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Two hundred and ninety-eight passengers aboard Malaysian Airlines flight MH17 were killed when Ukrainian rebels shot down the commercial airliner in July 2014. Because of the rebels’ close ties with the Russian Republic, the international community immediately condemned the Putin regime for this tragedy. Yet, while Russia is certainly deserving of moral and political blame, what is less clear is Russian responsibility under international law. The problem is that international law has often struggled assigning state responsibility when national borders are crossed and two (or more) sovereigns are involved. The essence of the problem is that under governing legal standards, a state could provide enormous levels of military, economic, and political support to another state or to a paramilitary group in another state – even with full knowledge that the recipient will thereby violate international human rights and humanitarian law standards — but will not share any responsibility for these international wrongs unless it can be established that the sending state exercised near total control over the recipient.
The leading caselaw in this area has been handed down by the International Court of Justice (ICJ) but what adds another layer of complexity to the present situation is that the Ukraine and Russia are both parties to the European Convention; it is possible that the European Court of Human Rights (ECtHR) might well provide a different answer.
To be clear, this article concerns itself only with determining Russian responsibility for the downing of MH17. Following this tragic event, approximately five thousand Russian troops took part in what now appears to have been a limited invasion of areas of the Ukraine. Thus, there are elements of both “indirect” and “direct” Russian involvement in the Ukraine, although only the former will be addressed. The larger point involves the legal uncertainty when states act outside their borders and in doing so contribute to the violation of international human rights standards.
International Court of Justice
The two leading cases regarding transnational or extraterritorial state responsibility have been handed down by the International Court of Justice. In Nicaragua v. United States (1986) Nicaragua brought an action against the United States based on two grounds. One related to “direct” actions carried out by US agents in Nicaragua, including the mining of the country’s harbors, and on this claim the Court ruled against the United States. The second claim was based on the “indirect” actions of the United States, namely, its support for the contra rebels who were trying to overthrow the ruling Sandinista regime. Nicaragua’s argument was that because of the very close ties between the United States and the contras, the former should bear at least some responsibility for the massive levels of human rights violations carried out by the latter.
The Court rejected this position employing an “effective control” standard, which in many ways is much closer to an absolute control test. Or to quote from the Court itself: “In light of the evidence and material available to it, the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States” (par. 106, emphases supplied).
Nearly a decade later, the International Court of Justice was faced with a similar scenario in the Genocide Case (Bosnia v. Serbia). The claim made by Bosnia was that because of the deep connections between the Serbian government and its Bosnian Serb allies, the former should have some responsibility for the acts of genocide carried out by the latter. Yet, as in Nicaragua, the ICJ ruled that Serbia had not exercised the requisite level of control over the Bosnian Serbs. Thus, the Court ruled that Serbia was not responsible for carrying out genocide itself, or for directing genocide, or even for “aiding and assisting” or “complicity” in the genocide that occurred following the overthrow of Srebrenica. However, in a part of its ruling that has received far too little attention, the Court did rule that Serbia had failed to “prevent” genocide when it could have exercised its “influence” to do so, and that it had also not met its Convention obligation to “punish” those involved in genocide due to its failure to fully cooperate with the International Criminal Tribunal for the Former Yugoslavia.
Turning back to the situation involving MH17, while no action has yet been filed with the International Court of Justice (and perhaps never will be filed), according to the Nicaragua-Bosnia line of cases any attempt to hold Russia responsible for the downing of MH17 would appear likely to fail for the simple reason that the relationship between the Russian state and its Ukrainian allies was nowhere near as strong as the relationship between the United States and the contras (Nicaragua) or that between the Serbian government and its Bosnian Serb allies (Genocide Case). The point is that if responsibility could not be established in these other cases it is by no means likely that it could be established in the present situation.
European Court of Human Rights
Because Russia and the Ukraine are both parties to the European Convention of Human Rights, what also needs to be considered is how the European Court of Human Rights (ECtHR) might address this issue if a case were brought either under the inter-state complaint mechanism, or (more likely) by means of an individual complaint filed by a family member killed in the crash.
