King’s College London – The Dickson Poon School of Law; King’s College London
June 1, 2000
International and Comparative Law Quarterly, Vol. 49, pp. 578-598, 2000
King’s College London – The Dickson Poon School of Law; King’s College London
June 1, 2000
International and Comparative Law Quarterly, Vol. 49, pp. 578-598, 2000
Palestinian Recourse to the International Criminal Court: The Time has Come
By Prof. Richard Falk
[Prefatory Note: “Palestine’s Dilemma: To Go or Not to Go to the International Criminal Court” was published on July 13, 2014 on the website of Middle East Eye, a site I strong recommend to all those with an interest in Middle East issues; this post represents a somewhat revised text, but within the framework of the original; the political plausibility of invoking the Inteernational Criminal Court to investigate allegations of criminality directed at Israel increases with each passing day.]
Ever since this latest Israeli major military operation against Gaza started on July 8, there have been frequent suggestions that Israel is guilty of war crimes, and that Palestine should do its best to activate the International Criminal Court (ICC) on its behalf. The evidence overwhelmingly supports basic Palestinian allegations—Israel is guilty either of aggression in violation of the UN Charter or is in flagrant violation of its obligations as the Occupying Power under the Geneva Convention to protect the civilian population of an Occupied People; Israel seems guilty of using excessive and disproportionate force against a defenseless society in the Gaza Strip; and Israel, among an array of other offenses, seems guilty of committing Crimes Against Humanity in the form of imposing an apartheid regime in the West Bank and through the transfer of population to an occupied territory as it has proceeded with its massive settlement project.
Considering this background of apparent Israeli criminality it would seem a no brainer for the Palestinian Authority to seek the help of the ICC in waging its struggle to win over world public opinion to their struggle. After all, the Palestinians are without military or diplomatic capabilities to oppose Israel, and it is on law and global solidarity must rest their hopes for eventually realizing their rights, particularly the right of self-determination and the right of return. Palestinian demonstrators in the West Bank are demanding that their leaders in the Palestinian Authority adhere to the Rome Statute, and become members of the ICC without further delay. It has become part of the message of Palestinian street politics that the Palestinians are being criminally victimized, and that the Palestinian Authority if it wants to retain the slightest shred of respect as representatives of the Palestinian people must join in this understanding of the Palestinian plight and stop ‘playing nice’ with Israeli authorities.
Such reasoning from a Palestinian perspective is reinforced by the May 8th letter sent by 17 respected human rights NGOs to President Mahmoud Abbas urging Palestine to become a member of the ICC, and act to end Israel’s impunity. This was not a grandstanding gesture dreamed up on the irresponsible political margins of liberal Western society. Among the signatories were such human rights stalwarts as Human Rights Watch, Amnesty International, Al Haq, and the International Commission of Jurists, entities known for their temporizing prudence in relation to the powers that be.
Adding further credence to the idea that the ICC option should be explored was the intense opposition by Israel and United States, ominously threatening the PA with dire consequences if it tried to join the ICC, much less to seek justice through its activating its investigative procedures. The American ambassador to the UN, Samantha Power, herself long ago prominent as a human rights advocate, revealed Washington’s nervous hand when she confessed that the ICC “is something that really poses a profound threat to Israel.” I am not sure that Power would like to live with the idea that because Israel is so vulnerable to mounting a legal challenge that its impunity must be upheld whatever the embarrassment to Washington of doing so. France and Germany have been more circumspect, saying absurdly that recourse to the ICC by Palestine should be avoided because it would disrupt ‘the final status negotiations,’ as if this pseudo-diplomacy was ever of any of value, a chimera if there ever was one, in the elusive quest for a just peace.
In a better world, the PA would not hesitate to invoke the authority of the ICC, but in the world as it is, the decision is not so simple. To begin with, is the question of access, which is limited to states. Back in 2009, the PA tried to adhere to the Rome Statute, which is the treaty governing the ICC, and was rebuffed by the prosecutor who turned the issue over to the Security Council, claiming a lack of authority to determined whether the PA represented a ‘state.’ Subsequently, on November 29th the UN General Assembly overwhelmingly recognized Palestine as ‘a nonmember observer state.’ Luis Moreno–Ocampo who had acted in 2009 for the ICC, and now speaking as the former prosecutor, asserted that in his opinion Palestine would now in view of the General Assembly action qualify as a state enjoying the option of becoming an ICC member. Normally, ICC jurisdiction is limited to crimes committed after the state becomes a member, but there is a provision that enables a declaration to be made accepting jurisdiction for crimes committed at any date in its territory so long as it is after the ICC itself was established in 2002.
Is this enough? Israel has never become a party to the Rome Statute setting up the ICC, and would certainly refuse to cooperate with a prosecutor who sought to investigate war crimes charges with the possible intention of prosecution. In this regard, recourse to ICC might appear to be futile as even if arrest warrants were to be issued by the court, as was done in relation to Qaddafi and his son in 2011, there would be no prospect that the accused Israeli political and military figures would be handed over, and without the presence of such defendants in the court at The Hague, a criminal trial cannot go forward. This illustrates a basic problem with the enforcement of international criminal law. It has been effective only against the losers in wars fought against the interests of the West and, to some extent, against those whose crimes are in countries located in sub-Saharan Africa. This biased form of international criminal law implementation has been the pattern since the first major effort was made after World War II at Nuremberg and Tokyo. Surviving German and Japanese leaders were prosecuted for their crimes while exempting the winners, despite Allied responsibility for the systematic bombing of civilian populations by way of strategic bombing and the American responsibility for dropping the atomic bombs on Hiroshima and Nagasaki.
Unfortunately, up to this time the ICC has not been able to get rid of this legacy of ‘victors’ justice,’ which has harmed its credibility and reputation. All ICC cases so far have involved accused from sub-Saharan African countries. The refusal of the ICC to investigate allegations of war crimes of the aggressors in relation the Iraq War of 2003 is a dramatic confirmation that leading states, especially the United States, possess a geopolitical veto over what the ICC can do. The ICC failure to investigate the crimes of Bush and Blair, as well as their entourage of complicit top officials, vividly shows the operations of double standards. Perhaps, the climate of opinion has evolved to the point where there would be an impulse to investigate the charges against Israel even if procedural obstacles preventing the case from being carried to completion. Any serious attempt to investigate the criminal accountability of Israeli political and military leaders would add legitimacy to the Palestinian struggle, and might have a positive spillover effect on the global solidarity movement and the intensifying BDS campaign.
Yet there are other roadblocks. First of all, the PA would definitely have to be prepared to deal with the wrath of Israel, undoubtedly supported by the United States and more blandly by several European countries. The push back could go in either of two directions: Israel formally annexing most or all of the West Bank, which it seems determined to do in any event, or more likely in the short run, withholding the transfer of funds needed by the PA to support its governmental operations. The U.S. Congress would be certain to follow the lead of Tel Aviv even if the Obama presidency might be more inclined to limit its opposition to a diplomatic slap on the PA wrist as it did recently in reacting to the June formation of the interim unity government, an important step toward reconciling Fatah and Hamas, and overcoming the fragmentation that has hampered Palestinian representation in international venues in recent years.
A second potential obstacle concerns the jurisdictional authority of the ICC, which extends to all war crimes committed on the territory of a treaty member, which means that leaders of Hamas would also likely be investigated and indicted for their reliance on indiscriminate rockets aimed in the direction of Israeli civilian targets.There is even speculation that given the politics of the ICC such that crimes alleged against Hamas might be exclusively pursued.
If we assume that these obstacles have been considered, and Palestine still wants to go ahead with efforts to activate the investigation of war crimes in Gaza, but also in the rest of occupied Palestine, what then? And assume further, that the ICC reacts responsibly, and gives the bulk of its attention to the allegations directed against Israel, the political actor that controls most aspects of the relationship. There are several major crimes against humanity enumerated in Articles 5-9 of the Rome Statute for which there exists abundant evidence as to make indictment and conviction of Israeli leaders all but inevitable if Palestine uses its privilege to activate an investigation and somehow is able to produce the defendants to face trial: reliance on excessive force, imposing an apartheid regime, collective punishment, population transfers in relations to settlements, maintenance of the separation wall in Palestine.
The underlying criminality of the recent aggression associated with Protective Edge (Israel’s name for its 2014 attack on Gaza) cannot be investigated at this point by the ICC, and this seriously limits its authority. It was only in 2010 that an amendment was adopted by the required 2/3 majority of the 122 treaty members on an agreed definition of aggression, but it will not become operative until 2017. In this respect, there is a big hole in the coverage of war crimes currently under the authority of the ICC.
Despite all these problems, recourse to the ICC remains a valuable trump card in the PA thin deck, and playing it might begin to change the balance of forces bearing on the conflict that has for decades now denied the Palestinian people their basic rights under international law. If this should happen, it would also be a great challenge to and opportunity for the ICC finally to override the geopolitical veto that has so far kept criminal accountability within the tight circle of ‘victors’ justice’ and hence only accorded the peoples of the world a very power-laden and biased experience of justice.
Date of document: 27 November 2006
Filed on behalf of the Plaintiff by:
61-63 Carrington Street
Adelaide South Austrlia 5000
Ph: (08) 8237 0584
Mobile: 0415 668 732
Fax: (08) 8237 0555
Date and time of filing or transmission: 27 November 2006
I, MICHAEL ANDREW HOURIGAN Lawyer of 61-63 Carrington Street Adelaide 5000 in the State of South Australia Solicitor MAKE OATH AND SAY as follows:
1 I am a qualified legal practitioner in the State of South Australia. I was also a former police detective before completing a law degree in 1995 after which time I took up a post as a Crown Prosecutor with the Director of Public Prosecutions (D.P.P. Adelaide).
2 In April, 1996 I left the D.P.P. in Adelaide and took up a position as an investigator with the International Criminal Tribunal for Rwanda.
3 Soon after my arrival in Rwanda I was put made a team leader in charge of a team consisting of about 20 members and the team was to be known as ‘the National Team’.
4 I was directed by Judge Richard Goldstone (the then Chief Prosecutor) and Judge Honoré Rakotomana (the then ICTR Prosecutor) and Mr. Alphonse Breau (the then Director of Investigations) to focus my teams investigations on the following matters:-
4.1. investigate the criminal conduct of Colonel Theoneste Bagosora and then locate and arrest him;
4.2. investigate the criminal conduct of Colonel Anatole Nsengiyumva and then locate and arrest him;
4.3. Investigate the murder of thousands of Rwandan elite in the first days of the genocide by the Rwandan Presidential.
4.4. identify the person(s) responsible for the fatal rocket attack on 6 April 1994 killing President Habyarimana and all others on board;
5 Together with my investigators we conducted investigations into these matters throughout the next year. During the course of 1996 I was called upon to brief Judge Goldstone and then his replacement Judge Louise Arbour and other senior prosecutors on the progress of our investigations into Bagosora, Nsengiyumva, the Presidential Guard and the rocket attack upon President Habyarimana’s aircraft.
6 At no time did Judge Goldstone, Judge Arbour or any other member of the ICTR ever indicate to me that our investigations into the downing of the President Habyrimana’s aircraft were outside the ICTR mandate. On the contrary, it was made clear to me that our investigations into the rocket attack upon the President’s aircraft was an act of international terrorism which clearly fell within the ICTR statute Article 4 Violations of Article 3 common to the Geneva Conventions:-
Article 4: Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II
The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to:
a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
d) Acts of terrorism;
7 I am pleased to say that the National Team was successful and we achieved the following results:-
7.1. Located, arrested and charged Colonel Theoneste Bagosora with Genocide and Crimes Against Humanity;
7.2. Located, arrested and charged Colonel Anatole Nsengiyumva Genocide and Crimes Against Humanity;
7.3. Gathered evidence against senior members of the Presidential Guard in relation to the killing of key Rwandan citizens, including but not limited to, UNAMIR-protected VIPS Justice Joseph Kavaruganda, (President of the Constitutional Court) and Vice President Lando Ndasingwa (the head of the Parti liberal);
7.4. In late January or early February 1997 members of the National Team were approached by three (3) informants (either former or serving member of the R.P.F.) claiming direct involvement in the 1994 fatal rocket attack upon the President’s aircraft. Their evidence specifically implicated the direct involvement of President Paul Kagame, members of his administration and military. The informants also advised that the Kagame administration was actively involved in covert operations aimed at murdering high profile expatriate Rwandans – once such murder was the death of Seth Sedashonga in Nairobi.
8 With respect to the highly sensitive information from the three informants regarding the plane crash I immediately informed my Commander Jim Lyons. My Director Mr. Alphonse Breau was out of the country and I arranged for him to be told by telephone.
9 The information from the sources was very detailed and seemed very credible. I was very concerned about the sensitivity of the information and arranged for an urgent ‘secure’ telephone call to Judge Arbour.
10 Commander Jim Lyons and I attended at the US Embassy in Kigali and I made a call to Judge Arbour at the US Embassy in the Hague using an encrypted (‘secure’) STU III telephone. I informed Judge Arbour in considerable detail about the information implicating President Kagame. She was excited by the break through and advised me that the information corroborated some other information she had just learnt from Alison Des Forge the week before. At no time did she suggest that our investigations were improper. On the contrary, I would describe her mood as upbeat and excited that at last we were making significant progress into the events surrounding the plane crash.
11 Judge Arbour was concerned about the safety of the informants and my men. I advised her that the informants’ identities had been kept secure and if she so directed me I would arrange for my investigators involved in the plane crash to leave Rwanda. She directed that my investigators should leave and I agreed to have them travel from the country on suitable inquiries inNairobi. As for me I declined to leave Rwanda and advised her that I wanted to stay with my team and assist them complete other important investigations. She consented to this but asked me to keep in touch with her while she considered what to do with this sensitive information.
