrible tragedy”, but said Russia bore <a href="https://www.sbs.com.au/news/netherlands-set-to-prosecute-suspects-in-mh17-airliner-downing">no responsibility</a> for it. </p>
<p>Russian officials have claimed they were prepared to assist the investigation but had been “<a href="https://www.nst.com.my/world/2019/06/497652/moscow-says-mh17-charges-based-unfounded-allegations">frozen out</a>” of it.</p>
<h2>Who are the accused?</h2>
<p>Three of the four <a href="https://www.nytimes.com/2019/06/19/world/europe/mh17-crash.html?searchResultPosition=3">accused</a> are Russian nationals, believed to be living in Russia. </p>
<p>Igor Girkin is a former colonel in the Russian security service. At the time of the atrocity, Girkin was the minister of defence in the so-called Donetsk People’s Republic, a pro-Russian separatist region of Ukraine. </p>
<p>The other two Russian accused, Sergey Dubinsky and Oleg Pulatov, are former Russian military intelligence agents who worked under Girkin.</p>
<p>Leonid Kharchenko is the only Ukrainian national accused. Investigators are not certain of his current location. At the time of the atrocity, Kharchenko led a separatist combat unit. </p>
<p>The <a href="https://www.om.nl/onderwerpen/mh17-crash/@106096/prosecution-four/">specific charges</a> in relation to the four named suspects will be: </p>
<ol>
<li><p>Causing the crash of flight MH17, resulting in the death of all persons on board, punishable pursuant to Article 168 of the Dutch Criminal Code</p></li>
<li><p>The murder of the 298 persons on board of flight MH17, punishable pursuant to Article 289 of the Dutch Criminal Code.</p></li>
</ol>
<p>The investigation is ongoing and continues to call for witnesses to assist. </p>
<h2>What are the prospects for the trial?</h2>
<p>Dutch investigators will issue international arrest warrants for the four accused and place them on international wanted lists. But they won’t issue extradition requests because they know already that no extradition of nationals is available under the Ukrainian or Russian constitutions. </p>
<p>It seems impossible for the Dutch court to gain actual jurisdiction over the Russian accused. Potentially, should Ukrainian authorities apprehend Kharchenko, he could be tried via <a href="https://www.nst.com.my/world/2018/06/379470/dutch-mps-approve-ukraine-treaty-mh17-trial">video-link</a>. </p>
<p>The Netherlands and Ukraine have entered into an agreement that would permit such an arrangement and - should Kharchenko be convicted - allow for his imprisonment in Ukraine. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/challenges-persist-for-multiple-legal-actions-regarding-mh17-77722">Challenges persist for multiple legal actions regarding MH17</a>
</strong>
</em>
</p>
<hr>
<p>The charges and any penalties originate in Dutch, rather than international, criminal law. Convictions for murder or the intentional downing of an aircraft could result in sentences of up to life imprisonment. </p>
<p>It’s fair to question the value of a prosecution without a court having actual jurisdiction over the accused. The only real answer is that such a trial would enable the presentation and adjudication of evidence and the judgement of a court as to whether charges are made out. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=387&fit=crop&dpr=1 600w, https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=387&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=387&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/280374/original/file-20190620-171183-d9jjse.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A memorial for the victims of MH17 in the Donetsk region, Ukraine.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>As time goes, the chances of successful prosecutions decline. Meanwhile, interested countries and the victims’ families continue to call for <a href="https://www.abc.net.au/news/2016-10-05/lockerbie-no-model-for-the-effective-prosecution-of-mh17/7904644">legal redress</a> for the atrocity.</p>
<p>It is also legitimate to ask whether a court can ensure a <a href="https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">fair trial</a> for accused persons tried <em>in absentia.</em> </p>
<p>Although it is not explicitly prohibited by international human rights law, the absence of defendants and presumably any legal representative from the courtroom means the accused will not hear the evidence against them or have the ability to present a defence. </p>
<p>Given the four named accused are beyond the actual jurisdiction of the Dutch courts, it can be argued that they (and, at least in the case of Russia, their country) are wilfully avoiding the process of justice. This may be, for some or many observers, sufficient justification for trying them in their absence.</p><img src="https://counter.theconversation.com/content/119155/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Families of the 298 victims may, at last, see justice after five years.Amy Maguire, Associate Professor, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/777222017-05-18T04:51:38Z2017-05-18T04:51:38ZChallenges persist for multiple legal actions regarding MH17<figure><img src="https://images.theconversation.com/files/169888/original/file-20170518-24725-1p130v1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">Reuters/Michael Kooren</span></span></figcaption></figure><p>Multiple parallel actions are ongoing with the aim of achieving truth and justice for the 298 passengers and crew of Malaysian Airlines flight MH17. The flight was <a href="https://www.theguardian.com/world/2014/jul/18/mh17-twenty-seven-australians-were-on-board-crashed-malaysian-plane">shot down</a> over Ukraine on July 17, 2014. </p>
<p>An investigative team, led by the Dutch aviation authority and endorsed by the Australian government, <a href="https://theconversation.com/lockerbie-experience-is-no-model-for-the-effective-prosecution-of-mh17-bombers-66396">concluded</a> that the aircraft was shot down by a BUK missile. More than 100 individuals were identified in the 2016 report as linked to the incident. The investigation is ongoing. </p>
<p>Australia’s foreign minister, Julie Bishop, <a href="http://www.theaustralian.com.au/in-depth/mh17/julie-bishop-urges-mh17-war-crimes-tribunal/news-story/b772ca0bb6bd28715819909f71c2be56">advocated</a> for a war crimes tribunal to apportion blame for the incident. However, this proposal <a href="http://www.russia-direct.org/opinion/why-russia-opposes-international-tribunal-mh17">was vetoed</a> by Russia in the UN Security Council.</p>
<p>This week, focus has <a href="http://www.heraldsun.com.au/news/national/lawyers-challenge-to-australia-in-mh17-lawsuit/news-story/64ceb4da2212ddda24973e2943e6077d">turned to an action</a> lodged in the European Court of Human Rights by lawyer Jerry Skinner on behalf of 33 relatives of MH17 victims. Skinner claims that the application has reached the stage of “ready for judicial determination”. </p>
<p>As <a href="http://www.heraldsun.com.au/news/world/european-court-of-human-rights-to-hear-mh17-victims-330-million-case-against-russia/news-story/77c4db597d91fbe51049608da045a821">reported</a> last year, each applicant is seeking A$10 million in compensation from Russia. The claim is that Russia is responsible for violating the right to life of those killed due to its alleged supply of the missile that was launched from Ukraine, bringing down the aircraft.</p>
<p>However, the case lodged by Skinner is not yet listed <a href="http://www.echr.coe.int/Pages/home.aspx?p=caselaw&c=#n14597620384884950241259_pointer">in the court’s database</a>. It is unclear how far the application has progressed but it certainly faces a range of major obstacles. The status of “ready for judicial determination” does not appear to be an official stage of proceedings in the court. </p>
<h2>The European Court of Human Rights</h2>
<p>The <a href="http://www.echr.coe.int/Pages/home.aspx?p=home">European Court of Human Rights</a> was established in 1959 and sits in Strasbourg. It has jurisdiction to hear complaints from individuals and countries, alleging violations by countries that are party to the European Convention on Human Rights.</p>
<p>The court has delivered more than 10,000 judgments, which are formally binding on the countries subject to them. It receives <a href="http://www.echr.coe.int/Documents/50Questions_ENG.pdf">more than 50,000 applications</a> each year.</p>
<p>The application from Ayler and others is not the first to be lodged in the court in relation to Flight MH17. The case of <a href="http://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-165535%22%5D%7D">Ioppa v Ukraine</a> was lodged with the court in 2016. </p>
<p>The four applicants in that case are family members of three of the passengers killed on board Flight MH17. They have complained against Ukraine, rather than Russia. Specifically, they argue Ukraine violated their relatives’ right to life by failing to close the airspace above the military conflict zone that was active in eastern Ukraine in 2014. </p>
<p>The applicants allege that Ukrainian authorities intentionally failed to close the airspace despite their knowledge of the dangers posed to civilians travelling over Ukraine in passenger aircraft. </p>
<p>The application is currently noted as a “<a href="http://echr.coe.int/Pages/home.aspx?p=press&c=">communicated case</a>”, meaning it is awaiting judgment. The court has asked the applicants to identify what they have done to exhaust any available domestic legal remedies before applying to the court – particularly any legal avenues available in Ukraine.</p>
<p>The court has not yet published a preliminary finding on the admissibility of the case. This is the necessary first step before notice will be given to Ukraine to respond to the application. The case is certainly a long way from any potential judgment by a chamber of the court. </p>
<h2>The Council of Europe</h2>
<p>The European Court of Human Rights is not a creature of the European Union, but rather of the <a href="http://www.coe.int/en/web/portal/home">Council of Europe</a>. The Council of Europe is a human rights organisation of 47 members, 28 of which are also EU members. All Council of Europe members have signed the European Convention on Human Rights. </p>
<p>The Council of Europe seeks to <a href="http://www.coe.int/en/web/about-us/values">promote goals</a> central to the international human rights framework, including freedom of expression and of the press, minority rights, and the abolition of the death penalty.</p>
<p>As a <a href="http://www.coe.int/en/web/about-us/our-member-states">Council of Europe member</a>, Ukraine is subject to judgement by the European Court of Human Rights. The applicants in Ioppa v Ukraine are all nationals of Germany, another member. Other Council of Europe members central to the MH17 situation are the Netherlands – because the flight originated at Amsterdam’s Schiphol airport – and Russia. </p>
<p>Should the European Court of Human Rights find Ukraine liable for a breach of the convention, Ukraine will be bound by that judgment. The committee of ministers of the Council of Europe monitor the execution of judgments by countries subject to them, including compliance with any orders to pay damages to complainants. </p>
<p>However, the European Court of Human Rights and the Council of Europe both lack enforcement capacity within the domestic jurisdiction of members, and would rely on diplomatic pressure to compel compliance with a judgment. Such pressure may be more or less effective depending on the status, power and political stance of a given member. </p>
<h2>Prospects of success</h2>
<p>Skinner has called on Australia to support the Ayler application. Bishop has responded that such litigation is a private matter for the families involved and those they are taking action against.</p>
<p>Bishop’s <a href="http://www.abc.net.au/news/2016-05-23/turnbull-bishop-called-on-to-assist-in-mh17-case-against-russia/7436636">position</a> is that Australia’s role is to support the ongoing investigation into the causes of the incident and then to pursue a justice mechanism with other countries.</p>
<p>It is important to note that Australia has no standing to join any action before the European Court of Human Rights, as it is not a member of the Council of Europe. However, Skinner argues Australia could exert diplomatic and political pressure to support the action.</p>
<p>Unfortunately for the families engaged in the European Court of Human Rights applications, litigation before that court appears to be a very indirect and unreliable route to gain compensation for the loss of their loved ones. </p>
<p>In the case against Ukraine, beyond the as-yet-uncrossed jurisdictional barriers, it may be necessary to prove that Ukrainian authorities knew of a <a href="http://www.utrechtjournal.org/articles/10.5334/ujiel.368/">direct threat</a> to those on board MH17. This is a much more difficult standard to prove than a general awareness of threat to any civilian aircraft.</p>
<p>In action against Russia, setting aside the considerable jurisdictional issues and matters of proof, there is a major added barrier to satisfaction for the applicants. Russia has passed a law <a href="http://www.reuters.com/article/us-russia-court-putin-idUSKBN0TY17H20151215">permitting it to overrule</a> the decisions of international courts. </p>
<p>The Russian Constitutional Court <a href="http://www.cisarbitration.com/2017/01/25/russian-constitutional-court-denies-enforcement-of-echr-decision-on-yukos/">subsequently ruled</a> that Russia is permitted to overrule international judicial decisions where these would conflict with the Russian Constitution. </p>
<p>Russia disputes the preliminary findings of the ongoing MH17 investigation and <a href="http://www.bbc.com/news/world-europe-37495067">rejects</a> suggestions of its responsibility for the atrocity. This suggests that Russia would not accept responsibility for any finding of human rights violations by the European Court of Human Rights. </p>
<p>Beyond the human rights context, yet another action has been launched in the <a href="http://www.icj-cij.org/docket/files/166/19310.pdf">International Court of Justice</a>. In that application, Ukraine asks the International Court of Justice to <a href="http://www.smh.com.au/world/declare-russia-responsible-for-mh17-shootdown-ukraine-asks-court-20170118-gttl7l.html">find Russia responsible</a> for the MH17 disaster and order reparations. </p>
<p>From an international law perspective, the stakes of such an action are higher for Russia than human rights litigation launched by victims’ families. However, Russia’s response is likely to be the same. While the International Court of Justice <a href="http://www.icj-cij.org/docket/files/166/19410.pdf">has progressed</a> the case beyond the initial stage, a finding against Russia may well be disputed and any orders ignored.</p><img src="https://counter.theconversation.com/content/77722/count.gif" alt="The Conversation" width="1" height="1" />
<h4 class="border">Disclosure</h4><p class="fine-print"><em><span>Amy Maguire is a member of the National Committee of Australian Lawyers for Human Rights and a member of Amnesty International. </span></em></p>Multiple parallel actions are ongoing with the aim of achieving truth and justice for the 298 passengers and crew of Malaysian Airlines flight MH17. The flight was shot down over Ukraine on July 17, 2014…Amy Maguire, Senior Lecturer in International Law and Human Rights, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/733462017-02-21T07:46:43Z2017-02-21T07:46:43ZChurkin’s promise: why the solution to the MH17 case may lie with a forgotten legal precedent from 1905<p>Russia’s ambassador to the United Nations, Vitaly Churkin, has <a href="https://www.nytimes.com/2017/02/20/world/europe/churkin-russia-ambassador-un-death.html">died of a heart attack</a>. Churkin was famous for <a href="http://www.bbc.com/news/world-middle-east-38319707">clashing</a> with his US counterpart Samantha Power over Russia’s bombing of Aleppo, and when Russia vetoed a <a href="http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2015/562">a United Nations Security Council resolution</a> to establish a war crimes tribunal to investigate the downing of flight MH17, Churkin was the one who had to defend that position. </p>
<p>Churkin claimed Russia had vetoed the tribunal because it had concerns about the way it was set up, especially its large size and unusual rules that potentially allowed evidence provided by intelligence agencies to be withheld from the defendants. Yet he <a href="http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.7498">insisted</a> that Moscow remained committed to a “genuine international and independent investigation”. </p>
<p>Now might be a good moment to ask the Kremlin to honour Churkin’s promise, since any other attempts to bring about an alternative inquiry have been fraught with controversy.</p>
<p>The Malaysia Airlines plane was <a href="http://www.bbc.com/news/world-europe-28357880">shot down</a> in July 2014 over a conflict-torn part of Ukraine held by Russian-backed rebels, near the border between the two countries. All 298 people on board were killed.</p>
<p>Relatives of victims have <a href="http://www.telegraph.co.uk/news/worldnews/europe/ukraine/11742865/MH-17-Russian-separatist-leader-sued-for-900-%20million-by-crash-victims.html">sued a former rebel leader</a>; the company that produces the Buk anti-aircraft missiles at the centre of the controversy unsuccessfully tried to have <a href="http://curia.europa.eu/jcms/upload/docs/application/pdf/2017-01/cp170006en.pdf">sanctions repealed at the European Court of Justice</a>; and Ukraine has <a href="http://www.icj-cij.org/docket/files/166/19310.pdf">filed a suit</a> against Russia before the International Court of Justice, partly relying on the dispute settlement clauses of the <a href="http://www.ejiltalk.org/ukraine-takes-russia-to-the-international-court-of-justice-will-it-work/">Terrorism Financing Convention</a>. </p>
<p>In 2016, a Dutch-led team of investigators presented a preliminary report claiming that the flight was <a href="https://www.om.nl/onderwerpen/mh17-vliegramp/presentaties/presentation-joint/">downed by a rocket fired from rebel-held territory</a>, but it has been accused of bias, fakery and general incompetence by the <a href="http://www.telegraph.co.uk/news/2016/09/28/mh17-investigation-prosecutorsto-reveal-where-missile-that-down/">Kremlin</a> and the Russian state-funded media service <a href="https://www.rt.com/news/360946-mh17-ukraine-fabricate-evidence/">RT</a>.</p>
<p>No matter how professional an inquiry is, it can only truly resolve the incident and identify the perpetrators if it has a <a href="https://theconversation.com/mh17-crash-report-establishes-the-cause-but-only-criminal-investigation-can-find-those-responsible-49178">criminal law element</a>, and if it involves both Russia and Ukraine. </p>
<p>This may sound politically impossible, but there is a precedent of states setting up an inquiry despite mutual distrust: the <a href="https://academic.oup.com/ejil/article/27/4/923/2962212/International-Commissions-of-Inquiry-and-the-North">1905 North Sea Incident Commission</a>. Largely forgotten today, the commission was in its time credited with preventing war between Britain and Russia. </p>
<h2>The Dogger Bank incident</h2>
<p>In October 1904, Russia sent its Baltic Fleet on a voyage around the world to fight in the <a href="https://history.state.gov/milestones/1899-1913/portsmouth-treaty">Russo-Japanese War</a>. </p>
<p>When the squadrons passed through the North Sea near the Dogger Bank, halfway between Denmark and the east coat of England, some of the battleships opened fire on ships from the Hull fishing fleet. After the encounter, the fleet’s remaining vessels limped back into port carrying the bodies of three dead sailors. The British public was stunned, and some newspapers openly called for war.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/157562/original/image-20170220-15892-tpqu7j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/157562/original/image-20170220-15892-tpqu7j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=377&fit=crop&dpr=1 600w, https://images.theconversation.com/files/157562/original/image-20170220-15892-tpqu7j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=377&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/157562/original/image-20170220-15892-tpqu7j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=377&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/157562/original/image-20170220-15892-tpqu7j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=474&fit=crop&dpr=1 754w, https://images.theconversation.com/files/157562/original/image-20170220-15892-tpqu7j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=474&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/157562/original/image-20170220-15892-tpqu7j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=474&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A contemporary postcard showing damage to British ships following the Dogger Bank incident.</span>
</figcaption>
</figure>
<p>At this tense moment, UK foreign secretary Henry Petty-Fitzmaurice, known as the Marquess of Lansdowne, invented an unprecedented form of inquiry. He combined the already established format of an <a href="http://avalon.law.yale.edu/19th_century/hague01.asp">international commission of inquiry</a> with elements of a court martial. Five admirals of the world’s leading navies (including Britain and Russia, but also France, the United States and Austria-Hungary) sat as judges to establish who was to blame for the civilian casualties. </p>
