Tuesday, 29 July 2014

Judicial requirements subordinated to considerations of power politics

[This is the headline over a report by Mark Hirst published today on the website of Russian news agency RIA Novosti.  It reads in part:]

Judicial standards in the UK were “subordinated by power politics” during the Pan Am 103/Lockerbie judicial proceedings, the UN’s official observer to the trial, Hans Koechler, has told RIA Novosti.

Koechler added that he did not believe that a decision by the previous UK Government to withhold “potentially vital” evidence from the defense team of Abdelbaset al-Megrahi, the Libyan convicted of 1988 bombing, would be overturned by the current British coalition Government in London.

Megrahi, terminally ill with prostate cancer, was released on compassionate grounds by the Scottish Government and returned to Libya before passing away in 2012.

“It goes without saying that justice requires transparency and that proper judicial proceedings cannot be conducted in the absence of – potentially vital – evidence,” Koechler told RIA Novosti.

Koechler, a Professor at the University of Innsbruck, said it was important a new appeal, recently launched by Megrahi’s family against his conviction, proceeded.

“It is certainly important that a new appeal goes ahead. The second appeal, that followed the referral by the Scottish Criminal Cases Review Commission, should never have been dropped,” Koechler told RIA Novosti.

“It was obvious to me at the time that Megrahi acted under pressure.”

Six years ago Koechler wrote to the British Foreign Secretary urging him to drop the Public Immunity Interest (PII) certificate that allowed the UK Government to withhold key evidence from the defense team.

“It will be up to the applicants' legal representatives to raise the issue of the PII certificate in the course of a new appeal,” Koechler said.

“However, what I have learned from observing the Lockerbie controversy, when the "supreme interests" of the state and/or a state's allies are concerned, judicial requirements are always subordinated to considerations of power politics,” Koechler told RIA Novosti.

“This was exactly the dilemma of the Lockerbie case from very beginning: that one cannot conduct judicial proceedings as an intelligence operation. Under such circumstances, the rule of law will always be the victim,” Koechler said. “According to my assessment, it is highly unlikely that the previous British Government’s PII decision will be overruled by the present administration in London.”

Koechler was first to call for an independent international public inquiry into the events that led to the atrocity, which remains the worst terrorist attack in British history.

But whilst the Scottish Parliament is formally considering a petition calling for such an inquiry to be established, Koechler believes chances of one proceeding are unrealistic in the current political climate.

“The Security Council is not anymore seized of the matter – the Lockerbie dispute – and a new consensus among the Council's permanent members on the setting up of an investigative committee is not realistic,” Koechler told RIA Novosti.

“Only a coercive resolution would provide the necessary powers – and independence – to international investigators,” Koechler added. “Under these circumstances, everything will depend on the domestic situation in the UK.”

Koechler dismissed efforts to secure a public inquiry set up by the Scottish authorities.

“An investigation mandated by the Scottish Parliament will not be sufficient because the issue is an international one,” Koechler told RIA Novosti. (...)

One man, Libyan Abdelbaset al-Megrahi, was convicted of the attack, but since his trial serious doubts have been raised by campaigners and some relatives of victims of PA103 about the safety of his conviction.

In 2007, the Scottish Criminal Cases Review Commission (SCCRC) referred the case back to the Scottish High Court for a second appeal against the conviction. The SCCRC report determined “a miscarriage of justice may have occurred”.

The second appeal was ultimately dropped by Megrahi’s own defense team in 2009 who told the High Court they believed it would “assist” in the determination of the Libyan’s application to be released on compassionate grounds.

Eight days after formally dropping his appeal Megrahi was released and returned to Libya.

The perils of polyglot proceedings

[Fourteen years ago the Lockerbie trial at Camp Zeist was adjourned for a three-week summer recess. To mark the occasion I produced for The Lockerbie Trial website a light-hearted piece entitled The perils of polyglot proceedings. Here is what it said:]

Tony Gauci, the shopkeeper from whose establishment in Malta the clothes which surrounded the bomb that destroyed Pan Am 103 were allegedly bought, gave his evidence in the Maltese language.  A simultaneous translation of his evidence was provided for the benefit of others in the courtroom.  On a number of occasions Mr Gauci was gently reminded by the presiding judge, Lord Sutherland, not to intersperse his evidence with sentences or phrases in English since that simply confused the interpreter whose job it was to translate his evidence into English.

