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.

Pan Am-style tribunal mooted for MH17

[This is the headline over a report published today on the website of Australia’s 9News. It reads in part:]

Nations seeking justice over the downing of Malaysia Airlines flight 17 could form a tribunal similar to that established to prosecute Libyan suspects over the 1998 bombing of a Pan Am flight over Scotland.

Foreign Minister Julie Bishop says nations affected by the MH17 disaster were also considering separate prosecutions.

The Malaysia Airlines flight was flying from Amsterdam to Kuala Lumpur when it crashed over eastern Ukraine in July last year, killing all 298 passengers and crew.

A report by the Dutch led investigation team, set to be published on October 13, is understood to include evidence the plane was brought down by a Russian-made Buk missile fired from separatist territory in eastern Ukraine.

Russia has denied any involvement but in July used its veto power at the UN to block a resolution that would have formed a tribunal to bring the perpetrators to justice.

Ms Bishop, in an interview with The New York Times, said a core group of aggrieved nations had since "narrowed the options".

"This is the ‘what's next’," Ms Bishop said.

The foreign minister said a court, which does not require UN approval, could be established through a treaty by all of the countries that lost citizens and residents.

Ms Bishop said the closest analogy to such jurisdiction was the Scottish panel established in the Netherlands to prosecute Libyan suspects after the explosion of Pan Am Flight 103 over Lockerbie, Scotland, in December 1988, which killed 270 people.

Representatives from some of the affected nations would meet in New York next week to consider their options.

Australia, Belgium, Malaysia, the Netherlands and Ukraine are expected to meet next Tuesday during the annual General Assembly meeting of world leaders for further talks.

"There are a number of permutations, and I can assure you there are a number of international criminal lawyers who are working on this," Ms Bishop said.

[A further report on the Europe Online website can be read here.]

Debate continues over causes of Lockerbie, says air accident investigator

[A report by Mark Hirst published this afternoon on the website of the Russian news agency RIA Novosti contains the following:]

It is too early to draw any definitive conclusions over what caused aircrash of Malaysian flight MH17 in Eastern Ukraine, a former air accident investigator told RIA Novosti.

“It is too early to make any definitive conclusions on what caused the crash of this aircraft. There is a lot of apparent evidences, pointing towards a fairly sophisticated ground-to-air-missile. But as with any disaster like this, it’s requires some very close study to finish up with definitive conclusions,” said Tony Cable, who has been an investigator with the UK Air Accidents Investigation Branch for 32 years and worked on the Lockerbie/Pan Am 103 bombing and the Paris Concorde disaster. (...)

Cable also told RIA Novosti he was surprised commercial flights were being permitted to fly directly over the conflict zone and said the responsibility for that had to rest with the Governments.

“I was surprised that aircraft were being allowed to fly over that area,” Cable said. “As far as I can see the responsibility for that would be government to government. So the Malaysian equivalent of the Foreign and Commonwealth Office giving advice to airlines. I don’t think you can expect the airlines themselves to work out that sort of detail on all the territories they cover.”

Cable worked directly on the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland, and despite the largest criminal investigation ever conducted in the UK and subsequent conviction of Libyan Abdelbaset al Megrahi, speculation still continues to this day over who was actually behind the attack. Cable told RIA Novosti a similar scenario could be repeated with Flight MH17.

“I could see a possibility of debate continuing over the causes of this disaster going on for years, as it has done with Lockerbie,” Cable said. “That is very much in the security and political field and way outside pure accident investigation which can just say what happened. It’s up to other folks to figure out why it happened.”

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.

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.”]

Second Lockerbie air accident investigator speaks about MH17

[Another of the air accident investigators involved at Lockerbie has been talking about the MH17 crash. What follows is excerpted from an article in today’s edition of The Daily Telegraph:]

The painstaking process of investigating the Malaysian Airlines disaster will be made immeasurably more complicated by the crash site’s location in the middle of a country on the brink of civil war, experts said.

The investigation will require scrupulous mapping of debris - to help give a clear picture of how and why the fuselage broke up - followed by recovery of every piece of wreckage and possible forensic examination for traces of explosives.

Peter Claiden, who was a senior engineer in the AAIB investigation into the 1988 Lockerbie disaster, said: “There really needs to be a proper, professional investigation if they want to secure evidence from the wreckage.

“It was difficult enough to achieve at Lockerbie so the problems facing investigators in what is effectively a war zone are very serious indeed.”