<p>After Britain threatened to use the Royal Navy to prevent the Russian fleet from leaving its stopover in Vigo in northern Spain, Russia accepted the first international inquiry with a mandate to look at individual responsibility and guilt. It sent four officers to appear before the commission, but still insisted that the entire incident was caused by a Japanese sneak attack, supposedly carried out by torpedo boats acquired from a North Sea neutral country, such as Sweden. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/155950/original/image-20170207-30918-1eeywf8.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/155950/original/image-20170207-30918-1eeywf8.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=283&fit=crop&dpr=1 600w, https://images.theconversation.com/files/155950/original/image-20170207-30918-1eeywf8.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=283&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/155950/original/image-20170207-30918-1eeywf8.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=283&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/155950/original/image-20170207-30918-1eeywf8.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=356&fit=crop&dpr=1 754w, https://images.theconversation.com/files/155950/original/image-20170207-30918-1eeywf8.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=356&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/155950/original/image-20170207-30918-1eeywf8.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=356&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Dogger Bank inquiry in session, 1905.</span>
</figcaption>
</figure>
<p>When the commission met in Paris in January 1905, it was covered by every major newspaper on both sides of the Atlantic. It resembled a criminal trial: British and Russian representatives acted like prosecutors and defenders, each robustly cross-examining the other’s witnesses and technical experts. </p>
<p>In the end, the commission rejected the Russian claims of a Japanese attack and sided with Britain’s argument that the Russian battleships mistook two cruisers of their own squadron for Japanese attackers, confused by the difficult conditions of the North Sea and a cloudy night. </p>
<p>The commission ruled that the Russian fleet was negligent but did not intentionally target the British fishermen. In the end, Russia accepted the verdict and paid £65,000 compensation. Despite the embarrassing exposure of the incompetence of its leading naval officers, this was a small price to pay for settling an affair that at one point threatened to escalate into a major war. </p>
<p>The North Sea Incident commission was hailed as a great success and for a time, the model looked set to catch on. At the <a href="http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e305">Second Hague Peace Conference</a> in 1907, the Russian delegation attempted to remove formal restrictions on commissions of inquiry as pure fact-finding bodies. But the other delegates suppressed the idea, fearing it might lay the groundwork for an international criminal court, a body that was <a href="https://www.icc-cpi.int/about">not established until 2002</a>. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/157557/original/image-20170220-15922-p57cua.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/157557/original/image-20170220-15922-p57cua.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/157557/original/image-20170220-15922-p57cua.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/157557/original/image-20170220-15922-p57cua.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/157557/original/image-20170220-15922-p57cua.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/157557/original/image-20170220-15922-p57cua.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/157557/original/image-20170220-15922-p57cua.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">British fishermen came to Paris to testify at the inquiry.</span>
</figcaption>
</figure>
<h2>How it might work for MH17</h2>
<p>Still, the model didn’t entirely die out. Known as the adversarial international commission of inquiry, it remains a highly specific and rare form of investigation, and has been used only a handful of times since – always in attempts to resolve incidents involving attacks on civilian vessels. </p>
<p>An adversarial commission of inquiry modelled on the North Sea Incident could be a promising starting point for a second attempt to establish an international investigation into MH17. The states involved in the incident could use the UN, or set up a commission through a special treaty. </p>
<p>They could establish rules of procedure and a judges’ bench that are agreeable to all parties. The commission could include one judge from each country involved like Russia and Malaysia, but would have a majority of neutral judges from countries not involved in the incident.</p>
<p>Crucially, none of the issues that Russia raised when it vetoed the draft Security Council resolution in 2015 applies to this model.</p>
<p>Vitaly Churkin died before his promised investigation came to pass. If the West wants to take him at his word, a precedent created by Russia itself might be a good place to start.</p><img src="https://counter.theconversation.com/content/73346/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jan Lemnitzer does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An adversarial international commission of inquiry, similar to one instituted to resolve a dispute between Britain and Russia in 1905, could break the deadlock over the downed flight.Jan Lemnitzer, Assistant Professor, Center for War Studies, University of Southern DenmarkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/663962016-10-04T23:14:21Z2016-10-04T23:14:21ZLockerbie experience is no model for the effective prosecution of MH17 bombers<figure><img src="https://images.theconversation.com/files/140217/original/image-20161004-20235-la4j0b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Demands for justice for the victims of Flight MH17, including war crimes prosecutions for those responsible, persist.</span> <span class="attribution"><span class="source">AAP/Lloyd Jones</span></span></figcaption></figure><p>An <a href="https://www.om.nl/onderwerpen/mh17-crash/@96068/jit-flight-mh17-shot/">investigative team</a>, comprising authorities from the Netherlands, Australia, Belgium, Malaysia and Ukraine, recently concluded that Malaysia Airlines Flight MH17 was shot down by a BUK missile on July 17, 2014. The plane disintegrated over eastern Ukraine, <a href="https://www.theguardian.com/world/2014/jul/18/mh17-twenty-seven-australians-were-on-board-crashed-malaysian-plane">killing all 298 passengers and crew</a> on board.</p>
<p>Demands for justice, including for <a href="https://theconversation.com/much-more-to-be-done-before-mh17-findings-can-support-a-war-crime-trial-49054">war crimes prosecutions</a> for those responsible, persist. The investigation identified around 100 individuals it linked to the transport or launch of the missile. Its inquiries into the alleged perpetrators continue, and a further report may take another year.</p>
<p>The MH17 incident occurred in the context of <a href="http://edition.cnn.com/2016/07/24/europe/ukraine-russia-violence/">conflict</a> between Russian-backed separatist rebels and Ukrainian state forces following <a href="http://www.reuters.com/article/us-ukraine-crisis-russia-crimea-idUSKCN0WK2EA">Russia’s annexation of Crimea</a>. But, crucially, the victims aboard MH17 were all civilians. Their killings violate the fundamental <a href="https://www.icrc.org/en/document/persons-protected-ihl">international humanitarian law principles</a> of distinction (between combatants and non-combatants) and protection.</p>
<h2>Australia’s advocacy for justice</h2>
<p>At the time of the attack, Australia held a temporary seat on the UN Security Council.</p>
<p>With 38 Australians killed on MH17, Foreign Minister Julie Bishop advocated strongly for a Security Council resolution to establish an <a href="http://www.theaustralian.com.au/in-depth/mh17/julie-bishop-urges-mh17-war-crimes-tribunal/news-story/b772ca0bb6bd28715819909f71c2be56">international war crimes tribunal</a>. </p>
<p>Russia, one of the five permanent members of the Security Council, <a href="http://www.russia-direct.org/opinion/why-russia-opposes-international-tribunal-mh17">vetoed</a> a <a href="http://www.un.org/press/en/2015/sc11990.doc.htm">2015 draft resolution</a> and will do so again if another is proposed. Russian sources have critiqued the most recent investigative report as evidence of a <a href="http://www.independent.co.uk/news/world/europe/mh17-report-latest-ukraine-russian-rebels-responsible-downing-buk-missile-russia-denies-vladimir-a7335496.html">biased</a>, politically motivated <a href="http://www.pravdareport.com/opinion/columnists/02-10-2016/135757-dutch_failure-0/">farcical investigation</a>.</p>
<h2>What did the Lockerbie trial involve?</h2>
<p>Bishop has recently suggested that a <a href="http://www.abc.net.au/news/2016-10-02/mh17-lockerbie-style-tribunal-should-be-considered-bishop-says/7896136">Lockerbie-style tribunal</a> could be established as an alternative forum for prosecutions of those responsible for the downing of MH17. </p>
<p>On December 21, 1988, a <a href="http://news.bbc.co.uk/onthisday/hi/dates/stories/december/21/newsid_2539000/2539447.stm">Pan Am jet exploded</a> over the Scottish town of Lockerbie. All 259 people on board and 11 people on the ground were killed. An investigation revealed the explosion was <a href="http://www.airdisasters.co.uk/Lockerbie.htm#Explosive_destruction">caused by a bomb</a> planted on the plane.</p>
<p><a href="https://www.theguardian.com/world/2016/oct/02/julie-bishop-says-australia-could-pursue-those-behind-mh17-with-lockerbie-style-case">According to Bishop</a>, a Lockerbie-style prosecution would involve:</p>
<blockquote>
<p>… a tribunal that’s set up by the international community.</p>
</blockquote>
<p>But the Lockerbie trial was a <a href="https://www.scotcourts.gov.uk/search-judgments/lockerbie-trial">prosecution under Scots law</a>, with some international collaboration to establish a special venue for the court. Two Libyan nationals – Abdelbaset al-Megrahi and Lamin Khalifah Fhimah – were accused of murder and related crimes under Scottish law. Special arrangements were required for their prosecution because Libyan President Muammar Gaddafi refused to extradite them to Scotland.</p>
<p>A <a href="http://treaties.fco.gov.uk/docs/pdf/1999/TS0043.pdf">treaty</a> between the UK and the Netherlands established a site for the Scottish High Court of Justiciary to sit on the neutral territory of the Netherlands. Eleven years on from the bombing, a trial was undertaken with three Scottish judges presiding.</p>
<p>After a lengthy trial, Fhimah was acquitted, as the judges were not satisfied that the available evidence supported his conviction. </p>
<p>However, the judges accepted the evidence of a Maltese shop owner that Megrahi resembled a man who bought clothing in his shop, remnants of which were found surrounding the bomb. They found that Megrahi was an agent of the Libyan intelligence service. On the basis of this and other circumstantial evidence, the court decided that Megrahi <a href="https://www.scotcourts.gov.uk/docs/default-source/sc---lockerbie/lockerbiejudgement.pdf?sfvrsn=2">was guilty</a> beyond reasonable doubt.</p>
<p>A court of five Scottish judges later <a href="https://www.scotcourts.gov.uk/docs/default-source/sc---lockerbie/lockerbieappealjudgement.pdf?sfvrsn=2">rejected Megrahi’s appeal</a>. He was sentenced to life imprisonment in Scotland in 2001. He was returned to Libya in 2009 on compassionate grounds, suffering prostate cancer, and died in 2012. </p>
<h2>A weak example for international justice</h2>
<p>A 2007 <a href="http://www.heraldscotland.com/news/13051748.Lockerbie_exclusive__we_publish_the_report_that_could_have_cleared_Megrahi/">Scottish Criminal Cases Review Commission</a> report cast doubt on the fairness of the trial and the reliability of Megrahi’s conviction. </p>
<p>Also, the UN observer <a href="http://i-p-o.org/IPO-nr-Lockerbie_case-10Aug09.htm">criticised</a> the Scottish court for relying on unreliable witnesses (some of whom received large sums of money for their testimony), evidence that had likely been tampered with, and dubious expert opinions.</p>
<p>The chief architect of the scheme to permit the Scottish trial on Dutch territory, Scottish law professor <a href="http://lockerbiecase.blogspot.com.au/2015/11/every-lawyer-who-has-read-judgment-says.html">Robert Black</a>, has argued since the first trial that Megrahi’s conviction was a miscarriage of justice. </p>
<blockquote>
<p>I am satisfied that not only was there a wrongful conviction, but the victim of it was an innocent man. Lawyers, and I hope others, will appreciate this distinction.</p>
</blockquote>
<p>In 2015, two <a href="http://www.bbc.com/news/uk-scotland-34543983">new suspects</a> were detained in Libya in relation to the bombing. </p>
<p>The Lockerbie trial illustrates several challenges that are likely to arise again in the pursuit of justice for those killed on MH17.</p>
<p>A central problem, as Bishop recognises, will involve <a href="https://www.theguardian.com/world/2016/oct/02/julie-bishop-says-australia-could-pursue-those-behind-mh17-with-lockerbie-style-case">the extradition</a> of accused persons from Russia, Ukraine or elsewhere. Fair trials require that accused persons stand before the court. Trials <a href="https://justiceinconflict.org/2012/04/16/defendants-on-the-run-whats-a-court-to-do/">in absentia</a> would be purely for show and of no greater justice value than investigators’ reports.</p>
<p>In the Lockerbie case, the two accused were eventually extradited by Libya to be tried in the special Scottish court in the Netherlands. This agreement was reached in the context of the Security Council having called on Libya to <a href="http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/731(1992)">comply with demands for justice</a> from the UK, US and France, and imposed <a href="http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/748(1992)">economic sanctions</a> on Libya. </p>
<p>Should the MH17 accused be within Russian jurisdiction, it is highly unlikely Russia will surrender them for trial elsewhere. The Security Council will lack the capacity to impose the same pressure as was brought to bear on Libya due to Russia’s veto power. </p>
<p>Even if one or a few people are brought before a court in relation to MH17, there is a real question about whether their trial could generate a sense of justice. In the Lockerbie case, only one person was convicted and – 28 years on – <a href="http://www.lockerbietruth.com/">questions persist</a> over his guilt.</p>
<p>Even in the case of Russia finding a pragmatic reason to hand over a small number of scapegoats, this would hardly serve the interests of justice. A partial-in-scope process would do little to meet the retributive or restorative justice demands arising from the atrocity. </p>
<p>Another challenge for any special court will be the complexity of the questions of fact and law that arise. In the Lockerbie case, Megrahi was convicted on the basis of purely circumstantial evidence and the court’s confidence that the evidence added up to an inevitable conclusion of guilt. This has made the judgment more vulnerable to question.</p>
<p>Russia and Russian-based separatists in Ukraine have been accused of <a href="http://www.smh.com.au/world/russia-destroying-evidence-at-mh17-crash-site-ukraine-20140720-zuxqm.html">destroying evidence</a> at the MH17 crash site. At any rate, investigators lacked full and speedy access to the site; this has seriously weakened the evidence base available to a court. </p>
<h2>Alternative options</h2>
<p>Bishop and Australia’s prime minister, Malcolm Turnbull, have suggested <a href="https://www.theguardian.com/world/2016/oct/02/julie-bishop-says-australia-could-pursue-those-behind-mh17-with-lockerbie-style-case">domestic criminal prosecutions</a>, perhaps in the Netherlands, as potentially easier to establish. Human rights barrister Geoffrey Robertson <a href="http://www.abc.net.au/news/2016-10-03/mh17-trial-could-be-heard-in-australian-court/7896900">proposes Australia</a> as a site for prosecutions.</p>
<p>Domestic prosecutions may be mounted under ordinary criminal law – for example, for the crime of murder – rather than under international criminal law. However, any such prosecutions would face the same (if not greater) challenges in terms of apprehending accused persons and acquiring necessary evidence as those faced by international or hybrid tribunals.</p>
<p>The best source of justice for the families of MH17 victims may be a thorough and reliable report that seeks to assign responsibility to individuals, a country or countries, and other non-state actors. This would undoubtedly be an inadequate outcome considering the gravity of the crime and the tragic loss of civilian lives. </p>
<p>But in the face of <a href="https://www.theguardian.com/world/2016/sep/28/flight-mh17-shot-down-by-missile-brought-in-from-russia-ukraine-malaysia-airlines">Russian intransigence</a>, will western powers risk inter-state conflict over MH17?</p><img src="https://counter.theconversation.com/content/66396/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire is a member of Amnesty International and a co-chair of the Indigenous Rights subcommittee of Australian Lawyers for Human Rights. </span></em></p>The Lockerbie trial illustrates several challenges that are likely to arise again in the pursuit of justice for those killed on Flight MH17.Amy Maguire, Senior Lecturer in International Law, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/492212015-10-20T02:40:36Z2015-10-20T02:40:36ZMH17 ‘justice’ takes several forms, none simple<figure><img src="https://images.theconversation.com/files/98783/original/image-20151019-26285-mc68c0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Achieving 'justice' for the victims of the MH17 downing is not a straightforward task.</span> <span class="attribution"><span class="source">AAP</span></span></figcaption></figure><p>The Dutch Safety Board’s <a href="http://www.onderzoeksraad.nl">final report</a> into the July 2014 downing of Malaysia Airlines Flight MH17 definitively found that the crash was caused by the detonation of a 9N314M warhead. The warhead was launched by a Russian-made Buk surface-to-air missile system from a 320km² area in eastern Ukraine. </p>
<p>In the wake of the report’s release last week, Australia’s prime minister, Malcolm Turnbull, <a href="http://www.theaustralian.com.au/in-depth/mh17/malcolm-turnbull-vows-justice-for-mh17-families/story-fno88it0-1227569342504?sv=5f40790f1eb518e6d71558439140a019">said</a> that Australia is:</p>
<blockquote>
<p>… determined to do everything we can … to identify those responsible and bring them to justice. </p>
</blockquote>
<p>However, “justice” itself is not straightforward. And in terms of MH17, there are multiple forms of justice to consider.</p>
<h2>Justice?</h2>
<p>The forms of justice might include:</p>
<ul>
<li><p>justice for the families of MH17 by identifying, bringing to trial and punishing those who launched the Buk missile that brought down the aircraft (the Turnbull/<a href="http://www.afr.com/news/mh17-australia-determined-to-seek-justice-julie-bishop-says-20151013-gk8fkj">Julie Bishop</a> “justice”); </p></li>
<li><p>justice in the form of monetary compensation (to families) for the death of those onboard;</p></li>
<li><p>holding Malaysia Airlines to account for choosing to fly a route that some airlines chose not to fly due to the conflict on the ground in eastern Ukraine; and </p></li>
<li><p>justice with regard to the conflict between Russian proxies and the Ukrainians on the ground.</p></li>
</ul>
<p>There are also issues with notions of justice. Do we mean fairness in protecting rights and protesting wrongs? Fairness in the way people are dealt with? The process (or outcome) of using laws to fairly judge and punish crimes and criminal activity? </p>
<p>And are we confusing justice with compensation, at least in liability terms?</p>
<h2>Launch of the Buk missile</h2>
<p>It is not known definitively who launched the missile that brought down MH17. The Dutch Safety Board’s report made no findings regarding the issue. </p>
<p>Bishop is focused on prosecution of those responsible for the launch and detonation. She <a href="http://www.afr.com/news/mh17-australia-determined-to-seek-justice-julie-bishop-says-20151013-gk8fkj">hasn’t ruled out</a> returning to the UN Security Council and establishing an international tribunal. She has mentioned national prosecutions. </p>
<p>Bishop also <a href="http://www.afr.com/news/mh17-australia-determined-to-seek-justice-julie-bishop-says-20151013-gk8fkj">says</a> that payment of passenger compensation is reliant on criminal investigations:</p>
<blockquote>
<p>Any issue of compensation will depend upon holding to account the perpetrators of the crime … I think that being able to identify the perpetrators of the crime would be a precondition to demanding compensation.</p>
</blockquote>
<p>But this is not the case. Justice in the form of compensation for passenger death (or injury) under relevant aircraft liability and passenger compensation regimes is entirely distinct.</p>
<h2>Compensation for passenger death or injury</h2>
<p>“Justice” in terms of passenger or next-of-kin compensation that applies to MH17 – unrelated to criminal investigation or international tribunals – is determined by finding the same treaty in place at the point of departure and the passenger’s final destination as ticketed. For MH17 passengers that will mostly be the <a href="http://www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/">Montreal Convention</a>, but other less favourable regimes may apply to other passengers. </p>
<p><a href="http://www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/">Article 17</a> of the Montreal Convention provides that a carrier:</p>
<blockquote>
