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

An investigative team, comprising authorities from the Netherlands, Australia, Belgium, Malaysia and Ukraine, recently concluded that Malaysia Airlines Flight MH17 was shot down by a BUK missile on July 17, 2014. The plane disintegrated over eastern Ukraine, killing all 298 passengers and crew on board.

Demands for justice, including for war crimes prosecutions for those responsible, persist. The investigation identified around 100 individuals it linked to the transport or launch of the missile. Its inquiries into the alleged perpetrators continue, and a further report may take another year.

The MH17 incident occurred in the context of conflict between Russian-backed separatist rebels and Ukrainian state forces following Russia’s annexation of Crimea. But, crucially, the victims aboard MH17 were all civilians. Their killings violate the fundamental international humanitarian law principles of distinction (between combatants and non-combatants) and protection.

Australia’s advocacy for justice

At the time of the attack, Australia held a temporary seat on the UN Security Council.

With 38 Australians killed on MH17, Foreign Minister Julie Bishop advocated strongly for a Security Council resolution to establish an international war crimes tribunal.

Russia, one of the five permanent members of the Security Council, vetoed a 2015 draft resolution and will do so again if another is proposed. Russian sources have critiqued the most recent investigative report as evidence of a biased, politically motivated farcical investigation.

What did the Lockerbie trial involve?

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.

Even in the case of Russia finding a pragmatic reason to hand over a small number of scapegoats, this would hardly serve the interests of justice. A partial-in-scope process would do little to meet the retributive or restorative justice demands arising from the atrocity.

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.

Alternative options

Bishop and Australia’s prime minister, Malcolm Turnbull, have suggested domestic criminal prosecutions, perhaps in the Netherlands, as potentially easier to establish. Human rights barrister Geoffrey Robertson proposes Australia as a site for prosecutions.

Domestic prosecutions may be mounted under ordinary criminal law – for example, for the crime of murder – rather than under international criminal law. However, any such prosecutions would face the same (if not greater) challenges in terms of apprehending accused persons and acquiring necessary evidence as those faced by international or hybrid tribunals.

The best source of justice for the families of MH17 victims may be a thorough and reliable report that seeks to assign responsibility to individuals, a country or countries, and other non-state actors. This would undoubtedly be an inadequate outcome considering the gravity of the crime and the tragic loss of civilian lives.

But in the face of Russian intransigence, will western powers risk inter-state conflict over MH17?