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-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.]

"Don't expect your quest to carry much weight"

[What follows is excerpted from a report published yesterday on the website of the Chicago Tribune:]

The Rev John Mosey has advice for relatives seeking justice for their loved ones who died aboard Malaysia Airlines Flight 17: Don't expect your quest to carry much weight.

Mosey thought truth would prevail after he lost his teenage daughter Helga, who was a passenger on Pan Am Flight 103 when it exploded over Lockerbie, Scotland, just before Christmas in 1988. But as months turned into years and then into decades, he concluded that geopolitical realities had trumped his family's desire to know what really happened.

The British cleric from Lancaster says he thinks the truth about Lockerbie is still being hidden — and has told families who lost relatives when MH17 was shot down on July 17, 2014, over eastern Ukraine they can expect the same. In face-to-face informal counseling sessions at Lockerbie, Mosey has cautioned MH17 families that the interests of powerful countries like Russia and the United States over the area where the plane was brought down may well eclipse their desire for the straight story.

"We told them they need to really get together as a group, to strengthen each other emotionally and spiritually, and to get hold of a good independent lawyer," Mosey said of his emotional sessions with MH17 families. "I've told them that I hope in their countries the politicians can't control the legal system, which is what happened here (in Britain). That is what they'll be up against."

He's also told them to try and forgive those responsible for the destruction of their families — not just because it's in the Bible, but because you can get "eaten up" by bitterness and anger if you don't.

It's clear after the release Tuesday of a Dutch Safety Board report chronicling how MH17 was brought down by a Soviet-designed Buk missile that MH17 families face many more hurdles before any responsibility for the plane's downing can be clearly established — and compensated.

In the Lockerbie case, it took more than a decade of high-stakes diplomacy before a former Libyan intelligence agent became the only person convicted of downing the New York-bound Boeing 747, killing 259 people on the plane and 11 on the ground. Many victims' families believe the full story has never been made public, however.

The Dutch report on MH-17 — challenged immediately by the Russian government and the Russian state-controlled manufacturer of the missile — concluded that a Buk missile fired from Ukrainian territory controlled by Russian separatists brought down the Boeing 777, killing all 298 people aboard. The report stops short of assigning blame, however, so it does little to advance hopes of any criminal prosecution or civil claims.

That will have to wait for the results of a Dutch criminal investigation scheduled to come to a conclusion in January, said James Healy-Pratt, an aviation lawyer representing 50 MH17 families.

"They are investigating what crimes that have been committed and by whom and will recommend charges that should be brought against individuals," he said.

Then comes the hard part: Finding the suspects, arresting them and actually putting them on trial. Healy-Pratt, who also worked on the Lockerbie cases, said this will take time. (...)

Jim Swire, an English doctor who lost his 23-year-old daughter Flora when Pan Am 103 exploded over Lockerbie, said in his meetings with MH17 families they are asking why Malaysia Airlines flew over the contested zone when some other international airlines diverted their flights.

"I think it is likely to be frustrating for them. Many sounded as if they have lost confidence in their own government," he said. "It will be very slow to resolve because international politics is involved."

At the same time, Swire said, the families who lost loved ones in the skies above Ukraine are still grieving, still looking for ways to cope.

"They are faced with a lifetime of trying to adjust to the person that's missing from their family," he said. "It's a lifetime sentence."

Pan Am-style tribunal mooted for MH17

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Relatives of MH17 and Lockerbie tragedies brought together

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

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

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

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

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

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

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

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

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

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

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

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

MH17 and Pan Am 103 compensation claims compared

[What follows is excerpted from an article published in today’s edition of the Daily Mail:]

Eight families who lost loved ones in the Malaysia Airlines flight MH17 disaster when it was shot out of the sky in rebel-controlled eastern Ukraine are preparing to sue Russia, Ukraine and Malaysia.

The Boeing 777 was travelling from Amsterdam to Kuala Lumpur on July 17 when it was downed, killing all 298 people on board, including 38 Australian citizens and residents. (...)

Aviation lawyer Jerry Skinner, who is based in Alaska, has taken up their case and is preparing to lodge it at the European Court of Human Rights.

Back in July the lawyer first told the Sydney Morning Herald that he could potentially achieve million dollar payouts for the MH17 victims’ families, like he had obtained from Libya for the families of the 1988 Lockerbie disaster.

'Something creative is going to have to be done here because this is too big and too complicated for the judicial system to handle on its own and it involves people who will not yield to the judicial system, such as the Russians and the Ukrainians,' he said.

‘What happened in Lockerbie was that politics got involved and sanctions got involved and we said to the Libyans, if you want to settle this, it doesn't matter what the individuals did [for a living].

‘The parties that are the main participants here are probably the Russians and their allies and also Malaysia Airlines. Both of them bear a lot of responsibility for this.’

Now, Mr Skinner has said he will file a ‘very broad’ claim against Russia, Ukraine, Malaysia and Malaysia Airlines as soon as he gets some final information from the Dutch Safety Board.

[A report published today on the Radio Australia website contains the following:]

An international aviation lawyer is preparing a lawsuit on behalf of families of the Australian victims of the MH17 plane crash.

Jerry Skinner was part of the team that won $US2.7 billion in compensation from Libya over the Lockerbie bombing.

He has been engaged by at least five Australian families who lost relatives when the Malaysia Airlines plane was shot down over Ukraine in July.

Mr Skinner said they deserve the same compensation as the Lockerbie families.

"What happened in the Pan Am bombing, when an action is intentional and not negligent it generates more damages, and those damages were in the neighbourhood of $10 million for families," he said.

"In my way of thinking, since this was an intentional act and the nation states sort of took the bait of a low-flying aeroplane, that would be appropriate."

Mr Skinner is preparing the case against Russia, Ukraine and Malaysia while other families consider joining the action.

The lawsuit is expected to be filed with the European Court of Human Rights.

[RB: There is much about this story that I do not understand. Here is just one example. The European Convention on Human Rights, article 35, provides that the European Court of Human Rights may only deal with a matter after all domestic remedies have been exhausted. The Court is primarily a supervisory or appellate body, not a tribunal of first instance. A case arising out of the destruction of MH17 might well end up in the European Court of Human Rights, but I do not see how it could begin there. Where cases seeking compensation were raised following the Lockerbie disaster, they were -- correctly -- brought in domestic courts, not in the European Court of Human Rights.

Jerry Skinner is not a name that I have previously encountered in connection with the Pan Am 103 case. While a number of US attorneys represented relatives of Lockerbie victims in compensation negotiations with Libya, the lead firm was Kreindler & Kreindler.]

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.