Monday, 14 August 2017

MH17 -- an unique example of international police cooperation in a war zone

Title:

MH17 -- an unique example of international police cooperation in a war zone

Paper:

The purpose of this paper is to explore a contemporary situation that demonstrates bilateral and multilateral cooperation amongst policing agencies in investigations and peace operations. The article chosen as a basis for this paper is John Stewart’s report on the ABC Lateline program ‘Fighting stops police’ (2014), reproduced as Annex A. This article describes how fighting stopped international investigators from reaching the crash site of Malaysian Airlines flight MH17. It is argued that MH17 shows multiple interconnecting elements of policing and quasi-policing cooperation. Particularly (1) geopolitical centred upon the United Nations Security Council, (2) a peace operation at the crash site, (3) multilateral criminal investigation, and (4) multilateral aviation investigation (L. Filipetto, personal communications, 24 November 2014). This paper will show how Australian agencies have built upon existing and established new cooperative frameworks with their international partners.

The paper is based on a literature review of over seventy sources consisting of articles, other publications as well as correspondence with government officials and agencies: this process is outlined in Annex B. The structure of the paper will follow those four areas of cooperation by first examining general literature and then applying the arguments contained therein to MH17. However, the paper will begin with an outline of events surrounding MH17 and Australian agencies involved. Throughout this paper a number of acronyms and abbreviations are used, these are outlined in Annex C. The term ‘accident’ will be used throughout this paper in describing what occurred to MH17, this is to be consistent with ICAO terminology: the ICAO definition outlined in Annex D.

On the 17 July 2014 a Malaysian Airlines Boeing 777-220ER (Registration 9M-MRD) operating as  flight MH17 “… departed Schiphol Airport, Netherlands, at 12.14 [pm] local time bound for Kuala Lumpur, Malaysia” (Pravda.ru, 2014). It was traveling along a well-recognised flight path for Northern European-Asian transit known as L980 which transverses Ukraine – a location where a civil conflict was occurring between the government and pro-Russian separatists – with MH17 not the only flight to have flown the route that day (Kaminski-Morrow, 2014). The aircraft was travelling at 33000 feet, 60 kilometers east of Donetsk near Hrabove village when it disappeared from air traffic control screens (Pravda.ru, 2014 and ATSB, 2014).

Shortly after the accident, the pro-Russian separatist leader Colonel Igor Strelkov posted on Facebook “In the area of Torez, we have just shot down an AN-26 airplane [the type used by the Ukrainian airforce]. It is scattered about somewhere by the Progress coal mine … We warned them don’t fly in our sky” (Patrikarakos, 2014). This is consistent with a tweet on 29 June in which it is stated that they were in possession of Buk SAMs, which have a range of over 30 000 feet. Both these posts were subsequently deleted (Patrikarakos, 2014). All 298 people on board the aircraft perished in the accident; a breakdown of nationalities as reported by Malaysian Airlines are reproduced in the following table.

NATIONALITY*
TOTAL
Netherlands
193 (including 1 dual Netherlands/USA citizen)
Malaysia
43 (including 15 crew & 2 infants)
Australia
27
Indonesia
12 (including 1 infant)
United Kingdom
10 (including 1 dual UK/S. Africa citizen)
Germany
4
Belgium
4
Philippines
3
Canada
1
New Zealand
1
TOTAL
298

* This does not include place of residence.

(Malaysian Airlines, 2014)

 Blame for the accident would soon point toward the pro-Russian separatists and a multi-tiered and interconnecting international response would develop. A full outline of events associated with MH17 is attached as Annex E. A review of David Gero’s (2006) comprehensive account of civil aviation accidents since 1950s reveals that only six other civilian jet planes have been shot down– which are outlined in Annex E -- none have involved the complexity of MH17.

Agencies involved

Due to the complexity of MH17 and the four distinct responses it is natural that a multitude of agencies would be involved. This section will primary focus on the four main Australian agencies -- with mention of their international counterparts – involved in the response: the AFP, ATSB, ADF and DFAT.

The AFP was formed in 1979 with the amalgamation of several federal law enforcement agencies (AFP, “History of the AFP”). Its functions are governed by section 8 of the Australian Federal Police Act 1979 (Cth): of relevance is subsection (1)(bf) which outlines the AFP’s role in cooperating with foreign law enforcement agencies.  Under the most recent ministerial direction – issued under section 37(2) – government priorities for the AFP including:

contributing effectively to the Government's international law enforcement interests including matters involving cooperation with key international partners to combat transnational organised crime and corruption, responses to emergencies, law and order capacity building missions, and participation in internationally mandated peace operations. (Keenan, 2014)


Hence, it was the AFP which contributed investigators, DVI and a security force to the MH17 response. Of note is that the Netherlands deployed military police as part of their contribution to IMPI which will be discussed further below.

The ATSB is a statutory agencies formed under part 2 of the Transport Safety Investigation Act 2003 (Cth) with its functions including the improvement of transport safety by determining facts which led to transport accidents as outlined in section 12AA. Of interest, under section 12AA (3), it is excluded from proportioning blame or assisting in court proceeding. The ATSB has significant powers under Part 5 that include the ability to compel witnesses to answer questions. The ATSB participated in the crash investigation of MH17 with its Dutch partner the Dutch Safety Board.  

