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7 FLYING OVER UKRAINE: WHAT DID
MALAYSIA AIRLINES AND OTHERS DO?
7.1 Introduction

Operators, as users of the airspace, bear responsibility for safe flight operations.*151, *152 In
the case of MH17, the operator was Malaysia Airlines. This Section provides a
reconstruction of the flight preparations and flight operations of flight MH17 on 17 July
2014. This is followed by a description of Malaysia Airlines’ decision-making process
related to flying over conflict areas: how was it organised and how was the system applied
in the case of flight MH17? What information did Malaysia Airlines possess about the
security situation in the eastern part of Ukraine, how were potential risks assessed and
what constituted the basis for the decision to fly over the eastern part of Ukraine on
17 July 2014? Finally, the decisions made by other states and operators related to flying
over the eastern part of Ukraine will be described.

7.2 Flight MH17

As described in Section 2.1 (part A), flight MH17 took off at 10.31*153 from Amsterdam
Airport Schiphol for a scheduled flight to Kuala Lumpur International Airport in Malaysia.
Malaysia Airlines (MAS) had submitted a flight plan for this flight at 07.07, which
established, among other things, MH17’s route: the air navigation waypoints, airways and
altitudes at which MH17 would fly. In Appendix C an explanation of this flight plan of
flight MH17 and flight plans in general is provided.
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*151 This is established, for example, in Annexes 17 (Security) and 19 (Safety Management) to the Chicago Convention
(see ICAO HLSC/15-WP/3).
*152 National authorities are responsible for certifcation and the continuous monitoring of airlines based in their States.
*153 All times mentioned in this report are in UTC unless specifed otherwise. See the list of abbreviations for a further
explanation.

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Figure 85: Image of the Dnipropetrovsk FIR (UKDV), CTA 1 and 4, and the flown (black line) and intended
               (dotted black line) route of flight MH17. The yellow line represents the centre of airway L980.
               (Source: UkSATSE and Google, Landstat)

The data supplied by EUROCONTROL reveal that Malaysia Airlines was flying through
Ukraine’s airspace several times a day, also through the Dnipropetrovsk FIR (UKDV). On
17 July 2014, seven Malaysia Airlines flights flew through UKDV, two from Kuala Lumpur
to London, one flight from Kuala Lumpur to Amsterdam, two flights from London to Kuala
Lumpur, one flight from Paris to Kuala Lumpur and one flight from Amsterdam to Kuala
Lumpur.

7.3 Code sharing with KLM

Flight MH17 was a daily flight, operated by Malaysia Airlines, from Amsterdam Airport
Schiphol to Kuala Lumpur International Airport. It was a very popular flight. This was due
to the transit options and the favourable time of departure from Schiphol: this slot was a
good connection for incoming flights from the United States and would arrive in Kuala
Lumpur early in the morning. KLM also runs a daily flight between Amsterdam and Kuala
Lumpur. A code share agreement between Malaysia Airlines and KLM applies to both
flights.
In the case of flight MH17 on 17 July 2014, eleven passengers had booked their ticket
with KLM and 269 passengers with Malaysia Airlines. There were also two passengers
with a Qantas ticket and one with a ticket from Garuda Indonesia.*154 The passengers with
a KLM ticket travelled in accordance with the code share agreement with Malaysia
Airlines. The passengers who booked via Qantas and Garuda Indonesia travelled on a
combined flight, which was operated partly by these operators and partly by Malaysia
Airlines (transfers).
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*154 See Dutch Safety Board report MH17 - Passenger information.

