Thursday, 24 July 2014

"Then the truth must come out"

[What follows is taken from an article by Dr Jim Swire in today’s edition of The Daily Telegraph:]

It was not until I saw Flora’s body that I was able to say goodbye properly. It had taken several days. Initially, we were told that families were not allowed to see the bodies. I had to pull strings which were available to me as a doctor. At least then I knew she was safe.

How much harder it must be for the families of the 298 killed on MH17. They can only watch in horror at footage of bodies and remains, first lying exposed in the fields, then placed in bags and lined up on the road before being removed to refrigerated trains. Claims that the bodies have been used as bargaining chips must add to their suffering. (...)

Disasters such as this lead to international political crises, to investigation and inquiries. But we must not forget that each death is a human tragedy. Everything else—the bureaucracy and the political furore—is minor in comparison to the immediate and wrenching grief of the bereaved. (...)

Denying relatives the opportunity to see those they have lost so suddenly can be psychologically destructive, as I know from Lockerbie. Often, the families just need the desperately sad reassurance that their relatives really are dead.

Even when the bodies have been repatriated, relatives must prepare themselves for further distress. Pan Am arranged for the cremation of Flora’s remains but there was a confusion over the paperwork. To this day, I have no idea whether the ashes I buried on Skye, a place she loved, were hers.

After Lockerbie, there was no support group, no protocol and many mistakes were made. We were kept in the dark by the authorities and treated insensitively by politicians and the media. It took many years of persistence to feel we had achieved any level of justice.

I would advise the families of MH17 victims to form a group, perhaps taking advice from the charity Disaster Action, which was established in 1991 by relatives in the aftermath of Lockerbie and other tragedies. They need to appoint a legal counsel and a spokesman. They must insist on being kept informed at every stage of the investigation.

Some relatives will want justice, others to forget, but some may demand revenge. I will never forget being approached at the Lockerbie trial by another relative who suggested that the answer was “to nuke Tripoli”. This hunger for retribution will stalk some lives in the months and years to come, but it will only damage them.

Incredibly to some, the convicted Lockerbie bomber Abdelbaset al-Megrahi became my friend before he died. I had come to believe firmly that he was innocent of any involvement. It helped my grieving process.

But first, for the traumatised families of the victims of MH17, the bodies must be recovered and returned home. Then the truth must come out. After that, their healing can begin.

Trying those accused of crimes against civilian aircraft

[The following are excerpts from an article published in today’s edition of The Sydney Morning Herald:]

The battle to bring to justice the perpetrators of the apparent missile attack on Malaysia Airlines flight MH17 will be extremely difficult, not least because Russia is in a position to thwart any attempt to bring it or its citizens before any international or domestic court, analysts said.

The hurdles are immense even after Russia this week endorsed a strongly worded United Nations convention pledging its commitment to hold those responsible to account, analysts said on Wednesday. (...)

For an incident like the MH17 disaster involving multiple nations, the International Court of Justice (ICJ) and the International Criminal Court (ICC) typically would be the most appropriate arenas to hear a case. The ICJ adjudicates on disputes between nation states, while the ICC hears matters involving individuals who have committed international crimes such as war crimes.

But, said Alex Oliver, a research fellow at the Lowy Institute, Russia – and Ukraine, for that matter – do not accept the compulsory jurisdiction of the ICJ and don't have to appear before it.

And Russia or Ukraine are not parties to the Rome Statute that set up the ICC, meaning its citizens are not compelled to appear before this court either.

The UN Security Council can force any matter to be investigated by the ICC regardless of whether a nation state has ratified its statutes or not, enabling it to circumvent jurisdictional issues. But Russia is one of five countries that has veto power in the council. The situation was "very complex", Ms Oliver said.

Individual nations affected by the crash – notably the Netherlands, Australia and Malaysia – could also seek prosecutions in their own courts. But they would face enormous hurdles compelling foreign witnesses to appear. (...)

Australian National University international law expert Don Rothwell noted that the Lockerbie disaster, when Libyan agents organised the bombing of a Pan Am passenger jet in 1988, was heard in a domestic court.

