More On MH17–3 Aug 14 III

Loose Talk about War Crimes
Butch Bracknell
Small Wars Journal | July 31, 2014

The tragedy of Malaysia Airlines Flight MH17 in Ukraine on July 17 has captured the attention of Europe and the world community.  Multiple theories regarding the incident abound, but the most rational and likely is that pro-Russian separatists mistook the jetliner for a Ukrainian military transport aircraft and engaged it with Russian-supplied surface-to-air missiles, killing all 298 people on board.  Complicating the incident is the fact that the rebels may be a Russian proxy force, and they have at times recklessly and callously denied international investigators and accident recovery specialists from conducting their work unimpeded.  No matter the circumstances and the findings of the investigation into the crash landing of this civilian airliner in eastern Ukraine, the incident constitutes an unspeakable tragedy.  But it likely is not a “war crime.”  Describing it as such diminishes the credibility of the offices of officials charged with responsibility for investigating and prosecuting violations of international law and does a disservice to the system of enforcement.

On July 28, the UN High Commissioner for Human Rights Navi Pillay referred to the calamity as a “violation of international law” which “given the prevailing circumstances, may amount to a war crime” – without defining specifically what “war crime” might have been committed, or where it might be reached for prosecution.  For several reasons, the incident may constitute a violation of international law.  If the rebels used Russian-supplied equipment and were trained by Russian intelligence or military experts, the international law principle of non-aggression, codified in Article 2(4) of the UN Charter, has been violated.  This principle of non-intervention by proxy has been defined in the International Criminal Tribunal for the former Yugoslavia (ICTY) case of Tadic and the International Court of Justice case of Nicaragua v. U.S., has been violated.  If the seperatists failed to exercise due care in distinguishing between a military target and a civilian airliner, they have violated the law of war principle of distinction.  Certainly any military engagement of a civilian airliner by definition violates the Chicago Convention on Civil Aviation.  International law may have been flouted, bent, broken, and dishonoured.  And, still, a “war crime” probably was not committed.

For an act to be a “war crime,” ideally there must be some tribunal with competence to punish it.  Outside of Ukrainian, Dutch, or Malaysian domestic courts, or an unlikely ad hoc international criminal tribunal such as ICTY or the International Criminal Tribunal for Rwanda (ICTR), the only tribunal with potential jurisdiction over this incident would be the International Criminal Court (ICC), in The Hague.  The ICC, established by the Rome Statute, has no jurisdiction over Russian actors, because Russia has signed but not ratified the treaty.  As a result, Russia’s legal obligation is merely to refrain from engaging in “acts which would defeat the object and purpose” of the treaty until ratification under Article 18 of the Vienna Convention on the Law of Treaties – interfering with investigation or otherwise thwarting the ICC’s work.  Ukraine, like the U.S., is also not a state party to the Rome Statute, and has virtually no rights or responsibilities under the Rome Statute.  Ukraine could accept jurisdiction over the incident, of course, as the government did in virtually inviting the ICC to investigate the invasion of Crimea.  In short, ICC jurisdiction is unlikely.

Moreover, the problem remains that no crime defined under the Rome Statute likely has been committed.  Articles 5-9 of the Rome Statute define offenses within the reach of the ICC:  the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.  The crime of aggression remains practically unenforceable under the Statute, in that the definition proposed by the Assembly of States Parties in 2010 has been adopted by only eleven state parties as binding under the treaty.  Similarly, there is no rational case that the attack on the airliner constituted genocide; even if it could be shown the attack was deliberate, it would be difficult and far-fetched to believe that the attack was undertaken “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”  193 of the victims were Dutch, 43 were Malaysian, 27 were from Australia, 12 were from Indonesia, and 10 were from the UK.  Unless some evidence arose that Russia, through the separatists, was targeting the Dutch for elimination by killing 193 of its citizens through military action, genocide does not hold water.

“Crimes against humanity” is an international law concept that is often conflated with the term “war crimes”, particularly as these concepts reflect customary international law, or the law of nations undefined by treaty.  Under Article 7 of the Rome Statute, of course, for an act to be a crime against humanity, a prosecutor would have to show that the attack on MH17 was part of a “widespread or systematic attack directed against any civilian population.”  Moreover, a single event cannot constitute “crimes against humanity” because an “attack directed against any civilian population” requires a “course of conduct involving the multiple commission of acts reerred to in paragraph 1 [i.e. murder] against any civilian population…” (emphasis added).  Unless Russia, through the rebels, deliberately shoots down at least a couple more civilian airlines, the offense of “crimes against humanity” under the Rome Statute is a nonstarter.

Having eliminated aggression, genocide and crimes against humanity as possible avenues for prosecution of the act under the Rome Statute, the remaining inquiry is whether the attack constitutes a “war crime” as the Rome Statute defines this term.  Article 8 of the Rome Statute requires an element of intent or wilfulness in every component of the definition of the term.  Para 2(a)(i) requires that killing constituting a grave breach of the Geneva Conventions be “wilful,” and Para 2(b)(i) and (ii) requires that attacks against civilian targets – persons or objects – be “intentionally direct[ed].”  Para 2(b)(iv) requires “knowledge” that an intentional attack will cause incidental loss of life or injury to civilians…which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”  Throughout Article 8, the terms wilful, intentional, and knowledge appear, and Article 22 of the Rome Statute requires precision in the defining of offenses:  “The definition of a crime shall be strictly construed and shall not be extended by analogy.”  The Statute makes clear it is to be read narrowly, noting “In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”  A mistake, however negligent, likely will not suffice.

