MH17 Should Be Framed as Murder, Not as a War Crime

by Kevin Jon Heller

It has become quite common to describe the downing of MH17 as a war crime. In late July, for example, Navi Pillay, the UN High Commissioner for Human Rights, said that “[t]his violation of international law, given the prevailing circumstances, may amount to a war crime,” More recently, William Burke-White has said that, for framing purposes, “[t]he time has come for governments and international organizations to call the attack on MH17 a probable war crime.” 

[I]f whoever launched the missile did so with the intent of killing the civilian passengers aboard MH17, the act was unmistakably a war crime.

Even if the objective was to strike a Ukrainian transport aircraft, the act likely constitutes a war crime. Fundamental to the law of war, including the law applicable in non-international armed conflicts, is the principle of distinction – the requirement that fighting parties distinguish between civilian and military targets. In the words of the International Committee of the Red Cross, that duty of care includes doing “everything feasible to verify that targets are military objectives.”

In this case, many steps could easily have been taken to differentiate MH17 from a military-transport plane, including visual identification (perhaps with binoculars), radar-signature analysis, and a check of the civilian aircraft transponder-code broadcast. If, as seems likely, these basic steps were not taken, even an accidental strike on MH17 would constitute a war crime.

If the Ukrainian separatists did indeed intend to kill civilians, Bill and Navi Pillay are absolutely right to describe the attack as a war crime — in this case, murder and/or intentionally directing attacks at civilians or civilian objects (to use the Rome Statute’s terminology). But everything we know to date about the attack indicates that the separatists honestly believed MH17 was a Ukrainian military transport, not a civilian airplane. If so, that changes the legal assessment of the attack considerably. The attack would still qualify as murder under domestic law — but it would not qualify as a war crime, under either the Rome Statute or the jurisprudence of the ICTY. (The latter likely representing the customary definition of the war crimes of murder and attacking civilians or civilian objects, which most states would apply in a prosecution based on universal jurisdiction.)

Let’s go in order. The problem with describing the attack on MH17 as a war crime under the Rome Statute is Article 32(1), which provides that “[a] mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.” The actus rei of the war crime of murder and the war crime of intentionally directing attacks at civilians or civilian objects each include a circumstance element: the individuals attacked must qualify as civilians (or as otherwise protected persons). The relevant mens rea for circumstance elements is knowledge, pursuant to Art. 30(3) of the Rome Statute: “For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists.” Black-letter criminal law provides that an honest mistake of fact negatives any mens rea that requires subjective awareness. So if the separatists honestly believed they were attacking a Ukrainian military transport, they were not aware that they were attacking civilians. In which case they could not be convicted of either the war crime of murder or the war crime of intentionally directing attacks at civilians or civilian objects.

The result is no different under the ICTY’s jurisprudence, even though the ICTY applies a lower mens rea to the war crimes of murder and attacking civilians. A complete discussion of the issue is beyond the scope of this post; suffice it to say here that an accused will be responsible for either war crime only if he was reckless toward the possibility that the objects of his attack qualified as civilian. (Dolus eventualis in civil-law terminology.) Recklessness is a subjective mental state in the ICTY’s jurisprudence; as the Trial Chamber noted in Brdjanin, specifically in the context of murder, “the threshold of dolus eventualis entails the concept of recklessness, but not that of negligence or gross negligence.”” Like the ICC, the ICTY recognizes mistakes of fact. As a result, the separatists could not be convicted of either the war crime or murder or the war crime of attacking civilians under ICTY jurisprudence if they honestly believed they were attacking a Ukrainian military transport: although that belief might have been negligent, even grossly negligent, its honesty meant that they were not subjectively aware they were attacking civilians.

The bottom line is that the accidental downing of civilian airplane based on an honest belief that the airplane was a military objective is not a war crime. Failing to take adequate precautions may violate IHL, but it is not criminal. The downing of MH17, therefore, should be framed not as a war crime but as murder.

http://opiniojuris.org/2014/08/11/mh-17-framed-murder-war-crime/

19 Responses

  1. Note: I have changed “everything we know” to “everything we know to date” — to make clear that it could turn out that the separatists knew full well they were attacking a civilian airplane.

