Response by Dutch government why it does not hold Ukraine liable for failure to close its airspace

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At May 2, 2019 Dutch minister Stef Blok sent a letter to Dutch parliament explaining why Dutch government does not hold Ukraine liable for failure to close its airspace at July 17, 2014. The letter is a response to questions asked in an earlier debate in  Dutch parliament on MH17. A recording of the April 10 debate can be watched here. 

Blok states the Dutch government cannot make public all considerations why it concluded liabilty of Ukraine at the moment will not be succesfull due to a lack of sufficient evidence. Bringing out such things considerations provides insight into how a  successful defense by Ukraine  could be executed in cause the Dutch in future decide to hold Ukraine liable.

However Blok mentions two arguments why a succesfull liability of Ukraine is not likely. The first is about the tapped telephone conversations. Separatists talked about the delivery of a BUK TELAR anti-aircraft system. The minister writes there is no evidence available which indicates Ukraine not only obtained the telephone taps before the moment of shotdown, but also it also listened to the tapes and analysed the risk.

The second argument for no liability is Dutch government does not have information about the information position of Ukraine on the safety of its airspace and the measures it took.

The Dutch Safety Board (DSB) concluded that based on previous shotdowns of military aircraft in Ukraine airspace there was sufficient reason to close the airspace above eastern Ukraine as a precaution.

However, the  DSB investigation was  conducted in accordance with Annex 13 of the Chicago Decree Convention on International Civil Aviation and was explicitly not intended to attribute fault or liability.  DSB’s conclusion therefore  cannot  simply be interpreted as a determination of liability in international law.

Dutch Nieuwsuur had an item about this including an interview with Marieke de Hoon. (archive)

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