Control Matters: Ukraine & Russia and the Downing of Flight 17

by Jens David Ohlin

The recent downing of Malaysian Airlines Flight 17, apparently by an anti-aircraft missile fired from within rebel-controlled territory in the Ukraine, has raised the specter that Russia is covertly (or not so covertly) supplying arms and assistance to the pro-Russian separatists operating within eastern Ukraine. Obviously, the facts here are somewhat contested and I have no insider or independent information about the firing of the missiles. What I say here is based on news reports in The New York Times and elsewhere, and our understanding of the situation is rapidly evolving.

But let’s assume, for the sake of argument, that this story (or something similar) turns out to be true. Let’s assume that the “BUK” anti-aircraft missile system was either provided to the Ukrainian rebels by Russian operatives, or that it was stolen by the rebels from the Ukrainian military, and then operated with assistance from Russian operatives and military advisors. It seems more likely that the missile system was provided directly by Russia, but even if the rebels stole it from the Ukrainian military, it seems unlikely that the untrained militia-members would have been capable of deploying it without Russian assistance. (Again, let’s just take this as an assumption, because alternate hypotheses exist, including the contention that the militia members are trained in anti-aircraft missile deployment because they are local defectors from the Ukrainian military).

If this story is true, it reveals how important the debate is, in international jurisprudence, between competing theories of control. This might seem like an obvious point, but the current situation in the Ukraine (vis-à-vis Russian influence) may stand at precisely the fault line between “effective control” and “overall control” – the two competing doctrines of attribution in international law.

As most readers already know, the effective control test was articulated in the ICJ’s Nicaragua judgment and offers a fairly robust set of standards for attributing the actions of an armed group to a particular state, essentially requiring that the armed units are operating on the instruction, or at the direction of, the foreign state. In these circumstances, the actions of the armed group can be attributed to the foreign state.

In contrast, the ICTY in Tadic declined to follow the ICJ’s Effective Control Test, and instead formulated and applied the broader Overall Control Test. The test was originally designed to determine in Tadic whether the armed conflict was an international armed conflict or a non-international armed conflict. If the conduct was attributable to a foreign state, then the armed conflict was international in nature. Subsequently, Cassese argued (correctly) that the test was, in fact, a general test for state responsibility. The test allowed for state responsibility in situations where a foreign power helped to coordinate the actions of an organized and hierarchically structured armed group by equipping, financing, or training the paramilitary force.

The dispute between these two tests is crucial because they really do give different answers in important cases. It seems to me that the Ukrainian situation falls directly on the fault line between the overall and effective control tests. If the Effective Control test applies, then it is not clear whether the shooting down of the airliner can be directly attributed to the Russian government (although that conclusion depends on which facts are unearthed in the investigation). On the other hand, if the Overall Control test applies, then there is a plausible argument that the shooting of Flight 17 can be attributed to Russia because their operatives probably helped train and equip, and coordinate, the activities of the pro-Russian militia. The Overall Control test supports the attribution of responsibility to Russia, while the Effective Control test probably does not.

Either way, one important insight about both tests is their black-and-white nature. Instead of a spectrum of control yielding different degrees of responsibility, the tests act as an on-off switch. Either there is state responsibility or there is not; either the acts are attributed or they are not. There is no sliding scale of responsibility based on the degree of foreign involvement or entanglement in the local affairs of the militia or paramilitary organization.

A final note on a related but distinct topic. It also seems pretty clear that pro-Russian militia were acting incompetently in shooting down the plane, assuming incorrectly that they were shooting down a military aircraft. How should one understand their level of culpability here? Recklessness comes to mind as the appropriate mental state since they probably did not engage in the appropriate due diligence to distinguish between military and civilian aircraft.

Although it is unclear whether this should be treated as an international crime (killing of civilians during an armed conflict) or a domestic crime (murder), I have to say that I have never found international criminal law’s treatment of crimes of recklessness particularly satisfying. Under domestic law, reckless killings are either classified as manslaughter or as the lowest degree of murder (such as depraved indifference to human life) depending on the jurisdiction and depending on the severity of the recklessness. Domestic law therefore produces a grading of the offense based on the lower mental state. In contrast, international criminal law has no lower offense for crimes of recklessness. Unlike the distinction between murder and manslaughter, a defendant is either convicted or acquitted of the war crime of killing civilians (with nothing in between).

http://opiniojuris.org/2014/07/23/control-matters-ukraine-russia-downing-flight-17/

9 Responses

  1. As I understand it, if the Russians provided the weapons system to the rebels and if, as seems generally recognized, the rebels have not achieved the status of internationally recognized belligerents, then legally the rebels are criminals and Russia has civil liability for the the consequences of the weapons system they provided. If the rebels had achieved the status of belligerents, then countries could provide them with weapons and the rebels would be responsible for the consequences of their use.

  2. Hi Jens,

    But can’t Russia be complicit in the crime without having effective control over the rebel group?

    JGS

  3. James, good question. As I start, I assume that the complicity analysis in public international law is not the same as the complicity analysis under ICL. Russia can’t be complicit in anything under ICL (though perhaps individual Russian officials might be). As for complicity under public international law, ASR article 16 is no help because that involves state complicity for an act committed by another state (as opposed to rebels).

  4. Yes, there’s an interesting run-around though, that Natalie Reid’s excellent article in Leiden explored some time ago (admittedly, with respect to superior responsibility not complicity). In short, Russia is responsible as a state if its agents are individually responsible. It’s a fun cocktail of ICL and PIL all in one! Would be interesting to get André Nollkaemper’s views. He’s leading an interesting (and substantial) project on these questions. See http://www.sharesproject.nl/ Interesting times! J

  5. Specific direction, anyone?

  6. As my recent article on self-defense in the case of an Iranian nuclear weaponization noted (GT J. Int’l L.), the ICJ test for attribution or imputation regarding permissible measures of self-defense against a state was NOT limited to “effective control” (which was a test used in paragraphs prior to the inquiry into attribution or imputation regarding armed attacks and the right of self-defense, and which was used with respect to specific law of war violations as such). The test was “substantial involvement.” However, in the real world it is not likely that Ukraine will engage in otherwise permissible measures of self-defense against Russia.
    Beyond what the ICJ was addressing re: specific war crimes, the law of “state responsibility” permits a broader recognition of state responsibility for nonstate actor conduct in violation of international law. Perhaps Ukraine could focus on such responsibility under int’l law re: complicity, aiding and abetting responsibility in addition to “substantial involvement.”

  7. p.s. under the laws of war, wanton reckless disregard is a known customary standard regarding artillery, missile, aircraft, etc. attacks despite the limitation of ICC jurisdiction re: the Rome Statute’s use of a knowledge test (just another example why the ICC has limited jurisdiction over certain crimes under customary international law [e.g., not all CAH or war crimes] and forms of individual criminal responsibility).

  8. What happens if the rebels claim that they did not capture the BUK missile systems (and most other heavy weapons) through hard work but that they were “given” these things by sympathizers within the military of Ukraine. After all it is somewhat odd that so many weapons systems were hauled into Donetsk and Lugansk. Would that change who is guilty? Since Ukraine controlled forces provided the weapons…

    The Dutch have said that they expect to make the first public disclosure of findings in the week of August 4th so we may soon know who did it.

Trackbacks and Pingbacks

  1. […] Ohlin at Opinio Juris on Control Matters: Ukraine & Russia and the Downing of Flight 17 […]