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

[This is the title of an article by Dr Amy Maguire of the Law School of the University of Newcastle, Australia, that appears today on The Conversation website. It reads in part:]

[Australian Foreign Minister Julie] Bishop has recently suggested that a Lockerbie-style tribunal could be established as an alternative forum for prosecutions of those responsible for the downing of MH17.

On December 21, 1988, a Pan Am jet exploded over the Scottish town of Lockerbie. All 259 people on board and 11 people on the ground were killed. An investigation revealed the explosion was caused by a bomb planted on the plane.

According to Bishop, a Lockerbie-style prosecution would involve:

… a tribunal that’s set up by the international community.

But the Lockerbie trial was a prosecution under Scots law, with some international collaboration to establish a special venue for the court. Two Libyan nationals – Abdelbaset al-Megrahi and Lamin Khalifah Fhimah – were accused of murder and related crimes under Scottish law. Special arrangements were required for their prosecution because Libyan President Muammar Gaddafi refused to extradite them to Scotland.

A treaty between the UK and the Netherlands established a site for the Scottish High Court of Justiciary to sit on the neutral territory of the Netherlands. Eleven years on from the bombing, a trial was undertaken with three Scottish judges presiding.

After a lengthy trial, Fhimah was acquitted, as the judges were not satisfied that the available evidence supported his conviction.

However, the judges accepted the evidence of a Maltese shop owner that Megrahi resembled a man who bought clothing in his shop, remnants of which were found surrounding the bomb. They found that Megrahi was an agent of the Libyan intelligence service. On the basis of this and other circumstantial evidence, the court decided that Megrahi was guilty beyond reasonable doubt.

A court of five Scottish judges later rejected Megrahi’s appeal. He was sentenced to life imprisonment in Scotland in 2001. He was returned to Libya in 2009 on compassionate grounds, suffering prostate cancer, and died in 2012.

A weak example for international justice

A 2007 Scottish Criminal Cases Review Commission report cast doubt on the fairness of the trial and the reliability of Megrahi’s conviction.

Also, the UN observer criticised the Scottish court for relying on unreliable witnesses (some of whom received large sums of money for their testimony), evidence that had likely been tampered with, and dubious expert opinions.

The chief architect of the scheme to permit the Scottish trial on Dutch territory, Scottish law professor Robert Black, has argued since the first trial that Megrahi’s conviction was a miscarriage of justice.

I am satisfied that not only was there a wrongful conviction, but the victim of it was an innocent man. Lawyers, and I hope others, will appreciate this distinction.

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

The Lockerbie trial illustrates several challenges that are likely to arise again in the pursuit of justice for those killed on MH17.

A central problem, as Bishop recognises, will involve the extradition of accused persons from Russia, Ukraine or elsewhere. Fair trials require that accused persons stand before the court. Trials in absentia would be purely for show and of no greater justice value than investigators’ reports.

In the Lockerbie case, the two accused were eventually extradited by Libya to be tried in the special Scottish court in the Netherlands. This agreement was reached in the context of the Security Council having called on Libya to comply with demands for justice from the UK, US and France, and imposed economic sanctions on Libya.

Should the MH17 accused be within Russian jurisdiction, it is highly unlikely Russia will surrender them for trial elsewhere. The Security Council will lack the capacity to impose the same pressure as was brought to bear on Libya due to Russia’s veto power.

Even if one or a few people are brought before a court in relation to MH17, there is a real question about whether their trial could generate a sense of justice. In the Lockerbie case, only one person was convicted and – 28 years on – questions persist over his guilt. (...)

Another challenge for any special court will be the complexity of the questions of fact and law that arise. In the Lockerbie case, Megrahi was convicted on the basis of purely circumstantial evidence and the court’s confidence that the evidence added up to an inevitable conclusion of guilt. This has made the judgment more vulnerable to question.

Russia and Russian-based separatists in Ukraine have been accused of destroying evidence at the MH17 crash site. At any rate, investigators lacked full and speedy access to the site; this has seriously weakened the evidence base available to a court.

Lockerbie trial: an intelligence operation?