The ADF played a limited role in the Australian response to MH17 despite early announcements by Prime Minister Tony Abbott that they would be part of the security force in eastern Ukraine (Wroe, Hartcher and Massola, 2014). The ADF role was limited to logistics, in particular the transportation of remains from Ukraine to the Netherlands (Miller, 13 August 2014). Unlike their Dutch counterparts, the ADF did not contribute military police despite some calls that they should fulfill such a role, which will be discussed later (Eaton, 2009, p. 70).

DFAT -- not a separate agency but part of the wider Australian Public Service -- played a significant role in the MH17 response through its missions to the UN and Ukraine. On such cooperation, former Australian foreign minister Garth Evans argues that “..[t]he international standing and reputation of Australia and its government depends very significantly on the quality of the performance of its representatives abroad…” (Evans and Grant, 1995, p. 54). As such DFAT officials were essential to ensuring that the response to MH17 was successful.

International response.

In the wake of the devastation of the two World Wars the international community perused avenues to prevent such calamities from reoccurring: this would lead to the limitation of sovereignty first in the League of Nations then its successor the United Nations (Luard, 1990, pp. 164-165). In the words of the  Ghanaian diplomat and former UN Secretary-General Kohn Annan it was “… forged from the battles of two world wars, was dedicated, above all, to the pursuit of peace[.]” Under the UN Charter the purpose of the organisation are outlined in article one – which is relevance to the development of international cooperation –  these include:
(1)   the maintenance of international peace and security;
(2)   the development of friendly relations; and
(3)   achieving cooperation to solve international problems (Akehurst, 1992, p. 206).

The UN Security Council is charged under the charter with the responsibility of maintaining international peace and security and its resolutions have the force of international law (Akehurst, 1992, p. 211). It consists of the permanent members – United Kingdom, France, United States, Russia and China – and five members elected for two year terms by the General Assembly (Akehurst, 1992, p. 211). Australia was elected in 2012 and during the MH17 response it was represented by the Foreign Minister Julie Bishop and Ambassador to the UN Gary Quinian (Millar, 1 January 2015).

Not long after the MH17 accident, attention was drawn to the UNSC to provide leadership amidst the anarchy of the conflict to ensure access to the site and protect the remains of the victims and their belongings. Just days after the accident, ambassadors at the UN issued a statement calling for a thorough independent investigation; however, Australia saw the need and called for a UNSC resolution (Millar, 19 July 2014). Bishop and Quinian then set about negotiating with other UNSC members for the need for a resolution and the wording of the proposed resolution (Wroe and Massola, 2014). Australian officials worked closely with their Dutch counterparts who cosponsored the resolution: these efforts resulted in UNSC resolution 2166. In the words of Foreign Minister Bishop:

The adoption of this resolution is a decisive step by the security council. It is an unambiguous response from the international community to an utterly deplorable act. Our resolution demands that armed groups in control of the crash site provide safe access immediately to allow for the recovery of the bodies, and that these armed groups stop any actions that compromise the integrity of the crash site. (Uhlmann, 2014 (b))
Lisa Filipetto, an assistant secretary within the Consular Policy Branch of DFAT states that:

Australia's position as a non-permanent member of the UN Security Council (2013-14) provided a valuable opportunity for Australia to play a leading role in the Council's response to MHl7. Australia authored UN Security Council Resolution 2166, which was adopted unanimously on 27 July 2014. The Resolution was an important step in ensuring an appropriate international response to the MH17 tragedy. It voiced the Council's collective condemnation of the downing of MH17 … (L. Filipetto, personal communications, 24 November 2014).

This was a demonstration of effective use of the UNSC in the spirit for what it was designed to achieve. UK Ambassador to the UN, Mark Grant, reflected “I think Australia stood up for what it believed in… Australia has been bold, I wouldn’t say risky, but I think they’ve certainly been brave for standing up for what they believe and be prepared to say it straight” (Millar, 1 January 2015).

Peacekeeping and the International Mission for Protection of Investigation.

Trevor Findlay (1996, p. 2) argues that peacekeeping – or peace operations – emerged in the midst of the Cold War when the organs of the UN – especially the UNSC – were tied down by the effects and risks of the Cold War. It is a measure that is somewhat in between mediation and enforcement which was not foreseen by the UN founders or included as a function in its charter; nevertheless, the blue helmets of the UN have become the public symbol of the organisation ever since they were first deployed in the Middle East as UNEF in 1956 (Dee, 2012, pp. 228-229). Originally peacekeeping consisted of unarmed military personnel being placed between warring parties: police have since become a crucial element (Drodge and Roy-Cry, 2003, p. 229). Police have the ability to adapt and be flexible in the wake of fluid situations: in contrast to the rigid nature of the military (Jackson, 2002, p. 224). However, Eirin Mobekk (2005, p. 3) argues that police should not be deployed in areas of extreme conflict and instability – such as an ongoing civil war – suggesting military police or the gendarmerie as an alternative. The gendarmerie is a military ordinated organisation – usually under the Department of Defence – that undertakes policing functions in tandem with civil police (AEPC, 2000, pp. 157-160).

Jussi Hanhimäki (2008, pp. 76-77) outlines four generations of peacekeeping:

  •  First – Creating a physical barrier between warring parties.
  • Second – Implementation of a complex, multidimensional peace agreement.
  • Third – Peace enforcement, low-level military operations, enforcing ceasefires, rebuilding failed states.
  • Fourth generations – Delegated peacekeeping.

