Foreign Policy Blogs

The Crime and the TOR-M1 as the Murder Weapon

FILE PHOTO: EDITORS’ NOTE: Reuters and other foreign media are subject to Iranian restrictions on their ability to film or take pictures in Tehran.  The Tor-M1 anti-aircraft defense system is displayed in a military parade to commemorate the anniversary of the start of the 1980-1988 Iran-Iraq war, in Tehran September 22, 2009. REUTERS/Raheb Homavandi

At this point the world knows that Iran’s Air Defense shot down a Boeing 737 800 filled with its own citizens, many Canadian citizens, the Ukrainian crew and nationals from a few other countries shortly after launching a ballistic missile attack on Iraq. Evidence shows that two missiles were fired at the plane. This was to ensure it would be destroyed and is sometimes standard practice by the TOR-M1 operators. These actions are a crime against humanity and should be addressed as criminal negligence.

While criminal negligence addresses the lack of intent to commit the crime, it does not always absolve the accused of a charge of First Degree murder in many legal systems. If the accused is so completely negligent in the commission of the act, in this case, if the crew and commanders of the TOR-M1 missile battery we so negligent that they should and have reasonably considered that a passenger aircraft would be in the target zone a few hours after a ballistic missile attack, then they were to blame for the loss. This is because they had the power and decision making ability to mitigate damage or mitigate the losses by their own actions. A defense for them would be that others and their actions contributed to the murder, so the air traffic control, military commanders and strategists, radio operators and even the technician who repaired the radar on the TOR-M1 as well as the country that might have sold it to Iran and did not properly train the crew could be considered in applying a verdict. The country itself is often deemed liable as their defense force is an arm of their government, and foreign governments can claim on the losses of their nationals. If the country destroys or alters evidence, it is obstruction of justice and is a crime as well.

The TOR-M1 is an earlier versions of a fairly modern system that contains its own missiles, usually eight, and has its own radar and equipment to detect and shoot at any enemy targets. It was designed to shoot down aircraft as well as drones at medium range. Because of this, it can be legitimately assumed that a system that is designed to shoot down drones in addition to aircraft could use its systems to determine the difference between those types of targets. Older SAM systems relied on a network of missiles linked to a main radar hub, that is often linked to a larger network and command structure to find targets via a separate radar system and direct the firing units to their targets. The TOR-M1 in question likely was linked to a larger network as well but has the ability to target and fire its own missiles. While the missiles are smaller than longer-range systems like the BUK-M1 that shot down the Malaysia Airlines flight over Ukraine, they often fire more than one round as they are utilized more often to eliminate fast-moving or smaller targets like drones and perhaps cruise missiles. Because anti-Aircraft systems often have their radars targeted first in an assault, the TOR-M1 unit would have been a viable first target if any assault would be made on their area within Iran’s borders.

If the TOR-M1 system would be considered to be operating normally, then the likely case would be that the TOR-M1 operators, their command structure and the larger military command and any political directors of the air defense platform are liable, making the country itself liable for their agents and claims can be made by other countries in International Law. Training for the crew of the TOR-M1 is likely extensive, and those operators and the country that trained them have additional liability in the operation of the TOR because they are considered professionals or experts in its operation. Civil aviation authorities that had the knowledge and were aware of the danger would be considered liable as well based on information they knew at the time during a possible conflict scenario. Nationals of Iran would claim under their legal system, but claims might be made on their behalf if it is determined that their legal system lacks justice in the application of the law for those victims, or that victims were coerced or threatened against claiming rights and compensation in the application of their law.

International legal and political pressure should support locals if justice is seen as being skewed or altered to benefit the criminal actors in this case. While actions in mitigating the losses or suffering may alter the quantum of damages owed by the state to local and foreign victims of the crime, assuming other actors beyond the state and their agents contributed to the crime only serves to reduce the claims owed to victims of the crime as it assumes contributory negligence to those that had no control or power in the situation to prevent or halt the actions by the state and its agents. Placing the onus on foreign agents only serves to reduce compensation to victims duly owed their right to justice. As for Canada, Ukraine and other countries that lost its citizens, they should fully compensate their nationals and claim back those funds from Iran directly. To do this they must be clear on who they will claim has liability in this case.

Out of all of the areas of law, it could be said that Criminal Law, while having the highest burden of proof, also has the simplest formula to determine whether or not guilt can be associated with the criminals being charged. In this case Iran admitted to the crime, the weapon was the TOR-M1 and the two missiles fired murdered everyone on the plane. Any language that shifts blame to another focus is just hurting the victims further.

 

Author

Richard Basas
Richard Basas

Richard Basas, a Canadian Masters Level Law student educated in Spain, England, and Canada (U of London MA 2003 LL.M., 2007), has worked researching for CSIS and as a Reporter for the Latin America Advisor. He went on to study his MA in Latin American Political Economy in London with the University of London and LSE. Subsequently, Rich followed his career into Law focusing mostly on International Commerce and EU-Americas issues. He has worked for many commercial and legal organisations as well as within the Refugee Protection Community in Toronto, Canada, representing detained non-status indivduals residing in Canada. Rich will go on to study his PhD in International Law.

Areas of Focus:
Law; Economics and Commerce; Americas; Europe; Refugees; Immigration

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