[This is the heading over a press release issued by Professor Hans Köchler on this date in 2007. It reads as follows:]

In an exclusive interview earlier this week with Gordon Brewer of the BCC’s Newsnight Scotland, Dr Hans Koechler said that the withholding of evidence by the investigators and the Prosecution from the Defense at the Lockerbie court is a serious breach of the fundamental norms of a fair trial. If such action occurs on the basis of a written commitment given to a foreign intelligence service, as has now been revealed concerning crucial evidence related to the timer that allegedly triggered the explosion of PanAm 103 over Lockerbie, the judicial nature of the entire proceedings is to be put into question. If a foreign intelligence service is allowed to determine what evidence may be disclosed in court and what not, judicial proceedings before a court of law are perverted into a kind of intelligence operation the purpose of which is not the search for the truth, but the obfuscation of reality.

This evaluation is further confirmed by the offer of huge amounts of money by US officials to at least three key witnesses.

Dr Koechler, a professor of philosophy of law at the University of Innsbruck, Austria, served in the period May 2000 – March 2002 as international observer, appointed by the United Nations, at the Lockerbie trial and appeal before the Scottish Court in the Netherlands. In his trial and appeal reports, issued in January 2001 and March 2002, he had highlighted the problematic role of intelligence services in the trial and stated that proper judicial proceedings cannot be conducted under conditions in which extrajudicial forces are allowed to intervene.

It is noteworthy that now – more than six years after Dr Koechler’s first report – more and more details emerge that confirm the UN observer’s original doubts:

• One of the “secret” grounds of referral of the convicted Libyan national’s case back to the appeal court has been revealed to be the fact that crucial information in the possession of the CIA that is related to the timer issue was withheld from the defense;
• Another of the “secret” grounds of appeal has now been revealed to be the offer of a huge payment by the CIA to the Maltese shopkeeper Tony Gauci, a key witness of the prosecution, for identifying the Libyan Al-Megrahi as the one who bought clothes in his shop in Malta;
• The Libyan-US double agent Abdul Majid Giaka had similarly been offered a huge amount for his testimony as a prosecution witness;
• At least two forensic “experts” who were invited as witnesses by the prosecution had links to intelligence agencies and were proven to be totally unreliable;
• One of the directors of the “Lockerbie Trial Briefing Unit” at the University of Glasgow which was set up at the beginning of the trial with the purpose of providing expert legal information to the interested public, was exposed by the British media as a member of British intelligence and had to step down.

Furthermore, Mr Edwin Bollier, head of the Zurich-based company MEBO, today confirmed vis-à-vis Dr Koechler that during a visit to the headquarters of the American FBI in Washington DC at the beginning of 1991 he was offered an amount of up to USD 4 million plus a new identity (name) in the United States if he would testify in court that the timer fragment that was allegedly found on the crash site around Lockerbie stemmed from a MST-13 timer that his company had delivered to Libya. Mr Bollier told Dr Koechler that he did not make use of the offer and did not make the requested statement, and that he  reported this incident after his return from the US to the Swiss Federal Police. The name of the FBI officer and another US official present at the meeting in Washington DC were given to Dr Koechler who is also in the possession of a brief memo written by Mr Bollier about this affair.

In view of all these revelations and serious allegations Dr Koechler renewed his call for an independent international investigation of the handling of the Lockerbie case by the Scottish and British authorities. It remains to be seen whether the Scottish judicial and political system will live up to the challenge and whether the authorities will allow a full and objective inquiry.

It is to be recalled here what Dr Koechler had stated in his original report on the Lockerbie trial of 3 February 2001, which was submitted to the United Nations:

“… proper judicial procedure is simply impossible if political interests and intelligence services − from whichever side − succeed in interfering in the actual conduct of a court. […] The purpose of intelligence services − from whichever side − lies in secret action and deception, not in the search for truth. Justice and the rule of law can never be achieved without transparency.”

Fhimah’s diary

[What follows is the text of a report that was published on the BBC News website on this date in 2000:]

The Lockerbie trial has continued to hear legal debate over whether the contents of a diary belonging to one of the accused can be heard in evidence.

Defence lawyers have argued that a notebook belonging to Al Amin Khalifa Fhimah was seized by Scottish police officers without a search warrant.