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Additional activities are only carried out if Malaysia Airlines is considering flying to a new
destination. Well in advance of 17 July 2014, the operator received a request from its
government to fly a charter flight to Yemen, to evacuate a group of Malaysian citizens.
The head of the Security Department arranged for the situation to be assessed on
location, and in a consultation with the CEO, the charter department and Flight
Operations advised that the flight should not be conducted. This was because the
situation was not considered safe on the ground at the destination location.
In order to determine the security situation in a state, Malaysia Airlines’ Security
Department occasionally receives intelligence from Malaysian embassies and High
Commissioners (equivalent of Ambassadors in Commonwealth states). In addition, public
sources are consulted, such as newspapers and television and local stations that report
on worldwide events. Local police sources are also used. Malaysia Airlines receives daily
security recommendations from a private service provider about to the various ground
stations. Information is also shared among the Association of Asia Pacifc Airlines (AAPA).
Malaysia Airlines *155 has stated in interviews that it did not receive any security information
about foreign states from the Malaysian authorities. The explanation for this was that the
Malaysian authorities only collect information related to its interior. The Dutch Safety
Board has not been able to verify this information with the Malaysian authorities because
they did not answer questions about this. As a result, it is not possible to establish the
extent to which the Malaysian intelligence services possessed information about the
situation in the eastern part of Ukraine.
7.4.2 Route planning
At Malaysia Airlines, the Flight Operations (Flight Ops) Department is responsible for
flight operations as a whole, including safety, flight execution in accordance with the
statutory rules and the effciency of flight operations. To fulfl this responsibility, Flight
Ops uses different information sources; Aeronautical Information Publications (AIPs),
Aeronautical Information Circulars (AICs), NOTAMs (Notice to Airmen), EASA bulletins,
information from the air traffc service centres of states whose airspace will be used and
EUROCONTROL. An employee from the department assesses the details supplied in the
NOTAMs as an additional verifcation step. The department also monitors media reports,
but these can be seen as potentially too superfcial and speculative. Therefore, Flight Ops
depends upon the NOTAMs as offcial and primary sources of information to use in flight
planning. Flight Ops relies on the flight plan system (Sabre), which searches for relevant
NOTAMs via the OPUS system and automatically verifes whether these constitute any
restrictions to the planned flight. Compiling an inventory of and interpreting threat
information is not one of the duties of the Flight Operations department.
If Malaysia Airlines decides to use a new route, Flight Ops examines matters such as the
applicable rules in the state concerned (communicated via AIPs), restrictions (such as
minimum flight altitudes) and agreements (such as overflight permits), distances,
operational requirements (such as deviation aerodromes) and general weather conditions
(wind direction/speed), and determines the most effcient route on this basis.
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*155 A representative from the Department of Civil Aviation (DCA) was present at these discussions as an observer.

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When a Malaysia Airlines flight departs from a foreign aerodrome, the Flight Dispatch
Department sends a briefng package to the station manager or ground handler in the
state of departure. The latter’s most important task is to ensure that the pilot-in-command
receives the briefng package in consultation with the ground handling service.
To summarise: Malaysia Airlines assesses the safety of the flight in the flight phase based
on aeronautical information. The Security Department only assesses the situation on the
ground (departure and arrival location, aircraft, crew, baggage, passengers etc.).

