Lockerbie cited in proposal for international court in Khashoggi case

[The following are excerpts from an article by Geoffrey Robertson QC headlined Only an international court can bring Khashoggi’s killers to justice published in today's edition of The Guardian:]

The slaying of the journalist Jamal Khashoggi was a barbaric act, ordered and carried out by barbarians. It cried out for justice – which means, inevitably, a trial. Yet all the British government is demanding is an “investigation” – by the same Saudi state that spent 17 days lying about its responsibility and is still offering unbelievable excuses for the murder. Any Saudi investigation would, at most, offer up a few scapegoats who would be subjected to a secretive procedure and in reality punished for their incompetence rather than their guilt.

But this was an international crime that took place in breach of United Nations conventions in the precincts of a consulate enjoying inviolability under international law. It involved the silencing of a US-based journalist for exercising the right of freedom of speech – a right also belonging to all his potential readers, and guaranteed under every international human rights convention. It was an action by a UN member state that threatens peace and security and it should be taken up by the UN security council, which has acted before to set up tribunals to deal with similar atrocities – the assassination of the Lebanese prime minister Rafik Hariri, for example, and the Lockerbie bombing. (...)

[RB: The Lockerbie court was a Scottish, not an international, court; nor was it "set up" by the UN Security Council, though that body instructed all UN members to cooperate with it.  The court was set up by a treaty between the United Kingdom and the Netherlands.]

There are enough precedents for the security council, under its chapter VII power, to act so as to avoid international conflict, to set up a court to research and punish the carefully planned assassination of a journalist in a member state by agents of another member state. There are plenty of experienced judges available who have dealt with atrocities in the Balkans, Rwanda and Sierra Leone, and prosecutors well qualified for mounting cases of international crimes. The Turkish authorities have ample evidence against the immediate perpetrators and western and Israeli intelligence agencies can undoubtedly supplement what is already known about the Saudi chain of command. 

[RB: I am highly sceptical about the legality of resorting to Chapter VII of the Charter of the United Nations (Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression) to deal with criminal acts committed by states against individuals. If Libya's World Court actions against the UK and the USA had not been abandoned after the Lockerbie trial, this issue might have been ventilated under the powers of judicial review of the legality of Security Council acts that the World Court looked likely to assume.]

Continuing pressure from the security council and orders by the court, backed by sanctions against powerful Saudis (preventing them from travelling to Europe or using schools and health services), trade boycotts and sanctions, and threats of diplomatic isolation, could force the Saudi crown prince, Mohammed bin Salman, to send suspects to The Hague, as it forced Gaddafi to cooperate over Lockerbie, and to disclose evidence that, when analysed together with other evidence, might lead a chief prosecutor to include him in the charge sheet – at least as an “unindicted co-conspirator”. Only an international legal process can establish with any credibility whether Bin Salman actually gave the lethal order, or perhaps said in the manner of King Henry II: “Will no one rid me of this troublesome priest?”

Minor nutjobs

What follows is an item originally posted on this blog on this date in 2011.

Making curiosity uncool…

[This is the heading over an item posted today on bensix's blog Back Towards The Locus. It contains the following:]

I’ve noted how media critics of “conspiracy theories” aren’t just opposed to grandiose, unfounded claims but to suspicion of official or quasi-official narratives. Here are some notes on how the charge of “conspiracy theory” works to discredit this scepticism.

For example, with regards to the Pan Am attack, Geoffrey Robertson wasted no time in dismissing sceptics of Megrahi’s guilt…

"If Megrahi was guilty of the Lockerbie bombing (and, conspiracy theories aside, the evidence justified the verdict), then Gaddafi must have given the order…"

I will say this for Robertson: he’s remarkably efficient. What’s the point of explaining the biased procedure, dodgy witnesses and meager evidence of the prosecution when you can dismiss all scepticism as the work of minor nutjobs?

[RB: Quite. Minor nutjobs like Benedict Birnberg, Ian Hamilton QC, Hans Koechler, Anthony Lester QC, Len Murray, Gareth Peirce and the Scottish Criminal Cases Review Commission, to name but a few.] 