Although the European Court of Human Rights has increasing dealt with cases with an extraterritorial element, in nearly every instance the claim has been based on European states carrying out “direct” actions in other states – whether it be NATO forces dropping bombs in Serbia and killing civilians on the ground (Bankovic), or Turkish officials arresting a suspected terrorist in Kenya (Ocalan), or British troops killing civilians in Iraq (Al-Skeini) – rather than instances where the Convention states have acted “indirectly.” The most pertinent ECtHR case is Ilascu v. Russia and Moldova where the applicants (Moldovan citizens) claimed they were arrested at their homes in Tiraspol by security personnel, some of whom were wearing the insignia of the former USSR. Unlike the ICJ’s “effective control” standard, the ECtHR ruled that Russia had exercised what it termed as “effective authority” or “decisive influence” over paramilitary forces in Moldova and because of this they bore responsibility for violations of the European Convention suffered by the applicants. Thus, on the basis of Ilascu, there is at least some possibility that due to the “effective authority” or the “decisive influence” that Russia appeared to exercise over its Ukrainian rebel allies, the ECtHR, unlike the ICJ, could assign responsibility to Russia for the downing of MH17.
Conclusion
Notwithstanding the immediate international condemnation of the Putin regime following the MH17 tragedy, international law seems to exist in a totally removed from international opinion and consensus. Under the caselaw of the International Court of Justice, Russia would appear not to be responsible for the downing of MH17 on the basis that it would be difficult to establish that the Russian government had exercised the requisite level of “effective control” over its Ukrainian rebel allies. On the other hand, if a case were brought before the European Court of Human Rights, there is at least some chance of establishing Russian responsibility on the basis of the Court’s previous ruling in Ilascu, although it should be said that this is not a particularly strong precedent.
The larger point is to ask why state responsibility is so difficult to establish when international borders are crossed and states act in another country, at least indirectly, as in the present situation. The key element ought to be the extent to which a state has acted in a way that leads to violations of international human rights and humanitarian law standards. Employing such a standard, it would be eminently clear – would it not? – that Russia would be at least partly responsible because of its strong relationship with Ukrainian rebels that were both armed (by Russia) and dangerous, and which had already shown a complete disregard for international law.
As Ukrainian voters go to the polls this weekend to elect the new president, their country remains stalled at a historical crossroads. A revolution sparked by the previous government’s turn away from Europe, Russia’s flagrant annexation of the Crimea, and the continuing fighting in eastern Ukraine–all these events of recent months can only be understood in their proper historical context.
A monument to the legendary founders of Kyiv re-imagined as a symbol of the pro-European revolution.
One must begin with Russia’s imperial domination of Ukraine during the age when modern nations developed, from the 18th to the 20th centuries. Much like the Scots in the United Kingdom, Ukrainians could make brilliant careers in the Russian imperial service, but their group identity was reduced to an ethnographic curiosity. Moreover, the tsarist government insisted that Ukrainians were not a separate ethnic group, merely the “Little Russian tribe” of the Russian people. Their language was no more than a peasant dialect, and all educated Ukrainians were expected to accept Russian high culture. To prevent a modern idea of nationhood from reaching the Ukrainian masses, the Russian government banned all educational books in Ukrainian in 1863 and literary publications in 1876.
This denial of Ukraine’s national distinctiveness had major implications for modern Russian and Ukrainian identities. The notion of what it meant to be Russian remained linked to the imperial project, first tsarist, then Soviet, and now Putin’s. In all these incarnations, imperial Russia was not prepared to let Ukraine go its way precisely because Russia’s own identity as a modern democratic nation without imperial complexes failed to develop. This explains the rise in Putin’s popularity after the annexation of Crimea. This act of aggression soothed the injured national pride of Russia’s imperial chauvinists, who still mourn the loss of their country’s great-power status.
A fake road sign used by the pro-European protesters in Kyiv: “Changing the country, sorry for the inconvenience.”