Since at least 1984 Australia has favored participating in regional missions separate from the UN which may or may not be sanctioned by the UNSC: INTERFET and RAMSI are two well-known examples (Dee, 2012, pp. 234). Furthermore, since 1964 Australia has had a long tradition of using police as an alternative to the military with the ADF opposed to restructuring so as to be more orientated towards peacekeeping (Dee, 2012, pp. 246 and Findlay, 1996, p. 7). The AFP has taken a different perspective with a change in focus of the organisation towards international engagement (2007, “Embracing the future”, p. 5). In 2003 the AFP established the IDG with UN peacekeeping missions in mind (Lin, 2007, p. 569). Of particular relevance is the SRG located within the IDG formed in 2012 which provides “… specialist policing capabilities in support of AFP operations, as well as a rapidly deploy able crisis response capacity to support international stability and security …” (AFP, 2011). In many respects the IDG – and particular the SRG element – represents that of a gendarmerie: a policing agency organised along military lines. Unfortunately when this was put the Australian Government the only reply received was by Superintendent Mark McIntyre who said, “The suitability of a civilian policing model for such missions is a policy matter and the AFP will not speculate on media commentary and academic research concerning the issue” (M. McIntyre, personal communications, 19 November 2014). A review of recent AFP Annual Reports reveals the IDG is involved in primarily second generation peacekeeping and capacity building (AFP, 2011 and AFP, 2012). It has been suggested by Captain Damian Eaton (2009, p. 26) that the RACMP could fulfill this roll for Australia; however, unlike the gendarmerie the RACMP plays no role in civil policing and out of a total of 209 reservists, only around 55 have contemporary employment with policing agencies (Defence spokesperson, personal communications, 2014).

The IMPI operated in eastern Ukraine for a relatively short period of time: approximately two weeks between 25 July and 8 August 2014 as laid out in Annex E. The Australian Prime Minister stated the purpose of the deployment as “… a humanitarian mission. It’s a police-led mission…”(Stewart, 2014). The purpose of the mission is clearly laid out in article one of the `status of forces` agreements between Australia and the Netherlands as “… tasked to facilitate the recovery of remains and the conduct of the investigation called for in United Nations Security Council Resolution 2166 of 21 July 2014” (2014, “Treaty between Australia and the Netherlands”, Article 1). It is argued that this fits within the broad definition of peacekeeping and is particularly within Jussi Hanhimäki’s fourth generation (Hanhimaki, 2008, pp. 76-77).

Superintendent Mark McIntyre (personal communications, 19 November 2014) of the AFP states that “… [a]n intelligence-led risk based model was used to inform the scope and objectives of the deployment.” It is difficult to ascertain the exact makeup of the contingent: media reports indicate that the contingents in Ukraine consisted of Dutch, Australian, U.K., German and Malaysian forces; however, UK officials have stated that they only deployed DVI experts to the Netherlands (Wroe, Hartcher, Massola, 2014 and T. Burns, personal communications, 16 December 2014). Nevertheless, what is clear is that the majority of forces were unarmed (11) AFP IDG and (38) Dutch military police (Massola and Bourke, 2014).

The security situation within eastern Ukraine can only be described as an active war zone: with access to the site by IMPI being prevented on numerous occasions and they had to pass through several frontlines of fighting (AFP, 27 July 2014 (b) and McDonell, 29 July 2014 (b)). Despite the bravado, the dangers of the deployment can clearly be seen in the following exchange between the AFP contingent commander Brian McDonald and a journalist:

JOURNALIST: ‘Can you hear the shelling?’

BRIAN McDONALD: ‘Yeah, of course.’

JOURNALIST: ‘What do you think?’

BRIAN McDONALD: ‘Well, it's not landing here so it's OK.’

JOURNALIST: ‘But you're still smiling?’

BRIAN McDONALD: ‘What do you do? We've got a job to do, so we'll get on.’ (Long and Harley, 2014, p. 5)

 

The then Deputy Commissioner – now AFP Commissioner – Andrew Colvin was clearly uncomfortable with the nature of the deployment: “… no we can’t be comfortable, but we have … dealt with the risks… We haven’t deployed in a conflict zone in this manner before…”(Massola and Bourke, 2014). In many ways IMPI represented a first generation peacekeeping operation in a third generation environment, a problematic environment for peacekeeping according to former UN Secretary-General Kohan Annan (Annan, 2014, pp. 141-145).

The use of civil police in this environment would appear to be contrary to the above mentioned literature – especially that of Mobekk (2005, p. 3) -- that they should not be deployed to situations of heightened conflict: this could again suggest that the AFP IDG is more of a quasi-gendarmerie type element. There has been mixed comment on this subject with the Lowy Institute military fellow James Brown indicating that it was the ‘right call’ to use police in this instance, whilst the executive director of the ASPI Peter Jennings observed “Police operate in dangerous environments but they don’t go to military conflict zones” (Wroe and Massola, 2014). Furthermore, the use of the AFP IDG may have just been an exception to the general rule in a unique situation (Withheld, personal communications, 8-9 January 2015). Nonetheless, it has been stated by Findlay (1996, p. 34)  that greater legitimacy is achieved by the use of unarmed peacekeepers.

