World Court decision prompts UK and USA to agree to neutral venue trial

[Seventeen years ago today the International Court of Justice (the “World Court”) ruled against the United Kingdom and the United States in cases raised against them by Libya arising out of their demands that Megrahi and Fhimah should be surrendered for trial in either Scotland or the United States. Here is what I wrote in an article headed “The Lockerbie Disaster” published in (1999) 3 Edinburgh Law Review 85-95:]

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.

[RB: This judgement was followed within six months by the UK and US volte face whereby they agreed to a neutral venue trial. Here is what I wrote in the article mentioned above:]

For four years and seven months the Government of the United Kingdom (and that of the United States) consistently maintained that the "neutral venue" scheme proposed by the writer and accepted by the Libyan Government and defence lawyers in January 1994 was impossible, impracticable and inherently undesirable.  For a flavour of the strength and vehemence of the Government's opposition, the interested reader is referred to "The Lockerbie Trial"  1998 Scots Law Times (News) 9 by Lord Hardie, a response by the Lord Advocate to the present writer's "The Lockerbie Proposal" 1997 Scots Law Times (News) 304.

However, on 24 August 1998 the Governments of the United Kingdom and United States announced that they had reversed their stance on the matter.  In a letter of that date to the Secretary-General of the United Nations, Kofi Annan, the Acting Permanent Representatives of the UK and the USA stated:

".... in the interest of resolving this situation in a way which will allow justice to be done, our Governments are prepared, as an exceptional measure, to arrange for the two accused to be tried before a Scottish court sitting in the Netherlands.  After close consultation with the Government of the Kingdom of the Netherlands, we are pleased to confirm that the Government of the Kingdom of the Netherlands has agreed to facilitate arrangements for such a court.  It would be a Scottish court and would follow normal Scots law and procedure in every respect except for the replacement of the jury by a panel of three Scottish High Court judges.  The Scottish rules of evidence and procedure, and all the guarantees of fair trial provided by the law of Scotland, would apply."

[RB: 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!]

Gaddafi and Lockerbie

[What follows is part of an item posted on this blog on this date in 2011. It is excerpted from an article by Nigel Horne to be found now on the website of The Week:]

A senior member of Col Gaddafi's administration has claimed that Gaddafi himself ordered the the bombing of the PanAm jetliner which exploded over Lockerbie in December 1988, killing a total of 270 people, the majority of them Americans.

Mustafa Abdel-Jalil, who was Libya's justice minister until he resigned in protest at Gaddafi's orders to murder unarmed protesters, has told the Swedish tabloid Expressen that he possesses proof that Gaddafi gave the order.

Conspicuously, neither Abdel-Jalil nor the paper's correspondent, Kassem Hamade, can reveal what the 'proof' is. (...)

But is Abdel-Jalil telling the truth - or is this a convenient lie, told in the hope that Gaddafi will go to his grave with the secret intact?

The fact is, many politicians and journalists - not nutcase conspiracy theorists, but serious investigative reporters - who have observed and reported into the Lockerbie bombing from the outset have never been persuaded that Libya masterminded the attack. They remain convinced that Libya only ever acted as an agent for another Middle Eastern power and/or - as Alexander Cockburn reported here last year - that Libya and Megrahi were framed.

Iran, Syria, Hezbollah - all have been held up over the past two decades as likely candidates for ordering the bombing.

Abdelbaset al-Megrahi, still alive in Tripoli, will likely die without giving up his story: recent reports suggest the prostate cancer that was supposed to kill him in 2009 has spread through his body and he has little time left.

But if Gaddafi should die in some final conflagration as the Libyan endgame approaches, there is a real danger that the Lockerbie relatives seeking 'closure' will have been fooled if they accept Abdel-Jalil's claim.

Their best hope of learning the truth is that Gaddafi gets out of Libya alive and in handcuffs, to appear before the International Criminal Court at The Hague, and that he is persuaded to tell the whole truth about the worst terrorist atrocity ever perpetrated on British soil.

Such is the nature of what he could tell the court, however, that there are some western governments who might prefer that he meets his end before that can happen.

