What was Moscow hoping to accomplish by casting a veto in the UN Security Council on the proposed establishment of an international tribunal on the Malaysian MH-17 disaster?  After all, such efforts actually run counter to the state of public opinion in Russia.  The state propaganda machine has done such a good job naming the culprit that only 19 percent of the population sides with the Russian Foreign Ministry in opposing the tribunal.  Forty seven percent actually support it, believing that it is the Ukrainians who will most probably be found guilty.

From the outside, Moscow’s objections to the tribunal look like an admission of guilt. In a legal contest, just like in sports, failure to appear results in forfeit, but that’s not the only reason. There are two parties to the dispute, and one of them fails to appear, conjuring up the Dostoyevskian “You have killed” conclusion. Ostensibly, the facts on the ground are such that any charges the tribunal would bring against the separatists would not likely tarnish Russia’s and the separatists’ reputation any more than the actual attempts to avoid the proceedings.

Alexander Baunov
Baunov is a senior fellow at the Carnegie Endowment for International Peace.
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According to Moscow, this is a case of political prosecution that must be staunchly opposed. After all, we know better than anyone else that political prosecution leaves no chance to a fair trial. But who wants to remember our rich experience?  That’s why we are reminding the world about the UN tribunal on the former Yugoslavia, where Serbs were tried 92 times, while the other parties to the conflict (Croats, Bosnians, and Kosovars) only appeared in front of the tribunal 50 times.  And they got shorter sentences and more acquittals. So that’s what’s going to happen to us. It’s better to let everyone calm down, goes the Russian argument.  Judges are human too, and all of them have a bias against us. In fact, even the innocent are afraid of political prosecution.  Again, who knows it better than us?

The Ultimate Proof

After decades of rumors about satellite surveillance systems that can see the brand of someone’s cigarettes, we want nothing short of the most precise satellite-generated proof . Give us a satellite photo depicting the missile with the number of a military detachment and the gunner’s military rank.  We won’t believe it otherwise. But no such photos are on offer. The earlier disappearance of a Malaysian airliner actually dispelled the myth that such omnipresent satellites can see every lit cigarette in every corner of the earth at any given time. That Boeing disappeared into thin air. And whenever someone actually gets around to publishing satellite photographs, we are disappointed by the quality of those gray, barely-recognizable specks.

According to some accounts, when the Dutch investigators release their report in October, it won’t contain any photos with missile identification numbers and the rank and serial number of the people who pulled the trigger.  But it will reportedly contain important technical details and terms, along with hundreds of pages of similar data, which will be extremely complicated to get through. What about the eyewitness accounts? Well, people often lie. Social media posts? Meaningless bragging. What about the timing of the TASS news report on the Ukrainian cargo plane that was downed by the separatists? The news agency simply jumped the gun, trying to outdo its competitors.

We believe that if they lack ironclad proof, but if we muster data that can help to undermine their accusations and show some inconsistencies, then we will be out of hot water. But it’s not going to help us because Moscow’s international reputation is different from criminal proceedings. There is no presumption of innocence when it comes to international reputation. It’s the suspects who are the ones who need to prove their innocence around here.

From a strictly legal and technical standpoint, it’s not evident who is responsible for the MH-17 disaster, but it’s already the case that a large number of serious countries treat Russia as the responsible party. Moscow’s involvement hasn’t yet been completely proven, but it has already become a factor of international relations.

An All-Inclusive Package

Nevertheless, no one in the West is going to assign legal blame for the MH17 crash to Russia and Putin, regardless of what they think of him. Western legal culture won’t allow it: everyone understands that a crime has been committed, but it wasn’t premeditated. It’s not like September 11, which was planned and executed by the forces of evil. It’s not like the Lockerbie attack orchestrated by Libya’s intelligence service. Shooting down a Western aircraft definitely didn’t figure into the business plan for this war. That is even more true when it comes to Malaysian aircraft – the country enjoys great relations with Moscow.   These two moderately authoritarian regimes trade and cooperate with each other.

The Dutch report will probably confirm what everyone knew anyway: there may be no or almost no direct evidence, but the circumstantial evidence mostly points to the Russian-supported forces in Donbas. There are both knowns and unknowns in the plane crash equation, and while both Russia and Ukraine might be behind the unknowns, the known facts predominantly implicate Russia.

This information will not come as a surprise to the West. It’s not going to upend our perception of what happened there. No one will say, “We were sure it was Ukraine.” Or; “We thought it was Bashar Assad.” Or “We believed it was ISIS, but it was actually separatists from eastern Ukraine.” Everyone more or less has accepted the fact that it’s either the Russians or the separatists.

In this sense, the Dutch report or any other report that will have to come to similar conclusions, which won’t seriously hurt Russia’s international status and President Putin himself. The situation can be compared to Greece’s possible exit from the Eurozone, an eventuality which was already priced into currency exchange rates and stock market indices even before the referendum and the critical Eurozone summit.  That’s why nothing terrible happened when the country crossed the default line with the IMF. Similarly, the MH-17 catastrophe has already been factored into the Western outlook on Russia and the current state of relations between Russia and the West. Western politicians and public opinion have solidly backed this view of Russia for a year already.

The Shrinking Pool of Suspects

Russia has been attacking the Western prosecutors’ case in its own media (which is not really an authoritative source for the rest of the world.  So why can’t it just do the same in a far more respectable forum – say, the UN-backed International Criminal Court (ICC)? That’s because testifying under oath at an international court is a whole different ballgame than publishing an eyewitness account in the Komsomolskaya Pravda newspaper. After all, a court is in fact the place where the defendant is afforded a legal right to undermine and refute the evidence presented against him, and the Russian diplomats have always supported a greater role for the UN.