12 During the next week I was directed by senior members of the UN in Kigali that I was required to travel to the ICTY in the Hague in order to meet with Judge Arbour and brief on her on our investigations in the rocket attack upon President Habyarimana’s aircraft.
13 Some days later I was approached at the ICTR headquarters in Kigali by Mr. Michael Hall, UN Deputy Security (NY). He advised me that I would be flying to Arusha the next day on the ICTR aircraft and from there board an international KLM flight to Amsterdam. Mr. Hall asked me to give him any information that I had on air crash and he would convey it to the airport in a UN diplomatic pouch. I then gave Mr. Hall a single floppy disc containing a memorandum I had prepared for Judge Arbour.
14 The next day Mr. Hall conveyed me to the Kigali airport where I checked in for the UN flight. There Mr. Hall and I were told that the flight was overbooked and that I could not to Arusha. Mr. Hall became agitated and told the UN flight officer that the UN Secretary General Mr. Kofi Annan had personally ordered my attendance in Arusha for an international connection the next day. As a consequence I was given a seat on the UN flight and flew to Arusha.
15 The next day I flew to the Hague and over-knighted in a hotel near the ICTY.
16 The following morning I met with Mr. Al Breau and briefed him on the information concerning the plane crash. Together we discussed forming a special ICTR investigations unit based outside of Kigali to investigate the plane crash.
17 Following breakfast Mr. Breau and I attended at the ICTY and met with Judge Arbour. Also present was Mr. Mohammed Othman, Acting ICTR Prosecutor.
18 I briefed Judge Arbour on the informants and their information regarding the involvement of President Kagame and members of the RPF in the downing of President Habyrimana’s aircraft.
19 I presented her with a copy of a memo I had prepared entitled ‘Secret National Team Inquiry – Internal Memorandum’ and this document which is undated is attached to this statement. This document detailed the information provided by the three informants.
20 To my surprise Judge Arbour was aggressive and questioned me about the source of the information regarding the informants and the quality and potential reliability of their information. I advised her that the information was given to me by members from my team – the National Team. Those members were Amadou Deme and Peter Dnistriansky. I advised her that I held both investigators in the highest regard. I did say that I was not able to provide any advice as to the reliability of their information as it had not been tested. However, I did suggest that it was very detailed and this is itself meant that it could be subjected to considerable forensic examination.
21 Mr. Al Breau also expressed his strong view that both Amadou Deme and Peter Dnistrianksy were highly effective and reliable men.
22 Judge Arbour then advised me that the National Team investigation was at an end because in her view it was not in our mandate. She suggested that the ICTR’s mandate only extended to events within the genocide, which in her view began ‘after’ the plane crash.
23 I was astounded at this statement. I pointed to the temporal mandate of the ICTR being 1 January 1994 until 31 December 1994 and this clearly covered the time of the plane crash. I also addressed the ‘terrorism’ and ‘murder’ provisions of the ICTR statute.
24 More particularly I also told her that this was the first time she had ever suggested that this was outside the ICTR mandate. I reminded her that I had personally briefed her before about our investigations into the plane crash and that she had never ever expressed a view that this matter should be part of an ICTR inquiry.
25 I expressed my strong view to her that these Rwandan informants were courageous and were deserving of our protection. I cautioned her that the UN had a history of abandoning informants in Rwanda and I specifically reminded her of the UN’s abandonment of Jean Pierre Turatsinze in 1994.
26 Judge then became hostile and asked me if I was challenging her authority to direct to end our investigations into the plane crash.
27 I told her that I was not questioning her authority only her judgement. I informed her that I was her servant and I would obey her direction.
28 Judge Arbour then asked me if the memo that I had prepared for her was the only copy. I told her that it was and she said she was pleased to hear that and placed in her office filing cabinet.
29 She then asked me to leave the room.
30 I was extremely concerned at Judge Arbour’s decision and felt that it was wrong both in law and policy.
31 I returned to Kigali and a short time later resigned from the ICTR.
32 After my resignation from the ICTR I was offered a position as an investigator with the UN’s Office of Internal Oversight Services (OIOS) in New York. Soon after taking up my appointment I was asked to provide OIOS investigators investigating corruption within the ICTR with a statement re my service in Rwanda for the ICTR.
33 On 1 August 1997 I prepared an internal memorandum detailing various issues which I felt lay behind some of the difficulties with the ICTR. A copy of this memorandum is attached here.
34 The OIOS leadership were not at all interested in the memorandum and they expressed their concern at some of the contents of the document implicating the Secretary General in some of the serious events inRwandain1994.
35 I completed six months with OIOS and resigned.
36 I feel that unknown persons from within the UN leadership and possibly elsewhere pressured Judge Arbour to end the National Team’s investigations into the shooting down of President Habyarimana.
37 Following my resignation my National Team was dismembered – the National Team investigations into the plane crash were brought to an end.
38 I have suffered at the hands of Judge Arbour and the UN because my career with the ICTR was brought to an untimely and ignominious end. I was proud of serving with the ICTR but I felt that I could not work for Judge Arbour when, in my view, she acted for personal reasons against the interests of the ICTR, the UN and world community which we served.
39 I know the facts deposed to herein to be true of my own knowledge, information and belief except where otherwise plainly appears.
To a crowded courtroom on the late afternoon of November 25, presiding Judge Lamin Mohd Yunus announced the verdict by an international panel of seven jurists:
“The Tribunal is satisfied, beyond reasonable doubt, that the first defendant, (General) Amos Yaron, is guilty of crimes against humanity and genocide, and the second defendant, the State of Israel, is guilty of genocide.”
The landmark ruling against Israel for its genocide against the Palestinian people rendered by the Kuala Lumpur War Crimes Tribunal is significant for several reasons:
– In contrast to other non-official courts of conscience on Palestinian rights, for example, the Russell Tribunal on Palestine (New York 2012), the prosecution in Kuala Lumpur took a step beyond war crimes and crimes against humanity to the higher and broader charge of genocide.
– The decision was rendered during the ongoing commission of the alleged crime by the defendant, rather than after the fact as in earlier genocide cases.
– Instead of limiting its ruling to individuals who ordered genocidal actions, the jurists also charged the state as a defendant.
– As a consequence, this case breaks the tradition of immunity of nation-states from criminal prosecution under international law.
– The decision introduces a legal basis for international action to protect minorities from genocide as a lawful alternative to the current response of so-called humanitarian intervention, invasion, occupation and regime change, which have often been as illegitimate and more destructive, and in some cases as genocidal as the original violation being punished.
The Kuala Lumpur Tribunal based its momentous decision on the 1948 Genocide Convention, which prohibits and punishes the killing, causing of harm and deliberate infliction of conditions of life calculated to bring about the physical destruction of a group of people, targeted for their ethnicity, religion or race. In instances of genocide, these criminal acts are done with the specific intent of destroying as a part or in whole of the targeted group, as in this plight the Palestinian people.
The defendants, Gen. Yaron and the Israeli State , through its representatives, refused to accept the Tribunal summons and appear in court.
Prominent Israeli legal scholars also refused invitations to serve as defense counsel. The Tribunal therefore appointed an Amicus Curae (defense counsel, referred to by the Latin term for “friends of the court”), including attorneys Jason Kay Kit Leon, Larissa Cadd, Dr. Rohimi Shapiee and Matthew Witbrodt, to defend the accused. Even absent Israeli participation, the defense proved to be forceful and often made heated remarks in Israel’s defense, especially during the cross-examinations of expert witnesses.
Why Not New York , London , Paris or Berlin
One point to note is that the sponsoring Kuala Lumpur Commission on War Crimes and its associated international Tribunal is unrelated to Malaysia and its legal system, aside from the participation of some Malaysian jurists and citizens in its proceedings. Malaysian laws are in many areas quite different from and sometimes in diametric opposition to the legal opinions of the international Tribunal. The independence of this “court of conscience” allows an approach to international law unconstrained by local norms, but this also means that the Tribunal lacks an enforcement capability.
That the first-ever Tribunal to prosecute Israel for genocide was initiated in Southeast Asia offers some indication of the continuing sensitivity within the traditional “center” of international law, Western Europe and North America, toward the circumstances behind Israel’s creation.
The Kuala Lumpur proceedings are bound to raise controversy and discomfort, especially among a reluctant West, since the historical motive behind creating a modern Jewish state in 1948 was largely a response to the abandonment of European Jewry to the pogroms and extermination program of the Third Reich, which in its early stages went unopposed by Western governments and prominent opinion leaders in the Atlantic community.
The courage to finally confront Israel after nearly seven decades of eviction and merciless brutality against the Palestinian people was summoned not by the Atlantic community but in faraway Southeast Asia , where a law case could be pursued with critical distance, logical dispassion and an absence of historical complicity. In short, an evidence-based fair trial found Israel to be guilty of genocide.
Why then was Israel singled out by the Kuala Lumpur War Crimes Commission on genocide charges before its Tribunal, when many other states have gone unpunished? Chief prosecutor Gurdial Singh explained:
“Other settler states, for example Australia, have offered compensation and apologized for the dispossession and harm to their indigenous populations, while Israel remains unapologetic and continues its campaign of destruction against Palestinians and to make their conditions unlivable inside and outside its borders.”
In contrast with previous special courts involving genocide charges, this Tribunal left the time frame of events open-ended, by starting just before the creation of the State of Israel until the present and, presumably, into the future until Israel ceases its expansionist campaign against the Palestinians and offers instead justice and reconciliation. By comparison in prior cases invoking the Genocide Convention, including those against former Yugoslavia, Rwanda, Cambodia and Sierra Leone, the mass killings of civilians were perpetrated within a short time-frame by political leaders of the then-governing regime or by a major political faction.
The Kuala Lumpur Tribunal asserted that the modern Jewish state, in contrast to other cases, had since even before its inception pursued a genocidal program as a consistent feature and indeed a foundation of state policy. Therefore, genocide in the Israeli case cannot be solely attributed as the isolated action of a leader, political party or elected government but remains the responsibility of the state itself.
Genocide as Response
The specific intent of Israeli state policy, since even before the founding of Israel, was discussed in a live-video transmission by expert witness Ilan Pappe, an Israeli historian at University of Exeter in the UK and the director of the European Centre for Palestine Studies. His research has revealed that a planning group of top-ranking Jewish military leaders in the Haganah militia, led by David Ben Gurion (who later became Israel’s first prime minister) devised an ethnic-cleansing program to rid the future Israel of its Arab predecessors. Called Plan Dalet (the letter “D” indicating the fourth plan of a colonialist agenda) was to be activated as soon as the British suspended the Palestine Mandate.
With the declaration of Israeli statehood in 1948, a coordinated armed campaign by Israeli military forces and paramilitary units against hundreds of Palestinian urban neighborhoods and rural villages led to the flight of an estimated 700,000 refugees from Palestine and parts of neighboring Trans-Jordan, including Jerusalem . Although the Israeli intent was intended to intimidate the Palestinians into relocating outside the borders, but before long village populations that refused to flee were mass murdered.
The forcible deportation of indigenous inhabitants from their homes and land was a criminal act of ethnic cleansing, Pappe said. That policy, however, soon metamorphosed into a systematic campaign to destroy Palestinians, that is, genocide. Under cross-examination by defense team, the historian explained, that as an Israeli citizen and son of Jewish refugees who escaped Nazi-ruled Germany , it is morally, ethically and historically inconsistent to condemn the genocide against Jews while endorsing a new one against Palestinians.
Cumulative Record of Crimes
The Israeli record of massacres, extrajudicial killings and daily harassment of Palestinian comprises a continuum of criminal behavior over the past 67 years. Given the overwhelming evidence, the prosecution team therefore decided to focus on key cases, which were extensively reported in the news media and/or were subject of investigations. These included:
– the September 1982 massacre of Palestinians, mainly women and children, at the Sabra and Shatilla refugee camps in a southwest district of Beirut, Lebanon;
– lethal firing of teargas canisters and “rubber” bullets by Israeli Defense Forces that resulted in the deaths of unarmed civilians during the Intifada campaigns and subsequent protests; and
– intensive and indiscriminate aerial bombing and artillery shelling of civilian quarters in the Gaza Strip in 2008.
Among the witnesses who testified in person or via video transmission included:
– a former university student who was shot without warning at a peaceful protest by an Israeli sniper firing a fragmentary bullet that caused extensive and permanent damage to his internal organs;
– a Christian resident of the West Bank who was repeatedly imprisoned and tortured on grounds of subversion;
– a female resident of Nablus who suffered mental anxiety due to her imprisonment and subsequent social ostracism; and
– two men from the Al Sammouni clan of Gaza, which lost 21 family members, mainly children and women, in an Israeli commando raid on their home.
– a Palestinian physician who conducted studies on the psychological trauma inflicted, particularly on children, as result of constant intimidation, massive violence and state terror during and following the second Intifada;
– Expert witness Paola Manduca, an Italian chemist and toxicologist, who found extreme levels of toxic contamination of the soil and water across the Gaza Strip caused by Israeli weapons made of heavy metals and cancer-causing compounds.
Professor Pappe said that the mass killing of defenseless civilians trapped without avenues of escape within a cordon or enclosure is clear evidence of genocidal policy, as happened inside the Beirut refugee camps surrounded by Israeli tanks and hostile Phalangist militiamen and inside Gaza cities that are ringed by a wall-fence.