The aircraft – en route from Frankfurt to Detroit – crashed in Scotland and the Libyan agents were tried in a specially convened Scottish court set up in the Netherlands. A Libyan intelligence officer, Abdelbaset al-Megrahi, was found guilty and sentenced to life imprisonment, although he was released in 2009 on compassionate grounds.

But the Lockerbie trial only came about after a decade of sanctions forced Libya's then leader Muammar Gaddafi to agree to the trial in exchange for them being dropped. [RB: This is not so. Megrahi and Fhimah stood trial at Zeist because they voluntarily surrendered themselves into the court’s jurisdiction. Gaddafi did not extradite them.  Had he had the power to do so, the suspects would have been handed over for trial very much sooner than they were. The true situation is set out in my comment at the end of this blogpost: http://lockerbiecase.blogspot.co.uk/2014/06/of-mandela-shamuyarira-and-lockerbie.html]

The case highlights that the most effective way to bring perpetrators of international crimes to justice is often through economic sanctions, diplomatic pressure and sustained adverse media coverage.

Diplomatic pressure and widespread global criticism led to Russia endorsing a UN resolution this week for an independent investigation into the MH17 crash which – critically – also demanded "that those responsible for this incident be held to account and that all states cooperate fully with efforts to establish accountability".

Ms Oliver said the resolution was a hugely positive step on the road to justice but noted that Russia "haven't committed to submitting to any jurisdiction".

Wednesday, 23 July 2014

Accept, apologise, punish the guilty

[An article about the MH17 tragedy published on the website of Newsweek magazine is yet another that makes an analogy to Pan Am 103 and Lockerbie. Unlike most others from American sources, it does refer to IR655 and the USS Vincennes.  The article reads in part:]

Just six months ago Putin’s international standing was at an all-time high as he presided over the Sochi Olympics and released imprisoned oligarch Mikhail Khodorkovsky and the Pussy Riot group. But it began its precipitous descent with Russia’s occupation of Crimea – and now, Putin’s name and reputation have become inextricably linked to the tragedy of MH17. This is his Lockerbie moment.

“Politics is about ­control of the imaginary – and [MH17] plane has become symbolic of something deeper,” says Mark Galeotti of New York University. “It is becoming very difficult not to regard Putin’s Russia as essentially an aggressive, subversive and destabilising nation after this.”

It didn’t have to be like this. Unlike Muammar Gadaffi, whose agents ­knowingly blew up Pan Am flight 103 over the Scottish town of Lockerbie in 1988, killing 243 people, Putin didn’t order separatist militiamen near Donetsk to murder civilians. The evidence points to a tragic mistake by ill-trained and ill-disciplined militias to whom Russia rashly supplied deadly surface to air missiles. But the Kremlin didn’t have to own this disaster. Putin could have disowned the Donetsk rebel group responsible, agreed to cooperate with international investigators, call world leaders to share their shock and commitment to bring the guilty to justice.

Instead, he did the opposite. In the days after the tragedy the Kremlin obfuscated the facts, blamed Kiev and facilitated the Donetsk separatists’ hasty cover-up operations – from attempting to hide bodies that had tell-tale shrapnel wounds to hurriedly evacuating the BUK rocket launcher back across the border (a not-so-secret operation snapped by the camera phones of local residents and Kiev’s spies). Putin himself appeared on national television – twice – vaguely blaming the whole incident on Ukrainian President Petro Poroshenko for not making peace with the rebels, a convoluted version of a child’s “he made me do it” argument. As a result of Putin’s KGB-trained instinct to deny everything, the tragedy of MH17 is, in the eyes of much of the world, now seen as Putin’s doing. (...)

But Putin has allowed himself to become a hostage to bad stuff happening, which is just bad politics. Cover-ups rarely work ­, as the US found in the aftermath of abuses at Abu Ghraib prison in Baghdad, for instance, or the shooting down of an Iranian civilian airliner over the Persian Gulf in 1988, just five months before Lockerbie, the smartest way to deal with such disasters is to accept, apologise, punish the guilty. 

[“Accept”: ‘The following day, the Pentagon held a news conference on the incident. After originally having flatly denied Iran's version of the event, saying that it had shot down an F-14 fighter and not a civilian aircraft, the State Department (after a review of the evidence) admitted the downing of Iran Air 655. It was claimed that the plane had "strayed too close to two US Navy warships that were engaged in a battle with Iranian gunboats" and, according to the spokesman, that the "proper defensive action" was taken (in part) because the "suspect aircraft was outside the prescribed commercial air corridor" (Washington Post).