  2. the test under CIL includes responsibility for wanton, reckless targetings (artillery, bombs, missiles, etc.). It is not fully correct to focus on what an alleged perpetrator thought. What is ultimately determinative is what the community consders to be wanton or reckless even if the accused thinks otherwise. There may be conflicting evidence, circ. evidence, etc. to add to the mix for a trier of fact.

  3. I don’t want to delve into hypotheticals, but is it not possible that the mistake of fact, while honest, may have been unreasonable given the circumstances? Does an unreasonable, but honest, belief matter under ICL?

  4. Zach,

    It does not matter whether the mistake was unreasonable. Even an unreasonable mistake of fact negatives a subjective mental state. A mistake must be reasonable only when offered as a defence to a crime that requires negligence.

  5. According to the media reports, The Netherlands is investigating this incident in accordance with their International Crimes Act. While article 6.3 of the Act reproduces relevant provisions of the ICC Statute which require intent, article 7.1 of the Act provides for the responsibility for “a violation of the laws and customs of war other than as referred to in articles 5 or 6”. One may argue that those responsible can be tried under article 7.1 of the Act for recklessness (“taking insufficient steps to establish that the plane was a military target when they fired at it” as Alex Whiting wrote in his contribution here: http://justsecurity.org/13269/prosecute-perpetrators-malaysian-jet-downing/)

  6. VT,

    The Dutch are obviously free to call anything they want a war crime, but that doesn’t make acts like taking inadequate precautions a war crime under international law. It’s no different than the US calling things like conspiracy and material support war crimes. So it would still be inappropriate, I think, to frame the attack as a war crime — which for most people would refer to international law, not the Dutch or US “common law of war.”

    As for mens rea, what Alex wrote was this: “it might be sufficient for the Dutch prosecutors to show that the perpetrators were reckless and took insufficient steps to establish that the plane was a military target when they fired at it. ” Perhaps Dutch law defines recklessness objectively; I can’t say. But if it refers to dolus eventualis, an honest mistake of fact would still preclude criminal responsibility.

  7. I mainly agree with your analysis but would replace “murder” with “manslaughter” or “homicide”. I do not know about the definition of murder in the Ukraine, in the Netherlands, in Australia or Malaysia but at least in one European jurisdiction, namely Germany, “murder” cannot be committed negligently.

  8. Kevin,
    I certainly agree with you that if those who shot down flight MH17 took steps to identify the plane as military and honestly thought that they were in fact shooting down a military plane, then the act should be prosecuted as domestic murder and not as a war crime. But it seems to me that the information that we now know, or think we know, allows for another possibility, which is that the aim or intent of those who shot down the plane was to bring down a military plane, but the means they used was indiscriminate and therefore a war crime under customary international law. Imagine they decided that they wanted to bring down military planes flying over their space, and so they decided that they would just shoot down all planes flying over their space without taking available steps to identify whether the plane was in fact military or civilian. I think we would agree this would constitute a war crime, and there is nothing that I have heard so far that establishes that this is not exactly what happened. For that reason, I recommended in my Just Security post, http://justsecurity.org/13269/prosecute-perpetrators-malaysian-jet-downing/, that there should be a coordinated international and domestic investigation. Once the facts are known, then it could be decided whether there is sufficient evidence to bring a prosecution and in what venue it should be brought.

  9. Alex,

    It’s an intriguing argument, and I liked your post very much. But I think there is an important difference between indiscriminate attacks and indiscriminate intent to attack. You seem to suggest the latter could be a war crime under international law, but I think that’s a stretch. Indiscriminate attacks, in their classic sense, are (1) attacks with weapons that cannot distinguish between military and civilian objects or (2) attacks that are launched with no regard whatsoever for the nature of the target. At a minimum, then, I think we would need multiple attacks to conclude that MH17 was just the byproduct of a policy of firing at everything that flew.

  10. Kevin,
    I see this as possibly fitting under your (2). It might have been the desire of the perpetrators to shoot down military aircraft, but if they then proceeded to shoot at airplanes without regard for the nature of the target, then we have a war crime. In Galić, the Trial Chamber considered evidence that after the SRK discovered that ABiH soldiers were crossing the runway at the Sarajevo airport to bring weapons into the city, sometimes dressed as civilians, it started shooting at all persons who crossed, including civilians, indiscriminately. Although the Trial Chamber found that there was not enough specific evidence about what the SRK did and which civilians were killed to uphold this specific incident, it indicated that in principle such an approach by a military force could constitute an indiscriminate attack and it relied on this evidence to prove Galić’s intent, as did the Appeals Chamber (see paras. 415-416 of TC judgment and font 349 of AC judgment). What happened with MH17 is potentially similar, and therefore could in principle constitute an indiscriminate attack.