For the Beirut atrocity, Israeli Defense Force commander General Amos Yaron was charged in absentia for crimes against humanity and genocide. Among the witnesses who testified in person on the Camps Sabra and Shatilla events were:
– Chahira Abouardini, a widow whose husband and three children were murdered by Israeli-allied militiamen at Camp Shatilla, provided a graphic account of the carnage, describing piles of bullet-riddled bodies and, in one case, of a pregnant women whose belly had been slit open and with her dead unborn child left on top of her corpse. She recounted how refugees were rounded up from their homes and lined against walls for summary execution by automatic weapons fire.-
– Dr. Ang Swee Chai, a London-based Singaporean surgeon and medical volunteer at the time at a hospital run by the Palestinian Red Crescent Society, with the aid of the International Committee of the Red Cross, testified that another Beirut hospital had been bombed by Israeli jets, all Palestinian facilities including schools and hospitals were deliberately destroyed by artillery barrages and explosive charges, and ambulances were intercepted and their drivers shot dead. She stated that an Israeli observation post positioned in the 7-storey Kuwaiti Embassy, located on a hilltop, had an unobstructed view of the refugee camp, indicating that the Israeli forces were directing a joint operation to exterminate the refugees left behind under the international plan to withdraw the PLO from Lebanon . In her forensic investigation of the bullet wound that injured a male nurse at her hospital, Dr. Ang determined that the sniper fire had come from the Israeli-occupied Embassy building
Considering the Israeli checkpoints on roads and its vantage points, Brigadier General Amos Yaron as field commander of the Beirut incursion and occupation, had effective control over the camps. His close liaison with the local militia leader meant that Yaron had condoned the 36-hour rampage by militiamen, which led to an estimated 3,500 civilian deaths. No orders were issued to prevent the one-sided violence, prosecutor Aziz Rahman argued before the Tribunal. A 1983 special commission report, under its chairman Nobel Laureate Sean MacBride, concluded that Israel had “complicity in genocide”. Research findings gathered since then indicate that Yaron was not merely complicit but held personal responsibility for the massacre.
A point contested by the Amicus Curae defense team was that then Israeli Defense Minister Ariel Sharon, an official of superior rank, should have been prosecuted instead of Gen. Yaron. (The prosecution had earlier declined to serve notice on Sharon, who has been in a coma for many years and is unable to testify in hisown defense. Moreover, Yaron had wide sway of authority as field commander in a battle zone outside the borders of Israel .) Prosecutor Gurdial Singh pointed out that Israel not only failed to file criminal charges against Yaron and his subordinates but subsequently awarded and repeatedly promoted the general and his circle. Yaron was therefore found guilty as accused.
Responsibility of the State
International law has traditionally taken for granted the immunity of states from prosecution by a court in another country. There are several reasons for immunity of states, even for high crimes such as genocide and serious violations of various humanitarian codes.
– International law and the treaty system are based on the principle of equality among states, which are parties to and enforcers of international agreements. The criminal conviction of a state for serious crimes would automatically weigh against the accused party, thereby causing an imbalance in relations and introducing unfairness to the international system.
-The sovereignty of states is a fundamental protection against aggression or undue interference by a foreign state or alliance of nation-states.
– As argued by defense counsel Matthew Witbrodt, prosecution of and penalties imposed on a state would result in collective punishment of all of its citizens. (Since the Treaty of Versailles that ended World War I, the international community has tried to avoid forms of collective punishment, including heavy war reparations.)
On the other side of the coin, total immunity for the state can encourage violations of international law by dictatorial, racist and/or bigoted regimes. The absence of legal challenge by foreign courts therefore leaves few legitimate means to pressure the offending state. The more “peaceful” methods include economic sanctions, which can be interpreted as a type of collective punishment against a victimized citizenry.
With no legal recourse to counter mass atrocities, other states then must launch interventions through extralegal and often illegal strategies of covert warfare, proxy insurgencies or biased peacekeeping operations. The subsequent invasion and occupation by self-appointed saviors can be more harmful to the people, and to the principles of law, than the original violations of the offending regime.
Thus, quoting its opinion upon the verdict, a “reason the Tribunal wishes to reject the doctrine of absolute state immunity from prosecution in matters of genocide, war crimes and crimes against humanity is that the existing international law on war and peace, and humanitarianism, is being enforced in a grossly inequitable manner. Small, weak nations, mostly in Africa and Asia , are periodically subjected to devastating sanctions, military interventions and regime changes. At the same time, unbearable atrocities and brutalities are inflicted on the military weak nations of Latin America, Africa and Asia by powerful nations in the North Atlantic and their allies go unscrutinized and unpunished.”
The alternative to the law of the jungle applied by self-appointed unilateral powers or coalitions of the willing is the reform of international law to balance sovereignty with the responsibility of the state for high crimes such as genocide.
In its opinion on the ruling, the Tribunal therefore offered a rational method for limiting sovereignty in cases of gross crimes: “Where there is a conflict between two principles of law, the one hierarchically higher in importance should prevail. To our mind, the international law doctrine against impleading (suing) a foreign state, being lower than that that of the prohibition against genocide, resulted in the charge against the State of Israel.”
The Tribunal did not spell out how a genocide ruling can be enforced or provide a model for a reconstitution of state. Presumably and theoretically, the general effect of genocide-based restrictions on sovereignty would be to dissuade and deter state administrations from perpetrating mass atrocities with impunity. Under a legal standard for common action to stop genocide, a preventive intervention could then proceed under accepted rules of engagement and with safeguards against unwarranted violence by peacekeepers. When an inherently extreme policy in embedded in the constitution or state regulations, a lawfully grounded international authority could then abolish that state structure and reconstitute a legitimate state subject to a referendum. A legal process for constitutional change is far preferable to the current method of arbitrary regime change favorable to the interests of and politically subservient to an occupation authority. This remains hypothetical, showing only that the international community is yet to seriously consider the alternative to the present unlawful model.
Restriction of state sovereignty, as the Tribunal noted, is a new and evolving trend in international law. The U.S. permits its citizens to file lawsuits in federal court against states that harbor terrorists, and although this is covered under tort law, such cases inherently restrict the sovereignty of foreign countries. The European Union has also constrained the sovereignty of member states. Under the 1978 State Immunity Act, the British privy council ruled that vessels owned by foreign governments are subject to the same liability laws as commercial vessels.
As argued by the Tribunal panel in their opinion, “We find it rather mind-boggling when some courts can consider commercial disputes as a reason for not allowing a state to be shielded by the state immunity principle and yet strenuously protect such a state in cases of genocide or other war crimes. Human lives cannot be less important than financial gain.”
The vigorous and often well-founded arguments by the Amicus Curae team in defense of Israel were constructive criticism that greatly helped to focus the Tribunal on the complexities of international law. In heated courtroom debate, defense counsel Jason Kay Kit Leon opined that “the elephant in the room” was Palestinian terrorism against Israeli civilians, for instance, the launching of unguided rockets at settlements, and that Israeli forces have acted in self-defense. The thrust of his claim was based on “In Defense of Israel” by Harvard law scholar and attorney Alan Dershowitz.
The jurists, however, accepted the prosecution argument. “It is our finding that much of the Palestinian-generated violence is not on Israel’s own territory, but from and on Israeli-occupied Palestinian land. Much of the violence perpetrated by Palestinians in a reaction to the brutalities of the vicious racism and genocide that is a tragic feature of Palestinian life.”
The opinion went further, by stating: “We also hold that the force of the IDF is excessive, totally disproportionate and a violation of international humanitarian law. The methods used are unspeakably inhumane and amount to war crimes.”
Earlier disputes within the Commission had led to a two-month adjournment of trial proceedings due to harsh and sometimes bitter accusations between participants. In the conflicted process, several judges recused themselves or were absent due to schedule conflicts and one prominent prosecutor resigned in protest of suspected tampering of the judicial panel. These controversies fortunately served to clarify rather than muddy the legal issues and court procedures, resulting in stronger arguments on both sides. Taking Israel to task is never an easy proposition.
Thereby, a stunning precedent in international law was achieved with the Tribunal’s unanimous decision to charge a state for the high crime of genocide. The arguments and verdict against the State of Israel will undoubted be a hotly debated test case for legal scholars over years to come. Since its Charter does not allow an appeal process, the case of “The Kuala Lumpur War Crimes Commission Against the State of Israel” will stand as the nub of controversy for human-rights law and the principle of sovereignty for nation-states.
While citing several precedents, the strongest argument for implication of the state is outlined in the 2007 genocide case of Bosnia and Herzegovina v. Yugoslavia , which covered the Sebrenica massacre of Bosnian Muslms by Serb-dominated federal armed forces. As Canadian jurist John Philpot, who earlier served on the Rwanda Tribunal, pointed out following the reading of the verdict “Bosnia/Herzegovina clearly laid out the culpability of the state and thus served as the precedent for our judgment against Israel .”
According to the Bosnia/Herzogovina ruling, “Genocide is a international crime entailing national and international responsibility on the part of individuals and states” and “if an organ of the state, or a person or group whose acts are legally attributable to the state, commits any of the acts proscribed by Article 3 of the (Genocide) Convention, the international responsibility of that state is incurred.
A point to note: The Rwanda and Yugoslavia genocide cases, are considered by some legal experts to be flawed by the underlying covert and illegal factor of great-power interference. These cases were cited infrequently and judiciously by the Kuala Lumpur Tribunal, which exercised proper case in selection of appropriate passages, while relying on a much wider range of legal precedents in regard to liability of the state.
Critique: Going Beyond Reparations
Until this genocide ruling by the Kuala Lumpur Tribunal, offending states and their foreign sponsors have evaded responsibility while the entire burden of guilt has been placed on the individual agents of weak nation-states. Under the Tribunal ruling, both the core state apparatus – including the executive office, military command, intelligence agencies, supportive ministries and, in many cases, the judiciary and police – bear as much and, in some cases, more criminal responsibility for genocide as individual leaders or military officers.
Yet that is still insufficient when the primary responsibility should rest on powerful sponsor states that move from supporting the offending regime toward punishing its rebellious hubris. The nexus of powerful and ruthless states and global elites, with their machinery for war-making and arms production, creates the political state of siege, the economic strangulation and the covert weapons trade that prompt weaker states to perpetrate genocide.
Barely addressed in just one paragraph of the Tribunal opinion is the reality that powerful states oppose any dilution of their absolute state immunity with the unspoken objective of preserving their war-making powers. The dominant Atlantic allies have cited genocide solely as a pretext to expand their global domain though invasions under a broad and vague “responsibility to protect” principle and have imposed new constitutions on defeated adversaries authored by foreign legal scholars while guised as the ideals of domestic political revolutions. Meanwhile, their own genocidal state structures, centered in the national-security structure and military command, categorically reject any international controls over extralegal interventions operated under the cover of humanitarian operations.
Also, in limiting its call for remedial action to reparations from Israel , the Tribunal wasted a precious opportunity to demand full justice for the Palestinian nation. What is realistically required is an international peacekeeping force to guarantee the withdrawal of the Israeli miltary and police force from Palestinian territory until a domestic law-enforcement and security force can take over; the elimination of wall-fences, checkpoints and other barriers to the free movement of citizens; the return of occupied land in Palestine; financial restitution for the loss of lands and property inside the boundaries of Israel; and an official apology for the countless crimes committed.
Furthermore, the continuity of genocide perpetrated by the core state structure and abetted by the complicity of much of the Israeli population demands that the offending state must be reorganized under a new constitution free of religious bias and racial discrimination to ensure legal norms that prevent a repetition of genocide. This objective should require an international occupation of Israel in event that powerful elements in Israeli society refuse to comply with international law. Israel should be spared the violence unleashed against the Third Reich, but stern justice and strong rule of law are nonetheless required in situations of ideological conformity based on the goals of genocide.
Courage and Wisdom
Whatever its few shortcomings, the Kuala Lumpur Tribunal demonstrated immense courage, foresight and wisdom in leveling the long-overdue charge of genocide against the State of Israel. The Tribunal correctly framed genocide in the context of international law rather than merely as a localized violation. The verdict along with the sophisticated judicial opinion provides an important initiative toward deterring the great powers from promoting and exploiting genocides among weaker nations and victimized peoples.
The Tribunal verdict raised not only a legal challenge to supporters of the Zionist cause in the United States and Europe but also appealed to universal moral principles in the tradition of high-minded rhetoric. “Much as we condemn violence and pray for peace, it must be stated that no power on Earth can douse the flame of freedom from the human spirit. As long as there is suppression, there will always be people prepared to die on their feet rather than live on their knees.”
The precedent-setting decision by the Kuala Lumpur Tribunal is a giant step forward not only for dispossessed Palestinians but also for humanity as a whole.
Author: Yoichi Shimatsu, an East and Southeast Asia focused journalist, is former editor of The Japan Times Weekly in Tokyo.
Illegal Tribunal – Illegal Indictment
Statement of the International Progress Organization on the Hague War Crimes Tribunal’s indictment of Serbian Leaders
Dr. Hans Koechler, President [posted 23 April 2001]
[The following statement was written just after the ‘War Crimes Tribunal’ brought ‘indictments’ against Slobodan Miloshevich (Milosevic) and other Serbian government leaders in 1999. The text was sent to us recently by a contributor from Germany. It was published by the International Progress Organization, an NGO (non-governmental organization) which has worked in various associations with the United Nations for almost 30 years. It makes excellent points, especially about the sheer illegality of the “War Crimes Tribunal”. We post it for your information – Jared Israel.]