‘That it "strayed" from its normal, scheduled flight path is factually incorrect. And so was the claim that it was heading right for the ship and "descending" toward it — it was ascending. Another "error" was the contention that it took place in international waters (it did not, a fact only later admitted by the government). Incorrect maps were used when Congress was briefed on the incident.’ http://chinamatters.blogspot.ca/2014/07/ukraine-mh-17-and-twilight-of.html

“Apologise”: ‘The US government issued notes of regret for the loss of human lives and in 1996 paid reparations to settle a suit brought in the International Court of Justice regarding the incident, but the United States never released an apology or acknowledgment of wrongdoing. George H W Bush, the vice president of the United States at the time commented on the incident during a presidential campaign function (2 Aug 1988): "I will never apologize for the United States — I don't care what the facts are... I'm not an apologize-for-America kind of guy."’ http://en.wikipedia.org/wiki/Iran_Air_Flight_655

“Punish the guilty”: ‘Despite the mistakes made in the downing of the plane, the men of the Vincennes were awarded Combat Action Ribbons for completion of their tours in a combat zone. Lustig, the air-warfare coordinator, received the Navy Commendation Medal. In 1990, The Washington Post listed Lustig's awards as one being for his entire tour from 1984 to 1988 and the other for his actions relating to the surface engagement with Iranian gunboats. In 1990, Rogers was awarded the Legion of Merit "for exceptionally meritorious conduct in the performance of outstanding service as commanding officer ... from April 1987 to May 1989." The award was given for his service as the commanding officer of the Vincennes from April 1987 to May 1989, and the citation made no mention of the downing of Iran Air 655.’ http://en.wikipedia.org/wiki/Iran_Air_Flight_655]

Putin crosses the 'Lockerbie line'

[This is the headline over an article by Brian Whitmore published yesterday on the Radio Free Europe Radio Liberty website. It reads in part:]

The Kremlin released an odd video statement early on July 21 in which a visibly haggard Vladimir Putin blamed Kyiv for the disaster, called for negotiations to end the conflict in eastern Ukraine, and warned that "nobody has the right to use this tragedy to achieve selfish political ends."  (...)

"Although the Crimean and Ukrainian operations have shown how effective even seemingly crude information warfare can be in distracting, bamboozling, and blunting Western concern, it is hard to see how Moscow can spin this one away," Mark Galeotti, an expert on Russia's security services at New York University and co-host of the Power Vertical Podcast, wrote in Foreign Policy.
On last week's podcast, a recurring theme was that Putin had crossed something that Kirill Kobrin, co-editor of the Moscow-based history magazine Neprikosnovenny zapas, called "the Lockerbie line," in reference to the terrorist attack that downed Pan American Flight 103 in 1988.
That is, that, like Muammar Qaddafi then, the Russian president may have crossed the psychological point where it becomes very difficult -- if not impossible -- to even pretend that he is a respectable leader anymore.
"It is going to be very difficult not to regard Putin's Russia as essentially an aggressive, subversive, and destabilizing nation after this. This one plane becomes symbolic of so much more," Galeotti said on the podcast.
"I do think that Russia's position in the world will have changed irrevocably. I do think people will be thinking of Putin and the Putin regime as a problem. And the inclination is going to be: What do we do about this problem?"
Others, like Washington Post columnist and author Anne Applebaum, have picked up on the Lockerbie metaphor.
"When the Libyan government brought down Pan Am Flight 103 over Lockerbie, Scotland, in 1988, the West closed ranks and isolated the Libyan regime," Applebaum wrote in a recent column.
[A much closer analogy than Lockerbie to the MH17 tragedy is, of course, the shooting down of Iran Air flight 655 by the USS Vincennes on 3 July 1988. But for some reason American commentators never seem to mention that incident (and mainstream British and European commentators very rarely do, either). Funny, that.]