7.5 The risk assessment performed by Malaysia Airlines prior to flight MH17

Following the crash on 17 July 2014, the question was raised why operators were flying over
the eastern part of Ukraine while an armed conflict was taking place there. This Section
describes what information Malaysia Airlines possessed about the security situation in the
eastern part of Ukraine, how this operator assessed potential risks and what constituted the
basis for the decision to fly over the eastern part of Ukraine on 17 July 2014.
7.5.1 Aeronautical information
In July 2014, four relevant NOTAMs*157 were in force in the airspace in the Dnipropetrovsk
FIR (UKDV).*158 The airspace in the eastern part of Ukraine was open above FL260 and
later above FL320. Malaysia Airlines automatically processed these NOTAMs via the flight
plan system used for this purpose. All the cited NOTAMs were included in the briefng
package for flight MH17. For Malaysia Airlines, these NOTAMs did not constitute any
basis for not operating the flight through Ukraine’s airspace.
Malaysia Airlines was aware of the ICAO State Letter published on 2 April 2014 about the
Simferopol FIR,*159 which informed Member States about the potential risks to the safety of
civil flights in the Simferopol FIR (Crimea) due to two air traffc control centres claiming the
same region. The same applies to EASA’s subsequent Safety Information Bulletin (SIB),
which confrmed the warning issued by ICAO. But since Malaysia Airlines did not operate
any flights over Crimea, this safety warning had no effect on Malaysia Airlines’ operations.
Therefore, the decision to shift the route to the north or south of Crimea did not apply.
Malaysia Airlines says it was not aware of SFAR 113, issued by the U.S. aviation authority
(Federal Aviation Administration, FAA), dated 23 April 2014. In this safety warning, the
FAA prohibitted U.S. operators and airmen from flying over Crimea. Because Malaysia
Airlines no longer flies over the United States, the operator has ceased monitoring the
SFARs issued by the FAA. They also viewed them as a U.S. matter because, for example,
U.S. operators have a risk profle that differs from that of Malaysia Airlines. The NOTAM
---------------------------------------------------------------------------------------------------------------------
*157 This involves the following NOTAMs issued by Ukraine: A1383/14, A1384/14, A1492/14, A1493/14.
*158 See Section 5.3.
*159 EUR/NAT 14-0243.TEC (FOL/CUP).

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7.5.3 Other information
As described in Section 7.4, Malaysia Airlines explained that the operator did not receive
any threat-related information from its national authorities about foreign states. In other
words, prior to 17 July 2014, its authorities did not represent a source of information
related to the safety of the airspace above the eastern part of Ukraine.
Malaysia Airlines is a member of the Association of Asia Pacifc Airlines (AAPA), an interest
organisation for international operators in the Asia-Pacifc region. Within AAPA, Malaysia
Airlines is also a member of the Security Group in which operators exchange security
information about security on the ground, and the Flight Ops Consultation, which is
concerned with various matters including flight routes. Malaysia Airlines did not receive
any signals via this network about the deteriorating safety situation in the eastern part of
Ukraine.
In April 2014, Malaysia Airlines received signals from other operators that the satellite
communication (SatCom), and possibly also GPS, may be disrupted in Ukraine’s airspace.
Malaysia Airlines warned its pilots and asked them to be vigilant in this respect and
directly report any irregularities encountered. However, the operator did not view this as
a major risk to the navigation capability because the navigation beacons on the ground
were still operational. After a while no such disruptions to equipment had been reported.
Prior to 17 July 2014, Malaysia Airlines did not contact other operators with regard to the
situation in the eastern part of Ukraine, including the operators that had changed their
flight route(s). In interviews with the Dutch Safety Board, Malaysia Airlines stated that
operators continuously alter their routes, for various reasons. For example, because - unlike
Malaysia Airlines - they do have authorisation to fly over a particular country, or because
they have inserted a stopover in their route. Malaysia Airlines expects that other operators
would have made contact if the airspace had not been safe. Malaysia Airlines stated that,
if it altered a route for safety reasons, it would communicate the fact to its alliance
partners. In the case of the eastern part of Ukraine, other operators, including its alliance
partners, did not share any safety information with Malaysia Airlines. As many operators
were flying there, there was no reason for Malaysia Airlines to doubt the safety of the
airspace.
When planning a route, operators must also take unexpected scenarios into account.
One example is a disruption to normal flight operations such as engine failure resulting in
a drift down.*162 When determining the flight plan, the operator must select the route in
such a way that, in case of such an event, the aircraft can always meet the minimum
altitude above ground, especially in mountainous terrain. Specifcally in this case, the risk
of an aircraft descending to below FL320 (and earlier FL260) due to a drift down was
considered as very unlikely. Malaysia Airlines is confdent that the pilots are trained in the
procedure for this type of situation and that they will receive assistance from air traffc
control enabling them to reach a safe area.
--------------------------------------------------------------------------------------------------------------------------------
*162 Drift down is the situation in which an aeroplane, with one malfunctioning engine, is forced to descend from
cruising altitude to the altitude at which the aeroplane can continue to fly on the remaining engine with the
maximum permitted engine capacity