The International Progress Organization hereby presents the following legal observations on today’s “indictment” by the “International Criminal Tribunal”:
1. The “indictment” issued by the “Chief Prosecutor” of the so-called “International Criminal Tribunal for the Former Yugoslavia” is legally invalid because this “Tribunal” has no jurisdiction whatsoever in the present or any other case.
2. The “Tribunal” derives its raison d’être exclusively from Security Council resolution 827, adopted at the Council’s 3217th meeting on 25 May 1993. In this resolution, establishing the so-called “International Criminal Tribunal,” the Security Council states that it acts “under Chapter VII of the Charter of the United Nations.”
3. When adopting the above resolution, the Security Council acted ultra vires. According to the provisions of the U.N. Charter, the Council has no competence whatsoever in judicial matters. The provisions of Chapter VII determine the Council’s competence in matters of international security but not in matters of criminal justice or other judicial matters. The sole authority in international judicial matters rests with the International Court of Justice.
4. The “determination,” in the preamble of Security Council resolution 827, paragraph four, that the “widespread and flagrant violations of international humanitarian law” on the territory of the former Yugoslavia “constitute a threat to international peace and security” does not provide a sound legal basis for the Security Council acting as a surrogate judicial authority or establishing an international court with jurisdiction in this or any other case.
5. It is regrettable that the institution of the Security Council, while being unable to stop the undeclared war waged by NATO countries against Yugoslavia in violation of international law, and while being prevented, because of the veto power of countries conducting the present war, from restoring international peace and security in Yugoslavia, is now being used to take a so-called “judicial” action against the legitimate Head of State and other high officials of the country under attack.
6. Under the present circumstances, the move by the “Chief Prosecutor” of the Tribunal. Ms. Louise Arbour, can only be considered of political nature. This interpretation is confirmed by today’s statement of the President of the United States who declared that the “indictment” by the “Tribunal” can be seen as an endorsement of NATO’s campaign.
7. The purely political nature of the “indictment” and the lack of any legal validity of this decision can further be seen from the fact that the “President” of the so-called Tribunal. Ms. Gabrielle Kirk McDonald (United States of America), the “Chief Prosecutor,” Ms. Louise Arbour (Canada), and the investigating “judge” in the present case, Mr. David Anthony Hunt (Australia), are citizens either of NATO member countries directly responsible for the undeclared war against Yugoslavia or of a country fully endorsing the NATO war. If the “Tribunal” would have taken general legal standards of impartiality seriously, it would have been obliged to determine that there is a conflict of interest for “judges” from countries waging an undeclared war against Yugoslavia to sit on such a panel initiating “judicial” action against the Head of State of the country under attack.
8. The political nature of the “indictment” was further made obvious by the “Chief Prosecutor’s” press statement earlier today in which she expressed her view that the “indicted” Head of State cannot be considered a partner of any negotiations about a peaceful settlement of the conflict. Such a statement makes a mockery of whatever legal standards the so-called “Tribunal” claims to adhere to. By her statement, the “Chief Prosecutor” has tried to act as a surrogate politician and to influence political events in the interest of those NATO countries presently waging war against Yugoslavia.
9. When, in violation of the United Nations Charter, a self-appointed group of states claiming to act on behalf of international peace and human rights, wages an all-out war against a sovereign member state of the United Nations and deliberately destroys the civilian infrastructure of that country with impunity, the present move by functionaries of the so-called “Tribunal” to declare the legitimate leaders of the country under attack as criminals, can only be seen as an act to hamper the international community’s efforts to settle the conflict in Yugoslavia by peaceful means. This move undermines all efforts to settle the conflict within the framework of the United Nations and only prolongs the suffering of the people of Yugoslavia including the Kosovar Albanians.
10. It would be fitting that the so-called “Tribunal”- if it wants, at least, to prove its credibility in terms of basic moral standards, in spite of its legal incompetence as explained above – should also turn its attention to the practices applied by the NATO coalition in its undeclared war against the people of Yugoslavia (including the province of Kosovo).
The provisions of Article 3 of the so-called “Tribunal” identify, among others, the following practices as “violations of the laws or customs of war”:
(a) “employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;” (c) “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;” etc.
NATO’s use of depleted uranium missiles and of cluster bombs, NATO’s attacks on villages, civilian buses etc. fall clearly within the definition of “violations of the laws or customs of war” as given in the Statute of that very “Tribunal” not to speak of the numerous grave breaches of the Geneva Conventions of 1949 committed by the NATO alliance, for which the “Tribunal” also claims to be competent according to Article 2 of its Statute. As long as the “Tribunal” does not take action against those NATO politicians and military officers responsible for these grave breaches of international humanitarian law, the “Tribunal” can only be considered as one more futile exercise in the political use of judicial procedures within the framework of a “policy of double standards” which seems to be the essence of power politics in NATO’s “New World Order.”
11. A dangerous precedent is being created by this new use of judicial procedures for the purposes of power politics. The separation of powers, one of the basic requirements of the rule of law, is being completely neglected when a purely political organ of the United Nations, the Security Council, arrogates to itself judicial powers by establishing an “International Criminal Tribunal,” and when the functionaries of this “Tribunal” act as surrogate politicians effectively hindering a political settlement of an international armed conflict. The sole responsibility for whichever judicial matters in international affairs rests with the International Court of Justice. It is this institution alone that decides on the legal questions related to aggression by one state or a coalition of states against another state, and that decides on issues of international humanitarian law.
12. Because of the regrettable paralysis of the Security Council, the member states of the United Nations as represented in the General Assembly should take immediate action on the basis of the “Uniting for Peace Resolution” (res. 377 A [V] of the General Assembly) in order to prevent a further dangerous deterioration of the situation in Yugoslavia. When otherwise invalid legal procedures are being used to prevent a just political settlement and when the ongoing large-scale bombing of Yugoslavia causes an ecological disaster rendering large areas uninhabitable, urgent action is required by the international community. If this new form of self-righteous power politics is not being checked, similar action may be taken in the time to come against other sovereign countries and their leadership. In this case, the “rule of force” will replace whatever remains of the “rule of law” in international relations. International anarchy will be the inevitable result. All political leaders and people of good will should unite against this most serious threat to the international order since the end of the Cold War.
Dr. Hans Koechler, President
[Reprinted from the IPO Website at http://i-p-o.org/yu-tribunal.htm]
May 11, 2011 9:55 PM
Rome Contact Group, ICC – Further proof of Western aims in Libya
By Abayomi Azikiwe, Editor, Pan-African News Wire
In early May two significant developments occurred in the imperialist war against the oil-rich North African state of Libya: the various governments and economic interests that are attempting to overthrow the Libyan government convened a meeting of the so-called “International Contact Group” in Rome on May 5; and the International Criminal Court based in The Hague announced on May 4 that it would seek arrest warrants against high-level Libyan officials, including Moammar Gadhafi and his family members.
Italy is the former colonial ruler of Libya. Italian colonial troops killed or displaced nearly half of Libya’s population while repressing an anticolonial struggle in the first decades of the 20th century. That this European capitalist country, which is a large recipient of Libyan oil and natural gas, would host such a gathering speaks volumes about the blatant efforts by Western capitalist states to seize Libya and its natural resources.
The ICG announced the establishment of a fund to finance the counterrevolutionary rebel groups that are fighting at the behest of the Western states to overthrow the Libyan government. Under the banner of the Transitional National Council, the rebels are slated to receive hundreds of millions of dollars from the imperialist states.
Media reports indicate that the TNC requested $2 to $3 billion in funding. The Italian Foreign Minister Franco Frattini said at the conference that the creation of a rebel fund would “permit funds to be channeled effectively and transparently” to the opposition forces in Libya. The British government has also been cited as a major proponent of the creation of the fund to finance the rebels. (BBC, May 5)
British Foreign Secretary William Hague claimed that the monies contributed to the fund would not be used for military purposes. Hague said: “This money will help them to keep basic services going … because in the east of Libya they still need to be educating people, to keep public services moving and they have to meet the expenses of all that and they don’t have much tax revenue at the moment.”
The British government has also placed special forces inside Libya in order to train the rebel troops as well as identify targets for NATO’s ongoing bombing campaign. Other reports have indicated that the British are placing military advisers inside Libya and on the border with Tunisia. According to the BBC, “The UK has already provided $21.5 million in aid to the rebels.”
The Obama administration has also pledged money to the rebels inside eastern Libya, including $53 million in so-called “humanitarian aid” and an additional $25 million to provide medical supplies, combat boots, rations and protective gear. Another shipment of U.S. aid is scheduled to arrive in the rebel stronghold of Benghazi during the second week of May.
Other pledges of assistance to the anti-Libyan forces came from the U.S.-backed monarchies in Qatar and Kuwait. Qatar said during the Rome gathering that it would supply $500 million to the rebels. Kuwait offered $180 million.
In addition to discussions about providing financial aid to the rebels, there were also deliberations on how to tighten the economic sanctions by the Western imperialist states against the Libyan government. The Romemeeting reiterated its aim of preventing the oil-rich North African state from exporting crude oil or importing refined petroleum, as well as using other means to isolate Libya from world trade markets. In addition, there were plans to take the Libyan government funds frozen by the U.S. and the European states, reputed to be over $50 billion, to finance operations in the war against the North African country.
The Rome meeting’s final statement emphasized: “The regime [Libyan government] must not be allowed any access to oil and gas revenues to support actions against the Libyan people.” Consequently the economic sanctions are designed to bolster the U.S./NATO military campaign of bombing from the sea and air, along with the sabotage attacks by the rebels on the ground.
The ICC’s role
Referred to by many as the “African Criminal Court,” the International Criminal Court based in The Hague has a reputation of only targeting and indicting states and individuals on the continent. The ICC has issued warrants against Sudan President Omar al-Bashir and other leading figures within that oil-rich nation. Most African and Arab states have opposed the ICC warrants against the political leadership in Sudan. President Omar al-Bashir has traveled to numerous African and Arab states and is welcomed with full diplomatic decorum.
ICC Prosecutor Luis Moreno-Ocampo has already indicated that he will issue indictments against at least three Libyan officials.
In May 5 Moreno-Ocampo addressed the United Nations Security Council, which passed Resolutions 1970 and 1973 that provide the legal rationale for direct NATO military intervention in Libya. The ICC is claiming there was a “pre-determined plan” to attack antigovernment protesters.
There is no reference to the U.S. CIA’s decades-long plans to assassinate and overthrow the Gadhafi-led government. The ICC has never taken any action against the U.S. and British imperialist states for their crimes committed against the peoples of Iraq, Afghanistan, Iraq, Pakistan and Palestine.
One U.S.-based organization, Human Rights Watch, has urged the Security Council to declare its support for the ICC indictments against Libyan officials. But HRW has not opposed the U.S./NATO intervention and bombing of Libya and routinely ignores the Pentagon’s use of depleted uranium weapons and the killing of civilians and other people inside Libya.
HRW also neglects the gross human rights violations taking place daily within the U.S. Instead, this organization almost exclusively focuses on alleged human rights violations in postcolonial and developing countries that the imperialist states have targeted for regime change.
The indictments by the ICC and the HRW appeal to the Security Council to take further actions against Libya are clearly designed to coincide with the stated aims of the U.S., Britain, France, Italy, the Netherlands, Canada and their allies within NATO and other geopolitical regions. These imperialist governments and the other U.S.-backed Middle Eastern states, in conjunction with the rebels, have maintained that they do not want a negotiated settlement but that the country must be totally transformed into an outpost for Western military and economic interests.
In her May 6-8 Counterpunch article, Diana Johnstone pointed out: “The United States and its citizen are immune to prosecution, first of all because the United States has used its unprecedented economic and political clout to pressure countries into signing Bilateral Immunity Agreements (BIAs) that exempt Americans from prosecutions. One hundred and two countries have signed BIAs with the United States.”
Libya resists military assault
Despite the NATO onslaught and the arming and financing of the rebels, who are assisted by various intelligence agencies and Special Forces, the Libyan government is defending its territory and state and has prevented the arming of the rebels through the port at Misrata, where Libyan forces have been targeted by NATO bombing raids. The Libyan military is also hampering weapon smuggling across the Tunisian border to areas around Misrata.
On May 8 NATO bombed western Tripoli and the city of Zintan southwest of the capital. On the previous day in Misrata, Libyan military forces took out oil refueling facilities used by the rebels in their campaign against the central government.
Conditions for people inside the country have worsened since the beginning of the NATO bombing on March 19. The bombing has imposed great hardship on the Libyan people as well as on the two million guest workers who relied on Africa’s most vibrant economy for their livelihoods. Tens of thousands of Libyans and guest workers have fled the country.
Many others have been seriously injured and killed in unsafe boats, which were supposed to take them to safety in other parts of the country or to Europe. A May 8 report in the Guardian asserted that NATO left 70 African migrant workers to die: “All but 11 of those on board died from thirst and hunger after their vessel was left to drift in open waters for 16 days. International maritime law compels all vessels, including military units, to answer distress calls from nearby boats and to offer help where possible.”
These incidents are coming to light daily. Finding a just peace will be crucial in any reconstruction and national reconciliation process.
As the 53-member African Union has emphasized repeatedly, the peace plan advanced by the continental organization on March 11 must be implemented. The AU plan calls for an immediate ceasefire, the withdrawal of foreign military forces, respect for the territorial sovereignty of the country, the protection of civilians and migrant workers, and the beginning of serious negotiations between the warring parties.
