[I am grateful to Sir Brian Barder for letting me know that the full text of his article, referred to in a report in The Scotsman on 17 February, can now be read here. The following is an excerpt:]
There’s a major mystery in the newly released British government documents containing new revelations about the controversial release of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted (quite possibly wrongly) of responsibility for the 1988 Lockerbie bombing. Moreover it’s puzzling that the mystery was never raised when the prime minister, David Cameron, made a statement and answered questions about the documents in the House of Commons on 7 February. It’s the hippopotamus in the living-room that everyone is apparently too polite to mention.
Here’s the mystery. In August 1998 the US and UK governments invited the United Nations Security Council to approve an initiative under which the two Libyans suspected of involvement in the Lockerbie bombing would be tried in a special court in the Netherlands under Scottish law. The Security Council duly approved the initiative in a formal resolution passed under Chapter VII of the UN Charter, meaning that the resolution has binding force on all UN member states under international law. But the relevant point is this: the US-UK letter setting out the initiative, as approved by the mandatory UN resolution, stipulates in terms that if convicted, the suspects “will serve their sentence in the United Kingdom” – in practice meaning in Scotland, since all the proceedings were to be governed by Scottish law. One of the two suspects was later acquitted: the other, Megrahi, was convicted and sentenced to life in prison with a 27-year tariff. Megrahi duly began to serve his sentence in a Scottish prison.
Now fast-forward to 2007. Western relations with Libya have been ‘normalised’ following Libya’s abandonment of its nuclear weapons programme, sanctions have been lifted and UK firms are negotiating for lucrative and now legitimate contracts with Libya. Tony Blair, then the UK prime minister, on the last of his visits to Libya, signs an agreement with Colonel Muammar al-Gaddafi in which the two governments promise to sign a Prisoner Transfer Agreement within a year. The PTA allows a Libyan convict held in a UK prison to be transferred to serve the balance of his or her sentence in prison in Libya (and vice versa). The Libyans make it clear that agreement to a PTA is the key to approval of various contracts with UK firms. The only Libyan in a UK jail is Megrahi. Everyone understands that Libyan insistence on a PTA is intended to open the way to the eventual repatriation of Megrahi to Libya – theoretically to serve the rest of his 27-year sentence in a Libyan prison. The Scottish Government in Edinburgh, responsible under Scottish law for any decision affecting Megrahi’s future, repeatedly makes it clear that it is strongly opposed to the use of the PTA for transferring him to Libya. But the PTA is signed under the British government’s foreign affairs power and the Scottish Government has no veto over it. The mystery here is obvious. The UK-US initiative approved by the Security Council resolution stipulates that Megrahi must serve his sentence in the UK. The PTA envisages that he could be transferred to serve the remainder of his sentence in Libya. The PTA is obviously inconsistent with the initiative and thus with a binding UN resolution. So what was the point of the PTA?
It emerges from the newly released documents that in the course of discussions about the proposed PTA, the Scottish Government asked the British government whether there would be any obstacle in international law to the transfer of Megrahi to Libya under the Prisoner Transfer Agreement if the Scottish Justice Secretary were to agree to such a transfer. After scratching its head, the British government replied, surprisingly, that there was not. The documents don’t explain how the British government arrived at this counter-intuitive conclusion, with which (even more surprisingly) the US government had agreed. But the documents do reveal a sharp disagreement between London and Washington over whether Megrahi’s transfer to Libya under the PTA would be in breach of the UK’s political (as distinct from legal) commitment to Megrahi serving his sentence in a UK prison. The Americans said it would; the UK government said it would not. Moreover, the Americans maintained that Megrahi could not be transferred to a Libyan prison under the PTA without their prior agreement, since the whole initiative under which Megrahi had been tried and jailed had been jointly devised by the US and UK governments. Again, the UK government disagreed, claiming that for it to transfer Megrahi under the PTA it would only need to inform the Americans (and the UN): American agreement, said the British, was not required.
How were the UK government’s lawyers to square this awkward circle? They argued that the UK commitment could not have been “absolute”, because no British government could commit its successor (a novel and inherently subversive doctrine in international relations) and also because it could not have ruled out the possibility of a change in UK relations with Libya – another novel doctrine, allowing any government to wriggle out of its commitments at will. For whatever reasons, the British government apparently decided not to disclose to the Scottish Government either its disagreement with the Americans over the status of the (“political”) commitment that Megrahi must serve his sentence in the UK, nor the grounds for its contention that there was no conflict between the two instruments.