Secret “war-crime” warrants by International Criminal Court is mischief-making

The decision of the International Criminal Court (ICC) to issue war crimes arrest warrants for the Russian President and the Russia Children Ombudsman may have been welcomed by the ideologically committed but otherwise seems to have been greeted with widespread cynicism (see Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova). The fact this announcement came on the 20th anniversary of the illegal US invasion of Iraq which led to an estimated million deaths of Iraqi civilians was not lost on most observers. More attentive observers also noted this was the 55th anniversary of the My Lai massacre where between 347 and 504 unarmed Vietnamese villagers were slaughtered by US soldiers. (See Mỹ Lai massacre).

Bodies on a road leading from the village of My Lai in Vietnam in 1968. The unarmed civilians were shot dead by American soldiers. Photo: Ron Haeberle

So much for war crimes. The ICC simply does not have an objective or even-handed approach to such matters.

Unlawful “deportation” of children

But these warrants are meant to relate to “the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation.” Mind you, the actual content of the ” warrants are secret in order to protect victims and witnesses.”

This sounds like another one of these secret documents which we are assured provides “likely” evidence of bad behaviour by the Russian Federation. We seem to have been swamped with those in recent years.

The trouble is that it is an easy charge to make (especially if we ignore the need for evidence) because the need to evacuate people (including children) from war zones and to provide refuge to civilians caught up in wars is primary. It is simply disingenuous to make such accusations in these situations – even if inevitable mistakes are made.

Before the West makes such disingenuous assertions consider what happened towards the end of the US war in Vietnam. According to Wikipedia::

“Over 2,500 children were relocated without their consent and adopted out to families in the United States and its allies. The operation was controversial because there was question about whether the evacuation was in the children’s best interest, and because not all the children were orphans.” (See Operation Babylift).

According to Inside Operation Babylift, The U.S. Government’s Plan To Save Vietnamese Orphans Before The Fall Of Saigon:

“In the final weeks of the Vietnam War, Operation Babylift evacuated more than 3,300 South Vietnamese orphans and placed them with adoptive families in the U.S.”

During that war, some Vietnamese parents left their children in orphanages simply to get care, and these children were taken by the US. Over time many parents or relatives found their children and many problems were resolved through normal legal channels without making emotional charges of war crimes against the US president at the time.

President Gerald R. Ford carrying a Vietnamese baby from Clipper 1742, one of the Operation Babylift planes that transported approximately 325 South Vietnamese orphans from Saigon to the United States, at San Francisco International Airport. Photo: U.S. National Archives

In this current war in Ukraine, military action occurs in populated areas. The military forces on both sides have a responsibility to ensure the evacuation of non-combatants from these areas as it is a war crime to use civilians as a shield (this happened in Mariupol where the ultranationalist Azov military group prevented the evaluation of civilians).

In the heat of these battles, the occasional separation of children from relatives is understandable. The Guardian describes such a case in their article We hugged for a long time’: the Ukrainian father who rescued his children from Moscow.

This article is written in the anti-Russian tone we expect from the Guardian but at least describes the case of a father who was separated from his three children during the evacuation from Mariupol to a transit camp and the checking of the father’s documents. Eventually, the father was released, and he was able to find out what had happened to his children and travel to Moscow and recover them from an orphanage. He was helped to do this by the Russian children’s ombudsman office – managed by Maria Lvova-Belov the ICC has labelled a war criminal.

So. Belova is labelled a war criminal by the ICC, accused of illegally deporting and detaining children and yet she and her organization is obviously helping to reunite families that have been separated!

The Russian Federation has taken in more Ukrainian refugees than any other European country – and has been doing this since 2014 (see Where are Ukrainian refugees going? – an update). This should not be surprising as this war is basically taking place in the Donbass which is populated by ethnic Russians -many of whom have relatives in Russia. It is natural for them to take refuge in Russia.

The article Orphans to be adopted by Russian families arrived in Russia with assistance from Presidential Commissioner for Children’s Rights Maria Lvova-Belova notes that many children were orphaned years ago:

“All orphans and children left without parental care lived for a long time in children’s homes and orphanages in the Donetsk People’s Republic. After the evacuation of these institutions from the DPR, they lived in temporary accommodation facilities in the Rostov and Kursk regions.”

A similar article also notes that even during this process anomalies have been found and efforts are being made to reunite families:

“In addition, the children’s ombudsman met with two mothers who had turned their children over to institutions. In both cases, the families were facing hardship. They were offered assistance in gathering documents to make them eligible for benefits, putting them on a waiting list for a flat, and finding employment. Both mothers showed readiness to take their children back from institutions soon” (see Maria Lvova-Belova brought orphans from the DPR to the Nizhny Novgorod Region for placement with foster families).

