MH17

The aftermath of the tragic crash of Malaysia Airlines Flight 17 has generated consensus among the world's leading countries on Russia's role in the Ukrainian crisis. Moreover, this event has caused European leaders to substantially reconsider their attitude on the nature and scope of sanctions against Russia.

But in the absence of evidence pointing directly to the involvement of Ukrainian separatists in the tragedy, Russia still sees opportunities to defend itself against accusations and promote alternative versions of what happened. These versions are not being taken seriously by international media, politicians or the public in many countries.

Russian aviation experts suggest that the information from the aircraft's black boxes can only indirectly confirm the fact of a missile attack on MH17. The full picture of the catastrophe, these experts say, can only be developed based on the retrieval of the aircraft wreckage and a comprehensive assessment of the damage. They note that only through such a procedure was it possible to establish that the Russian Tu-154 passenger plane flying over the Black Sea in 2001 was downed by Ukraine's air defence forces.

Nonetheless, representative of the National Security and Defence Council of Ukraine Andrei Lysenko said analysis of the airliner's black boxes had already confirmed the plane had been downed after being struck by shrapnel from a missile that caused a massive, explosive decompression. These comments drew a sharp rebuke from Moscow: official conclusions can only be made upon completion of the investigation.

Representatives of the Russian Government and the state-controlled information space in Russia have put forth a variety of theories, including directly blaming the Ukrainian military for shooting down the plane with a Buk surface-to-air missile or a fighter jet which was supposedly flying in close proximity to the airliner. The Russian media only indirectly and inconspicuously mentions the possibility that the separatists could have launched a rocket from their own Buk system.

Independent experts in Russia believe that the Boeing was downed by a Buk missile fired from territory controlled by the separatists. But such missile complexes must be controlled by professionals, which is why most often the blame is placed on Russian military personnel who could be operating in Ukraine. This version is usually accompanied by an important caveat: the passenger plane was mistaken for another target. For example, the separatists received a false report regarding the flight of a Ukrainian military transport plane and mistook the Boeing for that plane. The intercepted communications between the separatists several minutes after the tragedy occurred seem to support this assertion.

This version is not one that can be swept aside by some massive information campaign engineered by Russian authorities. [fold]

Their position is made worse by the dominant viewpoint in many countries, which is that while the separatists are directly to blame for the downing of MH17, the Kremlin is the main culprit in this tragedy. This is the viewpoint projected from Washington, although mainly relying on indirect evidence and without yet providing photos or information from satellites and other means of reconnaissance. The less frequently mentioned scenario, that the missile was launched from Russian territory, changes little: in either case, Russia and specifically the Russian president are the guilty party. This case is already proven for many politicians, experts and a large portion of the population of the world's leading countries.

The consequences for Russia depend on the outcome of the crash investigation. Even if it confirms that Vladimir Putin learned only after the fact about the 'mistake' made by the separatists and that there was no command from Moscow to shoot down the Boeing, this will not change the essence of the situation for the Kremlin. Its only chance for redemption is if somehow the blame for the tragedy is shifted to Kiev and the world community accepts this. But this is a fleeting chance, at best.

However, much time remains before the investigation will conclude, and the dynamics of the Ukrainian crisis and relations with the West are rapidly worsening in the meantime. The EU's adoption of the third and most painful round of sanctions signals that the conflict has already gained substantial momentum.

One particularly critical aspect of this crisis for the Kremlin is the show of solidarity on both sides of the Atlantic. From the early years of Vladimir Putin's leadership, a special emphasis was placed on strategic cooperation with the European Union. Until recently, relations with leading European partners even took precedence over relations with countries of the former Soviet Union. In Moscow there was hope that Brussels would take a much more moderate approach than Washington, and that conflicts of interests between America and many European capitals would have a mitigating effect.

Following the tragedy, Moscow lost much of its room for manoeuvre between European countries and the US. Now the political position of EU leaders has more clearly separated from the interests and pressure of European business. Furthermore, the Kremlin is seeing a new and worrying trend: the attitude toward Russia in the European business community has begun to change. The tough criticism of Russia coming from the leaders of German industrial associations has been particularly painful.

If Moscow and the fighters under its control are truly not responsible for the tragedy, it should do everything possible to help establish the true cause and in doing so at least minimise the collateral damage to its relations with the EU. Otherwise, even while the investigation is in process, the position of those accusing Moscow of all sorts travesties (not only the tragedy of the Malaysian Airlines flight) will only grow stronger.

The question of Russia's responsibility for the Ukrainian crisis is now becoming a separate problem considered outside the scope of the MH17 tragedy. So as Moscow strives to keep the focus on the question of who shot down the aircraft, it should not forget that the answer to this question may not be the deciding factor in whether other countries decide to enact tough containment policies toward Russia.

It is now two weeks since the downing of MH17 over rebel-held territory in eastern Ukraine. In that time we have witnessed frenetic activity by leaders in Europe, the US and Australia. But amid the flurry of diplomacy, little seems to have changed for the better, either for the investigation or for the conflict more generally.

