Notwithstanding the current hullabaloo over the MH17 incident, it will be very difficult to hold Russia legally accountable for a tragedy that happened in Ukraine, even if pro-Russian elements were involved
The downing of Malaysian Airlines flight MH17 in eastern Ukraine has re-ignited the debate on the role of non-state actors in committing unlawful international acts and on how to establish state accountability for those acts. Media reports allege that a Russian-made Buk missile was used by pro-Russian rebels operating in Crimea, to shoot down the flight at 32,000 feet.
According to Ukrainian officials, in two separate calls, one between Igor Bezler, the rebel’s operational commander and a suspected Russian military intelligence official, and Vasili Geranin, a suspected Colonel in the Russian Intelligence headquarters; and another between two suspected rebels, nicknamed ‘Major’ and ‘Greek’, the rebels were heard discussing the crash as a consequence of a missile strike. Interestingly, the conversation betrayed their bewilderment at the incident, as anyone else’s. It indicates that the incident may have been a case of mistaken identity, wherein the MH17 was confused with an Ukraninian AN-26 transport aircraft.
Both Russia and Ukraine have traded allegations and blamed each other for the tragedy. This is not the first time that a civilian aircraft has been targeted in the region. In 2001, the Ukrainian military had accidentally shot down a chartered plane, along the Georgian border, carrying 78 passengers from Israel to Siberia. And since the Ukrainian crisis flared in February this year, the pro-Russian rebels in Crimea have shot down several Ukrainian military helicopters and transport aircraft.
In the latest instance, the death of 298 passengers including 154 Dutch, 23 American and 27 Australian citizens among others, has fuelled tensions between these states and Russia. The big question is: Can Russia (as alleged) be held accountable under the appropriate international law for the act of the rebelsIJ Can the linkage be proven between the rebels and Russia, and shown that the latter exercised control over the formerIJ Three key cases of unlawful acts committed by NSAs in a conflict zone have been adjudicated by the International Court of Justice that shed light on how their acts can be attributed to nation states. These give some indication of what can be expected in the MH17 case.
Article 8 of the International law Commission Articles on State Responsibility specifies, “The conduct of a person or a group shall be considered an act of a state under international law if the person or the group of person is in fact acting on the instruction of, or under the direction or control of that state in carrying out the conduct”. But, it is necessary to prove in a court of law that a state or its organs (in this case, Russia), exercised complete control over the rebels and directed them to undertake unlawful act. This is easier said than done.
In 2007, the ICJ determined the contours of state responsibility under the Genocide Convention of 1948. The case pertained to the alleged involvement of Serbia (the former Federal Republic of Yugoslavia) in the genocide of Bosniaks and non-Serb minorities in Srebrenica in the early 1990s.
The ICJ ruled that FRY had furthered “considerable military and financial support available to the Republika Srpska” (the Republic of Serbia) and “had it withdrawn that support, (it) would have greatly constrained the options that were available to the Republicka Srpska authorities”. But in spite of this support, the Serbian military, known as the Vojska Republike Srpske, could not be considered a de jure organ of the FRY. In addition, based on reports submitted by Dutch and American intelligence agencies, the ICJ found that VRS acts were not under the instructions, directions or control of the FRY. Therefore, the latter was not responsible for the genocide. However, in the same breadth, the ICJ also said that the FRY had the “duty to prevent” the genocide, since it occurred on its territory, even if it had no direct links and control over the VRS.
In the MH17 case, Russian President Valdimir Putin has argued that since the act was committed on Ukrainian territory, it absolves Russia of any responsibility. But pro-Russia rebels control the territory. So, can Ukraine argue that the flight was downed in Russian territoryIJ As such, the use of a Russian missile is insufficient to establish Russian culpability.
In 1984, in the case of Nicaragua versus the US, the ICJ had pulled up the latter for supporting the contras to attack the Nicaraguan Government and military, when there was no evidence to suggest that the attacks by Nicaragua-based rebel groups against El Salvador could be attributed to the Nicaraguan Government. Therefore, the targeting of Nicaraguan state by US-supported contras was unlawful.
Similarly, in the 2005 case of the Democratic Republic of Congo versus Uganda, the ICJ had ruled that since the attacks undertaken by the anti-Ugandan rebels operating from DRC territory were not attributable to the DRC, Uganda had no right to use force in self- defence against the DRC. The DRC had charged the Ugandan troops for invading its territory, violating human rights violations, which the court upheld. The ICJ also ruled that there was no satisfactory evidence to prove the DRC’s claims that Uganda created and controlled the Congo liberation Movement. Again, efforts to establish any state linkage yielded no success.
The task of proving state linkages with NSAs, state control over their activities is so onerous that states, such as the US, prefer to use drones against the Taliban, rather than followi the legal path. India, too has seen the futility of the exercise in trying to link Pakistan’s spy agency to the lashkar-e-Tayyeba terror in the 26/11 case.
The United Nations General Assembly Resolution 2625, which calls upon states to refrain from supporting acts of terrorism and prevent the use of their territory to be used for terrorism, also does not apply in this case, since the pro-Russian rebels were from Ukrainian territory. Hence, notwithstanding the current hullabaloo over the MH17 incident, it will be very difficult to hold Russia accountable for the tragedy.
(The writer is Research Fellow at the ARC Center of Excellence in Policing and Security, Griffith University, Australia)