More On MH17–3 Aug 14 II

Putin Isn’t Panicking
The Flight 17 disaster is just one misstep in the Russian president’s wider war on the West
Masha Gessen
Slate | July 23 2014

Not since the collapse of the Soviet Union have so many American pundits and journalists offered such varied interpretations of so few signs coming out of the Kremlin. Everybody wants to know: What will Putin do about Ukraine in the aftermath of the downing of the Malaysian airliner? Will he withdraw? Will he invade? Is he in a panic? Is he determined to press forward with his plan to annex eastern Ukraine? The mixed messages coming from the Kremlin have provided at least some support for each of these hypotheses.

And all of them are wrong. Putin is not going to invade Ukraine or withdraw from it. He is not in a panic. He has not lost his resolve to take eastern Ukraine, nor has it been affirmed—Ukraine has very little to do with this story at all. It’s not Ukraine that Putin has been waging war against: It’s the West. And if you analyze the Russian president’s statements and actions in the past week through the prism of Putin’s great anti-Western campaign, you will find very few contradictions in them—and even less reason to hope for peace.

Over the course of two and a half years, since starting his third term as Russian president against the backdrop of mass protests, Putin has come to both embody and rely on a new, aggressively anti-Western ideology. It began with simple queer-baiting of protesters, which included accusing them of being agents of the U.S. State Department, and quickly transformed into an all-encompassing view of Russia and the world that proved shockingly powerful in uniting and mobilizing Russia. The enemy against which the country has united is the West and its contemporary values, which are seen as threatening Russia and its traditional values. It is a war of civilizations, in which Ukraine simply happened to be the site of the first all-out battle. In this picture, Russia is fighting Western expansionism in Ukraine, protecting not just itself and local Russian speakers but the world from the spread of what they call “homosfascism,” by which they mean an insistence on the universality of human rights.

Putin knows that in his war against the West he is, in some ways, outgunned: There is the sheer might of the U.S. military, there is NATO, there is, at least sometimes, a united front presented by the world’s richest industrialized nations. So Putin has to be smarter, as he understands smart: Talk a tough line but avoid open confrontation, and hit when no one is expecting him to hit. It worked with Crimea: Putin moved in when no one believed it was possible, and once he had, the balance of power had shifted and he had won. It was working well enough in eastern Ukraine, where Russian-armed and Russian-led armies got to wreak havoc under the guise of locals. Until they shot down Malaysia Airlines Flight 17, turning the underhanded operation into an open confrontation.

What various observers have perceived as a moment of truth that changes the mathematics of the Ukrainian crisis is, from Putin’s point of view, a misstep in a conflict with the West that he will be engaged in for years—until he leaves office, which he plans to do feet-first many years from now. It does not call for radical steps; it calls on Putin to be cunning in the way he obfuscates and buys time—two of the very few areas in which he is actually capable of being cunning.

To buy time, Putin issued a middle-of-the-night video address from his residence outside of Moscow. Posted at 1:40 in the morning on Monday, it contained generalities and falsehoods—he claimed, for example, to have repeatedly called for peace talks—but what it did not contain was a condemnation of the downing of the plane or any real attempt to distance himself from the so-called separatists.

He proceeded to hold an emergency meeting of the Russian security council on Tuesday. When the meeting was called, many opposition-minded Russians expected the announcement of a crackdown: Putin has often used tragic events as a pretext for measures such as abolishing elections or limiting media freedom. This time, however, nothing like that happened and Russian liberals breathed a collective sigh of relief. As far as foreign observers could tell, Putin said nothing of consequence. But here is what he said at the start of his talk: “Obviously, there is no direct threat facing our country’s sovereignty and territorial integrity today, of course. This is guaranteed primarily by the strategic power balance in the world.” Translated, this means, I gathered you here today to remind the world that Russia is a nuclear power. And here is what he said as he was wrapping up: “We will respond in an appropriate and commensurate manner if NATO’s military infrastructure gets any closer to our border, and we will not close our eyes to the development of global anti-missile defense and the growth of supplies of strategic high-precision weapons, both nuclear and non-nuclear.” Translated, this means, Know how I reminded you five minutes ago that Russia is a nuclear power? Now I’ve told you we are prepared to use our nuclear capability if you try to pull one over on us. (He went on to say that missile defense systems were actually offensive weapons.) And by the way, if you every thought we’d stop at something, you probably don’t anymore.