Lockerbie Air Disaster Group lawyer suspended as part-time sheriff

[What follows is taken from an article in today’s edition of The Wall Street Journal:]

Scottish legal authorities have suspended a part-time judge with a former connection to collapsed hedge fund Heather Capital.

Sheriff Peter Watson was suspended from office at the start of last week, according to a statement on the Judicial Office for Scotland’s website. (...)

Mr Watson offered not to sit as a judge on a voluntary basis, according to the statement. However, having read the summons, the Lord President, Lord Gill, concluded that in the circumstances a voluntary de-rostering wasn’t appropriate and that suspension was necessary to maintain public confidence in the judiciary.

A spokesperson for Mr Watson referred to comments he gave to a Scottish newspaper, in which he said that he welcomed the suspension and said it is “not appropriate” for him to sit as a sheriff while civil litigation is ongoing.

Mr Watson is one of Scotland’s most high-profile lawyers and has been involved in some of the country’s best-known legal issues. According to the website of his firm PBW Law, he represented the families of 16 pupils in the massacre at Dunblane primary school in 1996 and played a key role in the Lockerbie Air Disaster Group, following the bombing of a Pan Am flight from London to New York in 1988.

[RB: The Lord President, Lord Gill, as Mr Brian Gill QC, represented the bereaved relatives who were members of the Lockerbie Air Disaster Group at the Fatal Accident Inquiry into the Lockerbie disaster held in Dumfries in 1990/1991.]

Reaction to Libyan PM's denial of Lockerbie guilt

[What follows is an article published in The New York Times on this date in 2004, the day after Libyan Prime Minister Shukri Ghanem had denied his country’s involvement in the Lockerbie bombing:]

Libya's prime minister, Shukri Ghanem, brought the thaw in relations between his nation and the West to a sudden standstill on Tuesday by suggesting that Libya was not responsible for the Lockerbie bombing and other major acts of terrorism, even though it has agreed to pay compensation to victims' families and accepted responsibility in writing.

The Bush administration reacted strongly, demanding a retraction. And some of Mr Ghanem's close associates in government told Western colleagues, one of them said, that the prime minister might be forced to resign over the remarks, which cut against the grain of the country's rapprochement with the West.

In an interview with BBC radio on Tuesday morning, Mr Ghanem, speaking from the Libyan capital, Tripoli, said that ''we thought it was easier for us to buy peace'' with the United States and Britain, ''and this is why we agreed on compensation'' in the Lockerbie case.

Pan Am Flight 103 exploded over Lockerbie, Scotland, in 1988, killing 270 people, mostly Americans.

Mr Ghanem also said he believed that Libya was not responsible for the death of a British policewoman, Yvonne Fletcher, killed in front of the Libyan Embassy in 1984. Libya formally accepted ''general responsibility'' for Ms Fletcher's death in 1999 as part of the agreement to re-establish relations with Britain.

The Bush administration had been expected to lift the longstanding ban on travel to Libya this week, but White House and State Department officials pointedly put off any announcement on Tuesday. Instead, they demanded that the Libyan government disassociate itself from the prime minister's statements.

''We would expect a retraction from the Libyan government,'' said Richard A Boucher, the State Department spokesman.

''We, and the United Nations, demanded that Libya formally accept responsibility for the actions of its officials in the Pan Am 103 bombing,'' he said. ''Libya did so in a letter that had no ambiguity to the United Nations Security Council on Aug 15, 2003.''

Mr. Ghanem's remarks represented the first serious setback since the Libyan leader, Col Muammar el-Qaddafi, declared on Dec 19 that Libya would abandon all attempts to develop unconventional weapons and was seeking a new relationship with the West. He was congratulated by President Bush and Prime Minister Tony Blair of Britain, who is expected to meet with Colonel Qaddafi in the spring.

American and British intelligence officials have worked intensively since January to dismantle, evacuate or prepare for destruction Libya's illicit weapons technologies, and American and British officials have praised Libya's cooperation, as Jack Straw, the British foreign secretary, did again on Tuesday. American officials have also taken the first steps toward re-establishing diplomatic representation in Tripoli.