The long Russian “fraternal” embrace also had implications for Ukraine’s ambivalent national identity. The Ukrainian national governments of 1917–20 did not stay in power in large part because patriotic intellectuals could not reach out to the peasants in the previous decades. The Bolsheviks first tried to disarm Ukrainian nationalism by promoting education and publishing in Ukrainian, but in the 1930s Stalin decimated the Ukrainian intelligentsia by terror and killed millions of peasants in a man-made famine, the Holodomor. His successors promoted creeping assimilation into the Russian culture. As a result, the population of Ukraine’s southeast, although largely Ukrainian in ethnic compositions, was taught to identify with Russian culture and the Soviet state.
Another thing that the tsars, the commissars, and the Putin administration have in common is an inflated fear of “Ukrainian nationalists.” Its real explanation lies in the fact that the Russian Empire never controlled all Ukrainian ethnolingustic territories. In the 19th century their westernmost part belonged to the Austrian Empire, where the Ukrainians acquired the experience of political participation and communal organization. The tsarist government’s desire to crush the stronghold of “Ukrainian nationalism” in the Austrian province of Galicia was among the international tensions that caused World War I. After the Red Army finally secured this region for the Soviet Union during World War II, the anti-Soviet nationalist insurgency continued for nearly a decade. The spectre of “Ukrainian nationalism” has haunted the Russian political imagination ever since, because it threatened the main tenet of imperial ideology, that of Ukrainians being essentially “uneducated Russians.”
A barricade of tires prepared to be burned on Kyiv’s main boulevard.
In the twenty-three years since the Soviet collapse, the political elites in Russia and Ukraine learned to exploit the ambiguous sense of identity in both countries. The Putin administration discovered imperial chauvinism’s appeal to conservative voters outside of major cities. In Ukraine, President Viktor Yanukovych and his Party of Regions cultivated nostalgia for the Soviet past and identification with Russian culture in their electoral stronghold in the Donbas, the region of Soviet-style smokestack factories propped up by government subsidies. The identity time-bomb was bound to explode at some point, and it went off twice in the past decade.
The Orange Revolution of 2004 began as a mass protest against a rigged election allegedly won by Prime Minister Yanukovych, but grew into a popular civic movement against corruption and political manipulation. Unfortunately, the victors of the revolution did not manage to build a new system, instead descending into political infighting. Yanukovych finally gained the presidency in 2010 and went on to establish an even more corrupt regime. By the end of 2013 Ukrainians were so fed up with their government that the latter’s last-minute withdrawal from the Association Agreement with the European Union sparked another popular revolution.
The protestors on the EuroMaidan were not fighting for Europe and against Russia per se, but against authoritarianism and corruption. However, it is telling that the Putin regime saw their movement as a threat to Russia’s interests. The Russian state-controlled media exploited the presence on the barricades of radical Ukrainian nationalists to paint the entire popular revolution as “fascist.” Without the Russian annexation of the Crimea and barely-concealed support for the separatists in the Donbas, the situation there would also not have reached the brink of a civil war.
In many ways, then, the long-term resolution of the Ukrainian crisis would entail Russians and Ukrainians coming to terms with history–laying the imperial past finally to rest.
Serhy Yekelchyk is Professor of Slavic Studies and History at the University of Victoria (Victoria, British Columbia, Canada) and the author of Ukraine: Birth of a Modern Nation (OUP, 2007).
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Images courtesy of Serhy Yekelchyk. Used with permission.
Amidst all the commentary occasioned by Russia fishing in troubled Ukrainian waters, one fundamental point tends to get lost from sight. Like many other recent points of international tension, this one raises the question of what are the rules great powers play by.
