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.

"Don't expect your quest to carry much weight"

[What follows is excerpted from a report published yesterday on the website of the Chicago Tribune:]

The Rev John Mosey has advice for relatives seeking justice for their loved ones who died aboard Malaysia Airlines Flight 17: Don't expect your quest to carry much weight.

Mosey thought truth would prevail after he lost his teenage daughter Helga, who was a passenger on Pan Am Flight 103 when it exploded over Lockerbie, Scotland, just before Christmas in 1988. But as months turned into years and then into decades, he concluded that geopolitical realities had trumped his family's desire to know what really happened.

The British cleric from Lancaster says he thinks the truth about Lockerbie is still being hidden — and has told families who lost relatives when MH17 was shot down on July 17, 2014, over eastern Ukraine they can expect the same. In face-to-face informal counseling sessions at Lockerbie, Mosey has cautioned MH17 families that the interests of powerful countries like Russia and the United States over the area where the plane was brought down may well eclipse their desire for the straight story.

"We told them they need to really get together as a group, to strengthen each other emotionally and spiritually, and to get hold of a good independent lawyer," Mosey said of his emotional sessions with MH17 families. "I've told them that I hope in their countries the politicians can't control the legal system, which is what happened here (in Britain). That is what they'll be up against."

He's also told them to try and forgive those responsible for the destruction of their families — not just because it's in the Bible, but because you can get "eaten up" by bitterness and anger if you don't.

It's clear after the release Tuesday of a Dutch Safety Board report chronicling how MH17 was brought down by a Soviet-designed Buk missile that MH17 families face many more hurdles before any responsibility for the plane's downing can be clearly established — and compensated.

In the Lockerbie case, it took more than a decade of high-stakes diplomacy before a former Libyan intelligence agent became the only person convicted of downing the New York-bound Boeing 747, killing 259 people on the plane and 11 on the ground. Many victims' families believe the full story has never been made public, however.

The Dutch report on MH-17 — challenged immediately by the Russian government and the Russian state-controlled manufacturer of the missile — concluded that a Buk missile fired from Ukrainian territory controlled by Russian separatists brought down the Boeing 777, killing all 298 people aboard. The report stops short of assigning blame, however, so it does little to advance hopes of any criminal prosecution or civil claims.

That will have to wait for the results of a Dutch criminal investigation scheduled to come to a conclusion in January, said James Healy-Pratt, an aviation lawyer representing 50 MH17 families.

"They are investigating what crimes that have been committed and by whom and will recommend charges that should be brought against individuals," he said.

Then comes the hard part: Finding the suspects, arresting them and actually putting them on trial. Healy-Pratt, who also worked on the Lockerbie cases, said this will take time. (...)

Jim Swire, an English doctor who lost his 23-year-old daughter Flora when Pan Am 103 exploded over Lockerbie, said in his meetings with MH17 families they are asking why Malaysia Airlines flew over the contested zone when some other international airlines diverted their flights.

"I think it is likely to be frustrating for them. Many sounded as if they have lost confidence in their own government," he said. "It will be very slow to resolve because international politics is involved."

At the same time, Swire said, the families who lost loved ones in the skies above Ukraine are still grieving, still looking for ways to cope.

"They are faced with a lifetime of trying to adjust to the person that's missing from their family," he said. "It's a lifetime sentence."

MH17 and Lockerbie: a view from the Netherlands

[MH17: Netherlands wrestles with huge criminal case is the headline over a report published today on the BBC News website.  It reads in part:]

Two-thirds of the 298 people on board Malaysia Airlines Flight MH17 were from the Netherlands. That is why the Dutch have taken the lead in identifying the bodies, trying to establish what caused the crash and running the criminal investigation.

Western governments suspect that the jet, with 298 people on board, was hit by a Russian surface-to-air missile fired by pro-Russian separatists. The rebels and Russia blamed the Ukrainian military for the crash. (...)

This is the biggest criminal investigation ever conducted in the Netherlands.

"Never before have we had a murder case with so many victims," said Wim de Bruin from the Dutch prosecution service, fielding press inquiries from all over the world. Passengers from 10 different countries were on board Flight MH17.

Ten Dutch prosecutors and 200 police officers are involved in gathering and preparing the evidence for a criminal trial.

There are three main questions about the eventual MH17 trial: Where will it be conducted? What crimes will the accused be charged with? How long before we see the suspects in court?

The Dutch prosecutors are still in the initial stages of the criminal investigation, but they have already dismissed speculation that the trial could be held at the International Criminal Court in The Hague.

The ICC only takes cases if countries are unable or unwilling to prosecute. The Dutch are willing and able.

Under the current plan, the suspects would be extradited to face trial at the District Court in The Hague. But extradition would require the host country's co-operation, once the suspects are identified.

Wim de Bruin says they are considering "several grounds and possibilities" concerning the charges.

"Of course murder, but we also have the crime of 'wrecking an airplane' and we could use international criminal law - that would mean possible charges of war crimes, torture and genocide." [RB: I find it difficult to envisage how torture and genocide charges could arise in this case.]

It is impossible, they say, to give a time frame. The only reference they have is Lockerbie. Pan Am Flight 103 was blown up over Scotland in 1988, killing 259 people on board and 11 others on the ground. In 2001, a Libyan intelligence officer was jailed for the bombing.

Yet questions remain about the bomb plot - not only the perpetrators but also the motives. In 2003 Col Muammar Gaddafi - later killed in the Arab Spring - accepted responsibility and paid compensation to the victims' families. [RB: The scope of Libya’s acknowledgment was limited to acceptance of “responsibility for the actions of its officials”.]

"With Lockerbie it took three years for the investigation and then another seven for the trial," Mr De Bruin recalls. "And that was with a plane that crashed in a peaceful place. With MH17 the case is more complicated."

