Russia Ukraine & the Rule of Law
Shooting in the Air

Russia’s operatives could be taken to the International Criminal Court for their role in the downing of flight MH17 over Ukraine. Even ICC skeptics in America ought to be open to this approach.

Published on: July 23, 2014
Ruth Wedgwood is a law professor at Johns Hopkins University and a member of the Hoover Institution’s Task Force on Law and National Security. She served on the U.S. Defense Policy Board in the Bush Administration.
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  • Pete

    “Russia could and should be taken to the International Criminal Court over its role in the downing of flight MH17 over Ukraine. ”

    What a screwy idea.

  • Corlyss

    “Russia could and should be taken to the International Criminal Court over its role in the downing of fligh MH17 over Ukraine. Even ICC skeptics in the United States ought to be open to this approach.”

    Naïve reliance on gimmicks like the ICC, which is really not a serious agent of “international law” because international law is basically might makes right and the ICC has no might, seem to be a first recourse by members of my sex. How frustratingly unrealistic to the point of annoyance! I always want to ask these authors “How old are you? 12?”

    • Curious Mayhem

      The Russian troops in Ukraine posing as “rebels” need to be defeated and chased out first. Then legalisms can be brought to bear. Think of Yugoslavia.

      • Corlyss

        I was thinking of Yugoslavia, May. Remember Milošević died in the dock. The only people the ICC has been able to prosecute are African minority thugs. Besides, the silly charade of a “court” could not even get up and running until the Europeans wanted to prosecute G.W. Bush and Dick Cheney. They are just playing silly buggers to believe they matter, like something out of Alice in Wonderland.

      • BobSykes

        No doubt there are Russian advisers and Russian equipment in the east, but remember that Yanukovych was wildly popular in the Crimea and the east (he won each by majorities of over 60% and in some areas 90%), so the great majority of the rebels are likely to be Ukrainians. This is a crisis created by the US/EU/NATO. Put their leaders in the dock.

    • Andrew Allison

      Mars and Venus LOL

      • Corlyss

        Probably true, with exceptions like Maggie Thatcher and even Madeleine Albright.

  • John Tyler

    Taken to court? Please; give me a break.
    Putin must be scared sh**less.
    The consequences Putin and Russia will face as a result of the shot-down airliner will be equivalent to the “line-in-sand” threat uttered by that hate-America-first, commie piece of excrement, BHO.
    Putin is facing the American/European version of Neville Chamberlain, and the world knows it.
    The totally idiotic energy policies of the USA and EUROPE – encouraged and supported by Putin- have enabled the Russians to be the main supplier of energy to Europe. The Europeans, in their stupidity have allowed this, and Putin has them by the cohones.
    If were Putin, I would IMMEDIATELY invade the Baltics and double up efforts to de-stabilize Western Ukraine, and compel Finland to enter the Putin-sphere.
    It will all be a fait accompli, while the Europeans ponders it’s next non-move, and that POS, BHO, goes to play golf and attend another fund raiser ( where all the useful idiots and crony capitalists bend over for BHO.)

  • Don’t remember

    I read the same articles every day, Putin, Russia, Putin, Russia …. Blah Blah Blah
    I am bored

    It reminds me a lick sticks from Chupa Chups, after the candy is eaten

    • Corlyss

      You’re bored, yet you persist in reading the “same” accounts over and over? Go in for masochism, do you?

      • Don’t remember

        No (НЕТ) Tomorrow I’m going to Thailand for a holiday for the whole month. And I will not care about what was going on in the world.

        Best wishes from the Russian people!!!

      • Don’t remember

        you must kill your russofoby in yourself. Come to Russia, and you will see that Russia is a peaceful and beautiful country. I guarantee what you will 500% will be in safety

  • Ashe350

    “the Ukraine?” — and this is coming from a specialist? From the America?

  • PKCasimir

    Problem with lawyers (one of the many problems I should say) is that they believe that “the law” can solve every problem. Well, it can’t.

  • Fat_Man

    I think the common saying is: “Oh yeah? You and what army?

    It won’t happen and there is no need to waste our time with it.

  • qet

    The treaties and conventions cited are not law and an ICC proceeding is the antithesis of the rule of law.