Tuesday, 22 July 2014

Responsibility for MH17 crash investigation under UN Security Council Resolution

The following was an accurate statement of the legal position yesterday morning regarding responsibility for investigating the circumstances of the MH17 disaster in Ukraine:

‘European investigators, who unexpectedly arrived on the Malaysian aircraft crash site in eastern Ukraine, had “no legal locus” to participate in the investigation without Kiev's invite, Professor Robert Black of the University of Edinburgh, known as the “architect of the Lockerbie trial”, told RIA Novosti on Monday.

‘“If the nation decides that they don’t have the necessary facilities or investigative infrastructure, then they can call on another state or states to lend them the expertise,” said Black, a globally recognized legal expert, who specialized in examining the judicial issues surrounding the 1988 bombing of Pan Am Flight 103 over Lockerbie.

‘“Air investigation teams from Europe simply arrived at the scene and are now complaining that they weren’t immediately allowed free access to the site,” the lawyer said.

‘“It is understandable that they should be annoyed, but they have no legal locus to be there whatsoever unless and until they are invited to participate by the state which has the legal responsibility to investigate,” Black added.

‘“The law is that the responsibility to investigate is that of the state where the plane came down. But given the circumstances in that part of Ukraine at the moment, it is a difficult question to answer. Who is the state and who is the government of that state?” the expert said.

‘Black agreed it was important for the site to be secured and called for proper international investigation into the circumstances of the crash.’

Later that day, the United Nations Security Council passed Resolution 2166 (2014). This now provides (and is binding in international law):

“The Security Council (...)

6. Demands that the armed groups in control of the crash site and the surrounding area refrain from any actions that may compromise the integrity of the crash site, including by refraining from destroying, moving, or disturbing wreckage, equipment, debris, personal belongings, or remains, and immediately provide safe, secure, full and unrestricted access to the site and surrounding area for the appropriate investigating authorities, the OSCE Special Monitoring Mission and representatives of other relevant international organizations according to ICAO and other established procedures;

7. Demands that all military activities, including by armed groups, be immediately ceased in the immediate area surrounding the crash site to allow for security and safety of the international investigation;

8. Insists on the dignified, respectful and professional treatment and recovery of the bodies of the victims, and calls upon all parties to ensure that this happens with immediate effect; 

9. Calls on all States and actors in the region to cooperate fully in relation to the international investigation of the incident, including with respect to immediate and unrestricted access to the crash site as referred to in paragraph 6 (...)”

OSCE = Organization for Security and Co-operation in Europe
ICAO = International Civil Aviation Organization

Lockerbie relative: Grieve MH17 through love, not revenge

[This is the headline over an article by Dr Jim Swire published today on the CNN website. It reads as follows:]

Editor's note: Jim Swire is the father of Flora, who was one of the 270 victims of the bombing of Pan Am Flight 103 over the Scottish town of Lockerbie in 1988. The views expressed in this commentary are solely those of the author.

The first question for many relatives of the victims of MH17, as for us after Lockerbie, will be whether their loved ones suffered.

Explosive decompression of an aircraft fuselage at 35,000 feet will cause almost instantaneous loss of consciousness. Explosive decompression is a terribly apt phrase.

If it turns out to be true that MH17 was hit by a Buk Soviet-era SA missile, their warheads contain about 140 times the explosive in the PA 103 bomb. It seems impossible therefore that anyone aboard could have remained aware to suffer in the aftermath.

The essence of the tragedy of MH17 is the suffering of the relatives. Some will need to view the bodies of those they lost. Surely they deserve security to say their last farewells. They should have that option. Bodies need to be treated with respect and precision of identification.

I believe that in the case of MH17 the United Nations should also oversee immediate sending of an international team of investigators, covered by force if necessary, to ensure that relatives' needs, the bodies themselves and the evidence field are protected. It is already very late, but not too late. There has already been looting, abhorrent to relatives, there is something particularly unsavory about the thought of unauthorised interference with bodies, or indeed personal effects of the dead.

There will now be some uncertainty about the evidential material on site. Maybe the U.N. should in future have a standby arrangement for immediate deployment of such an international "sterilizing force." Even in the case of Lockerbie, evidence emerged in court of improper interference with potentially evidential material on the crash site within Scotland.

In the UK we found that a relatives' group predicated on the concept of allowing everyone to grieve in their own way, but always there to support its members, helped. The humanist, highly caring, relative co-ordinating our group cannot know how many of us she has helped through her dedication and skills.