Onus now on Scottish government to establish a judicial inquiry

[The letter from Benedict Birnberg that follows was published in The London Review of Books on this date in 2009:]

As a partner of Gareth Peirce until my retirement may I add a sequel to her penetrating analysis of the al-Megrahi case (LRB, 24 Sepember). First, to point out that the Scottish Criminal Cases Review Commission (SCCRC) after an investigation lasting over three years referred his conviction to the Scottish court of appeal in June 2007; its statement of referral extended to more than 800 pages with 13 volumes of appendices. It is that appeal which, as Gareth Peirce says, al-Megrahi abandoned before his release and repatriation to Libya, thus denying the court the opportunity to consider the case, even though the SCCRC stated in its press release: ‘based upon our lengthy investigations, the new evidence we have found and other evidence which was not before the trial court ... the applicant may have suffered a miscarriage of justice.’ Why did al-Megrahi withdraw his appeal? Was it because he was put under pressure to secure his release on compassionate grounds? Or was it voluntarily done because he lacked confidence in the impartiality of the court? Whatever the truth may be, the onus now rests on the Scottish government to establish a public judicial inquiry, so that the case so painstakingly prepared by the SCCRC does not go by default.

Second, to add to the suspicions Peirce’s article exposes, it needs to be said that the Scottish justice secretary Kenny MacAskill’s decision has unleashed a hysterical torrent of vilification, not least in the US where many of the relatives of the Lockerbie victims are convinced of al-Megrahi’s guilt. We have witnessed a campaign of denigration on which even Obama, Hillary Clinton and the late Edward Kennedy have bestowed their benediction. On this side of the Atlantic too the irrational commentators abound. The overwhelming weight of media comment has been hostile to al-Megrahi. On 3 September the Guardian carried a long article by Malcolm Rifkind, the former foreign secretary and a prominent Scottish lawyer, headed ‘Megrahi’s return has been a sorry, cocked-up conspiracy’: it failed even to mention the SCCRC reference. Even pillars of the human rights establishment, such as Geoffrey Robertson, have shouted themselves hoarse: ‘We should be ashamed that this has happened’ (Guardian, 22 August) and ‘Megrahi should never have been freed: the result is a triumph for state terrorism and a worldwide boost for the death penalty’ (Independent, 2 September).

Yet, when al-Megrahi releases part of the SCCRC case on the internet, his declared aim being to clear his name and ostensibly to prove his innocence, pat comes the Scottish lord advocate (Scotland’s chief prosecutor) joining relatives of the victims convinced of his guilt to denounce him for his ‘media campaign’. Meanwhile pleas from those who, like Dr Jim Swire, believe justice has not been done and who, for the sake of the memory of the victims as much as al-Megrahi, wish there to be a genuine and far-reaching inquiry, fall on deaf ears.

Intelligence agencies and disinformation

[I wish a happy Christmas to all readers of this blog.

What follows is an article by Dr Ludwig de Braeckeleer published by OhmyNews on Christmas Day 2007:]

British journalists -- and British journals -- are being manipulated by the secret intelligence agencies, and I think we ought to try and put a stop to it.  --David Leigh[1]

Intelligence agencies can manipulate journalists and their newspapers in various ways. Firstly, spies may recruit journalists or even impersonate them. It goes without saying that these long and broadly practiced activities are unhealthy as they put the life of every single journalist in danger, and particularly those who work as foreign correspondents.