The following day, European countries deferred a possible decision on tougher anti-Russian sanctions. The United States released information saying there was nothing linking the Kremlin directly to the downing of the plane. The U.S. media continued to call the disaster a “plane crash.” The acute phase of the aftermath of Flight 17 appeared to be ending. Was all of this because Putin was good at scaring the West or at obfuscating? Whatever it was, his tactics had worked beautifully.

Meanwhile, on Tuesday, when he was not busy threatening the West with nukes, Putin signed several new laws. One bans advertising on paid-cable and satellite channels, effectively banning any independent television channel now or in the future from making money. (All broadcast channels are controlled by the state.) Another gives the government the tools to shut off Russians’ access to Western social networks such as Facebook or Twitter and services such as Gmail or Skype. A third provides for a jail sentence of up to four years for denying that Crimea is a part of Russia. On the same day, courts in Moscow and St. Petersburg ruled a half-dozen human rights organizations were “foreign agents,” effectively ending their activities. Putin’s war against the West and its perceived agents in Russia, in other words, continued unabated. As he sees it, the unfortunate screw-up with the plane will be forgotten soon enough. He may or may not have to cede a little on Ukraine, but that’s all right: It’s just one battle in the giant war against the West he has already unleashed.


The Downing of the Malaysian Airliner: Avoid Rushing to Judgment
Anthony H. Cordesman
Center for Strategic and International Studies | Jul 18, 2014

The exact cause of the downing of Malaysian Airlines Flight 17 remains uncertain, but seems most likely to be the result of a firing of either the SA-11 (Gadfly 1979) or SA-17 “Buk Mk. 2” missile (Grizzly 2007). The SA-11 and SA-17 launch vehicles and missiles (four per vehicle) look very similar. The 17 has upgraded missiles but it is hard to see the difference. 

It seems very doubtful that Russia would have used its SA-20(or S-300) air defense missiles, and there have been no suggestions that these are in rebel hands or they could use them. The SA-20 is an extremely sophisticated system operated by experienced crews with excellent ability to characterize flight paths and read out IIF (Identification friend of foe) and transponder data. Human error from a SA-20 unit is still possible, but seem very unlikely.

No MANPAD (man-portable air defense system) can reach and track a passenger aircraft flying at cruise altitudes of around 30,000 feet and normal flight speeds. However, both the SA-11 and SA-17 can easily intercept and track such an aircraft. Their radars can track high altitude planes to ranges of up to 120 kilometers.

Both systems can kill large aircraft flying at high altitudes. The SA-11 can hit targets at altitudes up to 45,000-60,000 feet, the SA-17 up to 70,000-82,000 feet.  Their maximum intercept maximum ranges are 12 miles (some sources say 45 kilometers) and 27 miles (some sources say 45 kilometers) respectively.

The SA-11 and SA-17 are systems that are broadly deployed in Former Soviet Union forces. They are successors to the SA-6, and are in both Ukrainian and Russian hands. Rebel holdings are uncertain, but General Philip Breedlove, NATO Supreme Allied Commander Europe, warned in June that the Russian government had been training pro-Russian separatists inside Russia to have an “anti-aircraft capability.” 

Breedlove said that, “What we see in training on the east side of the border is big equipment, tanks, APCs [Armored Personnel Carriers], anti-aircraft capability, and now we see those capabilities being used on the west side of the border,” Breedlove said he had not seen training in the smaller MANPAD systems, but, “we have seen vehicle-borne capability being trained.”

There were earlier Russian reports that the rebels had captured Ukrainian surface-to-air defense but no details. The SA-11 or SA-17 are, however, logical systems for rebels to have used earlier in shooting down a Ukrainian AN-26 military transport at a reported altitude of 26,000 feet.