The United States has championed a values-based approach with a strong missionary impulse behind it. Woodrow Wilson provided its first full-blown articulation, and post-World War II policy saw to its full-blown application. Holding a dominant global position, Washington sought with varying degrees of urgency and determination to advance a basket of ideological goods. US leaders have articulated these goods in a variety of ways such as “democracy,” “free-market capitalism,” and “human rights.” But underlying all these formulations is a strong and distinctly American belief in the autonomy of the individual and a commitment to political liberty and limited state power. In the rhetoric of American statecraft these notions are a leitmotiv. They have generally set the direction of US policy responses to problems of the sort that Ukraine poses.
This American approach contrasts with a core dictum of classic realism: great powers have fundamental security interests most often manifested territorially. The venerable term to describe this situation is “spheres of influence.” What happens near borders matters considerably more than what happens half a world away. Globalization has perhaps qualified the dictum but hardly repealed it.
Even American policymakers observe this territorial imperative in their own neighbourhood. Consider the continuing importance of the proximate in US policy: the persistent neuralgia over a defiant Cuba; military interventions in Grenada, Panama, and Haiti; recurrent covert meddling against troublesome governments south of the border; and the intense attention given Mexico. No US leaders these days invokes the Monroe Doctrine (or at least the robust Teddy Roosevelt version of it), but the pattern of US action reveals what they can’t afford to say.
Chateau Nid d’hirondelle, près de Yalta. Photo par Traroth sous GFDL. CC-BY-SA-3.0 via Wikimedia Commons.
To be sure, Russian leaders would also like to have it both ways. They too have championed their own set of values though with less enthusiasm than did Soviet leaders, who in turn themselves fell short of the Americans in their commitment to missionary projects.
But Russian and Soviet leaders alike have given clear priority to the near frontier. The consolidation of control over eastern Europe after World War II reflected this concern. So too did the dramatic interventions of 1956 and 1968 to crush unrest and the constant string pulling by members of the Politburo assigned to keep a hawk-like watch over clients in the East bloc. The intervention in Afghanistan, shaped by a fear of Islamist unrest spreading into nearby Soviet territories, fits within this pattern. That Putin would now respond to, even exploit the political disintegration in Ukraine just as he took advantage of the disputes along Georgian border can come as a shock only to observers oblivious to the dictates of realist statecraft.
The Ukraine crisis is a striking reminder of the continuing, fundamental division over the rules of the international game. Do major powers have special regional interests, or are they tightly constrained by far-reaching standards posited and defended by the United States? The American answer doesn’t have to be the latter. FDR in his conception of the postwar order and Nixon in moving toward detente and normalization — to take two striking exceptions — recognized the need for some degree of accommodation among the leading powers. They accorded diplomacy a central role in identifying areas of accord while setting to one side knotty issues connected to lands that adjoined the major powers.
But on the whole US policy has downplayed diplomacy as a regulator of great-power relations by often making capitulation the precondition for any opponent entering into talks. Real diplomacy would get in the way of the overriding preoccupation with holding in check regional powers whether China, Iran, Russia, or India that might pose a challenge to the United States. (The EU occupies an ambiguous position in this list of regionals as a powerhouse that hasn’t yet figured out how to realize its potential and for the moment speaks through Germany.) This US approach, most forcefully articulated by the Cheney doctrine at the end of the George H. W. Bush administration, is a prescription for unending tension, with the US policy a source of constant discord at one point and then another around the world.
It is hard to imagine a more misguided basis for policy, especially for a once dominant power steadily slipping in clout. The foundations for a better managed, more peaceful, and even more humane international order is more likely to emerge from great-power negotiations and compromise. Promoting a sense of security and comity among the dominant states may in the bargain discourage rough stuff in their neighbourhoods far better than confrontation and high-minded if hypocritical blustering.
Michael Hunt is the Everett H. Emerson Professor of History Emeritus at the University of North Carolina at Chapel Hill. He is the author of The World Transformed, 1945 to the Present. A leading specialist on international history, Hunt is the author of several prize-winning books, including The Making of a Special Relationship: The United States and China to 1914. His long-term concern with US foreign relations is reflected in several broad interpretive, historiographical, and methodological works, notably Ideology and U.S. Foreign Policy and Crises in U.S. Foreign Policy: An International History Reader.
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