If anything, the situation is even uglier. International investigators are still being held back from the crash site, even though they have the backing of an Australian-drafted UN Security Council resolution supported by all Permanent Members. The Ukrainian Government's decision to launch an offensive towards Donetsk has put the crash site dangerously close to the battle zone. Ukraine faces fresh elections after its governing coalition collapsed. And Western pressure on Vladimir Putin has not shifted his resolve one iota. According to recent reports, Russian military aid to Ukrainian separatists has actually increased.

One glimmer of hope for Western audiences has been the broad sanctions regime Brussels and Washington have just announced, which certainly appears to be a more robust Western response to continued Russian defiance over its role in Ukraine's civil war.

Prior to the downing of MH17, the EU and US had embarked on a minimalist 'first line' of sanctions that focused on individuals close to the Kremlin. The aim was to put pressure on Putin by taking aim at his entourage. But asset freezes and travel bans against prominent politicians and businesspeople were largely ineffective. Russian parliamentarians named on the 'no fly' list wore their status as a badge of pride. And while the US claims to have made Russia 'weaker' by engendering an estimated $100 million in capital flight, the sanctions did little to dampen Putin's resolve.

Indeed, US sanctions of any kind on Russia are largely symbolic, given the absence of any real trading relationship between the two nations. The EU's 'sectorial' sanctions on energy, arms sales and finance, on the other hand, have more promise. The Brussels-Moscow trade axis is more than ten times larger than the US-Russian relationship. And the EU's sanctions go much further than before, targeting core Russian businesses. [fold]

They restrict the sale of technology for oil exploration, which hampers Russia's desire to exploit its contested claims in the Arctic Circle. They include a ban on weapons sales, estimated at some €20 billion annually. And they forbid Europeans from buying debt or equity in state-owned Russian banks, except for short-term trading. The list of embargoed individuals has also grown.

But these sanctions won't go anywhere near far enough to deter Putin. At best, they are a small PR victory. At worst, the length of time taken to negotiate them will only reinforce Putin's calculation that Europe is divided.

To begin with, these sanctions don't lock the EU into a long-term course since they are reviewed every three months. Actual energy trading will continue, and the focus on oil exploration leaves Russia's gas sector unmolested. A crucial compromise to win the backing of Paris was that the military embargo could not be retroactive. That gave the green light to a 2011 French deal to sell Russia two Mistral helicopter carriers at a price of €1.2 billion.

The aspects of this package with the most teeth are the EU's financial sanctions. Putin will find it harder to obtain credit, which will drive Moscow closer to Beijing. China is likely to charge a steep price for that credit, as it did during the global financial crisis. Even so, Russian Foreign Minister Sergei Lavrov's response that Russia would not bother engaging in 'hysterics' with tit-for-tit sanctions was a sure sign that Moscow is confident in Europe's fragility. Just like Kosovo and Chechnya in the 1990s, when the tokenistic suspension of Russia from the Council of Europe and the NATO dialogue process lasted a mere six months, Russia intends to simply wait Europe out.

In fairness, the EU's response had to be carefully negotiated. Internal wrangling, coupled to a precarious economic position, each played a strong role. There are already concerns that the total cost of the sanctions might drive the EU into recession. Opinion polls in Germany put support for tougher sanctions against Russia at 52%; a majority, but by no means a convincing one. Angela Merkel was extremely reluctant to impose broad sanctions that would hurt Germany's high-technology sales, especially in computers and advanced machinery. That is why the initial call for a ban on 'dual use' technologies was watered down to 'military end-users'.

Hence the brunt of the pain from sanctions will be felt in London's financial district. This is unsurprising as well. The UK, with a low stake in Russian gas imports, is the nation with the least to lose in terms of vulnerable overdependence.

But the upshot is that Western responses – whether justified or not in their assessments of Russian culpability – have been monumentally weak. Faced with the opportunity to send a clear message to Moscow, Europe and even the US have settled once again for half measures.

All of this suits Putin very nicely. Caught between a thirst for Russian gas and domestic vacillation, the EU may score points in the propaganda war, but it has failed strategically in an important test of its resolve. As the war in Ukraine drags on, any hope that some good might come of the MH17 tragedy must now be nearly extinguished.

Photo by Flickr user Jeroen Akkermans.

There will be many people in the Department of Foreign Affairs and Trade (DFAT) right now who are not getting enough sleep. The conflict in the Middle East involving Israel and Hamas, the war in Syria with its added dimension of foreign (including Australian) fighters, elections in Indonesia and the rise in sectarian violence in Iraq will be occupying policy makers. But it is the downing of flight MH17 over Ukraine by separatists on 17 July that will be front and centre of the department's work from both a policy and consular perspective.

Having worked on a number of consular crises from the 2004 Asian tsunami to the hostage-taking of an Australian in Iraq, I have a sense of how the Department will be using the crisis response mechanisms that have been refined over many years.

DFAT headquarters, Canberra. (Flickr/Bentley Smith.)

Within hours of the news of the crash of MH17, DFAT activated the Emergency Call Unit and publicised, including through social media, the emergency number for people to call if they had fears for the safety of family and friends. The Department handled about 1000 calls in the first 24 hours.