Criminal Investigation

The criminal investigation into MH17 is quite separate to that of the aviation investigation which will be discussed later. There are two parts to the criminal investigation – general investigation and DVI – which will be discussed in this section; however, first a brief discussion will be undertaken regarding international police cooperation. Cooperation amongst policing agencies has its origins in returning offenders from one jurisdiction back to the place of their alleged crime to face justice (Deflem, 2002, p. 135).  After a number of failed starts, the ICPC – the forerunner to Interpol – was a product of the International Police Congress, held in Vienna 1923. Interpol is different amongst many international organisations such as the UN in that it is a bottom up organisation created by policing agencies rather than diplomats (Gerspacher and Dupont, 2007, p. 349). It allows a meeting of what Grespacher and Dupont (2007, p. 352) describes as the international and sub-national elements of international security networks, bypassing the national.  As they point out, bilateral agreements build greater cooperation (Bislev, 2004, p. 13).

Just months before MH17 the ‘Memorandum of Understanding between the Australian Federal Police and the National Police of the Netherlands on the Combating Transnational Crime and Developing Police Cooperation’ came into effect on 2 June 2014 (2014, “Treaty between Australia and the Netherlands”, p. 1). As part of UNSC resolution 2166 a Joint Investigative Team was established with the formal members –  according to DFAT – being Netherlands, Australia, Belgium and Ukraine with the Dutch Public Prosecutor Service taking the lead (L. Filipetto, personal communications, 24 November 2014). The role of the JIT is to coordinate (1) the investigation, (2) collection of intelligence and (3) preservation of evidence. A part from those countries who are formal members of the JIT others participate: for instance the London Metropolitan Police Counter Terrorist Command provides support under a letters of agreement with Commander Richard Martin attending the bi-monthly JIT meetings (T. Burns, personal communications, 16 December 2014).  Jacqueline Ellery (personal communications, 5 December 2014) of the AFP outlines that the investigation “... involves the conduct of a criminal investigation across multiple foreign jurisdictions and involving the cooperation of numerous foreign countries.” Unfortunately the AFP did not provide any further details, however, the British High Commission outlined that the investigation is examining war crimes, terrorism, murder and the destruction of an aircraft
(T. Burns, personal communications, 16 December 2014).

The second part of the criminal investigation involves DVI, which is the identification and return of remains to the victims’ families: such activities and the determination of the cause of death are normally the responsibility of the state of occurrence (Lunett et al., 2003, p. 204). However, from media reports it is clear that again Dutch authorities took the lead with international assistance (Miller, 13 August 2014). Interpol has developed protocols for  international DVI cooperation and does play a role in determining which country will send DVI experts; for instance, this occurred in the 2001 crash of SAS flight SK686 at Milan Linate airport Italy (Lunett et al., 2003, pp 204, 207). Although the AFP did not provide details on this matter, from media reports it appears that a team of 35 DVI experts led by Simon Walsh were sent to the Netherlands (Miller, 13 August 2014). The UK High Commission indicated that they had sent investigators to assist in this process as well
(T. Burns, personal communications, 16 December 2014).

Aviation Investigation

Aviation investigations are a quasi-policing function in that agencies such as the ATSB have policing type powers and would meet some of Mawby’s (1999, p. 20) definition of police. However, the purpose behind the investigation is different: the objective of such investigations is to prevent accidents from reoccurring not to proportion blame (ICAO, 2010, p. 3-1). For instance, the NTSB manual for investigators clearly states that law enforcement – i.e police – are not to participate in the investigation (NTSB, 2002, p. 50). The investigation of such accidents is governed by the Chicago Convention and in particular the document known as Annex 13 that all member states use as a basis for their manuals and procedures (L. Filipetto, personal communications, 24 November 2014 and S. Cheung, personal communications, 9 December 2014). The investigation is the responsibility of the country where the accident took place and cooperation is the hallmark of any such investigation (ICAO, 2010, p. 3-1).

In such investigations member states to the ICAO – the governing body under the Chicago Convention – routinely cooperate and exchange representatives to develop working knowledge of the other’s procedures (L. Filipetto, personal communications, 24 November 2014). Gerspacher and Dupont (2007, p. 357) argues that such person-to-person exchanges and relationships have been shown as important when it comes to police cooperation. Furthermore the regulatory agencies of the two major commercial aeroplane manufacturing countries – NTSB in U.S. and BEA in France – have established a memorandum concerning how they will cooperate and mutually inform each other in the event of an aviation accident or incident (NTSB, 2002, p. B46). Under Annex 13 participation by outside agencies is an essential element in determining what has occurred: they are known as accredited representatives (NTSB, 2002, p. S1). Normally the country of manufacture, operator and registration are invited to nominate accredited representatives; however, a country with special interest by ‘virtue of fatalities of citizens’ is entitled to also nominate accredited representatives (ICAO, 2010, p. 5-8).

The aviation investigation into MH17 followed this pattern of cooperation. The BEA describes three phases of an investigation – (1) identification, preservation and information gathering, (2) examination and research, and (3) analysis and conclusions – only the first of which being conducted in Ukraine with the remainder being conducted in the Netherlands (BEA, “The BEA”). Building upon well-established protocols and working relationships accredited representatives – including the ATSB – attended the crash site to conduct the first stage of the investigation (PMO, 2014). According to DFAT the countries that contributed to the aviation investigation included Australia, Malaysia, Russia and Ukraine (L. Filipetto, personal communications, 24 November 2014). In accordance with IOCA guidelines, Ukraine was initially responsible for conducting the investigation; however, that responsibility was delegated to the Netherlands on 26 July 2014 (ICAO, 2010, p. 5-2 and Wroe, Hartcher, Massola, 2014, p. 4).  It would also appear that the investigation was provided with surveillance footage from U.S. satellites. The initial report by the Dutch Safety Board ruled out pilot error or mechanical fault with the evidence pointing towards a SAM (PMO, 2014 and Long and Harley, 2014, p. 2).