The ICC has discredited itself

Evacuation of children from war zones is simply basic humanitarianism. Separation of children from their families can be an inevitable result in some isolated cases. However, these anomalies can be resolved using normal legal mechanisms.

The ICC’s actions of labelling people involved in the care of these children as war criminals is mischief-making. It does not help the children. Nor does it help the resolution of this conflict in Ukraine.

The ICC actions simply further discredit an organization which has already shown itself to be biased.

How is the war going?

The war in Ukraine is dragging on and many people have lost interest in it. But those who want to follow the progress of the war, and possibly speculate on how it will finish, must find it hard to find objective information. Like all wars, there is so much fake news, disinformation, and outright wishful thinking on the part of analysts.

I basically ignore articles in the news media and instead attempt to follow direct information from war correspondents and journalists. A few video channels provide largely objective information summaries with maps which enables viewers to get an overall idea of the war’s progress,

Here are some YouTube channels I watch that are usually updated daily. I have ranked these with those I consider the best first.

Military Summary Channel

The guy running the Military Summary channel seems to be a military expert. His summaries often provide information like the number of battle groups in each area, which is lacking in other summaries. He also does get into speculating on the likelihood of impending battles. He comes across as very knowledgeable but objective

Defense Politics Asia

Defense Politics Asia is run by a guy from Singapore. He has a Singaporean sense of humour and is always checking and reevaluating his sources and information so often makes changes when he can get verification of a claim.

War in Ukraine

The War in Ukraine summaries of harder to understand, if only because his maps are less detailed. He does also provide extra information which I find sometimes good (like his analysis of the situation in Lithuania regarding the blockage of the Kaliningrad) and sometimes not so good like his analysis of the likely future wheat yields in Russia and how that would affect its economy).

New World Econ

New World Econ is a new channel for me, so I am still evaluating it. It seems good and does cover wider issues

Denys Davydov

Denys Davydov is a Ukrainian pilot and is clearly biased toward Ukraine so it comes across as a bit naive. Still worth watching because it does give an idea of what Ukrainians may be pinning their hopes on.

The economic war

There is also an economic war, based on the sanctions and their effect on the Russian economy and Western economies – particularly those of the NATO countries but also the rest of the world. It’s much harder to find convincing and objective information on this. I have my own sources, but I think it is up to readers to use the sources they feel most comfortable with.

War and the loss of young lives are horrible, but I think the economic war may end up being more important than the military war as its outcome will, in the long run, affect us all.

Flight MH17 in Ukraine – what do intelligence services know?

Despite claims of proof made by politicians like David Cameron, Barack Obama and Tony Abbott after the downing of flight MH17 in Ukraine in 2014 no intelligence agencies in their countries ever provided any evidence. I find that surprising as these intelligence agencies were obviously monitoring the area and should have been able to give evidence to back up the claims. In fact, rumours suggested the intelligence evidence didn’t back up the claims.

I am forced to conclude the claims owe more to politics, in particular, the geopolitical struggle, than they do to facts.

Perhaps it is in their (and their political masters) nature that intelligence agencies may not be forthcoming on this issue. But I recently came across a largely unpublicised  report which I think does give some idea of what the intelligence community did know at the time. The  Review Report arising from the crash of flight MH17 was prepared by the Dutch Review Committee on the Intelligence Services specifically to answer questions from the Dutch government on what the intelligence community knew, and what they could have done to avert the disaster.

The review covers the role and knowledge of the Netherlands’ Military Intelligence and Security Service (MIVD) and the General Intelligence and Security Service of the Netherlands (AIVD).

No, it doesn’t give the intricate details. But it does summarise their knowledge at the time – a knowledge which was informed by material from allied intelligence agencies (The Netherlands is part of NATO) and which they would have passed on to those agencies. As such, I think it provides a valuable insight into what was known – an insight enabling us to judge the claims being made by the politicians at the time. Perhaps an insight helping us to decide for ourselves which party was likely responsible for the downing of the plane, and hence the killing of 283 passengers and 15 crew.

Possible culprits

The report says:

“there were three relevant actors with military capacities in the period prior to the crash:
• Russian armed forces
• Ukrainian armed forces and
• Pro-Russian separatists.”

I have made this point repeatedly in the discussion we have had on the issue here – also saying I did not commit to any conviction that either of these parties had yet been shown to be the real culprit.

