Lockerbie: none of the evidence points to Libya

[The following are excerpts from Peter Hitchens’s column in today’s edition of The Mail on Sunday:]

One thing we should have learned in the past 100 years is  that war is hell. We might also have noticed that, once begun, war is hard  to stop and often takes shocking turns.

So those who began the current war in Ukraine – the direct cause of the frightful murder of so many innocents on Flight MH17 on Thursday – really have no excuse.

There is no doubt about who they were. In any war, the aggressor is the one who makes the first move into neutral or disputed territory.

And that aggressor was the European Union, which rivals China as the world’s most expansionist power, swallowing countries the way performing seals swallow fish (16 gulped down since 1995).

Ignoring repeated and increasingly urgent warnings from Moscow, the EU – backed by the USA – sought to bring Ukraine into its orbit. It did so through violence and illegality, an armed mob and the overthrow of an elected president.

I warned then that this would lead to terrible conflict. I wrote in March: ‘Having raised hopes that we cannot fulfil, we have awakened the ancient passions of this cruel part of the world – and who knows where our vainglorious folly will now lead?’

Now we see. (...)

Powerful weapons make it all too easy for people to do stupid, frightful things. Wars make such things hugely more likely to happen. (...)

In July 1988, highly trained US Navy experts aboard the cruiser Vincennes, using  ultra-modern equipment, moronically mistook an Iranian Airbus, Iran Air Flight 655, for an F-14 Tomcat warplane. They shot the airliner out of the sky, killing 290 innocent people, including 66 children.

All kinds of official untruths were told at the time to excuse this. In October 2001, bungling Ukrainian servicemen on exercise were the main suspects for the destruction of Siberia Airlines Flight 1812 over the Black Sea. Whoever did it, they killed 78 passengers and crew en route from Israel to Novosibirsk – though Ukraine has never officially admitted guilt.

Complex quarrels about blame for such horrors are often never resolved. I am among many who do not believe that Libya had anything to do with the mass murder of those aboard Pan Am 103 over Lockerbie in December 1988, very likely an Iranian-backed retaliation for the Airbus tragedy. All the evidence points to a terror group operating from Syrian-controlled territory, and none points to Libya.  

But at the time of the prosecution, we were trying to make friends with Syria, which has since gone back near the top of our enemies list but may soon be our ally again, against the fanatics of Isis. Confused? You should be.

So, let us just mourn the dead and comfort the bereaved, and regret human folly and the wickedness of war. Let us not allow this miserable event to be fanned into a new war. That is what we did almost 100 years ago, and it is about time we learned something from that.

Crash scene integrity: Ukraine and Lockerbie

Amidst all of the reports about the MH17 crash scene being “severely compromised” (of which this is a typical example) so rendering investigation of the circumstances of the disaster more difficult, it is perhaps worth remembering that serious claims have been made by reputable sources about interference with the integrity of the Pan Am 103 crash site at Lockerbie from the evening of 21 December 1988 onwards. This issue is dealt with in Dr Ludwig de Braeckeleer’s essay Suspicious Activities at Lockerbie Crash Site.

A controversial conviction

[A letter from Bob Taylor in today’s edition of The Scotsman reads as follows:]

Is it right at this stage to draw any parallel between the
 controversy over the Lockerbie bombing and the disaster involving MH17?

Dr Jim Swire has drawn attention, 
correctly, to the anguish of the victims’ relatives, and to key questions over the Malaysian airliner’s flight path, and the source of the lethal rocket, if that is the real cause of the carnage.

But we should heed, too, the views of Keir Giles. His main point is that investigation of the detail of that carnage is being hampered by local activity of secessionist gunmen and untrained volunteers.

The Lockerbie probe, though by no means flawless, was 
conducted by the appropriate
 police authority, together with intelligence services.

The area around which it
 happened was not, as in the Ukraine, the subject of national and international controversy. A task of investigation which looked utterly formidable was completed and a case made for prosecution of individuals.

We now know that perhaps all the evidence was not looked at, that the Al-Megrahi conviction was controversial, perhaps others were involved, and that even they may be a convenient scapegoat.

It remains the case that a coherent investigation took place as did a trial under Scots law, albeit outwith Scottish territory.