    Your point in your last sentence about needing multiple attacks is really a proof problem. I agree completely that ordinarily it would be extremely difficult to prove an indiscriminate attack, or even an intentional attack on civilians or disproportionate attack, without multiple attacks. Without multiple incidents, it is very difficult to infer intent or recklessness. But not impossible. What if the perpetrators were intercepted saying, “we cannot permit military aircraft to fly over our space, so let’s shoot down any plane we can see, and no need to take any steps to determine if the plane is civilian or military.” That would be pretty good proof that could allow for a prosecution of a single incident.

  11. Thanks Kevin. When I referred to recklessness, I meant the situation where the capabilities of the weapon used (allegedly “Buk” in this case) allow, according to the media report, the attackers to distinguish clearly whether or not the targeted plane is a military one. How then one may claim a mistake if they, for instance, did not even bother using these capabilities of the weapon or did not have required qualification to use the weapon properly and nevertheless did use it.
    Given such capabilities of the weapon, the defence would have to prove that the suspect(s) had at least some reason to believe that the target was a military one, assuming that they were equipped with the tools for precise identification of the character of the target.

  12. VT,

    I still disagree. Everything you’ve said indicates that the separatists may well have unreasonably believed that they were firing at a military transport — because a reasonable person would have used the tools at his or her disposal to determine the nature of the plane. I would completely agree. But as long as the separatists honestly believed they plane was military in nature, it makes no difference how unreasonable that belief was — they did not knowingly or recklessly attack civilians. (Unless, as I said in my previous comment, Dutch law adopts an objective definition of recklessness. Mistakes of fact need to be reasonable only when the crime in question requires no more than negligence.

  13. Kevin,
    After the Brdjanin trial judgement, the ICTY Appeals Chamber had the opportunity look into the recklessness element in other cases.
    For instance, according to the Strugar judgement, the accused “should have been aware” of the civilian status of the persons attacked and the Prosecution must show that “in the given circumstances a reasonable person could not have believed” that the individual he or she attacked was a combatant (in case of doubt as to the status of a person).
    In the Galic, the Appeals Chamber accepted that “the perpetrator must undertake the attack “wilfully”, which was defined as wrongful intent, or recklessness”

  14. Only the ICTY Appeals Chamber could write something as incoherent as Strugar, where in the space of two paragraphs they say an attack on civilians has to be wilful, which excludes negligence, and then say that negligence toward civilian status suffices. I have no idea what to make of that — but it’s worth noting that the Commentary to the Additional Protocol makes clear the IHL standard requires recklessness and excludes negligence:

    [T]he accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them (‘criminal intent’ or ‘malice aforethought’); this encompasses the concepts of ‘wrongful intent’ or ‘recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered.

  15. It is not the Appeals Chamber in Strugar which is wrong then. It merely quoted with approval para. 55 of the Galic trial judgement. The same “should have known” and “reasonable person could not have believed” from Galic was also applied in the Halilovic trial judgement (para. 36).

  16. between the lines re: some of this discussion is an implied recognition that the trier of fact can second-guess claims regarding a “mistake,” “honest belief,” “intent,” and conclude that there was a wanton, reckless disregard — and a war crime.

  17. The Buk is not a shoulder launched missile. It’s a complex system served by multiple, trained specialist crew. The battery includes a command vehicle, part of whose function is to ascertain whether the target is friendly, hostile or civilian. Civilian aircraft normally emit signals to identify themselves for such purposes. If the operators of the weapon launched it without first going through the IFF process, I find it difficult to understand how that could possibly not be an indiscriminate attack, unless the attitude and characteristics of the aircraft definitively showed it to be military (e.g. it is flying at mach 2). That is unlikely in the case of an airliner.

  18. Rob: good point and this would be considered as well as other features of context whether a claim of “honest mistake” is acceptable. In a sense, the trier of fact would consider what a reasonable person under the circumstances should have known or expected before acceptance of a claim of “honest mistake.”

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