However, I now think  the intelligence community probably rules out the “Pro-Russian separatists.” The report says that neither of these parties had the intention to destroy a civil aircraft and only the Russian and Ukrainian armed forces had the weapons required. It concluded:

“Prior to the crash of flight MH17, the AIVD and the MIVD possessed the following information regarding the security situation in Eastern Ukraine that was relevant for assessing a threat to civil aircraft flying over the area:
• The Russian and the Ukrainian armed forces did have the capacity and potential to hit a civil aircraft at cruising altitude. However, they did not have the intention. There were no indications that they were engaged in activities (such as preparations) targeting civil aviation.
• There were no indications that the Separatists had the capacity to hit civil air traffic at cruising altitude. Moreover, there were no indications that they would target civil air traffic or that they were engaged in activities with this objective in mind.”

What capabilities did the “pro-Russian separatists” have?

The report concluded:

“Even though there was information pointing to the fact that the Separatists had been supplied with heavy weapons by the Russian Federation, there were no indications that these were powerful anti-aircraft systems.”

Politicians may debate that. After all, the Ukrainian Armed forces were shelling and bombing the separatist cities and villages and the separatist armed forces were certainly shooting Ukrainian planes out of the sky. But it was the very fact that separatists had been successfully shooting down those planes (particularly an An-26 military cargo plane on July 14 (3 days before flight MH17 was hit) that led intelligence forces to look closely at their capabilities. Here’s how the report describes this:

“On 14 July 2014, an An-26 military cargo aeroplane (referred to hereafter as: the Antonov), belonging to the Ukrainian airforce, was shot down. The Ukrainian authorities reported the event the same day in a briefing with Ukraine’s presidential administration in Kiev. The MIVD also received a concise report of the briefing from the Dutch Defence attaché. The report revealed that the Ukrainian Minister of Foreign Affairs, Klimkin, declared that the situation in the east had reached a new and dangerous phase because the Russian Federation was now openly providing the Separatists with military support. As an example of the escalation, Klimkin cited the Antonov’s being shot down in the area of Lugansk. Klimkin reported that the Antonov was flying at an altitude of 6,200 metres and could only have been hit with Russian equipment, because the Separatists did not possess this kind of anti-aircraft systems.
According to a media report on 14 July 2014 (which the MIVD possessed), the Ukrainian authorities stated that the aeroplane was flying at 6,500 metres and was not shot down by a portable anti-aircraft system but by a more powerful system. This was probably carried out from Russian territory. In the media, the Separatists claimed that they had shot down the aeroplane and taken some of the crew prisoner.”

So, spokesman for the Kiev regime were claiming (although probably didn’t really believe) that the Russian armed forces had directly entered the fray. Perhaps they were implying the Russians were effectively setting up a “no-fly zone” for Ukrainian military planes. At any rate, the possibility of direct involvement of Russian armed forces would explain the presence of Ukrainian anti-aircraft weapons in the area despite the separatists not using aeroplanes.

The intelligence community appears to reject claims of direct Russian involvement:

“If the Antonov had indeed been shot down by, or even from, the Russian Federation, this would have been a game changer. Direct Russian participation in the conflict would have become a fact.

That is why the MIVD immediately launched an investigation into the incident. In the morning of 17 July 2014, the MIVD communicated the results of this investigation in its daily intelligence summary (‘dagintsum’), which had a number of users, including the NCTV and the AIVD.”

This intelligence assessment was communicated on the very day Flight MH17 was shot down.

“The MIVD assessed it to be unlikely that the Antonov had been shot down by a powerful anti-aircraft system (separate from the question whether this had been carried out from Russian territory). From pictures of the wreckage and eyewitness accounts it was clear that the aeroplane’s right-hand engine had been hit and that 5 to 6 parachutes had subsequently appeared. The Antonov had allegedly crashed only then. On this basis, the MIVD concluded that the appearance of the damage was not consistent with a hit by a powerful anti-aircraft system. The aeroplane would in that case probably have been destroyed in the air.

The crew would probably not have survived if this had been the case. According to the MIVD, the wreckage and the eyewitnesses supported the fact that the aircraft was shot out of the air by a MANPADS from Ukrainian territory. This would only have been possible if the Antonov were flying substantially lower than 6,200 or 6,500 metres. Another possibility was that a short-range, vehicleborne anti-aircraft system”

And apparently the Ukrainian authorities, at least in their public statements, also did not believe that separatist armed forces had the capability of shooting down a civil airliner. I need to give the qualification because Ukrainian authorities are well known for providing inaccurate information for political purposes. It is likely they well knew the Antonov was not flying at the height they claim but wished to implicate the Russian federation.

What about the Buk missiles?