The world can distinguish between intentional and unintentional acts. Witnesses to some missile launcher being moved some place may come forward, but there won’t be any witnesses to a phone call from a Russian Defense Ministry directing someone to shoot something out of the sky.  This kind of smoking gun won’t be found because it probably never happened. Therefore, narrowing down the number of culprits actually serves Russia’s interests. Personal responsibility assigned to an inexperienced volunteer gunner is far better than the collective responsibility of the entire country and its politicians.

Besides, whatever the outcome of the investigation might be, the Ukrainian authorities would still have to share some blame for not closing the airspace over a war zone. Military aircraft were hitting targets on the ground.  Fighters on the ground responded with more fire.  Meanwhile, civilian aircraft were leisurely cruising overhead. In the face of all this madness, Ukraine kept its eastern airspace open to civilian aircraft for fear of reputational and financial losses. The loss of overflight revenues wasn’t Ukraine’s only concern; it was hard for the Ukrainians to say to the world: come to us, invest; we are a young European state that is about to eliminate corruption.  But just remember, you can’t fly over half of our territory.

Then there is a third party that is already being blamed by the victims’ relatives. It’s the airline that didn’t even take time to figure out where it was flying. Everyone watches the news every day, so there was no need to save on fuel here.

Of course, Russia can always produce some foreigners who trust our esteemed media outlets more than Western sources.  There must be plenty of people out there who are simply tired of majority opinionsor love conspiracy theories (i.e., the belief that since we are not told the whole truth, whatever we aren’t told is in fact the truth). But even the developing world with its heightened demand for non-Western views hasn’t exactly rushed to accept the Russian side of the story in this particular case.

Leading the Third World -- by Opposing It

Russia portrays the desire to create a tribunal as part of Western conspiracy against it. The tribunal is just another way to punish Russia again for its independent policies and attempts to lead the oppressed developing countries in their struggle for a just multipolar world.

However, Holland isn’t the only country calling for a tribunal. Perfectly non-Western Malaysia, Russia’s closest Asian counterpart in terms of its political system, is also clamoring for justice. Malaysia is a controlled democracy ruled by one party (even though opposition candidates sometimes manage to win local elections). It has an enormous public sector and state-owned oil company.  It’s heavily urbanized in certain areas and embraces an invigorating concoction of religious conservatism and national pride. It even convicts its opposition leaders of same-sex intercourse. So here is this exemplary developing country, which generally doesn’t miss a chance to tell the West to stop its moralizing, proposing a UN Security Council resolution to establish a tribunal because the event posed a “threat to international peace and security.” 

Even the statements made by the Malaysian Prime Minister Najib Razak sound more decisive than similar pronouncements made by Western politicians: 

“The end goal is clear – to bring the perpetrators to justice, and ensure they pay for this unforgivable crime… By early October this year, Insya-Allah (God willing), the report by the Dutch Safety Board will be published. At the same time, we will continue to push for the establishment of a full, thorough and independent international tribunal into the incident – for the sake of the families and friends of those who perished in the tragedy.”

Meanwhile, we are being told that we have special relation with God here in Russia. Perhaps, by voting against Razak and Malaysia, Russia is actually challenging the West, even though such behavior won’t actually convince anyone in the Third World of Russia’s leading role in the struggle against Western hegemony.

We Won’t Forgive (But We Will Forget)

From a moral standpoint and in light of the mounting reputational costs, it would make sense for Russia to agree to set up such proceedings and defend itself. But Russian diplomats have opted for a different strategy. Such tribunals drag on for years and sometimes even decades. This thought scares the Russian regime more than the actual charges. It fears that once something starts, the U.N. tribunal can do more damage over time than a mere failure to appear in court; it will hinder a potential change or correction of Russia’s political course if it’s deemed necessary. (Perhaps the problem is that our foreign policy isn’t known for its stability.)  Say, Russia and the West want to mend fences some day and turn the page.  This pesky tribunal might stand in our way.

They could start issuing arrest warrants and calling witnesses. Judges, prosecutors, investigators, defense attorneys, and victims’ advocates will be making their statements.  The parade of journalists, lawyers, secretaries, and clerks just won’t want to leave. The whole industry will come to life, and it will be hard to stop. They will start with the MH-17 mess and then move on to the Donbas war, for all we know.

But Russia is hoping to reverse the trend. Since the global community is convinced of Russia’s guilt anyway, its default on the MH-17 case won’t make matters much worse. Eventually, time will heal all wounds or open up new ones.

In 1983 and 1984, the world was grieving over the loss of 269 Korean passengers aboard KAL-007, a jet that was shot down by a Soviet jet fighter.  There were 79 Americans on board, including a U.S. Congressman. President Reagan called it a crime against humanity, which will never be forgotten. Soviet flags were burned in South Korea and Japan. The Soviet Union vetoed the UN resolution that condemned the attack. Aeroflot was banned from flying to the U.S. and the plane with the Soviet delegation to the U.N. couldn’t even land in New York. But as soon as 1985 rolled around, Reagan was meeting Gorbachev, and before too long Aeroflot resumed its flights to the U.S. The entire world welcomed the progressive Soviet leader and his new political thinking, and South Korea was happy to finally establish diplomatic relations with the USSR in 1990 after years of non-recognition. And all of that was before Yeltsin’s Russia transferred KAL-007’s black boxes and its missile defense data to the Koreans.

Deep down, the Kremlin expects many in the world to welcome it back to the fold once these turbulent times pass, and it decides to come out of isolation and formulate some new course to which the West will respond with the new détente. That explains a lot, doesn’t it? 

  • Alexander Baunov