Regular consular staff and other Departmental volunteers (particularly from the Department's crisis cadre, a group of more than 200 people specially trained to deal with an incident overseas) were rallied to work in the 24-hour Crisis Centre or be part of the deployed Emergency Response Teams. The purpose-built Crisis Centre is equipped with modern communications and technology systems and serves as the central coordination point for the whole-of-government response to an international crisis. Staff working in the Crisis Centre collate information from overseas posts and other sources; prepare situation reports, briefings and talking points; and implement decisions made by the interdepartmental committee managing the crisis.

Consular staff worked quickly to confirm details of the passengers on board and then to make contact with family members offering support and consular assistance. A consular case officer was dedicated to each family. A number of overseas posts, particularly Warsaw and The Hague, have now assumed a similarly important consular role acting as liaison points, providing information to loved ones and assisting with practicalities. [fold]

The Foreign Minister is clearly intimately involved in the consular response in addition to her advocacy and policy activism in the UN Security Council and with counterpart leaders. She told the media she would prefer not to talk about her conversations with the families as she would become too emotional. Her departmental staff will also be feeling the emotional toll. Receiving and identifying bodies, working with disaster victim identification experts, engaging with funeral directors and quarantine agencies and supporting grieving families are never easy tasks.

When I was in South Africa, staff at the High Commission, together with our colleagues in Nigeria, were involved in recovery and support operations following a plane crash in the Democratic Republic of Congo which killed all members of the board of an Australian mining company. Fortunately, many of the consular team had received psychological preparedness training specifically aimed at preparing them for traumatic events. That training, together with adrenalin and a real sense of compassion for the victims' families, helped all of us cope through a difficult time.

In the past few years, the growing number of consular crises has required the Department to focus on training and contingency planning — running regular workshops, conducting (with the Department of Defence) Contingency Planning Assistance Team (CPAT) visits to posts, undertaking exercise rehearsals and practicing responses to particular disaster scenarios both with other government agencies and private sector bodies. The more than 200 officials who have been, or are being, deployed will need to draw on all that training and planning as they help to 'bring Australians home' following the MH17 crisis.

Bringing together the best Interpreter articles you were too busy to read this week.

The senseless shooting down of flight MH17 continues to dominate the news, and both Michael Fullillove and myself have written columns on the implications for Australia. Here on The Interpreter, our contributors been commenting on developments. You can read the whole thread here, but below I've highlighted some pieces.

Peter Knoope, Director of the International Centre for Counter-Terrorism in The Hague, contributed an outstanding piece of controlled fury:

With 193 Dutch citizens killed in the MH17 tragedy, the Netherlands is in shock. The country is mourning. Everybody seems to know someone who is directly affected by this terrible loss. The mourning is slowly but surely transforming into outrage that will push the Dutch Government into visible response and action. 

We don't know exactly what happened. But is seems plausible that it was an 'unintended' incident in an armed conflict between separatists on the one side and  national Ukrainian forces on the other. Unintended or not, factions and individuals are still accountable for what they have done. The questions 'Who did this?' and 'Who supplied the military support, technology, know-how and weaponry to execute such an attack?' are relevant to the victims and the population at large. Justice needs to have its way. The public is expecting and demanding as much. 

The international legal ramifications of the MH17 shootdown are exceedingly complicated. Danielle Rajendram breaks it down:

A number of options for legal recourse have been raised.

The first is to prosecute the perpetrators of this crime under the domestic law and courts of one of the injured parties. This was the approach taken for the Lockerbie bombing trial, in which two Libyan nationals were tried under Scottish law in the Netherlands for their involvement in the bombing of Pan Am Flight 103 over Scotland. Ukraine would certainly have jurisdiction over any crime committed in its airspace, and it is likely that injured nations such as the Netherlands, Malaysia, or even Australia may also have jurisdiction to prosecute this crime.

Another is that the perpetrators of the incident be brought before the International Criminal Court (ICC). The ICC is charged with dealing with individuals for the offences of genocide, crimes against humanity, war crimes, and the crime of aggression. As prosecution of crimes against humanity requires acts to be committed as part of a 'widespread and systematic attack,' the most likely avenue for pursuing justice for victims of the MH17 attack in the ICC would be under the Court's jurisdiction over war crimes.

James Brown and Brendan Thomas-Noone both commented on the potential of an international security presence to protect air crash investigators at the MH17 site. James stated that a police-led approach is the right solution: [fold]

This will take some time to achieve. Julie Bishop will be negotiating a sort of status-of-forces agreement with the Ukraine detailing what powers of arrest police officers will have, what happens to them in the event they are involved in a car crash or other legal matter, and the circumstances in which they might be authorised to use their personal weapons. The AFP will be thinking about how it might detain people trying to interfere with the crash site, which authorities those detained might be transferred to, and the logistics of maintaining 50 or so officers in a fairly remote rural area in Eastern Europe.