<p>… is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft.</p>
</blockquote>
<p>Death or injury must be caused by an “accident”. The most widely and generally accepted <a href="https://supreme.justia.com/cases/federal/us/470/392/">definition</a> of an accident is set out by the US Supreme Court: liability under Article 17:</p>
<blockquote>
<p>… arises only if a passenger’s injury [or death] is caused by an unexpected or unusual event or happening that is external to the passenger.</p>
</blockquote>
<p>Under <a href="http://www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/">Article 21</a> of the Montreal Convention, for damages arising under Article 17 not exceeding 113,100 SDRs (or about US$170,000) per passenger, the carrier cannot exclude or limit its liability. </p>
<p>Malaysia Airlines’ liability is potentially unlimited unless it can prove – and the burden of proof is with the carrier – that damage “was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents” or that such damage was solely due to the negligence or other wrongful act or omission of a third party. That could be a problem.</p>
<h2>Liability for flight path choice</h2>
<p>The issue is whether it was reasonable, given the conflict below, for Malaysia Airlines to choose the flight path it did – and whether it should be held to account for that choice.</p>
<p>The Dutch Safety Board’s report noted that the airspace over eastern Ukraine “was much in use” between July 14 and 17, 2014. Sixty-one airline operators from 32 countries, including Malaysia Airlines, “routed their flights through this airspace”. </p>
<p>On July 17 – the day MH17 was downed – while 160 commercial airliners flew over the area, other airliners had <a href="http://www.ft.com/intl/cms/s/0/00e273e0-1758-11e4-87c0-00144feabdc0.html#axzz39thLB6Aq">stopped flights</a> over the region. It should be noted, though, that it is rare for countries to close their airspace because of armed conflict.</p>
<p>It appears that current arrangements with regard to flying over conflict areas are inadequate. The Dutch Safety Board’s report noted that operators “assume that unrestricted airspaces are safe”, and that they do not usually take into account the safety of the countries they fly over. When flying over a conflict area, an additional risk assessment, then, is necessary. </p>
<p>The report recommends that operators and countries:</p>
<blockquote>
<p>… exchange more information about conflict areas and potential threats to civil aviation.</p>
</blockquote>
<p>And what does justice look like in terms of resolving the armed conflict in the eastern part of Ukraine? </p>
<h2>Aviation confronts 21st-century problems</h2>
<p>Aviation, which transformed travel and way of life in the 20th century, is being transformed in the 21st century and faces some difficult 21st-century problems. </p>
<p>These problems include the aviation emissions problem (emissions from aircraft remain unregulated), economic viability, the system of bilateral air-services agreements, and terrorism. </p>
<p>All involve difficult issues of sovereignty. MH17 involves additional issues of justice and compensation.</p><img src="https://counter.theconversation.com/content/49221/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Hodgkinson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Aviation, which transformed travel and way of life in the 20th century, is being transformed in the 21st century and faces some difficult 21st-century problems.David Hodgkinson, Associate Professor, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/493452015-10-18T04:49:29Z2015-10-18T04:49:29ZA tale of two tragedies<figure><img src="https://images.theconversation.com/files/98736/original/image-20151018-25112-10xk7lm.png?ixlib=rb-1.1.0&rect=0%2C14%2C398%2C306&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">Supplied</span></span></figcaption></figure><p>Last week’s release of the Dutch Safety Board’s final report on the downing of MH17 held no surprises. </p>
<p>While this essentially technical report had no brief to cast blame for the tragedy, no-one familiar with <a href="https://www.bellingcat.com/wp-content/uploads/2015/10/MH17-The-Open-Source-Evidence-EN.pdf">the evidence</a> seriously doubts that MH17 was shot down by pro-Russian rebels in eastern Ukraine using a Buk missile system supplied by Russia. Rebel commander Igor Strelkov actually tweeted the good news that his forces had shot down a Ukrainian Antonov military plane before realising the horrible truth and deleting the post.</p>
<p>Since then, to the distress of the bereaved in several countries, Vladimir Putin’s “political technology” – his government’s propaganda apparatus as deployed on platforms such as social media and international TV channel Russia Today – has been denying responsibility and blaming the deaths of those 298 innocent travellers on the Ukrainian “neofascists” and US imperialists. </p>
<p>There are, depressingly, many in the West who buy into the Russian state’s narrative on this story, or at least argue that it should be given credence in the name of objectivity and balance. The phrase “Russia denies” is heard frequently on the BBC and ABC, even when what is being denied is self-evidently true. </p>
<p>One of Putin’s media advisers, Gleb Pavlovzky, has said with pride that:</p>
<blockquote>
<p>We [the Russians] live in a mythological era. We have gone back to the Ancient World where the distinction between myth and reality didn’t exist.</p>
</blockquote>
<p>And this boldly postmodern approach to information management has not been unsuccessful in relation to Russia’s activities in eastern Ukraine. </p>
<p>Back in the UK recently, I couldn’t help but notice how many people recommended Russia Today as a credible alternative source to mainstream media coverage of foreign affairs. Even the former Scottish first minister and aspiring “father of the nation” Alex Salmond has, with no reference to the 70-plus journalists killed in Russia in Putin’s period as leader, appeared on Russia Today denouncing the “bias” of the BBC.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/98737/original/image-20151018-25138-toqr1g.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/98737/original/image-20151018-25138-toqr1g.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/98737/original/image-20151018-25138-toqr1g.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=962&fit=crop&dpr=1 600w, https://images.theconversation.com/files/98737/original/image-20151018-25138-toqr1g.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=962&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/98737/original/image-20151018-25138-toqr1g.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=962&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/98737/original/image-20151018-25138-toqr1g.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1209&fit=crop&dpr=1 754w, https://images.theconversation.com/files/98737/original/image-20151018-25138-toqr1g.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1209&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/98737/original/image-20151018-25138-toqr1g.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1209&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Supplied</span></span>
</figcaption>
</figure>
<p>Russia’s approach to the media management of this incident contrasts dramatically with that which accompanied an earlier civilian airline shootdown – that of Korean Airlines Flight 007 in 1983. My 1986 PhD (published as Images of the Enemy in 1988) explored Western media coverage of the Soviet Union, and devoted an entire chapter to this case of what I characterised then as incompetent political communication by the Soviet regime. </p>
<p>Having mistaken KAL 007 for a US spy plane, a Soviet fighter shot it down over Kamchatka, killing all 269 passengers and crew. In those pre-digital days the Soviets, to their credit, accepted responsibility for firing the fatal shot, while blaming the CIA for recklessly putting the airliner in danger. </p>
<p>A uniformed, anonymous general fronted a media conference in which he showed the flight path of KAL 007 and that of a US military aircraft which had been flying closeby. The mistake was explicable, he argued, and the CIA were the real culprits.</p>
<p>Watching coverage of the KAL shootdown was a rising party leader by the name of Mikhail Gorbachev. He interpreted the stilted, robotic performance of the general as an example of what was wrong with Soviet-era political communication. As one Moscow correspondent at the time put it to me:</p>
<blockquote>
<p>Say nothing, and if you have to say something, say as little as possible. </p>
</blockquote>
<p>Notwithstanding the general’s account – later verified by US investigative journalists – then-US president Ronald Reagan, justifiably remembered as the Great Communicator, was successful in commanding the global news agenda with an “image of the enemy” as “terrorist” and “barbaric”. KAL 007 was proof, he argued, that the Soviet Union was an “Evil Empire”. </p>
<p>Gorbachev used KAL 007 in his promotion of “glasnost”, or openness – by which he meant official transparency in the communication of information, including bad news stories such as the shooting down of KAL 007. When he came to power in 1985 he transformed the Soviet approach to information management, and became, in Margaret Thatcher’s view, “a man we can do business with”. </p>
<p>KAL 007, in a very real sense, ended the Cold War of the 1980s by encouraging those in the party leadership who sought a more “user-friendly” approach to information management and governmental communication.</p>
<p>The aftermath of MH17 is more complex, less predictable. Russia is both weaker and stronger than the Soviet Union in 1983. Putin says and does what he likes, and no-one wishes to call his nuclear-tipped bluff. </p>
<p>We await the outcome of the criminal investigation now underway to determine who pulled the trigger on MH17 and why. Unlike the Soviets in 1983, Putin and his advisers have used the globalised public sphere and its digital channels to present a narrative in which Russia is a victim rather than a perpetrator. </p>
<p>Brazen denial of the obvious is Putin’s preferred communication strategy, until such time as he feels strong enough to simply admit to what everybody always knew was true.</p><img src="https://counter.theconversation.com/content/49345/count.gif" alt="The Conversation" width="1" height="1" />
<h4 class="border">Disclosure</h4><p class="fine-print"><em><span>Brian McNair receives funding from the Australian Research Council. He is a member of QUT's Digital Media Research Centre. </span></em></p>Last week’s release of the Dutch Safety Board’s final report on the downing of MH17 held no surprises. While this essentially technical report had no brief to cast blame for the tragedy, no-one familiar…Brian McNair, Professor of Journalism, Media and Communication, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/491782015-10-15T13:22:05Z2015-10-15T13:22:05ZMH17 crash report establishes the cause, but only criminal investigation can find those responsible<p>The Dutch Safety Board’s <a href="http://cdn.onderzoeksraad.nl/documents/report-mh17-crash-en.pdf">report</a> into the shooting down of Malaysia Airlines MH17 and the death of all 298 people on board presents compelling evidence that the aircraft was destroyed by a missile launched from a 320 square kilometre area in Eastern Ukraine. While the investigation chose not to include it – another Dutch-led criminal investigation is also underway – there is substantial other information that supports these claims.</p>
<h2>The missile</h2>
<p>The report identifies the missile that brought down MH17 as a <a href="http://www.bbc.co.uk/news/world-europe-34511973">9N314M fragmentation warhead</a>, carried by a 9M38-series missile launched from a Buk surface-to-air missile system. The Buk SA-11 surface-to-air missile system (NATO designation “Gadfly”) entered service in 1982 and was widely exported to Eastern Bloc countries, and this system uses the missile and warhead identified by the investigators. An upgraded Buk launcher known as SA-17 (“Grizzly”) arrived in 1998.</p>
<p>While the newer warhead and missile used by the SA-17 were upgraded over the years many of the older type remain in service. So while the manufacturer of the Buk missile, Russian firm Almaz-Antey, claimed that Buk systems in service with the Russian armed forces <a href="https://www.rt.com/news/318531-mh17-experiment-almaz-antey/">are of a later type</a> and concluded that the offending system therefore belonged to Ukraine, it’s quite possible that Russian forces may still have been using the older type – or for them to supply it to Ukrainian separatists. So Almaz-Antey’s claim should be treated with considerable caution. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/98441/original/image-20151014-15165-uwctw6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/98441/original/image-20151014-15165-uwctw6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/98441/original/image-20151014-15165-uwctw6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/98441/original/image-20151014-15165-uwctw6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/98441/original/image-20151014-15165-uwctw6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/98441/original/image-20151014-15165-uwctw6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/98441/original/image-20151014-15165-uwctw6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/98441/original/image-20151014-15165-uwctw6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The fragmentation warhead of a Buk surface-to-air missile.</span>
<span class="attribution"><span class="source">Dutch Safety Board</span></span>
</figcaption>
</figure>
<h2>The launcher</h2>
<p>In any case, when the separatists overran Ukrainian army depots in the eastern regions there were <a href="http://www.reuters.com/article/2014/07/23/us-ukraine-crisis-commander-exclusive-idUSKBN0FS1V920140723">complete, fully-functional Buk systems there for taking</a> – despite their having no experience of operating them safely. With a speed of 1,900mph the missile could have reached MH17 at 33,000ft in just over 11 seconds, where the fragmentation charge launches thousands of pieces of shrapnel in a spread pattern, as discovered by the investigators. The SA-11 is reputed to have a kill rate of 95%, so it is more than capable of downing MH17 even with virtually untrained operators.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=668&fit=crop&dpr=1 600w, https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=668&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=668&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=839&fit=crop&dpr=1 754w, https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=839&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=839&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Buk M1 surface-to-air missile launcher.</span>
<span class="attribution"><a class="source" href="http://commons.wikimedia.org/wiki/File:Buk-M1-2_9A310M1-2.jpg">Ajvol</a></span>
</figcaption>
</figure>
<p>The Buk radar controller is fitted with an “identification friend or foe” device (IFF) capable of determining automatically whether a target is allied, enemy, or a civilian or commercial aircraft, using the same secondary surveillance radar transponder used by air traffic control to identify aircraft. However, the Buk launcher also allows the IFF system to be bypassed. Used like this, the radar shows all targets in range, the operator selects one and presses the fire button. Only very basic training is required.</p>
<h2>Evidence tampering</h2>
<p>Due to their location so close to the frontline, the MH17 crash sites were not quarantined. <a href="http://www.theguardian.com/world/2015/oct/13/mh17-report-suggests-efforts-were-made-to-cover-up-causes-of-disaster">Tampering with evidence</a> was noted between photographs taken in the hours after the crash and what was found when the investigators arrived at the wreckage. For example, flight avionics, debris showing scorch marks and missile and warhead fragments had been removed. The report note that shrapnel had been removed from the captain’s body, but it did not say who did so and under what authority.</p>
<p>Bellingcat, a website of “open source intelligence” that accumulates reports, photographs and video from around the internet, purported to show <a href="https://www.bellingcat.com/news/uk-and-europe/2015/10/08/exploring-russias-53rd-brigades-mh17-convoy-with-storymap/">a Buk launcher being transported to Ukraine</a> in June 2014. Within 12 hours of MH17 being brought down, the same launcher was seen being transported back to the Russian border. There will be answers that it was being used for a training exercise, and this doesn’t prove it was the launcher responsible, but the images contradict Russia’s claim that no such system was transported to Ukraine.</p>
<h2>Electronic evidence</h2>
<p>Immediately after news of the shooting down spread, Igor Girkin, leader of the Ukrainian separatists, took credit, <a href="http://www.politifact.com/truth-o-meter/statements/2014/jul/20/john-kerry/kerry-ukrainian-separatist-bragged-social-media/">claiming on Vkontakte</a> (the Russian Facebook) that his troops had shot down what was assumed to be a Ukrainian military transport. He denied any involvement after learning it was a civilian airliner. Numerous purported <a href="http://www.ibtimes.com/mh17-crash-full-transcript-alleged-phone-intercepts-between-russian-intelligence-officers-1631992">telephone communications between separatist commanders</a> intercepted by the US and the Ukrainian military have been released, and these and others will presumably be included as part of the ongoing Dutch criminal investigation.</p>
<p>At the time of the incident it was reported that a US RC-135 Rivet Joint reconnaissance aircraft and a AWACS E3 surveillance aircraft observing the conflict may have captured electronic intelligence and communications surrounding the event. This intelligence data would include Buk target acquisition radar and missile guidance signals, so if it exists it would show conclusively where the Buk missile was fired from – but not who actually fired the missile. Imagery from US <a href="http://www.globalsecurity.org/space/systems/lacrosse.htm">Lacrosse/Onyx intelligence satellites</a> showing the Buk launcher in position may also be available. The US <a href="http://ukraine.usembassy.gov/statements/asmt-07192014.html">stated</a> soon after the crash its belief that the separatists were responsible; if the US has further intelligence to add it may be made available to the criminal investigation.</p>
<p>So we’re sure the missile that brought down MH17 carried a 9N314M warhead fired from a SA-11 or SA-17 missile system. We are certain that the missile was fired from Eastern Ukraine. It’s possible to calculate from the pattern the missile’s explosion left on MH17’s flight deck that its trajectory leads back to territory controlled by Ukrainian separatists. The other available evidence not considered by the Dutch Safety Board adds to what looks like a compelling case. But is it compelling enough to convict in a court of law? A smoking gun is not enough; what is really needed is someone to come forward who was involved that day to give evidence.</p><img src="https://counter.theconversation.com/content/49178/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Stupples does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Dutch Safety Board’s report into the loss of MH17 concludes, but the criminal investigation – which will take in far more evidence – awaits.David Stupples, Professor of Electrical and Electronic Engineering and Director of Electronic Warfare, City, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/491662015-10-15T05:32:36Z2015-10-15T05:32:36ZMH17 report leaves questions unanswered, and casts a light on the state of international law<p>While the <a href="http://cdn.onderzoeksraad.nl/documents/report-mh17-crash-en.pdf">final report</a> of the Dutch Safety Board’s investigation into the loss of Malaysia Airlines flight MH17 over eastern Ukraine in July 2014 points no finger of blame, the evidence – bow-tie shaped fragments in the debris and bodies of victims – suggests the weapon was a <a href="http://www.theguardian.com/world/live/2015/oct/13/mh17-crash-report-ukraine-live-updates#block-561d0b6be4b0178bcbce8b18">9N314M warhead</a> launched by the Russian-made Buk surface-to-air missile system.</p>
<p>Russia sees the investigation, conducted in the Netherlands, as a sham aimed at <a href="https://www.rt.com/news/318457-mh17-report-plane-crash/">justifying previous accusations</a>. The reality is that without an outright admission of responsibility we are unlikely to ever know the events of that day sufficiently clearly to build a case that would find some person, state or organisation liable. The weapon may be found but this rarely provides sufficient proof of where true guilt lies or the real intentions of those involved.</p>
<p>The painstaking recreation of the MH17 crash from recovered wreckage will not establish conclusively who fired the missile. To suggest Russian military action was responsible because a Russian-made missile was used is arguably like saying Germany is responsible for a hit-and-run death in England because the car involved was a Volkswagen. In the world of overt and covert armed conflict there is little to prevent one side framing the other.</p>
<p>Recriminations have followed many such events since the first in 1904, when <a href="https://www.routledge.com/products/9780415562126">Russian soldiers shot down a German balloon</a>. The <a href="http://news.bbc.co.uk/onthisday/hi/dates/stories/december/21/newsid_2539000/2539447.stm">bombing of Pan Am flight 103</a> over Lockerbie in 1988, and even the 9/11 attacks only emphasise the opaque and difficult nature of aerial incidents in international relations. There is something peculiar to aerial violence that lends itself to intense confusion and amplified terror.</p>
