ARI SHAPIRO, HOST:
Now the question is whether Russia can be held accountable for that passenger jet being shot down over Ukraine. For more on this we turn to James Lewis of the Center for Strategic and International Studies. Before that he was a foreign service officer who negotiated arms transfers for the U.S. Welcome to the show.
JAMES LEWIS: Thank you.
SHAPIRO: So if a government such as Russia transfers weapons to fighters, say, in Ukraine, what responsibility does Russia have according to international law?
LEWIS: And Russia's even a member of one of the regimes that governs arms transfers. They're supposed to check and make sure that the weapons will be used responsibly.
SHAPIRO: Is that, like, an actual form they fill out saying, I hereby declare the weapons will be used responsibly?
LEWIS: If you transfer to a state, you would get an end-use certificate that would pretty much say that this is someone that it's safe to transfer the arms to. But when it comes to a proxy, when it comes to irregular forces, the requirement for an end-use certificate isn't there. So the Russians were supposed to think about who they were transferring to, but they weren't required to get any documentation.
SHAPIRO: This particular weapon was attached to a massive vehicle. And today State Department Spokesman John Kirby said the vehicle was returned to Russia after the plane was shot down, so he says technically it never left Russian control. How does that change the equation?
LEWIS: That changes it quite a bit because the thing we have to show is, who was in command? What was the chain of command? Does the chain of command lead back to Moscow? If it does, Moscow is responsible. And from his statement, it sounds like that's what they're trying to say. It's not that the Russians gave this weapon somewhat irresponsibly to a group of irregulars. It's that they were in control and are ultimately culpable for the decision to use it.
SHAPIRO: And what is responsible and culpable mean in this case? Is there some kind of court of international law where Russia can be tried for this?
LEWIS: Well, unfortunately when you're a big power with nuclear weapons, you can pretty much do what you want. That's life. And the Russians could be taken perhaps to the International Court of Justice. Some of the relatives of the victims could consider lawsuits if the people the Dutch have identified can be shown to be responsible.
SHAPIRO: You mean individuals who they've identified.
LEWIS: Yeah. You could seek to sue them on an individual basis. But in all of these cases, the Russians can say basically tough luck, and that's probably what they'll do.
SHAPIRO: I wonder how far this principle reaches. I mean there are many countries, including the United States, that have supported militias or guerrillas or governments that have gone onto do questionable things with the money or weapons that they're provided by the United States. I mean I'm thinking Nicaragua in the 1980s or even a government like Egypt today that received support from the U.S. government. Could any of America's actions in those countries fall into the same category that we're talking about with Russia's actions in Ukraine?
LEWIS: No, on a legal basis, and so the U.S. could argue all of our transfers have been done legally, particularly when it's to a state we got assurances and we transferred culpability to that state. When it comes to transferring to guerrilla groups, yes, the U.S. has transferred surface-to-air missiles before but not of this size, not of this caliber.
And the U.S. has done a relatively better job of keeping control. Folks can still say, what were you thinking when you made that transfer; that was really bad judgment. And certainly that's one of the critiques you hear about some U.S. transfers. But this one is unusual. I mean hardly anyone transfers this kind of missile system to any recipient other than a state.
SHAPIRO: That's James Lewis of the Center for Strategic and International Studies who used to negotiate arms transfers for the U.S. State Department. Thank you for joining us.
LEWIS: Thank you. Transcript provided by NPR, Copyright NPR.