Lawyer agrees to Lockerbie bombing trial pact

[This is the headline over a report published in The Herald on this date in 1998. It reads as follows:]

The Libyan lawyer for two suspects in the Lockerbie bombing last night said he had reached agreement with a lawyer for victims' families on a proposed trial in the Netherlands under Scots law.

Ibrahim Legwell said he told Scots lawyer Professor Robert Black, from Edinburgh University, and Dr Jim Swire, who represents families of British victims of the disaster, that his two Libyan clients were ready to stand trial in a neutral country for the 1988 bombing, which killed 270 people.

Professor Black and Dr Swire held talks in Tripoli this week with Mr Legwell and Libyan officials. They also met Libyan leader Muammar Gaddafi in a bid to gain support for a trial plan drawn up by Professor Black.

Mr Legwell said: ''We agreed on several basic points and details. I confirmed to them, as I have done previously, that my clients would stand for trial before such a court, which will be set not in Scotland nor the United States, but in a neutral country.

''We also agreed that it would be established with an international panel of judges to be agreed upon and presided over by a senior Scottish judge. The court would operate under the criminal law and procedures of Scotland,'' he added.

''We also are very concerned about how to ensure the safety, the security and the rights for our clients pending, during and after the trial.

''We really have done very good work which will end the suffering of the victims' families and the suffering of my two clients and my country,'' Mr Legwell said.

Since 1992, the UN Security Council has imposed sanctions on Libya for failing to extradite the two men, alleged intelligence agents Abdel Baset Ali Mohamed al-Megrahi and Al-Amin Khalifa Fhimah, for trial before a Scottish court or in the United States.

Libya, which denied any involvement of its two citizens in the bombing, said such a move would not be fair, but Colonel Gaddafi has previously said he would support whatever arrangements were accepted by the suspects' lawyers.

The Foreign Office stressed that Dr Swire had been acting in a private capacity and the US State Department dismissed any agreement on trying the case in a neutral country.

Pleas of not guilty tendered by Megrahi and Fhimah

[What follows is the text of a report published on the BBC News website on this date in 2000:]

Formal pleas of not guilty have been entered by the two Libyan men accused of the 1988 Lockerbie bombing in which 270 people died.

They were lodged at the end of a preliminary hearing dealing with administrative matters for the trial, which is due to start in the Netherlands on 3 May.

During the hearing at the High Court in Edinburgh, the judge Lord Sutherland refused to hear an approach by the BBC for permission to televise the trial. The BBC said it would seek a judicial review.

The accused, Abdelbaset Ali Mohmed Al Megrahi, 47, and Al Amin Khalifa Fhimah, 43, have been charged with conspiracy, murder and a breach of the Aviation Security Act.

The allegations follow the bombing of Pan Am Flight 103 from Heathrow to New York, which blew up in the skies over the Scottish town of Lockerbie on 21 December 1988, killing all 269 people on board and 11 people on the ground.

Entering pleas for the first time, Bill Taylor, QC, for Abdelbaset Ali Mohmed Al Megrahi, said: "In the absence of my client I formally tender a plea of not guilty to the indictment."

Trial broadcast

A similar plea was tendered by Richard Keen QC, for the second accused Libyan.

Neither of the two accused was present at the hearing, where an attempt by the BBC to raise the issue of whether the Lockerbie trial should be broadcast was rejected.

Roy Martin QC, for the BBC, was told he had no formal role in the hearing and Lord Sutherland told Mr Martin it was up to him to decide what further steps the BBC should take.

"I am afraid you have no locus", he told the lawyer.

Earlier, Mr Martin told the judge he had been instructed to appear at the hearing on the basis of 1992 Scottish legal guidelines which enabled a court to authorise "in certain circumstances" the televising of proceedings.

"There have been a number of instances when such televising has taken place," said Mr Martin.

Mr Martin said he was appearing now as a matter of courtesy and told the judge it might be open to the BBC to take the issue forward by another route.

Witness disguises

Earlier, Solicitor General for Scotland, Colin Boyd QC, said Mr Martin was not a party to proceedings and invited the judge to ask him to leave.

The hearing was a continuation of an earlier procedural hearing in December at Camp Zeist in Holland, which had ended with legal argument over an application by the Crown for prosecution witnesses to disguise their identities.

The Crown expressed concern that the safety of some witnesses, including members of the East German security services, the Stasi, could be at risk.

This was resisted at the Camp Zeist hearing by the defence team, which had raised the prospect of witnesses wearing wigs.

Mr Boyd said the Crown was altering the formal request - set out in a formal document lodged with the court - so that it was no longer sought for their "true physical appearance" to be disguised.

Modifications agreed

This followed an indication from Lord Sutherland at the previous hearing that the judge was not prepared to agree to measures like wearing masks or other methods that went "far beyond what was appropriate".

The court heard the modifications had been agreed following discussions between the Crown and defence.

The Crown also revealed that it would not seek to determine where in the Camp Zeist courtroom observers appointed by the UN should sit.

And agreement was reached between the Crown and defence over non-controversial evidence, which would spare the need for "hundreds" of witnesses to be called.

The BBC said it would decide within a week whether to make a legal challenge.

It said it would argue that the trial was unique, that there was no jury, and it would be difficult for justice to be seen to be done as it was due to be held in the Netherlands.