This will be a military-enabled mission. Military aircraft are already involved in moving bodies from Ukraine to Amsterdam and might be involved in moving the international police force and possibly aircraft parts recovered from the crash site. Military intelligence will be crucial to an ongoing security assessment of the area in which the investigation will take place, and there will need to be detailed liaison between the AFP and Defence on the local intelligence picture. Finally, the Australian Defence Force is thinking through worst case contingencies. If an AFP officer is kidnapped by a local separatist group, the recovery effort could involve the ADF's Special Operations Command. If the situation in Eastern Ukraine deteriorates and a tentative ceasefire collapses, military forces might be required to evacuate the international investigation force.

Brendan wrote on a potential peacekeeping force:

The UN Security Council mandate secured by Australia and the Netherlands earlier this week leaves open the option of using a peacekeeping force to secure the crash site and the safety of international investigators. The language used in the mandate is clear. The Security Council called for a 'full, thorough and independent international investigation into the incident', demanded that the armed rebel groups in the area 'refrain from any actions that may compromise the integrity of the crash site' and most importantly expressed 'grave concern at reports of insufficient and limited access to the crash site.'

A UN peacekeeping operation could be built off this mandate. Such an operation would need to be authorised by the Security Council and passed by its five permanent members, including Russia. This would be difficult, but Russia passed the resolution authorising the investigation earlier this week on the condition that the resolution did not assign blame. Moscow could see this as an opportunity to show goodwill and further de-escalate the situation, particularly if the peacekeeping forces came from countries outside of NATO.

Mike Callaghan looked at the chances of Russian President Vladimir Putin attending the G20 Summit in Brisbane in November:

Australian public opinion, and that in some other countries, may remain strongly opposed to allowing Putin to attend the Brisbane Summit. It is possible that, given such controversy and the prospect of a hostile reception in Australia, Putin may choose not to come. But if Australia did not let Putin attend, other countries may oppose and conceivably bring into question their attendance. Should this eventuate, the future of the G20 could come into question, particularly if those not attending were major emerging markets. The strength and significance of the G20 is that it brings together the leading advanced economies and emerging markets. In addition, political and security issues would be brought front and centre in G20 deliberations, overshadowing the economic agenda.

The coming months could be very tricky ones for Australia, given its role as G20 chair for 2014.

A number of delegates to the AIDS 2014 conference were killed on the Malaysian Airlines flight, and Annmaree O'Keefe reported from the conference on the long shadow cast by MH17:

The mood at last night's opening was sombre and the six were well missed. But HIV has stalked many of the 12,000 people attending this week-long conference, so the threat of death has never been far from their minds. As Australia's eminent jurist Michael Kirby (pictured) said in his opening address last night, people affected by HIV/AIDS are no strangers to suffering, irrationality and hatred. They are also no strangers to death.

So the conference refuses to be bowed by an outrageous act. Instead, it is using the tragedy to spotlight an ongoing outrage: the human rights abuse, happening in many parts of the world, which curses the lives of people either infected or affected by HIV and AIDS.

It's true there has been significant success in pushing back HIV's advance over the past three decades. UNAIDS estimates that the global effort to fight HIV has averted 7 million deaths since 2002 and averted 10 million new infections. Globally, the rate of new HIV/AIDS infections continues to decline. New infections among adults in developing countries in 2012 were 30% lower than in 2001. 

Nick Bryant posted from New York on the machinations behind the Australian-sponsored UN Security Council resolution 2166:

After the meeting, which ended at one o'clock on Monday morning, (Russian UN representative Vitaly) Churkin indicated that Russia's reservations had been addressed, but still would not say for sure whether his hand would be raised in favour of the resolution. Moscow knew that a veto would be met by an international outcry, and be received, as Tony Abbott put it, 'very very badly'. So minutes before the Security Council gathered for its mid-afternoon meeting on Monday, Churkin indicated Russia's support, which meant the resolution passed unanimously.

Unquestionably, this is a significant achievement for Australian diplomacy.

Still on the Security Council, here's Richard Gowan on using 'the art of the possible' to get action on Ukraine (and Syria):

To get Moscow's support for the Ukrainian resolution, Australia and its allies watered down their text. Security Council Report, a think-tank that tracks day-to-day UN negotiations in detail, summarises some of the intricate niceties involved:

"In the initial exchange over the original draft, it seems China and Russia stressed the importance of not prejudging the outcome of the investigations. The initial text of the draft resolution contained a paragraph which condemned the 'shooting down' of flight MH17. This was changed to 'the downing' of the MH17 flight. This was likely done as some members insisted that no conclusions should be made until a thorough investigation is completed, making the reference to 'shooting down' unacceptable."

But the details are still solid, including a specific demand for investigators to access the crash site and a call for whoever is responsible to be held accountable.

Australia seems to have learned the art of letting Russia save face at the Security Council while backing it into concessions on matters of substance. This is no small feat as Britain, France and the US have ended up colliding with Russia at the UN in unproductive spats over both Syria and Ukraine.

But the devil is still in the details.

Matthew Sussex wrote that Russia has fundamentally mismanaged its response to the MH17 tragedy:

From a domestic perspective, Putin's vigorous defence of Russia was understandable. He sees trial by an independent media as a Western affliction and has prevented it from gaining a foothold at home. Domestic political reasons prompted his officials to stress that there was no evidence of direct Russian involvement.  And Moscow's confused response strongly suggests the Kremlin was as surprised as anyone else by the downing of MH17. 