One of the most difficult yet most rewarding aspects of Christ's philosophy was to extend love to others even when they seem to be your enemy. We have witnessed the bitterness and personal destruction that can spring from rampant lust for revenge.

Lust for revenge is natural, but self-defeating, for the consequence of revenge is so often further revenge. Nor does it even bring peace of mind to the avenger. Of course we condemn the actions of perpetrators and would rightly have them punished for what they have done, but we don't have to hate the perpetrators themselves. Imprisoned, they may emerge one day to do good.

The late Nelson Mandela and Archbishop Desmond Tutu helped to create the Truth and Reconciliation Commission. That concept can only work if truth precedes the attempts at reconciliation. Truth may become a fickle wraith for families to pursue through the labyrinth of International politics. It was Mandela too who publicly warned, long before the trial of those accused by the U.S. and UK of responsibility for Lockerbie, that: "No one country should be complainant, prosecutor and judge."

The West ignored this warning.

It is perhaps significant that the Netherlands, which lost far more citizens in MH17 than any other country, finds herself already the home of the International Criminal Court.

Powerful governments have powerful means of controlling what we know and believe. International courts should be immune to that. Perversely it was the evidence produced at the Lockerbie trial in Zeist, Holland, which confirmed for some that Moammar Gaddafi's Libya was responsible.

But for other close watchers, there were doubts there which have now greatly increased and led 25 UK Lockerbie relatives, together with members of the family of the one Libyan found guilty, recently to lodge a request for a third appeal against the Zeist verdict with Scotland's Criminal Case Review Commission.

Nowadays we have a better route, through the International Criminal Court, and what those of us who are not MH17 relatives should do is to monitor and encourage all efforts to pass the whole known truth to the MH17 relatives and to discover and detain those responsible. It is no coincidence that Holland already hosts the ICC, for that nation's record in support of international justice is outstanding.

MH17 relatives may also find help from the small UK charity Disaster Action. This cannot deal with so huge a tragedy directly but carries within it wisdom distilled from Lockerbie and other tragedies.

A controversial conviction

[A letter from Bob Taylor in today’s edition of The Scotsman reads as follows:]

Is it right at this stage to draw any parallel between the
 controversy over the Lockerbie bombing and the disaster involving MH17?

Dr Jim Swire has drawn attention, 
correctly, to the anguish of the victims’ relatives, and to key questions over the Malaysian airliner’s flight path, and the source of the lethal rocket, if that is the real cause of the carnage.

But we should heed, too, the views of Keir Giles. His main point is that investigation of the detail of that carnage is being hampered by local activity of secessionist gunmen and untrained volunteers.

The Lockerbie probe, though by no means flawless, was 
conducted by the appropriate
 police authority, together with intelligence services.

The area around which it
 happened was not, as in the Ukraine, the subject of national and international controversy. A task of investigation which looked utterly formidable was completed and a case made for prosecution of individuals.

We now know that perhaps all the evidence was not looked at, that the Al-Megrahi conviction was controversial, perhaps others were involved, and that even they may be a convenient scapegoat.

It remains the case that a coherent investigation took place as did a trial under Scots law, albeit outwith Scottish territory.

A miscarriage of justice may have taken place, but at least a semblance of legal procedure was followed.

The tragedy in eastern Ukraine is that lawlessness threatens to prevail over an international outrage. Unless pressure on Vladimir Putin’s regime to act 
continues, the reputation of
 international justice and diplomacy will be destroyed. 

[RB: There are credible reports that the integrity of the Pan Am 103 crash scene at Lockerbie was not scrupulously maintained.]

Air crash hypocrisy blog claim

[This is the headline over a report in today’s edition of The Herald. It reads as follows:]

A leading campaigner against the Megrahi conviction for the Lockerbie bombing has accused the Scottish and UK Governments of hypocrisy for demanding full disclosure from Russia over the flight brought down over Ukraine.

Writing on his blog the Justice for Megrahi campaigner and Emeritus Professor of Scots Law at Edinburgh University, Robert Black, is scathing of both governments' approach to the downing of the Malaysian airliner while they refuse to re-open investigations into what happened over his home town of Lockerbie in 1988.