There are those, consequently, who might find it mildly ironical that the English-speaking lawyers participating in the proceedings, including notably Lord Sutherland himself, should find it necessary liberally to spatter their contributions with phrases in a language other than English.  The language in question is, of course, Latin.  If it is difficult for interpreters to cope with a mixture of Maltese and English, is the same not likely to be true, mutatis mutandis, of English and Latin?

Scottish lawyers of my generation had to be able to demonstrate competence in the Latin tongue before they were allowed to study law at University.  Some of us have never outgrown the temptation to demonstrate our prowess: if you've got it, flaunt it!  Some there are who would say that we do it ad nauseam, if not quite ad infinitum.

One wonders, however, how the interpreters who have to translate the proceedings into Arabic for the benefit of the accused and other Arabic speakers, cope with all this rampant Latinity.  In the Arabic translation, do they leave the relevant phrases in Latin, or do they attempt to provide an Arabic equivalent?  For the latter, of course, it would be necessary that they should be familiar with the meaning of the Latin expression in question. One wonders if, when the interpreters were being selected, it was appreciated that a necessary qualification for the job was not merely fluency in English and Arabic but also familiarity with legal Latin.

If the interpreters are experiencing some difficulty in this regard, however, help is at hand.  That magnificent and indispensable work The Laws of Scotland: Stair Memorial Encyclopaedia (of which I had the honour to be General Editor) is accompanied by a glossary of Scottish legal terms and Latin maxims.  This can be obtained separately (ISBN 0 406 02057 4) from the main 25-volume work.  In it can be found explanations of such expressions used over the past few days as ad longum and quantum valeat.  Perhaps the Court authorities should consider supplying copies to the interpreters (whom I assume to be engaged under a contract locatio operis faciendi under which imperitia culpae enumeratur).  This suggestion to the Court authorities is made pro bono publico, and if they have already done so should, of course, be treated as pro non scripto.

[A much more important article entitled Legal interpreting and translation: a commentary was contributed by Dr Elinor Kelly to the website earlier the same month.]

Lib Dems, Malaysia Airlines 17, Iran Air 655 and Pan Am 103

[I do love a good rant. As a ranter, Hugh Reilly is up there with the best. Here is (part of) what he says in his column in The Scotsman today:]

Nick Clegg’s hand-wringing approach to unwelcome tidings such as the eviscerating of Gazan children by Israeli shells whilst playing on a sandy beach is in stark contrast to his reaction to a pro-Russia rag-tag militia shooting down a Malaysian airliner.

Clegg saved his bubbling ire to snipe at Vladimir Putin for the abhorrent action of a para military group over which he did not/does not have full control. The Lib-Dem leader demands that Russia be stripped of its right to hold the 2018 World Cup (...)

So here we have the man who is a heartbeat away from being PM – well, at least until the Tory party bids adieu to a departed David Cameron and elects a new leader. To be fair, Clegg is hanging on to the coattails of America where Putin is perceived to be the Devil incarnate. Hillary Clinton, a presidential hopeful who makes Sarah Palin seem a Harvard scholar, chipped in with her thoughts on the deplorable surface-to-air missile attack on an airliner that left 300 innocents dead. “Vladimir Putin, certainly indirectly, bears responsibility for what happened.”

It’s something of a pity that in 1988 she and Slick Willy hit the mute button when failing to condemn the shooting down of an Iranian airliner by the USS Vincennes. Flying inside Iranian airspace, the aircraft was blasted out of the sky by the US warship operating inside Iranian territorial water, with a loss of 290 people, 66 of them children. The captain of the ship faced no criminal action; indeed, George H Bush, spawner of Walker Bush, crowed that “the crew acted appropriately”. Just eight years later, Atlanta hosted the Olympic Games.

Unshockingly, the EU did not introduce sanctions against America in an effort to somehow shape its aggressive nature. It was left to the United Nations Security Council to pass Resolution 616 that, in no uncertain terms, expressed “deep distress” and “profound regret” for the callous brutality of the world’s policeman. Oh how the USA quaked on hearing these words.