AU Commissioner Jean Ping told the Rome Contact Group on May 5 that the failure of the gathering to move toward negotiations, as opposed to aerial bombardments, business deals and support for the rebels, would only create further problems for Libya and its regional neighbors. Ping noted, “The AU has no agenda in Libya other than to facilitate the resolution of the crisis and a democratic transition in that country.” (Afrique en ligne, May 9)
At the same time, high-level meetings between Russia and China have taken place, and a joint statement on the situation in Libya was released. It points out, “Every nation should determine its future independently without outside interference.” (Asia Times, May 9) A People’s Daily editorial several weeks ago stated: “Libya was at a stalemate; the Moammar Gadhafi regime had proved resilient; and the Libyan opposition was overrated by the West.”
All of the major Western military interventions are exposing these countries to extreme economic crises as well as growing political opposition, both domestically and internationally. There is no solution for the workers and oppressed in the capitalist countries except by ending the imperialist wars of occupation.
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International Criminal Court
International Criminal Tribunal for the Former Yugoslavia
International Criminal Tribunal for Rwanda
The Special Court for Sierra Leone
Special Court for Cambodgia
Ad-Hoc Court for East Timor
The Iraq Tribunal
It is, of course, now all about oil. Only a simpleton could believe that Abdelbaset Ali al-Megrahi, convicted of responsibility for the Lockerbie bombing, was not recently returned to his home in Libya because it suited Britain. The political furore is very obviously contrived, since both the British and American governments know perfectly well how and for what reasons he came to be prosecuted. More important than the present passing storm is whether any aspect of the investigation that led to al-Megrahi’s original conviction was also about oil, or dictated by other factors that should have no place in a prosecution process.
The devastation caused by the explosion of Pan Am Flight 103 over Lockerbie, at the cost of 270 lives, deserved an investigation of utter integrity. Article 2 of the European Convention on Human Rights demands no less. Where there has been a death any inquiry must be independent, effective and subject to public scrutiny, to provide the basis for an attribution of responsibility and to initiate criminal proceedings where appropriate. But, in the absence of this, a number of the bereaved Lockerbie families have of necessity themselves become investigators, asking probing questions for two decades without receiving answers; they have learned sufficient forensic science to make sense of what was being presented at al-Megrahi’s trial and make up their own minds whether the prosecution of two Libyans at Camp Zeist near Utrecht was in fact a three-card trick put together for political ends.
Perhaps the result could have been different if there had been an entirely Scottish police investigation, with unrestricted access to all available information, without interference or manipulation from outside. Instead, from the beginning, the investigation and what were to become the most important aspects of the prosecution case against al-Megrahi were hijacked. Within hours, the countryside around Lockerbie was occupied: local people helping with the search under the supervision of Dumfries and Galloway police realised to their astonishment that the terrain was dotted with unidentified Americans not under the command of the local police.
Each aspect of every criminal investigation in Britain has to meet certain essential standards; where they are not met, these parts of the investigation should not in principle become the basis of a prosecution. There must be precise notes made of each physical exhibit found and by whom; its movements must be tracked; each time an exhibit is inspected, a record must be kept. The rationale is obvious: without a precise record, interference, contamination or simple mistakes could jeopardise a prosecutor’s reliance on evidence that should be tangible and therefore potentially more convincing. For that reason, a crime scene must be sealed off until searches are complete.
Those engineering the destruction of a transatlantic airliner in mid-flight might have believed that it would be likely to happen over the sea. Instead, Pan Am 103 was destroyed over the Scottish town of Lockerbie and its fall-out was scattered over an area too huge to cordon off. The first and most desperate searches were for the passengers: could any have survived? Volunteers included a police surgeon from Yorkshire who had driven to the site as soon as he heard the news; together with the local police, he and others searched non-stop for 24 hours. They found bodies, none showing any sign of life; the doctor labelled each of the bodies he found, more than 50 of them, noting the place of discovery. Once it was clear there were no survivors, a search for evidence of the cause of the explosion would begin.
Extraordinarily, however, distinct from the Dumfries and Galloway police, scores of men, some wearing no insignia, some the insignia of the FBI and Pan Am (it was noted at the time that many of these men were clearly not Pan Am staff), invaded the area. Lockerbie residents reported seeing unmarked helicopters hovering overhead, carrying men with rifles whose telescopic sights were pointing directly at them. And when, much later, items of baggage came to be married up with the passengers they had accompanied, there were disturbing signs of interference. The suitcase belonging to Major McKee (a CIA operative flying back to the US to report on his concern that the couriering of drugs was being officially condoned as a way to entrap users and dealers in the US) was found to have had a hole cut in its side after the explosion, while the clothes in the suitcase were shown on subsequent analysis to bear no trace of explosives. A second suitcase, opened by a Scottish farmer, contained packets of white powder which a local police officer told him was undoubtedly heroin; no heroin was ever recorded as having been discovered. All but two of the labels that Dr Fieldhouse attached to the bodies he found were removed and have never been found.
Although the crime was the most hideous Scotland had ever known, the integrity of the crime scene was violated; in part because outsiders were conducting a desperate search for wreckage that it was important for them to find and spirit away. As many police investigations over the years have demonstrated, such distracting irregularities can simply be red herrings, and these intrusions may have no bearing on the question of who blew up Pan Am 103. Was it individuals? Was it a country? And if so which one? From the very beginning, in fact, it seemed that the case could and would be easily solved. Considerable (and uncomplicated) evidence immediately to hand suggested who might be responsible; it was as if giant arrows were pointing towards the solution.
In the weeks before the bombing in December 1988 there had been a number of very specific warnings that a bomb would be placed on a Pan Am aircraft. Among them was a photograph of a bomb in a Toshiba cassette radio wired to a barometric timer switch; a number of such bombs had been found earlier in 1988 in the possession of members of a small group with a history of successfully carrying out bombings, primarily of American targets. One group member told police that five bombs had been made; at least one was missing at the time of the Lockerbie disaster and never recovered. The warnings were sufficiently exact that the staff of the American Embassy in Moscow, who usually travelled by Pan Am when they returned to the US for Christmas, used a different airline. Flora Swire, who was travelling to New York to spend Christmas with her boyfriend, found it surprisingly easy to buy a ticket.
All the Toshiba cassette bombs that had been seized were found, when tested, to run for 30 minutes after they were set. The advantage of barometric timers is that they aren’t activated until the plane is airborne – the bomb won’t go off on the ground if the plane is delayed. Some seven or eight minutes would elapse before the air pressure dropped enough as the plane gained height to activate a barometric timer set to go off 30 minutes later, i.e. 37 or 38 minutes after the flight took off. It was precisely 38 minutes after Pan Am Flight 103 took off from Heathrow on 21 December 1988 that it exploded over Lockerbie; when the remnants of the destroyed plane and its contents were put together piece by piece by the Dumfries and Galloway police, fragments of a Toshiba cassette radio were found.
Forensic scientists believed that the radio had been in a suitcase in which there were clothes whose label was traced to a shop in Malta. A search of the house of a man affiliated to the group that manufactured the Toshiba bombs produced clothes bought in Malta; it was established too that he had travelled to Malta before the bombing. And the owner of the Maltese shop from which the clothes were thought to have been purchased identified to his brother, without prompting, a newspaper photograph of that man as the person who had bought the clothes found in the suitcase with the bomb inside.
But the man who bought the clothes was not al-Megrahi, nor was he Libyan. The group making Toshiba radio cassette bombs had no connection at all with Libya. Neither the man nor the group was ever prosecuted for involvement in the Lockerbie bombing. The fact that the explosion took place exactly when one would have expected it to if a Toshiba cassette bomb had been used was ignored: the bomb had not, the prosecution contended at al-Megrahi’s trial, been triggered by a barometric switch in this way. The Lockerbie device, it claimed, was different from the devices made by the group. The difference was that it was a Toshiba cassette radio with one speaker rather than two. From a logically compelling case that seemed to point clearly in one direction the prosecution switched tack, but not at the beginning: not, in fact, until two years after the bombing, when the politics of the Middle East shifted and new allies had to be found quickly if the flow of cheap oil were to continue.
It is not difficult to achieve a conviction of the innocent. Over many decades several common factors have been identified, and the majority of them are present, centre stage, in this case: achieving the co-operation of witnesses by means of a combination of inducements and fear of the alternative (the tried and tested method of obtaining evidence for the prosecution on which many US cases rely); the provision of factual information by scientists where there is no proper basis for it (a recurrent theme in UK convictions as well as in the US); reliance on ‘identification’ evidence which is no such thing. Add to that the political will to achieve a prosecution, and the rest is easy. Fabrication demands outright dishonesty, but it isn’t always necessary, or necessary in every aspect of an investigation: the momentum of suspicion, and a blinkered determination to focus on a particular thesis and ignore evidence pointing to the contrary, is a certain route to achieving the desired end. Al-Megrahi is reported as saying that he has evidence, which will be revealed on his death, that will prove his innocence. But it is clear even from the evidence that can be looked at today that his conviction was extremely disturbing.
For the first two years there was no mention at all of Libya. The investigation originally seemed to have clear evidence of a motive (tit for tat retaliation); evidence of the existence of a bomb intended to destroy airliners in mid-flight contained in the same brand of cassette radio discovered on the plane; and evidence implicating a Palestinian splinter group, the Popular Front for the Liberation of Palestine – General Command, which was prepared at the time to hire itself out to regimes that were known to be state sponsors of terrorism; Syria was one (somewhat earlier, Libya had been another), so was Iran.
Behind every crime there is of course a motive. For the initial prime suspect, Iran, the motive was brutally clear. In July 1988 a US battleship, the Vincennes, shot down Iran Air Flight 655 in the Persian Gulf, with 290 passengers, many of them pilgrims en route to Mecca. There were no survivors. By chance a television crew was on the Vincennes when the attack took place and images of triumph at the carnage were immediately beamed around the world. When it became clear, as it did straight away, that the attack was an appalling error, the US compounded its mistake: President Reagan claimed self-defence and the ship’s commander and crew were awarded high military honours.
Two days after the downing of the Iranian airbus, Tehran Radio condemned the attack as an act of naked aggression and announced it would be avenged ‘in blood-splattered skies’. At the same time, US Air Force Command issued a warning to its civilian contractors: ‘We believe Iran will strike back in a tit for tat fashion – mass casualties.’ Warnings became more specific: ‘We believe Europe is the likely target for a retaliatory attack . . . due to the large concentration of Americans and the established terrorist infrastructures in place throughout Europe.’ Within days, US intelligence was convinced that Iran meant business; and the CIA in due course acknowledged that it had intelligence that Ahmad Jibril, the leader of the PFLP-GC, had met government officials in Iran and offered his services.
Such a partnership would indeed have been ominous, since the activities of the PFLP-GC had since 1970 included planting bombs on planes – bombs built into transistor radios and detonated by a barometric pressure switch. It was in this context that the flood of warnings immediately preceding the disaster had obvious significance for the subsequent investigation. One of them read: ‘team of Palestinians not associated with PLO intends to attack US targets in Europe. Time frame is present. Targets specified are Pan Am Airlines and US military bases.’ Five weeks before this warning, a PFLP-GC cell had been arrested in Germany. The PFLP-GC was precisely a ‘team of Palestinians not associated with the PLO’. Jibril’s right-hand man, Haffez Dalkamoni, was arrested in Frankfurt with a known bomb-maker, Marwen Khreesat, as they visited electrical shops in the city. In the boot of Dalkamoni’s car was a Toshiba cassette recorder with Semtex moulded inside it, a simple time delay switch and a barometric switch. Later US intelligence officials confirmed that members of the group had been monitoring Pan Am’s facilities at Frankfurt airport. Dalkamoni admitted he had supervised Khreesat when he built bombs into a Toshiba radio cassette player, two radio tuners and a TV monitor. He said that a second Toshiba containing similar pressure switches had been built. Although Dalkamoni was prosecuted in Germany, Khreesat was inexplicably released; it only later became clear that he had been acting throughout as an undercover agent for Jordanian intelligence, which is extraordinarily close to the CIA (the CIA played a central role in its creation). On Dalkamoni’s account, other bombs made by Khreesat were at large somewhere, including the one built into a second Toshiba player.
On 9 November 1988 Interpol circulated warnings about the PFLP-GC bombs. Heathrow Airport issued its own warning to security staff, stating that it was ‘imperative that when screening or searching radios, radio cassette players and other electrical equipment, staff are to be extra vigilant’. Over the next three weeks the airport received more information, including photographs of the Toshiba bomb from the German authorities. (A document giving information and advice was drawn up by the UK’s principal aviation security adviser on 19 December, but there were problems obtaining colour photographs and delays in the Christmas post and most airlines did not receive it until the new year, weeks after the disaster.)
In March 1989, less than three months after the downing of Flight 103, the then secretary of state for transport, Paul Channon, had lunch with some journalists. He talked, indiscreetly, of the brilliant detective work undertaken by the smallest police force in the country. Arrests, he told the journalists, were imminent. Although such conversations are customarily regarded as not for attribution, the next morning’s newspapers revealed that a cabinet minister had stated that those responsible for the Lockerbie bombing had been identified and would soon be arrested.
At precisely the same time, however, the US president, George Bush Senior, was reported by the Washington Post as having spoken to Margaret Thatcher about Lockerbie, advising her to keep Lockerbie ‘low-key’, to avoid prejudicing negotiations with Syrian and Iranian-backed groups holding Western hostages in Lebanon. There were no arrests; Channon left the cabinet; and political interest in the case and desire to identify who was responsible for the disaster disappeared. The victims’ families demanded evidence that a proper inquiry was being conducted and in September 1989 Channon’s successor, Cecil Parkinson, met the newly formed UK Families Flight 103. He promised them a full judicial inquiry. Thatcher countermanded this promise, and he returned to the relatives with an admission of total failure. ‘Low-key’ meant no judicial inquiry, no prosecution, and instead a Fatal Accident Inquiry with no powers to subpoena which declined to investigate how the bomb got on the plane for fear of interfering with police inquiries.
