Release of the Lockerbie prisoner: the case is not closed

Statement by Dr. Hans Koechler, International Observer, appointed by the United Nations, at the Lockerbie Trial in the Netherlands

Vienna, 21 August 2009
P/RE/21831c-is

Dr. Hans Koechler has been appointed by the Secretary-General of the United Nations as international observer at the Lockerbie Trial in the Netherlands. In two analytical reports, submitted to the United Nations in 2001 and 2002, about the trial and first appeal he had suspected a miscarriage of justice. Commenting on yesterday's release on compassionate grounds of the only person convicted in the Lockerbie case, the Libyan citizen Abdelbaset Ali Mohmed Al Megrahi, Dr. Koechler clarified certain important points in interviews for Austrian and international media.

Domestic and international legal aspects of the release

The decision by Scotland’s Justice Secretary, Kenny MacAskill, was in conformity with Scots law and did not violate any international obligation of the United Kingdom. Notwithstanding other declarations, release on the basis of the recently ratified prisoner transfer agreement between the Libyan Jamahiriya and the United Kingdom would have violated the terms of an agreement concluded in 1991 (!) between the United Kingdom and the United States according to which the full sentence of any person convicted by the Scottish Court in the Netherlands would be served in a Scottish prison. Dr. Koechler who had listened to the reading of Mr. MacAskill’s statement, said that he is at a loss to explain how the Scottish authorities can say that they had no specific information on this legal matter because the UK authorities did not provide it to them. If he would have checked relevant documents in the public domain, he could have found – in the official records of the House of Commons – the text of a statement made by the then Foreign Secretary of the United Kingdom, the late Robin Cook, on 31 January 2001. Because of the importance of the issue in legal and political terms the respective part of the statement is reproduced below:

"I can give the right hon. Gentleman and the House an absolute assurance that there will be no deal with the Libyan Government on the sentence of Mr. Al Megrahi. I do not believe that any Scottish court would wear such a deal, even if we remotely contemplated striking one. As part of the terms of the agreement in 1991, it was agreed that the full sentence would be served in a Scottish prison. At that stage, we rejected the proposal that the person responsible might be sent to a prison in a third country. The United Nations will have access to his prison, because we have nothing to hide or to fear about the standard of Scottish prisons. I suspect that they will be better than those of Libyan prisons."

This was the Foreign Secretary’s answer to the following question by the Hon. Francis Maude, MP:

"Will the Government undertake that Al Megrahi will neither be released early as part of some deal with Libya, nor permitted to serve part of his sentence in Libya?"

In view of this official statement, made by the British Foreign Secretary in the House of Commons, it is crystal-clear that only release on compassionate grounds was in conformity with the United Kingdom’s international obligations - as Dr. Koechler had already stated on 5 August 2009 in an interview for the BBC London.

Dropping of the appeal by the convict

In an op-ed article for The Independent (London), Dr. Koechler has expressed serious doubts about the decision by Mr. Al Megrahi to withdraw his (second) appeal. His decision may have been made under duress and would thus be legally questionable, he said. According to Scots law, the termination of the ongoing appeal was not in any way required for compassionate release to be granted. The Scottish Justice Secretary will have to clarify vis-à-vis the Scottish, British and international public the exact circumstances under which the appeal was dropped. According to reports, Mr. Al Megrahi’s request was lodged through his defence team on 12 August 2009, in close proximity to the date of his release (20 August 2009) and just a few days after his meeting with the Justice Secretary. How are these coincidences to be explained?

It should have been obvious to the Scottish authorities that - in a case where an act international terrorism is suspected - it would be in the public interest of the country that has jurisdiction to continue with criminal proceedings and to exhaust all legal means to establish the truth about the incident. Why did the authorities satisfy themselves to deal with the question of criminal responsibility of two, later only one, suspect, and why did they accept the abrupt ending of the ongoing appeal of the only person convicted?


Omission by Scotland's Justice Secretary of any reference to the decision of Scottish Criminal Cases Review Commission

Mr. MacAskill was right, in political as well as legal terms, in releasing Mr. Al Megrahi on compassionate grounds. However, in yesterday’s statement explaining his decision, he failed the test of statesmanship or judicial expertise. Upon concluding his statement he appeared more like a Prosecutor in a trial, suddenly assuming a vindictive tone and trying to convince the court of the guilt of the indicted, not like the Secretary of Justice who has to make a decision that is not related to the question of guilt or innocence (as is the case with “release on compassionate grounds” according to Scots law).

