On 20 April 2016, after hearing harrowing testimony coming from victims, the UK House of Commons unanimously adopted a resolution declaring "That this House believes that Christians, Yazidis, and other ethnic and religious minorities in Iraq and Syria are suffering genocide at the hands of Daesh; and calls on the Government to make an immediate referral to the UN Security Council [SC] with a view to conferring jurisdiction upon the International Criminal Court [ICC] so that perpetrators can be brought to justice" (HC Hansard 20 April 2016 columns 957-1000).
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Labeling ISIS simply a terrorist organization or an apocalyptic sect of fanatics does very little in terms both of explaining and of confronting the phenomenon. What – among other things – lies at the basis of its emergence, behind and through its acts of brutality, is a different vision of international community, one hostile to that which the vast majority of states and international organizations share.
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By Sascha-Dominik Bachmann
The downing of the Malaysian Airlines Flight MH17 on 17 July 2014 sent shockwaves around the world. The airliner was on its way from Amsterdam to Kuala Lumpur when it was shot down over Eastern Ukraine by an surface to air missile, killing all people on board, 283 passengers including 80 children, and 15 crew members. The victims were nationals of at least 10 different states, with the Netherlands losing 192 of its citizens.
With new information being released hourly strong evidence seems to indicate that the airliner was downed by a sophisticated military surface to air missile system, the SA-17 BUK missile system. This self-propelled air defence system was introduced in 1980 to the Armed Forces of the then Soviet Union and which is still in service with the Armed forces of both Russia and Ukraine. There is growing suspicion that the airliner was shot down by pro-Russian separatist forces operating in the area, with one report by AP having identified the presence of a rebel BUK unit in close proximity of the crash site. The United States and its intelligence services were quick in identifying the pro-Russian separatists as having been responsible for launching the missile. This view is supported further by the existence of incriminating communications between the rebels and their Russian handlers immediately after the aircraft hit the ground and also a now deleted announcement on social media by the self declared Rebel Commander, Igor Strelkov. This evidence points to the possibility that MH17 was mistaken for an Ukrainian military plane and therefore targeted. Given that two Ukrainian military aircraft were shot down over Eastern Ukraine in only two days preceding 17 July 2014 a not unlikely possibility.
It will be crucial to establish the extent of Russia’s involvement in the atrocity. While there seems to be evidence that the rebels may have taken possession of BUK units of the Ukrainian, it seems unlikely that they would have been able to operate these systems without assistance from Russian military experts and even radar assets.
Makeshift memorial at Amsterdam Schiphol Airport for the victims of the Malaysian Airlines flight MH17 which crashed in the Ukraine on 18 July 2014 killing all 298 people on board. Photo by Roman Boed. CC BY 2.0 via romanboed Flickr.
Russia was quick to shift the blame on Ukraine itself, asking why civil aircraft hadn’t been barred completely from overflying the region, directly blaming Ukraine’s aviation authorities during the emergency meeting on the UN Security Council (UNSC) on 18 July 2014. Russia even went so far to blame Ukraine indirectly of shooting down MH17 by comparing the incident with the accidental shooting down of a Russian civilian airliner en route from Tel Aviv to Novosibirsk in 2001. Despite Russia’s call for an independent investigation of the incident, Moscow’s rebels reportedly blocked actively international observers from OSCE to access the site.
While any civilian airliner crash is a catastrophe, and in cases of terrorist involvement an international crime, the shooting down of passenger jets by a state are particularly shocking as they always affect non combatants and resemble acts which are always outside the parameters of the legality of any military action (such as distinction, necessity, and proportionality). Any such act would lead to global condemnation and would hurt the perpetrator state’s international reputation. Consequently, there have only been few such incidents over the last 60 years.
What could be the possible consequences? The rebels are still formally Ukrainian citizens and as such subject to Ukraine’s criminal judicial system, according to the active personality principle. Such a prosecution could extent to the Russian co-rebels as Ukraine could exercise its jurisdiction as the state where the crime was committed, under the territoriality principle. In addition prosecutions could be initiated by the states whose citizens were murdered, under the passive personality principle of international criminal law. With Netherlands as the nation with the highest numbers of victims having a particularly strong interest in swift criminal justice, memories of the Pan Am 103 bombing come to mind, where Libyan terrorists murdered 270 humans when an airliner exploded over Lockerbie in Scotland. Following international pressure, Libya agreed to surrender key suspects to a Scottish Court sitting in the Netherlands.