As political players grow old, they reminisce and sometimes they forget what they are meant to have said or not said. Five years later Parkinson took part in a television programme about another horrific disaster, the sinking of the Marchioness, in which he confirmed that it was Thatcher who had blocked a judicial inquiry. He remembered discussing with the Lockerbie relatives whether, ‘because the security services were involved’, a High Court judge could look into the security aspects and report privately to him: ‘Because when you get into the Lockerbie business – how did we find out certain information, how did we know this, how did we know that? – you would have had to recall not only our own intelligence sources but information we were receiving from overseas. Therefore that had to be a closed area.’ This suggested the real block.
Nevertheless, investigators had clearly remained confident that despite government diffidence a prosecution would soon be brought. Late in 1989 an imminent arrest once again seemed tantalisingly on the cards. The Sunday Times (known to enjoy detailed briefings from the police and security services) reported that the ‘net was closing’ on the Lockerbie suspects and stated categorically that the bombing had been carried out by the German PFLP-GC cell led by Dalkamoni under orders from Ahmad Jibril and with a bomb made by Khreesat. What was new was the suggestion that the bomb had first been put on a plane not in Frankfurt but in Malta. Clothes made in Malta, the report added, had been found in the suitcase in which police believed the bomb had been planted. A member of Dalkamoni’s cell, Abu Talb, who was then awaiting trial for separate offences in Sweden, had, it revealed, visited Malta. He was the man identified by the shop owner: the man who had clothes bought in Malta in his possession. The Sunday Times articles went on to predict that Abu Talb would be extradited at any moment to stand trial for the bombing.
The suggestion that the bomb was placed on a plane from Malta was made in an attempt to link the discovery of the Maltese clothes with the already existing evidence of the German group. As no passengers transferred from Air Malta to Pan Am 103A in Frankfurt, the feeder flight for Pan Am 103, it would have had to be an unaccompanied bag from Malta that carried the bomb. Two documents were said to have been discovered: a list of the stages followed by Frankfurt airport’s automated baggage system which related to Pan Am 103, and a handwritten worksheet from one of the several stations from which baggage came into the system. As this was official information, it must have been given lock, stock and barrel by investigators to the journalist in question.
A fundamental objection to the last part of the new thesis was blindingly clear: if the intended target was an American aircraft, why risk a premature explosion triggered by the barometric switch by putting the suitcase on an Air Malta flight? The scientific underpinning necessary to support a counter-proposition was established during 1989 and 1990 and rested on two ‘discoveries’: a fragment of an entirely different type of timer in the remnant of a shirt collar and the matching of that fragment with the manufacturer’s prototype. This timer, it was argued, could, once set, keep a barometric switch from detonating for days. It was in the development of this proposition that every safeguard fundamental to a criminal investigation came to be jettisoned.
That Iran and the PFLP-GC were responsible had fitted comfortably with UK and US foreign policy in the Middle East. Both countries had severed relations with Syria on the grounds of its persistent support for international terrorism; both had supported Iraq in the Iran/Iraq war, which ended in the summer of 1988. The obvious truth as it appeared at the time was that the Jibril group, sponsored in this instance by Iran, was a logical as well as politically acceptable fit.
Then, in August 1990, Saddam Hussein invaded Kuwait, thereby putting at risk almost 10 per cent of US oil supplies, and the stability of the Saudi and Gulf sheikhdoms on which the West depended to preserve the status quo in the region. A sudden shift of alliances was necessary: if Iraq had to be confronted, then Iran had to be treated differently and the Syrian regime needed to be brought on board. At the beginning of 1991 Syrians joined Western troops in the attack on Saddam Hussein’s invading army.
The centre of the Lockerbie investigation had by this time ceased to be Scotland: the CIA was in charge. Vincent Cannistraro had made his mark under Ronald Reagan, with a clandestine programme to destabilise the Libyan regime. He boasted that he ‘developed the policy towards Libya’ which culminated in the bombing of Gaddafi’s house in Tripoli in 1986 on the basis of intercept evidence later acknowledged to be false. Now brought out of retirement, Cannistraro shifted the investigation’s approach. The suspect country was no longer Iran but Libya, and in November 1991, the UK and the US made a joint announcement that two Libyan Airlines officials, Abdelbaset Ali al-Megrahi and Al Amin Khalifa Fhimah, had planted the bomb in Malta on behalf of Libyan intelligence. Douglas Hurd, the foreign secretary, announced to the House of Commons that Libyans alone were suspected and that other countries were not implicated.
Years of protracted negotiations were to take place before the Libyan government agreed to release the two men to stand trial in a ‘neutral country’. It was not until May 2000 that the two Libyan Airlines officials who had run the airline’s office in Malta finally went on trial – in a purpose-built court outside Utrecht created from a mothballed air-force base – under Scots law, albeit before three judges rather than a jury. What did Gaddafi expect when he agreed to the extradition of the two men? That they would in due course be exonerated because they were innocent but that he would meanwhile reap the diplomatic benefit by having delivered them? The idea of their individual responsibility was anyway peculiar: as agents of a state where not a mouse squeaks without the say-so of Gaddafi, al-Megrahi and Fhimah were either ordered to do what it was said they did, in which case dealing with Gaddafi as a statesman then and now has been beyond hypocrisy – or the thesis was wrong.
The key features needed to prosecute al-Megrahi successfully were the scientific identification of the circuit-board fragment, which would in turn establish its origin, and the identification of the purchaser of the clothes in Malta. The timers, the indictment stated, were made by a firm in Switzerland; their circuit board matched the fragment retrieved from Lockerbie, and they sold the timers exclusively to Libya. Everything, essentially, hinged on those links.
Who found the fragment? And who understood its relevance? Thomas Hayes of the Royal Armament Research and Development Establishment (RARDE) claimed the find (with his colleague Alan Feraday) and Thomas Thurman of the FBI claimed the analytical victory. All were swiftly hailed (or hailed themselves) as heroes. Thurman appeared on television on 15 November 1991, the day after indictments were issued against the two Libyans, boasting that he had identified the piece of circuit board as part of a timing device that might have been sold to Libyan Airlines staff. ‘I made the identification and I knew at that point what it meant. And because, if you will, I am an investigator as well as a forensic examiner, I knew where that would go. At that point we had no conclusive proof of the type of timing mechanism that was used in the bombing of 103. When that identification was made of the timer I knew that we had it.’ This was the claim – the hard evidence – that linked Libyans to the crime. If the claim was false the bereaved Lockerbie families have been deceived for 20 years.
On 13 September 1995 the FBI’s forensic department was the subject of a programme broadcast in the US by ABC. At its centre was a memorandum from the former head of explosive science at the FBI, Dr Frederic Whitehurst. It was a devastating indictment of a former colleague. The colleague was Thomas Thurman and the accusations related to his investigation of a terrorist attack in which a judge was killed by pipe bombs. Two years later, as a result of a review by the US inspector general, Michael Bromwich, into a large number of criminal investigations, Thomas Thurman was barred from FBI labs and from being called as an expert witness. Bromwich had discovered that he had no formal scientific qualifications and that, according to a former colleague, he had been ‘circumventing procedures and protocols, testifying to areas of expertise that he had no qualifications in . . . therefore fabricating evidence’.
Thurman had made the Libyan connection, and its plausibility relied on the accuracy of his statement that the fragment of circuit board proved that it would have been possible for the unaccompanied bag to fly from Malta without the seemingly inevitable mid-air explosion. And thus it was that a witness from Switzerland, Edwin Bollier, the manufacturer of the MEBO circuit board, was called on to provide evidence that such boards had been sold exclusively to Libya. Bollier was described by al-Megrahi’s barrister in his closing speech as an ‘illegitimate arms dealer with morals to match’. The evidence he was clearly intended to provide had begun to unravel even before the trial began. Sales elsewhere in the world were discovered, Thurman did not appear at the trial, and the judges commented that Bollier’s evidence was ‘inconsistent’ and ‘self-contradictory’. Other witnesses, they found, had ‘openly lied to the court’. Despite all this al-Megrahi was convicted.
Bollier had been one of the most potentially dubious of many dubious witnesses for the prosecution. But Dr Köchler, the UN’s observer throughout the trial, recorded that Bollier had been ‘brusquely interrupted’ by the presiding judge when he attempted to raise the issue of the possible manipulation of the timer fragments. Could the MEBO board, or a part of one, have been planted in such a way that it could be conveniently ‘discovered’? After the trial, new evidence that would have been at the centre of al-Megrahi’s now abandoned appeal made this suggestion more credible: a Swiss electronics engineer called Ulrich Lumpert, formerly employed by Bollier’s firm, stated in an affidavit to Köchler that in 1989 he stole a ‘non-operational’ timing board from MEBO and handed it to ‘a person officially investigating in the Lockerbie case’. Bollier himself told Köchler that he was offered $4 million if he would connect the timer to Libya.
There were throughout two aspects of the investigation over which the Scottish authorities exerted little authority: in the US, the activities of the CIA and in particular of Thomas Thurman and the forensic branch of the FBI; in England, the forensic investigations of RARDE, carried out by Hayes and Feraday. Without Hayes’s findings, the Lockerbie prosecution would have been impossible. His evidence was that on 12 May 1989 he discovered and tweezed out from a remnant of cloth an electronic fragment, part of a circuit board. The remnant of cloth, part of a shirt collar, was then traced to a Maltese shop. A number of aspects of the original circuit board find were puzzling. The remnant was originally found in January 1989 by a DC Gilchrist and a DC McColm in the outer reaches of the area over which the bomb-blast debris was spread. It was labelled ‘cloth (charred)’ by him, but then overwritten as ‘debris’ even though the fragment of circuit board had not yet been ‘found’ by Hayes. The fragment found by Hayes, and identified as a MEBO circuit board by Thurman, meant that the thesis of an Air Malta involvement could survive.
Even if one knew nothing of the devastating findings of the public inquiry in the early 1990s into the false science that convicted the Maguire Seven or of the succession of thunderous judgments in the Court of Appeal in case after case in which RARDE scientists had provided the basis for wrongful convictions, Hayes’s key evidence in this case on the key fragment should be viewed as disgraceful. There is a basic necessity for evidential preservation in any criminal case: every inspection must be logged, chronology recorded, detail noted. But at every point in relation to this vital fragment that information was either missing or had been altered, although Hayes had made meticulous notes in respect of every single one of the hundreds of other exhibits he inspected in the Lockerbie investigation.
No forensic scientist knows when he conducts his examinations whether or when there will be a prosecution that will depend on them; this makes it all the more important that his notes are exact. Hayes confirmed that it was his practice to draw pieces of circuit board where he found them – for instance in the vicinity of blast-damaged material – but he made no such drawings of this item, nor had he given it an exhibit reference number as he had every other exhibit being designated at the time, nor did he carry out a standard test for traces of explosive. Almost a month after his inspection of the timer fragment, Hayes was identifying and drawing exhibits which were given reference numbers smaller than the number of the vital exhibit. He recorded his finding on page 51 of his notes, but the pages originally numbered 51-55 had been renumbered 52-56 at some point. Hayes stated that he had ‘no idea’ when the change in pagination was carried out. The inference put to Hayes was that the original page 51 and the following pages had been renumbered, an original page removed and space made to insert what was now page 51 of his notes.
Curiously, a memorandum from Hayes’s colleague Feraday, written on 15 September 1989, to a detective inspector working on the case, referred to a fragment of green circuit board: ‘Willy, enclosed are some Polaroid photographs of the green circuit board. Sorry about the quality, it is the best I can do in such a short time.’ No one was able to explain why there should have been any shortage of time to make available in September 1989 photographs of an item that had been found on 12 May. Feraday’s note continued: ‘I feel that this fragment could be potentially most important so any light your lads or lasses can shed upon the problem of identifying it will be most welcome.’ Again no one was able to explain what light the lads and lasses could shed on something it was most curious they had not seen before now, given that Hayes had recovered it in May. Clearly it could not have been seen by the police before the cloth was passed to Hayes at RARDE and the fragment extracted by him. If Hayes had photographed the exhibit, as was his normal practice, then Feraday would not have needed to rely on Polaroids of dubious quality. The issue of his notes’ pagination was described by Hayes as ‘an unfathomable mystery’. In view of the importance of exhibit PT/35(b), how could the court have been satisfied by this evidence? The new evidence of the former MEBO employee who stole a circuit board would of course have been ripe for analysis by the Court of Appeal, which has now been discharged from considering new evidence in al-Megrahi’s lately abandoned appeal.
A secondary important proposition for the Crown to consider was that the suitcase was on the second layer of a luggage container on the aircraft – which meant that it must have come from Frankfurt. Examining the largest surviving fragment of the outside case of the Toshiba device on 25 January 1989, Hayes had considered its state consistent with its having been at the base of the container. This would have contradicted the Crown’s position that the device was in a suitcase that had arrived last, as unaccompanied baggage from Malta via Frankfurt, and so was nearer the top. By the time he gave evidence at the trial, Hayes had revised his assessment of its position.
(Since the trial, evidence new to the defence but known from the start to the police has surfaced of a break-in at Heathrow in the hours before the disaster. The Fatal Accident Inquiry, which didn’t have this knowledge, had made a finding in 1991 that Pan Am 103 was ‘under constant guard at Heathrow’. Iran Air’s hangar at Heathrow was next to Pan Am’s.)