But in an international tragedy, winning external public relations battles is initially much more important than domestic manoeuvring. On that score, Putin's crisis management strategy has failed badly. It has failed to deflect attention away from suspected Russian involvement in the shoot-down, much less the ongoing conflict. And it has failed to mollify foreign governments demanding a secure crash site to identify and repatriate their nationals. Hence Russia has appeared obstructionist rather than proactively seeking to help.

A public relations disaster prompted by MH17 is potentially a huge blow to Russia's regional ambitions. 

Will MH17 mean stronger European sanctions on Russia over its conduct in Ukraine? Maybe, argued James Bowen:

 Just a day before the downing of the MH17, Obama reluctantly went it alone, beefing up penalties on Russia's energy and defence interests over its continued material and ideological support for the Ukrainian rebels, while Europe opted only for so-called 'Tier 2' actions that froze assets and banned travel for Vladimir Putin's closest offsiders.

Obama will have been pleased to see UK Prime Minister David Cameron's support for escalating to the tougher Tier 3 sanctions in light of the disaster, and calling for the continent to 'make our power, influence and resources count'. He will no doubt closely follow announcements out of Brussels, and indeed Berlin and Paris, to see how far that wave of indignation spreads.

Photo by Flickr user Javier Santos.

As Malaysia prepares to celebrate Hari Raya Adilfitri this weekend (the end of Ramadan), the country remains in mourning. Yet a week on from the MH17 downing, it appears that embattled Malaysian Prime Minister Datuk Seri Najib Razak's (pictured) response to the tragedy is proving popular.

This week, Prime Minister Najib urged Malaysians to say al-fatihah (a prayer for God's guidance) as he condemned the downing of MH17, saying it was a test from Allah during Ramadan. The bodies of the 43 Malaysian victims are yet to be returned to Malaysia for the quick burial demanded under Muslim custom. 

Najib, whose step-grandmother was on MH17, has been front and centre on the international stage. At home he was praised for his 'quiet diplomacy' with pro-Russian separatist leader Alexander Borodai to secure the plane's black box and for garnering separatist support in returning the victim's bodies. Internationally, this praise was more subdued, with some arguing that this sort of high-level negotiation legitimised the separatist group possibly responsible for the shooting down of MH17, and set a dangerous precedent.

In a special sitting of the Dewan Rakyat (Malaysia's lower house) on Wednesday, PM Najib reflected on the previous week. His tone was stronger than before as he spoke of 'murderers' and (oddly) 'genocide'. [fold]

On a defensive note, he reiterated that the flight path was deemed safe and defended his 'risky decision' to negotiate directly with the head of the pro-Russian separatist group. In his speech, Najib said he had negotiated with Borodai so he could fulfill a promise to the victims' families to return their relatives' bodies before Raya (he has since conceded that this will not be possible). He noted, quite rightly (and fittingly for the holy month of Ramadan), that 'sometimes we must work quietly in the service of a better outcome.'

Among the solemn praise and a palpable feeling of solidarity in Malaysia, there is also anger. On Tuesday, a group of 300 protesters marched to the Russian and Ukrainian embassies in Kuala Lumpur under banners that read #Justice4MH17. The group called for stronger action by the Government against the perpetrators of what they called the 'genocide at 33,000 feet'. It was this notion of genocide that was picked up by politicians and later endorsed by Najib, who thanked his opposition colleagues for the comparison.

Najib has repeatedly called for unity and solidarity in the wake of the disaster. Indeed, his prime ministership could do with a dash of both. After narrowly winning a second term last year he is often derided as out of touch with Malaysians. Worse, he has managed to get offside with the still powerful but ageing former prime minister Mahathir Mohamad. His predicament is worsened by widespread criticism of his government's handling of MH370, the difficulty of managing growing religious tensions, as well as the recent kidnappings and overall deterioration of the situation in Sabah. 

In times of crisis, divisions are often forgotten and previously unpopular leaders can reshape themselves. News media, and people I've spoken to here in Kuala Lumpur, have parroted international praise of Najib for his 'quite diplomacy'. But this praise may be short lived. Old divisions will quickly reemerge when a week of front pages about the MH17 disaster subside, but pressure will remain on the Government to win justice for the victims.

Photo courtesy of Wikimedia Commons.

In the days following the shooting down of MH17, the UN and governments around the world have quickly turned to discussing how to bring the perpetrators to justice. While the most likely scenario is that pro-Russian Ukranian rebels shot down the aircraft by mistake, the lack of clarity around the circumstances of the attack continues to complicate any attempts at resolution. Pending a full investigation and more evidence about responsibility, it is difficult to talk of accountability under international law.

Nevertheless, it seems clear that the MH17 incident represents a crime under international law. It's likely that the conflict between the state and rebel forces in Ukraine can be characterised as an armed conflict under international law, and that therefore international laws of war relating to internal conflict apply.