<p>Evidence gathering in relation to aerial crimes is typically difficult and expensive. Even when diligently gathered, such evidence is notoriously easy to attack as unreliable under the glare of lawyerly forensic analysis. Years after the conviction of <a href="http://www.theguardian.com/uk/2007/oct/12/lockerbie.scotland">Abdelbaset Ali Mohmed al-Megrahi</a> for the Lockerbie bombings his lawyers still managed to cast serious doubt on the reliability of the conviction, leading to his release back to Libya on humanitarian grounds in 2009. He died at home in Tripoli in 2012.</p>
<h2>Air travel’s protections</h2>
<p>Alongside the work of the <a href="http://www.icao.int/about-icao/Pages/default.aspx">International Civil Aviation Organization</a> (ICAO) there are several dedicated international treaties that ought to prevent the sort of loss of life as happened with MH17. The <a href="http://www.un.org/en/sc/ctc/docs/conventions/Conv1.pdf">1963 Tokyo Convention</a>, <a href="https://www.mcgill.ca/iasl/files/iasl/hague1970.pdf">the 1970 Hague Convention</a>, and the <a href="http://www.un.org/en/sc/ctc/docs/conventions/Conv3.pdf">1971 Convention For The Suppression Of Unlawful Acts Against The Safety Of Civil Aviation</a> all provide a framework by which civil aircraft should be protected from unwarranted aggression. </p>
<p>The Montreal Convention for example makes it an international offence for anyone to unlawfully and intentionally:</p>
<blockquote>
<p>Perform an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft; or destroy an aircraft in service or cause damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight.</p>
</blockquote>
<p>States signed up to the conventions have agreed to make the offences punishable by severe penalties. Those suspected of being responsible, when found, must be extradited to where the investigation is taking place, or the state where they are found must offer its own competent authorities to diligently prosecute them. It is this system of treaties and provisions that has to a large extent provided the confidence in air travel we enjoy today.</p>
<h2>Will it come to court?</h2>
<p>Ukraine, the Netherlands and Malaysia may wish to attempt to prosecute the suspects in this case, perhaps if necessary even sue the Russian government or Donbas regions in Ukraine for compensation. That states are responsible for internationally criminal acts is a core element of justice under public international law, as confirmed by the <a href="http://www.icj-cij.org/docket/?sum=367&p1=3&p2=3&case=70&p3=5">finding of the International Court of Justice in 1986</a> against the US for its paramilitary activities against Nicaragua. This important principle should be applied more routinely in international relations, as it is a vital bulwark against rising international recklessness among the powerful.</p>
<p>Unfortunately, legal solutions are not as straightforward as they may at first appear. In nearly all recent cases where airliners have been downed by states or shadowy groups, the truth tends to be the first casualty.</p>
<p>Court proceedings may also produce unintended consequences. In this case, the investigators’ conclusion that <a href="http://edition.cnn.com/2015/10/13/europe/mh17-ukraine-dutch-report/">Ukraine had reason to close the airspace</a> before the crash raises the possibility of charges of contributory negligence. It could also be argued that all the states that contributed to the circumstances leading to the Ukrainian civil war ought to share in the blame for the chaos that resulted.</p>
<h2>Choosing a venue</h2>
<p>The <a href="http://www.icj-cij.org/jurisdiction/index.php?p1=5">International Court of Justice</a> can have jurisdiction if the contending states agree to appear before it, but cases <a href="https://books.google.co.uk/books/about/The_Law_and_Practice_of_the_Internationa.html?id=hS8_AQAAIAAJ&redir_esc=y">can last for years</a> and be crippled by international politics. </p>
<p>The <a href="http://www.icc-cpi.int/en_menus/icc/Pages/default.aspx">International Criminal Court</a> (ICC) oversees cases of war crimes. Cases can also appear before multilateral tribunals, such as the independent <a href="http://www.iusct.net%22%22">Iran-United States Claims Tribunal</a>.</p>
<p>The particular individuals involved in this ignoble act can be prosecuted under the protective jurisdiction principle by the states where the victims came from. This can involve legitimate means to apprehend the offenders and bring them to book before domestic courts or <a href="http://avalon.law.yale.edu/favicon.ico">an international tribunal</a> set up for the purpose. An international tribunal in fact <a href="http://www.straitstimes.com/asia/se-asia/kl-vows-to-prosecute-trigger-happy-culprits">has been proposed</a> by Malaysia hinting at the possibility of international justice been meted out by the “joint investigation team” nations of Malaysia, the Netherlands, Belgium, Ukraine and Australia.</p>
<p>By the time the final report into MH17 arrives next year, those responsible may be brought before the proposed <a href="http://www.mae.ro/en/node/31628">International Court against Terrorism</a>, which has been brought forward by Romania and gathering international support.</p>
<h2>Politics and the law</h2>
<p>The problem with all these options remains the fact that powerful states tend not to follow international law. China, Israel and the US have expressed their dissatisfaction with the ICC and are not party to it, nor is Russia party to the <a href="http://legal.un.org/icc/statute/99_corr/cstatute.htm">Rome Statute</a> that sets out the jurisdiction of the ICC.</p>
<p>The strident calls of the West against Russia will ring particularly hollow given the incredulous US bombardment and killing of patients and staff at a MSF hospital in the <a href="http://www.theguardian.com/world/2015/oct/03/msf-hospital-us-condemned-over-horrific-bombing-in-afghanistan">Afghan city of Kunduz</a> just a few days before the Dutch investigators’ report was published. The US itself is not new to downing civilian aircraft: in 1988 a US Navy cruiser <a href="http://www.iranchamber.com/history/articles/shootingdown_iranair_flight655.php">deliberately shot down Iran Air flight 655</a>, killing all 290 passengers and crew from six nations, including 66 children.</p>
<p>While the ICAO will continue to agonise over the implications of the MH17 tragedy, perhaps it has shown the public worldwide that armed conflict in far-flung territories may not be as remote as they seem. Numbness to foreign military escapades by the populace of powerful states has crept up on us all. That full-scale wars may be conducted abroad while normal life continues at home contributes to an ominous growth in international recklessness that must cease. </p>
<p>The case of MH17 shows all of us that we cannot literally fly over the misery and catastrophes suffered by others, and if justice is really to be done to the memory of the MH17 victims this must be incorporated into the investigators final conclusions.</p><img src="https://counter.theconversation.com/content/49166/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gbenga Oduntan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>We have the courts, we have (some) evidence, but can we build a case? MH17 investigation could remain inconclusive.Gbenga Oduntan, Senior Lecturer in International Commercial Law, University of KentLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/490542015-10-13T22:25:35Z2015-10-13T22:25:35ZMuch more to be done before MH17 findings can support a war crime trial<figure><img src="https://images.theconversation.com/files/98331/original/image-20151013-27905-1l3fcnp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The reconstructed front of Malaysian Airlines flight MH17, which was shot down over Ukraine in July 2014.</span> <span class="attribution"><span class="source">AAP/Lloyd Jones</span></span></figcaption></figure><p>On Tuesday, the Dutch Safety Board released its <a href="http://www.onderzoeksraad.nl/en/onderzoek/2049/investigation-crash-mh17-17-july-2014">report</a> into the downing of Malaysian Airlines flight MH17 over Ukraine in July 2014. All on board – 298 people – were killed.</p>
<p>MH17 is said to have been downed by a Russian-made BUK surface-to-air missile, launched from somewhere in a 320-square-kilometre area in eastern Ukraine. A warhead, carried by a BUK missile, reportedly detonated above the left-hand side of the plane’s cockpit. This caused the aircraft to disintegrate in mid-air. </p>
<p>The board was never expected to make a finding on who was responsible for the incident. However, its conclusion that a BUK missile brought down MH17 will be taken as a nod to Russian-backed rebel responsibility. The board’s report is crucial to the progress of the <a href="http://www.abc.net.au/news/2015-07-04/dutch-seek-un-tribunal-to-prosecute-downing-of-malaysian-plane/6594728">ongoing criminal investigation</a>, led by the Dutch and supported by Australia, Belgium, Malaysia and Ukraine. That investigation will report by 2016. </p>
<h2>The prospect of a war crimes prosecution</h2>
<p>Soon after the downing of MH17, some <a href="http://www.bbc.com/news/world-europe-28520813">raised the charge</a> that those responsible had committed a war crime. Under the Dutch Law on International Crimes, the Netherlands may bring a <a href="http://www.reuters.com/article/2014/07/21/us-ukraine-crisis-dutch-idUSKBN0FQ15620140721">domestic prosecution</a> against anyone accused of committing a war crime against a Dutch citizen.</p>
<p>However, as the crash killed the nationals of 11 countries, the preferable approach may be a prosecution under international law. Partners in the <a href="http://www.abc.net.au/news/2015-07-04/dutch-seek-un-tribunal-to-prosecute-downing-of-malaysian-plane/6594728">criminal investigation</a> have already put forward a draft UN Security Council resolution aiming to establish a specialist independent war crimes tribunal. Australian Foreign Minister Julie Bishop <a href="http://www.theaustralian.com.au/in-depth/mh17/julie-bishop-urges-mh17-war-crimes-tribunal/story-fno88it0-1227441247475">spoke in support</a> of this proposal:</p>
<blockquote>
<p>The establishment of an international criminal tribunal under Chapter VII of the UN Charter for this purpose would send a clear message that the international community will not tolerate acts that threaten international peace and security by endangering civil aviation.</p>
<p>A tribunal established by the council would ensure broad international support for prosecutions and would maximise the prospects of securing international co-operation, which will be necessary for an effective prosecution.</p>
</blockquote>
<p>Russia, which holds a Security Council veto, is <a href="http://www.russia-direct.org/opinion/why-russia-opposes-international-tribunal-mh17">opposed</a> to the creation of an independent tribunal. Investigators will no doubt be exploring alternatives, including the International Criminal Court and the fallback option of a Dutch domestic prosecution. </p>
<p>Bishop has <a href="http://www.skynews.com.au/news/top-stories/2015/10/14/turnbull--bishop-welcome-dutch-mh17-report.html">not ruled out</a> supporting another attempt to gain Security Council approval for a special international tribunal. </p>
<h2>Was it a war crime?</h2>
<p>MH17 was shot down over the region of Donetsk in Ukraine during a period of intense fighting in the non-international armed conflict between Ukraine and pro-Russian separatist forces. The Dutch Safety Board has <a href="http://www.bbc.com/news/live/world-europe-34514727">reported</a> that around 16 Ukrainian military aircraft were shot down in the weeks preceding the MH17 disaster. </p>
<p>The setting thus clearly meets the <a href="http://www.icty.org/x/cases/kunarac/acjug/en/kun-aj020612e.pdf">contextual requirement</a> of protracted armed violence between organised belligerent groups. </p>
<p>Next, it must be shown that the ongoing armed conflict <a href="http://www.icty.org/x/cases/kunarac/acjug/en/kun-aj020612e.pdf">played</a>:</p>
<blockquote>
<p>… a substantial part in the perpetrator’s ability to commit the crime, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.</p>
</blockquote>
<p>If, as has been alleged, Russian-backed rebels fired the missile at MH17, this element would also likely be established. </p>
<p>Far more challenging, however, may be identifying which individuals to prosecute as perpetrators. Ukraine and those engaged in the criminal investigation <a href="http://www.aljazeera.com/news/2015/07/calls-grow-prosecute-shot-mh17-ukraine-russia-150717014159331.html">blame pro-Russian rebels</a>, and may have data which could identify suspects. Ukraine calls the incident a <a href="http://www.theguardian.com/world/live/2015/oct/13/mh17-crash-report-ukraine-live-updates">“terrorist attack”</a>. Russia continues to <a href="https://news.vice.com/article/russian-missile-maker-says-buk-likely-belonging-to-ukraine-took-down-flight-mh17">blame Ukraine</a>.</p>
<p>If the criminal investigation team identifies suspects, the next challenge will be apprehending them to face trial before the chosen court. The International Criminal Court has no enforcement powers for arrest warrants. It relies on state parties to apprehend and transfer accused persons for trial. This may prove exceedingly difficult in a case where Russia is likely to provide safe haven. </p>
<p>It is possible that trials <a href="http://justiceinconflict.org/2012/04/16/defendants-on-the-run-whats-a-court-to-do/">in absentia</a> would help to speed up the process of international criminal justice and enable the court to conduct more trials. But, at this stage, the International Criminal Court must have a suspect before it in order to conduct a trial and deliver judgment.</p>
<p>If accused persons are apprehended, prosecutors would likely consider charging them with the war crime of <a href="http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">wilful killing</a> of non-combatants. Other charges may also be proposed. The prosecutors would emphasise the humanitarian law principle of <a href="https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule1">“distinction”</a> – that is, combatants must do everything possible to ensure that their targets are military. </p>
<p>The international outrage in response to MH17 demonstrates the power and importance of distinction. Many can imagine themselves in the position of the victims, who surely never anticipated their sudden and tragic fate. </p>
<p>To prove the “mental element” of wilful killing, the prosecutors must show that the accused <a href="http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf">intended to kill “protected persons”</a> – that is, non-combatants. This may prove the greatest possible hurdle to a successful international war crimes prosecution. At this stage, definitive evidence has not emerged to show such an intention on the part of any alleged perpetrators. </p>
<p>It is possible, instead, that the perpetrators intended to attack what they thought was a Ukrainian military target. </p>
<h2>An alternative approach</h2>
<p>If prosecutors determine that a war crimes prosecution is unlikely to succeed, some form of prosecution may still be possible. For example, a Dutch prosecutor may charge alleged perpetrators with <a href="http://blogs.wsj.com/law/2014/07/22/will-the-mh17-disaster-be-prosecuted-as-a-war-crime/">murder and/or manslaughter</a> under <a href="http://opiniojuris.org/2014/08/11/mh-17-framed-murder-war-crime/">domestic criminal law</a>. </p>
<p>However, such an approach would lack the demonstration effect of an international inquiry. </p>
<p>In either case, authorities must first identify and gain custody of this attack’s perpetrators.</p><img src="https://counter.theconversation.com/content/49054/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A Dutch Safety Board report is crucial to the progress of the ongoing criminal investigation into downed flight MH17.Amy Maguire, Lecturer in International Law, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/454212015-07-30T03:21:55Z2015-07-30T03:21:55ZAs Security Council resolution fails, there is another way to investigate MH17<figure><img src="https://images.theconversation.com/files/90229/original/image-20150730-10327-8nrpr0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Russia vetoed a proposed Security Council resolution to set up a tribunal to investigate the downing of Flight MH17.</span> <span class="attribution"><span class="source">EPA/Jason Szenes</span></span></figcaption></figure><p>As expected, on Thursday morning (Australian time), Russia <a href="http://www.abc.net.au/news/2015-07-30/russia-vetoes-proposal-for-un-backed-tribunal-over-mh17/6658620">vetoed</a> the proposed United Nations Security Council resolution that sought to set up an ad hoc international criminal tribunal to investigate the downing of <a href="https://theconversation.com/au/topics/flight-mh17">Flight MH17</a> in July 2014.</p>
<p>Three other countries, including China, abstained from voting. While 11 countries supported the resolution, the “niet” from Russia meant that it was not passed.</p>
<h2>What now?</h2>
<p>As a consequence, the Security Council will not establish any such tribunal, unless and until another similar proposal is ultimately accepted. It seems that this is currently most unlikely, given that President Vladimir Putin and other senior Russian officials expressed their <a href="http://www.reuters.com/article/2015/07/29/us-ukraine-crisis-mh17-russia-idUSKCN0Q31LQ20150729">strong opposition</a> to the vetoed resolution. </p>
<p>Russia had <a href="http://www.independent.co.uk/news/world/europe/malaysia-airlines-mh17-crash-russia-pledges-full-cooperation-as-experts-arrive-at-crash-site-9615935.html">previously indicated</a> that it would co-operate in any investigation of the matter. However, it regarded the establishment of a new tribunal as “inexpedient” and “premature”.</p>
<p>Australian Foreign Minister Julie Bishop was highly critical of Russia’s decision. While she has confirmed that various options are being considered, her words seem to suggest that the Russian veto severely dented the prospects of international justice for MH17’s victims and their families. </p>
<p>The draft resolution’s defeat does not stop any or all of the interested countries from setting up some form of national criminal inquiry or court, under their own criminal law systems, to investigate the circumstances of the crash. While this will be subject to some jurisdictional issues, this option remains open. </p>
<p>However, it seems that those countries most affected are convinced that an international court is the most appropriate forum for any such investigation. This seems logical given the magnitude and high international profile of the MH17 downing. </p>
<p>There are also the more practical issues of non-co-operation from other countries, and the severe diplomatic criticism regarding impartiality that Russia in particular would raise in respect of any such national criminal process, to consider. </p>
<h2>What international law avenues are there?</h2>
<p>So, are there any other options at the international level to have this matter properly investigated and – if appropriate – prosecuted by an impartial, independent international court? </p>
<p>There is – in the form of the <a href="http://www.icc-cpi.int/en_menus/icc/Pages/default.aspx">International Criminal Court</a> (ICC).</p>
<p>The ICC, situated in The Hague, was established in 2002. It has slowly – and not without some difficulties along the way – built up its expertise and experience in the investigation and prosecution of those crimes that <a href="http://www.preventgenocide.org/law/icc/statute/part-a.htm">“shock the conscience of humanity”</a>.</p>
<p>The ICC is mandated to deal with alleged crimes of genocide, crimes against humanity, war crimes and aggression. While we do not have all the facts, the shooting down of a civilian aircraft during the course of an armed conflict could certainly amount to a war crime in particular circumstances. </p>
<p>Under the structure of the ICC Statute, member nations can refer particular situations to the court for possible investigation. This has been the case for a number of African countries.</p>
<p>The ICC Statute also allows for countries that are not members – such as Ukraine and Russia – to ask the court for its assistance. This has also been utilised by various countries – including, most significantly, by <a href="http://www.irishtimes.com/news/world/europe/ukraine-seeks-international-criminal-court-investigation-1.2179635">Ukraine</a>. </p>
<p>In April 2014, Ukraine lodged a declaration with the court asking its prosecutor, Fatou Bensouda, to investigate alleged crimes committed on its territory from November 21, 2013, to February 22, 2014 – a period when the previous (pro-Russian) government was still in power. This issue is now with Bensouda, who is obliged to consider all of the circumstances to determine whether she wishes to proceed to a formal investigation. </p>
<p>All member nations of the ICC Statute are required to co-operate with the court in this matter, as is the declaring non-member nation (Ukraine).</p>
<p>If it so wished, Ukraine could lodge a further declaration that also included events leading up to and including the MH17 downing. Having undertaken this process once before, it is clear that Ukraine is fully aware of the ICC’s role and procedures to allow it to undertake an investigation.</p>
<p>While a referral to the ICC in this manner would not guarantee Russia’s co-operation, it would place the MH17 tragedy clearly into the hands of an international criminal tribunal that has already been established – hence no delays and additional establishment costs – and which is specifically designed to deal with war crimes.</p>