The establishment of an international(-ised) criminal forum for the prosecution of the perpetrators would require Russia’s cooperation, something which seems to be unlikely given Putin’s increasing defiance of the international community’s call for justice. A prosecution by the International Criminal Court (ICC) in The Hague under its Statute, the Rome Statute, is unlikely to happen as neither Russian nor Ukraine have ratified the Statute. An UNSC referral to the ICC — if one accepts that the murder of 298 civilians would amount to a crime which qualifies as a crime against humanity or even a war crime under Article 5 of the ICC Statute — would fail given that Russia and its new strategic partner China are Veto powers on the Council and would veto any resolution for a referral.
Other responses could be the imposing of unilateral and international sanctions and embargos against Moscow and high profile individuals. Related to such economic countermeasures is the possibility to hold Russia as a state responsible for its complicity in the shooting down of MH17; the International Court of Justice (ICJ) would be the forum where such a case against Russia could be brought by a state affected by the tragedy. An example for such an interstate case arising from a breach of international law can be found in the ICJ case Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), arising from the unlawful shooting down of Iran Air Flight 655 by the United States in 1988. The case ended with an out of Court settlement by the US in 1996. Again, it seems quite unlikely that Russia will accept any ruling by the ICJ on the matter and even less likely would be any compliance with an damages order by the court.
One alternative could be a true US solution for the accountability gap of Russia’s complicity in the disaster. If the US Congress was to qualify the rebel groups as terrorist organizations then this would make Russia a state sponsor of terrorism, and as such subject to US federal jurisdiction in a terrorism civil litigation case brought under the Anti-Terrorism Act (ATA-18 USC Sections 2331-2338) as an amendment to the Alien Torts Statute (ATS/ATCA – 28 USC Section 1350). The so-called “State Sponsors of Terrorism” exception to the Foreign Sovereign Immunities Act (FSIA Exception-28 USC Section 1605(a)(7)), which allows lawsuit against so-called state sponsors of terrorism. The Foreign Sovereign Immunities Act (FSIA) Exception of 1996 limits the defense of state immunity in cases of state sponsored terrorism and can be seen as a direct judicial response to the growing threat of acts of international state sponsored terrorism directed against the United States and her citizens abroad, as exemplified in the case of Flatow v. Islamic Republic of Iran (76 F. Supp. 2d 28 (D.D.C. 1999)). Utilising US law to bring a civil litigation case against Russia as a designated state sponsor of international terrorism would certainly set a strong signal and message to Putin; it remains to be seen whether the US call for stronger unified sanctions against Russia will translate into such unilateral action.
Time will tell if the downing of MH17 will turn out to be a Lusitania moment (the sinking of the British passenger ship Lusitania with significant loss of US lives by a German U-boat led to the entry of the US in World War I) for Russia’s relations with the West, which might pave the way to a new ‘Cold War’ along new conflict lines with different allies and alliances. What has become clear already today is Russia’s potential new role as state sponsor of terrorism.
Sascha-Dominik Bachmann is an Associate Professor in International Law (Bournemouth University); State Exam in Law (Ludwig-Maximilians Universität, Munich), Assessor Jur, LL.M (Stellenbosch), LL.D (Johannesburg); Sascha-Dominik is a Lieutenant Colonel in the German Army Reserves and had multiple deployments in peacekeeping missions in operational and advisory roles as part of NATO/KFOR from 2002 to 2006. During that time he was also an exchange officer to the 23rd US Marine Regiment. He wants to thank Noach Bachmann for his input. This blog post draws from Sascha’s article “Targeted Killings: Contemporary Challenges, Risks and Opportunities” in the Journal of Conflict Security Law and available to read for free for a limited time. Read his previous blog posts.
The Journal of Conflict & Security Law is a refereed journal aimed at academics, government officials, military lawyers and lawyers working in the area, as well as individuals interested in the areas of arms control law, the law of armed conflict and collective security law. The journal aims to further understanding of each of the specific areas covered, but also aims to promote the study of the interfaces and relations between them.
Oxford University Press is a leading publisher in Public International Law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide.
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By Sascha-Dominik Bachmann
Russia’s offensive policy of territorial annexation (of the Crimea), the threat of using military force and the actual support of separatist groups on the territory of Ukraine has left the West and NATO practically helpless to respond. NATO seems to be unwilling to agree on a more robust response, thus revealing a political division among its member states. This unwillingness can partly be explained with Europe’s dependency on Russian gas supplies but also in the recognition of legal limitations and considerations, such as NATO’s Article 5 (which only authorizes the use of collective self defence in cases of an attack on a NATO member state).
