The downing of the Malaysian Boeing 777 in Ukraine may lead to a dangerous precedent in international law for both Russia and the United States. How we define “culpability” now will impact future conflicts as well.
Ukrainians tape pictures of victims of the MH17 air crash on a wall before a memorial concert in Kharkiv, Ukraine. Photo: AP.
The tragedy of Malaysian Airlines MH17 has brought into focus problems for both Russia and the United States in their foreign policy approaches. While the investigations into MH17 are not yet complete, an evolving narrative in the Western mainstream media has emerged. Specifically, when the tragedy first occurred, the narrative was that Russia provided anti-aircraft rockets to the insurgents, which then used them to shoot the plane down.
Thus, U.S. officials argued that Russia was ultimately responsible for the tragedy that occurred. While the official investigations have not yet been completed, U.S. Secretary of State John Kerry and others have suggested that a very strong circumstantial case exists, pointing to Russia's culpability in the tragedy that occurred.
More recently, much of this evidence has been called into question, and it is still unclear as to how this tragedy occurred. In fact, U.S. intelligence sources recently stated that they could not be sure that Russia had even provided the necessary Buk rocket system that brought down Malaysian Airlines MH17.
The United States is assuming that ultimately the separatists shot down the airliner, and that even if Russia did not provide the weapons that shot down the plane, that Russia created the environment for such an event, and are therefore just as culpable as if they had actively been responsible for such an action.
The United States has determined that pressing such an attack will put Russian President Vladimir Putin on the defensive, and that most likely, the facts will bear out their assertions. This is a way that the U.S. could try to drive a wedge between Putin and the separatists and create the necessary conditions to ensure that the Ukrainian government would be able to win their civil war and defeat the separatists.
It should be stressed that an investigation should take place before any accusations are leveled against any of the parties involved in the conflict. This is especially important given that the International Committee of the Red Cross has officially declared the conflict in Ukraine a “war,” which means that any actions taken by any of the parties could be considered war crimes, and thus, punishable by international courts.
What occurred to MH17 was a terrible tragedy, and none of the parties had anything to gain by shooting it down. In fact, one could argue that the side with the most to gain was the Ukrainian government: If the separatists shouldered the blame, the government would be able to increase the intensity of their civil war against the insurgents, further bolstering their chances of quickly defeating the separatists.
However, if it were discovered that pro-Ukrainian forces purposefully shot down a commercial airliner, any sympathy they had heretofore garnered from the international community would evaporate immediately. So, too, is the case for the separatists. They also had nothing to gain by shooting down a commercial airliner. They had been shooting down Ukrainian air force planes that were bombing insurgent positions, but they had nothing to gain by shooting down a commercial airliner.
In fact, the separatists had a lot to lose in that the international community would condemn their act and would support increased intensity in the Ukrainian government's efforts to defeat them. Thus, it seems logical to assume that this terrible tragedy was an accident that will have lasting consequences for the Ukrainian civil war.
Despite the fact that the rocket attack was most probably a terrible accident does not necessarily mean that the party responsible for the attack is not culpable. This is the argument that the United States is using against Russia. The United States is arguing that, even if Russia did not actively shoot down the airliner, that by supporting the separatists, Russia created the conditions necessary for such an event to occur.
This assertion by the United States is very difficult to prove. However, if it can prove that Russia provided the Buk rocket launchers to the separatists, and thus be considered culpable for the tragedy, it establishes a dangerous precedent that could have profound implications for international law.
Specifically, the United States is arguing that any state that provides lethal military aid to another state or group could be found culpable of a war crime. For example, if the United States were to sell lethal weapons to the Syrian rebel groups, and the rebel groups committed war crimes using those weapons, theoretically, according to the argument provided by the United States regarding MH17, the United States could be culpable of such a crime.
Recently, the United States has stated that events in Ukraine have led it to consider providing lethal aid to the Ukrainian government to aid in its civil war against the insurgents. If those weapons are used in war crimes against the civilian inhabitants of Donetsk and Luhansk (two of the insurgent strongholds), then is the United States ultimately responsible for what happens next?
Rather than blame individuals and states in this crisis, a more prudent approach is to let the investigations run their course. Both President Putin and President Obama have called for investigations to take place, and the OSCE is currently on site conducting their investigation. Both the Ukrainian government and the insurgents should agree to a cease-fire while the investigation takes place since the current fighting is very close to the crash site.
In turn, the cease-fire would allow all sides to return to the negotiating table and finally resolve this crisis. However, in truth, such a scenario seems unlikely. Instead, the fighting will continue, the investigations will not be able to fully determine what happened, and accusations will continue. However, the precedent of blaming another state for providing weapons that were used in a war crime would have been set, and could in turn end up coming back to haunt the United States in a future conflict.
The opinion of the author may not necessarily reflect the position of Russia Direct or its staff.