<p>Those seeking justice for MH17 and its victims should work closely with Ukraine and encourage it to utilise once again an international justice mechanism that is clearly available to it, irrespective of the machinations of Security Council geopolitics.</p><img src="https://counter.theconversation.com/content/45421/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Freeland does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Are there any other options at the international level to have the downing of Flight MH17 properly investigated and – if appropriate – prosecuted by an impartial, independent international court?Steven Freeland, Professor of International Law, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/441692015-07-17T09:37:28Z2015-07-17T09:37:28ZA year since MH17, Russia’s foreign policy is as problematic as ever<p>For most of the world, the circumstances behind the MH17 crash have been all but settled. </p>
<p>The Dutch-led <a href="http://www.abc.net.au/news/2015-07-16/mh17-investigators/6625476">investigation</a> into the incident is convinced that the weight of evidence points to a Russian-supplied BUK missile system fired by eastern Ukrainian separatists, and then returned to Russia. Ever since the disaster, citizen journalist groups such as <a href="https://www.bellingcat.com/news/uk-and-europe/2015/06/12/july-17-imagery-mod-comparison/">Bellingcat</a> have been producing persuasive evidence that Russia has doctored satellite imagery from the day MH17 was shot down. </p>
<p>But Russia, of course, continues to vociferously dispute that version of events, as it has done ever since the disaster. </p>
<p>Four days after Malaysian Airlines flight MH17 was shot down over Ukraine in July 2014, the Russian Ministry of Defence presented its <a href="http://archive.mid.ru//brp_4.nsf/0/ECD62987D4816CA344257D1D00251C76">report</a> on the tragedy. Coupled with Vladimir Putin’s <a href="https://www.youtube.com/watch?v=Xd1w7cR0hDk">admission</a> that he initially lied about Russian involvement in Crimea, this has only given fodder to those who argue Russia is an unreliable ally and a deeply disruptive force in the global order.</p>
<p>Nevertheless, Russia remains a vital player in global geopolitics. </p>
<h2>Stirring the pot</h2>
<p>In the Iranian nuclear negotiations, Russia proved determined to shape rather than merely sign the final peace deal. Elsewhere, progress has been held up as Russia has time and again shown it can be a spoiler wherever it wishes. Its <a href="http://www.cbsnews.com/news/iran-nuclear-talks-deadline-missed-split-us-russia-china-arms-sanctions/">differences with the US</a> extend to the removal of sanctions against Iran, especially the UN arms embargo, which Russia argues should be lifted regardless of proof that Iran has complied with the deal. This is a particularly loaded question for Russia, given the <a href="http://www.theguardian.com/world/2014/jul/22/eu-plans-further-sanctions-russia-putin-mh17">sanctions</a> it has itself endured since the MH17 incident.</p>
<p>Russia’s role in Syria is more ambiguous. As the threat from IS terrorists has grown and Bashar al-Assad is increasingly seen as a necessary part of the solution, so Russia has been able to <a href="http://www.middle-east-online.com/english/?id=53759">claim with some credibility</a> that it was right to caution against intervening in this highly complex situation. On the other hand, Russia’s UN <a href="http://www.bbc.co.uk/news/world-middle-east-15177114">vetoes</a> stood in the way of an early intervention to end the conflict, and there is good reason to wonder whether it has inflamed the conflict by supply of arms and resolute support of the Assad regime. </p>
<p>Meanwhile, Russia has itself become the <a href="http://www.bbc.co.uk/news/world-europe-33311959">target for IS</a> and its sympathisers. This gives the Chechen leader, Ramzan Kadyrov, yet more political capital in Russia. His hold over Chechnya is a vital element in Russia’s self-defence regime, but <a href="http://topics.nytimes.com/top/reference/timestopics/people/k/ramzan_a_kadyrov/index.html">Kadyrov</a> is a double-edged sword too, posited as a rival to Putin even as he is condemned for human rights abuses.</p>
<p>Russia’s vulnerability to external terrorists may be a problem only partly of its own making, but its poor relations with the West have drastically shrunk the circle of friends it can rely on for help. </p>
<h2>Damn the consequences</h2>
<p>In a <a href="http://ir-ia.com/news/russia-to-team-up-with-asian-allies-against-isis/">March 2015 interview</a>, the head of the Russian Security Council, Nikolay Patrushev, commented both on the threat Russia now faces from Islamic State, and the role of the West in exacerbating that threat by its demonisation of Russia. It seems the Kremlin refuses to admit this is the direct consequence of Russia’s extravagant opposition to the West. This failure to acknowledge openly that actions breed reactions is not untypical of powerful states, but Russia is taking it to an extreme. There is no evidence that Moscow has any intention of backing down to help clear the air for more co-operative relations.</p>
<p>Instead, Russia continues to pursue strong relations with China and regional organisations such as the <a href="http://thediplomat.com/2014/09/the-new-improved-shanghai-cooperation-organization/">Shanghai Cooperation Organisation</a>, an important asset for combating terrorist threats. Meetings in these types of multilateral forums, coupled with an intensification of bilateral relations have resulted in speculation about whether these two powers are forming a new <a href="http://www.theguardian.com/world/2015/jul/07/china-russia-superpower-axis?CMP=share_btn_fb">power axis</a> to challenge the weight of the US.</p>
<p>Since the outbreak of the conflict in Ukraine, Russia’s relations with both the EU and NATO have continued to deteriorate. Sanctions have been deepened and extended as the EU has expressed doubt about Russia’s commitment to full implementation of the <a href="http://www.ft.com/cms/s/0/5e2b7a0e-b2dc-11e4-a058-00144feab7de.html#axzz3fm406F8A">Minsk Agreements</a>. Russia’s behaviour has particularly troubled the <a href="https://www.foreignaffairs.com/articles/baltics/2015-07-01/baltic-balance">Baltic states</a>, Russia having threatened to revisit the legality of their <a href="http://www.euractiv.com/sections/europes-east/russian-judiciary-questions-legality-baltic-countries-independence-315906">1991 declaration of independence</a> while also raising fears of a Russian invasion (however unlikely). The spectre of <a href="http://www.themoscowtimes.com/news/article/russian-foreign-ministry-official-warns-of-threat-of-nuclear-expansion/520928.html">nuclear conflict</a> has also made an unwelcome appearance.</p>
<p>Meanwhile, Russia is trying to maintain influence in the Balkans by whatever means necessary. On July 9 2015 it <a href="http://www.aljazeera.com/news/2015/07/russia-vetoes-genocide-resolution-srebrenica-150708150057291.html">vetoed</a> an attempt at the UN to recognise the 1995 Srebrenica massacre of Muslim men and boys as an act of genocide. That was unsurprising given Russia’s close relations with Serbia, but it was a deeply unwise act of signalling, since it only fed perceptions of Russia as anti-Islamist. Once again, Russia ended up on the side opposing justice and reconciliation – necessary components of any post-conflict transformation. </p>
<p>That same destructive bent has been further laid bare in <a href="http://rt.com/business/russia-greece-matviyenko-gazprom-963/">Greece</a>, where Russia has been quick to take advantage of the EU’s homegrown problems. Meetings between Putin and the Greek Prime Minister, Tsipras, in April and June 2015, raised fears that Greece would break the EU’s sanctions regime against Russia. Most recently, Greece has admitted signing a <a href="http://www.independent.co.uk/news/world/europe/greece-debt-crisis-greece-admits-it-did-sign-a-gas-pipeline-deal-with-russia-10381441.html">gas pipeline deal</a> with Russia worth two billion Euros. </p>
<h2>Mischief-making</h2>
<p>Looking over even just a little of the last year’s foreign policy, it’s clear that Russia feels under threat from a number of directions – and indeed, in some ways, it is. Russia does not have the resources, whether material or cultural, to sustain the array of questionable relationships it has gotten itself into, particularly since not all of them are guaranteed to serve its national interest.</p>
<p>At the same time, Russia cannot be credited for all the good or blamed for all the bad. Its greatest foreign policy success has lain in recognising the weaknesses and concerns of others. Its main weakness lies in exploiting them for its own ends. </p>
<p>It is not Russia’s fault, for instance, that the EU is in crisis, its future uncertain. But the year of Russian foreign policy since the MH17 disaster has been more about meddling, undermining and mischief-making than constructive dialogue and helping others mend their fences. </p>
<p>Until Russia starts to use its power and influence to find solutions, the world will always see it as a problem.</p><img src="https://counter.theconversation.com/content/44169/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maxine David does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Russia’s response to the MH17 disaster came close to making it an international pariah – and an ensuing year of madcap foreign policy has only made things worse.Maxine David, Lecturer in European politics, University of SurreyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/338852014-11-06T19:23:17Z2014-11-06T19:23:17ZGrattan on Friday: Game of cat-and-bear as Abbott pursues Putin<figure><img src="https://images.theconversation.com/files/63865/original/92s3y7sx-1415274264.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Prime Minister of The Netherlands Mark Rutte reacts as he listens to Australian Prime Minster Tony Abbott, in Canberra.</span> <span class="attribution"><span class="source">AAP Image/Reuters POOL, David Gray</span></span></figcaption></figure><p>The Russians have started coming. On Thursday, an aircraft with about 80-90 Russians arrived in preparation for the G20 Leaders’ Summit in Brisbane. There will be four more official planes, including President Vladimir Putin’s, a back-up, and one for cargo.</p>
<p>As Team Russia assembles, Tony Abbott and Putin are playing cat-and-bear. Alexander Odoevskiy, second secretary at the Russian embassy, says that last week Australia put a formal request to Moscow for the Prime Minister to have a bilateral with the President at APEC in Beijing next week. Odoevskiy does not know the answer.</p>
<p>Abbott originally <a href="https://theconversation.com/abbott-vows-to-shirt-front-putin-as-russian-diplomat-recalls-better-times-32889">threatened to “shirt-front”</a> Putin in Brisbane, which never seemed a good idea. More sensibly, he is now aiming to bring forward the conversation about the MH17 investigation.</p>
<p>As Abbott <a href="http://www.theaustralian.com.au/national-affairs/foreign-affairs/vladimir-putin-cant-duck-tony-abbotts-mh17-message/story-fn59nm2j-1227114014390">said to The Australian</a> this week: “What I won’t be doing is disrupting the sessions of the G20 with a private argument between Australia and Russia.”</p>
<p>After his Thursday talks with visiting Dutch Prime Minister Mark Rutte, focusing on MH17, Abbott told a joint news conference: “One way or another, I will take the chance to speak to the Russian President sometime over the next week or so. I’ll be in Beijing with him at the APEC conference, then of course we’re expecting him at the G20 conference in Brisbane.</p>
<p>"What I’ll be saying to him is that Australia expects full Russian co-operation with the [MH17]investigation. We don’t want the investigation ridiculed, we don’t want the investigation compromised or sabotaged…</p>
<p>"Russia as a member of the international community owes it to the world, owes it to humanity, to ensure that justice is done and wherever possible the perpetrators of this crime are brought to justice.”</p>
<p>Rutte has already delivered that message face-to-face to Putin, as has Foreign Minister Julie Bishop. Abbott will get the same answer as Putin gave to Bishop: that MH17 was downed over Ukraine, but he’ll use what influence he has.</p>
<p>But the PM wants to personally have the conversation, not least for domestic political reasons, including that he’s built up expectations of what he’ll say. Opposition Leader Bill Shorten has also put Abbott under pressure with his hard line on Putin.</p>
<p>International stages, abroad and at home, will dominate the Prime Minister’s attention over the next couple of weeks. He’s won marks earlier in this area, but every performance poses new tests, of which one is being seen to deliver a tough message to Putin without having the G20 meeting overshadowed.</p>
<p>Abbott leaves on Sunday for APEC, which will be followed by the East Asia summit in Myanmar, before he returns to host the G20 on the weekend of November 15-16. </p>
<p>In Beijing next week, Chinese President Xi Jinping is set to formally launch China’s new regional bank, the Asian Infrastructure Investment Bank, on which Australia has been caught awkwardly between the United States and China.</p>
<p>Ministers were split on whether Australia should join, with Treasurer Joe Hockey and Trade Minister Andrew Robb in favour and Foreign Minister Julie Bishop opposing – and carrying the day.</p>
<p>The deadline for the initial sign-up has passed. For the time being Australia is staying out. There is concern over governance issues but also the United States, which strongly lobbied Australia, is worried the bank will be used to extend China’s strategic influence in the region.</p>
<p>Abbott, with an eye to being in Beijing, is stressing there is no final decision against joining the bank - Australia wants further discussions about governance and transparency. He said this week: “We haven’t decided not to join. We would like to join but we want to join a multilateral institution, but not one that is basically owned and operated by China.”</p>
<p>Those in official circles who want Australia to join believe that’s Abbott’s inclination too.</p>
<p>The China bank fracas has seen detailed leaking from both sides about the internal row. The failure to sign up at the first stage represented another defeat for Hockey.</p>
<p>Now that the deadline has gone, the bank issue becomes less urgent. What is urgent over the next few days is landing the Australia-China free trade agreement.</p>
<p>Robb is in Beijing working on finalising the deal, where some thorny matters about agriculture needed to be ironed out.</p>
<p>Xi addresses federal parliament on November 17, straight after the G20. The agreement must be tied up before then. Abbott is confident. The details of the deal will be scrutinised by experts later to see what compromises were made in the quest to deliver on time.</p>
<p>As Abbott prepares to meet other leaders at both APEC and the G20, the government has finally moved this week to provide a more comprehensive response on Ebola.</p>
<p>Its reluctance had been obvious. The path it has taken, using a private medical provider, Aspen Medical, to run a British-constructed hospital in Sierra Leone, fitted its desire to be as hands-off as possible and – perhaps – its general philosophic preference to “go private” in health areas.</p>
<p>Cabinet’s national security committee has done the heavy lifting on the Ebola issue - holding multiple discussions – rather than the full cabinet. That is despite Abbott saying: “This is a public health emergency. It’s not a security emergency. It’s certainly not an economic emergency.”</p>
<p>The NSC’s brief has become very wide since national security issues came to the fore. Soon, the wits around the government will be comparing it with Kevin Rudd’s gang of four.</p>
<p>Ebola, including its potential economic impact (some experts are considerably more pessimistic than Abbott), is expected to be canvassed at the G20, though not as an agenda item.</p>
<p>After having been pressed hard by the US and Britain to put resources on the ground, Abbott had to make a credible commitment before he met Barack Obama and David Cameron. Not that they would have shirt-fronted him or anything. </p>
<p><strong>Listen to the latest Politics with Michelle Grattan podcast, with Transparency International’s Maggie Murphy, <a href="http://michellegrattan.podbean.com/e/maggie-murphy/">here</a>.</strong></p>
<iframe src="https://www.podbean.com/media/player/audio/postId/5359487/url/http%253A%252F%252Fmichellegrattan.podbean.com%252Fe%252Fmaggie-murphy%252F/initByJs/1/auto/1" width="100%" height="100" frameborder="0" scrolling="no"></iframe><img src="https://counter.theconversation.com/content/33885/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Russians have started coming. On Thursday, an aircraft with about 80-90 Russians arrived in preparation for the G20 Leaders’ Summit in Brisbane. There will be four more official planes, including President…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/332062014-10-20T12:24:39Z2014-10-20T12:24:39ZJulie Bishop shows the boys how it’s done<figure><img src="https://images.theconversation.com/files/62242/original/34tr8n33-1413805182.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Julie Bishop says Russian President Putin had responded "very constructively" to her appeal about MH17.</span> <span class="attribution"><span class="source">AAP/Richard Wainwright</span></span></figcaption></figure><p>Once again Julie Bishop has demonstrated she can lay claim to be currently the best performing minister in cabinet.</p>
<p>On her recent overseas trip, Foreign Minister Bishop secured an apparently useful meeting with Russian President Vladimir Putin to press for fresh access to the MH17 site. Then in Baghdad she made a breakthrough for an agreement to get Australian special forces into Iraq, where they will train and mentor that country’s security forces.</p>
<p>With the winter approaching in Ukraine, it is especially vital to get Australian, Dutch and Malaysian experts back to the crash site for a final retrieval of remains and possessions.</p>
<p>After a conversation on the margin of the Asia Europe Meeting in Milan, lasting nearly half an hour, Bishop said Putin had responded “very constructively” to her appeal. She also urged him to ensure full Russian co-operation with the independent investigation into the downing of the plane, and she said he had agreed.</p>
<p>Bishop, representing Australia at the meeting, was operating in unusual circumstances, just after Tony Abbott’s threat to “shirt-front” Putin at the G20 next month. Certainly her approach was more subtle than the wild words that had come from Australia earlier last week.</p>
<p>Spokesman for the Russian embassy Alexander Odoevskiy says that “it is quite rare that the President talks to a foreign minister – it’s not the day-to-day practice. We can assume he talked to her as representative of the Prime Minister”.</p>
<p>The proof of her persuasiveness will be in Putin’s follow through; that will depend not just on whether he means what he said but also what he can actually deliver on the ground. But at least the vibes seem positive. If some tangible progress can be made before the G20, that would also be useful diplomatically for lowering the temperature around the Brisbane meeting.</p>
<p>Her latest effort in relation to MH17 followed Bishop’s impressive performance at the United Nations Security Council in the wake of the downing, when Australia put forward its resolution.</p>
<p>In Baghdad Bishop certainly did well. Progress on an agreement for the special forces’ entry had been bogged down for weeks.</p>
<p>This agreement now seems on track to be sorted speedily - although sources stress there is still further work to be done and some doubt remains about precisely how long that will take. There is now, with Bishop giving the impression it’s essentially fixed, an even greater political imperative to have the last detail tied up as soon as possible.</p>
<p>Bishop was assisted by the timing – the Iraqis finally got in place ministers for defence and the interior. As she told the ABC, this was “an important part of the finalisation of arrangements with the Iraqi government”.</p>
<p>Assuming the special forces get in quickly, Bishop will win kudos for doing what her colleague the Defence Minister, David Johnston, didn’t manage to do earlier.</p>
<p>An interesting test now looming for Bishop will be the government’s decision on whether Australia should sign up to the Chinese proposal to establish an Asian Infrastructure Investment Bank, something the United States has been strongly lobbying Australia against. Treasurer Joe Hockey and Trade and Investment Minister Andrew Robb are sympathetic to the Chinese plan; Bishop is suspicious of the bank’s governance arrangements and the danger of China using it to expand its regional influence.</p>
<p>In opposition Bishop, swallowing her disappointment at having to give up the shadow treasurer post after criticism of her performance, settled into the foreign affairs job and started building knowledge and contacts.</p>
<p>In government, the learning curve has inevitably been extremely steep but, unlike some of her colleagues, Bishop has so far climbed it with a mostly sure grip.</p><img src="https://counter.theconversation.com/content/33206/count.gif" alt="The Conversation" width="1" height="1" />