Mr Straw seemed at pains to place greater emphasis on the written statements the Libyan government has rendered.

''We take account of the reported remarks of the Libyan prime minister, but we take even greater account of the formal communications from the government of Libya,'' he said.

But the Bush administration took a markedly stronger line. Mr Boucher said the prime minister's statements, if not withdrawn, would ''certainly'' be ''a factor that we would need to take into account as we decide how to proceed'' with Libya. He indicated that other steps in improving relations, like the lifting of sanctions, could not proceed without clarification.

''We need to understand that the Libyan position is the one they stated authoritatively to the United Nations in writing, for all the other steps to continue apace,'' he said.

One close associate of Mr Ghanem in Europe said the prime minister was ''inexperienced'' in diplomacy and somewhat ''argumentative'' in the position Colonel Qaddafi created for him last June to encourage an economic reform program.

Mr Ghanem is considered to be one of the most progressive members of Colonel Qaddafi's government, and some experts suggested that those who oppose his reforms may be among the first to call for his resignation on Wednesday.

One of his Western friends said Mr Ghanem, an economist who studied in the United States and worked in Vienna for OPEC, had privately said that if he believed that his government was responsible for blowing up Flight 103, then he could not serve it.

Libyan PM denies Tripoli involved in Lockerbie

[This is the headline over a Reuters news agency report published on this date in 2004. It reads in part:]

Libyan Prime Minister Shokri Ghanem has denied his country's guilt in the 1988 Lockerbie bombing which killed 270 people and says Tripoli has only agreed to pay damages to victims in order to "buy peace".

In comments which appear directly to contradict recent more conciliatory moves by Tripoli, Ghanem said Libya had refused to apologise for the attack because that was not part of the deal.

"We reached an agreement in which we feel that we bought peace," he told BBC radio in an interview on Tuesday.

In a deal reached after years of negotiations, Libya last year agreed to pay $2.7 billion (1.4 billion pounds) in compensation for Lockerbie victims -- many of whom were Britons and Americans travelling on Pan Am flight 103 when it was blown up over the Scottish town of Lockerbie.

In response, United Nations Security Council voted in September to lift sanctions on Libya, first imposed in 1992.

Ghanem said the pressure of years of US and United Nations sanctions against Libya, and a desire to "put the whole case behind us" had forced Libya to agree to compensation.

"After the problems we had faced because of the sanctions ... we thought it was easier for us to buy peace," he said.

Asked whether that meant Libya did not see the compensation payments as an admission of guilt for the bombing, he said: "I agree with that, and that is why I say we bought peace." (...)

Ghanem's comments threaten to sour relations between Tripoli and Britain and the U.S at a time when Libya had been making efforts to reintegrate into the international community.

In a dramatic move last December, Libya promised to abandon plans to develop atomic and other mass destruction weapons.

The British government played a key diplomatic role in securing December's weapons agreement, which has given a huge boost to Libya's efforts to end its international isolation.

Washington has yet to lift economic sanctions, including a ban on travel by US citizens to Libya, but it agreed in January to take "tangible steps" towards improving relations with Libya if it honoured its pledge to give up banned weapons.

Britain has moved faster than the United States to restore ties and British Prime Minister Tony Blair is planning landmark talks with Libyan leader Muammar Gaddafi later this year.

Ghanem said he did not yet know when Blair's visit would take place, but hoped it would be soon. "I hope that he will be coming -- the sooner, the better -- he will be most welcome here," he said. "I think he will enjoy coming to Libya and he will find friends here."

[A BBC News report on the same matter can be read here.]

The official case is now so thin that only concoctions can save it

What follows is an item originally posted on this blog four years ago on this date:

Ex-minister says Gadhafi ordered Lockerbie

[This is the headline over a news agency report from Associated Press. It reads in part:]

Swedish tabloid Expressen says Libya's ex-justice minister claims Moammar Gadhafi personally ordered the Lockerbie bombing that killed 270 people in 1988.