The principle of distinction between civilians and combatants is one of the main tenets of international humanitarian law. In armed conflicts of this nature, making civilians the object of attack is directly prohibited under treaty law, and the prohibition against targeting civilian objects has been found to be a customary international legal norm by the International Committee of the Red Cross (ICRC). 

In accordance with state practice and international jurisprudence, the ICRC has confirmed the existence of a customary international norm requiring all feasible precautions to be taken to avoid injury to civilians and damage to civilian objects. Similarly, parties to a conflict must do everything feasible to verify that targets are military objectives.

It is clear that the perpetrators of the MH17 disaster have violated both treaty law and customary international law in attacking civilians and a civilian object, and failed to take all feasible precautions to ensure the military nature of the target. Holding them accountable for these actions will be another story. [fold]

In public debate around the incident, a number of options for legal recourse have been raised.

The first is to prosecute the perpetrators of this crime under the domestic law and courts of one of the injured parties. This was the approach taken for the Lockerbie bombing trial, in which two Libyan nationals were tried under Scottish law in the Netherlands for their involvement in the bombing of Pan Am Flight 103 over Scotland. Ukraine would certainly have jurisdiction over any crime committed in its airspace, and it is likely that injured nations such as the Netherlands, Malaysia, or even Australia may also have jurisdiction to prosecute this crime.

Another is that the perpetrators of the incident be brought before the International Criminal Court (ICC). The ICC is charged with dealing with individuals for the offences of genocide, crimes against humanity, war crimes, and the crime of aggression. As prosecution of crimes against humanity requires acts to be committed as part of a 'widespread and systematic attack,' the most likely avenue for pursuing justice for victims of the MH17 attack in the ICC would be under the Court's jurisdiction over war crimes.

However, assuming that Ukrainian rebels linked to the Donetsk People's Republic were responsible for shooting down MH17, the prospects for having these individuals appear in front of the ICC are limited. To complicate matters further, a number of key figures in the Donetsk People's Republic are known to hold Russian citizenship, and it is alleged that some, including the Donetsk 'prime minister', have connections with Russian intelligence agencies. While both Ukraine and Russia are signatories to the Rome Statute of the ICC, neither has ratified the treaty yet, meaning that although they are required to refrain from  acts which would defeat the object and purpose of the treaty, compelling them to submit their nationals to the jurisdiction of the court would be more complicated.

This then raises the issue of state responsibility. If it is found (and this is a very big 'if') that the attack on MH17 was perpetrated by a Russian national acting in (or even beyond) their capacity as an official of the state, this could give rise to Russian state responsibility under international law. Russia could similarly be implicated if the rebels were found to be acting under Moscow's instructions, direction or control. 

Even if it is found that Russia had no involvement in this specific incident, as may well be the case, there is still the question of Russia's broader involvement in the conflict in Ukraine. Here, the International Court of Justice's (ICJ) ruling on Military and Paramilitary Activities in and against Nicaragua may provide some guidance. In 1986, the ICJ presided over a case brought by Nicaragua against the US over America's support for the contras rebel group against the ruling Marxist-Leninist Sandinistas. By financing, organising, training, supplying and equipping the contras, the US was found to be in violation of the customary international legal norm of non-interference in the internal affairs of states and the prohibition against the use of force. However, the court found that due to a lack of 'effective control' over the rebel contras, the US could not be held accountable for specific breaches of international humanitarian law committed by the group.

Unless Russia is found to have exercised effective control over the Ukrainian rebels, questions would linger over how far Russia could be held accountable. However, depending on the details of Russia's involvement, there may be an international legal case to be made in a forum such as the ICJ about Russia's broader support for Ukranian rebels.

Yet even if Russia was to be implicated, states are not required to submit to the jurisdiction of the ICJ, and neither Russia nor Ukraine have accepted the permanent jurisdiction of the Court . The likelihood that Russia would accept ICJ jurisdiction in the event of a dispute is almost zero. Similarly, by virtue of its permanent membership, it is safe to expect that any UN Security Council resolution directly implicating Russia in any of these scenarios would be swiftly vetoed. And all this is further complicated by the fact that the extradition of Russian nationals, even those who have committed a crime in the territory of a foreign state, is prohibited by Russia's constitution and criminal code. 

None of this undermines the need for a complete investigation of the circumstances leading up to the incident. Australian diplomacy has already proven invaluable in securing a robust UN Security Council resolution recognising the need for a full, thorough and independent investigation. At this point, continued diplomatic, economic and political pressure in enforcing Resolution 2166 may be the best states can do to ensure justice for the victims of MH17.

Last night Prime Minister Tony Abbott announced that Australia has prepositioned 50 Australian Federal Police officers, presumably from the International Deployment Group, in London. The Foreign Minister is on her way to Kiev to personally negotiate access to the crash site for the AFP and Australia's aviation officials, to be part of an international investigation under the leadership of the Dutch Government.

A police-led, military-enabled force is the right solution for the Australian Government to propose, but several conditions must be set before police and officials can be deployed to the crash site.