There are methods of obtaining accountability for potential Russian aggression into eastern Ukraine, if proven – military retaliation, diplomatic isolation, economic consequences, and an action before the International Court of Justice all remain conceivable options, among many.  Moreover, Ukrainian courts are open and functioning and presumably have jurisdiction over the murder of civilian aviation passengers in its territory, if the specific culprits can be captured and tried.  Careless use of the term “war crime” to describe offenses which are of a fundamentally different character than a “war crime” undermines the precision the international criminal system seeks to achieve in defining offenses reachable by international criminal process.

Butch Bracknell is a career national security lawyer, retired Marine officer, and member of the Truman National Security Project.  These opinions are his own.


Russia Needs to Learn the Value of Human Life
David Satter
American Interest | July 25th, 2014

In the wake of the destruction of the Malaysian Airliner MH17, the West has been exposed, for the first time, to the possible catastrophic consequences of a defining trait of the Putin regime, its reckless disregard for human life.

The world has been outraged by the sight of drunken separatists mishandling the bodies of the victims and Putin’s attempts to avoid responsibility for a Russian inspired crime. The destruction of MH17, however, was merely the extension to the outside world of the kind of behavior that has long existed in Russia itself.

During the years that Putin has been in power, there have been three notorious instances of the mass murder of Russian civilians outside of an active war zone: the 1999 Russian apartment bombings, the 2002 Moscow theater siege, and the 2004 Beslan school massacre. In all three cases, what was involved was the killing of innocent and unsuspecting civilians for political ends. These atrocities set the stage for the MH17 disaster.

MH17 was downed because, whatever they may say publicly, the Russians treat the lives of international air passengers as absolutely valueless.

The provision of SA-11 missiles to the separatists in Eastern Ukraine had an indisputable military rationale. The separatists were vulnerable to Ukrainian air supremacy. The SA-11 missile has a range of 66,000 feet, allowing the separatists to shoot down high-flying Ukrainian aircraft. As the Russians well knew, however, it also posed a clear threat to the 400 civilian airplanes that crossed Eastern Ukraine at altitudes of 33,000 feet every day.

This indifference to the fate of international air passengers was an echo of Russian events in the not so distant past.

In September, 1999, the world got its first glimpse of the kind of acts of which the Putin regime was capable. At that time, four apartment buildings in Moscow, Buinaksk, and Volgodonsk were blown up in the middle of the night, killing 300 persons. There is convincing evidence that this was carried out in order to bring Putin to power.

In 1999, former President Yeltsin’s approval rating stood at 2 percent, and because of the massive corruption over which he and his family members presided, he faced likely criminal prosecution in the event his political rivals achieved power. The apartment bombings distracted the attention of Russian society completely. Russians were suddenly afraid of being blown up in their homes.

Events followed as if by plan. The bombings were blamed on Chechen rebels and the population was galvanized behind a new war in Chechnya. Putin, the newly appointed Prime Minister, was put in charge of the war and his success in “avenging” the attack on Russian civilians led to an overnight rise in his popularity and his eventual election as President. His first act upon election was to extend a blanket pardon to Yeltsin.

A firefighter stands amongst the wreckages of the malaysian airliner carrying 298 people from Amsterdam to Kuala Lumpur after it crashed, near the town of Shaktarsk, in rebel-held east Ukraine, on July 17, 2014. (DOMINIQUE FAGET/AFP/Getty Images)

Unfortunately for the plausibility of the official scenario, however, a fifth bomb was uncovered in the basement of a building in Ryazan. It was disarmed before it could explode and the bombers were arrested and identified. They turned out to be not Chechen rebels but agents of the FSB.

The authorities have denied that they blew up their own citizens in 1999, but there is no ambiguity about two other civilian massacres, the hostage takings at the Moscow Theater on Dubrovka and at school number 1 in Beslan. In both cases, the regime’s actions led to a horrific and unnecessary loss of hundreds of innocent lives.

On October 23, 2002, Chechen terrorists stormed the theater during a performance of the popular musical “Nord-Ost” and took almost a thousand persons hostage. The Russian authorities refused to negotiate and instead flooded the theater with toxic gas, leading to the immediate death of 129 hostages. Doctors at the scene did not know the hostages had been gassed and were not provided with an antidote. Ambulances were not called for 45 minutes. Hostages were laid out on the asphalt and then crushed and asphyxiated as they were loaded into buses, microbuses, and cars.

Arguably, even more chilling was the authorities’ reaction to the takeover of the school in Beslan. One hour after agreement had been reached between local officials and the Chechen resistance for Aslan Maskhadov, the deposed Chechen President, to come to Beslan to mediate the crisis, Russian forces attacked the school with flamethrowers and grenade launchers. The explosions caused an inferno and the collapse of the roof of the gymnasium where the hostages were being held. For more than two hours, General Alexander Tikhonov, the head of the Russian special forces, forbade anyone to extinguish the fire. In the end, 332 persons were killed, including 186 children most of whom were burned alive.

Both the United States and the European Union must now weigh expanding the sanctions against Russia. There is no certainty that this will be done. Germany exports $51 billion worth of products to Russia and is dependent on Russia for 30 percent of its oil and gas. Even business interests in the United States, which is far less dependent on Russia economically, oppose tough measures.

Western statesmen, however, should be aware that there is a danger in not strongly resisting the Russian notion that the individual is expendable. MH17 is the first civilian airliner to be blown up with Russian participation. But Putin has already hinted that it might be necessary to create a Russian-enforced “no fly” zone over all of Eastern Ukraine. Now is the time for the West to make clear to Russia that its actions will exclude it from the civilized world. It is Russia’s and the world’s tragedy that the Putin regime will never come to this conclusion on its own.


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