Investigators trying to solve the disappearance without trace of the Malaysia Airlines jetliner face an extremely rare challenge that could hinder their efforts: they lack the powers of a formal air safety investigation. Four days after Flight MH370 went missing in mid-air with 239 people on board, no nation has stepped forward to initiate and lead an official probe, leaving a formal leadership vacuum that industry experts say appears unprecedented.
Malaysian officials are conducting their own informal investigations, in cooperation with other governments and foreign agencies, but they lack the legal powers that would come with a formal international probe under U.N.-sanctioned rules. Those powers include the legal rights to take testimony from all witnesses and other parties, the right to have exclusive control over the release of information and the ability to centralise a vast amount of fragmentary evidence.
A senior official familiar with the preliminary Malaysian probe said Malaysian authorities could not yet convene a formal investigation due to a lack of evidence on where – namely, in which national jurisdiction – the Boeing 777-200ER jet crashed. He said this was not hampering their work, that preliminary investigations had begun and that they were working with their neighbours, U.S. officials and the jet’s maker, Boeing.
The Malaysians have begun collecting information from neighbouring countries without any problems, including air-traffic control communications and radar data, he said. “There have been no issues in getting that information.”
But Southeast Asian waters are rife with territorial disputes, and any decision by Malaysia to unilaterally open a formal investigation under U.N. rules could be seen as a subtle assertion of sovereignty if the crash site turns out to be inside another country’s territory.
Without a formal investigative process being convened quickly under rules set out by the International Civil Aviation Organization (ICAO), a U.N. agency, there is a risk that crucial early detective work could be hampered, and potential clues and records lost, air accident experts said.
Witnesses such as cargo handlers, mechanics and company officials might be reluctant to speak to Malaysian investigators who were operating outside a formal ICAO-sanctioned probe which could offer them some protection from law suits, experts said. “The sole objective of an accident investigation is to prevent future accidents and not to apportion blame or liability,” said aviation lawyer Simon Phippard of international legal firm Bird & Bird. “The international standards attempt to provide a degree of protection, for example from criminal prosecution, for individuals who give statements to the enquiry.”
The lack of a formal investigation also means Malaysia does not have exclusive control over the release of information or the ability to centralize fragmentary evidence such as wreckage parts and witness accounts, effectively continued…