Mr Claiden, who was responsible for reconstructing part of Pan Am Flight 103 after it was blown up mid-air above the Scottish town killing all 259 onboard and 11 on the ground, said: “The first problem will be to try to identify how widespread the wreckage is.

“They will need to find the infrastructure to take away the wreckage and store it safely.

“If the aircraft was destroyed by a missile, in an ideal world you must get all that wreckage and reassemble it. Then you might get an idea of the origin of the disaster.”

Air accident investigators must sometimes go to extraordinary lengths to establish the cause of a disaster - as in the case of Lockerbie which became Britain’s largest ever murder inquiry.

Part of the fuselage of Pan Am Boeing 747 - which exploded above Lockerbie in December 1988 - was reconstructed in a hangar in Farnborough, Hants, by the AAIB, where it remained for 24 years while diplomatic and legal machinations wore on.

The reconstruction was essential in proving Flight 103 broke up mid-air after the detonation of Semtex high explosive concealed in a Toshiba radio cassette recorder, which was contained in a Samsonite suitcase in the aircraft’s hold.

Fragments of the items, plus a long-delay electronic timer made by a Swiss firm, MEBO, were presented in the trial of Abdelbaset Ali Mohmed Al Megrahi held under Scottish law in Camp Zeist, the Netherlands, in 2000.

Relatives of MH17 and Lockerbie tragedies brought together

[This is the headline over an article published this afternoon on the website of The Herald newspaper. It reads as follows:]

Families affected by the Lockerbie disaster have met relatives of victims of the MH17 crash to share their experiences.

The Malaysian Airlines Flight MH17 from Amsterdam to Kuala Lampur was brought down in a rebel area of Eastern Ukraine on July 17, 2014. All 283 passengers, including 80 children, were killed in the crash.

The Lockerbie bombing which brought down a trans-Atlantic flight in 1988 is still fresh in the mind of the families who lost loved ones. Pan Am Flight 103 was targeted in a terrorist attack that resulted in 259 passengers being killed as well as 11 people on the ground.

Silene Fredriksz lost her son Bryce and his girlfriend Daisy in the MH17 incident. The young couple was travelling to Bali when the plane came down.

The Fredriksz family met John and Lisa Mosey, whose daughter Helga died in the Lockerbie disaster, for a documentary filmed by BBC Alba's Eorpa which shows how the families are coping with their loss.

Ms Fredriksz said: "It's a nightmare. Every time you close your eyes you see how that airplane exploded with them in it."

During the conversation between the Moseys and the Fredriksz family, they spoke about the importance of forgiveness in helping them to come to terms with what happened.

The Dutch family also met Jim Swire who continues to campaign for what he believes was a wrongful conviction over the Lockerbie bombing. Mr Swire lost his daughter Flora who had been travelling to the USA to spend Christmas with her boyfriend.

He said: "Seeking truth and justice was my way of coping with the loss of that lovely girl of ours - our eldest daughter Flora and to a great extent, I'd felt that I had been doing that for her."

After meeting the other relatives whose family members were killed more than 26 years ago, Ms Fredriksz said: "It was very emotional but very good that we did it... I think we can learn a lot from this. They have a positive outlook and can still enjoy life."

The programme will be shown at 8.30pm [tomorrow, Wednesday] on BBC ALBA Eorpa.

Chomsky on Malaysia Airlines flight 17 and Iran Air flight 655

[Since the early days of the tragedy of Malaysia Airlines flight 17, I have been at pains to suggest that a better comparator than the Pan Am 103 disaster that lazy politicians and journalists were regularly pointing to was the shooting down by the USS Vincennes of Iran Air flight 655 in July 1988. I am delighted that Justice for Megrahi member Noam Chomsky takes the same view.  Here are excerpts from an article published by him on 14 August:]

Almost every day brings news of awful crimes, but some are so heinous, so horrendous and malicious, that they dwarf all else. One of those rare events took place on July 17, when Malaysian Airlines MH17 was shot down in Eastern Ukraine, killing 298 people.

The Guardian of Virtue in the White House denounced it as an “outrage of unspeakable proportions,” which happened “because of Russian support.” His UN Ambassador thundered that “when 298 civilians are killed” in the “horrific downing” of a civilian plane, “we must stop at nothing to determine who is responsible and to bring them to justice.” She also called on Putin to end his shameful efforts to evade his very clear responsibility.