Back then, of course, Nick Clegg was a callow fellow of some 21 years and an alleged member of the Cambridge University Conservative Association. Menzies Campbell does not have that excuse. He was the recently elected MP for North East Fife, the constituency of his holiday home. I’m certain Ming denounced the USA’s attack on the Iranian airline; after all, it is a matter of public record that this honourable man, like me, shows a keen interest in the deaths of air passengers blown out of the skies. Sir Ming has opined fulsomely on the Lockerbie bombing, declaring that “the decision to release Mr Megrahi was ill-judged”. One but can imagine what his thoughts are on the Iranian dead, or indeed, the decision of the US navy to later award the captain of the USS Vincennes promotion. What is known is that while Pan-Am 103 and MH-17 are forever etched into the consciousness of the Anglo-Saxon axis, the flight number of the equally doomed Iranian aircraft remains a tad anonymous (it was Flight 655, since you ask).

[I look forward with keen anticipation to a comment about Sir Menzies Campbell from Rolfe, who has strong views about the Lib-Dem grandee’s stance on Megrahi and Lockerbie.]

Monday, 28 July 2014

Did the FBI liaise with the CIA in the Lockerbie investigation?

[What follows is an article by Mark Hirst published this afternoon on the website of Russian news agency RIA Novosti. It reads as follows:]

An agent with the Federal Bureau of Investigation (FBI) who led the US probe into the bombing of Pan Am flight 103 over the Scottish town of Lockerbie in 1988 has denied claims made by a Central Intelligence Agency (CIA)’s former officer who told RIA Novosti that FBI investigators did not read vital US intelligence material related to the attack.

Earlier Robert Baer, a retired CIA officer who was based in the Middle East, told RIA Novosti, “I’ve been having exchanges with the FBI investigators and they came right out and said they didn't read the intelligence."

“I just find that extraordinary and then later for them to comment on the intelligence and say it's no good; it’s amazing,” Baer said.

But Richard Marquise, who led the US investigation into the attack, dismissed Baer’s claim.

“Mr. Baer had no role in the investigation and anything he knows or claims to know is either hearsay or speculation,” Marquise told RIA Novosti.

“I find [Baer’s claims] interesting because he has previously said that the CIA did not pass us all the information, something I doubt he would be in a position to know,” Marquise argued.

“I agree that there were a handful of FBI personnel (agents and analysts) who had access to all the intelligence that was passed and it may have been possible that some FBI agents who played a minor role in the case may not have seen it,” he added.

For years controversy has surrounded the case following the 2001 conviction of Abdelbaset Megrahi, a former Libyan intelligence officer. Campaigners, including some relatives of victims of Pan Am 103, believe Megrahi was wrongly convicted and are continuing to call for a public inquiry into the events leading to the bombing.

Baer has previously claimed US intelligence pointed to Iran – not Libya – as the source of the attack that allegedly retaliated for the shooting down of Iran Air Flight 655 by the American warship, USS Vincennes, five months before the attack on Pan Am 103. Baer told RIA Novosti that a convincing case implicating Libya was still to be made.

“Richard Marquise has taken a moral position on the case,” Baer told RIA Novosti. “I can still be convinced the Libyans did it, but I still need to be convinced of that.”

Robert Black, Professor Emeritus of Scots Law at the University of Edinburgh, has spent more than two decades studying the case.

“I'd be absolutely amazed if the FBI didn't consider the intelligence material, if only to reject it as unreliable or unusable as evidence in judicial proceedings,” Black told RIA Novosti.

“Indeed, there's clear evidence that they did make use of it. A key prosecution witness, Majid Giaka, was a CIA asset and was in a Department of Justice witness protection program,” Black added.

“The FBI falls under the Department of Justice. And Giaka was a crucial witness in the Washington DC grand jury hearing that led to the US indictment against Megrahi and Fhimah,” Black said.

Pan Am Flight 103 was flying from Frankfurt to Detroit via London and New York City when it was blown out of the sky over Scotland by a terrorist bomb that killed 270 people, including 11 on the ground. A three-year-long investigation yielded two Libyan suspects who were handed over to the United [Kingdom] (...) in 1999. In 2003, Gaddafi (...) paid compensation, but said he had never given the order for the attack.

Gleefully sweeping Lockerbie conviction concerns under the carpet

[Exactly five years ago, Scottish lawyers’ magazine The Firm published a column by me entitled The waiting game. It is perhaps worth repeating.]

It took three years for the SCCRC to conclude that Abdelbaset Ali Mohmad al- Megrahi may be the victim of a miscarriage of justice, and a further two years will have passed before his appeal is heard, by which time he may have died. Professor Robert Black QC calls on the Scottish authorities to show some courage before it is too late.