The crash site is in an active combat zone, and as the OSCE reminded us only days ago, there are more than 100 separate armed groups surrounding the self-styled Donetsk People's Republic. No intervention will be able to proceed without explicit guarantees from both the Ukrainian and Russian governments that they will exercise their influence to limit the activities of military forces in the vicinity of the crash site. Even then, there would still remain the possibility of rogue actors in the area. For that reason, whatever international force is sent should be armed for their personal safety.

Yet the crash site is located only a short distance from the Russian border, and for that reason it would be far too provocative to deploy international military forces in any strength to secure the international investigation effort. If Putin were to allow the deployment of NATO military assets within 30km of the Russian border, this would open him to severe domestic political criticism. Already there are some suggestions that Putin is under domestic presure for appearing to have bowed to foreign leaders. Too much provocation and Russia will respond with a show of force of some type, perhaps including additional deployments of military units to the border with Ukraine.

So the best solution will be an armed international police force with a limited mandate to secure the crash site and protect investigators. [fold]

This will take some time to achieve. Julie Bishop will be negotiating a sort of status-of-forces agreement with the Ukraine detailing what powers of arrest police officers will have, what happens to them in the event they are involved in a car crash or other legal matter, and the circumstances in which they might be authorised to use their personal weapons. The AFP will be thinking about how it might detain people trying to interfere with the crash site, which authorities those detained might be transferred to, and the logistics of maintaining 50 or so officers in a fairly remote rural area in Eastern Europe.

This will be a military-enabled mission. Military aircraft are already involved in moving bodies from Ukraine to Amsterdam and might be involved in moving the international police force and possibly aircraft parts recovered from the crash site. Military intelligence will be crucial to an ongoing security assessment of the area in which the investigation will take place, and there will need to be detailed liaison between the AFP and Defence on the local intelligence picture. Finally, the Australian Defence Force is thinking through worst case contingencies. If an AFP officer is kidnapped by a local separatist group, the recovery effort could involve the ADF's Special Operations Command. If the situation in Eastern Ukraine deteriorates and a tentative ceasefire collapses, military forces might be required to evacuate the international investigation force.

The good news is that this effort is being led by Australia and the Netherlands, who have recent and extensive experience working alongside each other in Afghanistan. Australian military, intelligence, police, and diplomatic officials worked together with their Dutch counterparts for five years while our soldiers served alongside each other in Uruzgan. Those established mechanisms for cooperation will go a long way to offsetting the fact that we are poised to deploy a substantial force to a country in which we haven't had any diplomatic presence for some time.

With fighting intensifying in the pro-Russian rebel enclave in eastern Ukraine, security of the MH17 investigators and the crash site is imperative. 

A temporary cease-fire proposed after the destruction of MH17 last week never materialised. Ukrainian military forces have launched an offensive in the city of Donetsk, where heavy shelling is being reported. Two Ukrainian fighter jets were shot down on Wednesday south of the MH17 crash site. There are further reports of investigators on the scene being 'chased away' by separatist rebels.

It is becoming clear that some form of international security force will need to be employed for the investigation to carry on in the long-term.

This force will need to be more substantial than the 40 unarmed military police the Netherlands intends to send and the 50 Australian Federal Police that Prime Minister Tony Abbott says are on standby.

Yesterday morning Foreign Minister Julie Bishop gave a hint of one of the options under consideration by the OSCE and the Australian, Dutch and Ukrainian governments: peacekeepers. Peacekeepers under a UN mandate may be the best option to provide security for the crash site and are likely to be the most politically expedient.  [fold]

The UN Security Council mandate secured by Australia and the Netherlands earlier this week leaves open the option of using a peacekeeping force to secure the crash site and the safety of international investigators. The language used in the mandate is clear. The Security Council called for a 'full, thorough and independent international investigation into the incident', demanded that the armed rebel groups in the area 'refrain from any actions that may compromise the integrity of the crash site' and most importantly expressed 'grave concern at reports of insufficient and limited access to the crash site.'

A UN peacekeeping operation could be built off this mandate. Such an operation would need to be authorised by the Security Council and passed by its five permanent members, including Russia. This would be difficult, but Russia passed the resolution authorising the investigation earlier this week on the condition that the resolution did not assign blame. Moscow could see this as an opportunity to show goodwill and further de-escalate the situation, particularly if the peacekeeping forces came from countries outside of NATO.

To a degree, the crisis in Ukraine is driven by what Russia considers the creeping influence of the European Union and NATO along its 'near abroad'. Russian President Vladimir Putin has repeatedly cited the expansion of NATO membership to former Soviet Republics as a threat and would probably never accept a NATO security mission to eastern Ukraine.

A UN peacekeeping operation could include forces from more politically appealing non-NATO countries. While forces from Australia and the Netherlands would be included (they may even establish a bilateral security force to go in immediately), in the coming months personnel from non-NATO countries could be integrated into the operation. Malaysia and Indonesia, which suffered significant causalities in the incident, may wish to participate. Other major peacekeeping countries like India and Brazil could be asked to contribute.

It is critical to establish security around the site to ensure the investigation into the cause of the MH17 disaster can proceed unhindered. Moreover, the speed with which the investigation can commence in earnest will be crucial in determining the fate of MH17 and ensuring that justice can be delivered for the victims and their families. The investigation is also likely to take some time; the investigation at the crash site of Pam Am flight 103 took months. Ensuring the safety of investigators is also a high priority.