  • Breif2

    Seems like a mighty long route to get to where we already are. (Which is smack dab in front of “Whaddaya gonna do about it?”)

  • WigWag

    The American Interest’s coverage of all things Ukraine has been a tour de force of stupidity, fecklessness and naivety, but Professor Wedgwood’s essay is the piece de resistance of this tom foolery.

    After they’ve trotted out blowhard after blowhard of the American foreign policy glitterati to comment on Ukraine, it becomes increasingly easy to understand why our nation has experienced close to 15 years straight of failure in international affairs. Our politicians, diplomats and other foreign policy gurus are dumber and lazier than dirt.

    Maybe before consigning President Putin to the dock in the Hague, the American political class should reflect on whether they might actually learn something about how leaders protect their nation’s interests by observing the Russian President. Perhaps they should reflect on the fact that both the Russian President and the American President share precisely the same goal; Putin and Obama both want to limit American hegemony. Institutions like the International Criminal Court, which Professor Wedgwood praises in her essay exist precisely for that reason. The ICC exists so that failed nations and militarily neutered nations (like or Western European allies) can exercise influence in the international arena out of proportion to the influence that their weak societies could otherwise achieve.

    The mind boggles at the idiocy of Professor Wedgwood’s recommendations.

    • Corlyss

      Wag! I thought you were dead you’ve been gone so long!

      “Our politicians, diplomats and other foreign policy gurus are dumber and lazier than dirt.”

      It’s the DC Political Class. It doesn’t take a pol very long once he arrives in DC to ape the ways of those who have been there longer and become the problem. No wonder Pat Caddell says we’re on the verge of a revolution by the fed-up.

      • Andrew Allison

        Power corrupts and the longer the power is held, the worse the corruption. Term limits now!

        • Corlyss

          Amen!

  • Don’t remember

    “UKRAINE could and should be taken to the International Criminal Court”

    http://consortiumnews.com/2014/07/22/the-mystery-of-a-ukrainian-army-defector/

  • Duperray

    10 minutes after the crash,” America had already investigated everything and concluded that Russia shot down the plane”. What a naïve piece of disinformation, just to be swallowed by naïve, short sighted media controlled population. Washington is excellent to drive a media war.
    But reality remains and british/dutch are not fully under US control, truth will pop up.
    Is there a trace of information in these slavish media about July 3rd 1989 when a US frigate shot down a 300 passenger air liner “by mistake” in Middle East? Not even a message of regret has even been emitted by arrogant US authorities towards this populatrion ! US behave as nazi and has all the rights, even that one to ally with the Kiev nazis.
    I have been for 60 years an unconditionnal admirer of US but, under the light of past decade, I am now disgusted.

    • Corlyss

      “10 minutes after the crash,” America had already investigated everything and concluded that Russia shot down the plane”.

      Don’t know how you dismiss the intel, which has only gotten better since 1989, just because the US shot down a plane 25 years ago. What happened in 1989 has little bearing on what happened in Ukraine and certainly isn’t analogous in terms of Iran’s provocative behavior surrounding the incident. Been listening to too much Snowden and the petty spiteful Greenwald?

      • BobSykes

        Actually, the Vincennes incident is exactly parallel to the Ukrainian incident. In both cases, the actors misidentified a civilian airliner and assumed it was an attacking military aircraft. Setting aside all the maybes, might have beens, should have knowns, etc, the American investigation of the Ukrainian actually exonerates the Russians.

        • Corlyss

          So where’s the active Malaysians’ provocations of the guys with the nasty weapons? Just askin’.

          • BobSykes

            The separatists were in the business of shooting down junta aircraft. They just got stupid.

        • Andrew Allison

          Sorry, but no. As you remarked in another comment, the separatists lack the capability to operate BUK. QED.

          • BobSykes

            Andrew, please see clarification above. If anything, the Vincennes was worse because we were not participating in the Iran/Iraq war. The one attack on an American ship came from Iraq.