Abdelbaset al-Megrahi should never have been convicted for the Lockerbie atrocity. His conviction, on the evidence led at the trial, was nothing short of astonishing. It constitutes the worst miscarriage of justice perpetrated by a Scottish criminal court since the conviction of Oscar Slater in 1909.

It should never be forgotten that one crucial ground on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice in Megrahi’s case, was its view that no reasonable court could have reached the conclusion that the trial court did, on a matter absolutely central to its reasons for convicting.

The delay in bringing Megrahi’s current appeal to the hearing stage has been scandalous. Had a modicum of urgency been shown, it is entirely conceivable that the appeal could have been over before now and the appellant back with his wife and children in his own country, a free man. The SCCRC had his case under consideration for more than three years before referring it back to the High Court. But the issue of the trial court’s unreasonable findings is a very simple and straightforward one and required virtually no investigation other that a perusal of the relevant portions of the transcript of evidence. If the SCCRC decided early in its deliberations that the case was going to have to be referred back on this ground – and it is difficult to believe that it did not – then delaying taking that step for three years is hard to justify.

Then there is the delay that has occurred after the SCCRC referred the case to the High Court in June 2007, attributable in large part to the Fabian tactics of the Crown and the spurious public interest immunity claims of the UK Foreign Office. Two whole years have passed since the SCCRC reference. Eighteen months have passed since the appellant’s full written grounds of appeal were lodged with the court. And it was only at the end of April 2009 that the first tranche of the appeal was heard. On the leisurely timetable that the appeal court has set, it would require a minor miracle for the proceedings to be concluded by the twenty-first anniversary of the disaster in December 2009.

What makes all of this worse is that the appellant was diagnosed in October 2008 with terminal, late-stage prostate cancer. His condition has recently deteriorated to such an extent that he was unable to attend court for the first tranche of the appeal or, indeed, comfortably to follow the proceedings over the TV link that had been set up.

The recently lodged prisoner transfer application would enable him to return to Libya to spend his remaining weeks with his wife, children, aged mother and siblings, which is – understandably – now his overriding priority. But, for prisoner transfer to be granted by the Scottish Government, Megrahi would have to abandon his appeal. This, clearly, would bring joy to the hearts of the Crown Office and the Scottish Government Justice Department. The manifold concerns over the Lockerbie conviction could be gleefully swept under the carpet and the pretence maintained that the system had worked perfectly and a guilty man had been justly convicted.

However, there is another course of action open to the Scottish Government, if Ministers have the strength of will and character to withstand the pressure of civil servants assiduously punting the prisoner transfer option. That course of action is compassionate release. This would enable Megrahi to be freed on licence and return to Libya. His appeal would run to its natural conclusion. If he died before the appeal court reached its decision, the appeal could be transferred to his executor or any person having a legitimate interest.

The Scottish public interest demands nothing less than that the concerns over Megrahi’s conviction be ventilated fully in court. Compassionate release provides the only mechanism whereby this can be achieved alongside the humanitarian goal of allowing him to die at home. Have Scottish Ministers the wisdom and the courage to embrace it?

[The answer to my question turned out, of course, to be “No” since the Cabinet Secretary for Justice insisted on treating the prisoner transfer and compassionate release applications concurrently and the former required Megrahi to abandon his appeal.]

Sunday, 27 July 2014

"We still don’t know why Pan Am 103 was bombed and who ordered it"

[What follows is an excerpt from a long article about the MH17 disaster in today’s edition of The Sunday Telegraph:]

For the relatives and friends of those who died, including ten British citizens and more than 80 children, the uncertainty and confusion will be deeply upsetting. While the most likely scenario points to the involvement of Russian-backed rebels, the question remains whether Vladimir Putin, Russia’s president, should also be held to account.

Pam Dix, whose brother died in the Lockerbie bombing, fears that victims’ relatives will suffer ongoing anxiety in the search for the truth.

In the case of Lockerbie, in which a Pan Am jet was blown up over the Scottish town, one Libyan intelligence official was jailed for murder but doubts remain 25 years on about the conviction with many blaming Iran rather than Libya for the atrocity.

“The situation for the families from MH17 is agonising – waiting for news of whether they can get the bodies back, for information about what happened, who did it and why,” said Mrs Dix.

“At least after Lockerbie we could travel to the site to see the debris for ourselves, and investigators could have access in order to establish as many facts as they could.