A multinational UN peacekeeping operation is the best way the meet all these objectives.

Photo by Flickr user Jeroen Akkermans.

Last night I Skyped with Atlantic national correspondent James Fallows to talk about the MH17 tragedy. James is perfectly qualified, because he is firstly a pilot and aviation enthusiast (here's his NY Times op-ed on why this tragedy was not Malaysia Airlines' fault), and he is an exceptionally smart observer of American politics.

We talked mainly about how this tragedy is playing out in Washington (Are the media and Congress focused on it? [0:00]; Why is Obama getting so much leeway from Republicans? [1:15]; Is Obama leading from behind? [3:47]), but I also asked him what advice the Obama Administration might have for the Abbott Government on the tricky question of Putin's attendance at the G20 (8:09).

Lastly (11:28), I drew on Jim's aviation knowledge and his background living in and studying China (here's an earlier interview with Jim about his book China Airborne) to talk about whether this tragedy resonated for him in the Asia Pacific context. Specifically, does China's November 2013 declaration of an Air Defence Identification Zone pose a threat to aviation in the East China Sea?

A makeshift memorial at Schiphol Airport, Amsterdam. (Flickr/Roman Boed.)

With 193 Dutch citizens killed in the MH17 tragedy, the Netherlands is in shock. The country is mourning. Everybody seems to know someone who is directly affected by this terrible loss. The mourning is slowly but surely transforming into outrage that will push the Dutch Government into visible response and action. 

We don't know exactly what happened. But is seems plausible that it was an 'unintended' incident in an armed conflict between separatists on the one side and  national Ukrainian forces on the other. Unintended or not, factions and individuals are still accountable for what they have done. The questions 'Who did this?' and 'Who supplied the military support, technology, know-how and weaponry to execute such an attack?' are relevant to the victims and the population at large. Justice needs to have its way. The public is expecting and demanding as much. 

But how on earth is justice going to have its way in this complex situation? There are a number of hindrances.

The first  priority in this crisis is to repatriate the bodies and the belongings of the victims. While in a war the enemy may become dehumanised, we, the Dutch, are in no way part of this conflict. To us this is about people. We see images of insurgents posing for the world press with toys of children who died in the crash. That is disgusting. So people demand respect and dignity. We are humans. You cannot dehumanise us. We are not part of this conflict. 

The humanitarian focus may, at the same time, hinder the search for justice. Justice requires that a suspect is identified. It requires a thorough investigation into the events, which is not going to be easy. Only one of the parties to the conflict (the Ukrainian Government) seems to have an interest in facilitating the inquiry. That in itself is telling. The other party (the separatists) is controlling the space in which the evidence is scattered. This means that the assistance of the separatists, which is required for the humanitarian priority, is conflicting with the search for justice. In this dilemma the approach of the Dutch Government is to focus on indirect diplomacy: trying to convince Russia to push the separatists to assist the international and Dutch efforts on both the humanitarian and investigation fronts. The Dutch Prime Minister has been on the phone with President Putin a number of times and with an increasing sense of urgency in his messaging. The public demands solutions. Quick. Putin needs to be aware of this. 

This leaves us with a number of serious questions. One of them is: to what extent does Putin still have an impact on the ground? The second one is: if he does have impact on the ground, then why would he choose not to assist the international investigation?

The answers to these questions will, at least partly, depend on the pressure he will feel from the international community. Putin's influence on some of the factions within the amalgam of groups that oppose Kiev has reduced because he failed to directly and militarily intervene in the conflict. Some groups will no longer listen to the boss in Moscow. This seems the eternal fate of those who engage in proxy warfare. But even if Moscow can impact some of the groups in eastern Ukraine, political will is still required to assert pressure. Nothing seems to indicate that Putin is impressed or motivated by moral or legal considerations. Instead he calculates risks and potential gains. And that is where international political and economic pressure comes into the equation. 

Putin wants to lead Russia into a new era of relevance; to return to the international platform after a humiliating post-Cold War period in which Russia was relegated to the position of loser. Loser of the Cold War. Loser in the eyes of the West. A relic of the past.

But what Putin is doing regarding the current conflict in Ukraine in general, and the aftermath of the MH17 tragedy in particular, is the very opposite of bringing Russia back to world status. That should be the message we send, and that is what will pressure the Kremlin. It might trigger activities from Moscow to regain lost influence among the players in eastern Ukraine; it may lead to pressure on the groups to cooperate. It is the only carrot that will work. The threat of sticks may need to come simultaneously, and the sticks may need to be sharpened and must be tailor-made. They need to hurt. Sharpened sticks made of targeted sanctions. 

The sticks may hurt us as well, but things have changed. There is already much agony and pain in Dutch society following last week's events. We can take more. There are strong calls for action and justice. The Dutch are not calling for revenge, but for respect for human dignity and moral values. In my opinion, this can only be achieved if we offer the carrot and simultaneously show the sharpened stick, with only one objective: bring the actors of this crime to justice.