Loose Talk about War Crimes
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.