“Twenty-five years later we still don’t know why Pan Am 103 was bombed and who ordered it. For the MH17 families the investigation will be just if not more frustrating. The political situation in Ukraine and Russia means it could be years before any proper information or evidence emerges.”

[A detailed consideration of the available evidence can be found in this article from 21st Century Wire. Its conclusions are very different from The Telegraph’s.]

Saturday, 26 July 2014

Criminal jurisdiction: Pan Am 103 and Malaysia Airlines 17 compared

I am being frequently asked whether the mechanisms that led to a criminal trial following the Pan Am flight 103 disaster are, or could be, applicable if suspects can be identified who are alleged to have participated in the destruction of Malaysia Airlines flight 17. Here is a brief description of how the Lockerbie trial at Camp Zeist came about, followed by some reflections on similarities and differences in the MH17 case.

Pan Am 103 (excerpted from From Lockerbie to Zeist)
“[O]n 14 November 1991 the prosecution authorities in Scotland and the United States simultaneously announced that they had brought criminal charges against two named Libyan nationals who were alleged to be members, and to have been acting throughout as agents, of the Libyan intelligence service. (...)

“On 27 November 1991 the governments of the United Kingdom and the United States each issued a statement calling upon the Libyan government to hand over the two accused to either the Scottish or the American authorities for trial.  Requests for their extradition were transmitted to the government of Libya through diplomatic channels.  No extradition treaties are in force between Libya on the one hand and United Kingdom and the United States on the other.

“Libyan internal law, in common with the laws of many countries in the world, does not permit the extradition of its own nationals for trial overseas.  The government of Libya accordingly contended that the affair should be resolved through the application of the provisions of a 1971 civil aviation Convention concluded in Montreal to which all three relevant governments are signatories.  That Convention provides that a state in whose territory persons accused of terrorist offences against aircraft are resident has a choice aut dedere aut judicare, either to hand over the accused for trial in the courts of the state bringing the accusation or to take the necessary steps to have the accused brought to trial in its own domestic courts.  In purported compliance with the second of these options, the Libyan authorities arrested the two accused and appointed a Supreme Court judge as examining magistrate to consider the evidence and prepare the case against them. (...) [T]he UK and US governments refused to make available to the examining magistrate the evidence that they claimed to have amassed against the accused, who remained under house arrest until they were eventually handed over in April 1999 for trial at Kamp van Zeist.

“The United Nations Security Council (of which the UK and the USA are, of course, permanent members) first became involved in the Lockerbie affair on 21 January 1992 when it passed Resolution 731 strongly deploring the government of Libya's lack of co-operation in the matter and urging it to respond to the British and American requests contained in their statements of 27 November 1991.  This was followed by Security Council Resolution 748 (31 March 1992)  requiring Libya to comply with the requests within a stipulated period of time, failing which a list of sanctions specified in the Resolution would be imposed.  Compliance was not forthcoming and sanctions (including trade and air transport embargos) duly came into effect in April 1992.  The range and application of these sanctions was  extended by a further Resolution passed on 11 November 1993.  The imposition of sanctions under these last two Resolutions was justified by the Security Council by reference to Chapter 7 of the Charter of the United Nations on the basis that Libya's failure to extradite the accused constituted a threat to world peace. (...)

“[I was] asked if I would be prepared to provide (on an unpaid basis) independent advice to the government of Libya on matters of Scottish criminal law,  procedure and evidence with a view (it was hoped) to persuading them that their two citizens would obtain a fair trial if they were to surrender themselves to the Scottish authorities.  This I agreed to do, and submitted material setting out the essentials of Scottish solemn criminal procedure and the various protections embodied in it for accused persons. 

“In the light of this material, it was indicated to me that the Libyan government was satisfied regarding the fairness of a criminal trial in Scotland but that since Libyan law prevented the extradition of nationals for trial overseas, the ultimate decision on surrender for trial would have to be one taken voluntarily by the accused persons themselves, in consultation with their independent legal advisers.  For this purpose a meeting was convened in Tripoli in October 1993 of the international team of lawyers which had already been appointed to represent the accused. (...)

“I am able personally to testify to how much of a surprise and embarrassment it was to the Libyan government when the outcome of the meeting of the defence team was an announcement that the accused were not prepared to surrender themselves for trial in Scotland. (...)