A miscarriage of justice may have taken place, but at least a semblance of legal procedure was followed.

The tragedy in eastern Ukraine is that lawlessness threatens to prevail over an international outrage. Unless pressure on Vladimir Putin’s regime to act 
continues, the reputation of
 international justice and diplomacy will be destroyed. 

[RB: There are credible reports that the integrity of the Pan Am 103 crash scene at Lockerbie was not scrupulously maintained.]

Putin crosses the 'Lockerbie line'

[This is the headline over an article by Brian Whitmore published yesterday on the Radio Free Europe Radio Liberty website. It reads in part:]

The Kremlin released an odd video statement early on July 21 in which a visibly haggard Vladimir Putin blamed Kyiv for the disaster, called for negotiations to end the conflict in eastern Ukraine, and warned that "nobody has the right to use this tragedy to achieve selfish political ends."  (...)

"Although the Crimean and Ukrainian operations have shown how effective even seemingly crude information warfare can be in distracting, bamboozling, and blunting Western concern, it is hard to see how Moscow can spin this one away," Mark Galeotti, an expert on Russia's security services at New York University and co-host of the Power Vertical Podcast, wrote in Foreign Policy.

On last week's podcast, a recurring theme was that Putin had crossed something that Kirill Kobrin, co-editor of the Moscow-based history magazine Neprikosnovenny zapas, called "the Lockerbie line," in reference to the terrorist attack that downed Pan American Flight 103 in 1988.

That is, that, like Muammar Qaddafi then, the Russian president may have crossed the psychological point where it becomes very difficult -- if not impossible -- to even pretend that he is a respectable leader anymore.

"It is going to be very difficult not to regard Putin's Russia as essentially an aggressive, subversive, and destabilizing nation after this. This one plane becomes symbolic of so much more," Galeotti said on the podcast.

"I do think that Russia's position in the world will have changed irrevocably. I do think people will be thinking of Putin and the Putin regime as a problem. And the inclination is going to be: What do we do about this problem?"

Others, like Washington Post columnist and author Anne Applebaum, have picked up on the Lockerbie metaphor.

"When the Libyan government brought down Pan Am Flight 103 over Lockerbie, Scotland, in 1988, the West closed ranks and isolated the Libyan regime," Applebaum wrote in a recent column.

[A much closer analogy than Lockerbie to the MH17 tragedy is, of course, the shooting down of Iran Air flight 655 by the USS Vincennes on 3 July 1988. But for some reason American commentators never seem to mention that incident (and mainstream British and European commentators very rarely do, either). Funny, that.]

Responsibility for MH17 crash investigation under UN Security Council Resolution

The following was an accurate statement of the legal position yesterday morning regarding responsibility for investigating the circumstances of the MH17 disaster in Ukraine:

‘European investigators, who unexpectedly arrived on the Malaysian aircraft crash site in eastern Ukraine, had “no legal locus” to participate in the investigation without Kiev's invite, Professor Robert Black of the University of Edinburgh, known as the “architect of the Lockerbie trial”, told RIA Novosti on Monday.

‘“If the nation decides that they don’t have the necessary facilities or investigative infrastructure, then they can call on another state or states to lend them the expertise,” said Black, a globally recognized legal expert, who specialized in examining the judicial issues surrounding the 1988 bombing of Pan Am Flight 103 over Lockerbie.

‘“Air investigation teams from Europe simply arrived at the scene and are now complaining that they weren’t immediately allowed free access to the site,” the lawyer said.

‘“It is understandable that they should be annoyed, but they have no legal locus to be there whatsoever unless and until they are invited to participate by the state which has the legal responsibility to investigate,” Black added.

‘“The law is that the responsibility to investigate is that of the state where the plane came down. But given the circumstances in that part of Ukraine at the moment, it is a difficult question to answer. Who is the state and who is the government of that state?” the expert said.

‘Black agreed it was important for the site to be secured and called for proper international investigation into the circumstances of the crash.’

Later that day, the United Nations Security Council passed Resolution 2166 (2014). This now provides (and is binding in international law):

“The Security Council (...)

