Rather rich, as arguments go.<\/p>\n The subtext of Wordsworth\u2019s argument is that yes, Russia provided weapons \u2013 including the type that shot down MH17 \u2013 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<\/em> them to shoot at civilian aircraft.<\/p>\n Makes sense \u2013 setting aside that Russian officials have consistently denied<\/a> any weapons, soldiers, or equipment being deployed across the border in Ukraine. Why would Russia \u2013 or any country providing or selling weapons \u2013 authorize or direct weapons to be used against civilian targets.\u00a0 Missing in this argument is a bit of good old fashion common sense.<\/p>\n 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.\u00a0 Presumably.<\/p>\n Wordsworth seems to be arguing the defunct (and short lived) notion that specific direction <\/em>is a required actus reus<\/em> element of aiding and abetting \u2013 the absence of which negates fixing criminal responsibility on Russia for the downing of MH17.<\/p>\n More on specific direction<\/em> in a bit, but first some facts that arguably are uncontroverted.<\/p>\n It seems beyond question that Russia is directly assisting the fighters \u2013 Russians and Russophiles in Eastern Ukraine who are waging war or defending themselves \u2013 depending on the perspective. Russia would be hard pressed to argue that what is going on in Ukraine is not an international armed conflict \u2013 even if Russian troops are not directly or actively involved \u2013 though debatable.<\/p>\n Now to the point.<\/p>\n 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.<\/p>\n Wordsworth\u2019s argument resonates with echoes of specific direction<\/em> being part of the actus reus<\/em> for aiding and abetting, first accepted in Peri<\/em>\u0161i\u0107<\/em>, only to be discredited in \u0160ainovi\u0107 et al<\/em>. and rejected in Popovi\u0107<\/em> et al. <\/em>and Stani\u0161i\u0107 and Simatovi\u0107<\/em>.<\/p>\n For those who may not be familiar with this saga of legal gymnastics, here is a brief overview.<\/p>\n The ICTY Appeals Chamber (by Majority)(( Judge Liu and Ramaroson dissented.\u00a0 See Prosecutor v. Peri\u0161i\u0107<\/em>, IT-04-81-A, Partially Dissenting Opinion of Judge Liu, 28 February 2013. Prosecutor v. Peri\u0161i\u0107<\/em>, IT-04-81-A, Opinion Se\u0301pare\u0301 du Juge Ramaroson sur la Question de la Vise\u0301 Spe\u0301cifique Dans La Complicite\u0301 par aide et Encouragement, 28 February 2013.)) acquitted Peri\u0161i\u0107 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 Peri\u0161i\u0107 <\/em>Appeals Chamber held that specific direction is an essential element of actus reus <\/em>of aiding and abetting liability.(( Prosecutor v. Peri\u0161i\u0107<\/em>, IT-04-81-A, Judgement, 28 February 2013, para. 36. See also id. <\/em>paras. 25-35 for the Appeals Chamber\u2019s analysis and interpretation of the ICTY jurisprudence of aiding and abetting. )) In support of its conclusions, the Appeals Chamber relied on the Tadi\u0107<\/em> Appeal Judgement, which described the actus reus<\/em> of aiding and abetting liability as \u201cacts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime.\u201d(( Prosecutor v. Peri\u0161i\u0107<\/em>, IT-04-81-A, Judgement, 28 February 2013, para. 27.))<\/p>\n A year later, the ICTY Appeals Chamber in \u0160ainovi\u0107 et al.<\/em>(( Marko Milanovic makes interesting observations on the composition of the Appeals Chamber in Peri\u0161i\u0107<\/em>, \u0160ainovi\u0107<\/em>, and Stani<\/em>\u0161i\u0107 and Simatovi\u0107<\/em>. See <\/em>Marko Milanovic ICTY Appeals Chamber Reverses Stanisic and Simatovic Acquittal, Orders Retrial, Kills Off Specific Direction (Again!)<\/a>, EJIL: Talk!<\/em> 15 December 2015, noting that the outcome of the Stani<\/em>\u0161i\u0107 and Simatovi\u0107<\/em> appeal was completely predictable, because all three of the Judges in the majority \u2014 Pocar, Liu, and Ramaroson \u2014 were also in the majority in \u0160ainovi\u0107<\/em>, and Judges Liu and Ramaroson had each rejected the requirement in Peri<\/em>\u0161i\u0107<\/em> as well.)) rejected (by Majority) the approach of the Peri<\/em>\u0161i\u0107 <\/em>Appeals Chamber,(( Judge Tuzmukhamedov dissented. In his view \u0160ainovi\u0107<\/em> Appeals Chamber was not the appropriate forum to address the issue, especially because it has no pertinence to the case. See Prosecutor v. \u0160ainovi\u0107 et al.