Conclusion

This paper has shown that MH17 has been a positive example of cooperation in a multi-dimensional scenario where existing networks and organs of cooperation were utilised and new one were formed for this unique situation. Some of the actions followed the literature for cooperation whilst others – especially the deployment of unarmed police into a conflict zone – do not. However, such a conflict is dampened if the AFP IDG is categorised as a quasi-gendarmerie or may just be an improvised response – the hallmark of policing – to a unique situation. A positive, out to the tragedy of MH17, has been the enhancement of relationships: in particular between Australia and the Netherlands. This is evident in the following quote from a speech by the Netherlands Prime Minister Rutte:

[I] express my appreciation once again for the excellent cooperation we experienced with Australia in the aftermath … Together with Malaysia, which was also hit hard by the disaster, Australia and the Netherlands form a ‘coalition of the grieving’. … [W]orking closely to achieve our common goals: repatriating any further human remains and personal belongings, investigating the facts of the disaster and conducting a criminal investigation. … [N]othing else, the MH17 tragedy has strengthened the longstanding ties of friendship between our countries. (Rutte, 2014)

Overall this was a positive example of international cooperation, built in a very demanding and difficult situation.

 

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Uhlmann, C. (2014, 22 July) (b). UN Security Council unanimously passes resolution on MH17 crash. AM. (Transcript accessed from www.abc.net.au on 13 November 2014)

Williams, P. (2014, 29 July). Julie Bishop in Kiev to push for unfettered access to MH17 site, AM. (Transcript accessed from www.abc.net.au on 13 November 2014)

Williams, P. (2014, 7 August). Investigators leave MH17 crash site. Lateline. (Transcript accessed from www.abc.net.au on 13 November 2014)

Woodley, N. (2014, 1 August). Palmer: AFP should return from MH17 investigation in Ukraine. AM. (Transcript accessed from www.abc.net.au on 13 November 2014)

Woodley, N. (2014, 28 July). AFP to try again tonight to access MH17 crash site. PM. (Transcript accessed from www.abc.net.au on 13 November 2014)

Wroe, D. and Massola, J. (2014, 25 July). AFP may still get backup at war-torn site. Sydney Morning Herald, p. 4.

Wroe, D., Hartcher, P. and Massola, J (2014, 26 July). Soldiers join mission to find MH17 victims. The Age, p. 4.

Yaxley, L. (2014, 21 July). Australia lobbying for an independent investigation into the missile attack on MH17. PM. (Transcript accessed from www.abc.net.au on 13 November 2014)

Yaxley, L. (2014, 23 July). Abbott calls for an operation to secure MH17 crash site for a forensic investigation. PM. (Transcript accessed from www.abc.net.au on 13 November 2014)

Statutes and Treaties

Australian Federal Police Act 1979 (Cth).


Transport Safety Investigation Act 2003 (Cth)


 

 

 

 


 

Annex A – Article on contemporary situation of bilateral, multilateral cooperation.

 John Stewart (2004, 29 July) ‘Fighting stops police.’ Lateline.

 


 
Annex B – Research Outline
This paper has been based on a literature review of over seventy items consisting of a wide range of sources including peer reviewed journal articles, reference books, official publications and manuals, official statements, media articles, biographical publications and web pages. These documents were located using a number of keyword searches of the Charles Sturt University Library catalogue Primo, Moonee Valley Library catalogue  and Google Scholar. Furthermore, a review of the holdings on ABC Online was made with additional keyword searches made of that site. The ABC site was utilised  due to the statutory independence of the organisation and that along with original articles transcripts are provided of radio and television programs. Primary research was undertaken in the form of a series of structured questions and a number of requests were submitted in accordance with the Freedom of Information Act 1982 (Cth).

 

Primary Research

A series of structured questions were sent to relevant Australian agencies and ministers, commentators and foreign missions.  These questions are reproduced below:

  1. What international agreements did you utilise in the preparation of this mission?
  2. Who were Australia’s international partners?
  3. Do you consider Australia’s seat on the United Nations Security Council was essential to being able to achieve this mission?
    1. If not what other international forums could have assisted in this mission?
  4. How did the relationships/processes developed in response to MH370 able to assist in the development of the response in this instance?
  5. The use of police personnel.
    1. Do you consider the use of police personnel were effective in this instance?
    2. Do you consider alternative personnel may have been more effective? For example infancy troops or Military police?
    3. Among others Mobekk (2005) has argued that police “… should not be deployed in areas of extreme conflict and instability. A minimum level of stability and security should be established prior to the deployment of the civilian police.” Do you consider that this applied to this mission?
    4. Do you consider the establishment of an agency similar to the French Gendarmerie would be more effective in these cases than civilian police?
  6. Bilateral relationships.
    1. Do you believe that this response demonstrates an effective example of bilateral or multilateral coordination?
    2. How has this instance improved Australia’s bilateral relationships at both the national level and agency level with partners?
Dependant on the recipient these questions were slightly altered. 