The prosecution wants to bring evidence from the diary which was taken from the offices of a travel company that Fhimah ran with Maltese businessman Vincent Vassallo.

The Scottish Court, sitting at Camp Zeist in The Netherlands, heard on Tuesday that police officers visited the offices of Medtour Services in Malta in April 1991.

Mr Vassallo told chief prosecutor Alastair Campbell that he had set up the business with Fhimah in February 1989, two months after the bombing.

He said he received several visits from the police at the office in Mosta. On one occasion they looked in drawers and began picking things up.

He said: "I sometimes used Fhimah's desk and from his desk they took my diary, Fhimah's diary and business cards.

"They told me they were taking the diaries. I could not say either yes or no."

On Friday, detective chief superintendent Harry Bell told the court that the police did not take out warrants when they went to the Mediterranean island looking for clues. [RB: The court ultimately allowed the diary to be received in evidence.]

The prosecution alleges that Fhimah and Megrahi, who was the head of security for Libyan Arab Airlines at Luqa Airport, in Malta, were both members of the Libyan Intelligence Service.

It is alleged they used their positions to place a bomb in a suitcase aboard an Air Malta flight to Frankfurt, which was then routed onto Pan Am flight 103.

[RB: Fhimah’s diary contained an entry for 15 December 1988 that read “collect taggs from the Air Malta”. Only “taggs” was in English, the rest in Arabic. The Crown’s contention was that this was a reminder to Fhimah to collect airline luggage tags that would enable the bomb suitcase to be routed as unaccompanied baggage on Air Malta flight KM180 from Malta to Frankfurt, then on to Heathrow and into the hold of Pan Am 103. Fhimah’s explanation to his defence team for this diary entry was that he wanted to secure a contract for printing Libyan Arab Airlines luggage tags in Malta, and the printer had asked for a sample. The diary contains several entries about visiting or contacting the printer.]

Megrahi says 'truth will emerge'

[This is part of the headline over a report published on the BBC News website on this date in 2011. It reads in part:]

The man convicted of the 1988 Lockerbie bombing has told the Reuters news agency the truth would emerge soon.

Abdelbaset al-Megrahi was interviewed in his home in Tripoli where he has lived since being sent home from a Scottish prison. (...)

Megrahi is seen in the Reuters interview in bed with oxygen containers beside him, although he was not wearing an oxygen mask.

He told the interviewer he had only a few months to live at best.

Megrahi also described how he was running short of vital medicine and said he had only enough pills to last four days.

"I have a problem with medicine," he said.

"Now there is a Tunisian person who is trying to find alternative medicine. I have only four tablets and after this it will finish. It will finish in four days.

"My friends and family are trying to bring me the medicine from outside.

"Why is this the way I am treated? I did not harm anyone. I never harmed anyone in my life."

The convicted bomber has previously claimed he would release new information about the atrocity but little new has emerged.

He told Reuters: "The facts (about the Lockerbie bombing) will become clear one day and hopefully in the near future. In a few months from now, you will see new facts that will be announced.

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.]

Crown’s breaches of duty of disclosure

[What follows is the text of a report published in The Independent on this date in 2009:]

The Libyan man convicted of the Lockerbie bombing today published more documents he claims prove his innocence.

Abdelbaset Ali Mohmed Al Megrahi insisted the move was not meant to add to the upset of the people "profoundly affected by what happened in Lockerbie".

But he added: "My only intention is for the truth to be made known."

Megrahi, who has terminal prostate cancer, was controversially freed from prison on compassionate grounds earlier this year.

He had been serving a life sentence at Greenock prison for the bombing of the Pan Am flight 103 in 1998, in which 270 people were killed.

Before his release, the bomber dropped his second appeal against that conviction.

His Scottish lawyers, Taylor and Kelly, said Megrahi remained ill in hospital in Tripoli, and that the documents published on the website www.megrahimystory.net related to his appeal.

In a statement Megrahi said: "I recognise that the Court of Criminal Appeal in Scotland is the only authority empowered to quash my conviction. In light of the abandonment of my appeal this cannot now happen."

However he added: "I continue to protest my innocence - how could I fail to do so?"