“The Libyan government attitude remained, as it always had been, that they had no constitutional authority to hand their citizens over to the Scottish authorities for trial.  The question of voluntary surrender for trial was one for the accused and their legal advisers, and while the Libyan government would place no obstacles in the path of, and indeed would welcome, such a course of action, there was nothing that it could lawfully do to achieve it. (...)

“Having mulled over the concerns expressed to me by [the Libyan defence lawyer] in October 1993, I returned to Tripoli and on 10 January 1994 presented a letter to him suggesting a means of resolving the impasse created by the insistence of the governments of the United Kingdom and United States that the accused be surrendered for trial in Scotland or America and the adamant refusal of the accused to submit themselves for trial by jury in either of these countries.“

This scheme was accepted in writing by the suspects and their lawyers (and by the Libyan government) within two days.  It remained unacceptable to the United Kingdom and the United States for a further four years and seven months. But eventually, in late August 1998, a neutral venue proposal was advanced by the UK which eventually led to the Lockerbie trial. 

Malaysia Airlines 17
If suspects are identified, the states with the best claims to hosting a criminal trial are Ukraine (the site of the tragedy) and Malaysia (the state of registration of the aircraft). However, since the states of nationality of all those who died in the aircraft are (along with Ukraine and Malaysia) signatories to the 1971 ICAO Montreal Convention any one of them would also have criminal jurisdiction.

As was the case with Libya, however, the laws of Russia and Ukraine also do not permit the extradition of their nationals for trial in a foreign country.  Accordingly, if the suspects were of Russian or Ukrainian nationality and were still physically present there any trial would have to be held in that country under the provisions of Article 5.2 of the 1971 Convention. The United Nations Security Council could, of course, pass a resolution requiring the country holding the suspects to hand them over to another state wishing to try them (as it did in the Lockerbie case) and that would then become an obligation binding in international law. But Russia, as a permanent member of the Security Council, could veto any such resolution and might be expected to do so if the suspects were Russian or members of a group supported by Russia.

A prosecution for war crimes in the International Criminal Court is not a realistic option. Neither Ukraine nor Russia has yet ratified the Rome Statute setting up the ICC.

Proceedings before the International Court of Justice are also not a realistic proposition. This court deals only with disputes between governments. Its jurisdiction could be invoked only if one state claimed that another state (eg Russia or Ukraine) or its officials was the perpetrator of the outrage. And even then, states are not required to submit to the jurisdiction of the ICJ, and neither Russia nor Ukraine has accepted the permanent jurisdiction of the Court.

Friday, 25 July 2014

Bringing to justice perpetrators of crimes against civilian aircraft

[A useful article by Danielle Rajendram on the mechanisms available for bringing to justice the perpetrators of crimes against civilian aircraft appears on the Australian Lowy Institute’s website The Interpreter.  It reads as follows:]

In the days following the shooting down of MH17, the UN and governments around the world have quickly turned to discussing how to bring the perpetrators to justice. While the most likely scenario is that pro-Russian Ukranian rebels shot down the aircraft by mistake, the lack of clarity around the circumstances of the attack continues to complicate any attempts at resolution. Pending a full investigation and more evidence about responsibility, it is difficult to talk of accountability under international law.

Nevertheless, it seems clear that the MH17 incident represents a crime under international law. It's likely that the conflict between the state and rebel forces in Ukraine can be characterised as an armed conflict under international law, and that therefore international laws of war relating to internal conflict apply.

The principle of distinction between civilians and combatants is one of the main tenets of international humanitarian law. In armed conflicts of this nature, making civilians the object of attack is directly prohibited under treaty law, and the prohibition against targeting civilian objects has been found to be a customary international legal norm by the International Committee of the Red Cross (ICRC). 

In accordance with state practice and international jurisprudence, the ICRC has confirmed the existence of a customary international norm requiring all feasible precautions to be taken to avoid injury to civilians and damage to civilian objects. Similarly, parties to a conflict must do everything feasible to verify that targets are military objectives.

It is clear that the perpetrators of the MH17 disaster have violated both treaty law and customary international law in attacking civilians and a civilian object, and failed to take all feasible precautions to ensure the military nature of the target. Holding them accountable for these actions will be another story.

In public debate around the incident, a number of options for legal recourse have been raised.