Once again Julie Bishop has demonstrated she can lay claim to be currently the best performing minister in cabinet. On her recent overseas trip, Foreign Minister Bishop secured an apparently useful meeting…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/315132014-09-10T09:25:18Z2014-09-10T09:25:18ZDamage to the cockpit gives a clue to loss of flight MH17<p>Investigations into the downing of Malaysia Airlines <a href="https://theconversation.com/au/topics/flight-mh17">flight MH17</a> have revealed the aircraft’s cockpit was punctured by a number of “high-energy objects”.</p>
<p>The Dutch Safety Board has revealed the findings this week in a <a href="http://www.onderzoeksraad.nl/en/onderzoek/2049/investigation-crash-mh17-17-july-2014/preliminary-report/1562/preliminary-report-points-towards-external-cause-of-mh17-crash#fasen">preliminary report</a> into the downing of the passenger aircraft in the Ukraine on July 17. The Boeing 777 had just left Amsterdam airport with 283 passengers and 15 crew on board, heading for Kuala Lumpur airport in Malaysia.</p>
<p>The report confirms that the flight was proceeding as planned, at 33,000 feet and above the level of the restricted airspace over the Ukraine. It was communicating with all relevant air traffic controllers until about 1.20pm local time when the MH17 air crew stopped responding.</p>
<p><strong>See: <a href="https://theconversation.com/infographic-facts-about-flight-mh17-29400">MH17 Infographic</a></strong></p>
<p>The wreckage of the aircraft was later found spread over a large area (10km by 5km) near Rozsypne and Hrabove in eastern Ukraine, an area held by separatist rebel forces.</p>
<h2>No malfunction of aircraft</h2>
<p>The recovered flight data and voice recorders showed no alert or malfunction in the aircraft and the report says the crew “gave no indication that there was anything abnormal with the flight”.</p>
<p>So far the damage in the area of the cockpit is giving the strongest clue to what caused the accident. Australian Prime Minister Tony Abbott said the findings in the preliminary report are consistent with the <a href="http://www.minister.infrastructure.gov.au/wt/releases/2014/September/wt166_2014.aspx">Australian government’s view</a> “that MH17 was shot down by a large surface-to-air missile”.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/58664/original/48x3fdtf-1410327181.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/58664/original/48x3fdtf-1410327181.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/58664/original/48x3fdtf-1410327181.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=342&fit=crop&dpr=1 600w, https://images.theconversation.com/files/58664/original/48x3fdtf-1410327181.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=342&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/58664/original/48x3fdtf-1410327181.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=342&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/58664/original/48x3fdtf-1410327181.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=430&fit=crop&dpr=1 754w, https://images.theconversation.com/files/58664/original/48x3fdtf-1410327181.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=430&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/58664/original/48x3fdtf-1410327181.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=430&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Part of the inside cockpit roof showing penetration by objects from outside.</span>
<span class="attribution"><a class="source" href="http://www.onderzoeksraad.nl/en/beeldbank/1155/investigation-crash-mh17-17-july-2014">DCA/Dutch Safety Board</a></span>
</figcaption>
</figure>
<p>The photographs (one above) included in the Dutch report clearly show this damage is atypical to that evident on the rest of the fuselage skin surfaces, which can be seen in other photographs of the wreckage.</p>
<p>These new photographs clearly show sections of forward fuselage structure with multiple holes where the skin is bent inwards around the circumference of each hole. This is consistent with the penetration of small high-energy projectiles, which would be the case with the proximity detonation of the warhead of a missile.</p>
<p>There is also evidence of similar penetrations in the cockpit floor. This suggests some of the projectiles from any warhead entered through the fuselage skin above the cockpit and then exited through the cockpit floor.</p>
<h2>Under the cockpit floor</h2>
<p>Below the cockpit floor of the Boeing 777 – as in most modern airliners – is the Electronics and Engineering (E&E) compartment, which houses most of the aircraft’s avionics, flight-management computers and other critical “<a href="https://theconversation.com/the-black-box-an-australian-invention-that-nearly-didnt-happen-25435">black boxes</a>”. Penetration of the E&E compartment by the high-speed projectiles would no doubt have caused catastrophic damage to critical control systems.</p>
<p>The evidence from the cockpit voice recorder and flight data recorder clearly show the aircraft operating quite normally with nothing unusual at all up to the abrupt end of the recording. This suggests that right up to the time the power supply to the recorders was terminated operations were normal. </p>
<p>It would be easy to jump to a conclusion from that evidence that the effect of any missile detonation was indeed rapid. Yet there is a need for the investigation to continue to provide answers to other questions.</p>
<p>For example, it is possible, although maybe unlikely, that shrapnel from any missile severed the power supply to the recorders, causing them to stop recording, but the aircraft may have continued flying for a short time. The penetration of the cockpit area by shrapnel from a missile may also explain why the crew were unable to get any mayday call away if that were the case.</p>
<h2>What the pilots can still tell</h2>
<p>Post-mortem examination of the pilots, if their bodies were among those recovered from the scene, would also shed important light on those last critical seconds. </p>
<p>The identification of the bodies that have been recovered from the crash site is apparently continuing. There is still no word as to whether the bodies of any of the pilots or other cockpit crew have been found, identified and examined.</p>
<p>While the report says the distribution of the pieces show the aircraft “broke up in the air”, the wreckage pattern itself will provide clues to those vital last few seconds.</p>
<p>Other parts of the aircraft have been found scattered across the crash site, including parts of the wings, both engines, landing gear and a portion of fuselage. The vertical tail was also located still attached to the upper rear of the fuselage. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/58676/original/zq9twzq4-1410339157.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/58676/original/zq9twzq4-1410339157.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/58676/original/zq9twzq4-1410339157.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=333&fit=crop&dpr=1 600w, https://images.theconversation.com/files/58676/original/zq9twzq4-1410339157.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=333&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/58676/original/zq9twzq4-1410339157.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=333&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/58676/original/zq9twzq4-1410339157.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=418&fit=crop&dpr=1 754w, https://images.theconversation.com/files/58676/original/zq9twzq4-1410339157.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=418&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/58676/original/zq9twzq4-1410339157.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=418&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The last location of the aircraft in flight taken from the flight data recorder (FDR). Wreckage distribution is grouped per section of the aircraft.</span>
<span class="attribution"><a class="source" href="http://www.onderzoeksraad.nl/en/beeldbank/1155/investigation-crash-mh17-17-july-2014?show=2347">Dutch Safety Board</a></span>
</figcaption>
</figure>
<p>It is of interest too that the area map of the flight path in the report showed the main accident scene many degrees off the flight path the aircraft was supposedly on.</p>
<p>This may have been due to simple errors in the depiction on the map. But if the map was accurate, it opens speculation that the aircraft did not immediately or completely break up when the missile detonated.</p>
<p>If so, the heavy components, in particular the engines, would most likely have followed ballistic trajectories to the ground on roughly the same bearing as the direction of flight. </p>
<h2>Lessons to be learned</h2>
<p>For those who are only interested in bringing those who perpetrated this heinous crime to justice, the rest of the investigation may appear somewhat academic. But it is important to know exactly what took place, in order to make sure all lessons are learned.</p>
<p>For example, if the aircraft did fly on, for any time at all, but the recorders stopped recording due to power failure, recorder design might need to be reviewed to prevent that happening in future. Understanding what happens to airliners when attacked by missiles will also very usefully inform future airliner and aircraft systems design. </p>
<p>Aviation safety has evolved over the past 100 years by learning from the failures that have occurred. Learning all that can be learnt from this disaster will ensure all those lives were not lost entirely in vain.</p>
<p>There seems no doubt the governments involved in the investigation will allow it to run its natural course. This must include the recovery of all the wreckage from the field so that proper forensic analysis can be carried out.</p>
<p>The longer that takes, the less will be learned with certainty from this tragedy.</p><img src="https://counter.theconversation.com/content/31513/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Geoffrey Dell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Investigations into the downing of Malaysia Airlines flight MH17 have revealed the aircraft’s cockpit was punctured by a number of “high-energy objects”. The Dutch Safety Board has revealed the findings…Geoffrey Dell, Associate Professor/Discipline Leader Accident Investigation and Forensics, CQUniversity AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/313842014-09-08T05:26:30Z2014-09-08T05:26:30ZMalaysia Airlines problems run far deeper than the crashes<p>Following the catastrophic losses of flights <a href="https://theconversation.com/uk/topics/mh370">MH370</a> over the Indian Ocean and <a href="https://theconversation.com/uk/topics/mh17">MH17</a> over Ukraine, Malaysia Airlines (MAS) has <a href="http://www.nytimes.com/2014/08/30/business/international/malaysia-airlines-to-cut-30-of-work-force.html?_r=0">received a bailout</a> of nearly £1.2 billion from the Malaysian government. The airline is to be de-listed from the stock exchange and taken over entirely by <a href="http://www.khazanah.com/">Khazanah</a>, the government’s investment arm. As part of the restructuring, 6,000 jobs – or 30% of the workforce – will be axed, along with yet-to-be-announced cuts to unprofitable routes and the appointment of a new chief executive. </p>
<p>With yet another attempt at reform, MAS employees <a href="http://uk.reuters.com/article/2014/08/27/uk-malaysia-airlines-staff-idUKKBN0GQ27K20140827">themselves joke</a> about that same circus with different clowns. And Khazanah is almost wishful about the promised overhaul, as if this has to be believed to be seen. The government <a href="http://www.thestar.com.my/News/Nation/2014/08/29/Najib-confident-MAS-turnaround/">has insisted</a> that the cash injection is not a bailout, but an “investment” to turn MAS around for a possible re-listing in the future. Call it what you may, but the airline has been burning cash and receiving intravenous drips for years amounting to billions of pounds, and was already teetering before the twin disasters.</p>
<h2>Too prestigious to fail?</h2>
<p>As in most countries, the airline is a symbol of national pride. Most Malaysians believe it will never be allowed to fail, never mind the record losses and the poor taxpayer. Because of this belief, emboldened MAS unions had been stonewalling staff and wage cuts for years. That the airline is a bloated organisation is beyond argument; it has a staff count comparable to bigger and more profitable carriers such as Cathay Pacific and Singapore Airlines. </p>
<p>The unions’ belligerence included <a href="http://www.bbc.co.uk/news/business-17934467">torpedoing the proposed share swap</a> in 2012 between MAS and AirAsia, the successful upstart budget carrier that shows up everything that’s wrong with Malaysia Airlines. To resist lay-offs and change, the <a href="http://www.themalaysianinsider.com/malaysia/article/pm-to-review-mas-airasia-deal-says-mas-union-official">unions even threatened</a> to withdraw support for the government in the run-up to the 2013 general elections. By all accounts, they succeeded, and the AirAsia tie-up was called off. </p>
<p>But those heady days for the unions are numbered. MH370 and MH17 might just have been the tipping point. The new plan to slash the fat appears uncompromising, and rightly so. And one of the new chief executive’s key tasks will be to tame the unions and convince them to place the company’s long-term survival interests above their own. </p>
<p>A bloated and unproductive workforce isn’t the only problem. The airline has long been milked by vested interests keen to exploit its links with the government and ruling party. Critics have pointed to onerous contracts with local suppliers, including a <a href="http://www.themalaysianinsider.com/malaysia/article/why-punish-6000-mas-staff-over-putrajayas-incompetence-asks-anwar">25-year deal</a> with a well connected company to cater in-flight meals. Whether such contracts will be re-negotiated remains to be seen. </p>
<h2>The problem with regional focus</h2>
<p>Then there is the issue of routes. MAS once flew to Buenos Aires via Johannesburg and New York via Stockholm. It is doubtful if such prestige routes were launched on the basis of hard-nosed profitability assessments. These loss-making flights have since been dropped. </p>
<p>As part of the new reforms, there are indications that marquee routes such as Paris and Amsterdam may have to be reduced or axed as well, along with Istanbul and Dubai. Profits have been hammered by brutal competition with the deep-pocketed Gulf carriers that have better networks and products. </p>
<p>MAS will henceforth concentrate on regional routes, says Khazanah. Presumably, that means a focus on China, Japan, India, Australia and south-east Asia. But that brings the airline into head-long competition with regional specialists AirAsia and AirAsia X, who fly not just backpackers but increasingly also businessmen. </p>
<p>Without a culture of keeping both eyes on costs, this is a fight MAS cannot win. There can only be one outcome: it will have to discount heavily to fill seats, and this will damage yields and profits severely. A check with online-travel sites already shows up MAS fares as among the cheapest on many itineraries, yet it is struggling to attract passengers due to the lingering effects of MH370 and MH17.</p>
<p>Those fears will pass soon enough. But the structural problems will not. These will take years for senior management to fix, requiring the most uncompromising professionalism in staying abreast of the competition, managing costs and the unions, as well as resisting political interference. No doubt the process will be painful. This may well be the last chance, and the promised changes will have to be seen to be believed.</p><img src="https://counter.theconversation.com/content/31384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alan has done some consultancy work for AirAsia in the past. </span></em></p>Following the catastrophic losses of flights MH370 over the Indian Ocean and MH17 over Ukraine, Malaysia Airlines (MAS) has received a bailout of nearly £1.2 billion from the Malaysian government. The…Alan Khee-Jin Tan, Professor of Law, National University of SingaporeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/311542014-09-02T12:51:29Z2014-09-02T12:51:29ZWhat Malaysia Airlines must do to survive (and maybe even thrive again)<p>Malaysia Airlines was hit with two extraordinary crises this year that have rocked the confidence of customers and left the company struggling to manage the damage. Lone passengers are posting <a href="http://www.news.com.au/world/asia/malaysia-airlines-deserted-by-travellers-and-cabin-crew/story-fnh81fz8-1227038723713">pictures of otherwise empty planes</a> on social media, cabin crew are leaving and commentators are <a href="http://www.news.com.au/travel/travel-updates/higher-commissions-fewer-passengers-the-struggle-to-save-malaysia-airlines-deepens/story-e6frfq80-1227032981979">questioning its ability to survive intact</a>. It is a challenge, certainly, but not an impossible one.</p>
<p>The disasters which befell the airline were extraordinary, shocking events. First, the <a href="https://theconversation.com/uk/topics/flight-mh370">disappearance of flight MH370</a> in March with 239 people on board, then the <a href="https://theconversation.com/uk/topics/flight-mh17">shooting down of MH17 over Ukraine</a> in July with 298 lives lost. Both were mysterious and tragic accidents, from a company with a previously unblemished safety record. And crucially, both incidents brought the airline a mass of criticism over how it responded.</p>
<p>The financial impact has been clear. In March, after MH370 disappeared, the firm came under <a href="http://news.nationalpost.com/2014/03/25/a-storm-of-anger-and-sorrow-mh370-victims-families-descend-on-malaysian-embassy-in-beijing/">fierce pressure from the Chinese victims’ relatives</a> and consequently sales from China plummeted 60%. There has also been a sustained decline in the company’s share price, which lost 21% since August 2013. </p>
<p>To be fair, the airline was already experiencing financial problems with losses of MYR1.17 billion (£222m) in 2013, partly as a result of fierce competition from low-cost operators. But losses in 2014 will be much worse and the airline’s major shareholder, Khazanah Nasional (Malaysia’s sovereign wealth fund) has announced plans to address this by <a href="http://www.bbc.co.uk/news/business-28978881">buying up the remaining 31% of the shares to suspend trading</a>, getting rid of 6,000 staff and appointing a new chief executive.</p>
<h2>Rebuilding response</h2>
<p>It is all a powerful reminder that how a company handles a crisis can determine whether or not the company survives. Union Carbide never overcame the loss of shareholder trust and the cost of damages imposed on it <a href="http://news.bbc.co.uk/onthisday/hi/dates/stories/december/3/newsid_2698000/2698709.stm">after the Bhopal disaster in 1984</a>. It was eventually bought out by Dow Chemical. </p>
<p>BP’s share price plummeted by more than 50% in the month after the <a href="https://theconversation.com/deepwater-horizon-four-years-on-and-offshore-safety-remains-questionable-25471">Deepwater Horizon incident</a> in 2010. Costs imposed by US courts have reached nearly £30bn. The company’s crisis response was widely criticised and resulted in the <a href="http://www.bbc.co.uk/news/10360084">sacking of CEO Tony Hayward</a>.</p>
<p>In order to survive, Malaysia Airlines needs to learn from its mistakes. It must develop a flexible crisis response capability; respond to the emotional needs of its public, not just their informational needs; and conduct a post-mortem on how they can handle crises better in future. The company also needs to rebuild the relationship with its global passenger base in order to refill its planes, particularly the Chinese and the Dutch. This requires a careful nurturing of trust first in its domestic market, then in its international markets. </p>
<p>As far as practical measures go, as a state-owned airline, all government business air transport should, from now on, be mandated through Malaysia Airlines, as should that for all employees working on Malaysian government contracts. The airline should then offer favourable rates for volume procurement contracts to other governments. </p>
<p>It should also reward its loyalty card holders and frequent flyers with more favourable rates, but for a fixed time period only. Finally, a special promotional fixed period offer should be made to other volume buyers, including physical and online travel agents, which is more attractive than that of similar competition such as Emirates, Singapore and Cathay Pacific. </p>
<p>The airline should immediately give up all loss-making airport slots and sell off any old planes. However, while tackling supply by lowering costs will help, stoking demand is fundamental in the current climate. This is not a simple process, given that people now associate Malaysia Airlines with danger and tragedy.</p>
<h2>Trust up</h2>
<p>To survive this crisis they need to reposition the brand. They should take advantage of the fact that they are wholly owned by the government, as this should instill a sense of trust with the public in Malaysia at least. In the interim, they need to publicise what degree of responsibility they will bear and the changes they have now made to improve safety. They could, through government contacts, commission a fast but independent audit into their safety record to provide content for promotional messages. </p>
<p>Crucially, Malaysia Airlines must have a better crisis management system in place should disaster strike once again. It faced intense criticism of its communications abilities after MH370 – even <a href="http://www.nydailynews.com/news/world/malaysia-airlines-text-messages-victims-families-bad-news-article-1.1732295">informing relatives families via text message</a> – and things were only marginally better after MH17. Its recovery plans now have to battle through the perceptions created in those days and weeks when planning, transparency, responsibility and decisiveness could have made such a difference. </p>
