In January 2017 Ukraine issued proceedings against Russia in the International Court of Justice in The Hague, Netherlands. The claim has barely been covered in the international media and not at all in the Australian media.
The summary of the Ukrainian case can be read here (1). Only one aspect of the claim will be discussed here as it is of particular relevance to Australia. It is this importance to Australia that makes the lack of coverage somewhat surprising, although as will be seen, not totally so.
The Ukrainian claim seeks (at paragraph 135) a declaration from the International court of Justice that Russia bears responsibility “for the act of terrorism committed by its proxies in Ukraine, including:
(a) the shoot down of Malaysian Airlines flight MH17.
The relief sought includes:
(b) full reparation for the shoot down of Malaysian Airlines Flight MH17.
The Ukrainian claim purports to rely on the Report of the Dutch Safety Board (DSB) and the preliminary report of the Joint Investigation Team-JIT (of which Australia is a member). The latter report was issued on 29 September 2016 and was unable to determine responsibility for the shoot down.
The earlier DSB Report said that the plane was shot down by a BUK missile, and was fired from an area they had narrowed down to 320 square kilometers which was contested by the two sides at the time. The JIT report was more specific as to location, but not determinative of culpability.
The Ukrainian claim filed with the ICJ alleges that persons from the Russian supported Donetsk People’s Republic or their “affiliates” from an area under DPR control fired the BUK missile.
The most relevant portion of the DSB Report for present purposes is the conclusions of the Dutch Security Services, which appears as Appendix T of the DSB Report. The Dutch Security authorities concluded that there was no evidence the “separatists” had possession of an operable BUK missile. Neither did they have the technical ability to operate such a missile system.
Further, the Dutch concluded, the separatists had no motive to shoot down a civilian airliner. Unsurprisingly, the Australian media are silent as to the contents and conclusions of Appendix T. It is an inconvenient fit in the dominant narrative of “Russia did it.”
Another inconvenient fact is the evidence presented to the ICJ by Mr Ilya Rogachev, from the Russian Foreign Service and a member of the Russian team in The Hague. (2)
Mr Rogachev pointed out that Ukraine had made similar allegations in the European Court of Human Rights in 2014. (3) In January 2016 Russia rebutted the Ukrainian claim (4) and in the more than one year that has elapsed since then Ukraine has made no attempt to respond to the Russian rebuttal argument.
Mr Rogachev also pointed out that at the relevant time (July 2014) the Ukrainian Army had three divisions of its anti-missile Regiment stationed at three separate locations in the Donbass: near Donetsk, in Mariupol and Lugansk. They had a total of 17 BUK-M1 surface to air missiles, identical to the one identified by the JIT as responsible for the shoot down of MH17.
Any one of these missiles could have been transported to the firing site, which had been identified by Almaz-Antay, the BUK’s manufacturer, on the basis of their research, the results of which were supplied to the JIT. They identified an area that was controlled by the Ukrainian military at the material time.
Neither the DSB nor the JIT have alleged that the missile was fired with the specific intent of downing a civilian airliner. This is an important point. Under the terms of the Montreal Convention (which governs civil air transport) and to which Ukraine, Australia and Russia are parties, there has to be a specific malicious intent to destroy a civilian airliner proved before the question of damages or reparation arises.
Without proof of that specific intent, any claim such as that brought by Ukraine must fail. Notwithstanding the considerable propaganda efforts by the western media, none has yet produced a single plausible motive for the Russians or the separatists to shoot down a civilian airliner from a friendly country.
It is not too difficult to think of motives that the Ukrainians might have had, or it may simply have been a tragic accident. The political objectives in blaming Russia seem in this case to far outweigh any rational consideration of the actual evidence.
These ICJ proceedings have further relevance for Australia. There are a number of factors in play here. Space permits only a brief consideration of some of them. The hearing last week in The Hague was preliminary in nature. If the matter goes to an actual hearing of evidence, that is likely to be some years away. It would be unwise of the Australian government to maintain its current hostility to Russia based on the very uncertain state of the evidence regarding MH17 to continue into the future.
On the basis of a reading of the documents filed in this case, and a transcript of the oral evidence by representatives of the two sides, my preliminary view is that Ukraine simply does not have the evidence to support its claims.
The manifest weakness of the Ukrainian case has led the Russians to apply to have the proceedings dismissed on a number of grounds, including the court’s lack of jurisdiction to even hear the case. Where there is incontrovertible evidence available, it rebuts rather than supports the Ukrainian argument. (5)
It is these manifest weaknesses that perhaps explain the remarkable silence of the western media, including Australia, on the proceedings in The Hague. There is nearly always an uncomfortable silence when the facts rebut the rhetoric.
Malcolm Turnbull took the opportunity again last week to condemn Russia’s alleged involvement in the shooting down of MH17. He did not qualify his criticism, instead saying, for example, “Vladimir Putin’s Russia is subject to international sanctions, to which Australia is a part, because of his conduct in shooting down the MH17 airliner.” (6)
This public stance is at variance with the government’s private position. One aspect of that is Turnbull’s refusal to designate the shooting down of MH17 as a “terrorist act” thereby invoking the provisions of the Australian Victims of Terrorism Overseas Act. Such a designation, which is at the discretion of the Prime Minister, allows the payment of compensation to the victim’s families of up to $75,000.
Nearly three years after the event, there is still no indication of when, or if, such a designation will be made. Other terrorist events post the MH17 tragedy have been thus designated. What constitutes a “terrorist act” for the purposes of compensation among other things is found in section 100.1 of the Schedule to the Australian Criminal Code 1995.
It is understood (7) that Attorney –General George Brandis has given written advice to the Prime Minister that there is insufficient evidence about the exact circumstances of the MH127 shoot down for it to meet the statutory test of a terrorist act.
A copy of that written advice has been sought under FOI legislation, but previous experience with this government would strongly imply that the information will not be provided.
Such a refusal allows the continued making of false statements unsupported by the evidence, such as the Prime Minister did last week and quoted above. The government knows that the public will not have access to its legal advice on this point. They can similarly rely upon a supine mainstream media and weak Opposition to allow them to maintain their anti-Russian stance.
Political opportunism again trumps the facts and the law.
James O’Neill is a Barrister at Law. He may be contacted at email@example.com
- ICJ Ukraine Institutes Proceedings. Release No 2017/2 17 January 2017.
- ICJ Verbatim Record 7 March 2017
- Application No 20958/14
- Application No 8019/16
- Mercouris Here’s Why Ukraine is Suing Russia in the ICJ. www.theduran.com 11 March 2017
- Helmer Australian Prime Minister Drags Foot, Trips Up Ukrainian court Claim of MH17 Terrorism www.hjohnhelmer.net 9 March 2017