Borrowing the term from the so-called “Jasmine Revolution” of the failed “Arab Spring” of 2011 which challenged the existing political landscape in the Maghreb, it does not seem farfetched to see the events of this spring as the emergence of a new power balance in the region. As it was the case with the two historical examples, the overall outcome will be different from what was initially expected. While some of the protests led, with the deposition of Zine al-Abedine Ben Ali in Tunisia and Hosni Mubarak in Egypt, to actual regime change, soon the “old order” of autocratic governments was reestablished, as the cases of Bahrain, Egypt, and Syria show. It overall also brought Russia back into the region as the main player. Russia’s (re-)annexation of Crimea in April of 2014 is a fait accompli and unlikely to be revised anytime and the ongoing support of separatist groups in the eastern parts of Ukraine where the Russian speaking minority is in the majority, such as Donetsk and Luhansk, has seen an increase in open military combat.
Ukraine is already a divided country, with fighting taking place along its ethnic lines. The break-up of the old Yugoslavia in the 1990s and its ensuing humanitarian catastrophe may serve as a stark reminder of things to come. Yet, it is the prospect of such a civil war which has also removed the necessity for open Russian military intervention; Russia has begun to fight the war by proxy, by using covert military operatives and/or mercenaries. Reflecting these developments and having nothing further to gain from an invasion, Russia announced the withdrawal of regular combat troops from the border this week.
Perevalne, Ukraine – March 4, 2014: Russian soldier guarding an Ukrainian military base near Simferopol city. The Russian military forces invaded Ukrainian Crimea peninsula on February 28, 2014. © AndreyKrav via iStockphoto
The changes to the world since the end of the “Cold War” in 1991 shaped the political landscape and also military strategy and doctrine. What we have seen so far was the evolving of a more liberal view on war as an instrument and continuation of politics — especially in the form of ‘humanitarian intervention’. Examples for this new liberalism in waging war, may be found in the US-led Iraqi campaigns of 1991 and 2003, the war in Afghanistan, Russia’s occupation of Georgian territories during the summer of 2008, the two Chechen campaigns and many more small scale interventions around the globe.
Some of these operations were questionable in terms of legality and legitimacy, and might qualify as the prohibited use of force in terms of Article 2(4) UN Charter. The planning and conducting of these operation would in the future fall within the scope of Article 8 bis of the ICC Statute (in its revised post Kampala 2011 version and coming in force only after 2017), potentially giving raise to criminal responsibility of the political leaders involved.
After adopting a ‘retro’ USSR foreign policy Putin needed and found new strategic allies. In May he entered into a gas deal with China which has the potential not only to disrupt vital energy supply to Europe but also to question the emergence of a future long term cooperation based on mutual economic interest and trust. If these developments herald the coming of a new ‘Cold War’ remains to be seen.
What is evident, though, is that the Cold War’s ‘Strategic Stability’ dogma, which prevented any military direct confrontation between NATO and the Soviet led Warsaw Pact, does not exist in the 21st century. New technologies such as ‘Cyber’ and the use of “New wars” along asymmetric lines of conflict” — which constitute “a dichotomous choice between counterinsurgency and conventional war” — will play a bigger role in the future conduct of hostilities. Such (multi-)modal threats have become known as ‘Hybrid Threats’. Recognized in NATO’s Bi-Strategic Command Capstone Concept of 2010, hybrid threats are defined as “those posed by adversaries, with the ability to simultaneously employ conventional and non-conventional means adaptively in pursuit of their objectives.” NATO decided in June 2012 to cease work on CHT at its organizational level but encouraged its member states and associated NATO Excellence Centres to continue working on Hybrid Threats.
Before the backdrop of the ongoing conflict in Ukraine and the classification of the conflict as a ‘hybrid war’ by Ukraine’s national security chief, this decision might turn out to have been made too early.
Sascha-Dominik Bachmann is an Associate Professor in International Law (Bournemouth University); State Exam in Law (Ludwig-Maximilians Universität, Munich), Assessor Jur, LL.M (Stellenbosch), LL.D (Johannesburg); Sascha-Dominik is a Lieutenant Colonel in the German Army Reserves and had multiple deployments in peacekeeping missions in operational and advisory roles as part of NATO/KFOR from 2002 to 2006. During that time he was also an exchange officer to the 23rd US Marine Regiment. He wants to thank Noach Bachmann for his input. This blog post draws from Sascha’s article “Targeted Killings: Contemporary Challenges, Risks and Opportunities” in the Journal of Conflict Security Law and available to read for free for a limited time. Read his previous blog post on drone killings.
The Journal of Conflict & Security Law is a refereed journal aimed at academics, government officials, military lawyers and lawyers working in the area, as well as individuals interested in the areas of arms control law, the law of armed conflict and collective security law. The journal aims to further understanding of each of the specific areas covered, but also aims to promote the study of the interfaces and relations between them.
Oxford University Press is a leading publisher in Public International Law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide.
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Subscribe to only law articles on the OUPblog via email or RSS.
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