The first is to prosecute the perpetrators of this crime under the domestic law and courts of one of the injured parties. This was the approach taken for the Lockerbie bombing trial, in which two Libyan nationals were tried under Scottish law in the Netherlands for their involvement in the bombing of Pan Am Flight 103 over Scotland. Ukraine would certainly have jurisdiction over any crime committed in its airspace, and it is likely that injured nations such as the Netherlands, Malaysia, or even Australia may also have jurisdiction to prosecute this crime.

Another is that the perpetrators of the incident be brought before the International Criminal Court (ICC). The ICC is charged with dealing with individuals for the offences of genocide, crimes against humanity, war crimes, and the crime of aggression. As prosecution of crimes against humanity requires acts to be committed as part of a 'widespread and systematic attack,' the most likely avenue for pursuing justice for victims of the MH17 attack in the ICC would be under the Court's jurisdiction over war crimes.

However, assuming that Ukrainian rebels linked to the Donetsk People's Republic were responsible for shooting down MH17, the prospects for having these individuals appear in front of the ICC are limited. To complicate matters further, a number of key figures in the Donetsk People's Republic are known to hold Russian citizenship, and it is alleged that some, including the Donetsk 'prime minister', have connections with Russian intelligence agencies. While both Ukraine and Russia are signatories to the Rome Statute of the ICC, neither has ratified the treaty yet, meaning that although they are required to refrain from  acts which would defeat the object and purpose of the treaty, compelling them to submit their nationals to the jurisdiction of the court would be more complicated.

This then raises the issue of state responsibility. If it is found (and this is a very big 'if') that the attack on MH17 was perpetrated by a Russian national acting in (or even beyond) their capacity as an official of the state, this could give rise to Russian state responsibility under international law. Russia could similarly be implicated if the rebels were found to be acting under Moscow's instructions, direction or control. 

Even if it is found that Russia had no involvement in this specific incident, as may well be the case, there is still the question of Russia's broader involvement in the conflict in Ukraine. Here, the International Court of Justice's (ICJ) ruling on Military and Paramilitary Activities in and against Nicaragua may provide some guidance. In 1986, the ICJ presided over a case brought by Nicaragua against the US over America's support for the contras rebel group against the ruling Marxist-Leninist Sandinistas. By financing, organising, training, supplying and equipping the contras, the US was found to be in violation of the customary international legal norm of non-interference in the internal affairs of states and the prohibition against the use of force. However, the court found that due to a lack of 'effective control' over the rebel contras, the US could not be held accountable for specific breaches of international humanitarian law committed by the group.

Unless Russia is found to have exercised effective control over the Ukrainian rebels, questions would linger over how far Russia could be held accountable. However, depending on the details of Russia's involvement, there may be an international legal case to be made in a forum such as the ICJ about Russia's broader support for Ukranian rebels.

Yet even if Russia was to be implicated, states are not required to submit to the jurisdiction of the ICJ, and neither Russia nor Ukraine have accepted the permanent jurisdiction of the Court. The likelihood that Russia would accept ICJ jurisdiction in the event of a dispute is almost zero. Similarly, by virtue of its permanent membership, it is safe to expect that any UN Security Council resolution directly implicating Russia in any of these scenarios would be swiftly vetoed. And all this is further complicated by the fact that the extradition of Russian nationals, even those who have committed a crime in the territory of a foreign state, is prohibited by Russia's constitution and criminal code. 

None of this undermines the need for a complete investigation of the circumstances leading up to the incident. Australian diplomacy has already proven invaluable in securing a robust UN Security Council resolution recognising the need for a full, thorough and independent investigation. At this point, continued diplomatic, economic and political pressure in enforcing Resolution 2166 may be the best states can do to ensure justice for the victims of MH17.

[An online commentator asked: “Can anyone remember exactly what international justice process the Australian Government urged in the case of Iran Air Flight 655? That would seem an almost exactly analogous case, right down to casualty numbers.

“It will be interesting to see whether the US brings up the option of international courts, but something tells me they will be reluctant to do so.

“Danielle, do you have a view about the international justice process that followed the Flight 655 shootdown?”

The author replied: “There certainly are some similarities between MH17 and Iran Air Flight 655. However, the fact that the civilian airliner was shot down by the US Navy makes the issue of state responsibility far more clear cut in the case of Flight 655.

“Iran did bring a case against the US in the ICJ over this incident, however it was withdrawn once the US agreed to a significant settlement in compensation. Because of this, we don't have access to an international legal judgment for this case which could be applied to the MH17 disaster.”]

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. 

[Another article by Dr Swire can now be found on The Guardian website.]