<p>Repositioning the airline will require a significant communications budget, top global communications agencies, and no small degree of honesty. They might also need to find institutional investment partners if equity gets tight as it struggles with a new supply/demand curve and to fill empty seats. The company should be careful, however, to resist simply discounting prices long-term and across the board, as this would drive a decline in the firm’s image. It won’t be easy, and it will probably take several years before Malaysia Airlines can regain passengers’ esteem on an even footing with rivals.</p><img src="https://counter.theconversation.com/content/31154/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Baines does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Malaysia Airlines was hit with two extraordinary crises this year that have rocked the confidence of customers and left the company struggling to manage the damage. Lone passengers are posting pictures…Paul Baines, Professor of Political Marketing, Programme Director, MSc in Management, Cranfield UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/306322014-08-19T10:11:32Z2014-08-19T10:11:32ZWhy conspiracy theorists won’t give up on MH17 and MH370<p>A huge criminal investigation is underway in the Netherlands, following the downing of flight MH17. Ten Dutch prosecutors and 200 policemen are involved in collecting evidence to <a href="http://www.bbc.co.uk/news/world-europe-28808832">present at the International Criminal Court</a> in the Hague. The investigation may take time to find the real perpetrators, but that hasn’t stopped conspiracy theorists from speculating.</p>
<p>Human beings are pattern-seeking creatures. We take the raw material from our senses, and shape it into descriptions, theories and predictions. The conspiracies that now surround MH17 and prior to that flight MH370 are an example of the same urge to order. </p>
<p>In the case of MH370, which crashed in the southern Indian Ocean, the disappearance of an airliner with 239 people on board, begs for explanation, and so the theorists step in and start chattering on their blogs. </p>
<p>The speculations around the destruction of MH17 have a slightly different character, perhaps because “the facts” seem to be clearer, and the key agents more obvious. After all, the grammar of any conspiracy theory about an event begins with the “who benefits” question.</p>
<h2>Searching for logic</h2>
<p>So who would have wanted the second Malaysia Airlines plane to be shot down? The Russians and the Ukrainian rebels don’t have much to gain from being portrayed as the murderers of 298 people. So if there wasn’t an advantage then they wouldn’t have done it, which is where the wheels of conspiracy logic then <a href="http://www.theguardian.com/commentisfree/2014/jul/22/mh17-five-bizarre-conspiracy-theories-zionist-plots-illuminati-russian-tv">begin to grind</a>. All the explanations then assume that the guilt of the Russians and their proxies is what “they” want us to believe, but that the truth is more complicated.</p>
<p>The next obvious candidates are the Ukrainian government, attempting to swing international sympathy against the rebels and their supporters. Or, that the Ukrainians were actually trying to kill Vladimir Putin, whose official jet was flying back over Europe at the same time, and bore similar markings to MH17. </p>
<p>Israel is invoked in many conspiracies of course, so there are suggestions that the jet was shot down in order to distract attention from the first day of the offensive in Gaza. Another account then focuses on the fact that there were delegates from a conference about AIDS on board, and hence that they were killed in order to prevent AIDS research from making progress.</p>
<p>The biggest swathe of conspiracies suggests that MH370 and MH17 are actually the <a href="http://au.ibtimes.com/articles/560542/20140726/malaysia-airlines-mh17-mh370-diego-garcia-ukraine.htm">same plane</a>. The first plane, they claim, was hijacked and flown somewhere secret to be stored for a while. It was then rigged with explosives, flown over Donestsk and blown up in order to implicate one of the parties. A large amount of evidence about expired passports, parachutes seen descending from the plane, and photos of the damage on parts of the fuselage are all deployed in order to support suggestions as to who might be responsible – the American intelligence agency CIA, organised crime, the Illuminati and so on.</p>
<p>Some of these accounts are offensive, or mad, or both. There are others who are busy claiming that the mad and offensive conspiracies are being disseminated by those who are trying to distract us from seeing “the truth”. Anyone who takes a position on a conspiracy is entangled within it, whether they like or not. And that includes this piece, of course.</p>
<p>As Mel Gibson’s character Jerry Fletcher says in the 1997 movie Conspiracy Theory: </p>
<blockquote>
<p>A good conspiracy is unprovable. I mean, if you can prove it, it means they screwed up somewhere along the line.</p>
</blockquote>
<h2>All conspiracy theorists are not mad</h2>
<p>Now Jerry Fletcher might sound crazy, but consider the alternatives. The first would be to say that there are no conspiracies. This is clearly mad, because we know that powerful forces do try to arrange the world for their benefit. </p>
<p>The second <a href="http://www.history.com/topics/vietnam-war/gulf-of-tonkin-resolution">gulf of Tonkin incident</a> which justified US involvement in Vietnam was proven to be a fiction, and there is plenty of evidence about <a href="http://www.strategicstudiesinstitute.army.mil/pdffiles/PUB1066.pdf">“false flag”</a> and similar covert operations activities by everyone from the CIA to the British secret service MI6. Add to that the activities of <a href="https://theconversation.com/ignore-the-global-elites-and-their-davos-spectacle-22213">global elites at Davos</a> and the routine deceit practised by capitalist corporations and you would be naive to believe that the world is what it seems.</p>
<p>The other alternative is less exciting. That would be to say that there are coincidences and mistakes, and that they can shape the world too. </p>
<p>The fact that the two jets just happened to be from the same airline, or that an under-trained, trigger-happy separatist couldn’t recognise a passenger plane, are events which are disqualified within conspiracy thinking. </p>
<p>Their assumption is that there is a logic to events, a pattern to the world, and that stuff doesn’t just happen. It is only in this sense that conspiracy theorists are mad, because most of their reasoning is perfectly sane. The problem is distinguishing the stupid accidents from the cunning plans, and that is something that none of us are terribly good at.</p><img src="https://counter.theconversation.com/content/30632/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Martin Parker does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A huge criminal investigation is underway in the Netherlands, following the downing of flight MH17. Ten Dutch prosecutors and 200 policemen are involved in collecting evidence to present at the International…Martin Parker, Professor of Organisation and Culture, University of LeicesterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/306332014-08-19T05:17:02Z2014-08-19T05:17:02ZHere’s how you find out who shot down MH17<p>More than a month has passed since Malaysia Airlines flight MH17 crashed with the loss of all 298 lives on board. But despite the disturbances at the crash site near the small town of Grabovo, near Donetsk in eastern Ukraine, it is still possible to piece together what happened.</p>
<p>In the immediate aftermath it was reported that the aircraft had been shot down by a surface-to-air missile. Shortly after the crash Igor Girkin, leader of the separatists, <a href="http://www.theepochtimes.com/n3/805200-igor-girkin-commander-of-donetsk-peoples-army-igor-strelkov-says-they-shot-down-malaysia-airlines-mh17-photos/">took credit for the incident</a>, claiming his troops had shot down what was assumed to be a Ukranian military transport. After learning it was a civilian airliner he later denied any involvement, claiming his forces had no weapons capable of shooting down an aircraft flying at 33,000ft, as MH17 was.</p>
<p>In the weeks since there have been <a href="http://www.theguardian.com/world/2014/jul/23/mh17-ukraine-separatists-buk-missile-system">claims</a> and <a href="http://www.bbc.co.uk/news/world-europe-28458324">counterclaims</a> about which side had access to one of the Buk M1 missile launchers thought to be responsible for downing the plane. It’s possible to get nearer the truth of what happened to MH17 by combining evidence from four elements in play the moment the airliner came down: the air traffic control secondary radar systems that monitor the airspace over eastern Ukraine, the flight data recorder (“black box”) carried by the Boeing 777 aircraft, the specification of the Buk M1 missile system, and the wreckage of MH17.</p>
<h2>The view from air traffic control</h2>
<p>The main source of information about aircraft for air traffic controllers is <a href="http://news.bbc.co.uk/dna/place-lancashire/plain/A588684">secondary surveillance radar</a> (SSR). This is a link between an interrogator unit on the ground and a transponder on board an aircraft. The interrogator will connect to any aircraft within its range at least once every four seconds. The aircraft responds with flight information, such as the aircraft’s identification, position coordinates, course, and height. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/56736/original/jv85fthw-1408378251.GIF?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/56736/original/jv85fthw-1408378251.GIF?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/56736/original/jv85fthw-1408378251.GIF?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=325&fit=crop&dpr=1 600w, https://images.theconversation.com/files/56736/original/jv85fthw-1408378251.GIF?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=325&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/56736/original/jv85fthw-1408378251.GIF?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=325&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/56736/original/jv85fthw-1408378251.GIF?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=408&fit=crop&dpr=1 754w, https://images.theconversation.com/files/56736/original/jv85fthw-1408378251.GIF?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=408&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/56736/original/jv85fthw-1408378251.GIF?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=408&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The still-contested area in which MH17 came down.</span>
<span class="attribution"><span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>This information is processed, and correlated with the results of any <a href="http://news.bbc.co.uk/dna/place-lancashire/plain/A588684">primary surveillance radar</a> – the objects detected by beaming out radio waves and recording what is reflected back by solid objects. </p>
<p>This is displayed to the en-route controller, in this case the staff monitoring <a href="http://uksatse.ua/index.php?act=Part&CODE=319&lang=en">Dnipropetrovsk flight information region</a> eastbound, in Ukrainian government-controlled territory. This system will be able to locate a flight’s position to within 500 metres, given (in this case) MH17’s cruising speed of around 600 knots. All this coordinate tracking data will be recorded and stored for investigation purposes. It is highly unlikely that it could have been tampered with.</p>
<h2>Data within the black box</h2>
<p>A <a href="https://theconversation.com/explainer-what-will-mh17s-black-boxes-reveal-29555">flight data recorder</a> (FDR), commonly referred to as the black box, records all instructions sent to any electronic systems on the aircraft. It records flight characteristics such as altitude, speed, commands sent to the engines or control surfaces of the plane such as the rudder, ailerons and flaps, and streams of data from many sensors and on-board computers, including GPS coordinates accurate to within 10 metres. </p>
<p>Usually mounted in the aircraft’s tail section where it is more likely to survive a crash, the recorder is updated several times a second throughout the flight. This information is crucial for accident investigations and to determine safety issues.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/56733/original/x2472nbw-1408377034.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/56733/original/x2472nbw-1408377034.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/56733/original/x2472nbw-1408377034.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=308&fit=crop&dpr=1 600w, https://images.theconversation.com/files/56733/original/x2472nbw-1408377034.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=308&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/56733/original/x2472nbw-1408377034.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=308&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/56733/original/x2472nbw-1408377034.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=388&fit=crop&dpr=1 754w, https://images.theconversation.com/files/56733/original/x2472nbw-1408377034.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=388&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/56733/original/x2472nbw-1408377034.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=388&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The flight data recorder, a crucial part of any investigation.</span>
<span class="attribution"><span class="source">AlliedSignal Aerospace</span></span>
</figcaption>
</figure>
<p>It would be virtually impossible to tamper with the FDR data as it is encoded, and follows a given sequence using set patterns that would reveal any attempt to alter it. Using the black box data it will be possible to pinpoint the coordinates of MH17 when it suffered the catastrophic event to within ten metres, and to demonstrate that this was not caused by any mechanical or electrical failure, or pilot error.</p>
<h2>The missile system</h2>
<p>Intelligence reports have indicated that the missile that brought down MH17 was a Russian <a href="http://www.janes.com/article/40907/missile-profile-9k37-buk">Buk M1 Self Propelled Air Defence System</a>, also known by its NATO reporting name of SA-11 “Gadfly”. Introduced in 1979, its latest updated version is known as the SA-17 “Grizzly”. Both are used by Russia, most of the ex-Warsaw Pact countries, and other nations to which Russia exports weapons. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=668&fit=crop&dpr=1 600w, https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=668&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=668&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=839&fit=crop&dpr=1 754w, https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=839&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/56734/original/39yfjv94-1408377200.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=839&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Buk M1 surface-to-air missile launcher.</span>
<span class="attribution"><a class="source" href="http://commons.wikimedia.org/wiki/File:Buk-M1-2_9A310M1-2.jpg">.:Ajvol:.</a></span>
</figcaption>
</figure>
<p>The <a href="http://www.armyrecognition.com/russia_russian_missile_system_vehicle_uk/9k37_buk-m1_sa-11_gadfly_technical_data_sheet_specifications_information_description_pictures_photos.html">SA-11/SA-17</a> is mounted on tracked vehicles, making it easy to move. Importantly its radar is capable of IFF – that is, identifying an aircraft as friend or foe, or whether it is a commercial – using the same secondary radar transponder as air traffic control. However, the designers also implemented a backup mode that allows missile targeting to operate autonomously, bypassing the IFF safety feature. Used like this, the radar will show all targets in range. In this case, the operator selects one just presses the fire button. Only very basic training is required to operate the system like this. </p>
<p>The missile has a range of 42km (26 miles) and an operational ceiling of 25km (82,000ft). With a speed of 850 metres/sec (1,900mph), the missile could reach MH17 from launch in 11.5 seconds. The warhead is fitted with a proximity fuse which activates 100-300ft (30-90 metres) from its target. This fires a fragmentation charge which results in thousands of pieces of shrapnel accelerating in an spread pattern. The SA-11 is reputed to have a kill rate of 95%, so it is more than capable of downing MH17 even with virtually untrained operators.</p>
<h2>The story told by the wreckage</h2>
<p>The crash site covers an area of around 20 square kilometres near Grabovo, although larger parts of the aircraft are found in a much smaller area. There is little argument that the plane was shot down, so the investigation will focus on the shrapnel damage. By examining the position and angle of holes in the aircraft’s fuselage it will be possible to tell the approximate direction and angle from which the missile hit the airliner. With this information, investigators will be able to trace the reverse trajectory to locate the missile’s point of launch to within 100 metres. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/56735/original/t4srrzx5-1408377436.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/56735/original/t4srrzx5-1408377436.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/56735/original/t4srrzx5-1408377436.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=685&fit=crop&dpr=1 600w, https://images.theconversation.com/files/56735/original/t4srrzx5-1408377436.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=685&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/56735/original/t4srrzx5-1408377436.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=685&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/56735/original/t4srrzx5-1408377436.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=861&fit=crop&dpr=1 754w, https://images.theconversation.com/files/56735/original/t4srrzx5-1408377436.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=861&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/56735/original/t4srrzx5-1408377436.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=861&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The fuselage will be peppered with holes and fragments, which will aid investigators.</span>
<span class="attribution"><span class="source">Author provided</span></span>
</figcaption>
</figure>
<p>Chemical residues on pieces of shrapnel found among the wreckage will confirm whether the warhead was a SA-11/SA-17 missile. And metallurgy analysis of the shrapnel may even yield important information on the specific production batch – does it match the batch of systems supplied to Ukraine, or is it from another unknown batch, potentially from Russia?</p>
<h2>Assembling the Evidence</h2>
<p>So pull all the evidence together – what do you have?</p>
<ul>
<li>The data from air traffic control’s secondary surveillance radar provides MH17’s course and coordinates to within 500 metres.<br></li>
<li>The flight data recorder can show whether or not a component or systems failure, or pilot error that caused the loss, and can pinpoint the aircraft’s position even more accurately.</li>
<li>The specifications of the SA-11/SA-17 missile launcher demonstrates that it is quite capable of destroying an airliner, and that it can if necessary be operated by an inexperienced team, without the safety of an IFF-capable radar.</li>
<li>Evidence gathered from the wreckage will be able confirm whether the missile was an SA-11/SA-17, and help pinpoint the location of the missile when it was fired, and perhaps even confirm if the system was exported abroad or produced for Russian use.</li>
</ul>
<p>The evidence is there to be found, and once all of it is available, it will provide a compelling case against whoever fired upon and brought down flight MH17.</p><img src="https://counter.theconversation.com/content/30633/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Stupples does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>More than a month has passed since Malaysia Airlines flight MH17 crashed with the loss of all 298 lives on board. But despite the disturbances at the crash site near the small town of Grabovo, near Donetsk…David Stupples, Professor of Electrical and Electronic Engineering, City, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/298182014-08-13T01:55:25Z2014-08-13T01:55:25ZThe loss of flight MH17: how much compensation – and who pays?<p>On July 17, 2014, Malaysia Airlines flight 17 (MH17) – an international passenger flight from Amsterdam to Kuala Lumpur – <a href="http://www.malaysiaairlines.com/mh17">crashed</a> in eastern Ukraine. All 298 passengers and crew were killed. It appears likely that the aircraft <a href="http://www.ft.com/intl/cms/s/0/a1dcc628-1010-11e4-90c7-00144feabdc0.html#axzz39thLB6Aq">was hit</a>, through mistake or otherwise, by a <a href="https://theconversation.com/ukrainian-rebels-gain-firepower-but-may-have-blown-their-cause-29388">Buk-M1 ground-to-air missile</a> launched by pro-Russian separatists in that region.</p>
<p>In these circumstances, how much compensation is payable for the death of passengers on board the flight, and who pays? How can the circumstances in which MH17 was brought down be avoided in future? </p>
<p>And what of Malaysia Airlines? Before the crash, the airline was <a href="https://theconversation.com/malaysia-airlines-now-faces-stark-choices-in-a-battle-to-survive-29563">already in trouble</a> following the loss of flight MH370. The airline has just been <a href="http://www.theweek.co.uk/business/mh370/59871/malaysia-airlines-to-be-nationalised-after-mh370-and-mh17-disasters">nationalised</a>.</p>