This isn’t the first time we have heard of Hayes and Feraday. Among the many wrongful convictions in the 1970s for which RARDE scientists were responsible, Hayes played his part in the most notorious of all, endorsing the finding of an explosive trace that was never there, and speculating that a piece of chalk mentioned to the police by Vincent Maguire, aged 16, and a candle by Patrick Maguire, aged 13, ‘fitted the description better’ of a stick of gelignite wrapped in white paper. Both were convicted and imprisoned on this evidence, together with their parents and their uncle Giuseppe Conlon, who was to die in prison. All were later found to be innocent.
Although Feraday was often addressed by the prosecution as ‘Dr’ or ‘Professor’ when he gave evidence, he had no relevant academic qualifications, only a higher national certificate in physics and electronics some 30 years old. Dr Michael Scott, whose evidence has been preferred in appeals to that of Feraday, commented that ‘the British government employed hundreds of people who were extraordinarily well qualified in the areas of radio communication and electronics. Alan Feraday is not qualified yet they use him. I have to ask the question why.’ Feraday, like his US counterpart Thurman, has now been banned from future appearances as an expert witness, but he had already provided the key evidence in a roll-call of convictions of the innocent. A note of a pre-trial conference with counsel prosecuting Danny McNamee (who was wrongly convicted of involvement in a bombing in Hyde Park) provides a typical instance: ‘F [Feraday] prepared to say it [a circuit board] purely for bombing purposes, no innocent purpose.’ The implication here was that anyone who had involvement with this circuit board would have knowingly been involved in bomb construction. That, in common with many other assertions made by Feraday, was entirely false, but it resulted in McNamee’s imprisonment for 11 years.
To discover that al-Megrahi’s conviction was in large part based on the evidence of scientists whose value as professional witnesses had been permanently and publicly demolished ten years before his trial is astounding. The discovery nearly two decades ago of a large number of wrongful convictions enabled by scientific evidence rightly led to demands that the community of forensic scientists change its ways. Similarly, a series of catastrophic misidentifications required the introduction of sound new practices for evidence based on that most fragile of human attributes, visual memory. Witnesses must not be prompted; a witness’s memory, as far as possible, must be as safely protected from contamination as a crime scene. The first description is vital. If a witness makes a positive identification of one individual, no subsequent identification of a second is permissible. Equivocation and uncertainty are not enough. Even if the science that convicted al-Megrahi had not offended against every minimum standard, then the second pillar of the prosecution case, his identification by Tony Gauci, the Maltese shopkeeper, would remain spectacular in its noncompliance with any safeguard. He described al-Megrahi as ‘6’0’’’ (he was 5’8’’), ‘50 years old’ (he was 37), and ‘hefty’; said that he ‘had been to the shop before and after’, ‘had been there only once’; that he ‘saw him in a bar months later’; that he ‘will sign statement even though I don’t speak English’; that al-Megrahi ‘was similar but not identical’, ‘perhaps like him but not fully like him’, and, fatally for any identification of al-Megrahi in the first place, that he was ‘like the man in the Sunday Times’ (in other words, like Abu Talb, whose picture Gauci had initially identified). But Gauci’s evidence was needed and, reports suggest, handsomely rewarded. He apparently now lives in Australia, supported by millions of US dollars.
That a court of three experienced judges convicted on such evidence and that an appeal court upheld the conviction is profoundly shocking. Köchler, the UN observer, reported finding the guilty verdict ‘incomprehensible’ in view of the court’s admission that Gauci’s identification was ‘not absolute’. We had come to believe that such an outcome, resting on invalid identification, was no longer possible. ‘The guilty verdict’, Köchler wrote, was ‘arbitrary, even irrational’ with an ‘air of international power politics’ present ‘in the whole verdict’, which was ‘based on a series of highly problematic inferences’. He remarked on the withholding of ‘substantial information’ (‘more or less openly exercised influence on the part of actors outside the judicial framework’) and on the very visible interference with the work of the Scottish prosecutors by US lawyers present in the well of the court. But most seriously, he set out his ‘suspicion that political considerations may have been overriding a strictly judicial evaluation of the case’. All of this harks back to the bad old days when a blind eye was turned to the way convictions were obtained.
Al-Megrahi’s trial constituted a unique legal construct, engineered to achieve a political rapprochement, but its content was so manipulated that in reality there was only ever an illusion of a trial. Dr Köchler recorded at its conclusion that it was ‘not fair’ and that it was not ‘conducted in an objective manner’, so that there were ‘many more questions and doubts at the end than the beginning’. Since then, these doubts have not disappeared: on the contrary, the questions are graver, the doubts have grown and so has the strength of the evidence on which they are based. Köchler’s observations continue to have compelling relevance; he found the respect of the court, the defence lawyers included, for the ‘shrouds of secrecy’ and ‘national security considerations’ to be ‘totally incomprehensible to any rational observer’. ‘Proper judicial procedure,’ he continued, ‘is simply impossible if political interests and intelligence services – from whichever side – succeed in interfering in the actual conduct of a court.’
The term miscarriage of justice carries with it the inference of accident, but also of death. There is a pressing need to investigate in detail how it has come about that there has been a form of death in this case – the death of justice – and who should be found responsible.
Gareth Peirce is a defence lawyer who has represented many men and women in their appeals against wrongful convictions made on the basis of disputed scientific evidence, misidentification and police malpractice.
Different Justice at the UN Rwanda War Crimes Court Another piece in a disturbing jigsaw IAN FERGUSON The Herald (Scotland) http://www.theherald.co.uk/news/focus/display.var.1730572.0.0.php Piece by piece, the jigsaw is slotting into place. The strength of Abdelbaset Ali Mohmed al Megrahi's appeal is becoming apparent. Today, The Herald sheds light on another vital part of the picture. The Crown's key witness and his brother were offered financial remuneration for their assistance. This heaps further scorn on the credibility of a witness already in doubt. When I met Tony Gauci in Malta on various occasions, and at Camp Zeist during the trial, he came across as an honest, simple man, much afraid of those in authority and particularly the police. He seemed eager to please and the various disparities in his statements reflect that. As the Lockerbie verdict unravels, the question remains as to why such information was not disclosed to the defence team in the first place and why we have to rely on a body such as the Scottish Criminal Cases Review Commission to gain access to it. During the trial, senior fiscal Norman MacFadyen, now the Crown Agent, and Alan Turnbull, QC, now Lord Turnbull, visited the US embassy in the Hague to review CIA cables crucial to the Crown's case. Prior to seeing the cables, Mr MacFadyen signed a non-disclosure document which a court would now accept as contrary to an accused person's human rights. The agreement he signed states: "I understand that the US government is providing me access to US national security information solely for the purpose of determining whether it contains any information which is exculpatory to the defendants in the case of the Lord Advocate v Abdelbaset Ali Mohmed al Megrahi and Al Amin Khalifa Fhimah. Furthermore, I agree not to use this US national security information for lead purposes in furtherance of the Crown's case without the consent of the proper USG official." What unfolded at the court thereafter was quite extraordinary. Colin Boyd, then Lord Advocate, told the judges the files did not contain any information advancing the defence's case. Subsequent events suggest this may not have been entirely correct. Indeed, as a result of the information contained in these same cables, one of the charges against Fhimah, Megrahi's co-accused, was amended. This agreement suggests members of the prosecution had agreed to be effectively gagged by the CIA. I would question whether the interests of the US government should take precedence over the right to a fair trial. It is time that serious questions are raised over the conduct of the prosecution, particularly if it continues with a refusal to hand over the "top secret" document. As the pieces of the puzzle come together, the questions they raise are as prolific as those that they answer. Ian Ferguson is the co-author of Cover-up of Convenience: The Hidden Scandal of Lockerbie Revealed: CIA offered $2m to Lockerbie witness and brother LUCY ADAMS, Chief Reporter The Herald (Scotland) October 03 2007 The CIA offered $2m ( Lockerbie trial: an intelligence operation? Attack or a trick? Source: http://www.firmmagazine.com/members/feature.php?id=324 The lockerbie bombing case has fascinated the world since Pan AM Flight 103 exploded and fell back to earth. But in light of the SCCRC recommeding a second appeal for the man convicted of the atrocity The Firm’s reporter Steven Raeburn has uncovered potential evidence that could further see the finger of blame point much closer to home. On the 28 June, Robbie the Pict, who spearheaded the campaign leading to the reversal of the tolling regime on the Skye Bridge, sent a letter to new First Minister Alex Salmond, which he copied to Justice Minister Kenny MacAskill, Lord Advocate Elish Angiolini, and Solicitor General Frank Mulholland. It contained an extract, reproduced below, from the Zeist transcript of the trial of Abdelbaset Ali Mohmed al Megrahi, whose conviction for the Lockerbie atrocity has been referred back to the High Court for review, on the basis that a miscarriage of justice may have occurred. Extract from evidence given by DC Alexander McLean, working in Sector B. (P 339) McLean: We encountered one or two difficulties, sir. And one of the major ones was that on the aircraft there was a million sewing machine needles being conveyed and they landed with the fuselage in the sector ? B Sector. And unknown to us at the time, one or two officers got pricked with the needles. And so eventually we had to spread a very large tarpaulin right along the site and move forward sort of by inch by inch. The above evidence seems to have been missed by all concerned but is worthy of further examination. A million sewing machine needles weigh up to three-quarters of a ton. Who would pay airfreight charges to fly needles to America, when sea freight is so obviously cheaper? Who was the sender? Who was the end-user? Where is the bill of lading, invoice and the delivery note? Is there an insurance claim by the sender? The testimony of one eyewitness at the crash site strengthens Robbie’s claim that Pan Am 103 may not have been brought down by a bomb at all, but by accidental misfiring of mainstream weaponry components carried illicitly on the plane.
5 October 2007
BBC interview of Dr. Hans K
Robbie has looked at the trial transcript and proceedings, and followed the case closely, together with his neighbour and fellow campaigner Dr Jim Swire, representing UK Families 103.
Swire believes Megrahi to be innocent and Robbie has concluded there is sufficient evidence to warrant a fresh investigation, focusing not on a terrorist bombing but on an accident on board the ill-fated airliner. This thesis, if correct, has far reaching implications for the actions of the US, UK and Scottish Governments, and officials within the Crown Office. It requires the open-minded reader to step through the looking glass into the potentially murky world of government intelligence, covert operations and geo-politics, and consider the events of 21 December 1988 from an entirely fresh, disturbing perspective.
Robbie's letter begins by looking at a portion of the trial transcript.
Q: The sewing machine needles were being carried as cargo on the aircraft?
McLean: That's correct, sir.
Q: I understand. And they were distributed around the site as a consequence?
McLean: Yes. They caused a bit of a hazard, and that was the reason that the recovery of the bodies just took a wee bit longer than it would have done if we hadn't encountered such a hazard.
Why did the Police put a “needles warning? in the Daily Record on 27 December 1988, claiming that these were potentially contaminated hypodermics which should not be picked up? Who sends almost a ton of contaminated hypodermics to New York by air just prior to Christmas?
Alternatively, it is remarkable how similar an electric sewing machine needle is to a flechette. This weapon of terror is also less than two inches long, has a flattened portion in the centre instead of a thread hole and has small flights to ensure stability. Known as a “terrain denial weapon of terror? it is dispersed in packs of thousands in an omni-directional scything motion. Witnesses have described victims as both “flayed alive” and “cut to burger-size pieces”. Royal Ordnance, at that time state-owned, were specialist packers of such warheads. There is apparently an art in lacing the layers of needles with the explosive to achieve the correct effect. The missile known as the Lockheed Hydra 70 is equipped to use such warheads.
However, in the development period from the early 1980s up until at least 1992 such missiles were having serious problems with “RadHaz?: their electrical components, although very sophisticated, were also very sensitive to extraneous electrical influence, commonly called “radiation hazard”. In layman’s terms it was equivalent to a neighbour’s garage door remote switching off your TV every time he used it, an unwanted side effect.
It is perhaps highly significant that the Maid of the Seas exploded during exchanges with Prestwick, when her navigator would be involved in relatively lengthy broadcasts confirming the flight path to be used across the North towards JFK Airport. No attention at all appears to have been given to this most obvious starting point in any investigation. Instead, we have a rush to judgment in favour of a fantastic conspiracy theory with huge flaws in the technical evidence.
Looked at rationally the actual evidence instead suggests an accident. The accident is terrible in its cause, its nature, its consequences and its implications but it is nonetheless an accident. It is of course illegal to carry munitions of war in a civil aircraft, especially if secretly. There would be serious questions concerning liability and culpability.
John Parkes is a former soldier, MOD contractor, and consultant and designer of bomb blast mitigation techniques. He travelled to the scene that night from Edinburgh and returned to assist in the rescue and clear up operations that followed. He has nearly 40 years? experience of explosives engineering.
Parkes was asked to examine the bodies of three victims in the improvised mortuary at Lockerbie Ice Rink prior to post mortem. The first victim Parkes examined was a child, perhaps nine years of age. The rear of her body showed fragmentation strikes, pieces of metal penetrating her skin. Their distribution, the blast shadowing caused by her seat, and in particular, minute holing in her socks which revealed a chemical propellant, all confirmed a specific blast signature. It revealed the type of explosive and where it was situated in relation to the girl. The holing and fragmentation in particular are not characteristic of Semtex or similar explosives, he says, and rule out a Semtex blast as the cause of the wounding.
