States are required by ICAO and international laws to inform airlines and other states about any information relating to safety of its airspace. If needed, airspace should be closed.
Ukraine failed to close its airspace and as a result, MH17 was shot down by a surface to air missile.
Ukraine increased the minimum altitude of its airspace over Eastern Ukraine several times before July 17. According to Ukraine the reason was to provide a safety buffer between military aircraft operating and civil aviation.
DSB concluded in the final report about the failure to close the airspace that “Ukraine authorities took insufficient notice of the possibility of a civil aeroplane at crusing altitude being fired upon”:
The image below shows which area over Ukraine was closed, until which altitude and which NOTAM mentioned the closure.
So far the State of Ukraine has not been accused by other states for being negligent. PM Rutte of the Netherland stated he will wait for the outcome of the criminal investigation before considering other legal steps against states. JIT is not investigation the failure by Ukraine to close the airspace.
German lawyer Giemulla filed an application at ECHR against Ukraine for not closing the airspace. A court decision is expected within a couple of week. Ukraine response to the application was that is was not common for states to close the airspace in times of armed conflicts.
A group of Dutch next of kin is considering to join Giemulla and sue Ukraine.
Ukraine did not consider a scenario in which a passenger aircraft needs to descend rapidly because of a decompression of the cabine. The aircraft could easily flying within reach of surface to air weapons.
This post shows Ukraine was negligent and did not inform airlines about the safety conditions in its airspace.
- Despite many downings of fighter jets, helicopters and a IL76 transport plane by MANPADS in the weeks before July 17, Ukraine kept its airspace open for civil aviation.
EuroMaidan published the infographic below which was part of an article explaining Ukraine had no reason to close the airspace.
- Despite the downing of an Ukraine air force Antonov 26 at July 14 by, according Ukraine officials, a heavy weapon not being MANPADS, the airspace was still not closed.
- Despite the downing of a SU-26 at July 16 at an altitude unreachable for MANPADS the airspace was still not closed.
- Despite an active war situation with Ukraine planes bombing targets in Eastern Ukraine. On Wednesday July 16 , 17 Ukraine Air Force aircraft and 12 Ukraine Army helicopers flew missions (source NDSC). Transport aircraft were transporting supplies.
- Ukraine authorities like the secret service SBU extremely likely must have been aware of the presence of at least one BUK in Eastern Ukraine on July 17. The BUK was parked in the city of Donetsk for almost 2 hours in the morning rush hour. Many people must have spotted the unusual BUK.
Additionaly, Ukraine spokesman Lysenko told at July 17 at a pressconference which started at 17:00 that the separatists had a BUK which crossed the border in the early morning.Earlier, In Newsweek Oleg Zakharchuk, deputy chief of Ukraine’s air force is quoted saying that “in June three Buks arrived, situated near Donetsk,in Torez and to the north of Novoazovsk
Ukraine military authorities must have been aware of the presense of at least a Strela-10 surface to air weapon.
- Despite the fact that the Ukraine air traffic controller did not have primary radar available, airspace was not closed at July 17.Without primary radar, an air traffic controller cannot see military aircraft on his radar screen. What if a civil aeroplane needs to descend and ATC does not have a clue about position of military aircraft.
- Ukraine did not mention in NOTAMS about combat actions in Eastern Ukraine. Russia did mention the closure of lower airways ‘DUE TO COMBAT ACTIONS ON THE TERRITORY OF THE UKRAINE NEAR THE STATE BORDER WITH THE RUSSIAN FEDERATION’. See this blogpost with information on that.DSB states at page 207 of the final report:
- Ukraine did not mention in NOTAMS about one of the primary radar stations being destroyed and the other in maintenance at July 17.
- Ukraine did not mention in NOTAMS about the loss of GPS signals over Eastern Ukraine. Malaysia Airlines informed the crew of MH17 about the loss of GPS in this message. The message was taken from Appendix A-U of the DSB final report. DSB wrote in the final report :
This website describes Russian troops uses jamming to disturb drone operations. Drones fly a preprogrammed route using GPS to navigate.
This is what DSB reported about the loss of GPS
There were many reasons to close the airspace.