This article originally appeared on Forbes/Opinion.
The International Court of Justice (ICJ) began its hearings on Ukraine's suit against Russia on March 6 in the Hague. Ukraine’s 45-page indictment alleges that Russia violated two UN conventions: First, the Terrorist Financing Treaty through its support of "illegally armed groups" in the self-proclaimed People's Republics of Donetsk and Luhansk, and, second, the mistreatment of Tartars under the International Convention on the Elimination of All Forms of Racial Discrimination. The shooting down of MH17 is included as a violation of the Terrorist Financing Treaty.
With respect to Crimea and its support of pro-Russian forces in Ukraine, Russia has already refused to recognize the jurisdiction of the International Criminal Court (ICC). When the ICC issued its preliminary findings that “there exists a sensible or reasonable justification for a belief that a crime [my italics] falling within the jurisdiction of the Court ‘has been or is being committed’” in Crimea and the Donbas, Russia withdrew. Russia’s Supreme Court has also ruled that Russia will not accept rulings of the European Court of Human Rights.
This leaves only the International Court of Justice. Russia, as a permanent member of the UN Security Council, recognizes the authority of the UN’s ICJ. Although the shooting down of MH17 is only a part of Ukraine’s charges against Russia, the ICJ may prove to be the only international venue for adjudicating Russia’s responsibility for the MH17 disaster.
In the ICJ proceeding, MH17 falls under Article 2.1.b of the Financing of Terrorism Convention, which bans “any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict.”
Ukraine has specifically charged Russia with supplying the surface-to-air missile that shot down MH17 on July 17, 2014. The Dutch-based Joint Investigative Team has submitted evidence that the responsible missile system crossed the border from Russia the day of the disaster and that it was moved by orders of officers associated with Russian military intelligence to the location from which it was fired. After separatist officers determined that the victims were civilians, the offending missile system and its crew beat a hasty retreat back across the border to its home base in Russia.
Russian media and Russian military have denied these facts, claiming that MH17 was either shot down by a trailing Ukrainian jet or by missiles launched from Ukrainian territory designed to cast blame on Russia.
London lawyer, Samuel Wordsworth QC, leads Russia’s defense in the ICJ against Ukraine's claims that the Russian Federation supported terrorism by backing separatist rebels with materiel and equipment. But, as Wordsworth admits, the delivery of missiles from “some source” resulted in “the appalling loss of life caused by the shooting down of flight MH17."
Wordsworth argued that "there is no evidence before the court, plausible or otherwise, that Russia provided weaponry to any party with the intent or knowledge [my italics] that such weaponry be used to shoot down civilian aircraft, as would be required under Article 2.1.b." In fact, per Wordsworth: “Whoever [my italics] was allegedly supplying this Buk [missile system] was acting in response to a series of armed strikes by Ukraine's military aircraft." The intent, therefore, was not to shoot down a civilian aircraft but to take out aggressive Ukrainian military aircraft.
Court experts believe that the “lack of intent” argument could prove persuasive, but it blasts holes in what has been the standard Kremlin narrative that Ukraine deliberately shot down MH17 to cast blame on Russia.
I doubt that Moscow is allowing its London lawyer to craft Russia’s defense on his own. Moscow has decided, at least in this venue where “intent” is key, to admit indirectly that Russia did supply the missile that shot down MH17. Russia will still be loath to admit that a Russian crew fired the missile, but the evidence gathered by the Dutch Joint Investigative Team and independent investigators from Bellingcat is already conclusive.
Russian opposition leader, Aleksei Navalny, argued shortly after the disaster that “it would be simpler if Russia say the following: “The aircraft was destroyed by armed forces operating in east Ukraine. No one planned this action. This was a tragic error. Such things happen but that does not make things easier. We share the grief and we are shamed. We will pay compensation to the victims’ families.”
Navalny knew his “simple solution” could have cost Putin domestic support for his Ukraine incursion, make mockery of his Ukraine guilt narratives, shatter his argument that Russia had no military involvement in east Ukraine, and humble him in the eyes of the world. It is also against Putin’s KGB training, which taught him always to deny, deny, no matter what.
Remarkably, Putin has never denied that a Russian missile downed MH17. In his first official statement, delivered on July 18, 2014, Putin said: “In this regard, I would like to note that this tragedy would not have occurred if there were peace in that country, or in any case, if hostilities had not resumed in southeast Ukraine. And certainly, the government over whose territory it occurred is responsible for this terrible tragedy.” In other words, Ukraine is responsible because it chose to fight back against the Russian-backed separatist forces aiming to remove the Donbass from Ukrainian rule.
In the aftermath of MH17, Putin’s propaganda machine spewed out a barrage of conspiracy theories – Ukraine meant to shoot down Putin’s plane, Ukraine with U.S. assistance shot down MH17 to discredit innocent Russia, and so on. Within hours, Kremlin surrogates, such as Donetsk’s self-proclaimed Minister of Defense Igor Girkin (aka Strelkov) and his subordinates, Igor Bezler (Bes) and Sergei Dubinsky (aka Khmury), knew that a Russian crew had shot down a civilian Boeing. They immediately began the cover up by dispatching the Buk system back to Russia as the Kremlin dreamed up alternative scenarios.
The non-stop media’s blaming of others for the crash won over the Russian people, who still believe that a Western conspiracy killed the innocents aboard MH17. The Western public, however, instinctively knows the truth. They know exactly that Russian-supplied rebels shot down MH17. For Putin, what the Westerns world thinks is much less important than Russian public opinion. In months and years following July 17, 2014, most Russians believed Ukraine was responsible via some sinister plot with the CIA.
Why would Putin decide two and a half years later to admit that MH17 was shot down in a terrible miscalculation, not denying that a Russian missile was to blame? He may be counting on a four-years-or-more legal proceeding in which “intent” decides the matter. Putin may also understand that his claims of no Russian troops in east Ukraine have lost all credibility. In December of 2015, even Putin admitted that “We never said there were not people there who carried out certain tasks including in the military sphere.” Russian missile crews taking out Ukraine’s control of the air would fit this description. Finally, Putin may be preparing a way out of the MH17 calamity. The world believes Russia did it; the official JIT investigation is closing in; the evidence is accumulating; and the survivors are getting angrier and angrier.
Perhaps a financial settlement and an apology would hold the keys to eventual sanction relief. On the flip side, Putin must consider the reaction of the Russian people to learning they have been lied to. If Putin admits and settles, this means he believes he has such an iron grip over his people that even MH17 cannot break.
By Paul Roderick Gregory, Forbes