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The international framework provides room for states to assume less or more responsibility
with regard to decisions regarding flight routes. The more limited the state’s role is, the
more operators must do themselves to get an impression of conflict areas and the risks
they present to civil aviation. However, gathering intelligence about what precisely is
going on in conflict areas is diffcult. Operators have fewer possibilities to do so than
states, which can rely on their diplomatic and intelligence services in this matter. If the
authorities are totally uninvolved, there is the chance that the information position of the
operators based in the relevant state will be too limited to enable them to perform an
adequate risk assessment of conflict areas.
On the basis of information provided by Malaysia Airlines, the Dutch Safety Board
concludes that the Malaysian authorities did not consider that they had any role to play in
identifying and managing risks in foreign airspace. In their intelligence activities, the
national authorities focus on national security. This does include the security of
aerodromes located in the state, but not the safety of civil aviation in foreign airspace.
When it came to further assessing foreign airspace, Malaysia Airlines had to rely on other
sources than the Malaysian authorities.
In certain states, the authorities can prohibit operators and airmen based in that state
from flying to specifc destinations or from using a particular state’s airspace (or part
thereof). In this case, the aviation authorities produce their own threat and risk analyses if
they feel this is necessary.
In the United States, the Federal Aviation Administration (FAA) can issue a flight
prohibition or warning.*163 The Department for Transport (DfT) in the United Kingdom can
also issue a flight prohibition, pursuant to on the Aviation Security Act of 1982 (see
Appendix U for details). In practice, the DfT mainly focuses on performing risk analyses
and advising and possibly warning operators. This requires an extensive intelligence
position in all states that could present a risk to civil aviation. In April and July 2015
Germany announced flight prohibitions for the airspace of Libya and Yemen.*164, *165 For
many states, this is not standard practice and simply not feasible.
Between these two extremes, there are states that go no further than (informally)
providing operators with information and states that issue recommendations to operators
based in their territory.*166 States can share relevant safety information with those
operators about foreign airspace and armed conflicts, so that the operators can use the
information in their risk assessment. Moreover, states can share relevant information with
the international aviation sector, for example through NOTAMs.
Lastly, there are states that go beyond sharing information. The authorities in these states
also produce aviation-specifc risk analyses and provide their operators with these or
issue advice based on the analyses. France is an example of one such states. The
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*163 For an explanation of ‘SFAR’, see Section 12, Abbreviations and Defnitions.
*164 http://www.bmvi.de/SharedDocs/DE/Artike … emen.html. consulted on 19 August 2015.
*165 http://webcache.googleusercontent.com/s … rtikel/LR/
verbot-luftraum-libyen.html%3Fnn%3D62482+andcd=1andhl=nlandct=clnkandgl=n
*166 This often involves information that has been obtained as supplementary to other activities

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activities in the airspace. The NOTAM that included this warning was only valid and
visible in March 2014. Between the end of April and 17 July 2014, no formal warnings
were issued about the safety of the airspace in Ukraine, including the eastern part of
Ukraine. It was precisely during this period that the armed conflict expanded into the
airspace.
7.7 What did other operators do? *168
This Section describes how other operators reacted to the changing situation in Ukraine.
Here, only international flights that passed through Ukraine’s airspace are included, as flight
MH17 did, and not domestic flights or flights that operators operated from or to Ukraine.
Data that the Dutch Safety Board received from EUROCONTROL reveal that, during the
period between April and 17 July 2014, no noticeable reaction was observed from
operators with regard to the situation in Ukraine; a large number of operators continued
to use routes over the eastern part of Ukraine. EUROCONTROL data were used to
compile several lists (see also Appendix R). The frst is a list of all the flights that flew over
the entire region of the eastern part of Ukraine during the months of April, May, June
and July 2014 (through 17 July 2014). Section 6 already explained that, between April
through 17 July, an average of 1,300 flights per day were operated throughout all of
Ukraine.
The list from EUROCONTROL reveals that the average number of international flights
that flew through the UKDV region (Dnipropetrovsk FIR) per day did not change after the
unrest intensifed in the eastern part of Ukraine and the armed conflict increasingly
expanded into the airspace. Even following the Ukrainian NOTAMs*169 on 6 June, 1 July
and 14 July 2014, there was no signifcant change in the number of flights through UKDV;
on average there were approximately 220 flights per day (see Figure 86).
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*168 The information about the way in which airlines reacted to the situation in Ukraine was mainly obtained through
surveys and using data supplied by EUROCONTROL.
*169 NOTAMs A1255/14, A1256/14, A1383/14, A1384/14 - the restriction below FL260 from 6 June 2014 and NOTAMs
A1492/14 and A1493/14 - the restriction below FL320 on 14 July 2014.

