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.

Lockerbie investigators "hand in hand ... praying for justice"

[Various Dutch newspapers are today running an article headlined De lessen van Lockerbie (The lessons of Lockerbie). What follows are excerpts taken from Dagblad van het Noorden, translated courtesy of Google Translate, as modified by me via my knowledge of Afrikaans. The original Dutch text is appended.]

The Pan Am flight 103 disaster on December 21, 1988 sowed death and destruction in the small village of Lockerbie. Exactly 38 minutes after the plane takes off from London Heathrow, at a height of 10 kilometers, something goes terribly wrong. The ‘Clipper Maid Of The Seas' explodes, falls into thousands of pieces, and destroys much of Lockerbie. Eleven residents and 259 passengers are killed.

Because there were 189 Americans on board, the FBI is also involved in the investigation. The leader of the team was Richard Marquise. With pain in his heart, he looks at what is happening in Ukraine.  “We both have many compatriots lost in a foreign country. But we had one great advantage, and that was that the Scottish police did ​​a very good job. Directly after the disaster there were thousands of police and soldiers on hand to help search for victims and wreckage."

Marquise calls the war in Ukraine a nightmare for the Dutch investigators who ultimately have to find the perpetrators. There are, according to him, so many people who have an interest in ensuring that there is no evidence to be found. International observers have already indications that wreckage has been tampered with. “It is hoped that these were people who did not know exactly where to go looking. So perhaps forensic experts with all their advanced techniques can still find something useful."

Yet there is one bright spot, according to Marquise. The Netherlands already knows that Malaysia Airlines flight MH17 was probably downed with a rocket.  “The first few days we still had no idea why the Pan Am aircraft had crashed.” (...)

A piece of wreckage, however small, can be invaluable, as became clear in the investigation into the Lockerbie disaster. Investigators found a tiny chip from the timer that activated the bomb in a suitcase. By means of this, investigators eventually exposed the Libyan intelligence agent Abdelbaset al-Megrahi. He smuggled the bomb suitcase on board the Pan Am aircraft. But in the absence of this kind of hard evidence it will be a very tough job to identify the perpetrators, predicts Marquise. “Unless someone comes forward who says ‘It was him.’”

What Marquise would like to see is a “golden informant” such as they had in the Lockerbie investigation. (...) [RB: Presumably this is a reference to Abdul Majid Giaka. If that is so, it is interesting that he should still today be being referred to as “golden” after his performance at Zeist.]

If the Dutch - despite all the difficulties - find the perpetrators then a suspect can be arrested even after years of waiting, as the Lockerbie investigators have cause to know. Al-Megrahi, the man who placed the bomb suitcase in the Pan Am aircraft, was a Libyan. That country already had a reputation as a rogue state that was not cooperative. “Gaddafi simply denied that it had happened,” says Marquise.

Only after years of economic sanctions did Libyan leader Muammar Gaddafi give in and two suspects were extradited in 1999. One of them was acquitted. Al-Megrahi was imprisoned in 2001 for life. So there was finally justice, thirteen years after the disaster.

Marquise remembers that day like yesterday. He was with the Scottish detectives at Camp Zeist, when the judges delivered judgment. Hand in hand they listened to the verdict, praying for justice. “All those years of hard work had led us to this man. But only when the judge pronounced the word "guilty", were we sure: ‘we got him’.”

De ramp met Pan Am-vlucht 103 zaait op 21 december 1988 dood en verderf in het kleine dorpje Lockerbie. Precies 38 minuten nadat het toestel is opstegen vanaf Londen Heathrow, gaat het op 10 kilometer hoogte vreselijk mis. De ‘Clipper Maid Of The Seas' explodeert, valt in duizenden stukjes uiteen en vermorzelt een groot deel van Lockerbie. Elf bewoners en 259 passagiers komen om het leven.

Omdat er 189 Amerikanen aan boord waren, wordt ook de FBI bij het onderzoek betrokken. Leider van het team was destijds Richard Marquise. Met pijn in zijn hart kijkt hij naar wat er nu in Oekraïne gebeurt. ,,Wij hebben beide veel landgenoten verloren in een vreemd land. Maar wij hadden één groot voordeel en dat was dat de Schotse politie heel goed werk verrichtte. Na de ramp waren er direct duizenden agenten en militairen op de been om te helpen zoeken naar slachtoffers en wrakstukken.''

