Letter of 28 January 2015 to the President of the House of Representatives from the Minister of Security and Justice, the Minister of Foreign Affairs, the Minister of Defence and the State Secretary for Infrastructure and the Environment, responding to questions submitted by MPs Sjoerd Sjoerdsma and Pieter Omtzigt on 12 January 2015, concerning the information known to the Netherlands prior to the MH17 air disaster. Questions from MPs Sjoerd Sjoerdsma (D66) and Pieter Omtzigt (CDA) to the Ministers of Security & Justice, Foreign Affairs and Defence, concerning the information known to the Netherlands prior to the MH17 air disaster (submitted on 12 January 2015). 1 How many aeroplanes and helicopters were known by the government to have been downed in eastern Ukraine in the period from 15 April to 17 July 2014? Answer: According to our information, in the period from 15 April to 17 July 2014, 11 aeroplanes and 8 helicopters crashed in eastern Ukraine. There is no detailed and validated list available, as this is information from public sources, released by parties with different interests, and it is not our intelligence services’ task to investigate this. 2 Can you give an overview of all serious indications (verified and unverified) that the airspace over eastern Ukraine was unsafe, known to the government in the period from January 2014 to 17 July 2014? Answer: The Dutch Safety Board (OVV) is investigating the decision-making on selecting flight routes. For that purpose it will interview parties involved in civil aviation security. As to what information may have been available to the intelligence and security services (I&S services), the OVV will be assisted by the Intelligence and Security Services Review Committee (CTIVD). You were informed to that effect in the letter from the CTIVD to the House of Representatives of 22 December 2014 (ref. 2014/0224). AVT15/JU114460B 1 3 Can you provide a list of downed aeroplanes and helicopters, validated by our intelligence services, as known at the time of the disaster and as currently known? Answer: As the information (from public sources) could not be confirmed by the Dutch intelligence services, there is no officially validated list of downed or crashed Ukrainian aeroplanes and helicopters. 4 In the period from January 2014 to 17 July 2014, what agencies and services under the responsibility of which members of government had access to information regarding the safety of the airspace over eastern Ukraine, and what information was this? Answer: This matter will also be addressed in the OVV investigation, as mentioned in the response to question 2. 5 Can you send the report of the briefing in Ukraine of 14 July 2014 to the House of Representatives? Answer: On 23 January 2015 the House of Representatives was informed that the report itself will not be made public (Parliamentary Papers 2014-2015, 33 997, no. 28). Reports of such briefings and other diplomatic contacts must be drafted and handled confidentially. The purport of the briefing has already been discussed in the response to previous parliamentary questions. The report has been made available to the OVV in accordance with the Kingdom Act establishing the Dutch Safety Board, for the purpose of the current, independent investigation. 6 What agencies and services received the report of the briefing and when, and what action was considered as a result of that report? AVT15/JU114460B 2 Answer: The report was received on 14 July by the Ministry of Foreign Affairs and the Ministry of Defence. On the same day, the essential details of the briefing were sent to the Ministry of Security and Justice, the Ministry of the Interior and Kingdom Relations, the Ministry of Finance and the Ministry of General Affairs. The report helped to shape the position taken at the European Council meeting of 16 July 2014 with regard to sanctions. 7 Can you provide access to all correspondence that took place within the Dutch government concerning the downing of the Antonov on 14 July, and the measures resulting from that correspondence? Answer: The correspondence referred to in question 6 will be made available to the OVV in accordance with the Kingdom Act establishing the Dutch Safety Board, for the purpose of the current, independent investigation in which the OVV is being assisted by the CITVD. 8 On what occasions in 2014 did the Ukrainian authorities provide information on the safety of their airspace to Dutch authorities? Can you say what exactly was conveyed on each occasion? Answer: Ukrainian air traffic control issued several Notices to Airmen (NOTAMs) on the situation in eastern Ukraine. The last NOTAM issued prior to the downing of flight MH17 closed part of eastern Ukrainian airspace below 9.7 km (flight level 320). Current NOTAMs are publicly available on the website of Eurocontrol. Besides these NOTAMs, Ukraine provided no information prior to 17 July relating to the safety of the airspace over eastern Ukraine. There were no specific consultations on the safety of the airspace over eastern Ukraine. After 17 July Ukraine discussed the airspace over eastern Ukraine in the light of the security situation in several international consultations. By that time the airspace had been closed. In addition, in connection with the situation in Crimea, the Ukrainian authorities made a number of statements about their airspace at various European meetings. As both Ukraine and AVT15/JU114460B 3 Russia laid claim to air traffic control in that airspace, the situation became unsafe. This led a number of airlines to avoid the airspace over Crimea, including the Dutch airlines. This had been the case since the conflict in Crimea in early April. 