If powerful governments want a guilty verdict they will get it

[A prominent European Union businessman who, over many years, has taken a keen interest in the Lockerbie case, has given me access to a paper that he has recently written about the international reaction to the destruction of Malaysia Airlines flight 17. He wishes at present to remain anonymous. The full text of the paper can be read here. The following are extracts:]

The Crime

First let us try and define what the crime is we talk about here.  If it were the rebels who shot down MH17 then what most likely happened is the following. The rebels are engaged in combat with Ukrainian troops which they consider their enemy. The combat involves ground forces and from Ukrainian side also the air force that brings support to the Ukrainian ground forces. The rebels mistake MH17 for a Ukrainian military plane such an IL76 they had shot down recently and launch the fatal missile. If I understand correctly, this is a crime if they did not do proper checks on whether the target was civilian.

A Trial?

So if it would come to a trial, I presume that such trial, provided it was fair, should establish if the rebels did indeed properly check this and condemn them or clear them.  At this point most western European politicians have climbed on the bandwagon to call for action to hold ‘them’ responsible.  It is not completely clear who they mean by ‘them’ but it seems that Russia is included in ‘them’ and for some is even the prime suspect. How one can justify this legally is not very clear but many politicians say that Russia bears responsibility for having supplied the missiles. That reasoning assumes two things: 1) the Russians supplied the rockets and 2) whoever supplied them is also guilty.  We are now entering complicated territory. Let us suppose that Russia did supply the rockets. Under what law would that make them responsible for the use or misuse of the weapons?

Presumed Guilty

It is clear from their public utterances that western politicians ‘want’ a guilty verdict. It would be impossible in the eyes of the world to acquit someone in such a high profile case. One can thus reasonably expect that all means will be used to reach such a verdict. History has told us that if these powerful governments want a guilty verdict in such a case, they will get it (Lockerbie is good enough an example).  In the case of Lockerbie not only was Megrahi found guilty, Libya as a country was also found guilty and condemned to pay huge compensation.  It is not unreasonable to assume that legally sound or not, Russia would be found guilty in this case as well.

Previous incidents

Interestingly, in none of the previous cases of mistakenly shooting down civil airliners did it come to court cases where the people who pulled the trigger or their superiors were found guilty:

• El Al 402  (London-Tel Aviv) shot down by Bulgaria in 1955. 58 death, An apology was eventually issued and compensation paid.

• Libyan Arab Airlines 114 (Tripoli-Cairo) Shot down by Israel over the Sinai in 1973. 108 deaths, 5 survivers; Israel's Defense Minister, Moshe Dayan, called it an "error of judgment", and Israel paid compensation to the victims' families.

• Itavia 870 (Bologna-Palermo), shot down in 1980 near Ustica (Sicily). 81 deaths. So far no official prosecution although an Italian court has deposited a complaint with France, suspected of shooting down the plane. Justice has for 30 years been seriously obstructed by the Italian Air Force.

• Korean Air 007 (New York-Séoul), shot down 1983 over Soviet territory, 269 deaths. Cold war situation. Due to cold war status no-one was prosecuted but Korean airlines paid compensation money since the plane had made a navigational error.

• Iran Air 655 (Bandar Abbas-Dubai), Shot down by US Navy in 1988. 290 deaths. Blaming it on Iran, United States recognized the aerial incident of 3 July 1988 as a terrible human tragedy and expressed deep regret over the loss of lives caused by the incident. Nobody was prosecuted but compensation money was paid.  

• TWA 800 (New York-Paris-Rome),  Explodes near Long Island, on 17 July 1996. Official inquiry very likely manipulated since earlier denied Navy exercises nearby later turned out to have taken place. 230 deaths. Following the official inquiry, no-one was ever prosecuted. A fatal mistake by US Navy however very likely.

• Siberian Airlines 1812 (Tel Aviv-Novosibirsk), shot down 2001 over Black Sea by Ukrainian army. 78 deaths.  On August 22, 2007 Kiev Appeals Court dismissed the victims' relatives suit against the Ministry of Defense of Ukraine, ruling that military of Ukraine bear no liability for the accident.

So in none of the previous cases did somebody go to jail for having pulled the trigger. Nor did anybody who supplied the weapons ever get prosecuted. In the above cases the suppliers were:

Soviet Union

USA

(Most probably) France

It is interesting to see that in all the earlier mentioned cases the people who pulled the trigger and their political leaders denied responsibility and in some cases simply denied they ever did it.  The current position of whoever brought down MH17 is thus no exception. (...)

Public accusers

The two loudest “public accusers” in the case of MH17 are the governments in Kiev and, of course, Washington.

Let us have a look at the current prime minister of Ukraine, the loudest voice in the condemnation of the rebels and Russia. What did this man do when the Ukrainian governments denied all responsibility for the shooting down of Siberian Airlines 1812: Arseniy Yatsenyuk served in the government of Ukraine as Minister of Economy from 2005 to 2006; subsequently he was Foreign Minister of Ukraine in 2007.  So this man was part of the governments that denied justice to the victims of Siberian Airlines 1812.

What about the second loudest voice, the US government?  That their track record in the case of Iran Air 655 and in the case of Lockerbie is highly questionable should by now be clear.  Their position towards the International Criminal Court of Justice is also very clear:  On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were Iraq, Israel, Libya, the People's Republic of China, Qatar, Yemen, and the United States. (...)

So here we are….

Probably some rebels made a dramatic cock-up. As dramatic as the people who fired the missiles on the planes mentioned in the various earlier examples.

So what to do if you are a Russian rebel that made the fatal mistake?  Admit your mistake and turn yourself in? Hand yourself over to Kiev? Washington? ICC?  Nobody previously did it in any case of a mistakenly shot down plane.  Ironically, the only example of someone turning himself in for an air disaster was Megrahi and his co-accused Fhimah. Maybe they naively turned themselves in because they were innocent.  

With all the knowledge we now have of how the world has dealt with these kind of incidents in the past I cannot really blame the rebels for not admitting their mistake. A fair trial being highly unlikely if we look at who is pulling the strings.  As regards Russia, if the USA, France and Britain who have supplied plenty of arms to governments and rebels all over the world that have killed innocent civilian have never been prosecuted, I guess it is not sure that there is a legal ground for prosecution here either.

One thing is however for sure, the sad death of hundreds of innocent victims is again being exploited by politicians.

All in all, a sad analysis and summing up of the way the world is dealing with air disasters.