Wreckage from flight MH17 lies among the sunflower fields of Donetsk in Ukraine. Photo: AFP.
The Council of the International Civil Aviation Organization (ICAO) has determined overnight that Russia failed to uphold its obligations under international air law in the 2014 downing of Malaysia Airlines flight MH17 over eastern Ukraine.
The case was brought before ICAO by the Netherlands and Australia, which alleged that Russia’s conduct in the downing of the aircraft by a Buk (SA-11) surface-to-air missile over Ukraine constituted a breach of Article 3 bis of the Convention on International Civil Aviation, which requires that States “refrain from resorting to the use of weapons against civil aircraft in flight”.
The 12 May finding is the first time in ICAO’s history that its council has made a determination on the merits of a dispute between member states under the organisation’s dispute settlement mechanism.
The Boeing 777-200 was flying from Amsterdam to Kuala Lumpur on 17 July, 2014, when it was shot down by a Russian medium-range surface-to-air missile fired from the Donetsk region of eastern Ukraine while cruising at 33,000 feet.
At the time, that area of Ukraine was occupied by Russian-backed separatists, and the region had seen more than 30,000 casualties since the occupation began earlier that year.
The aircraft was operating in accordance with a minimum-altitude restriction put in place by Ukrainian aviation authorities on 14 July after a Ukrainian military transport plane was shot down while flying at a lower level, and three other foreign passenger airliners were also in the same radar control sector.
Wreckage from the downed flight MH17 was painstakingly reassembled on a rig as part of the investigation. Photo: ICAO.
As it approached the Russian border, MH17’s flight crew was in communication with air traffic controllers in nearby Dnipropetrovsk (now Dnipro) in Ukraine and in Rostov-na-Donu in Russia just before 13:20 UTC. No distress signal was received, and the flight disappeared from radar screens at 13.26.
Wreckage was subsequently discovered near the eastern Ukrainian village of Hrabove. On board were 298 civilians, including 38 Australians, all of whom perished in the crash.
The Buk is a self-propelled surface-to-air missile system that carries a quad missile launcher and radar on a tank or large truck chassis. The vehicle that fired the missile that hit MH17 was subsequently traced using open-source intelligence to the Russian Army’s 53rd Anti-Aircraft Missile Brigade, which is based in the city of Kursk.
Australia subsequently sent diplomatic staff supported by the Australian Federal Police to the crash site to aid in the recovery of the bodies and personal effects, and the Royal Australian Air Force was heavily involved in the repatriation of the bodies to Australia from Eindhoven Air Base in the Netherlands.
The ICAO agreed that the claims brought by Australia and the Netherlands as a result of the shooting down of flight MH17 were well founded in fact and in law.
Foreign Minister Penny Wong said the ICAO’s finding “is a historic moment in the pursuit of truth, justice and accountability for the victims of the downing of flight MH17, and their families and loved ones”.
“In reaching its decision, the ICAO Council has upheld the fundamental principle that weapons should not be used against civil aircraft,” she said.
“The Australian Government welcomes the ICAO Council’s decision and urges it to move swiftly to determine remedies for this violation. We call upon Russia to finally face up to its responsibility for this horrific act of violence and make reparations for its egregious conduct, as required under international law.”
An AFP investigator studies wreckage from the Boeing 777 in eastern Ukraine. Photo: AFP.
The ICAO’s findings are not the first against Russia in an international forum.
In the immediate aftermath of the shootdown, Australia led the way in the United Nations on a resolution condemning the incident, which was adopted unanimously on 21 July, 2014, as Resolution 2166.
The resolution called on Russian separatists at the crash site to ensure the bodies of the victims were treated with dignity and respect, called for a full, thorough and independent investigation into the crash, and demanded military activities in the area cease to enable access to the site.
The resolution further demanded that those responsible for this incident be held to account and that all states cooperate fully with efforts to establish accountability.
In June 2019, Dutch prosecutors filed charges in the District Court of The Hague against four Russian men – all of whom were associated with the military operation in eastern Ukraine – in connection with the shootdown.
One of the men was identified as a former colonel with the Russian Federal Security Service (FSB), who commanded the Russian-backed forces in Donetsk but had abruptly returned to Russia following the shootdown.
In November 2022, the court found three of the men guilty of murder in absentia. It determined that the missile that destroyed the plane had come from Russia and that it had been fired by Russian-led troops in Russian-controlled territory.
An RAAF C-17 transport aircraft unloads the remains of Dutch victims of the MH17 shootdown at Eindhoven Air Base in the Netherlands. Photo: ADF.