Although not completely ruling out an air-to-air missile the Final report of the Dutch safety board determined that MH17 was most probably hit by a missile from a Buk  system (see MH17: Final technical report).  But this review concluded that separatists just did not have such a weapon:

“The AIVD was aware that the Separatists, in addition to a broad range of artillery (eg machine guns), light anti-aircraft artillery (e.g. rocket launchers), anti-tank weapons and tanks, also possessed MANPADS and possibly short-range vehicle-borne anti-aircraft systems. Both types of systems are considered surface-to-air missiles (SAMs). Due to their limited range, the aforementioned weapons do not constitute a danger to civil aviation at cruising altitude.

“On 16 July [the day before MH17 crashed], the AIVD received a report from a reliable source that stated that there was no information that indicated that the Separatists possessed a medium-range SAM system. This comment was made in view of the circumstances related to the Ukrainian armed forces’ Antonov being shot down on 14 July 2014 in Eastern Ukraine.”

“The AIVD did not have any information that indicated that the Separatists possessed an operational, powerful anti-aircraft system such as a Buk system, also called an SA-11, prior to the crash of flight MH17.”

But what about a Buk system the separatists had captured from the Ukrainian armed forces?:

“On 29 June 2014, the Separatists captured a Ukrainian armed forces military base in Donetsk. At this base, there were Buk missile systems. These are powerful anti-aircraft systems. This development was reported extensively in the media prior to the crash. The MIVD also received intelligence information on the subject, on 30 June and 3 July 2014 as well as on other dates. During the course of July, several reliable sources indicated that the systems that were at the military base were not operational. Therefore, they could not be used by the Separatists.”

I had always considered the separatists could have been the culprit because of the availability of a captured Buk system but the intelligence community seems to have confidently ruled out that possibility.

What about a Russian Buk system?

Some motivated sources have promoted on social media a story that flight MH17 was shot down by a Russian Buk system specifically brought into eastern Ukraine for the job and removed directly after the crash. Of course, investigators must look into such stories but there does not appear to be any intelligence evidence to back them up.The review describes the relevant tasks of the Dutch intelligence bodies as investigation focused of the Russian Federation and the possible risk of an incursion into Eastern Ukraine (MIVD) and investigation of the politico-strategic aspect of the conflict in Eastern Ukraine and on the Russian Federation’s political influence on Ukraine.

The review describes the relevant tasks of the Dutch intelligence bodies as investigation focused of the Russian Federation and the possible risk of an incursion into Eastern Ukraine (MIVD) and investigation of the politico-strategic aspect of the conflict in Eastern Ukraine and on the Russian Federation’s political influence on Ukraine (AIVD).

Given the size of the Buk systems and the associated vehicles, it is hardly likely intelligence forces could have missed the movement of such a system in and out of eastern Ukraine, crossing the international border in two directions.

My conclusions

This may be the only direct public information about intelligence assessments of the situation in eastern Ukraine at the time of the MH17 crash the public will ever see. It is not detailed but is meant as a reliable summary for governments. And given the degree of cooperation and exchange of information among western intelligence agencies, I think it is probably an indication of the conclusions from all these agencies, not just the Dutch.

Intelligence agencies in the Russian Federation may have different or alternative information. Some, but probably not all, of this has already been released by the Russian government.

In the past, I had considered that it was highly probable Flight MH17 was accidentally shot down by separatist forces using a captured MH17 system and operators who had defected from the Ukrainian armed forces. But I now think that scenario is very unlikely. I had also thought that it was equally probable that the culprits were a unit of the Ukrainian armed forces making a mistake during a training exercise with a Buk system. I thought a scenario involving armed forces of the Russian Federation was far less likely.

Currently, I think the most likely scenario is that MH17 was mistakenly shot down by a unit of the Ukrainian armed forces – maybe in a training exercise or in an act of defense. While there is no evidence of direct involvement by air forces of the Russian Federation it is very likely that story was believed by forces on the ground, if not the politicians in Kiev promoting the story. Fear of a Russian aerial attack would also have been promoted by a series of losses of Ukrainian aircraft in the days before the MH17 crash – especially as the authorities in Kiev were claiming these could only have been shot down by Russian forces.

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MH17: Final technical report

The final technical report from the Dutch safety Board on the crash of Malaysian flight MH17 in Eastern Ukraine has just been released. You can download your copy here or go to the Final report page which also provides links to the appendices. (Warning – I don’t think this URL is permanent).

Having discussed the previous preliminary report here, and got into a debate on responsibility for the crash, I feel the need to make at least some comment on the final report. My comments will be brief – I have so far not read the complete document. The report is 280 pages long, and there are extra, important, appendices (I think about 26 in total) which are also quite lengthy. Very few people will invest the time to get their head around all these.