<\/em>, IT-05-87-A, Dissenting Opinion of Judge Tuzmukhamedov, <\/em>23 January 2014, paras. 40, 46.)) holding that specific direction is not an element of aiding and abetting liability.(( Prosecutor v. \u0160ainovi\u0107 et al.<\/em>, IT-05-87-A, Judgement, <\/em>23 January 2014, para. 1649.)) After an extensive analysis of the ICTY and ICTR jurisprudence as well as customary international law, the \u0160ainovi\u0107 et al. <\/em>Appeals Chamber concluded that previously the Appeals Chamber \u201cmerely observed that specific direction can be at times, though not necessarily always, factually implicit in a finding of substantial contribution.\u201d(( Id., <\/em>para. 1625.)) It reasoned that no independent specific direction requirement was applied to the facts of any case before the Appeals Chamber.(( Id.<\/em>)) By contrast, the substantial contribution of the accused has consistently been an element of the actus reus<\/em> of aiding and abetting liability.(( Id.<\/em>)) 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.(( Id., <\/em>para. 1642.)) In relation to national jurisprudence, the Appeals Chamber concluded that requiring specific direction is not a general, uniform practice.(( Id<\/em>., para. 1646.))<\/p>\n Based on its analysis, the \u0160ainovi\u0107 et al. <\/em>Appeals Chamber \u201cunequivocally reject[ed] the approach adopted in the Peri<\/em>\u0161i\u0107 <\/em>Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus<\/em> of aiding and abetting liability and with customary international law in this regard.\u201d(( Id<\/em>., para. 1650.)) This was later reaffirmed by the Popovi\u0107 <\/em>Appeals Chamber((Prosecutor v. Popovi\u0107<\/em>, IT-05-88-A, Judgement, 30 January 2015, para. 1758.)) and by the Stani\u0161i\u0107 and Simatovi\u0107 <\/em>Appeals Chamber in ordering a retrial.(( Prosecutor<\/em> v.<\/em> Stani\u0161i\u0107 and Simatovi\u0107<\/em>, IT-03-69-A, Judgement, 9 December 2015, para. 106.))<\/p>\n Conclusion <\/em><\/strong><\/p>\n 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\u00a0the type of forensic trial needed in this case).\u00a0 As for Wordsworth\u2019s argument, it may be a good sound-bite, but not much of a defense.<\/p>\n![\"\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2017\/04\/MH17.jpg?ssl=1\")
<\/a>On 7 March 2017, Samuel Wordsworth QC, one of Russia\u2019s lawyers appearing before the International Court of Justice (ICJ) in Ukraine v. Russian Federation<\/em>, 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 \u201cprovided 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).\u201d(( 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<\/em>), 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: \u201cAny 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.\u201d))<\/p>\n<\/a>If the report of the Joint Investigation Team (JIT) is correct((Let\u2019s 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 <\/em>JIT, Presentation Preliminary Results Criminal Investigation MH17 available <\/em>here<\/a>.<\/em>)) \u2013 and as implied by Wordsworth\u2019s careful phrasing \u2013 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\u00a0to realize that such weapons will be used against flying objects that may be too difficult to detect \u2013 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.\u00a0 It knew \u2013 or certainly should have known \u2013 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.<\/p>\n<\/a>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. \u00a0Just 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. \u00a0Shooting into the sky at a flying target without knowing what it is carries the risk of downing a passenger plane \u2013 which is exactly what happened.<\/p>\n