[This is the title of an article by Dr Amy Maguire of the Law School of the University of Newcastle, Australia, that appears today on The Conversation website. It reads in part:]
[Australian Foreign Minister Julie] Bishop has recently suggested that a Lockerbie-style tribunal could be established as an alternative forum for prosecutions of those responsible for the downing of MH17.
On December 21, 1988, a Pan Am jet exploded over the Scottish town of Lockerbie. All 259 people on board and 11 people on the ground were killed. An investigation revealed the explosion was caused by a bomb planted on the plane.
According to Bishop, a Lockerbie-style prosecution would involve:
… a tribunal that’s set up by the international community.
But the Lockerbie trial was a prosecution under Scots law, with some international collaboration to establish a special venue for the court. Two Libyan nationals – Abdelbaset al-Megrahi and Lamin Khalifah Fhimah – were accused of murder and related crimes under Scottish law. Special arrangements were required for their prosecution because Libyan President Muammar Gaddafi refused to extradite them to Scotland.
A treaty between the UK and the Netherlands established a site for the Scottish High Court of Justiciary to sit on the neutral territory of the Netherlands. Eleven years on from the bombing, a trial was undertaken with three Scottish judges presiding.
After a lengthy trial, Fhimah was acquitted, as the judges were not satisfied that the available evidence supported his conviction.
However, the judges accepted the evidence of a Maltese shop owner that Megrahi resembled a man who bought clothing in his shop, remnants of which were found surrounding the bomb. They found that Megrahi was an agent of the Libyan intelligence service. On the basis of this and other circumstantial evidence, the court decided that Megrahi was guilty beyond reasonable doubt.
A court of five Scottish judges later rejected Megrahi’s appeal. He was sentenced to life imprisonment in Scotland in 2001. He was returned to Libya in 2009 on compassionate grounds, suffering prostate cancer, and died in 2012.
A weak example for international justice
A 2007 Scottish Criminal Cases Review Commission report cast doubt on the fairness of the trial and the reliability of Megrahi’s conviction.
Also, the UN observer criticised the Scottish court for relying on unreliable witnesses (some of whom received large sums of money for their testimony), evidence that had likely been tampered with, and dubious expert opinions.
The chief architect of the scheme to permit the Scottish trial on Dutch territory, Scottish law professor Robert Black, has argued since the first trial that Megrahi’s conviction was a miscarriage of justice.
I am satisfied that not only was there a wrongful conviction, but the victim of it was an innocent man. Lawyers, and I hope others, will appreciate this distinction.
The Lockerbie trial illustrates several challenges that are likely to arise again in the pursuit of justice for those killed on MH17.
A central problem, as Bishop recognises, will involve the extradition of accused persons from Russia, Ukraine or elsewhere. Fair trials require that accused persons stand before the court. Trials in absentia would be purely for show and of no greater justice value than investigators’ reports.
In the Lockerbie case, the two accused were eventually extradited by Libya to be tried in the special Scottish court in the Netherlands. This agreement was reached in the context of the Security Council having called on Libya to comply with demands for justice from the UK, US and France, and imposed economic sanctions on Libya.
Should the MH17 accused be within Russian jurisdiction, it is highly unlikely Russia will surrender them for trial elsewhere. The Security Council will lack the capacity to impose the same pressure as was brought to bear on Libya due to Russia’s veto power.
Even if one or a few people are brought before a court in relation to MH17, there is a real question about whether their trial could generate a sense of justice. In the Lockerbie case, only one person was convicted and – 28 years on – questions persist over his guilt. (...)
Another challenge for any special court will be the complexity of the questions of fact and law that arise. In the Lockerbie case, Megrahi was convicted on the basis of purely circumstantial evidence and the court’s confidence that the evidence added up to an inevitable conclusion of guilt. This has made the judgment more vulnerable to question.
Russia and Russian-based separatists in Ukraine have been accused of destroying evidence at the MH17 crash site. At any rate, investigators lacked full and speedy access to the site; this has seriously weakened the evidence base available to a court.
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