<h2>Liability for passenger death</h2>
<p>Liability for the death of passengers on board an international flight is determined by reference to international aviation treaties. The 1929 <a href="http://www.jus.uio.no/lm/air.carriage.warsaw.convention.1929/doc.html">Warsaw Convention</a> was the first of these treaties. The most recent is the 1999 <a href="http://www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/">Montreal Convention</a>.</p>
<p>Each air carrier liability treaty since 1929 has been more favourable to the passenger. The Montreal Convention “modernises and consolidates” Warsaw and related legal instruments. It is the most “passenger friendly” treaty in the Warsaw-Montreal regime.</p>
<h2>Which treaty applies?</h2>
<p>The treaty or treaties that apply to passengers on MH17 is determined by finding the same treaty in place at the point of departure and the passenger’s final destination. For MH17 that will generally be the <a href="http://www.icao.int/secretariat/legal/List%20of%20Parties/Mtl99_EN.pdf">Montreal Convention</a>.</p>
<p>MH17 passengers may also be subject to different liability regimes. MH17 crashed while flying from Amsterdam to Kuala Lumpur. The Montreal Convention would apply to passengers on that ticketed one-way or return flight; both Malaysia and the Netherlands are <a href="http://www.icao.int/secretariat/legal/List%20of%20Parties/Mtl99_EN.pdf">parties</a> to that convention.</p>
<p>However, while 236 of the 283 <a href="http://www.malaysiaairlines.com/my/en/site/mh17.html">passengers</a> on board MH17 were of either Dutch or Malaysian nationality, the remaining 47 passengers (including 27 of Australian nationality) were made up of nationalities from eight other nations. </p>
<p>For many passengers on MH17, and regardless of residence, their journey – their “ticketed” journey – may have been more extensive than the Amsterdam-Kuala Lumpur flight and other, less favourable liability regimes may apply. To determine liability, one looks for the same treaty in place at the beginning and end of a passenger’s total journey.</p>
<h2>Liability for passenger death – potentially unlimited</h2>
<p>Article 17 of the <a href="http://www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/">Montreal Convention</a> provides that a carrier:</p>
<blockquote>
<p>… is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.</p>
</blockquote>
<p>Death or injury must be caused by an “accident”. The most widely and generally accepted definition of an accident is set out in the decision in <a href="http://supreme.justia.com/cases/federal/us/470/392/">Air France v Saks</a>, in which the US Supreme Court stated that liability under Article 17:</p>
<blockquote>
<p>… arises only if a passenger’s injury [or death] is caused by an unexpected or unusual event or happening that is external to the passenger.</p>
</blockquote>
<p>Under Article 21 of the Montreal Convention, for damages arising under Article 17 not exceeding 113,100 SDRs (or about US$173,000) per passenger, the carrier cannot exclude or limit its liability. An <a href="https://www.imf.org/external/np/exr/facts/sdr.HTM">SDR</a> or “special drawing right” is an IMF-created international reserve asset based on a basket of four international currencies. A passenger need not prove negligence.</p>
<p>However, a carrier’s liability – Malaysia Airlines’ liability – is potentially unlimited unless it can <a href="http://www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/">prove</a> (and burden of proof is with the carrier) that damage “was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents” or that such damage was solely due to the negligence or other wrongful act or omission of a third party.</p>
<p>And that’s a problem.</p>
<h2>Negligence or wrongful act?</h2>
<p>It may be difficult for Malaysia Airlines to prove that it was not negligent or that it did not commit a wrongful act. The issue is whether MH17 flew within restricted or controlled airspace, or whether it was reasonable, given the conflict below, for it to choose the flight path it did.</p>
<p>In terms of the latter – whether it was reasonable for Malaysia Airlines to choose the flight path it did – airlines clearly had adopted different approaches. Qantas, British Airways and other international carriers had <a href="http://www.ft.com/intl/cms/s/0/00e273e0-1758-11e4-87c0-00144feabdc0.html#axzz39thLB6Aq">stopped flights</a> over the region; Malaysia Airlines (obviously), Air France-KLM, Lufthansa and others <a href="http://www.ft.com/intl/cms/s/0/00e273e0-1758-11e4-87c0-00144feabdc0.html#axzz39thLB6Aq">continued to fly</a> this route. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/56151/original/xxhwww8v-1407735146.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/56151/original/xxhwww8v-1407735146.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/56151/original/xxhwww8v-1407735146.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/56151/original/xxhwww8v-1407735146.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/56151/original/xxhwww8v-1407735146.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/56151/original/xxhwww8v-1407735146.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/56151/original/xxhwww8v-1407735146.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">After the downing of MH17, almost no airlines flew over the war zone (above), but it was a different story before the tragedy.</span>
<span class="attribution"><span class="source">FlightRadar24</span></span>
</figcaption>
</figure>
<p>In essence, was the region a safe place over which to fly? Or was Malaysia Airlines negligent in choosing to fly over a war zone and, thus, is it facing unlimited liability? As one aviation lawyer <a href="http://www.news.com.au/travel/travel-updates/mh17-compensation-could-hit-1nbspbillion-in-latest-disaster-for-malaysia-airlines/story-fnizu68q-1227000111037">has stated</a>:</p>
<blockquote>
<p>It is a million-dollar question and … that will be the big fight.</p>
</blockquote>
<p>It is also a matter that the UN aviation body, the International Civil Aviation Organisation (ICAO), has taken up. ICAO met on July 29 to review risks to civilian aircraft operating to, from and over conflict zones. In typical ICAO fashion, it established a <a href="http://www.icao.int/Newsroom/NewsDoc2014/Joint-Statement-on-Risks-to-Civil-Aviation-Arising-from-Conflict-Zones.EN.pdf">taskforce</a> and convened a “high-level safety conference” in February 2015 to look at ways in which potential risks to civil aviation arising from conflict zones can be mitigated.</p>
<p>As part of its deliberations, the conference may well have cause to consider Article 3 <a href="http://whatis.techtarget.com/definition/bis">bis</a> (a) of the Convention on International Civil Aviation (the <a href="http://www.icao.int/publications/pages/doc7300.aspx">Chicago Convention</a>), to which Ukraine is a <a href="http://www.icao.int/secretariat/legal/List%20of%20Parties/Chicago_EN.pdf">party</a>. This provides that state parties to it:</p>
<blockquote>
<p>… explicitly recognised that every State must refrain from resorting to the use of weapons against civil aircrafts in flight and that, in case of interception, the lives of persons on board and the safety of aircrafts must not be endangered.</p>
</blockquote>
<h2>How big could the bill be?</h2>
<p>Malaysia Airlines was in financial difficulty well before the disappearance of MH370. The disappearance of that flight exacerbated an already <a href="https://theconversation.com/a-season-on-from-mh370-how-is-malaysia-airlines-doing-27208">bad position</a>. The crash of MH17, needless to say, has not improved matters.</p>
<p>It is unsurprising then that, after considering some sort of <a href="http://www.ft.com/intl/cms/s/0/8933c1c2-15aa-11e4-ae2e-00144feabdc0.html#axzz39thLB6Aq">rebranding</a>, Malaysian Airline System Bhd will be delisted and taken private after Malaysia’s sovereign wealth fund Khazanah National Bhd offered to <a href="http://www.bloomberg.com/news/2014-08-08/malaysia-airlines-halts-shares-as-board-prepares-to-restructure.html">buy out</a> minority shareholders for US$429 million – in other words, the airline will be rescued and nationalised. </p>
<p>But it won’t result in Malaysia Airlines avoiding higher premiums for “all-risk” insurance and, especially, for war insurance. It also appears to be the most expensive year for the industry since 2001 with <a href="http://www.ft.com/intl/cms/s/0/14a987ec-1429-11e4-b46f-00144feabdc0.html#axzz39thLB6Aq">annual losses</a> passing US$2 billion.</p>
<p>And it won’t result in Malaysia Airlines avoiding compensation for passenger deaths. Some <a href="http://www.chicagotribune.com/news/nationworld/sns-wp-washpost-bc-plane-liability19-20140719-story.html">estimates</a> put that compensation figure at US$1 billion.</p><img src="https://counter.theconversation.com/content/29818/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Hodgkinson, an aviation lawyer, was formerly director of the Legal Department at IATA, the organisation representing airlines worldwide, in Montreal.</span></em></p>On July 17, 2014, Malaysia Airlines flight 17 (MH17) – an international passenger flight from Amsterdam to Kuala Lumpur – crashed in eastern Ukraine. All 298 passengers and crew were killed. It appears…David Hodgkinson, Associate Professor, Law School, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/298482014-08-10T21:35:20Z2014-08-10T21:35:20ZAbbott’s leadership role models serve him well in MH17 crisis<figure><img src="https://images.theconversation.com/files/55769/original/vq9kq2vc-1407219067.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In his response to MH17, prime minister Tony Abbott acted according to some personal and cultural expectations of leadership.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>It was the bloodshot eyes that conveyed to one <a href="http://www.smh.com.au/federal-politics/political-news/eyes-betray-sombre-duty-as-tony-abbott-focuses-energies-on-mh17-tragedy-20140724-3chh6.html">journalist</a> the strain and weariness weighing upon prime minister Tony Abbott as he dealt with the MH17 tragedy. Australians learned of the <a href="http://www.theaustralian.com.au/in-depth/mh17/focused-tony-abbott-in-overdrive-to-bring-them-home/story-fno88it0-1227006418361">office naps</a> between the 20 or more calls to foreign leaders and the working dinners with the military chiefs. Abbott’s dogged aggressiveness in pressuring Russian president Vladimir Putin to do what was right for all who had perished was on show from day one.</p>
<p>As might be expected, sections of the Twitterverse cynically derided Abbott for using the tragedy to burnish his image as national leader after <a href="https://theconversation.com/little-mh17-bounce-for-coalition-as-they-lose-economic-advantage-29890">months of bad polls</a>, much in the way then-prime minister John Howard <a href="http://epubs.surrey.ac.uk/235576/1/Jack%20Holland%20-%20Howard's%20War%20on%20Terror.pdf">purportedly exploited 9/11</a>. Even given the state of the polls, it didn’t seem to be Abbott’s primary motivation.</p>
<p>In his response to MH17, Abbott acted according to some personal and cultural expectations of leadership.</p>
<p>The MH17 disaster has exposed a deep attachment to the idea that a “real” leader is one who leads the nation in war and/or national emergency, such as wartime British prime minister Winston Churchill. Reinforcing this is the yearning among politicians and the public alike for a position above partisan politics, much like a US president, to unify the nation at certain important moments.</p>
<p>Howard, for example, did this <a href="http://www.themercury.com.au/news/tasmania/former-pm-john-howard-reveals-how-the-tragedy-of-port-arthur-forged-his-legacy/story-fnj4f7k1-1226904483070">after the Port Arthur shootings</a> and became mourner-in-chief. Later, Howard <a href="https://www.youtube.com/watch?v=aj9zl01SCKQ">spoke of</a> used what he called “the bully pulpit”, following an American idea of the leader as the nation’s orator.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/56012/original/bgcghbwn-1407459151.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/56012/original/bgcghbwn-1407459151.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/56012/original/bgcghbwn-1407459151.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=906&fit=crop&dpr=1 600w, https://images.theconversation.com/files/56012/original/bgcghbwn-1407459151.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=906&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/56012/original/bgcghbwn-1407459151.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=906&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/56012/original/bgcghbwn-1407459151.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1138&fit=crop&dpr=1 754w, https://images.theconversation.com/files/56012/original/bgcghbwn-1407459151.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1138&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/56012/original/bgcghbwn-1407459151.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1138&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">John Howard spoke of the American idea of the ‘bully pulpit’.</span>
<span class="attribution"><span class="source">AAP/Alan Porritt</span></span>
</figcaption>
</figure>
<p>This is where Abbott has positioned himself by inclination. <a href="http://www.smh.com.au/federal-politics/political-opinion/a-liberal-world-view-20100102-lmh5.html">As a boy</a>, he was absorbed by books on heroes of history such as Julius Caesar, Francis Drake and Henry V, as we know from his book <a href="https://www.mup.com.au/items/120931">Battlelines</a>. His mother bought the books, just as she <a href="http://www.telegraph.co.uk/news/worldnews/australiaandthepacific/australia/10316722/Tony-Abbott-sworn-in-as-Australias-new-prime-minister.html">told a group</a> that young Tony would one day be pope or prime minister. This was one of many family affirmations that his destiny was to be a “future PM”.</p>
<p>After Abbott’s parents, <a href="http://en.wikipedia.org/wiki/B._A._Santamaria">Bob Santamaria</a> “first encouraged [him] to try to exercise leadership”. During the Cold War, Santamaria was the intellectual light of the Democratic Labor Party, the National Civic Council and those fierce conservative Catholics who saw a crusade to save Australia from the communists. They pursued a vanguard strategy modelled on the Leninists they hated, involving a few dedicated ideological warriors to battle for control of key organisations.</p>
<p>Abbott’s idea of leadership was further entrenched when he went to Oxford where he <a href="http://books.google.com.au/books?id=hoDqXnWVvMgC&pg=PA69&lpg=PA69&dq=tony+abbott+leo+strauss&source=bl&ots=9hNpNrKeYZ&sig=Fs9duhAcYpUpjq6hb_Es65oRMb4&hl=en&sa=X&ei=zSPkU8ioN8G48gWG14LQDg&ved=0CCQQ6AEwAQ#v=onepage&q=tony%20abbott%20leo%20strauss&f=false">studied</a> <a href="http://en.wikipedia.org/wiki/Leo_Strauss">Leo Strauss</a>, another intellectual who disdained political participation. Strauss was suspicious of democracy and the masses and, like Santamaria, he distrusted liberalism, modernity and multiculturalism. Consequently, Strauss believed in the need for the wise few to conceal their views from the many and to deploy deceptions and illusions for the common good.</p>
<p>To be clear, Abbott is not a clone of these two men. And he is not the same as former Labor prime minister Paul Keating, but both men share a heroic conception of leadership as can be judged by Keating’s <a href="http://books.google.com.au/books?id=EuqFg5dUmgQC&pg=PA39&lpg=PA39&dq=%22it%E2%80%99s+about+doing+what+you+think+the+nation+requires,+making+profound+judgements+about+profound+issues.%22&source=bl&ots=0qYTakxBF5&sig=wneOSrq2cT2dytixr0cKoSnylmg&hl=en&sa=X&ei=ef_iU6zxD8Tp8AWcp4DwCw&ved=0CBwQ6AEwAA#v=onepage&q=%22it%E2%80%99s%20about%20doing%20what%20you%20think%20the%20nation%20requires%2C%20making%20profound%20judgements%20about%20profound%20issues.%22&f=false">comment</a> that:</p>
<blockquote>
<p>Leadership is not about being popular. It’s about being right and about being strong. It’s about doing what you think the nation requires, making profound judgements about profound issues.</p>
</blockquote>
<p>In the same vein is billionaire Andrew Forrest, who recently demanded politicians show <a href="http://www.smh.com.au/federal-politics/political-news/andrew-forrest-calls-for-extensive-reforms-to-ease-crisis-in-indigenous-employment-20140731-3cx9d.html">“courage”</a> to enact his Indigenous welfare reforms. For reasons I’ve outlined <a href="https://theconversation.com/beware-pm-ceos-dont-get-politics-19385">previously</a>, when a CEO starts rambling about political leadership, we should ignore them for more worthwhile pursuits like cleaning behind the fridge.</p>
<p>The singular heroic mode was Keating’s failing that led to defeat in 1996. It put him too far in front for too many people. A political leader always needs to judge when to push ahead of and when to pull back to public opinion.</p>
<p>Bob Hawke and John Howard were constantly juggling this dilemma. As a result they were carefully tending their various relationships: with cabinet, with their party and with the electorate.</p>
<p>Howard used his cabinet as a sounding board and as a means to keep ministers involved. He also respected the backbenchers while making sure he knew what was going on. Not surprisingly, his government did not leak and rebellions were minor.</p>
<p>It was when Howard got too far ahead of public opinion with <a href="http://australianpolitics.com/2005/10/09/howard-announces-workchoices.html">Workchoices</a> that he failed.</p>
<p>By contrast, Abbott has indulged his style of leadership with what he calls “leadership calls” – for example, <a href="https://theconversation.com/abbotts-paid-parental-leave-looks-like-dead-plan-walking-30073">paid parental leave</a>, <a href="http://www.smh.com.au/comment/prime-minister-tony-abbott-exercises-his-prerogative-over-knights-and-dames-20140402-zqpae.html">knighthoods</a> and the <a href="http://www.abc.net.au/news/2014-08-06/abbott-insists-there-will-be-no-revival-of-racial-law-changes/5651414">dumping of proposed changes</a> to Section 18C of the Racial Discrimination Act. These have surprised his side and <a href="http://www.theaustralian.com.au/news/features/abbott-facing-a-baby-blue/story-e6frg6z6-1226898727808">led to</a> leaks, rebellions and unravelling policies.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/56011/original/ytqsyd28-1407458329.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/56011/original/ytqsyd28-1407458329.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/56011/original/ytqsyd28-1407458329.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=841&fit=crop&dpr=1 600w, https://images.theconversation.com/files/56011/original/ytqsyd28-1407458329.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=841&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/56011/original/ytqsyd28-1407458329.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=841&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/56011/original/ytqsyd28-1407458329.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1056&fit=crop&dpr=1 754w, https://images.theconversation.com/files/56011/original/ytqsyd28-1407458329.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1056&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/56011/original/ytqsyd28-1407458329.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1056&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The desire for a national leader based on the likes of Winston Churchill overlooks several complications.</span>
<span class="attribution"><span class="source">UK Government</span></span>
</figcaption>
</figure>
<p>The desire for a “real” national leader based on a US president or Churchill overlooks several complications. The US president is not just a national symbol as head of state; he or she is also a partisan head of government hated by the other side, as we know from the vitriol directed at Barack Obama.There is always a tension in the office.</p>
<p>Also, ideas of Churchillian leadership came from the man himself, who <a href="http://books.google.com.au/books?id=DjcyuUKpNTAC&amp;printsec=frontcover&amp;dq=reynolds+in+command+of+history&amp;hl=en&amp;sa=X&amp;ei=bFXgU8v3K9G48gW4_IDIDg&amp;redir_esc=y#v=onepage&amp;q=reynolds%20in%20command%20of%20history&amp;f=false">wrote</a>:</p>
<blockquote>
<p>History will be kind to me, for I intend to write it.</p>
</blockquote>
<p>This quotation reflects Churchill’s view of himself and his leadership in the Second World War. However, it glosses over the complexities.</p>
<p>Outside of war, Churchill was actually a very divisive partisan figure. There are many simplistic ideas that ignore the complications of leadership in the reality of representative democracy with all its antagonisms and differences. That is the realm where Abbott returns after the MH17 tragedy and that is where he has difficulties. </p>
<p>It is because of his mistaken view of leadership that Abbott is putting too much faith in public recognition by 2016 of his courage to tackle the economic problems with the budget. He has not properly tended the public relationships to justify such optimism. </p><img src="https://counter.theconversation.com/content/29848/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Rolfe does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It was the bloodshot eyes that conveyed to one journalist the strain and weariness weighing upon prime minister Tony Abbott as he dealt with the MH17 tragedy. Australians learned of the office naps between…Mark Rolfe, Lecturer, School of Social Sciences, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.