True, the “irritating little man” with the “ratlike face” (Timothy Garton Ash) had called for an independent investigation, but that could only have been because of sanctions from the one country courageous enough to impose them, the United States, while Europeans cower in fear.

On CNN, former US Ambassador to Ukraine William Taylor assured the world that the irritating little man “is clearly responsible ... for the shoot down of this airliner.” For weeks, lead stories reported the anguish of the families, details of the lives of the murdered victims, the international efforts to claim the bodies, the fury over the horrific crime that “stunned the world,” as the press reports daily in grisly detail.

Every literate person, and certainly every editor and commentator, instantly recalled another case when a plane was shot down with comparable loss of life: Iran Air 655 with 290 killed, including 66 children, shot down in Iranian airspace in a clearly identified commercial air route. The crime was not carried out “with US support,” nor has its agent ever been uncertain. It was the guided-missile cruiser USS Vincennes, operating in Iranian waters in the Persian Gulf.

The commander of a nearby US vessel, David Carlson, wrote in the US Naval Proceedings that he “wondered aloud in disbelief” as “The Vincennes announced her intentions” to attack what was clearly a civilian aircraft. He speculated that “Robo Cruiser,” as the Vincennes was called because of its aggressive behavior, “felt a need to prove the viability of Aegis (the sophisticated anti-aircraft system on the cruiser) in the Persian Gulf, and that they hankered for the opportunity to show their stuff.”

Two years later, the commander of the Vincennes and the officer in charge of anti-air warfare were given the Legion of Merit award for “exceptionally meritorious conduct in the performance of outstanding service” and for the “calm and professional atmosphere” during the period of the destruction of the Iranian Airbus. The incident was not mentioned in the award.

President Reagan blamed the Iranians and defended the actions of the warship, which “followed standing orders and widely publicized procedures, firing to protect itself against possible attack.” His successor, Bush I, proclaimed that “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.”

No evasions of responsibility here, unlike the barbarians in the East.

There was little reaction at the time: no outrage, no desperate search for victims, no passionate denunciations of those responsible, no eloquent laments by the US Ambassador to the UN about the “immense and heart-wrenching loss” when the airliner was downed. Iranian condemnations were occasionally noted, and dismissed as “boilerplate attacks on the United States.”

Small wonder, then, that this insignificant earlier event merited only a few scattered and dismissive words in the US media during the vast furor over a real crime, in which the demonic enemy might (or might not) have been indirectly involved.

One exception was in the London Daily Mail, where Dominic Lawson wrote that although “Putin's apologists” might bring up the Iran Air attack, the comparison actually demonstrates our high moral values as contrasted with the miserable Russians, who try to evade their responsibility for MH 17 with lies while Washington at once announced that the US warship had shot down the Iranian aircraft — righteously.

We know why Ukrainians and Russians are in their own countries, but one might ask what exactly the Vincennes was doing in Iranian waters. The answer is simple. It was defending Washington’s great friend Saddam Hussein in his murderous aggression against Iran. For the victims, the shoot-down was no small matter. It was a major factor in Iran’s recognition that it could not fight on any longer, according to historian Dilip Hiro.

It is worth remembering the extent of Washington’s devotion to its friend Saddam. Reagan removed him from the terrorist list so that aid could be sent to expedite his assault on Iran, and later denied his murderous crimes against the Kurds, blocking congressional condemnations. He also accorded Saddam a privilege otherwise granted only to Israel: there was no notable reaction when Iraq attacked the USS Stark with missiles, killing 37 crewmen, much like the case of the USS Liberty, attacked repeatedly by Israeli jets and torpedo ships in 1967, killing 34 crewmen.

Reagan’s successor, Bush I, went on to provide further aid to Saddam, badly needed after the war with Iran that he launched. Bush also invited Iraqi nuclear engineers to come to the US for advanced training in weapons production. In April 1990, Bush dispatched a high-level Senate delegation, led by future Republican presidential candidate Bob Dole, to convey his warm regards to his friend Saddam and to assure him that he should disregard irresponsible criticism from the “haughty and pampered press,” and that such miscreants had been removed from Voice of America. The fawning before Saddam continued until he turned into a new Hitler a few months later by disobeying orders, or perhaps misunderstanding them, and invading Kuwait, with illuminating consequences that are worth reviewing once again though I will leave the matter here.