Secondly, intelligence agencies can plant disinformation in mainstream media under false identity. In the months preceding the 1953 overthrow of Iranian Prime Minister Mohammed Mossadegh, intelligence agencies used this technique abundantly and without any difficulty, according to a copy of the CIA's secret history of the coup, which surfaced in 2000. "The Iran desk of the [US] State Department was able to place a CIA study in Newsweek, using the normal channel of desk officer to journalist. The article was one of several planted press reports that, when reprinted in Tehran, fed the war of nerves against Iran's prime minister, Mohammed Mossadegh," the document said. The third way for the spook to gain access to the media is rather subtle and particularly insidious. It consists of exploiting the vanity of journalists to impress on them to hide or lie about the real identity of their sources. Spies are said to have used this technique -- known as "I/Ops" for Information Operation -- heavily in the British press. Yet, it can rarely be documented. But once in a while, an I/Op gets out of control, giving the public a rare opportunity to take a peek inside the world of disinformation. In November 1995, The Sunday Telegraph published a sensational story about one of our then favorite villains: Libya. The paper accused Col Muammar Qaddafi's son, Saif al-Islam Qaddafi, of running a major money laundering operation in Europe intended to fund weapons of mass destruction: Saif al-Islam is a "thoroughly dishonest, unscrupulous and untrustworthy maverick against whom the international banking community has been warned to be on its guard." The article had been written by then-senior correspondent Con Coughlin. Coughlin's source was described as a "British banking official." When The Sunday Telegraph was served with a libel writ by Qaddafi's son, the paper was unable to back up its allegation. The paper lodged three defenses. First, the lawyers argued that the newspaper had not injured Gaddafi's reputation. Second, they argued that the article about him was true. Finally, claiming the defense of qualified privilege, the lawyers argued that it was in the public interest to publish the articles even if they turned out to be untrue. For those who follow the Lockerbie farce -- the Megrahi second appeal over the Lockerbie judgment -- it is hard not to notice the irony of the last argument. Indeed, it seems that in the UK it is good for the public to be told lies while at the same time it is good for the same public not to be shown secret documents believed to be vital to unearthing the truth about the largest crime ever committed on UK soil. "Is it in truth a classic muddle? A story of security service incompetence, a story of black propaganda, a story The Sunday Telegraph did not take that much care with because it never thought the matter would come to court?" asked James Price, QC, for Saif al-Islam. During the trial in April 2002, bits of the true story began to emerge. On Oct 19, 1995, the Conservative foreign secretary Malcom Rifkind had arranged a lunch that Coughlin attended. During that meeting, Coughlin was told by Rifkind that Iran was trying to get hold of hard currency to fund its WMD program in spite of UN sanctions. Rifkind encouraged Coughlin to follow this story. The dispute was settled in less than two days of trial.[2] "There was no truth in the allegation that Gaddafi participated in any currency sting," said Geoffrey Robertson, QC, representing Telegraph Group Ltd. "The Sunday Telegraph has accepted not only that there is no truth in these allegations, but that there is no evidence to suggest that there is any truth in them, and they have agreed to apologize to the claimant [Saif al-Islam] in this court and in the newspaper," Price told journalists. One had to wait for the publication of David Hooper's book Reputations Under Fire to learn that the source of the article was not a "British banking official." Actually, they were intelligence officers working for MI6. It is now understood what really occurred. On Oct 25 and 31, 1995, Coughlin was briefed by a MI6 man (source A) who appeared to be his regular contact with the agency. Source A gave Coughlin an overview of the plan. Through an Austrian Company, Iran was selling oil on the black market to fund its secret military nuclear program. Moreover, on Nov 21, 1995, source A introduced Coughlin to a second MI6 person (source B) who described the involvement of Saif al-Islam in the counterfeiting scam.[3] Source B requested strict confidentiality. The next day, the two MI6 officers described the money laundering deal in great detail during a four-hour meeting. Eight billion dollars would be transferred out of banks in Egypt and replaced by Libyans dinars, minus a substantial commission. The Libyans would hide their involvement through a Swiss branch of an international finance company. Meanwhile, an Iranian middleman would provide a large amount of fake currency. On Nov 23, Coughlin met once more the two intelligence officers who showed him copies of the banking records. There is just one problem with the story. The intelligence officers made it up. It was pure fabrication and Coughlin bought it while hiding the true identity of his source. "I believe he [Coughlin] made a serious mistake in falsely attributing his story to a British banking official. His readers ought to know where his material is coming from. When The Sunday Telegraphgot into trouble with the libel case, it seems, after all, to have suddenly found it possible to become a lot more specific about its sources," wrote David Leigh. "Our first task as practitioners is to document what goes on in this very furtive field. Our second task ought to be to hold an open debate on what the proper relations between the intelligence agencies and the media ought to be. And our final task must then be to find ways of actually behaving more sensibly." Has Coughlin learned anything from the affair? It seems that the answer to this question is definitely no. He went on writing about the false link between Saddam and al-Qaida and the false allegations concerning the Iraqi WMDs. He wrote that the Iraqis could access their WMDs within 45 minutes. Coughlin has written numerous articles about the alleged Iranian military program such as "Meanwhile, Iran Gets On With Its Bomb," "Israeli Crisis Is a Smoke Screen for Iran's Nuclear Ambitions," "Iran Accused of Hiding Secret Nuclear Weapons Site," "Iran Has Missiles to Carry Nuclear Warheads," "UN Officials Find Evidence of Secret Uranium Enrichment Plant," "Iran Plant Has Restarted Its Nuclear Bomb-Making Equipment," and "Iran Could Go Nuclear Within Three Years." Not a single one of these articles quotes a named source. 1. "Britain's Security Services and Journalists: The Secret Story," British Journalism Review, Vol 11, No 2, 2000, pages 21-26. David Leigh is assistant editor of The Guardian. He is former editor of The Guardian's comment page and former assistant editor at The Observer. He is a distinguished investigative reporter and formerly a producer for Granada Television's World in Action program. In 2007, he was awarded the Paul Foot prize, with his colleague Rob Evans, for the BAE bribery exposures. 2. Prince Bandar bin Sultan bin Abdulaziz, the Saudi Arabian ambassador in Washington, D.C., and a nephew of King Fahd, is understood to have brokered the settlement at the request of The Sunday Telegraph. 3. The reader should keep in mind that in late November 1995, MI6 was approached by Libyan dissidents concerning their plan to assassinate Colonel Gaddafi in February 1996. MI6 met with one member of the group, code name Tunworth, in late November 1995.