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Figure 87: Flight routes through the eastern part of Ukraine with cited the area referred to in the NOTAMs in
                Section 6 indicated by a red line. The routes outside the NOTAM area (i.e. south of it) but inside
                UKDV are shown in purple. (Source: Dutch Safety Board)

The Dutch Safety Board also conducted a survey to try to obtain a better understanding of
operators’ motives for deciding whether or not to fly over the eastern part of Ukraine.
Nineteen operators from eight states participated in the survey. Four operators stated that
they had never flown over the eastern part of Ukraine and one operator already stopped
flying over Ukraine in 2011. Six of the surveyed operators flew over the eastern part of
Ukraine until MH17 crashed on 17 July 2014. In April, one of these six operators decided to
no longer fly over Crimea but did continue to fly over the eastern part of Ukraine. Eight
other operators already stopped flying over the eastern part of Ukraine in March and April
2014, stating that it was due to the uncertainty of the situation in the Simferopol FIR
(Crimea), with regard to which they were also warned by various aviation authorities.
The Dutch Safety Board also obtained information about the reason behind the decision
whether or not to fly there, from interviews with and observations of operators. In one of
these interviews, one of the operators stated that the security department constantly

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In other words, Malaysia Airlines based its decision virtually exclusively on aeronautical
information (selection of NOTAMs) and did not perform its own additional risk
assessment.
Insofar as the Dutch Safety Board has been able to ascertain, Malaysia Airlines complies
with all standards relevant to ‘air operators’: the operator has an AOC, through which the
Malaysian State indicates that the operator complies with ICAO standards and national
regulations. Malaysia has a security programme, with which the operator fulfls the
requirements set out in Annex 17 of ICAO. Malaysia Airlines fltered, processed and used
aeronautical information for preparing and executing the flight. The way in which Malaysia
Airlines prepared the flight therefore complies with the requirements for Security and
Flight Operations as defned in ICAO’s international regulations.
The Dutch Safety Board observes that, insofar as could be determined, Malaysia Airlines
complied with its legal requirements but did not make any additional efforts to obtain an
overview of the safety of the airspace above the eastern part of Ukraine. Malaysia Airline’s
information position related to potential threats in the airspace was limited, in part as a
result of decisions it made independently and because the operator was not able to
obtain any intelligence related to foreign airspace from its national authorities. At the
same time, the question is whether a more effective information position would have led
to a different decision with regard to the flight route. Malaysia Airlines was not in a unique
situation: there were many operators that were still flying over the conflict area, including
operators that did generally seek additional information about conflict areas or operated
in a context in which their national authorities played a more informative or steering role.
7.8.2 ICAO
In the State Letter related to Simferopol FIR (Crimea) on 2 April 2014, ICAO stated they
would continue to actively coordinate with the parties active in the region with respect to
the developments in the realm of flight safety. This may have created expectations that
ICAO would continue to monitor the situation in all of Ukraine.
However, after issuing the State Letter up and to the crash of flight MH17, the civil aviation
organisation did not take any additional action with regard to Ukraine. ICAO relies on
other states for information and stated that it did not receive any information during this
period that justifed publishing a new State Letter. The statement made by the Ukrainian
authorities related to the Antonov An-26 being shot down on 14 July did not constitute a
reason for ICAO to take any further action, despite the fact that the statement included
the possibility of the involvement of a much more powerful type of missile or the
intervention by a fghter aeroplane. In addition, ICAO did not receive a request for
assistance from Ukraine (as recommended in ICAO Doc 9554-AN/932), on the basis of
which ICAO could have played a role. ICAO stated that it actively seeks verifcation in the
case of unverifed reports about a lack of safety in an airspace, frst and foremost from
the state that manages the relevant airspace. Based on this interpretation of its role,
ICAO could have offered Ukraine its assistance and, if necessary, could have issued a
State Letter as a precaution. Doc 9554-AN/932 also does not preclude such an active
role for ICAO. The Dutch Safety Board does understand ICAO’s point of view that it
cannot issue a warning or State Letter based on unverifed reports or media reports, but
it is of the opinion that this does not apply to offcial statements made by the relevant