Results
Of fourteen individual requests sent, eight responses were received: six provided information, one stated that they had nothing to contribute and one was returned unopened. The responses with information came from:

1.      Mark McIntyre, AFP dated 19 November 2014;
2.      Lisa Filipetto, DFAT dated 24 November 2014;
3.      Jacqueline Ellery, AFP dated  5 December 2014;
4.      Salina Cheung, ATSB dated 9 December 2014;
5.      Thomas Burn,  British High Commission Canberra dated  16 December2014; and
6.      ‘Defence Spokesperson’ dated 22 December 2014.

Furthermore, a detailed conversation was had with John Taylor a senior investigator with ATSB on 4 December 2014. A series of correspondence also occurred with a well-connected source with knowledge and experience in federal law enforcement: that person’s name has been withheld.

The majority of these responses provided a very useful insight into the workings of decision makers into the MH17 response: confirmed research already undertaken and provided further avenues of research. However, the response from Mark McIntyre of the AFP – which was sent on behalf of the Minister of Justice – was evasive and refused to answer the questions posed directly and referred back to the minister who he was writing on behalf: hiding under the cloak of ‘ongoing operational matters.’ This was despite IMPI had pulled out at least three months previous. A response to a subsequent letter to the minister has not at the time of writing been received. Furthermore, at the time of writing the freedom of information request to the AFP – which has been plagued by misinterpretation, delay and failure of process -- now is overdue and as such is deemed to have been denied by Freedom of Information Act 1982 (Cth). Just before this paper was completed, the AFP was given notice of adverse references were going to be made and given the right to clarify or response: no response has been received at the time of writing. Of note, other Australian Government agencies provided more information regarding the activities of the AFP than that provided by the AFP.
 
 
 
 
Annex C – Acronyms and abbreviations
 
ABC
Australian Broadcasting Corporation
ADF
Australian Defence Force
AFP
Australian Federal Police
ASPI
Australian Strategic Policy Institute
ATSB
Australian Transport Safety Bureau
BEA
Bureau d'Enquêtes et d'Analyses pour la sécurité de l'aviation civile (French authority responsible for safety investigations into accidents or incidents in civil aviation).
DFAT
Department of Foreign Affairs and Trade
DVI
Disaster Victim Identification
ICPC
International Criminal Police  Commission
IDG
International Deployment Group
IMPI
International Mission for the Protections of Investigation (Peace operation in Ukraine)
JIT
Joint Investigative Team
NTSB
National Transportation Safety Board
ORG
Operational Response Group (AFP IDG element)
RACMP
Royal Australian Corps of Military Police
SAM
Surface to air missile.
SRG
Specialist Response Group (AFP IDG element)
PMO
Prime Minister’s Office (Australia)
U.K.
United Kingdom
U.S.
United States of America
UN
United Nations
UNEF
United Nations Emergency Force (in the Middle East)
UNSC
United Nations Security Council
  
Annex D – ICAO ’Accident’
 Accident.
 
An occurrence associated with the operation of an aircraft which, in the case of a manned aircraft, takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked… in which:
a)      a person is fatally or seriously injured …
b)      the aircraft sustains damage or structural failure … or
c)      the aircraft is missing or is completely inaccessible.
(ICAO, 2010, p 1-1)
 Annex E – MH 17 Timeline.
Date
Event
21 February 1973
Libyan Arab Airlines 114 shot down by Israeli jets.
(Gero, 2006, p.116)
1 September 1983
Korean Airlines 007 shot down by Soviet jets.
(Gero, 2006, p. 179)
3 July 1988
Iran Air A300 shot down by US Navy SAM.
(St. John, 2007, p. 211)
21 December 1988
Pan Am 103 explodes over Lockerbie 40 minutes after taking off from London Heathrow.
(St. John, 2007, p. 214)
2 October 1990
Iraqi Airways jet on military charter shot down by SAM after taking off from Kuwait City airport.
(Gero, 2006, p. 229)
22 September 1993
Trainsair Georgia Airways jet on military charter shot down by Abkhazi separatists SAM.
(Gero, 2006, p. 245)
4 October 2001
Sibir Airlines (Russia) jet shot down en route from Tel Aviv, Israel to Novosibirsk, Russia by Ukrainian military SAM accidently during a training exercise.
(Gero, 2006, p. 329)
8 October 2001
SAS SK686 crashes at Milan Linate airport Italy.
(Lunett et al., 2003, p. 204)
8 March 2014
Malaysian Airlines MH270 disappears from radar and is not been located despite extensive searching.
2 June 2014
Memorandum of Understanding between the AFP and the National Police of the Netherlands on the Combating Transnational Crime and Developing Police Cooperation came into effect.
(2014, “Treaty between Australia and the Netherlands”)
14 July 2014
Airspace closure in eastern Ukraine had been raised from 26, 000 to 32, 000 feet.
(Kaminski-Morrow, 2014)
17 July 2014
MH17 was shoot down en route from Amsterdam to Kuala Lumpur over eastern Ukraine, killing all 298 people on board.
(Patrikarakos, 2014)
 
It is evident from surveillance data that several aircraft travelled along the flight path designated L980 towards the waypoint TAMAK on the Russian border through eastern Ukraine.
(Kaminski-Morrow, 2014)
 