          • Andrew Allison

            Bob, while I sympathize with, and to some extent share the views you expressed elsewhere regarding our government, I believe that the EU must take primary responsibility for what is going on in Ukraine, Further, I must take issue with your assertions regarding the shoot-down. The separatists themselves have acknowledged that they had a BUK system (http://www.reuters.com/article/2014/07/23/us-ukraine-crisis-commander-exclusive-idUSKBN0FS1V920140723. “The Buk is a mobile, radar-guided surface to air missile (SAM) missile system with all four main components — acquisition and targeting radars, a command element, missile launchers, and a logistics element — mounted on tracked vehicles.” (http://en.wikipedia.org/wiki/Buk_missile_system). In other words, the separatists did, in fact, have the kind of radar surveillance system needed to fully identify aircraft.

            While the odds are against the system having been manned by Russian military personnel, it’s use requires training which could only have been provided by Russia, Thus, at a minimum, Russia provided the weapon and training in its use.
            The Vincennes incident is, indeed, a parallel, but two wrongs don’t make a right. Furthermore, I suspect that in the 25 years since that disaster SAM IFF has been very significantly enhanced. IFF is one of the functions of the BUK acquisition and targeting radars, so there’s a question as to how a civilian aircraft was targeted, but the fact remains that the weapons system was provided, and its operators trained, by Russia.

      • Andrew Allison

        Duperray is an SVR troll. Don’t feed him.

        • Corlyss

          SVR? Is Bob Sykes a troll sock puppet?

          • Andrew Allison

            No, Duplicitarry is. See: http://www.buzzfeed.com/maxseddon/documents-show-how-russias-troll-army-hit-america (SVR is the foreign intelligence arm of the former KGB, now FSB). They can be identified by nonsense like “10 minutes after the crash,’America had already investigated everything and concluded that Russia shot down the plane’. What a naïve piece of disinformation, just to be swallowed by naïve, short sighted media controlled population. Washington is excellent to drive a media war.”, obvious non-native English usage, etc. I’m thinking about starting a list, but suggest voting down and flagging rather than answering their comments, i.e., feeding them.

          • Corlyss

            Thanks. Very informative.

          • BobSykes

            Hey, it’s my birthday play nice.

            What I am is an American disgusted by my own government. The universal spying on literally everyone, the use of government agencies to harass political opponents, the meddling and overthrow of governments in the Balkans, North Africa, the Middle East and now eastern Europe and, most importantly, the policy of assassination by drone strikes that have killed hundreds and likely thousands of innocent bystanders. The US has become a rogue terrorist state and is one of the major sources of chaos, terror and violence in the world.

            I am also disgusted by the out lies put out by the MSM regarding our adventurist President and his Ukrainian follies. The commentators used by Meade are especially prone to propaganda and disinformation.

            I am not a supporter of Putin. He is an authoritarian, and he is exploiting the crisis in Ukraine primarily for Russian gain, although he is a Russian patriot and is sympathetic to the ethnic Russians in Ukraine. He is supplying weapons and advisers to the rebels, and some rebel leaders (Strelkov?) might be Russian agents.

            On the other hand, the coup was hardly spontaneous, and Ambassador Nuland was heavily involved. The Ukraine is a pawn between great powers, and the Ukrainians will not determine their own fate.

    • dwpittelli

      Regarding the tragic shoot-down by the US of the Iranian airliner:

      1. The crew of the ship in question (FYI, a guided-missile cruiser, on July 3, 1988) feared that they were under attack. No one on the ground in Eastern Ukraine thought the passenger jet was attacking it from 33,000 feet; they thought it was a Ukrainian cargo plane.

      2. You are mistaken about a lack of regret: “In 1996, the United States and Iran reached “an agreement in full and final settlement of all disputes, differences, claims, counterclaims” relating to the incident at the International Court of Justice, including a recognition of the incident in the form of “…the United States recognized the aerial incident of 3 July 1988 as a terrible human tragedy and expressed deep regret over the Loss of lives caused by the incident…”.[12] As part of the settlement, the United States did not admit legal liability but agreed to pay on an “ex gratia” basis US$61.8 million, amounting to $213,103.45 per passenger, in compensation to the families of the Iranian victims.” (from the Wikipedia page)

      • wfoster

        How did whoever shot the missle in Ukraine know that it was a passenger jet? And how do we assign this level of premeditation at this point? This article is somewhat breathless in its accusations of moral guilt of the Russian government. Maybe, yes, maybe, no. But probably this present case is very similar to that of the Vincennes massacre. The responsible crew (really the commander) who gave the order to shoot down Iran Air 655 claimed that he did not know it was a passanger jet climbing to altitude, but a war plane sending out a false ID code. OK, let’s accept that; but that doesn’t mean an end to moral responsibility. It does, however, change the nature of the crime.