6. Demands that the armed groups in control of the crash site and the surrounding area refrain from any actions that may compromise the integrity of the crash site, including by refraining from destroying, moving, or disturbing wreckage, equipment, debris, personal belongings, or remains, and immediately provide safe, secure, full and unrestricted access to the site and surrounding area for the appropriate investigating authorities, the OSCE Special Monitoring Mission and representatives of other relevant international organizations according to ICAO and other established procedures;

7. Demands that all military activities, including by armed groups, be immediately ceased in the immediate area surrounding the crash site to allow for security and safety of the international investigation;

8. Insists on the dignified, respectful and professional treatment and recovery of the bodies of the victims, and calls upon all parties to ensure that this happens with immediate effect; 

9. Calls on all States and actors in the region to cooperate fully in relation to the international investigation of the incident, including with respect to immediate and unrestricted access to the crash site as referred to in paragraph 6 (...)  

11. Demands that those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability”.

OSCE = Organization for Security and Co-operation in Europe

ICAO = International Civil Aviation Organization

Lockerbie-style tribunal for MH17 prosecutions?

[What follows is excerpted from a report published today on the Australian ABC News website:]

Foreign Minister Julie Bishop says a Lockerbie-style tribunal should be considered to prosecute those behind the downing of Malaysia Airlines flight MH17 in Ukraine.

Ms Bishop has met with Dutch authorities who have canvassed the option to bring those behind the 2014 disaster to justice, after a report found a Russian-made missile was used to shoot down the plane.

Russia has indicated it would use its veto powers to prevent the United Nations Security Council (UNSC) from investigating the circumstances behind the crash.

Ms Bishop said, while she would not rule out attempting to launch a fresh investigation in the UNSC, a number of alternative options were available.

"Or there can be domestic prosecutions in, say, the Netherlands — as long as they had the powers of extradition and the like.

"I think a domestic-style tribunal would possibly be easier to establish but you'd have to make sure that it had all the necessary powers.

"For example, extradition to be able to absolutely hold those responsible for this atrocity to account."

Ms Bishop met with other countries involved in the joint investigation in New York to discuss the next step in the prosecution of those who fired the missile. (...)

Investigators behind last week's report are unable to file charges over the deaths of the 298 passengers and crew who were on board the aircraft.

But the report identified 100 people who were described as being persons of interest in the case.

The Netherlands has discussed the prospect of an international tribunal, similar to the one set up following the 1988 Lockerbie bombing, when Pan Am Flight 103 was blown up while flying over Scotland.

A special Scottish court was set up in the Netherlands to facilitate the trial of two Libyans charged over the disaster. (...)

A special court would not need UN approval and would be established through a treaty with all the countries that lost citizens and residents in the 2014 disaster.

[RB: The Lockerbie court was a Scottish court, not an international tribunal though, of course, an international agreement (between the United Kingdom and the Netherlands) was necessary for it to be established; and the UN Security Council instructed all member states of the UN to cooperate with it.]

Dutch officials consider Lockerbie analogy for MH17 trial

[What follows is excerpted from a Reuters news agency report published yesterday:]

The Netherlands is discussing with its allies an international tribunal to prosecute those suspected of downing a Malaysian airliner over rebel-held eastern Ukraine last year, sources familiar with the discussions have told Reuters.

The chance of a successful prosecution is considered slim at best but the Dutch still hope that, by pushing for a UN-style court with the backing of Western allies, they could pressure Russia, whose role in the process is critical, into cooperating.

Of the 298 dead passengers and crew on Malaysia Airlines flight MH17, two-thirds were Dutch. With the anniversary of the disaster looming on July 17, the government is under intense pressure to act from a public who mostly believe Russia either shot down the plane or supplied the rocket to those who did.

Two sources in the Netherlands, who spoke on condition of anonymity because of the sensitivity of the issue, said the legal and political complexities of the case had persuaded it to focus on creating an international court backed by the UN Security Council, once a multinational investigation finishes and suspects are named. (...)

With relations between Russia and the West at their lowest ebb since the Cold War, Moscow might have little interest in cooperating with any trial held in the West.

But since an international court would require backing from the UN Security Council, Russia would be forced either to acquiesce or to use its veto and risk being seen as the main obstacle to justice in a mass killing of civilians.

