Small Wars Journal

Loose Talk about War Crimes

Loose Talk about War Crimes

Butch Bracknell

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.

Comments

Madhu (not verified)

Tue, 10/21/2014 - 9:32am

I thought the following might be of interest:

<blockquote>The BND has intelligence indicating that pro-Russian separatists <strong>captured a BUK air defense missile system at a Ukrainian military base</strong> and fired a missile on July 17 that exploded in direct proximity to the Malaysian aircraft, which had been carrying 298 people.
....
BND's Schindler says his agency has come up with unambiguous findings. One is that <strong>Ukrainian photos have been manipulated</strong> and that there are details indicating this. He also told the panel that <strong>Russian claims the missile had been fired by Ukrainian soldiers and that a Ukrainian fighter jet had been flying close to the passenger jet were false.</strong></blockquote>

http://www.spiegel.de/international/europe/german-intelligence-blames-p…

Translation: all sides manipulated the incident in some way for perceived gain (if this analysis is correct).

The truth is a lonely business, tweeting/blogging/think tanking/punditing DC analyst crew. Well, if truth matters, which I'm thinking isn't always the highest order of business.

PS: I know I'm annoying on this stuff, but seeing some of our most badly injured young people in a work setting, it can't be a game for me. I'm invested and I remain eternally naive and shocked, it seems, that it is a game for so many, it really is just about being a player.

Madhu (not verified)

Tue, 09/23/2014 - 2:22pm

Once, again, I ask: where did the interest in this investigation go within the ADD/ADHD-DC consensus foreign policy community? It's almost as if incidents are only useful to push an agenda, and the truth never really mattered to anyone that, er, "matters" in the classic DC sense.

Well, we are back in Iraq, the US is bombing someone which means we are showing leadership, and the world now makes sense to that crew, I imagine, if to no one else.

Madhu (not verified)

Wed, 09/03/2014 - 10:44am

What happened to this investigation? There was almost an article a day, then a big push for sanctions, and then the articles in the American media have nearly stopped. What is going on with our media? And with the investigation? OSCE reports seem very different from what we are getting here in the States?

Madhu (not verified)

Sun, 08/03/2014 - 12:30pm

In reply to by Madhu (not verified)

What use is the Army War College, NDU, CSIS and the rest of them? And please be careful of ANYONE writing about South Asia, yes, even me (ha ha), even if he or she seems sincere. Even good people screw it up, especially older American analysts within or outside the Borg, they just are too easily cultivated by Cold War era contacts.

And retired Generals that write in Washington Post? Please, look up each and everyone, their consulting gigs, articles written about them in whistle blower papers, the rest of it. It's a fetid sewer, a swamp of leaks, contacts, players. Even the good ones get played. That's the scary part. Even the good ones get played and think they have the analysis right, but they don't.

Madhu (not verified)

Sun, 08/03/2014 - 12:26pm

Thank you for writing a piece that is thoughtful, rational and calm. How difficult it has been to find a calm voice.

The hysteria surrounding this tragic incident and the rush to politicize the incident by various stakeholders on all sides-Russian, Ukrainian, American, various militaries and NATO--is dishonest and dangerous.

I met someone who was on the Lockerbie flight, if only briefly. A favorite novelist of mine once wrote that a character who had just lost a child was "living the curious aftermath of a life." What pain for the families, what they must be suffering.

Some days ago, I posted an article from June discussing the poor equipping and training of the Ukrainian border forces and how material was crossing the border. I had asked, "if this is a crisis of sovereignty, why is everyone so silent about this and discussing everything else?" And now I find this article:

From May 7:

<blockquote>The U.S. Embassy in Ukraine used Pentagon money to go shopping in Kiev for supplies, including concertina wire for Ukraine's ill-equipped border guards, Pentagon officials said Tuesday.
The Defense Department funds also bought fuel pumps, car batteries, spare parts, binoculars and communications gear for the guards, who would be the first line of defense if the 40,000 Russian troops on Ukraine's borders invaded.

Embassy personnel bought the goods locally in Kiev, said Army Col. Steve Warren, a Pentagon spokesman.
Warren did not have an initial cost estimate for the supplies, but Evelyn Farkas, a deputy assistant defense secretary, told Congress that the Defense Department has given Ukraine's military and border guards a total of $18 million in non-lethal aid to date.

In testimony to the Senate Foreign Relations Committee, Farkas said that Ukraine's requests for additional aid "vastly outstrips our abilities to meet them."</blockquote>

http://www.military.com/daily-news/2014/05/07/us-money-for-ukrainian-bo…

We spent how many BILLIONS on"democracy promotion" in Ukraine already? And now Americans struggling with a flat economy and uncertain economic prospects have to scrape together nickels and dimes for more when Ukraine is awash with wealthy oligarchs and Europe has a collective GDP that parallels the US?

So this is the great crisis that requires a new Cold War? I don't buy any of it.

1. I don't believe NATO - a bureaucracy fishing for funds and increased prominence after the Afghanistan drawdown.

2. I don't believe hawkish Senators that are grandstanding for votes or who have emotional problems with buckling down and doing the nation's work and prefer strange pseudo-ideologic crusades.

3. I don't believe a President that is looking for a foreign policy win.

4. I don't believe a Pentagon--or an Army--still looking to milk the American people for their own needs. Missiles in Poland! Oh, please.

5. I don't believe 'independent' analysts--or their contractor and arms selling friends--bought and paid for.

6. I don't buy the Michael McFaul, retired military Cold Warriors that look at the world through ideological lenses and think the world is a playground for regime change and democracy promotion.

7. I don't buy the Special Forces hype that see everything as an unconventional war to be countered by training troops, regardless of the strategic wisdom of doing so.

8. I don't buy the British Chatham House crew, the Polish right, the American transatlanticists and the NATOists that are only concerned with harnessing American power for their own personal or national or ideological or money-making reasons.

9. I don't buy the middle aged nostalgics for the Cold War and the armchair warriors that view war as a game, an entertainment for boring everyday lives.

10. I don't buy the neoconservatives who are trying to derail an Iran deal with the Ukraine crisis.

11. I don't buy the State Department line. State has never gotten over the Cold War and thus its attitudes toward Iran, Pakistan, Russia, and Eastern European nations that it hasn't helped on any level because they are still so dependent on outside funds.

Elements within Russia, the US, Ukraine, the EU/NATO "axis" are all grandstanding and maneuvering for their own selfish interests.

If anyone in the vaunted West really cared, the borders would have been the first thing worked on decades ago. And I don't buy that it's all just lack of funding. Oligarchs have money. They also like to bring in outside money from Russia and the West and pocket a bit of it and some people might not might porous borders, if you get my drift. Which no one will because no one really cares.

<strong>I don't trust people that talk about unconventional warfare and can't even be bothered to vet the experts they cite, experts like Michael McFaul or Anne Applebaum. I don't know if people are stupid, dishonest, ideologues, unwilling to think new thoughts, or what. But I don't have to buy any of it.</strong>

Don't start World War III, Washington Consensus, NATO, Russian hawks, and the rest of you. How will you be able to spend all those ill-gotten gains if you aren't around for it to be spent?