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7.9 Sub-conclusions

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8 THE STATE OF DEPARTURE OF FLIGHT
MH17 - THE ROLE OF THE NETHERLANDS

8.1 Introduction

The crash involving flight MH17 on 17 July 2014 raised the question why operators were
flying over the eastern part of Ukraine when there was an armed conflict in the area. In
the Netherlands, this was followed by the question whether there was anything the Dutch
State could have done to prevent the crash.*171 This was because there were 193 Dutch
citizens on board, because the aeroplane departed from the Netherlands and because
eleven passengers booked their flight with a Dutch operator (KLM).
The Dutch Safety Board has investigated the extent to which the state in which an
international flight takes off must - or can - play a role in the decision-making related to
flight routes. Firstly, this role concerns flights by operators based in the state in question,
because the ICAO framework provides states with room to inform, warn or prohibit
operators based in their territories from crossing certain airspaces. However, citizens
from these states can also travel with operators that are based in another state. It is
therefore conceivable that states, out of concern for their citizens, share information
related to threats with all operators that operate flights from these states. In this Section,
the situation in the Netherlands was chosen as a starting point because the Netherlands
was the state of departure for flight MH17. The Dutch Safety Board is of the opinion,
however, that other states can also draw lessons from the fndings.
Specifc research questions for this Section are:
• What role did the Dutch State play in the decision-making process with regard to the
flight route of flight MH17, which took off from the Netherlands?
• What options did the Dutch State have to influence the decision-making related to
foreign flight routes?
• What indicators did the Dutch State (including the intelligence and security services,
the AIVD and the MIVD *172) have with regard to the safety of the flight route used by
flight MH17 in the airspace above the eastern part of Ukraine?
The investigation by the CTIVD
At the request of the Dutch Safety Board, the Dutch Minister of the Interior and Kingdom
Relations and the Dutch Minister of Defence asked the Dutch Review Committee for the
Intelligence and Security Services (CTIVD) to conduct an investigation into the question
whether the AIVD and the MIVD have a legal duty with regard to the decision-making
pertaining to flight routes and how they implement it. The CTIVD is the body in the
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*171 See for example Dutch Parliamentary documents II, 2014/2015, 33997, No. 36.
*172 AIVD: General Intelligence and Security Service of the Netherlands. MIVD: Military Intelligence and Security
Service of the Netherlands.

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The fact that a code share agreement with KLM applied to flight MH17 had no impact on
the Dutch State’s responsibilities. According to this agreement, the operator that actually
operates the flight is responsible for the flight’s safety (see also Section 4).*174 Based on
this agreement, KLM also had no obligation to warn Malaysia Airlines about any potential
danger.*175