Scraping the bottom of the barrel

[What follows is an excerpt from an article headed Alex Salmond is in the US schmoozing away. But Americans won't forget in a hurry that he freed the Lockerbie bomber by Professor Tom Gallagher, a virulently anti-SNP commentator, published today on The Telegraph website:]

Whether a coincidence or not, at the start of Alex Salmond’s five-day visit to the United States, the Scottish National Party has suddenly launched a peace offensive after a bruising referendum campaign that has raised fears that society will be polarised for years to come. Party sources have told a Scottish newspaper that they intend to concentrate their energies on healing political wounds if Scotland votes Yes.

But to those who recall SNP rhetoric about the party preserving the best of Britishness in a social union, it needs to be taken with a hefty pinch of salt. It smacks too much of a serial wife-beater turning round to his family after a traumatic night and saying that from now on life will be totally different.

It remains to be seen if the era of good tidings will last beyond the conclusion of Salmond’s trip which includes a speaking engagement at the IMF in Washington DC. He can turn from being a political bruiser to acting as a charmer in a matter of seconds. Unfortunately for him, plenty of Americans, both influential folk and everyday citizens, have seen both sides of the coin.

It is not only relatives of the 180 US citizens killed when a bomb blew up a Pan Am flight over Lockerbie on 21 December 1988 who were astonished when his government released the man convicted by a Scottish court, in 2001, for the attack on the grounds that he had little time left to live. The release of the Libyan national Abdelbaset al-Megrahi was announced with much fanfare on 20 August 2009. Kenny MacAskill, Scotland’s justice minister, read a long statement insisting that the decision was based on "the values, beliefs, and common humanity that defines us as Scots". Hillary Clinton, then the US Secretary of State, twice spoke to MacAskill in the hope that he would reconsider the release of al-Megrahi who, instead of dying within weeks, enjoyed a comfortable life in a Tripoli suburb until 2012. [RB: It requires a really quite special sensibility to describe taking over two years to die of cancer in a war-ravaged and militia-ridden locality as enjoying a comfortable life in a Tripoli suburb.]

On 15 August 2009, Robert Mueller III, director of the FBI for nearly a decade, wrote to MacAskill in terms which had rarely been used between a senior US official and a friendly government:

"I have made it a practice not to comment on the actions of other prosecutors. Your decision to release al-Megrahi causes me to abandon that practice… I do so because I am familiar with the facts of the law , having been the assistant Attorney general in charge of the investigation and indictment of Megrahi in 1991. And I do so because I am outraged by your decision, blithely defended on the grounds of “compassion”’. [RB: More details about Robert Mueller’s “foolish and intemperate letter” (as I described it) can be found here. I commented: “In civilised countries decisions regarding liberation of prisoners are not placed in the hands of policemen and prosecutors, nor are they accorded a veto over those decisions. Mr Mueller (and Mr Marquise) would probably wish that this were otherwise. The rest of us can be grateful that it is not.”]

The British lawyer, Geoffrey Robertson, the first president of the UN war crimes court [RB: Not so. He sat as an appeal judge in the UN Special Court for Sierra Leone, something rather different.], observed that the decision taken was ‘lacking in compassion to every victim of terrorism and made an absurdity of the principle of punishment as a deterrent' ". [RB: Geoffrey Robertson’s idiosyncratic views on the Lockerbie case and Megrahi’s release can be followed here.]

The US Senate Foreign Relations Committee opened hearings on the affair but Salmond refused point-blank to cooperate. [RB: this is tendentious in the extreme. A more accurate account of the episode can be found here and here.]

It is hard to imagine such a scenario being played out if the Pan Am flight had exploded over Irish, Danish or even French territory. It is likely that the authorities of each of these countries would have avoided such a rupture in bilateral relations with an allied country.