Expressen on Wednesday quoted Mustafa Abdel-Jalil as telling their correspondent in Libya that "I have proof that Gadhafi gave the order about Lockerbie." He didn't describe the proof.

Abdel-Jalil stepped down as justice minister to protest the violence against anti-government demonstrations.

He told Expressen Gadhafi gave the order to Abdel Baset al-Megrahi, the only man convicted in the bombing of Pan Am Flight 103 over Lockerbie, Scotland, which killed all 259 people on board and 11 on the ground.

"To hide it, he (Gadhafi) did everything in his power to get al-Megrahi back from Scotland," Abdel-Jalil was quoted as saying. (...)

Expressen spokeswoman Alexandra Forslund said its reporter, Kassem Hamade, interviewed the ex-justice minister at "a local parliament in a large city in Libya." She didn't want to name the city, citing security concerns. (...)

Bob Monetti, of Cherry Hill, New Jersey, whose 20-year-old son Richard was killed in the bombing, said he's glad to hear a former official say what's been clear to him all along. He said officials and the media, especially in the UK, have been denying that.

"Ever since the trial, which was held in a totally obscure location in Holland and was covered by nobody, there's been a drumbeat in the UK about how this is a trumped up thing and Libya had nothing to do with it," he said. "If you went to the trial, there was no question about who did it and why, and who ordered it."

Monetti said he's been following coverage of the Libyan uprising closely.

"I can't wait until we see pictures of Gadhafi hanging by his heels," he said.

[A news agency report from The Press Association contains the following:]

The Scottish Government says it "never doubted" the safety of the conviction of the Lockerbie bomber following reports that Libyan leader Colonel Moammar Gaddafi ordered the attack. (...)

A Swedish newspaper reported that Col Gaddafi had personally ordered the bombing.

The Expressen said Libya's former justice secretary, Mustafa Abdel-Jalil, told its correspondent in Libya: "I have proof that Gaddafi gave the order about Lockerbie.

"To hide it, he did everything in his power to get Megrahi back from Scotland." (...)

But the Scottish Government, which has repeatedly said Megrahi was only freed on compassionate grounds because of his terminal prostate cancer, said: "Ministers have never doubted the safety of the conviction."

[On this blog yesterday, the following was posted:]

What’s the betting that, sometime in the next few weeks, the following happens:

1. In the burned out ruins of a Libyan government building, someone finds definitive documentary ‘proof’ that Libya and Megrahi were responsible for Lockerbie, and/or

2. A Libyan official reveals, ‘we did it’.

The official case is now so thin that only such concoctions can save it (although it’s also crossed my mind that a prisoner will come forward who says ‘Megrahi confessed to me' – another hallmark of paper-thin cases).

[RB: Further blogposts relating to the Abdel-Jalil statement can be read here.]

"No reasonable basis in trial court's judgment for its conclusion..."

What follows is an item originally posted on this blog on this date in 2009:

Lockerbie investigators to travel to Malta to seek new evidence

[From an article by David Lindsay in the online version of today's edition of The Malta Independent. The full article can be read here.]

A delegation from the Scottish Crown is due to travel to Malta in the very near future to “actively seek the consent for disclosure” of sensitive documents that could determine a the outcome of convicted Lockerbie bomber Abdul Baset Ali al-Megrahi’s appeal, the High Court in Edinburgh was told on Friday.

The delegation will be looking for previously undisclosed documents related to statements given by a friend of Maltese shopkeeper Tony Gauci, David Wright, who in 1989 raised concerns over Gauci’s identification of al-Megrahi.

The news comes amid arguments presented by al-Megrahi’s defence team, which contended evidence given by the potential witness in the Lockerbie bombing investigation could have undermined the prosecution’s case, but had never been presented in court or given to the defence team. (...)

Gauci claimed that on 7 December 1988 he had sold the former Libyan intelligence officer the clothes later found inside the suitcase holding the bomb that brought down Pan Am flight 103 over Lockerbie in Scotland, killing all 270 people aboard.

Al-Megrahi’s defence team argued on Friday that evidence given by a friend of Gauci, a certain David Wright could very well have scuttled the prosecution’s case but the evidence had never been presented in court or handed over to the defence team.

