Russia argues no specific direction for the downing of Flight MH17

On 7 March 2017, Samuel Wordsworth QC, one of Russia’s lawyers appearing before the International Court of Justice (ICJ) in Ukraine v. Russian Federation, argued that Russia could not possibly be held responsible for shooting down Flight MH17 because there is no evidence (as if one would expect to find a memo to the rebels) that Russia “provided weaponry to any party with the intent or knowledge that such weaponry be used to shoot down a civilian aircraft, as would of course be required under Article 2(1).”1 International Court of Justice, CR 2017/2, in the case concerning Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Transcript Oral hearing, 7 March 2017, submissions by Mr. Wordsworth for Russian Federation, p. 35. Article 2(1) of the International Convention for the Suppression of the Financing of Terrorism provides: “Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.”

Rather rich, as arguments go.

The subtext of Wordsworth’s argument is that yes, Russia provided weapons – including the type that shot down MH17 – and yes, the rebels (or freedom-fighters or whatever denomination one affixes to them) were expected to use those weapons, but no, Russia did not authorize or specifically direct them to shoot at civilian aircraft.

Makes sense – setting aside that Russian officials have consistently denied any weapons, soldiers, or equipment being deployed across the border in Ukraine. Why would Russia – or any country providing or selling weapons – authorize or direct weapons to be used against civilian targets.  Missing in this argument is a bit of good old fashion common sense.

The provider of military weapons to those in active conflict (justified or not) knows that the weapons will be used. Some collateral damage is to be expected, and far too often tolerated to an excess. Weapons provided for shooting down flying objects, such as an aircraft, are expected to be used for those purposes. Presumably, instructions on the use of those weapons are included in the delivery. Presumably, those weapons will only be used for proper military purposes. And presumably, the weapons-provider is not also a hands-on participant.  Presumably.

Wordsworth seems to be arguing the defunct (and short lived) notion that specific direction is a required actus reus element of aiding and abetting – the absence of which negates fixing criminal responsibility on Russia for the downing of MH17.

More on specific direction in a bit, but first some facts that arguably are uncontroverted.

It seems beyond question that Russia is directly assisting the fighters – Russians and Russophiles in Eastern Ukraine who are waging war or defending themselves – depending on the perspective. Russia would be hard pressed to argue that what is going on in Ukraine is not an international armed conflict – even if Russian troops are not directly or actively involved – though debatable.

If the report of the Joint Investigation Team (JIT) is correct2Let’s remind ourselves that in September last year, a Dutch-led joint investigation team (JIT) concluded a Buk missile brought across the border from Russia into a Ukrainian village controlled by pro-Russian rebels shot down Malaysian Airlines flight MH17 killing 298 people. See JIT, Presentation Preliminary Results Criminal Investigation MH17 available here. – and as implied by Wordsworth’s careful phrasing – Russia provided weapons designed to shoot down aircraft to its comrades-in-arms for controlling the skies above them. It is no great stretch of the imagination to realize that such weapons will be used against flying objects that may be too difficult to detect – especially if the weapons are in the hands of trigger-happy para-military types, with little regard or appreciation for the niceties of the laws of war (including the Geneva Conventions). As such, Russia can hardly claim clean hands and a pure heart in regard to the downing of MH17.  It knew – or certainly should have known – that commercial cargo and passenger aircraft were flying in the skies above this area (imprudent as this may seem), and that there was a reasonable probability (more like a high possibility) that sooner or later a commercial airliner would be downed by its proxy (no sense in beating about the bush) fighters. For Russia to claim otherwise would be farcical.

As in hunting, one is expected to know what he or she is aiming at before pulling the trigger. Shooting at and killing a human while mistaking him or her for a deer is still a crime.  Just because the shooter could not accurately make out the object, who happened to be where deer seem to wander about during hunting season, is no justification.  Shooting into the sky at a flying target without knowing what it is carries the risk of downing a passenger plane – which is exactly what happened.

Now to the point.