The worst unrectified miscarriage of justice in modern British history

[Today’s edition of The Times contains a brief article (behind the paywall) about the new musical based on the Profumo affair and the Stephen Ward trial. It reads in part:]

Profumo-linked trial is centre stage again

It is, a leading barrister will claim today, “the worst unrectified miscarriage of justice in modern British history”. It is also the subject of Andrew Lloyd Webber’s latest musical. The life and death of the society osteopath Stephen Ward and his connection with a scandal that brought down the Government 50 years ago continues to fascinate.

Geoffrey  Robertson, QC, will today call for the release of court papers in the National Archives and will claim that Ward was the victim of a smear campaign by the British Establishment, embarrassed at a sex scandal involving  John Profumo, the Secretary of State for War.

Ward died in August 1963 after an overdose of sleeping pills on the last day of his trial at the Old Bailey on charges of living off the alleged prostitutes  Christine Keeler and Mandy  Rice-Davies. As he lay in a coma, the jury reached a guilty verdict. In a book, Stephen Ward was Innocent, OK, Mr Robertson says this should be overturned.

“His trial was a farce,” Mr Robertson wrote in a newspaper yesterday. “There was no real evidence against him. Appeal judges hid evidence of his innocence and the trial judge improperly directed the jury to convict him on speculation.”

[The worst unrectified miscarriage of justice in modern British history? The Stephen Ward trial? Really? While the conviction of Abdelbaset al-Megrahi for the Lockerbie bombing remains unrectified? Mr Robertson seems to me to have gone overboard in his attempt to plug his book.  But he has always been curiously ill-informed and wrong-headed about the Megrahi case.]

Geoffrey Robertson QC on Megrahi’s right to silence

This is the heading over an item posted yesterday on John Ashton’s website Megrahi: You are my Jury.  Mr Ashton’s comments on Geoffrey Robertson’s views are worth reading, even if Mr Robertson’s views are not. The eccentricity of Geoffrey Robertson’s stated position on Lockerbie and Megrahi can be readily seen by inserting his name into this blog’s search facility.

Prosecuting Gaddafi: ensuring justice in Libya

[This is the title of an article published two days ago on the University of Pittsburgh Law School's Jurist website by Charles Adeogun-Phillips a former international prosecutor and senior UN lawyer, who for over a decade led the prosecution of persons responsible for the Rwandan genocide. It reads in part:]

From all indications, it would seem as though the 42-year reign of Libyan leader and Pan African activist Colonel Muammar Gaddafi is finally over. Like Saddam Hussein, his ego is bound to get the better of him, and he will mostly likely remain on Libyan soil until he is captured by rebel forces. That is not necessarily a bad thing. 

At a minimum, it is clear that the preferred choice of the National Transitional Council (NTC) is that Gaddafi be tried at home on account of the fact that he presided over the brutal slaughter of Libyan civilians during the recent uprising. It may well be that, in an attempt to reflect the totality of Gaddafi's alleged criminal conduct, the NTC may decide that he face trial on international terrorism charges in connection with the bombing of Pan Am flight 103 over Lockerbie, Scotland 23 years ago. Many international commentators have objected to this view on the premise that it is inconceivable that Gaddafi could receive justice at the hands of those whom he has repressed for so long. Consequently, they have argued that his fate should be left to the International Criminal Court (ICC) at The Hague. 

Notable among those clamoring for a trial in the ICC is a leading international human rights lawyer and former president of the UN-backed Special Court for Sierra Leone, Geoffrey Robertson. In recent articles in The Sydney Morning Herald and the Guardian, he argues that as a matter of principle, the fate of the Gaddafis must not be left to Libyans. In that regard, Robertson identifies the massacre of 1,200 captives in a prison compound, the killing of 270 people in the Lockerbie bombing and almost as many in a passenger jet over Chad a few months later, as "the most egregious examples of Gaddafi's international crimes." He argues that it is essential for "Gaddafi [to] face justice in The Hague, not in Benghazi."

I am a little surprised and perhaps even more confused by Robertson's arguments in this regard, considering that the ICC does not have retrospective jurisdiction and is therefore unable to try Gaddafi for these particular crimes. All crimes within the jurisdiction of that court must have occurred after the entry into force of the Rome Statute on July 1, 2002. This is one key feature of proceedings before the ICC. That being the case, even with its best efforts, the ICC will be unable to try Gaddafi for these events.

