Saturday, 27 February 2016

Libya wins major Lockerbie victory in ICJ against UK and US

[What follows is an excerpt from the text of a press release issued by the International Court of Justice (ICJ) on this date in 1998:]
The International Court of Justice, the principal judicial organ of the United Nations, found today that it has jurisdiction to deal with the merits of the case brought by Libya against the United Kingdom concerning the aerial incident at Lockerbie. It also found that the Libyan claims are admissible.
Libya, which submitted the case to the Court on 3 March 1992, contends that the United Kingdom does not have the right to compel it to surrender two Libyan nationals suspected of having caused the destruction of Pan Am flight 103 over the town of Lockerbie, Scotland, on 21 December 1988, in which 270 people died (all 259 passengers and crew, as well as 11 people on the ground). Libya argues that the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation signed at Montreal in 1971 authorizes it to try the suspects itself.
In June 1995, the United Kingdom raised two preliminary objections: one to the jurisdiction of the Court, and the other to the admissibility of the Libyan Application. In dealing with admissibility, the United Kingdom also asked the Court "to rule that the intervening resolutions of the (United Nations) Security Council have rendered the Libyan claims without object".
Jurisdiction of Court
The United Kingdom maintained that there was no legal dispute with Libya with regard to the Convention, because the question to be resolved had to do with "the ... reaction of the international community to the situation arising from Libya's failure to respond effectively to the most serious accusations of State involvement in acts of terrorism".
In its Judgment, the Court, however, finds that the Parties differ on the question whether the destruction of the Pan Am aircraft over Lockerbie is governed by the Montreal Convention. A legal dispute of a general nature concerning the Convention thus exists between the Parties. The Court adds that specific disputes also exist concerning the interpretation and application of article 7 of the Convention (relating to the place of prosecution), and article 11 (relating to assistance in connection with criminal proceedings).
The United Kingdom also maintained that, even if the Montreal Convention did confer on Libya the rights it claims, they could not be exercised in this case because they were superseded by Security Council resolutions 748 (1992) and 883 (1993) which, by virtue of Articles 25 and 103 of the United Nations Charter, have priority over all rights and obligations arising out of the Montreal Convention.
The Court does not uphold this line of argument. Security Council resolutions 748 and 883 were, in fact, adopted after the filing of the Application on 3 March 1992. In accordance with its established jurisprudence, if the Court had jurisdiction on that date, it continues to do so. The Court concludes, by 13 votes to 3, that it has jurisdiction to hear the disputes between Libya and the United Kingdom as to the interpretation or application of the Montreal Convention.
Admissibility of Libyan Application
The United Kingdom contended that the Libyan Application was inadmissible because the so-called issues in dispute "are now regulated by decisions of the Security Council".
The Court finds that it cannot uphold this conclusion. The date, 3 March 1992, on which Libya filed its Application, is, in fact, the only relevant date for determining the admissibility of the Application. Security Council resolutions 748 and 883 cannot be taken into consideration in this regard, since they were adopted at a later date. As to resolution 731 (1992), adopted before the filing of the Application, it could not form a legal impediment to the admissibility of the latter, because it was a mere recommendation without binding effect, as was recognized, moreover, by the United Kingdom. The Court concludes, by 12 votes to 4, that Libya's Application is admissible.
Objection That Council Resolutions Rendered Claims of Libya without Object
Finally, regarding the request of the United Kingdom for a ruling "that the intervening resolutions of the Security Council have rendered the Libyan claims without object", the Court finds that if it were to rule on that objection at this stage of the proceedings, it would inevitably be ruling on the merits and affecting Libya's rights. The Court rejects, by 10 votes to 6, the objection raised by the United Kingdom, but will be able to consider it when it reaches the merits of the case.
Further Proceedings
Having established its jurisdiction and concluded that Libya's Application is admissible, the Court will now, after consultation with the Parties, fix time-limits for the further proceedings. The proceedings consist of two parts: written and oral. During the written phase, written pleadings are exchanged.
[RB: On the same date the court delivered a similar decision in the case brought by Libya against the United States of America.
I have previously written about this chapter in the Lockerbie affair as follows:]
On 27 November 1991 the Governments of the United Kingdom and the United States each issued a statement calling upon the Libyan Government to hand over the two accused to either the Scottish or the American authorities for trial.  Requests for their extradition were transmitted to the Government of Libya by diplomatic channels.  No extradition treaties are in force between Libya on the one hand and the United Kingdom and United States on the other.
Libyan internal law, in common with the laws of many countries in the world, does not permit the extradition of its own nationals for trial overseas.  The Government of Libya accordingly contended that the affair should be resolved through the application of the provisions of the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, to which all three Governments are signatories.  Under article 7 of that Convention a state in whose territory persons accused of terrorist offences against aircraft are resident has a choice aut dedere aut judicare, either to hand over the accused for trial in the courts of the state bringing the accusation or to take the steps necessary to have the accused brought trial in its own domestic courts.  In purported compliance with the second of these options, the Libyan authorities arrested the two accused and appointed a Supreme Court judge as examining magistrate to consider the evidence and prepare the case against them.  Not entirely surprisingly, perhaps, the UK and US Governments have refused to make available to the examining magistrate the evidence that they claim to have amassed against the accused who, to this day, remain under house arrest.
The United Nations Security Council first became involved in the Lockerbie affair  on 21 January 1992 when it passed Resolution 731 strongly deploring the Government of Libya's lack of co-operation in the matter and urging it to respond to the British and American requests contained in their statements of 27 November 1991.  This was followed by Security Council Resolution 748 (31 March 1992) requiring Libya to comply with the requests within a stipulated period of time, failing which a list of sanctions specified in the Resolution would be imposed.  Compliance was not forthcoming and the sanctions duly came into  effect.  On 11 November 1993 the Security Council, by Resolution 883, further extended the range and application of the sanctions.  The imposition of sanctions under the last two Resolutions was justified by the Security Council by reference to Chapter VII of the Charter of the United Nations on the basis that Libya's failure to extradite the accused constituted a threat to peace.
On 3 March 1992 (after the passing of Security Council Resolution 731, but before Resolutions 748 and 883), Libya presented applications to the International Court of Justice in The Hague for declarations that she was entitled under Article 7 of the 1971 Montreal Convention to put the accused on trial in Libya and that the United Kingdom and the United States were in breach of their obligations under that Convention in insisting upon trial in the UK or the USA.  The Governments of the United Kingdom and United States sought to have these applications dismissed without a hearing on the merits on the grounds inter alia that (1) the ICJ had no jurisdiction to consider them and (2) the Security Council Resolutions of 31 March 1992 and 11 November 1993, imposing upon Libya an international obligation contended by the UK and the USA to be superior to that embodied in Article 7 of the Montreal Convention, had rendered the applications pointless.  On 27 February 1998 the judges of the ICJ by substantial majorities [RB: 13 to 3] (and with the American and British judges dissenting) rejected the submissions of the UK and the USA, thereby clearing the way for decisions at some time in the future on the merits of Libya's applications. (...)
This judgement was followed within six months by the UK and US volte face whereby they agreed to a neutral venue trial. (...)
Once the trial and appeal at Camp Zeist were concluded, the World Court case brought by Libya was quietly dropped, to the enormous relief of the permanent members of the UN Security Council, who were in fear and trembling that the court was going to recognise what would, in effect, have been a form of judicial review of the legality of the acts of the Security Council. And that would never do. Good heavens, it might have judicially prevented the invasion of Iraq!

No comments:

Post a Comment