Megrahi said much of the material published today was "buttressed by the independent investigations of the Scottish Criminal Cases Review Commission".

It was the commission that referred Megrahi's case back to the courts for its second appeal.

Megrahi - who was convicted of the bombing in January 2001 at a Scottish court convened in the Netherlands - had mounted an unsuccessful appeal in 2002.

But in 2007 the Scottish Criminal Cases Review Commission, which investigates possible miscarriages of justice, sent his case for a subsequent appeal.

Today he said: "The commission found documents which they concluded ought to have been disclosed to my defence."

And he claimed this included a "record of interest in financial reward" by Tony Gauci, the Maltese shopkeeper who sold clothing found to have been in the suitcase that contained the bomb.

Megrahi also said the commission had seen documents which should have been given to his defence team at the trial.

He stated: "The commission concluded that the non-disclosure of these documents and other material may have affected the trial process and caused a miscarriage of justice."

A spokesman for the Scottish Government said Justice Secretary Kenny MacAskill made his decision to free Megrahi "based on the due process of Scots Law" and he "supports the conviction".

He added: "The Scottish Government has already released as much relevant information as possible, and have met with the SCCRC to look at what documentation relating to the appeal could be released by them."

The newly-published papers include claims that Tony Gauci was paid two million dollars (about £1.2m) by US authorities after the trial.

Much of the document published today relates to evidence which, Megrahi's lawyers say, was not produced at his trial.

When the Scottish Criminal Cases Review Commission sent Megrahi's case to the appeal court, it said doubt had been cast on some of the evidence which helped convict him, in particular evidence relating to his visit to Tony Gauci's shop in December 1988.

New evidence suggested the clothing had been bought before December 6, at a time when there was no evidence that Megrahi was in Malta, said the SCCRC.

And other evidence not available at the trial undermined Gauci's identification of him, it said.

Much of what is published today on the Megrahi website relates to Gauci's identification.

The legal documents by Megrahi's defence team say the SCCRC found material showing Mr Gauci was paid more than two million dollars by the US department of justice after the trial, and his brother Paul Gauci was paid one million dollars (about £600,000).

The SCCR also unearthed a statement made to police by David Wright, a friend of Tony Gauci, which had not been made available to the defence.

The statement from Mr Wright, who visited Tony Gauci, told of a purchase of clothing by two Libyans in October or November - but the statement was not investigated.

Other material published today also questions the reliability of Mr Gauci's identification of Megrahi.

The "missing evidence" on the identification of Megrahi was not put forward at his trial for a variety of reasons, according to the appeal papers published today by his lawyers.

They blamed both the prosecution for omitting some evidence from the trial - and the defence for not fully investigating the identification evidence.

Other arguments put forward in the documents relate to alleged inconsistencies in identification evidence, and to the possibility of Mr Gauci's recollection being tainted by "prejudicial" publicity.

The previously undisclosed evidence of David Wright was found by the SCCRC.

A friend of Mr Gauci and long-standing visitor to Malta, he called police in November 1989 after seeing TV coverage of Lockerbie which included footage of Mr Gauci's shop.

He told police he visited Mr Gauci in his shop in late October or November 1988, and saw two Libyans buy clothing.

The pair were smartly-dressed, had a lot of money, and bought several items of clothing.

Mr Gauci had referred to them as "Libyan pigs", and the descriptions given by Mr Wright did not resemble Megrahi.

But no further inquiries were made and Mr Wright's statement was not disclosed to the defence, the papers say.

The material showing that Mr Gauci asked for and received payment was also unearthed by the SCCRC, say the papers.

The commission found material showing that, at an early stage, he expressed an interest in receiving payment or compensation.

The material also "indicated" that US authorities offered to make substantial payments to him, that an application for reward money was made after the trial - and that Mr Gauci received "in excess of" 2 million dollars after the appeal, with his brother receiving 1 million dollars.

"The SCCRC states that, at some time after the appeal, the two witnesses were each paid sums of money under the Rewards for Justice programme administered by the US Department of Justice," said the papers.

And none of this had been disclosed to the defence, the papers say.