Apart from lacking the temporal jurisdiction to try Gaddafi for these crimes, the ICC also lacks subject matter jurisdiction, at least so far as the Lockerbie and Chad bombings are concerned. These were acts of terrorism committed without any connection to an armed conflict and as such are outside the jurisdiction of the Rome Statute, even though they constitute international crimes. I fail to understand the logic in Robertson's suggestion that a court, which obviously lacks jurisdiction, provides Libyans with an appropriate forum to try Gaddafi for these crimes. Astonishingly, and still in favor of The Hague, Robertson argues that the fact that "liberation has come to the Libyans courtesy of international law, they have a reciprocal duty to abide by it." As evidence of this, Robertson cites the UN Security Council Resolution 1970 [PDF] of February 2011, which referred the situation in Libya to the ICC, and which has led to charges being filed by the ICC prosecutor against Muammar Gaddafi, his son, Saif al-Islam and Abdullah al-Senussi by the said court.

However, a close examination of UN Security Council Resolution 1970 will reveal that it has nothing whatsoever to do with either the Lockerbie or Chad bombings. In fact, ICC prosecutor Luis Moreno-Ocampo has not indicted the Gaddafis for any of these crimes because he is quite simply barred by statute, thus raising one of the most unique and fascinating aspects of international criminal law. In that regard, although there is no statute of limitation for the prosecution of international crimes, several of the international penal institutions where such crimes can be prosecuted are often of limited temporal and subject matter jurisdiction. Such is the case here.

So, if the ICC prosecutor is statute barred from prosecuting Gaddafi at least in connection with the Lockerbie bombing, he is in effect devoid of the ability to reflect the totality of Gaddafi's alleged criminal conduct in court, especially as this particular crime was "international" in all its ramifications. That cannot be the right approach to seeking justice for both Libyans and the international community at large.

Robertson further cites UN Security Council Resolution 1973 mandating NATO's action in Libya to protect civilian lives, and concludes that no one can pretend that Gaddafi's regime could have been overthrown without the air, sea and logistical support provided by NATO forces. To be fair, he is not the only one that shares this view. It is the collective opinion of many in the "West." However, he likens it to a "duty" under international law, and that is what I have a problem with.

Having totally confused the temporal and subject matter jurisdiction of the ICC in relation to the events outlined above, I trust this renowned British human rights lawyer is not now suggesting that the Libyan people owe the super powers in control of NATO, immense gratitude for their "intervention" in saving the people of Libya and that the time has come for some sort of "payback," after all, as the saying goes, nothing goes for nothing. In all my years of practice as a distinguished member of the international bar, I have never come across such a notion under public international law — namely, one which imposes on a sovereign state, a "reciprocal duty to abide by international law."

Should Mr Al-Megrahi be sent back to prison? Newsnight and the curious thoughts of Geoffrey Robertson QC

[This is the heading over a long article published today by Paul McConville on his blog Random Thoughts Re Scots (and Other) Law. It deals with last night's Newsnight Scotland segment on the issue of the fate of Abdelbaset Megrahi, featuring English QC Geoffrey Robertson and Scottish QC Gordon Jackson. After a detailed dissection of Robertson's contribution, the author concludes as follows:]

There is clearly great public interest in this issue. Mr Al-Megrahi stands convicted of a heinous crime and it appears that there are people looking for him to remove him from Libya.

However this debate was not helped by one of the contributors having no knowledge at all, it seemed, of the relevant legal rules applicable to the matter at hand. This could be contrasted with the later appearance on the programme of Lord Foulkes to discuss the differing university tuition fees charged in Scotland depending on the domicile of the student. His Lordship, notwithstanding a distinguished career in the House of Commons, the House of Lords and the Scottish Parliament, is not a lawyer. Legal niceties might understandably escape him.

Mr Robertson however does not have that excuse. His failure to acknowledge the “rule of law” in this matter is surprising given his very public stance regarding that doctrine over the years, and the rights people have to protect them from the vagaries or abuses of State power. I suspect John Cooke would not be demanding Mr Al-Megrahi’s return to Scottish imprisonment were he here today. [RB: Geoffrey Robertson is the author of a biography of Cooke and has recently written about him in The Guardian.]

Perhaps next time Newsnight Scotland considers having a lawyer on as a guest, they should ask if the person actually knows about what the topic under discussion is.

Making curiosity uncool…

[This is the heading over an item posted today on bensix's blog Back Towards The Locus. It contains the following:]

I’ve noted how media critics of “conspiracy theories” aren’t just opposed to grandiose, unfounded claims but to suspicion of official or quasi-official narratives. Here are some notes on how the charge of “conspiracy theory” works to discredit this scepticism.