        As to the expression of reget, yes the US government – Reagan himself – expressed regret. And the US government paid out taxpayers’ money to compensate families of the disaster. But the US government never apologized in the usual sense of accepting moral culpability. (Perhaps that would not be prudent, but that’s another argument.) As I read it, the captain of the Vincennes was ultimately morally respsonsible for the horrible consequences of an overly aggressive readiness to shoot something. And the US government morally responsible for putting an overly aggressive fellow in command in a situation particularly filled with potential mistakes. And in the case of this most recent massacre, it will probably turn out to be the same. We don’t have to be stampeded right now into some larger, uncertain strategic policy commitment due to this foggy incident – time will clear things up, just as in the Vincennes case, and regrets expressed, reparations paid, etc.

        • dwpittelli

          In Ukraine they did not know it was a passenger jet. They thought it was a military cargo plane. They did not believe they were under attack by a combat plane, as the plane was flying level at a moderate speed at 33,000 feet.

          I have no idea what your point is on the apology for the Iranian plane.

          • wfoster

            You are projecting attitudes and motives and beliefs, which we do not know, on whoever fired on MH17. But we can speculate based on probabilities, and probably this was a irresponsible error, as was the Iran Air disaster. In both cases the commanders very likely considered both targets legitimate. Ex post, both made horrible errors. And to try again, I was also trying to distinguish between officially expressing regret and an official apology as an official expression of moral culpability for what happened. The US effectively apologized and effectively accepted moral responsibility for the Iran Air massacre by paying compensation, as you noted.

  • BobSykes

    The airliner shoot down was clearly an unintended mistake. The separatists do not have the kind of radar systems and coverage to enable them to identify aircraft. And Russia seems to have taken away the rebels BUK batteries to prevent further horrors.

    If you wish to blame Putin for this, you have to include Obama, Hollande, Cameron, Merkel, Barroso/Juncker, Van Rompuy, and Rasmussen. They started the crisis by engineering a coup to remove Yanukovych, who was the Ukraine’s only democratically elected president and who was wildly popular in the east and Crimea. Without their coup, Yanukovych is still in power, Ukraine has an economic bailout from Russia (the real target of the coup), Crimea is still part of Ukraine, there is no rebellion in the east, AND THERE IS NO SHOOT DOWN.

    Finally, if you want to get real paranoid and conspiratorial, and apparently you do, the application of the principle of cui bono suggests that the shoot down was done by either the US/EU/NATO or the junta or both, as they are the only parties that benefited from it.

    • Breif2

      “Society made me do it!”

    • Andrew Allison

      You are almost certainly correct that the shoot-down was a mistake. It is, however, clear that vehicle was a BUK which, as you write, the separatists lack the skills to use. I agree that the blame for the annexation of Crimea lies squarely with the West, which stupidly encouraged Ukrainian association with Europe resulting in the overthrow of a democratically elected government, but the blame for the subsequent, Russian-led, separatist activities in Eastern Ukraine and the shoot-down lie unequivocally with Russia.

      • BobSykes

        I did not say they couldn’t operate the launcher system, merely that they do not have the kind of radar surveillance system needed to fully identify aircraft. They might not even have had the capability of pinging transponders.

    • dwpittelli

      When a government sends out snipers to shoot scores of unarmed protesters, a coup is warranted.

  • Andrew Allison

    I suppose one shouldn’t be surprised in this day and age that a professor of International Law is unaware of the fact that you can’t take a country to the ICJ. Meanwhile, consider the case of Radovan Karadzic, whose trial there is ongoing almost 20 years after the alleged crimes.

  • dwpittelli

    “callow July 17 shoot-down”

    I think the word you want is callous.
    callow: (especially of a young person) inexperienced and immature.
    callous: showing or having an insensitive and cruel disregard for others.

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