Monday, 26 October 2015

Mandela presses for neutral-nation trial of Lockerbie suspects

[This is the headline over a report published in The New York Times on this date in 1997. It reads in part:]

President Nelson Mandela of South Africa pressed Britain today to let two Libyans accused of blowing up an airliner over Scotland stand trial in a neutral country.
Justice cannot be done if Britain insists on trying the suspects in Britain or the United States, he said at a news conference during a meeting of Commonwealth leaders here.
Mr Mandela set off controversy this week by visiting Libya en route to Scotland to support Libya's plan for the two men to stand trial in a neutral country.
Britain and the United States are demanding the extradition of the pair, suspected of killing 270 people in the bombing of a Pan Am airliner over the Scottish town of Lockerbie in 1988. The United Nations has imposed sanctions on Libya for more than four years to force compliance.
Mr Mandela said he had not raised the matter with Prime Minister Tony Blair of Britain, but he added: ''I have never thought in dealing with this question that it is correct for any particular country to be the complainant, the prosecutor and the judge at the same time. Justice cannot be said to be done in that situation.''
He noted that British relatives of Lockerbie victims backed a trial in a neutral country, as do some American relatives, as well as the Organization of African Unity, the Arab League, the Islamic Conference and the Nonaligned Movement.
British officials were adamant that there was no question of accepting the Mandela proposal, even if a foreign court abided by Scottish law. ''We believe they should be brought to justice here or in the United States,'' one said.
He said the Government took the views of the relatives seriously but saw ''formidable obstacles'' to a trial in a neutral country. The International Court of Justice in The Hague has been mentioned as one possibility.
It would be necessary for the British Parliament to pass primary legislation, and any third country would struggle to find the expertise in Scottish law needed at short notice to permit a meaningful trial, the officials said.
They said Foreign Secretary Robin Cook had underlined Britain's determination to insure a free trial by inviting representatives of African and Arab countries to come to Scotland to study its legal system and observe the trial.
''We wholly reject any suggestion that it would be an unfair trial,'' Mr Cook told ITN news on Friday. ''Scotland was where the murders took place. Scotland is the place where the trial should happen.''
But Mr Cook will come under further pressure when he meets Jim Swire, the father of one of the victims, on Sunday. ''I will be telling Mr Cook that we should have a trial in a third country under Scots law and that he has been badly advised in his opposition to this,'' Mr Swire told The Scotsman newspaper.
[What follows is an excerpt from an account that I wrote several years ago about the UK Government’s objections to my neutral venue proposal:]
On my return to the United Kingdom [from Libya in January 1994] I submitted the relevant documents [about my neutral venue proposal and Libyan agreement to it] to the Foreign Office in London and the Crown Office (the headquarters of the Scottish prosecution service) in Edinburgh.  Their immediate response was that this scheme was impossible, impracticable and inherently undesirable, with the clear implication that Professor Black must have taken leave of what few senses nature had endowed him with. That remained the attitude of successive Lord Advocates and Foreign Secretaries for four years and seven months.  During this period the British government's stance remained consistent: United Nations Security Council Resolutions placed upon the government of Libya a binding international legal obligation to hand over the accused for trial to the UK or the US authorities.  Nothing else would do.  If Libyan law did not currently permit the extradition of its own nationals to stand trial overseas, then Libya would simply have to alter its law (and, if necessary, its Constitution) to enable it to fulfil its international duty.

Over the years British government sources put forward six specific objections to my proposal. 


Objection 2
There would be formidable technical difficulties in implementing the proposal to set up a non-jury court applying Scottish criminal law and procedure but sitting outside Scotland, for example in the Netherlands.

I had always accepted that my proposal would involve the necessity of amending the law. As the law stood, a Scottish High Court judge had no authority to preside over a sitting of the court anywhere outside Scotland.  Nor, assuming the trial resulted in a conviction, were Scottish prison governors entitled to incarcerate in their institutions persons other than those committed by the warrant of a duly-constituted UK court.  However, I contended that it was not beyond the competence, capabilities and expertise of Scottish parliamentary draftsmen, in consultation with the Crown Office (the body responsible for the running of the Scottish criminal prosecution system) and the officials of The Scottish Office Home Department’s Criminal Justice Division (the Government Department then responsible for criminal law and policy in Scotland) speedily to draft primary or secondary legislation constituting such a court and providing that it should apply all the rules of evidence and procedure applicable to High Court trials in Scotland, save only those relating to the presence and functions of the jury.  I also argued that, if such legislation were promoted, it would be unlikely to meet with serious opposition in either House of Parliament; and that both the United Nations and the Netherlands would be willing to cooperate if such a court were established.  That I was right about all these matters can be seen from the ease with which, in 1998, the Scottish Court in the Netherlands was eventually set up.

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