A passenger aircraft would have no warning of such an attack, and its black box would not record any data on the intercept. It is extremely unlikely that the pilots ever saw the incoming missile or could accurately characterize it if they had only seconds in which to speak in ways the black box could record.

It is unclear what can be detected from photos or on-site examination. The damage might show a “fingerprint” from a given type of warhead, but it is extremely unlikely any warhead fragments will be recovered that could help track who fired the missile.

U.S. and Ukrainian surveillance assets are unclear. U.S. imagery satellites do not detect this kind of missile launch. Depending on U.S. SIGINT and ELINT assets, the United States might or might not get data on radar detection and tracking. The SA-11 and SA-17 systems also present the problem that there is a separate detection/tracking radar and command vehicle, but that the individual vehicles launching the missile have their own radars and can operate independently. The data links between the radar vehicle, command vehicle, and fire units are also often ground connections to make detection and warning more difficult – which also means less intelligence collection capability.

The circumstances surrounding the actual firing are still uncertain, but several factors are important. Ukraine did not issue a warning notice about risk to civilian airliners after the AN-26 was shot down.  Even Aeroflot did not change its flight guidance until after the airline was shot down.

The Malaysian airliner was flying from Europe and its path was similar to that a Ukrainian military aircraft might have used – although its altitude was higher and should have raised questions given the short flight time for descent before it went into Russia and the lack of a clear air facility in Ukrainian territory it could have landed upon.

Maps in the Washington Post show it was significantly further north and closer to rebel areas than the recent flight paths of other Malaysian airline flights – in fact it went right through the center of rebel held areas.

Radar does not show the size or any other aspect of a plane, it only reports speed, height, and vector over time. All blips are the same size.  There are also reaction time problems inherent in the radar data. A plane flying at commercial cruise speeds does not have a long target window for a missile with a maximum range of 12-27 miles in human reaction and command and control authorization terms even though the missile can reach peak speed of Mach 2.5.

In theory, the operators of the firing unit should have had warning that the plane had a civilian transponder, and the radar unit, command unit, and launch vehicle should all have detected this. But, if the rebels fired the missile, it is unclear that the rebels had a full set of such vehicles. They may only have had launch vehicles. This would put far more of a load on the single launch vehicle’s 3-4 man crew.

Moreover, part of the system may have been down and failed to properly display the transponder data. The rebels also may have had little real training or familiarity with the system and have been trained to fire at any likely target, rather than focus on flight characteristics and carefully look for transponder data.

Regardless of who fired the missile, human error is all too possible. Surface-to-air missile crews may have been pumped up to overreact. They may have been tired, gotten conflicting orders and vague rules of engagement data, or simply have been too new to handle the work burden. The United States shot down an Iranian airliner under somewhat similar circumstances during the “tanker war.”

It is also possible that Ukraine or Russia made some form of similar error. The basic problem is the vector. The Ukraine would have seen that aircraft was flying into Russia and already over rebel-held territory when the missile was fired. Russia would have seen a single plane flying well above military operational altitudes on a vector that would not match any Ukrainian military operation. But human error does happen, particularly when both sides may be on the edge of overreacting and have virtually no real operational experience.

In short, the fact this is a horrible human tragedy should not lead to rushed judgment as to motive, guilt, or intent. Far too little data is available, and many of the facts we do know indicate that the environment may well have led to mistakes.
Anthony H. Cordesman holds the Arleigh A. Burke Chair in Strategy at the Center for Strategic and International Studies in Washington, D.C.


Shooting in the Air
Ruth Wedgwood
The American Interest | July 23, 2014

Russia’s operatives could be taken to the International Criminal Court for their role in the downing of flight MH17 over Ukraine. Even ICC skeptics in America ought to be open to this approach.


