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.

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