So, my observations:

1: Its very technical

Well – it could be worse. The report itself does leave the details to appendices – and doesn’t give even appendices for some of the evidence. This video of a recent press conference by the Russian Arms manufacturer gives an idea if the complexity of the issue (made worse in this case by having to rely on an oral English translation). Skip through to the middle if you want to avoid the formal introductions.

2: Blame

This technical investigation did not have the task of apportioning blame – that is the subject of a later report (probably next year) from the criminal investigation group. However, the Ukrainian Government does get the obvious blame for allowing commercial flights  over a war zone – moreover a zone where planes were regularly being shot down. The lessons about this are probably the most important, and of most interest to potential airline passengers. The report makes some recommendations on this

3: The most likely scenario involves a surface-to-air missile

While the report is definitive about this it effectively relies on two assumptions:

• Most of the likely air-to-air missiles stationed in the area do not contain the “pre-formed elements” (shrapnel) of the shapes found in the crash debris and the bodies of the flight crew.
• There were no other aircraft in the area at the time. I couldn’t find any mention of the Russian primary radar data released soon after the crash which did suggest two other aircraft were present (these would not necessarily have shown up on the secondary air-traffic control radar if they were military). This was referred to in the preliminary report (see MH17 – Preliminary report leaves most conspiracy theories intact).

So, I don’t think the air-air missile scenario is definitely excluded but the surface-to-air missile scenario seems most likely and that is what was tested in computer simulations.

4: A Buk missile with a specific warhead was most likely used.

This was based on the recovery of “preformed elements” from bodies of the crew and the aircraft debris. Bow-tie, and square elements were found. The 9N314M warhead contains such elements.

Interestingly the missiles on the Buk-1 system (used by the Ukrainian armed forces use this warhead, but not the missiles on the Buk-2 system (used by the Russian federation armed forces).

The manufacture of the Buk systems, Almaz-Antey, claim the preformed elements found show an even earlier warhead was used, rather than the 9N314M. These warheads are no longer used in the Russian Federation as they are past their use-by date. But the manufacturer had reported servicing the older Buk systems own by Ukraine in the last 10 years.

5: Aircraft damage used to find possible missile trajectory

Simulation modelling was used to find the likely missile trajectory and launch region. The modelling was done by two Dutch groups (NLR & TNO), a forensic group in the Ukrainian Ministry of Justice and the Almaz-Antey company (the manufacturer). While all groups produced similar results  using the NLR/TNO data the Almaz-Antey group found a different missile orientation and locality on detonation using their own collected data.

This difference is immaterial for the purposes of this report but will be important for the criminal investigation.

Incidentally, Almaz-Antey have tested their computer simulations using field experiments involving detonation of a missile near typical material used in construction of the plane and, more recently, the front section of a decommissioned plane very similar to the Boeing. They reported in the press conference in the above video that the experiments vindicated their simulation results. However, the last experiment came too late to influence the Dutch safety Board Report.

Conclusion

No one expected identification of the forces responsible for shooting down flight MH17 in this report – and this is not the task of the Dutch Safety Board. More information apportioning blame should appear in the report from the Criminal investigation Team next year.

The report drew some conclusions about how authorities and airlines should handle the problem of flights over areas of conflict. Hopefully, this will make airline travel safer in future.

In my mind, a scenario involving an air-to-air missile was not completely ruled out (and perhaps the report should have been more qualified about this). However, a surface-to-air missile appears most likely.

So, two of the scenarios (involving attack aircraft) I suggested in my article on the preliminary report, MH17 – Preliminary report leaves most conspiracy theories intact, are most likely ruled out. The remaining scenario I mentioned was that the plane was downed by a surface-to-air missile launched by armed forces of the Kiev government, the Russian Federation or the opposition pro-autonomy militias.

The old warhead suggests that armed forces of the Russian federation were not involved and most probably rules out the social media story of a Russian Buk system being brought in specifically for the attack and then quickly removed.

I think this leaves either the armed forces of the Kiev government (Ukrainian army) or the Donetsk and Luhansk regions fighting for autonomy. The Ukrainian army is known to have weapons of this sort while both Kiev and the rebels claimed the rebels did not.

However, there is evidence that the rebels had either captured one or more Buk systems, or had obtained them via defection of military from the Ukrainian army (on the other hand reports from both the rebels and the Ukrainian side have claimed that at least one captured system was not operational).

So, still too early to claim we know who shot down MH17.

But, of course, that won’t stop the politically motivated blame game that has been going on in the international media (and promoted by some governments) ever since the plane hit the ground.

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