Wright was said to have approached the Maltese police in September 1989 and the officers in England in December with a statement contradicting Gauci’s evidence.

Defence counsel Maggie Scot argued that Wright had given a “remarkably” similar description to that used by Gauci to implicate al-Megrahi in the bombing of another unrelated sale made by Gauci at his family’s shop, Mary’s House in Sliema.

But Ms Scott argued that the details of Wright’s statement, which could contradict and possibly negate Gauci’s evidence, had never been presented in court and that the defence team had never even seen it.

Speaking in court on Friday, Ms Scott said, “Mr Wright gave statements to police in England saying he was a friend of Mr Gauci and that he had witnessed a transaction at Mr Gauci’s shop which bears a remarkable resemblance to the sale to the two men Mr Gauci described.”

Al-Megrahi’s defence is demanding that the previously undisclosed evidence it believes will help free their client be made available in time for the commencement of the appeal hearing, due to begin on 27 April.

Such evidence includes any documents related to Wright, as well as any documents showing Mr Gauci had been interested in a financial reward for his evidence.

Al-Megrahi’s lawyers are also asking for video footage of the identification parade in which Gauci had singled out al-Megrahi, as well as the details of those who had been selected to participate in the parade.

In addition to Malta, the Crown will also be approaching other foreign sources, but stressed some of the material being requested could have security implications in the respective countries should it be made public.

The call for documents related to Gauci’s interest in a financial reward for positively identifying al-Megrahi comes amid claims that Tony Gauci and his brother Paul were paid millions of dollars each by the US Federal Bureau of Investigation as a reward for their help in convicting al-Megrahi, claims the FBI vehemently denies. (...)

Al Megrahi was found guilty of the Lockerbie bombing in 2001 and although he lost a previous appeal against his conviction in 2002, the SCCRC in June 2007 referred the appeal back to court after it found six grounds that may have constituted a miscarriage of justice. Grounds mainly related to Gauci’s evidence.

In approving a new appeal, the Commission had found “there is no reasonable basis in the trial court’s judgment for its conclusion that the purchase of the items from Mary’s House took place on 7 December 1988” as Gauci had claimed. 

Although it had been proven that al-Megrahi had been in Malta on several occasions in the month in question, it had determined that 7 December 1988 was the only date on which he would have had the opportunity to make the purchases from Mary’s House.

New evidence given to the Commission concerned the date on which Christmas lights had been turned on in Tower Road, Sliema near Mary’s House. Taken together with Gauci’s evidence at the trial and the contents of his police statements, the date indicates that the purchase of the incriminating items had taken place before 6 December 1988 – when no evidence had been presented at trial to the effect that the al-Megrahi was in Malta before the date.

Yet more new evidence given to the Commission indicated Gauci, four days before the identification parade at which he picked out al-Megrahi, had seen a photograph of al-Megrahi in a magazine article linking him to the bombing. 

The Commission found that Mr Gauci’s exposure to the photograph, so close to the date of the identity parade, “undermines the reliability of his identification of the applicant at that time and at the trial itself”.

The Lockerbie Bomber play in Larbert

[The following is excerpted from an article published today on the website of The Falkirk Herald:]

Two local theatre groups will go head to head when Larbert’s Dobbie Hall [Main Street, Larbert FK5 4BL] hosts a popular drama festival this weekend.

On Sunday evening, the Falkirk District round of the Scottish Community Drama Association’s one-act play festival features plays from two talented local clubs (...)

Closing the festival are Tryst Theatre with The Lockerbie Bomber by Larbert writer Kenneth N Ross.

It’s an emotional and soul-searching drama about the Lockerbie disaster which claimed 270 lives when a jumbo jet crashed in the Scottish town in 1988.

The actors are Carol Clark, Jim Allan, Alan Clark, Rhona Law, Brian Paterson and Craig Murray. (...)

The evening starts at 7.30pm on Sunday [22 February]. Tickets £7 (concessions £4) are available at the door or by telephoning (01324) 624449.

[Here is a review of the play from May 2012.]