Russia, however one slices and dices the facts, was substantially assisting those who shot down MH17 by providing them with weapons (used to shoot down this plane), training, logistics, financial support, etc. The downing of MH17 was no mere accident; it was a crime. By substantially assisting those who shot down MH17, Russia has aided and abetted the commission of this crime. It matters not that Russia did not authorize or specifically direct those who shot down MH17 to shoot at civilian aircraft.

Wordsworth’s argument resonates with echoes of specific direction being part of the actus reus for aiding and abetting, first accepted in Perišić, only to be discredited in Šainović et al. and rejected in Popović et al. and Stanišić and Simatović.

For those who may not be familiar with this saga of legal gymnastics, here is a brief overview.

The ICTY Appeals Chamber (by Majority)3 Judge Liu and Ramaroson dissented.  See Prosecutor v. Perišić, IT-04-81-A, Partially Dissenting Opinion of Judge Liu, 28 February 2013. Prosecutor v. Perišić, IT-04-81-A, Opinion Séparé du Juge Ramaroson sur la Question de la Visé Spécifique Dans La Complicité par aide et Encouragement, 28 February 2013. acquitted Perišić on the basis that no conviction for aiding and abetting may be entered if the element of specific direction is not established beyond reasonable doubt. Reviewing the prior aiding and abetting jurisprudence, the Perišić Appeals Chamber held that specific direction is an essential element of actus reus of aiding and abetting liability.4 Prosecutor v. Perišić, IT-04-81-A, Judgement, 28 February 2013, para. 36. See also id. paras. 25-35 for the Appeals Chamber’s analysis and interpretation of the ICTY jurisprudence of aiding and abetting. In support of its conclusions, the Appeals Chamber relied on the Tadić Appeal Judgement, which described the actus reus of aiding and abetting liability as “acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime.”5 Prosecutor v. Perišić, IT-04-81-A, Judgement, 28 February 2013, para. 27.

A year later, the ICTY Appeals Chamber in Šainović et al.6 Marko Milanovic makes interesting observations on the composition of the Appeals Chamber in Perišić, Šainović, and Stanišić and Simatović. See Marko Milanovic ICTY Appeals Chamber Reverses Stanisic and Simatovic Acquittal, Orders Retrial, Kills Off Specific Direction (Again!), EJIL: Talk! 15 December 2015, noting that the outcome of the Stanišić and Simatović appeal was completely predictable, because all three of the Judges in the majority — Pocar, Liu, and Ramaroson — were also in the majority in Šainović, and Judges Liu and Ramaroson had each rejected the requirement in Perišić as well. rejected (by Majority) the approach of the Perišić Appeals Chamber,7 Judge Tuzmukhamedov dissented. In his view Šainović Appeals Chamber was not the appropriate forum to address the issue, especially because it has no pertinence to the case. See Prosecutor v. Šainović et al., IT-05-87-A, Dissenting Opinion of Judge Tuzmukhamedov, 23 January 2014, paras. 40, 46. holding that specific direction is not an element of aiding and abetting liability.8 Prosecutor v. Šainović et al., IT-05-87-A, Judgement, 23 January 2014, para. 1649. After an extensive analysis of the ICTY and ICTR jurisprudence as well as customary international law, the Šainović et al. Appeals Chamber concluded that previously the Appeals Chamber “merely observed that specific direction can be at times, though not necessarily always, factually implicit in a finding of substantial contribution.”9 Id., para. 1625. It reasoned that no independent specific direction requirement was applied to the facts of any case before the Appeals Chamber.10 Id. By contrast, the substantial contribution of the accused has consistently been an element of the actus reus of aiding and abetting liability.11 Id. The Appeals Chamber also reviewed the International Military Tribunals and Control Council Law No. 10 jurisprudence and concluded that specific direction was not required as an element of any form of accessorial liability.12 Id., para. 1642. In relation to national jurisprudence, the Appeals Chamber concluded that requiring specific direction is not a general, uniform practice.13 Id., para. 1646.

Based on its analysis, the Šainović et al. Appeals Chamber “unequivocally reject[ed] the approach adopted in the Perišić Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.”14 Id., para. 1650. This was later reaffirmed by the Popović Appeals Chamber15Prosecutor v. Popović, IT-05-88-A, Judgement, 30 January 2015, para. 1758. and by the Stanišić and Simatović Appeals Chamber in ordering a retrial.16 Prosecutor v. Stanišić and Simatović, IT-03-69-A, Judgement, 9 December 2015, para. 106.

