Malaysian Airlines flight MH17 was shot down in Ukrainian airspace, between Donetsk and Luhansk, on July 17. All 298 passengers and crew members were lost.
I wrote a blog post on this last year following the incident and at this stage, as the incident report by the Dutch Safety Board has been published, I find a review of this incident from a perspective on Russia worthwhile.
Firstly, it is necessary to examine this in the context of the laws of war (jus in bello). Arto Pulkki, a military expert for the magazine Suomen Sotilas, wrote a very good piece on the case of flight MH17 titled Responsibility and Irresponsibility, considering intention and liability from a criminal law perspective. I warmly recommend this as a primer.
As it is easier to approach the subject of guilt or fault using legal principles, I will begin by considering criminal intent to begin with. Mens rea needs to be established in order to find out which principles of the laws of war are applicable in this case.
Intention as opposed to negligence or carelessness is easily established in this case; if the firing button was pressed with the express purpose of launching the missile, negligence or carelessness is ruled out. A negligent or careless act would require that, for example, an external event — say an explosion nearby – startled the launch operator or rocked the vehicle causing the operator to inadvertently launch the missile.
The issue left is to assess the level of intention. Assuming that there was no intent to down a civilian flight, then the degree of culpability of the operator is low. An obvious and possible outcome of firing a missile is for it to hit civilian aircraft or for the missile to stray and cause damage to civilians. Considering this from a jus in bello perspective, only one principle strictly applies to this case. When considering the prerequisite of targeting, distinction, the case is clear – military force was used on a civilian target. The debate on admissibility ends here; all other principles discussed in the case of MH17, such as proportionality and necessity, don’t even come into play.
Proportionality and necessity
A good example of applying these discussed principles not relevant in the case of MH17 — and the problems and dilemmas that arise — is the decision taken by NATO forces to target the Lužane bridge in Serbia during operation Allied Force (Kosovo, 1999). During that strike a bus was on the bridge resulting in the loss of life of 23-70 civilians.
The underlying requirement in applying these principles is the call for precautions. The principles don’t suddenly become valid only in the moment of an attack or decision to attack. Or post-attack as in some cases… The requirement of protecting civilian life and property comes with a specific call for precautions in both planning and executing the use of force. The belligerents (Parties) must be able, to at all times and in all circumstances distinguish between civilians, civilian property, and military targets. Force may only be used on military targets. In practice this means that standards and mechanisms for identifying targets, assessing damage pre-strike, and choosing systems of engagement must be put in place, be upheld and controlled by responsible commanders.
In the case of MH17, for example, the relevant questions to be asked in order to assess the culpability of the launch operator and his superiors,
- Did the operator take care to properly identify the target, i.e. did he positively identify the target as military?
- Did the operator act in accordance with the Rules of Engagement (ROE) and the identification criteria set therein?
- Was the identification criteria such that by using them a reliable identification would be acquired? (identification by two or more systems, e.g. radar and visual, or a challenge-and-reply identification)
- Did the higher command (superiors) make sure that no civilian aircraft were in the dangerous zone, for example by maintaining and distributing a recognized air picture?
- If it was known that civilian air traffic was in the zone, were decisions taken to limit or cease the use of air defence forces?
- Or was a deliberate decision taken to continue the use of force, disregarding the risks to civilian air traffic?
Russia, Syria and the return of total war
International political responsibility and state actor culpability are harder issues to address, but asking: ”Does Russia itself use or equip belligerents with effective long range weapons, without providing for the required situational awareness, intelligence, command and control (C2), and information systems to use those systems, thus creating a considerable risk of an indiscriminate and non-distinctive use of force?
In Ukraine such systems, lacking the supporting and enabling systems to use them in accordance with jus in bello are the BUK surface-to-air missile system, the Grad and TOS-1 multiple rocket launchers and the lighter artillery and air defence systems, e.g. SA-7 Strela ja SA-18 Igla MANPADS. In Syria, we have witnessed the use of long-range (nuclear capable) sea-launched Kalibr-NK cruise missiles, and air-to-ground missiles, dumb and smart bombs within stand-off ranges. Russia has also equipped Iran with weapons in its contribution to the war on ISIS.