Nor did he believe the wounds were caused by the disintegration of the plane on its descent. The fragments were propelled at high velocity; explosively driven. Pathologist Anthony Busutil, who examined the same body, concluded that what Parkes witnessed was caused by “scraping? as the body impacted the gravel of Dumfriesshire after her five-mile freefall.
Flight 103 was a modified Boeing 747 built in 1970 but refitted in 1987 to become part of the Civil Reserve Air Fleet (CRAF), which according to the Air Accident Investigation Board (AAIB) "enabled the aircraft to be quickly converted for carriage of military freight containers on the main deck during times of national emergency”. This requires reinforcement of the floor and structure, and the planes are then used to ferry troops, munitions and military equipment. Such modified CRAF planes were used for the mass deployment of troops in the run up to the Gulf War. The possibility that a CRAF modified US jumbo such as PA103 was ferrying pallets of weapons ? in 1988 during the Iran-Contra era ? is supported by unbroadcast news footage of the iconic nosecone section of the plane, which shows that the structure appears to have been peppered by high impact shrapnel strikes penetrating the crossbeam struts.
Sophisticated military weaponry relies on electronic triggering and jamming to function as designed. Many surface-to-air missiles are sensitive to long VHF frequency transmissions, which can cause weaponry to function and detonate.
If the US was ferrying weaponry on a civilian aircraft, resulting in 270 deaths on UK soil, it becomes apparent why the two governments would try to conceal this information.
The AAIB report, the official investigation into the cause of the crash, is imprecise about the most crucial time index of the entire flight, the moment when the explosion took place.
As Pan Am 103 crossed into the Shannon/Prestwick air traffic control zone it was required to switch to VHF2 transmission, for which there is a specific procedure. The report is inconsistent about who is talking to whom, contradictory about when communication started, vague about whether communication was one or two way between the plane and control, and contradictory about timing and transmission details.
Despite the obfuscation, it is clear that the explosives event on the plane took place during the time index when Pan Am 103 was in contact with Shanwick, having switched to using VHF2. It is unclear from the report whether or not the crew had made the long return call to Shanwick; the transmission from the aircraft itself that could have triggered any electronically sensitive munitions that were being carried.
Parkes made extensive efforts to pass his findings to the Crown Office, to MSPs, MPs, the defence teams and to news agencies. MP Phil Gallie raised the matter with Lord Advocate Colin Boyd. The Scotsman reported Parkes’s claims in August 2006, and they also received coverage from The Herald following Megrahi’s conviction, but before the appeal.
The Lord Advocate’s response to Phil Gallie pointed out that the defence team did not lead evidence during the trial to contradict the findings of the AAIB report. What he did not do was explain why his department didn’t act upon Parkes’s findings once they had been passed them. That was March 2001.
Jim Swire repeated his call for an independent inquiry on 28 June, the day the SCCRC referred the case back to the High Court. An inquiry that Labour promised in opposition, and which has, after over ten years in office in Westminster, not materialised. Given the possibility of taint within the Scottish judiciary, the UK and US Governments, the Crown Office, and at senior political level if the Parkes scenario is borne out, one can only hope such an inquiry can be convened at all.
The conclusions of the UN-appointed special observer to the trial were not widely reported after the conviction, but they are resonant with both the hypothesis that Pan Am 103 was the victim of a mid-air accident and the SCCRC?s decision to refer the case back to the High Court for a second appeal.
Dr Hans Kochler published his findings at the conclusion of the trial, saying that the presence of US and Libyan government representatives "gave the trial a highly political aura that should have been avoided by all means". To him it appeared that an "incomprehensible" verdict of convenience had been reached, to yield a politically motivated solution. "The air of international power politics is present in the whole verdict. There is not one single piece of material evidence linking the two accused to the crime," Kochler concluded.
The presence of US Department of Justice representatives sitting with the prosecution, and Libyan government representatives sitting with the defence, "leads to the suspicion that political considerations may have been overriding a strictly judicial evaluation of the case". He described witnessing openly exercised influence from the part of "actors outside the judicial framework", concluding that "the trial, seen in its entirety, was not fair, and was not conducted in an objective manner."
On 14 October 2005, Kochler called for a full public inquiry. The falsification of evidence he witnessed, selective presentation, manipulation and interference were "criminal offences in any country, and the possible criminal responsibility of people involved in the Lockerbie trial should be carefully studied by prosecution authorities." Nothing less than a crime, he says, took place in Camp Zeist.
Before the Scottish, UK or US governments start looking for another group of suspects, the crucial question to be asked is why was the case allowed to be brought in the first place when the supporting evidence was so manifestly inadequate?
It is clear that the Scottish Crown Office proceeded with the indictment of Megrahi and Fhimah on the basis of assurances from the CIA, given well in advance of the trial, that they possessed a star witness, Abdul Majid Giaka, who claimed to be able to positively identify them both and link them to the atrocity. Scottish authorities believed the witness would be credible. He was not. Almost his entire testimony was dismissed and it was discovered that his cooperation had been conditional upon receiving payment from the US authorities, who knew from the outset he was a fantasist. This information was only given to the prosecution very late during the trial.
Perhaps in hindsight the trial should have been halted at that stage. But after Scotland’s largest ever criminal investigation, the lengthy diplomatic debate over the release of the suspects, a 19-month trial under international scrutiny, the pressure to conclude and convict was on.
Jim Swire received a remarkable insight while at a meeting with UK Families 103 at the US embassy in London. “One of our number was told by an official on the US Commission of Inquiry, in an aside that "your government and mine know exactly what happened, but they're never going to tell".
This admission to the families group reinforces the doubts raised by the UN observer, that the trial was politically, not judicially motivated. And if the flight was downed by the accidental detonation of munitions, the motives of the UK, the US and latterly Libyan governments become clearer, in the light of Kochler’s analysis.
Dr Kochler observed Libyan Governmental collusion in the trial, and half-hearted if not feeble efforts by the defence team, who firstly dropped their special defence, which incriminated the Iranian/Syrian terror group the PFLP, then compounded this by only calling three defence witnesses, including the accused themselves, who offered no testimony. "It puts into question the credibility of the defence’s actions and motives," he said.
While clearing the way for Megrahi to appeal, the SCCRC reiterate not only selected grounds for his conviction, but they also go to some lengths to ensure that central planks of the prosecution case, that had become subject to considerable doubt, are reinforced. The SCCRC specifically stress their faith in the testimony of discredited forensic witness Allan Feraday. The verdicts have been overturned in three separate cases in which he gave evidence, yet the SCCRC state they are satisfied that the evidence he supplied in the Lockerbie trial, was "different in nature" from evidence he gave in cases that were later overturned. The English courts no longer consider him credible, but the SCCRC affirm that the Scottish High Court should.
The acquittal of co-accused Fhimah, and the conviction of Megrahi on the same indictment that contended they had to have acted in concert, rendered the verdict incomprehensible to Kochler and Robert Black, among other legal observers. Tam Dalyell once said that one has to almost be a “Professor of Lockerbie Studies? to comprehend the detail of this complex story, which has arguably become impenetrable to the public at large. Kochler and Swire’s repeated calls for a public inquiry have yet to be answered, but such an inquiry may allow the circumstances of the event to be fully examined in a way that was not achieved by the trial process.
That a miscarriage of justice may have taken place has now been accepted by the Commission. Logically, if Megrahi did not bring the plane down, the question remains: how did it happen? It is also now appropriate to ask what forces operated to allow the conviction to occur on the basis of what is now acknowledged to have been a flawed case. Claims of a cover up at Lockerbie, well supported from the Parliamentary and public record, have fuelled various alternative explanations for the cause of the event. They are based on documented reports that evidence was planted at Lockerbie, that Police notebooks were destroyed, and evidence removed from the scene without examination. The Observer’s Paul Foot reported that Dr David Fieldhouse certified and labelled 59 dead bodies under police supervision. His labels were replaced with 58 “official? labels, and the 59th body disappeared. Allan Faraday, who led evidence about a recovered bomb fragment, is no longer considered accredited. And other material gathered from test explosions was erroneously presented to the trial as actual recovered evidence from the site.
These reports raise questions rather than support conclusions. However, the key question that is not being asked is why was Megrahi scapegoated, and who in Scotland permitted it? Kochler overtly claimed US and Libyan officials in the courtroom influenced the trial to yield a politically motivated outcome. Robert Black disagrees but does conclude that more subtle pressures may have been felt by the presiding judges. "It has been suggested to me, very often by Libyans, that political pressure was placed upon the judges," he said.
"I don’t think for a minute that political pressure of that nature was placed on the judges. What happened, I think, was that it was internal politics in Scotland. Prosecutions in Scotland are brought by the Lord Advocate. Until just a few years ago, one of the other functions of the Lord Advocate in Scotland was that he appointed all Scottish judges. I think what influenced these judges was that they thought that if both of the Libyans accused are found not guilty, this will be the most fiendish embarrassment to the Lord Advocate."
In other words, after 12 years, an 18-month trial, extensive political wrangling, and seismic shifts in international relations even to accommodate the trial, somebody had better swing. With devolution bedding in, an SNP administration at Holyrood and the introduction of the Judicial Appointments Board breaking the link between the Government and the Judiciary, it is now debatable whether those same pressures exist. The outcome of the second appeal, and the emergence or otherwise of a full independent inquiry, will be the test of the integrity of Scottish justice.
Another piece in a disturbing jigsaw
The Herald (Scotland)
Piece by piece, the jigsaw is slotting into place. The strength of Abdelbaset Ali Mohmed al Megrahi's appeal is becoming apparent.
Today, The Herald sheds light on another vital part of the picture. The Crown's key witness and his brother were offered financial remuneration for their assistance.
This heaps further scorn on the credibility of a witness already in doubt. When I met Tony Gauci in Malta on various occasions, and at Camp Zeist during the trial, he came across as an honest, simple man, much afraid of those in authority and particularly the police. He seemed eager to please and the various disparities in his statements reflect that.
As the Lockerbie verdict unravels, the question remains as to why such information was not disclosed to the defence team in the first place and why we have to rely on a body such as the Scottish Criminal Cases Review Commission to gain access to it.
During the trial, senior fiscal Norman MacFadyen, now the Crown Agent, and Alan Turnbull, QC, now Lord Turnbull, visited the US embassy in the Hague to review CIA cables crucial to the Crown's case. Prior to seeing the cables, Mr MacFadyen signed a non-disclosure document which a court would now accept as contrary to an accused person's human rights.
The agreement he signed states: "I understand that the US government is providing me access to US national security information solely for the purpose of determining whether it contains any information which is exculpatory to the defendants in the case of the Lord Advocate v Abdelbaset Ali Mohmed al Megrahi and Al Amin Khalifa Fhimah. Furthermore, I agree not to use this US national security information for lead purposes in furtherance of the Crown's case without the consent of the proper USG official."
What unfolded at the court thereafter was quite extraordinary. Colin Boyd, then Lord Advocate, told the judges the files did not contain any information advancing the defence's case.
Subsequent events suggest this may not have been entirely correct. Indeed, as a result of the information contained in these same cables, one of the charges against Fhimah, Megrahi's co-accused, was amended.
This agreement suggests members of the prosecution had agreed to be effectively gagged by the CIA. I would question whether the interests of the US government should take precedence over the right to a fair trial. It is time that serious questions are raised over the conduct of the prosecution, particularly if it continues with a refusal to hand over the "top secret" document.
As the pieces of the puzzle come together, the questions they raise are as prolific as those that they answer.
Ian Ferguson is the co-author of Cover-up of Convenience: The Hidden Scandal of Lockerbie
Revealed: CIA offered $2m to Lockerbie witness and brother
LUCY ADAMS, Chief Reporter
The Herald (Scotland)
October 03 2007
The CIA offered $2m (
Lockerbie trial: an intelligence operation?
Attack or a trick?
The lockerbie bombing case has fascinated the world since Pan AM Flight 103 exploded and fell back to earth. But in light of the SCCRC recommeding a second appeal for the man convicted of the atrocity The Firm’s reporter Steven Raeburn has uncovered potential evidence that could further see the finger of blame point much closer to home.
On the 28 June, Robbie the Pict, who spearheaded the campaign leading to the reversal of the tolling regime on the Skye Bridge, sent a letter to new First Minister Alex Salmond, which he copied to Justice Minister Kenny MacAskill, Lord Advocate Elish Angiolini, and Solicitor General Frank Mulholland. It contained an extract, reproduced below, from the Zeist transcript of the trial of Abdelbaset Ali Mohmed al Megrahi, whose conviction for the Lockerbie atrocity has been referred back to the High Court for review, on the basis that a miscarriage of justice may have occurred.
Extract from evidence given by DC Alexander McLean, working in Sector B. (P 339)
McLean: We encountered one or two difficulties, sir. And one of the major ones was that on the aircraft there was a million sewing machine needles being conveyed and they landed with the fuselage in the sector ? B Sector. And unknown to us at the time, one or two officers got pricked with the needles. And so eventually we had to spread a very large tarpaulin right along the site and move forward sort of by inch by inch.
The above evidence seems to have been missed by all concerned but is worthy of further examination. A million sewing machine needles weigh up to three-quarters of a ton. Who would pay airfreight charges to fly needles to America, when sea freight is so obviously cheaper? Who was the sender? Who was the end-user? Where is the bill of lading, invoice and the delivery note? Is there an insurance claim by the sender?
The testimony of one eyewitness at the crash site strengthens Robbie’s claim that Pan Am 103 may not have been brought down by a bomb at all, but by accidental misfiring of mainstream weaponry components carried illicitly on the plane.