At the height of the Soviet empire, the rule of law enjoyed little favor among apparatchiks in power. Arthur Koestler captured the point for English-speaking audiences in his ice-cold novel Darkness at Noon, describing a defendant whose crimes had to be concocted and confessed in order to purge anti-Soviet sentiment. Human rights (and the rule of law) were seen as bourgeois artifacts.

The intimacy of Koestler’s story added to its power, for it was modeled on the demise of Lenin’s own revolutionary protégé, Grigory Zinoniev, abruptly demoted to a non-person and condemned as an enemy of the state.  Many tens of thousands of dissidents in the Soviet empire met the same fate in Gulags and psychiatric hospitals. Even now, in the stalls of Moscow’s capitalist bazaars, it is considered chancy and unwise to inquire about the demise and burial place of grandparents and parents who disappeared during a century of Soviet power.

The fall of communism has made little difference in this. The wish-list of Russian intelligence operatives does not yet include the rule of law. Nor is there any surprise in the tactics chosen by former KGB agent Vladimir Putin, now president of Russia, in his project to keep his Ukrainian neighbors safely in the undertow of paralytic post-Communism. The tactics may not comport with the laws of war, much less the norms of democracy and peace, but that is not a matter of concern in the Kremlin.

Yet a large gulp of vodka—and a wistful toast to the rule of law—is needed before facing the callow July 17 shoot-down of Malaysia Airlines Flight 17 in the Ukraine. The Buk-M1 surface-to-air missile used by Russian-backed dissidents to kill 298 people was apparently supplied by Moscow to the Donetsk rebels. Inventory control may not be a Communist specialty, either in morals or materiel.

Torpedoing a civilian aircraft and dooming its passenger list of noncombatant civilians, including dozens of world-famous medical experts, has crossed a red line. Yet even now, neither Moscow nor its followers have offered any convincing story of how the civilian flight was targeted. Regardless of the political divisions in a riven country, it remains a fundamental tenet of the law of war—applicable both in civil wars and international conflicts—that no civilian person or civilian object can be deliberately destroyed, and that undue risks of collateral damage are forbidden. War is to be fought between governments, not whole societies. If this distinction were not observed, as Thomas Hobbes fretted, violence could destroy all vestiges of civilization. The war of “every man against every man” would leave “no place for industry… no Knowledge on the face of the earth; no account of Time; no Arts, no Letters, no Society; and which is worst of all, continual Fear, and danger of violent death; and the life of man solitary, nasty, brutish and short.”

Vladimir Putin has elbowed aside any recollection of the happier visage of his gemuchtlich colleague Dmitry Medvediev. In an unfettered warning at a Munich security conference some eight years ago, Mr. Putin made plain that Moscow will take what it wants. Still, one hoped that the advantages of cooperation might make sense to a country whose natural gas resources are not enough to insure a prosperous economy.

Instead, in the present moment, there is moral catastrophe. The bare-chested leader who merrily poses with Siberian tigers, Arctic bears, and a leopard for good measure, all supposedly captured by a man with a gun, now may boast of prowess in killing humans. As the political chef who stirred the pot and fueled the cauldron in Ukraine, he can add to Russia’s quarry the shoot-down of a civilian aircraft with 298 civilian passengers on board, including 80 children.

Law is quite inadequate to address such an event as “collateral damage.” Even President Putin should be able to see that the summary execution of 100 world-class AIDS medical specialists has additional consequences that stretch far beyond the ordinary tragedy of losing a ship at sea or in the air. The World Bank estimates that by 2020, Russia may have 5.4 million people with HIV-infections; other estimates are as high as 14 million. Mr. Putin has now delayed their cure.

Certainly the recent events change any casual view of air travel.  After this demonstration of Russia’s effective high altitude weaponry, the overflight of any conflict zone should be seen as problematic. Vacation-bound tourists and business travelers will now quiz their travel agents about the details of a flight path and the altitudes to be maintained by aircraft. And there is a market niche for a new Jane’s guide to anti-aircraft weapons.

So the question remains, how to treat the catastrophe, and whether there is any remedy in law.   There are several possibilities.

First up is the 1973 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation.