De oorlog in Oekraïne noemt Marquise een nachtmerrie voor de Nederlandse onderzoekers die uiteindelijk de daders moeten zien te vinden. Er zijn volgens hem zo veel mensen die er belang bij hebben dat er helemaal geen bewijsstukken worden gevonden. Internationale waarnemers hebben al aanwijzingen dat er met de wrakstukken zou zijn gerommeld. ,,Het is te hopen dat de mensen die dat hebben gedaan niet precies wisten waar ze naar moesten zoeken. Zo kunnen forensische experts met al hun geavanceerde technieken misschien toch nog iets bruikbaars vinden.''

Toch is er volgens Marquise een lichtpuntje. Nederland weet al dat vlucht MH17 van Malaysia Airlines hoogstwaarschijnlijk naar beneden is gehaald met een raket. ,,Wij hadden de eerste dagen nog helemaal geen idee waarom het Pan Am-toestel was neergestort.'' (...)

Een wrakstuk, hoe klein ook, kan goud waard zijn, zo is duidelijk geworden in het onderzoek naar de ramp in Lockerbie. De minuscule chip die onderzoekers vinden, blijkt een deel van de timer waarmee de bom in een koffer is geactiveerd. Rechercheurs ontmaskeren hiermee uiteindelijk de Libische geheim agent Abdelbaset al-Megrahi. Hij heeft de bomkoffer aan boord van het Pan Am-toestel gesmokkeld. Maar als dit soort harde bewijzen uitblijven, wordt het achterhalen van de daders een heel zware klus, voorspelt Marquise. ,,Of er moet iemand opstaan die zegt: hij was het.''

Wat had Marquise graag gezien dat er ook in het Lockerbie-onderzoek een gouden tipgever was opgestaan. (...)

Slagen de Nederlanders er – ondanks alle moeilijkheden – toch in de daders te vinden, dan kan het daadwerkelijk arresteren van een verdachte nog jaren op zich laten wachten, weten de onderzoekers van Lockerbie. Al-Megrahi, de man die de bomkoffer in het Pan Am-toestel plaatste, was een Libiër. Dat land had toen al de reputatie van een schurkenstaat waarmee niet viel samen te werken. ,,Gaddafi ontkende simpelweg dat het was gebeurd'', zegt Marquise.

Pas na jarenlange economische sancties zwichtte de Libische leider Muammar Gaddafi en werden in 1999 twee verdachten uitgeleverd. Een van hen werd vrijgesproken. Al-Megrahi kreeg in 2001 levenslang. Zo was er dertien jaar na de ramp eindelijk gerechtigheid.

Marquise herinnert zich die dag nog als gisteren. Hij zat samen met de Schotse rechercheurs in Kamp Zeist, waar de rechters het oordeel velden. Hand in hand luisterden ze naar de uitspraak, biddend voor gerechtigheid. ,,Al die jaren hard werken hadden ons naar deze man geleid. Maar pas toen de rechter het woord ‘schuldig' uitsprak, wisten we het zeker: we got him.''

"We still don’t know why Pan Am 103 was bombed and who ordered it"

[What follows is an excerpt from a long article about the MH17 disaster in today’s edition of The Sunday Telegraph:]

For the relatives and friends of those who died, including ten British citizens and more than 80 children, the uncertainty and confusion will be deeply upsetting. While the most likely scenario points to the involvement of Russian-backed rebels, the question remains whether Vladimir Putin, Russia’s president, should also be held to account.

Pam Dix, whose brother died in the Lockerbie bombing, fears that victims’ relatives will suffer ongoing anxiety in the search for the truth.

In the case of Lockerbie, in which a Pan Am jet was blown up over the Scottish town, one Libyan intelligence official was jailed for murder but doubts remain 25 years on about the conviction with many blaming Iran rather than Libya for the atrocity.

“The situation for the families from MH17 is agonising – waiting for news of whether they can get the bodies back, for information about what happened, who did it and why,” said Mrs Dix.

“At least after Lockerbie we could travel to the site to see the debris for ourselves, and investigators could have access in order to establish as many facts as they could.

“Twenty-five years later we still don’t know why Pan Am 103 was bombed and who ordered it. For the MH17 families the investigation will be just if not more frustrating. The political situation in Ukraine and Russia means it could be years before any proper information or evidence emerges.”

[A detailed consideration of the available evidence can be found in this article from 21st Century Wire. Its conclusions are very different from The Telegraph’s.]

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.

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.”]

