Thursday, 16 October 2014

The tortuous path towards a Lockerbie trial

[What follows is the text of a report published on this date in 1998 by The Associated Press news agency:]

Britain said Friday it would not negotiate Libya's demand that two suspects, if convicted in the 1988 Pan Am bombing over Scotland, serve their prison terms in Libya or the Netherlands.

A US-British proposal to try the men in the Netherlands under Scottish law calls for any sentences to be served in Britain.

“We are not in discussion with the Libyans about this and we are not negotiating on it,'' said Britain's UN ambassador, Jeremy Greenstock.

Two Libyan intelligence agents, Abdel Basset Megrahi and Lamen Khalifa Fhimah, are accused of planting the suitcase bomb that ripped apart the New York-bound Pan Am jet on Dec 21, 1988, killing 270 people in the air and on the ground at Lockerbie.

Aside from Britain's refusal to negotiate with Libya over jail sites, Greenstock assured that the suspects' religious rights would be respected and pledged that any witnesses brought in to testify would be immune from any charges related to the bombing while they were in the Netherlands.

“They have a guarantee of immunity in that sense,'' Greenstock said.

He spoke to reporters after briefing the Security Council on Britain's efforts to clarify certain legal and technical questions that have been posed by Libya regarding the US-British plan.

Greenstock said he had passed along to the UN chief a “full set of clarifications,'' earlier this week regarding various aspects of the proposed trial and procedures surrounding it.

For years, Britain and the United States demanded that the trial take place in the United States or Britain. Libya refused to hand the men over, fearing they would never get a fair trial in either country.

The United States and Britain agreed in August to hold the trial in the Netherlands, using Scottish judges and Scottish law, in an attempt to achieve justice in the 10-year-old case.

The Security Council backed the proposal by agreeing to suspend an international travel ban on Libya once the two suspects arrived in the Netherlands for trial. While giving its qualified acceptance of the proposal, Libya has sought several clarifications, one of which is the demand that any sentences be served in Dutch or Libyan prisons.

A Libyan legal team was in New York recently to discuss details of the proposal with the UN legal team.

[This report illustrates the problems that were encountered in the process of securing a Lockerbie trial. The United Kingdom government refused to negotiate directly with the Libyan government or the Libyan defence lawyers over the fine print of the US-UK proposal for a trial in the Netherlands. Matters that could have been clarified or settled within minutes if the parties had only sat round a table took weeks through an intermediary (Hans Corell, UN Under-Secretary-General and Legal Counsel). Here is what I have said before about the process:]

Although the British proposal was announced in late August 1998, it was not until 5 April 1999 that the two suspects actually arrived in the Netherlands for trial before the Scottish court.  Why the delay? The answer is that some of the fine print in the two documents was capable of being interpreted, and was in fact interpreted, by the Libyan defence team and the Libyan government as having been deliberately designed to create pitfalls to entrap them.  And since the governments of the United Kingdom and United States resolutely refused to have any direct contact with either the Libyan government or the Libyan defence lawyers, these concerns could be dealt with only through an intermediary, namely the Secretary-General of the United Nations.

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