Conclusion

No doubt Russia will raise multiple defenses as to why it should not be held responsible for the downing of MH17. Some of its arguments may even carry the day (the ICJ is not beyond politics and query whether it is even up to the task of the type of forensic trial needed in this case).  As for Wordsworth’s argument, it may be a good sound-bite, but not much of a defense.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

3 thoughts on “Russia argues no specific direction for the downing of Flight MH17”

  1. Thanks for that interesting post , it is just , that first of all , it should be noticed , that Russia as a state , can’t be held responsible of course , for nothing criminally . Criminal responsibility , can be attributed only to a person , natural persona , never ever a state ( see article 25 to the Rome statute , even for the crime of aggression ). So , anyway , whatsoever , the actus reus for aiding and abetting , has nothing to do , in criminal pure terms , with the state of Russia ( otherwise of course , The state of Russia , could charge and convict the state of Russia in domestic law , which is of course an absurd ) .

    Second , you have quoted ( Tadic appeal judgment ) that among others , liability can consist of ” lend moral support …. ” So , could be sufficient in our case ( concerning natural persona only of course ) .

    However , in domestic laws , there are many other different actus reus possible in this regard , although not regarded yet as CIL .Here for example , the Israeli penal code ( common law , British ) here :

    Misinterpretation of situation

    34R.(a) If a person commits an act, while imagining a situation that does
    not exist, then he shall bear criminal responsibility only to the
    extent that he would have had to bear it, had the situation really
    been as he imagined it.

    End of quotation :

    So, anyway a crime, but maybe, the perpetrator, had imagined, that it was an Ukrainian air force jet somehow, and as such, had taken him down. As such , it is another different animal , not vastly different , yet morally or prima facie , different !!

    ” God knows the wind path …. ” Sometimes , one can’t understand and predict , under stress , what one person may think or do . Trust me !!

    Thanks

    1. Thank you, El Roam, for your comment. My response:

      This post and the Ukraine v. Russian Federation case before the ICJ is not about the ICC, so there is no need for a lecture on any modes of liability or crimes under the Rome Statute.

      Ukraine v. Russian Federation is about the alleged violations of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination. Ukraine invoked its rights and the respective obligations of Russia under Article 18 of the ICSFT. Article 18 provides that States parties are obliged to co-operate to prevent the financing of terrorism, i.e., providing or collecting of funds with the intention that they should be used or knowledge that they are to be used in order to carry out acts of terrorism as outlined in Article 2 of the ICSFT.

      Russia can be held responsible for the actions of those shooting down MH17, just as Serbia was found responsible for breaching the Genocide Convention. When Bosnia and Herzegovina took Serbia to court for genocide, the ICJ found (not unanimously) that Serbia was neither directly responsible for the Srebrenica genocide, nor complicit in it. It did find, however, that Serbia breached the Genocide Convention by failing to prevent genocide from occurring.

      Tadić and Perišić were merely mentioned for context. To be exceedingly clear, I discussed specific direction because the excuses offered by Mr. Wordsworth have the whiff of a specific direction defense. Wordsworth could have outright denied that Russia provided any weapons to anyone; full stop. He did not. Fascinated by Wordsworth’s remark, I decided to draw some parallels. I did not set out to write an exegesis on shooting at flying objects during a conflict and how other nations may treat the subject in their military manuals.

      1. Thanks for your reply Michael , I know what is all about , and I have written it , because , you were treating the subject , in criminal terms or terminology , classically so . The process there , is not a criminal process whatsoever ! The ICJ whatsoever , is not a criminal court . Only in the ICC or an ad hoc tribunal , a criminal process can take place ( or national court of course ) . One reader could think mistakenly , that a you write about a criminal process . So , it was a general reminder or introductory remark : No way , that in a criminal court or process , a state can be charged . Had to be reserved simply . I can only presume , that it was obvious for you , yet , not for a reader necessarily .
        Thanks

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