Common for all these cases is a large number of civilian casualties that have two underlying reasons.
Firstly, Russia and the actors is equips aren’t able to produce an adequate situational awareness and intelligence preparation needed for targeting. When strikes are conducted – outside a stand-off distance, without reconnaissance units on ground and in contact with the enemy, without continuous air recce, without situational awareness and with inadequate staffs – civilian casualties are likely to occur.
Secondly, Russia is testing and battle proving its weapons and C2 systems. The most important objective is to verify and ensure that the systems are reliable and give them a ”combat proven” certification, in order to further develop them to meet the criteria and requirements set for combat systems in the concept of sixth generation warfare. That said, there’s something positive in Russia’s combat activities in Syria. Russia is fielding UAVs in battle damage assessment (BDA) tasks, thus gaining reliable information on the effect of the strikes. However, no regard – or blatant disregard – is shown for the results of the BDA results. The choice of systems and methods of engagements are still based on effect-only thinking and a limited selection of weapons. Russia is using an array of platforms and weapons systems designed for conventional (and nuclear) warfare against capable NATO opponents. Russia has used heavy thermobaric charges against targets in the immediate vicinity of civilian infrastructure and population. The same weapons have been regularly tested in live fire exercises since the ”snap drill year” of 2013. These heavy ordnance strikes in Syria have resulted in loss of civilian life and property.
It seems that the proportionality and necessity of Russian strikes aren’t judged case-by-case in reference to specific rules of engagement, but are rather categorically justified based on political and strategic objectives and desired end states.
The patriotic media
The Russian ”war machine” receives a lot of help from the state controlled media. Russia Today and other news services have produced hours of high quality videos and informative articles on Russian armed forces’ combat activities in Syria. In my view this doesn’t reflect a media that’s a Kremlin puppet, but rather a media armed and anabled with a patriotic mission and purpose. The situation awkwardly resembles the rôle of the US media in the Iraqi War of 2003.
We were a propaganda arm of our governments. At the start the censors enforced that, but by the end we were our own censors. We were cheerleaders.
In 2003, US media was brought under military control by embedding journalists with combat units. This enabled a better control of the media and an increasingly short-sighted and narrow reporting on the bigger picture. Embedding journalists (”in-bedding”, derogatory) with soldiers also sparked criticism in Western media. [1, 2].
In Russia, the editorial staff and board members of many news agencies have been hand-picked by the current government. While some spectacular news about news anchor resignations in live shows following the annexation of Crimea were reported, most journalist are the same skilled people as before. Writing stories lauding Russia and its military prowess and might isn’t that disagreeable, but rather seen as a patriotic mission. This makes Russian media especially dangerous. It’s able to voluntarily, effectively, and timely produce high quality content to a large public. There is no need for state censorship or control. Regarding Finnish media I once stated that in some aspects the watchdogs have become lap dogs. In Russia, the media have been trained into bloodhounds of the powers that be.
Information warfare holds a key rôle. The fileds of Crimea, Eastern Ukraine and Syria have provided Russia with the proving grounds, where it has demonstrated its ability to obfuscate information, events, cause and effect by producing disinformation, thus effectively destabilizing and disorienting Western decision making processes and decision makers.
This effect has also been multiplied by the Western need to see a logical rationale and sustainable reasons behind Russia’s actions. This may very well be a mirror imaging fallacy, where Western comprehensive crisis response strategies are ascribed to Russia by association. The Russian game in Crimea, as well as Eastern Ukraine and Syria is an unscrupulous deterrence policy, relying on opportunities presented – both offered by the adversary and created by own forces – and the basic principles of warfare – surprise, aggressiveness and initiative. Especially the principle exploiting the initiative and opportunities seized is done at a political-strategic level. Russia will continue this policy as long as the win-win offered and created persists. Russia has already reached strategic objectives in Syria. Its presence is permanent. The use of Iraqi air space has become a de facto permanent arrangement and there is no more debate on Russian participation in Middle Eastern crisis management, but rather the focus lies on deconflicting some issues such as airspace control that may in worst case scenarios lead to a permafrost in superpower [sic!] political relations.