For example, with regards to the Pan Am attack, Geoffrey Robertson wasted no time in dismissing sceptics of Megrahi’s guilt…

"If Megrahi was guilty of the Lockerbie bombing (and, conspiracy theories aside, the evidence justified the verdict), then Gaddafi must have given the order…"

I will say this for Robertson: he’s remarkably efficient. What’s the point of explaining the biased procedure, dodgy witnesses and meager evidence of the prosecution when you can dismiss all scepticism as the work of minor nutjobs?

[RB: Quite. Minor nutjobs like Benedict Birnberg, Ian Hamilton QC, Hans Koechler, Anthony Lester QC, Len Murray, Gareth Peirce and the Scottish Criminal Cases Review Commission, to name but a few.]

Birnberg on "The framing of al-Megrahi"

[The following letter from Benedict Birnberg appears in the current issue of The London Review of Books.]

As a partner of Gareth Peirce until my retirement may I add a sequel to her penetrating analysis of the al-Megrahi case (LRB, 24 Sepember). First, to point out that the Scottish Criminal Cases Review Commission (SCCRC) after an investigation lasting over three years referred his conviction to the Scottish court of appeal in June 2007; its statement of referral extended to more than 800 pages with 13 volumes of appendices. It is that appeal which, as Gareth Peirce says, al-Megrahi abandoned before his release and repatriation to Libya, thus denying the court the opportunity to consider the case, even though the SCCRC stated in its press release: ‘based upon our lengthy investigations, the new evidence we have found and other evidence which was not before the trial court . . . the applicant may have suffered a miscarriage of justice.’ Why did al-Megrahi withdraw his appeal? Was it because he was put under pressure to secure his release on compassionate grounds? Or was it voluntarily done because he lacked confidence in the impartiality of the court? Whatever the truth may be, the onus now rests on the Scottish government to establish a public judicial inquiry, so that the case so painstakingly prepared by the SCCRC does not go by default.

Second, to add to the suspicions Peirce’s article exposes, it needs to be said that the Scottish justice secretary Kenny MacAskill’s decision has unleashed a hysterical torrent of vilification, not least in the US where many of the relatives of the Lockerbie victims are convinced of al-Megrahi’s guilt. We have witnessed a campaign of denigration on which even Obama, Hillary Clinton and the late Edward Kennedy have bestowed their benediction. On this side of the Atlantic too the irrational commentators abound. The overwhelming weight of media comment has been hostile to al-Megrahi. On 3 September the Guardian carried a long article by Malcolm Rifkind, the former foreign secretary and a prominent Scottish lawyer, headed ‘Megrahi’s return has been a sorry, cocked-up conspiracy’: it failed even to mention the SCCRC reference. Even pillars of the human rights establishment, such as Geoffrey Robertson, have shouted themselves hoarse: ‘We should be ashamed that this has happened’ (Guardian, 22 August) and ‘Megrahi should never have been freed: the result is a triumph for state terrorism and a worldwide boost for the death penalty’ (Independent, 2 September).

Yet, when al-Megrahi releases part of the SCCRC case on the internet, his declared aim being to clear his name and ostensibly to prove his innocence, pat comes the Scottish lord advocate (Scotland’s chief prosecutor) joining relatives of the victims convinced of his guilt to denounce him for his ‘media campaign’. Meanwhile pleas from those who, like Dr Jim Swire, believe justice has not been done and who, for the sake of the memory of the victims as much as al-Megrahi, wish there to be a genuine and far-reaching inquiry, fall on deaf ears.

Megrahi’s release: Kenny MacAskill was right

[This is the headline over a recent post on the blog of distinguished Scottish lawyer Jonathan Mitchell QC. The following are extracts:]

If Megrahi was indeed rightly convicted of mass murder, which I doubt, it is not in doubt that he acted on the orders of the Libyan government. He was a senior member of its intelligence service. Yet both the UK and US governments have for some years been on friendly terms with the people who, they say, ordered the desctruction of PanAm 103. They dine with them. They have cocktails with them when they meet at mutual friends. The week before Megrahi’s release, as reported in the Washington Post, a delegation of four American senators led by John McCain met with Colonel Gaddafi to discuss the sale by the US to Libya of military equipment. In April, Hilary Clinton welcomed another member of the Gaddafi family, the régime’s National Security Adviser, to Washington. She said “We deeply value the relationship between the United States and Libya. We have many opportunities to deepen and broaden our cooperation. And I’m very much looking forward to building on this relationship. So, Mr. Minister, welcome so much here.”