This is one of the earliest United Nations treaties designed to fight terrorism, crafted at the time when aircraft bombings were the plat du jour among some militant groups.  The Russian Federation, the Ukraine, and the Netherlands (as well as the United States) have joined the 1973 Civil Aviation Convention, and each is required by treaty to criminalize any act of destroying or damaging a plane, and to prosecute or extradite any offender found in its territory.

This is the same treaty that allowed the criminal prosecution of two Libyan operatives for the bombing of Pan Am 103 over Lockerbie, Scotland, in which 270 civilians died, including 189 Americans.  Application of the 1973 aircraft bombing treaty would also create a ready-made occasion to address the claims of the separatists, settling the question of whether Donetsk has any recognizable claim of independence from the Ukraine’s government in Kiev and its treaty obligations.

Next up is the International Criminal Court (“ICC”), a tribunal established in The Hague on July 1, 2002, and presently open for business.

Ukraine has not yet joined the Rome Treaty as an ICC member state.  But the framers of the Rome statute included an unusual and capacious jurisdictional rule. Article 12(3) of the Rome Treaty allows a country to join retrospectively—even after a crime has occurred—and to “accept the exercise of jurisdiction by the Court with respect to the crime in question.”

Thus, the Ukraine could file a declaration with the Hague criminal court that allows the international criminal prosecution of any person taking part in the Donetsk bombing, including any person—whether military, civilian, or office-holder—who carried out or aided and abetted that criminal act.  While jurisdiction to hear a case is not often retrospective, the norms enforced by the court are rock solid. Under the terms of the Rome Treaty, any operative found to have taken part would be criminally liable.

The United States remains leery of any expansive use of ICC jurisdiction, not least because we have troops deployed all over the world for peacekeeping and other security missions. But aircraft bombing is an early example of a crime warranting universal jurisdiction, seem as barbaric and heinous by all countries of the world, and Washington has gradually warmed to the court as its performance has been gauged over the last 12 years.

Arresting a foreign official or fleeing perpetrator is a tricky matter, and there is cooperation (though no honor) among thieves and thugs. But as Sudanese President Omar al-Bashir has discovered, after the massacres by the state-backed Janjaweed militia, a looming international criminal case can limit one’s choice of airports and destinations, and sometimes aircraft do make extra landings, with gendarmes waiting on the runway.

And then there is civil liability for damages. In 1986, the International Court of Justice rendered a verdict in the Nicaragua case against the United States, for Washington’s support of the Contra guerrillas. One does not have to agree with the court’s disputed fact-finding (various Nicaraguan affidavits were later thought to be false). But the jurisprudential fact remains that if a foreign government aids and abets a protégé state or rebel movement in a tactic forbidden under the law of war—and shooting down a civilian aircraft would rank high on the list—then the sponsor state may itself face civil liability and monetary payments of hundreds of millions of dollars. The World Court would have jurisdiction over a claim for civil damages under the 1973 Civil Aviation Convention.

One of the ironies of the present moment is that Mother Russia was once a great champion of international law. The evidence is found in the world-famous texts of the 1899 and 1907 Hague conventions, setting out the tenets of humanitarian law and the proper conduct of war. These seminal texts were championed by Czar Nicholas and his legal advisor Friedrich Martens. There were other nineteenth century reformers, to be sure, including Henri Dunant of Switzerland and Francis Lieber of the United States. But the Russian czar and his legal advisor boldly proclaimed that the violence and brutality of war should have limits.

The Carnegie Peace Palace in The Hague, where the International Court of Justice still convenes to hear its cases, is graced by a marble statue of Friedrich Martens, and for good reason. A liberal Russian tradition predates Moscow’s long romance with Communism, and is worthy of pride.

It’s time for Mr. Putin to call off his dogs, and to leave the Ukraine alone.

Ruth Wedgwood is a law professor at Johns Hopkins University and a member of the Hoover Institution’s Task Force on Law and National Security. She served on the U.S. Defense Policy Board in the Bush Administration.


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