"The failure to disclose the information that reward monies have been discussed, that offers of rewards related to the witness have been discussed, and that substantial rewards have in fact been paid to the witness, is in breach of that duty to disclose."

“I now know the aircraft was separating”

[On this date in 1990 the Fatal Accident Inquiry into the 270 deaths that occurred in the Lockerbie disaster opened in Dumfries. What follows is a UPI news agency report:]

The last tragic seconds of Pan Am Flight 103 were recorded as a blip on a radar screen that split into 'four or five' pieces, then disappeared, an air-traffic controller said Monday.

'I remember that period extremely well in terms of emotion,' said Alan Topp. 'I was worried at the time. But I couldn't prove one thing or another.'

Topp testified on the first day of a Scottish judicial inquiry into the terrorist bombing nearly two years ago of the Boeing 747 en route from Frankfurt, West Germany, to New York after stopping in London.

The Fatal Accident Inquiry will not seek to determine criminal responsibility for the deaths of the 259 people who were aboard the plane and 11 people on the ground in Lockerbie, Scotland. That issue is being handled by police and various international agencies.

The panel will consider events leading up to the attack, including whether proper security precautions were carried out at London's Heathrow Airport.

The inquiry is being held at Easterbrook Hall on the grounds of Crichton Royal Hospital, Dumfries, 12 miles from where the plane fell to the ground in chunks of tangled metal.

Nine American attorneys, representing the relatives of some of the 188 U.S. citizens who were killed, were among the more than 45 lawyers present at the hearing.

Among the other attorneys were ones representing Pan American World Airways, the British Airport Authority, the Civil Aviation authority, the Department of Transport, Hull War Risks Insurance, which insured the aircraft, and George Esson, chief constable of Dumfries and Galloway, who is in charge of the separate criminal investigation.

Topp, a controller for 24 years, was on duty at the Scottish Air Traffic Control Center at Prestwick, on Dec 21, 1988.

Just before 7 pm, Topp said he knew Pan Am Flight 103 was coming into his air space -- he had been warned 15 to 20 minutes earlier. The plane climbed to 31,000 feet just north of Manchester, then was handed over to him by another controller.

Topp said it was normal for a New York-bound aircraft to fly over south Scotland to take advantage of favorable winds across the Atlantic Ocean.

'When I first saw the aircraft on radar it was at 31,000 feet. I asked the captain to identify himself. There was nothing amiss. I gave him his routing which had already been defined by Oceanic Control.'

Topp said he watched the aircraft intently as there was other traffic in the area.

'Suddenly, the response disappeared off the screen,' he said. 'Instead, there were four or five contacts.'

The air-traffic controller said he thought the disintegration -- at 7:03 pm -- was an effect that could occur on a radar screen when an aircraft was flying directly above a radar station.

Topp said he tried several times to make voice contact with the aircraft without success. He also tried to make contact though a KLM aircraft in the area, but there was no response.

Topp said he called Galloway Radar, in the same building, and spoke to a controller, asking him, 'You see my clipper 103 in all that melee?'

A transcript of the conversation, produced in evidence, ended with Topp saying, 'Oh dear!'

The last person to speak to the crew was Thomas Fraser, an air traffic services assistant. He called the aircraft to respond to a request for clearance. The flight's planning controller replied, ''Go ahead,' in a perfectly normal voice,' Fraser testified.

Fraser then provided the clearance.

'At that point he would normally have come back to acknowledge and, of course, he did not. It's not unusual for aircraft to have a radio blind spot. I tried three times and asked another aircraft to try. I then learned from another air traffic controller there was a problem.'

The court was shown a videotape of the flight's progress on the radar screen, appearing as a small square. A cross in the square disappeared, meaning the plane's transponder signal had stopped working. The original square then reappeared as four or five squares.

'The loss of the signal is a fairly common thing,' said Topp. 'And primary responses can appear on the screen when there is nothing wrong. I was aware something was not going quite right but I wasn't aware of the disaster at this stage.

'I can remember I was extremely worried about the status of 103. I had my eyes on the tube all the time. ... I had never seen anything like this before. I now know the aircraft was separating.'

[RB: The findings of the FAI can be read here.]