There is nothing wrong with prosecuting and jailing the foot-soldiers of terrorism. There is however something deeply wrong with claims that the foot-soldiers should die in prison, because their crimes are so serious, while their commanders should be forgiven, because the identical crimes have no continuing importance and because, as Republican senator Lugar says, “we need to ensure that more Americans are able to travel to Libya to do business“. The families are entitled to resent the release of Megrahi, while recognising that they can do nothing about the attitude of their governments. But British and American politicians are not. They sold this particular pass a long time ago.

When Tom Harris MP asks with such sickening sanctimoniousness “why was he considered for compassionate release when others whose crimes were, arguably, less (in quantative terms only; not in relation to the devastation caused to victims’ families) would almost certainly not be?” he might remember that his government, his party, believe that those whose criminality at least equal to Megrahi- those who gave Megrahi his orders- should be fêted.

When Iain Gray MSP claims, as he no doubt will again tomorrow at Holyrood, that if he’d been Justice Secretary he wouldn’t have released Megrahi*, a claim incidentally that is hard to believe of someone whose relationship with Westminster is that of glove-puppet to hand, he might ask himself how he distinguishes this particular murderer. “While one can have sympathy for the family of a gravely ill prisoner, on balance our duty is to honour and respect the victims of Lockerbie and have compassion for them.” ‘On balance’ indeed! Do we ‘honour and respect‘ them by wining and dining with those who ordered the bombing?

Historically, war criminals gaoled for their crimes have been held until the state holding them has moved on. Erhard Milch was responsible for tens (perhaps hundreds) of thousands of deaths. In 1947 he was sentenced to life imprisonment. In 1951 that was commuted to fifteen years. In 1954 he was released. A far more serious criminal than Megrahi, he was released because the British and American governments of the day had lost interest. He was not terminally ill; he lived another eighteen years. More recently, the Westminster government released seventy-eight murderers under the Good Friday agreement. Some served only weeks or months. There is no practice in Britain of treating such crimes as the Lockerbie bombing as uniquely disqualifying from compassionate release. In applying well-established principles to this particular prisoner, principles first introduced into our law by a Conservative government, Kenny MacAskill cannot be criticised for failing to follow tradition.

The attack on the release of Megrahi, made by people who turn a blind eye to the cosy UK/US relationship with his line managers, is deeply hypocritical. Thus the call to ‘boycott Scotland’; why not boycott Indiana, for Senator Lugar’s hard work, quoted above, to forge relationships between US and Libyan security? And much of it is just ignorant. FBI Director Robert Mueller, in his much-quoted open letter to MacAskill, obviously intended primarily for US domestic consumption, thought the Justice Secretary was a ‘prosecutor‘. Geoffrey Robertson QC, who ought to know better, writes “I have read the judgment of the Lockerbie court and the two appeal judgments upholding it…” . What second appeal judgment was that? He’s just inventing it; it was never written.

We return to the straightforward facts that Megrahi is terminally ill; he is going home to die. On the undisputed facts, he falls within policy, dating back to the McConnell administration, which provide for compassionate release following the 1993 Act. As Kenny MacAskill’s statement pointed out (and I haven’t seen this description challenged as inaccurate) “guidance from the Scottish Prison Service, who assess applications, suggests that it may be considered where a prisoner is suffering from a terminal illness and death is likely to occur soon. There are no fixed time limits but life expectancy of less than three months may be considered an appropriate period. The guidance makes it clear that all prisoners, irrespective of sentence length, are eligible to be considered for compassionate release. That guidance dates from 2005“. So he had a legitimate expectation that that policy would be followed. Should that have been lost because Jack McConnell’s buddies don’t want attention to be given to their palling-up to Libya? Can Cathy Jamieson or Jim Wallace, who as justice ministers granted between them over twenty compassionate release applications, point to a single case in which an application for a terminally-ill prisoner was refused on their watch? I doubt it. (...)

Kenny MacAskill has been a fine Justice Secretary. The case against him is a failure to participate in hypocrisy and dishonesty, and that may be evidence of a lack of political realism. But good for him. He did the right thing for the right reasons.

*In fact what Iain Gray seems to be saying is that if he were First Minister he would have given unconstitutional orders to the Justice Secretary not to do so.