It is noteworthy that, in his statement, the Justice Secretary did not in any way take note of the fact that - in the years since the trial court's decision on 31 January 2001 - serious doubts have arisen about the guilty verdict and that the Scottish Criminal Cases Review Commission (SCCRC) – after four (!) years of painstaking investigations – had stated (in June 2007) that it suspects a miscarriage of justice and had, thus, referred the case back to the appeal court. He did – obviously deliberately – overlook the finding of the SCCRC according to which “there is no reasonable basis in the trial court’s judgment for its conclusion that the purchase [by Mr. Al Megrahi] of the items [clothes] from Mary’s House, took place on 7 December 1988.” It does not need special intellectual skills to realize that the entire verdict collapses if there is no proof for the assertion that Mr. Al Megrahi was the person who bought clothes on that particular day in that particular shop in Malta.

In view of the appeal now having been aborted, the work of the Scottish Criminal Cases Review Commission will have been in vain. The least that is to be expected from the Scottish judicial authorities is that they publish the full report of the Commission. Up to the present moment, not only the full report has not been released into the public domain, several grounds of appeal given by the Commission are being kept secret.

Public inquiry and possible role of the United Nations

As matters stand in Scotland, there may be no further criminal proceedings or investigations. However, establishing the truth about the midair explosion of an airliner and identifying the perpetrators is in the supreme public interest of any polity that is built on the rule of law. The legitimacy of any state is closely connected to a state’s willingness and ability to investigate and prosecute sine ira et studio each and every incident such as that which caused the death of 270 innocent people on the PanAm plane and in Lockerbie, Dr. Koechler said. In an exclusive interview with Al-Jazeera’s Felicity Barr the former UN-appointed observer reiterated his call for a public inquiry to be mandated by the British House of Commons. He further explained that, absent a decision by the House of Commons, the United Nations General Assembly may consider establishing an international commission of inquiry into the Lockerbie incident on the basis of Art. 22 of the UN Charter. Since the United Nations Security Council, acting under Chapter VII of the Charter, has decided on 12 September 2003 to remove the Lockerbie issue “from the list of matters of which the Security Council is seized,” the General Assembly would undoubtedly have authority to deal with the issue.

About alternative theories

In all conversations with media representatives and in an interview, moderated from London and broadcast live on Al-Jazeera TV shortly after Mr. Al-Megrahi’s release, Dr. Koechler has made clear that, as a United Nations-appointed observer as well as a scholar, he does not engage in any speculation about the perpetrators as long as no alternative theory about the incident can be built beyond a reasonable doubt. He added that, if the Scottish judges at Camp Zeist would have respected that criterion, they could not have reached the guilty verdict in the case of Mr. Al Megrahi.

[In an article headed "I saw the trial – and the verdict made no sense" in today's edition of The Independent Dr Koechler writes the following:]

I am always surprised when people refer to Abdelbaset Ali al-Megrahi as the Lockerbie bomber. Even if he is guilty – something which, personally, I do not believe – he would only be a Lockerbie bomber, just one of many people who carried out a crime which would have taken a large network of people and lots of money to carry out. It amazes me that the British and American governments act as if the investigation into the bombing is somehow complete.

But I welcome the release of Megrahi, because I firmly believe that he is innocent of the charges made against him. Believe me, if I thought he was guilty I would not be pleased to see him released from jail.

His decision to drop his appeal, however, is deeply suspicious – I believe Megrahi made that decision under duress. Under Scottish law he did not need to abandon his appeal in order to be released on compassionate grounds. So why did he do it? It makes no sense that he would suddenly let it go.

In my time as the UN's observer at Megrahi's trial, I watched a case unfold that was based on circumstantial evidence. The indictment against him and al-Amin Khalifa Fhimah went to great lengths to explain how they supposedly planted a bomb on Flight 103, and yet Fhimah was acquitted of all the charges against him. It made no sense that Megrahi was guilty when Fhimah was acquitted.

The prosecution produced key witnesses that lacked credibility or had incentives to bear false witness against Megrahi. Tony Gauci, the Maltese shopkeeper who supposedly sold him the clothes that went around the bomb, had been fêted by the Scottish police who took him fishing. The Americans paid him cash following his testimony. The weakness of that testimony would have been a key component of Megrahi's appeal.

We will probably never really know who caused the Lockerbie bombing. So much key information was withheld from the trial. A luggage storage room used by Pan Am at Heathrow was broken into on the night of the bombing, and yet this information was withheld. The British have yet satisfactorily to explain why.

I want to know when the bomb was placed on the plane and by whom. We have to look more closely into the "London theory" – that the bomb was placed on the plane at Heathrow and not in Malta.

It would be childish to be satisfied with the conviction of just one person for a crime that clearly involved a large number of people. I find it very difficult to understand why there seems to be so little pressure from the British and American public on their governments to investigate the bombing properly.

The UK regularly talks of the need to pursue all terrorist atrocities. Yet how can the Government assure the public they really believe that, when they have virtually abandoned their investigation into the worst terrorist attack in the country's history?

We have to know what happened and the only way is a full public inquiry, either mandated by the House of Commons or by an investigative commission voted for by the UN's General Assembly. Time is of the essence. This crime is already 21 years old. To find out the truth we must act now.