Accept, apologise, punish the guilty

[An article about the MH17 tragedy published on the website of Newsweek magazine is yet another that makes an analogy to Pan Am 103 and Lockerbie. Unlike most others from American sources, it does refer to IR655 and the USS Vincennes.  The article reads in part:]

Just six months ago Putin’s international standing was at an all-time high as he presided over the Sochi Olympics and released imprisoned oligarch Mikhail Khodorkovsky and the Pussy Riot group. But it began its precipitous descent with Russia’s occupation of Crimea – and now, Putin’s name and reputation have become inextricably linked to the tragedy of MH17. This is his Lockerbie moment.

“Politics is about ­control of the imaginary – and [MH17] plane has become symbolic of something deeper,” says Mark Galeotti of New York University. “It is becoming very difficult not to regard Putin’s Russia as essentially an aggressive, subversive and destabilising nation after this.”

It didn’t have to be like this. Unlike Muammar Gadaffi, whose agents ­knowingly blew up Pan Am flight 103 over the Scottish town of Lockerbie in 1988, killing 243 people, Putin didn’t order separatist militiamen near Donetsk to murder civilians. The evidence points to a tragic mistake by ill-trained and ill-disciplined militias to whom Russia rashly supplied deadly surface to air missiles. But the Kremlin didn’t have to own this disaster. Putin could have disowned the Donetsk rebel group responsible, agreed to cooperate with international investigators, call world leaders to share their shock and commitment to bring the guilty to justice.

Instead, he did the opposite. In the days after the tragedy the Kremlin obfuscated the facts, blamed Kiev and facilitated the Donetsk separatists’ hasty cover-up operations – from attempting to hide bodies that had tell-tale shrapnel wounds to hurriedly evacuating the BUK rocket launcher back across the border (a not-so-secret operation snapped by the camera phones of local residents and Kiev’s spies). Putin himself appeared on national television – twice – vaguely blaming the whole incident on Ukrainian President Petro Poroshenko for not making peace with the rebels, a convoluted version of a child’s “he made me do it” argument. As a result of Putin’s KGB-trained instinct to deny everything, the tragedy of MH17 is, in the eyes of much of the world, now seen as Putin’s doing. (...)

But Putin has allowed himself to become a hostage to bad stuff happening, which is just bad politics. Cover-ups rarely work ­, as the US found in the aftermath of abuses at Abu Ghraib prison in Baghdad, for instance, or the shooting down of an Iranian civilian airliner over the Persian Gulf in 1988, just five months before Lockerbie, the smartest way to deal with such disasters is to accept, apologise, punish the guilty. 

[“Accept”: ‘The following day, the Pentagon held a news conference on the incident. After originally having flatly denied Iran's version of the event, saying that it had shot down an F-14 fighter and not a civilian aircraft, the State Department (after a review of the evidence) admitted the downing of Iran Air 655. It was claimed that the plane had "strayed too close to two US Navy warships that were engaged in a battle with Iranian gunboats" and, according to the spokesman, that the "proper defensive action" was taken (in part) because the "suspect aircraft was outside the prescribed commercial air corridor" (Washington Post).

‘That it "strayed" from its normal, scheduled flight path is factually incorrect. And so was the claim that it was heading right for the ship and "descending" toward it — it was ascending. Another "error" was the contention that it took place in international waters (it did not, a fact only later admitted by the government). Incorrect maps were used when Congress was briefed on the incident.’ http://chinamatters.blogspot.ca/2014/07/ukraine-mh-17-and-twilight-of.html

“Apologise”: ‘The US government issued notes of regret for the loss of human lives and in 1996 paid reparations to settle a suit brought in the International Court of Justice regarding the incident, but the United States never released an apology or acknowledgment of wrongdoing. George H W Bush, the vice president of the United States at the time commented on the incident during a presidential campaign function (2 Aug 1988): "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."’ http://en.wikipedia.org/wiki/Iran_Air_Flight_655

“Punish the guilty”: ‘Despite the mistakes made in the downing of the plane, the men of the Vincennes were awarded Combat Action Ribbons for completion of their tours in a combat zone. Lustig, the air-warfare coordinator, received the Navy Commendation Medal. In 1990, The Washington Post listed Lustig's awards as one being for his entire tour from 1984 to 1988 and the other for his actions relating to the surface engagement with Iranian gunboats. In 1990, Rogers was awarded the Legion of Merit "for exceptionally meritorious conduct in the performance of outstanding service as commanding officer ... from April 1987 to May 1989." The award was given for his service as the commanding officer of the Vincennes from April 1987 to May 1989, and the citation made no mention of the downing of Iran Air 655.’ http://en.wikipedia.org/wiki/Iran_Air_Flight_655]

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.]