9 Given what you have referred to as the public knowledge that many aeroplanes and helicopters were downed (or crashed) in the months prior to 17 July 2014 and given the public knowledge that on 14 July 2014 an aeroplane flying at an altitude of 6.5 km was most likely downed, was it responsible to fly over the area in eastern Ukraine? If flying over eastern Ukraine was responsible, why were airlines like British Airways and Air France circumventing the area? If flying over eastern Ukraine was not responsible, should KLM have concluded that itself or should the government have warned them? Answer: The Ukrainian authorities are responsible for their airspace. It is known for a fact that in the months prior to 17 July several airlines were flying over the area in eastern Ukraine. There was no information known about any specific threats to civil aviation above the 9.7-km limit (the limit announced in the NOTAM). Airlines are responsible for operating their flights safely, and for that purpose they make their own risk assessments. This is done on the basis of official announcements by countries about their own airspace (NOTAMs) and information from other sources. The information known to various airlines can therefore differ, as can the considerations involved in their decision-making. This explains why some airlines did fly over the area in eastern Ukraine (including Air France, Virgin Atlantic and Lufthansa) and others did not (British Airways, Korean Air). The crash of the Antonov on 14 July and the reports about that crash did not change anything in that respect. The current international system concerning the availability and use of airspace is based on three important pillars: a country’s sovereignty over its own airspace; binding international rules such as the Convention on International Civil Aviation; and the airlines’ own responsibility for operating their flights safely. Only if the Dutch intelligence and security services receive specific information with regard to a threat to civil aviation will they share it with the Dutch airlines. As mentioned earlier, the Dutch Safety Board (OVV) is investigating the decision-making on selecting flight routes. There are also international efforts within the International Civil AVT15/JU114460B 4 Aviation Organization (ICAO) to find ways to improve civil aviation safety above conflict zones (see Parliamentary Papers 33 997, no 15 and 31 936, no 232). 10 Is it true that, in the past, services provided information to airlines concerning the safety of airspace over dangerous countries like Afghanistan? Answer: The I&S services do not investigate global threats to civil aviation and Dutch airlines; that is not their task. But if, on the basis of other investigations, they receive information on specific threats to civil aviation, they will inform Dutch airlines accordingly. They do this through or in consultation with the National Coordinator for Security and Counterterrorism (NCTV). 11 How is information on dangers in areas such as Syria, Iraq (especially areas controlled by ISIS, which is acquiring increasingly advanced weapon systems) and Egypt (Sinai) shared with the airlines? Answer: The intelligence and security services do not investigate global threats to civil aviation and Dutch airlines. They do share information on specific threats to civil aviation received as a result of other investigations with the parties involved. If the services receive such information from other countries, it is always shared with the airlines through or in consultation with the NCTV. 12 Do Air France and KLM each hold separate Air Operator Certificates (AOCs) or do they jointly hold one? Answer: KLM and Air France each hold their own Air Operator Certificate. AVT15/JU114460B 5 13 Are Air France and KLM obliged to share security information with each other? Answer: KLM and Air France are not obliged to share security information (in the sense of data about airspace safety) with each other. KLM and Air France do, however, share this information with each other, and they both use the same risk assessment methodology. 14 Why did you initially think that you could convey information on the options for prosecution and trial while the criminal investigation was still ongoing, and is that same investigation now the reason not to convey the information? Answer: After the Minister of Security and Justice had promised a memorandum on prosecution and trial options in general, the House of Representatives was informed confidentially by the Public Prosecution Service on the state of the investigation.