Announcements
  1. Ukrainian President Petro Poroshenko called for an immediate investigation into the downing MH17.
  2. Konstantin Knyrik, a separatist spokesman told the Interfax news agency that they “… will engage in documentation and investigation of the incident…”
  3. “Malaysian Prime Minister Najib Razak later said a full and independent investigation would be undertaken and that Ukrainian authorities would negotiate with rebels to create a ‘humanitarian corridor’ free of fighting to the crash site.”
(Pasztor and  Ostrower 2014)
17 July 2014
New York Times reported US “…Vice President Joseph R. Biden Jr. said bluntly that the aircraft with 298 people on board was ‘blown out of the sky,’ and the White House late Thursday issued a statement linking the crash to a crisis ‘fueled by Russian support for the separatists.’”
(Baker and Shear, 2014)
 
ATSB  “On 17 July 2014 a Malaysia Airlines Boeing 777-200, registered 9M-MRD, en route from Amsterdam in the Netherlands to Kuala Lumpur, Malaysia, disappeared from air traffic services radar overhead the Ukraine.”
(ATSB, 2014)
18 July 2014
Announcements
  1. U.S. President Barack Obama, “Evidence indicates that the plane was shot down by a surface-to-air missile that was launched from an area that is controlled by Russian-backed separatists inside of Ukraine.”
  2. Russian President Vladimir Putin, “This tragedy wouldn't have happened if there were peace in that land and if the fighting had not resumed in the south-east of Ukraine. And of course, the state over which this tragedy happened is responsible for this terrible tragedy.”
  3. Australian Prime Minister Tony Abbott, “This looks less like an accident than a crime. I want to repeat this: as things stand, this looks less like an accident than a crime. And if so, the perpetrators must be brought to justice.”
(Long and Harley, 2014)
19 July 2014
Ambassadors at the UN call for a thorough independent investigation into the incident. Australia calls for a UNSC resolution.
(Millar, 19 July 2014)
20 July 2014
OCSE observers’ access to crash site was blocked by gunmen in camouflage uniforms and balaclavas.
ASPI Peter Jennings comments that “On the ground, it would seem that the militiamen are working hard to limit access to the site, and also to remove both bodies and any other evidence of the missile from the site.  I don't think there's going to be real cooperation on the ground in order to find, to produce a genuine investigation outcome.”
Australian Foreign Minister Julie Bishop negotiates wording of UNSC Resolution.
(Wroe and Massola, 2014)
 
ATSB appointed accredited representative to MH17 investigation.
(ATSB, 2014)
21 July 2014
UNSC unanimously passes resolution 2166.
(Uhlmann, 2014 (b))
 
Australian Foreign Minister Julie Bishop, “The message from this unanimous resolution [UNSC 2166] to those at the site is: do not tamper with the evidence. Allow the investigators full access, unimpeded, unfettered, to the site. Do not touch the belongings of the victims. They are not yours. They belong to the families and they are evidence. And allow the bodies to be retrieved.”
(Long and Harley, 2014)
 
ATSB investigators depart for Ukraine.
(ATSB, 2014)
23 July 2014
Australian Prime Minister Tony Abbott stated:
“… the Australian Government is looking at options for creating a safe environment for the forensic search of the area covered by the crash trail.”
“We are talking to our partners in grief about more work at the United Nations and elsewhere to support the UN resolution. … If we look at paragraph six of the resolution, it demands that the armed groups in control of the crash site and  the surrounding area refrain from any actions that may compromise the integrity of the site, including by refraining from destroying, moving or disturbing wreckage, equipment, debris, personal belongings or remains.”
(Yaxley, 2014)
 
Two Ukrainian jets were shot down by rebels in eastern Ukraine. Kiev claimed that rebels were abandoning positions and are retreating to Donetsk. Australian envoy Angus Houston observed that the Ukrainian Government was committed to its ‘anti-terrorist operation’ in Eastern Ukraine and that the presence of foreign military on its soil might be a ‘bridge too far.’
(McGeough, 25 July 2014)
 
“… the Ukrainian Government delegated the conduct of the investigation to the Dutch Safety Board under clause 5.1 of Annex 13.”
(ATSB, 2014)
25 July 2014
Australian Prime Minister Tony Abbott accuses Russian backed rebels of tampering with evidence on ‘an industrial scale.’
(AFP, 25 July 2014)
 
Fifty AFP officers pre-deployed to London. Australian Prime Minister Tony Abbott acknowledged that the mission may face difficulties as armed pro-Russian militia maintain control over the area.
(Wroe and Massola, 2014)
 
AFP members wait in London for deal with Ukrainian President Petro Poroshenko to be approved by the country's parliament.
“This is a humanitarian mission, with a clear and simple objective,” Australian Prime Minister Tony Abbott told reporters. “I expect the operation on the ground in Ukraine, should the deployment go ahead, to last no longer than a few weeks.”
(AFP, 25 July 2014)
 
A group of investigators reach the crash site including three Australians.
Australian Foreign Minister Julie Bishop negotiating with the Ukrainian Government to attempt to find a way of keeping armed rebels away from the crash site.
Ukrainian Prime Minister resigned.
(Stewart, 2014)
26 July 2014
Australian Prime Minister Tony Abbott said that ADF personnel will be used to secure the crash site should a mission go ahead. Australian Foreign Minister Julie Bishop signed a deal with her Ukrainian counterpart for Australian officials to operate in Ukraine including clarifying legal liability
(Wroe, Hartcher and Massola, 2014)
 