[My own assessment of the jurisdictional questions that arise out of MH17 and how they compare with those that arose out of Pan Am 103 can be read here.]

Malaysia Airlines flight 17 and Pan Am flight 103 contrasted

[The following are excerpts from a long report published today on the World Socialist Web Site:]

The Dutch Safety Board’s (DSB’s) preliminary report into the crash of Malaysia Airlines Flight 17 (MH17) is being portrayed by imperialist governments and their media spokesmen as confirmation that anti-Kiev rebels in eastern Ukraine shot the plane down with a Russian-supplied Buk surface-to-air missile.

While claims of indirect Russian responsibility for the destruction of MH17 are at the heart of the US-NATO propaganda over Ukraine, the report says nothing of the sort. In fact, it does not even state that the aircraft was shot down. MH17 crashed on July 17, in the war zone of eastern Ukraine. All 298 passengers and crew members lost their lives.

The DSB’s report states that, in accordance with the stated “sole objective” of “the prevention of similar accidents and incidents,” it does not “apportion blame or liability in respect of any party”—something that the capitalist media downplays or ignores.

The only basis on which the media can again repeat their assertions that pro-Russian separatists were responsible is the report’s statement that “The damage observed in the forward section of the aircraft appears to indicate that the aircraft was penetrated by a large number of high-energy objects from outside the aircraft” (emphasis added).

But the report never once identifies what it means by “high-energy objects.” It also claims that, even though enough of the wreckage was recovered to confirm that the aircraft appears to have been particularly badly hit above the level of the cockpit floor, DSB investigators supposedly failed to recover or study any of the objects that penetrated the plane.

The report as issued is equally compatible with radar and satellite data presented July 21 by the Russian military, indicating that a Ukrainian SU-25 fighter jet was in the immediate vicinity and ascending towards MH17 as it was shot down. Missiles and machinegun rounds fired by an SU-25 are also “high-energy objects.” This possibility has not been addressed, let alone refuted by Kiev, Washington or anyone else involved in the investigation.

On August 9 [RB: the correct date is August 7], the Malaysian New Straits Times published an article effectively charging the Kiev regime with shooting down MH17. It stated that evidence from the crash site indicated that the plane was shot down by a Ukrainian fighter with a missile followed by heavy machine gun fire. The report was subsequently ignored by the world’s media. (...)

The DSB does not address the absence of any satellite imagery or radar data, or any other evidence supplied by US intelligence agencies, which operate the most powerful global surveillance network. It is implausible, to say the least, to imagine that Washington’s vast apparatus was paying no attention to the war zone of eastern Ukraine, which is also a regular flight path for many commercial airline flights. (...)

In sharp contrast, following the bombing of Pan Am Flight 103 over Lockerbie, Scotland, in 1988, photographs of the area taken by a French satellite were delivered to the investigators within hours. The US Department of Defence and NASA also provided the investigation with high-resolution photographs from spy satellites.

Despite Russia continually requesting that the US administration supply the investigation with the images and data it obviously possesses relating to the MH17 crash, it has refused to do so.

[Further posts on this blog about MH17 as compared with, or contrasted to, Pan Am 103 can be found here.]

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.”]

The question of guilt has never been resolved

[What follows are excerpts from an article headlined Wat kunnen resten MH17 vertellen? (“What can the remains of MH17 disclose?”) published yesterday on the Dutch website Nieuwsuur website:]

Bijna vier maanden na de ramp liggen de brokstukken van rampvlucht MH17 nog verspreid op de crashsite in Oost-Oekraïne. De Onderzoeksraad voor Veiligheid wil op korte termijn met de berging beginnen en in Nederland een reconstructie maken van het vliegtuigwrak. Wat kan zo'n reconstructie zeggen over de oorzaak? (...)

Het is de vraag of een reconstructie nieuw licht kan schijnen op de oorzaak van het neerstorten van MH17. In het verleden zijn twee keer eerder reconstructies van vliegrampen gemaakt: de Lockerbie-ramp en het ongeluk met TWA-vlucht 800. Die konden in beide gevallen uitsluitsel geven over de oorzaak.

Bij het Schotse plaatsje Lockerbie kwam in 1988 een toestel van de Amerikaanse luchtvaartmaatschappij PanAm neer. Uit de reconstructie van het ongeluk bleek dat een bom in het bagageruim de oorzaak van de crash was. Maar de schuldvraag is nooit opgelost. De enige die voor de aanslag is veroordeeld is de Libische oud-spion Megrahi. Hij had geregeld dat er een koffer met een bom aan boord kwam.

Almost four months after the disaster the debris of disaster flight MH17 is still scattered at the crash site in eastern Ukraine. The [Dutch] Investigation Safety Board wants to start the recovery in the short term and make a reconstruction in the Netherlands of the wreck. What can such a reconstruction say about the cause? (...)

The question is whether a reconstruction can shed new light on the cause of the crash of MH17. Twice in the past reconstructions of aviation disasters have been made: the Lockerbie disaster and the accident involving TWA flight 800. In both cases they provided information about the cause.

In the Scottish town of Lockerbie a plane of the US airline Pan Am came down in 1988. The reconstruction of the accident revealed that a bomb in the luggage hold was the cause of the crash. But the question of guilt has never been resolved. The only person convicted of the attack was the Libyan former spy Megrahi. He had arranged that a suitcase with a bomb was on board.

[RB: It is interesting that the article states that the question of guilt has never been resolved. Perhaps Justice for Megrahi is getting somewhere, internationally at least.]

Lockerbie experience is no model for the effective prosecution of MH17 bombers

[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.

In 2015, two new suspects were detained in Libya in relation to the bombing.

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.