If Moscow refused to back a tribunal, the Netherlands could push for further economic sanctions beyond those already imposed by the European Union and the United States over Russia's annexation of Crimea from Ukraine last year and its support for the rebels, one diplomatic source said. (...)

The sources said the Dutch would like the court to be based in the Netherlands, although details of which law would apply and how the suspects would be captured and tried had yet to be worked out.

The closest analogy might be the 1988 Lockerbie bombing, when Pan Am flight 103 was blown out of the sky over Scotland, killing all 243 people onboard.

Two Libyan secret service agents were handed over by Libya's late leader Muammar Gaddafi under the pressure of broad economic sanctions. They were put on trial in the Netherlands under Scottish law, and one was convicted.

Legal responsibility for aircraft accident investigation

[I was interviewed this morning by Mark Hirst for RIA Novosti. Here is his report:]

European investigators, who unexpectedly arrived on the Malaysian aircraft crash site in eastern Ukraine, had “no legal locus” to participate in the investigation without Kiev's invite, Professor Robert Black of the University of Edinburgh, known as the “architect of the Lockerbie trial”, told RIA Novosti on Monday.

“If the nation decides that they don’t have the necessary facilities or investigative infrastructure, then they can call on another state or states to lend them the expertise,” said Black, a globally recognized legal expert, who specialized in examining the judicial issues surrounding the 1988 bombing of Pan Am Flight 103 over Lockerbie.

“Air investigation teams from Europe simply arrived at the scene and are now complaining that they weren’t immediately allowed free access to the site,” the lawyer said.

“It is understandable that they should be annoyed, but they have no legal locus to be there whatsoever unless and until they are invited to participate by the state which has the legal responsibility to investigate,” Black added.

“The law is that the responsibility to investigate is that of the state where the plane came down. But given the circumstances in that part of Ukraine at the moment, it is a difficult question to answer. Who is the state and who is the government of that state?” the expert said.

Black agreed it was important for the site to be secured and called for proper international investigation into the circumstances of the crash.

Malaysia Airlines' Flight MH17 en route from Amsterdam to Kuala Lumpur crashed on July 17 near Donetsk in eastern Ukraine, causing death of 283 passengers and 15 crew members.

Ukrainian government and militia have been trading blame for the alleged downing of the plane, with independence supporters saying they lacked the technology to shoot down a target flying at altitude of 10 kilometers (6.2 miles).

Commenting on the crash, Russian President Vladimir Putin said it was vital to abstain from hasty conclusions on the case before the international investigation was over.

The UN Security Council late on Sunday night completed the text of its resolution regarding the Malaysia Airlines crash. Russia introduced its own draft resolution to the UN Security Council, calling for an impartial investigation into the circumstances of the crash.

Many relatives convinced that man eventually convicted was innocent

[What follows is an excerpt from a news agency report headed Where are the bodies, MH17 families ask published yesterday evening by Reuters:]

[O]n July 17 … the flight from Amsterdam to Kuala Lumpur was shot out of the sky.

All 298 passengers and crew - two-thirds of them Dutch – were killed. (...)

The Dutch are conducting two parallel investigations: one into the cause of the crash, and a criminal inquiry - the single largest in Dutch history. There are now 100 Dutch law enforcement officials involved in that case, including 10 prosecutors, said spokesman Wim de Bruin.

But no forensic investigators have made it to the crash site. That makes the recovery of evidence nearly impossible. (...)

The challenges facing the Dutch investigators are extreme.

The closest comparison is the bombing of Pan Am flight 103, over Lockerbie, Scotland, in 1988, which killed 254 people. [RB: actually 270] The investigation, conducted in peacetime Scotland, took three years, during which 4 million pieces of evidence were recovered from a crash site spanning 2,000 sq km (770 sq miles). It took a decade to go to trial.

"We searched rivers, lochs and reservoirs and recovered many personal effects, pieces of aircraft and debris, as well as other much more difficult 'recoveries' I'd rather not go into here," said one police diver involved in the search.

Even then, the trial of two Libyan intelligence agents, at a specially constituted Scottish court in a disused Dutch military base, secured only one conviction. To this day, many relatives are convinced that the man eventually convicted was innocent.