8.3 The options open to the Dutch State in relation to flight routes

Although the Netherlands played no formal part in selecting the route taken by flight
MH17, it is conceivable that the state could have informally exerted some influence, such
as by warning operators about threats posed by the conflict area. The Chicago
Convention and its Annexes, provide room for States to prohibit operators based in their
territory from using foreign airspace, or issue recommendations on the matter (see also
Section 7). Every state, so also the state of departure, can provide information about
foreign airspace. Although this type of information is usually intended for its ‘own’
operators, it can also be made available to operators that take off or land in the state
issuing the information or fly through its airspace.
This Section describes how the Dutch State interprets its role with regard to these types
of situations.
8.3.1 Civil aviation safety in the Netherlands
In the Netherlands, the responsibility for the safety and security of the airspace is shared
between different departments.*176 The NCTV *177 is responsible for civil aviation security in
the Netherlands. This concerns the measures at aerodromes that are meant to prevent
unlawful acts that form a danger to civil aviation.
The Ministry of Infrastructure and the Environment is responsible for civil aviation safety
and is also responsible for in-flight security. An aircraft is deemed ‘in flight’ as from the
moment that the exterior doors are closed after boarding and the engine power is used
to take off. This part of aviation security is specifcally related to security measures on
board an aircraft. These measures are often subject to the certifcation requirements of
the aircraft (think of the reinforced cockpit doors). An exception to this is the deployment
of air marshals.*178 The deployment of air marshals takes place under the responsibility of
the Ministry of Security and Justice because it involves a policing task. As soon as the
door of the aeroplane is closed, in the context of this report and Section (security), it
becomes a matter of ‘in-flight security’, not ‘in-flight safety’.
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*174 In accordance with the code share agreement between KLM and Malaysia Airlines. This is a common provision in
such agreements.
*175 KLM states that it would have passed on any actual threat-related information to code share and alliance partners
if any had existed. However, KLM, partly based on informal contacts with the Dutch intelligence services and other
airlines, did not perceive any threat and also flew over the eastern part of Ukraine.
*176 Ministry of Security and Justice/NCTV: National Civil Aviation Security Programme (NCASP), April 2014.
*177 The National Coordinator for Security and Counter-terrorism (NCTV), part of the Ministry of Security and Justice.
*178 An air marshal or sky marshal is an armed, plain-clothed security offcer who travels on a commercial aircraft to
combat any potential acts of terrorism.

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• The state has no legal power to impose an over-flight prohibition pertaining to other
states on national operators, and furthermore has no right to impose such a
prohibition on foreign operators departing from the Netherlands;
• Adopting a directing role with regard to flying over other states could result in an
increase in liability claims.
Despite the above, the Ministry of Foreign Affairs has recently begun including advice
concerning the flight route - if relevant - in travel advice about areas with a possible threat.*180
8.3.2 The tasks of the AIVD and the MIVD
In short, the legal security duties of the AIVD and the MIVD involve the Services
conducting investigations into threats to national security.*181 In doing so, the AIVD
focuses on civil aspects and the MIVD on military aspects. The AIVD and the MIVD are
also charged with the task of conducting investigations regarding other states.*182 This is
called the foreign intelligence task. The AIVD and the MIVD also have a task to promote
measures to protect the interests served by the Services.*183 This is called the security
promotion task.
The legal security and intelligence tasks of the AIVD and the MIVD do not include
conducting independent investigations into the safety of foreign airspace, and thus into
the safety of flight routes that use it.*184 This is because the Services’ task allocation is
linked to the central government’s responsibilities. The Dutch authorities have no control
over and thus no responsibility for any foreign airspace. The safety of foreign flight routes,
however, is part of the AVID’s security promotion task.*185 This is not an independent
investigative duty, but a task that is mainly fulflled using information collected by
investigations performed as part of the security and intelligence task.
As part of its security promotion task, the AIVD makes a contribution to the provision of
information to Dutch operators, by sharing information about actual threats, on its own
initiative, with the NCTV and Dutch operators and also by acting as a source of
information for Dutch operators. For this purpose, the AIVD has an account manager for
the civil aviation sector who maintains contact with (among others) the security managers
of Dutch operators. The CTIVD concludes that, as part of the AVID’s security promotion
task, the Service cannot be expected to independently assess which information
operators need. Therefore, operators are expected to take the initiative; they have to
approach the AIVD.*186
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*180 One example is the travel advice for Egypt, Jordan and Israel. It warns of threats in the airspace above the Sinai
desert: ‘The air traffc that makes use of the airspace above the Sinai may encounter a terrorist threat. Prior to your
trip, ask your airline or travel organisation whether they take this threat into account with the flight route.’ http://
wwwrijksoverheid.nl/onderwerpen/reisadviezen, consulted on 22 July 2015.
*181 This is the so-called ‘a’ task of the AIVD (Article 6 paragraph 2 subsection a Wiv 2002) and the ‘a’ and ‘c’ tasks of
the MIVD (Article 7 paragraph 2 subsections a and c).
*182 This is the so-called ‘d’ task of the AIVD (Article 6 paragraph 2 subsection d Wiv 2002) and the ‘e’ task of the MIVD
(Article 7 paragraph 2 subsection e).
*183 This is the so-called ‘c’ task of the AIVD (Article 6 paragraph 2 subsection c Wiv 2002) and the ‘d’ task of the MIVD
(Article 7 paragraph 2 subsection d). This task of the MIVD is completely concerned with the defence sector,
including the defence industry. Civil aviation is not part of its scope.
*184 See Appendix T.
*185 This task focuses on promoting the protection of important and vulnerable parts of society in the Netherlands (see
Appendix T).
*186 See Appendix T.

