Alexander Gillespie: Rapid reprisal would be disastrous

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Military action against separatists who shot down MH17 likely to trigger Russian entry into Ukrainian civil war.

The site of the  Malaysia Airlines flight  shot down over Ukraine airspace. Photo / AP
The site of the Malaysia Airlines flight shot down over Ukraine airspace. Photo / AP

Disbelief at the killing of 298 civilians as they travelled peacefully through the skies above Ukraine is prompting many people to react with anger.

This emotion could easily make matters worse if it does not consider the wider context that this atrocity occurred within. That context is a civil war which has already claimed at least 1000 lives, severed Crimea from Ukraine and is rapidly darkening the relationship between Russia and the West.

Russian involvement in this civil war in terms of encouragement of the separatists in addition to the provision of men and weapons has caused the United States and Europe to apply further sanctions.

Last week, major Russian banks and energy companies were added to the list with prohibitions against them. Russian President Vladimir Putin did not brush this second wave of sanctions aside with the same disdain as he did the first wave. He said that bilateral relations were reaching a "dead end".

United States President Barack Obama promised a third wave of sanctions if matters did not improve. One day later, Malaysia Airlines flight MH17 was destroyed by a surface-to-air missile. The link between Russia and this act, in terms of territory, technology or assistance is not yet clear.

To prevent this terrible incident escalating a series of steps must be followed. First, two inquiries must be held. The first must be under the auspices of the International Civil Aviation Organisation. This cannot be done unilaterally or regionally. History tells us from the time in 1983 when the Soviets shot down a Korean airliner killing 269 civilians, that nations lie about critical issues such as flight paths and whether an airliner was, or was not, in the wrong place to hide their own guilt. The ICAO must also critically assess the adequacy of its warnings about flight safety around all war zones and the ability of airliners to disregard these.

The second inquiry should be under the auspice of the Human Rights Council of the United Nations, or an International Fact Finding Commission under the rules of international humanitarian law. It should find out who fired the weapon and whether it was accidental, reckless or intentional. The killing of 298 civilians does not allow this matter to be investigated only by those who are accused or complicit in the atrocity.

If the shooting was an accident, as happened when the US shot down the Iranian airbus in 1988, killing all 290 civilians, then it is essential the culprit admits guilt and pays compensation. In the case of the US and Iran, the package worked out to near US$100 million.

If the shooting was intentional then 298 people have just been murdered. If so, the purpose will have been to draw a self-imposed reprisal on the separatists, in terms of either the military actions of the Ukrainian state, or military support by the United States and the European Community against those who fired the weapon. Such actions would then trigger the entry of Russia into the Ukrainian civil war. This is exactly what the separatists want. It would be a disaster for all to follow such a path.

If this was an intentional act, the smarter way to deal with this is to isolate the specific incident and bring those directly responsible to justice. The intentional targeting of civilian airliners has been recognised as a prohibited act in international law since 1971.

Finally, the weapon that caused this atrocity must be controlled. Surface-to-air missiles can change the course of wars but these weapons are barely regulated in international law. They must become as strictly regulated as are landmines, cluster bombs or plastic explosives.

In the interim, surface-to-air missiles in Ukraine must be removed from both sides. We should follow the precedent of what was achieved in Syria with the removal of the chemical weapons. At an absolute minimum, these particular long-range surface-to-air missiles must be taken out of the war zone and this act must be independently verified.

Alexander Gillespie is a professor of law at the University of Waikato and author of The Causes of War, and the History of the Laws of War.

- NZ Herald

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