Professor Black said on his blog: "Is there no limit to the hypocrisy of the leaders of the Scottish and United Kingdom governments?

"Both Alex Salmond and David Cameron have refused to countenance an independent inquiry into the Lockerbie case."

A Scottish Government spokesman said: "Mr Al-Megrahi was convicted in a court of law and his conviction was upheld on appeal." The UK Government did not respond.

[Here is the full text of my criticism: “Is there no limit to the hypocrisy of the leaders of the Scottish and United Kingdom governments? Both Alex Salmond and David Cameron have refused to countenance an independent inquiry into the Lockerbie case, notwithstanding the wishes of the relatives of UK victims and the now almost universal acceptance, on the clearest of evidence, that the conviction of Abdelbaset Megrahi was a travesty of justice and the inculpation of Libya at best precarious.”]

Monday, 21 July 2014

Maltese Prime Minister on Lockerbie

[What follows is a brief extract from a long article just published on the website of the Maltese newspaper The Independent:]

A question regarding the Lockerbie bombing ... was flung at Prime Minister Joseph Muscat during a question and answer session at the London School of Economics whilst discussing the Commonwealth. (...)

He added that Malta has been lucky that British bases were closed peacefully, without bloodshed. “We are a model as to how a country can transform from a colony to a free state”.

On the subject of Lockerbie, Dr Muscat argued [Dr Jim] Swire, the father of a girl killed in the bombing, said that Malta had nothing to do with the bombing and that he has met with Swire many times and will meet him again in the future. 

[The Maltese Foreign Minister has expressed himself even more clearly on Lockerbie: see Maltese minister believes Megrahi innocent.]

Crash scene integrity: Ukraine and Lockerbie

Amidst all of the reports about the MH17 crash scene being “severely compromised” (of which this is a typical example) so rendering investigation of the circumstances of the disaster more difficult, it is perhaps worth remembering that serious claims have been made by reputable sources about interference with the integrity of the Pan Am 103 crash site at Lockerbie from the evening of 21 December 1988 onwards. This issue is dealt with in Dr Ludwig de Braeckeleer’s essay Suspicious Activities at Lockerbie Crash Site.

Legal responsibility for aircraft accident investigation

[I was interviewed this morning by Mark Hirst for RIA Novosti. Here is his report:]

European investigators, who unexpectedly arrived on the Malaysian aircraft crash site in eastern Ukraine, had “no legal locus” to participate in the investigation without Kiev's invite, Professor Robert Black of the University of Edinburgh, known as the “architect of the Lockerbie trial”, told RIA Novosti on Monday.

“If the nation decides that they don’t have the necessary facilities or investigative infrastructure, then they can call on another state or states to lend them the expertise,” said Black, a globally recognized legal expert, who specialized in examining the judicial issues surrounding the 1988 bombing of Pan Am Flight 103 over Lockerbie.

“Air investigation teams from Europe simply arrived at the scene and are now complaining that they weren’t immediately allowed free access to the site,” the lawyer said.

“It is understandable that they should be annoyed, but they have no legal locus to be there whatsoever unless and until they are invited to participate by the state which has the legal responsibility to investigate,” Black added.

“The law is that the responsibility to investigate is that of the state where the plane came down. But given the circumstances in that part of Ukraine at the moment, it is a difficult question to answer. Who is the state and who is the government of that state?” the expert said.

Black agreed it was important for the site to be secured and called for proper international investigation into the circumstances of the crash.

Malaysia Airlines' Flight MH17 en route from Amsterdam to Kuala Lumpur crashed on July 17 near Donetsk in eastern Ukraine, causing death of 283 passengers and 15 crew members.

Ukrainian government and militia have been trading blame for the alleged downing of the plane, with independence supporters saying they lacked the technology to shoot down a target flying at altitude of 10 kilometers (6.2 miles).

Commenting on the crash, Russian President Vladimir Putin said it was vital to abstain from hasty conclusions on the case before the international investigation was over.

The UN Security Council late on Sunday night completed the text of its resolution regarding the Malaysia Airlines crash. Russia introduced its own draft resolution to the UN Security Council, calling for an impartial investigation into the circumstances of the crash.