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8.4 What information did the Dutch State possess and what did it do with it?

This Section describes how the Dutch State acted with regard to flying over the conflict
area in the eastern part of Ukraine prior to the crash involving flight MH17. In doing so, it
addresses the main sources of information, the information related to the armed conflict
and possible threats to civil aviation (especially Dutch operators) that was available, and
what was done with this information.
8.4.1 Information position
During the months leading up to the crash of flight MH17, the Netherlands gathered
information about the situation in Ukraine both via the intelligence and security services
and from the embassy in Kyiv. With regard to military developments, the Netherlands had
virtually no information position in Ukraine from the autumn of 2013 onwards. A Dutch
team that was once put together to conduct observations in Ukraine was dismantled in
August 2013.
The AIVD did not have a separate investigative mission focusing on Ukraine. The AIVD
did conduct an investigation into the Russian Federation, which originated from the 2011-
2016 Foreign Intelligence Designation Order. This concerns the AIVD’s foreign intelligence
task. As part of this task, the AIVD gathers intelligence that can support the government
in determining foreign policy and conducting international negotiations. This is also
called ‘political intelligence’.
When the unrest in Ukraine escalated from February 2014, the Ministry of Foreign Affairs
requested the AIVD to also report on developments in political circles in Ukraine in
March 2014. During the period prior to the crash, the AIVD team’s focus was on the
political power play in Ukraine and the Russian influence on the latter. The AIVD team
examined the information it received from this perspective. The AIVD team did not
collect information related to the military capacities of the parties involved in the armed
conflict in the eastern part of Ukraine. The team did receive information that offered a
broader perspective of the conflict in the eastern part of Ukraine and of the military
capacities and activities of the parties involved. The team used this information as
background information to support its investigative mission.
The MIVD did not have an investigative assignment focused on Ukraine.*189 However,
there was an MIVD team that focused on the Russian Federation’s foreign, security and
defence policies. This involved the team examining the proliferation of Russian weapons,
military knowledge and technology. In March 2014, the MIVD was assigned the mission
of providing weekly reports on the crisis between Ukraine and the Russian Federation.
This led to a slight shift in the focus of the investigation into Russian military capacities
and capacities in the vicinity of Ukraine. Attention was also devoted to the possible threat
of a Russian invasion of Ukraine. This working method provided a more complete picture
of the Russian capacities than those of the Ukrainian armed forces and the armed groups
that were fghting the Ukrainian government.*190
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*189 See Appendix T.
*190 See Appendix T.