Ukraine formally handed over responsibility for the crash investigation to the Netherlands.
(Wroe, Hartcher and Massola, 2014)
27 July 2014
Australian Prime Minister Tony Abbott announced Australia’s involvement in the unarmed Dutch-led police mission IMPI. “Our objective is to get in, to get cracking, and to get out.”
The OSCE decided that it would be too dangerous to proceed to the site.
(Woodley, 28 July 2014)
27 July 2014
AFP announces that
“The AFP has deployed 190 officers to Europe, with about 20 stationed in the Netherlands and the rest in the Ukraine.”
“Foreign Minister Julie Bishop has signed an in-principle deal with her Ukrainian counterpart allowing access for armed Australians, and has been lobbying for Ukraine's parliament to ratify the agreement by early next week.”
(AFP, 27 July 2014 (a))
 
AFP reported “[d]ue to intensified fighting both on the road to the crash site, as well as at the crash site itself, a joint decision was taken by the Australian and Dutch team, in consultation with the OSCE, to not attempt access to the site on this day. As stated by Commissioner Negus earlier today, access to the site will only occur if it is safe to do so.”
(AFP, 27 July 2014 (b))
28 July 2014
Convoy carrying IMPI drove into the middle of a battle for Shakhtarsk. It was therefore considered too dangerous to proceed to the crash site.
(McDonell, 29 July 2014 (a))
 
ABC reporter Stephen McDonell reports that there was a large battle taking place near the rebel-held city of Donetsk effectively blocking access to the crash site.
(McDonell, 28 July 2014)
 
The Netherlands and Ukraine sign agreement for IMPI
(2014, “Treaty between Australia and the Netherlands”)
29 July 2014
AFP Deputy Commissioner Andrew Colvin expresses concern that the multinational team -- consisting of 11 AFP officers and 38 Dutch officials – will be unarmed.
(Massola and Bourke, 2014)
 
Chris Uhlmann on ABC radio reports that, “Fierce fighting in eastern Ukraine has again forced Dutch and Australian investigators to abandon attempts to reach the wreckage of MH17. …the United Nations saying nearly 800 people have been killed since mid-April and more than 2,000 wounded.”
(McGeough, 25 July 2014)
 
Australian and Dutch foreign ministers try to ‘clear political hurdles’ for IMPI.
(Williams, 29 July 2014)
 
AFP reported “[t]he team decided not to attempt to travel to the site as fighting had intensified in recent days and had led to the mission being aborted on both previous attempts.”
(AFP, 29 July 2014)
1 August 2014
ABC Stephen McDonnell reports that “Two Australians, two Dutch and a couple of others from OSCE … did get through. …the drive to the crash site normally takes about an hour; they got there in six hours. … [They] had to travel between, in and out of various sides of the battle lines.”
AFP Commander Brian McDonald, “Today was more about an assessment of the site than it was of a search.”
(McDonell, 1 August 2014)
 
Palmer United Party (Australia) leader Clive Palmer calls for withdraw of IMPI from the conflict zone citing that recovery operation should not put others’ lives in danger.
(Woodley, 1 August 2014)
 
ATSB redeploy to the Dutch Safety Board headquarters in the Netherlands.
(ATSB, 2014)
 
Australia and the Netherlands sign an agreement for Australian officials – including AFP and ADF – to operate on Dutch soil.
(2014, “Treaty between Australia and the Netherlands”)
3 August 2014
AFP reported that a:
  team of Australian and Dutch officials, accompanied by independent monitors from the … OSCE, today successfully accessed the MH17 crash site for the third consecutive day. A total of 34 AFP officers are among a contingent of approximately 80 officials… Coordinated searches of the site over recent days have found human remains and personal effects of some of the victims. …The team is utilising the resources of all countries involved, including the use of cadaver canines.
(AFP, 3 August 2014)
4 August 2014
ABC reports that IMPI continue work at the crash site and “…while they've been given assurances of safety from both sides, a shell landed dangerously close to their convoy on the most recent trip to the crash site.”
(McDonell, 4 August 2014)
7 August 2014
Shooting near the crash site forced investigators to take shelter resulting in the IMPI pulling out.
Australian envoy Angus Houston,
… we're getting to the point where people are going out there, unarmed, with what appears to be a worsening situation around them and I think it got to the point where - diminishing returns. The security situation was fluid and we were worried that at some stage, there might be a miscalculation or a mistake and we would be caught out. Now, we think we've got most of the remains, but, we'd like to go over the ground at a time when the vegetation is more helpful, perhaps in the autumn when – before the snows come, when all the vegetation disappears…when the security situation improves and our experts can actually do their work without worrying about the security situation.
(Williams, 7 August 2014)
10 September 2014
Dutch officials announce preliminary findings of crash investigation that MH17 was brought down by a surface-to-surface missile fired by the Ukrainian separatists.
(Long and Harley, 2014)
6 November 2014
Dutch Prime Minister Rutte states “… nothing else, the MH tragedy has strengthened the longstanding ties of friendship between our two countries [the Netherlands and Australia]. I would like to see us broaden and deepen those ties even further into the future – at political, economic and cultural level.”
(Abbott, 2014)
 
 
 

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