Gaddafi confirms support for neutral venue trial

[On this date in 1998 Dr Jim Swire and I had a meeting in Tripoli with Colonel Gaddafi. Here is what I have previously written about the occasion:]

The Libyan Foreign Ministry committee, with whom all of my previous dealings had been, arranged for Dr Swire and me to have a meeting with Colonel Gaddafi and this took place on 20 April 1998 at his reinforced concrete tent on the outskirts of Tripoli.  The meeting was initially a frosty one, with the Colonel refusing to make eye contact but instead staring straight ahead with his arms folded and making lengthy pronouncements about the inflexibility and intransigence over more than four years of the British government.  When eventually he interrupted his monologue to take breath, we were able to dive in with comments to the effect that the Labour government had been in office for less than a year, was still finding its feet in foreign affairs and that it was possible to detect some signs that its position over the Lockerbie issue might just be somewhat more flexible than that of its Conservative predecessor.  Gaddafi then made a few highly complimentary remarks about Tony Blair, and the remainder of the meeting was held in a much more cordial atmosphere.  After about an hour, we departed with the reassurance that the Libyan government’s policy in relation to a “neutral venue” trial would remain unchanged for at least a further six months.  As we were leaving Gaddafi's compound the then Libyan Foreign Minister, Omar al-Muntasser, who had been present at the meeting, said to us: "You made the Leader laugh three times!  Someone will pay for that!"  I think he was joking.

[The Herald’s report on this meeting reads as follows:]

The two men suspected of causing the Lockerbie bombing could soon be handed over for trial in a neutral country, reports claimed yesterday after Libyan leader Muammar Gaddafi met British representatives, writes Ron MacKenna.

Dr Jim Swire, whose daughter Flora was among the 270 who died in the disaster a decade ago, and Professor Robert Black, from Edinburgh University, had a 40-minute meeting with the Libyan leader in Tripoli on Monday. They said the talks were “of some substance” but refused to elaborate.

However, Egypt's Middle East News Agency quoted Ibrahim el-Ghoweily [Legwell], a lawyer for the suspects, as saying the two sides had agreed ''to hold the trial in a third country with a panel of judges headed by a Scottish judge and in light of Scottish law''.

The talks indicate movement towards ending the seemingly intractable problems over having the two men accused of the outrage tried. Both Britain and the United States both want to try the men but Libya has so far refused to surrender them to either country, saying they will not get a fair trial.

El-Ghoweily said Dr Swire and other representatives of British relatives will ''work to convince'' Britain and the United States ''that the trial should be held in a third country''.

Libyan officials have apparently indicated they are prepared to compromise, allowing a trial before an international panel headed by a Scottish judge.

British relatives would prefer the trial to be held in Scotland but many have indicated they would agree to it being held in a neutral country, possibly the Netherlands.

El-Ghoweily said both sides had agreed on Monday on ''the importance of avoiding prejudiced jurors and any country in which the media or other factors would influence the trial'', and wanted the hearing to take place ''as soon as possible''.

The British and American governments argue that the accused men should not be allowed to dictate conditions for their trial and they are concerned that there will be no jury.

Gauci and the Zeist identification parade

[What follows is excerpted from the Wikipedia article Pan Am Flight 103:]

An official report, providing information not made available to the defence during the original trial, stated that, on 19 April 1999, four days before identifying al-Megrahi for the first time [at an identification parade at Camp Zeist], Gauci had seen a picture of al-Megrahi in a magazine which connected him to the bombing, a fact which could have distorted his judgment. Gauci was shown the same magazine during his testimony at al-Megrahi's trial and asked if he had identified the photograph in April 1999 as being the person who purchased the clothing; he was then asked if that person was in the court. Gauci then identified al-Megrahi for the court stating – "He is the man on this side. He resembles him a lot".

[A report in The New York Times headlined Scottish Panel Challenges Lockerbie Conviction, which was published after the Scottish Criminal Cases Review Commission referred the Megrahi conviction back to the appeal court, contains the following:]

The section of the commission’s findings made public centered on evidence relating to purchases of clothing at a shop called Mary’s House in Sliema, Malta, on Dec 7, 1988; the clothing was said to have been wrapped around the bomb. The bomb was said to have been put on board a plane in Malta and then transferred to a Pan Am flight from Frankfurt to London before it was loaded onto Flight 103 at Heathrow Airport.

The original trial found that the bomb was hidden in a Toshiba radio cassette player placed inside a brown, hard-shell Samsonite suitcase with clothing traced to Mary’s House. The trial court found that Mr Megrahi bought the clothing at the shop on Dec 7, 1988. But, the Scottish commission ruled, new evidence relating to the dates when Christmas lights were switched on in Malta suggested that the clothes had been bought before Dec 6, 1988, before the time when there was evidence that Mr Megrahi was on Malta.

Additionally, the commission questioned the reliability of evidence by the shop’s proprietor, Tony Gauci, who singled out Mr Megrahi in a lineup. It said that additional evidence, not available to Mr Megrahi’s defense in the original trial, indicated that four days before the lineup “at which Mr Gauci picked out the applicant, he saw a photograph of the applicant in a magazine article linking him to the bombing.”

“In the commission’s view, evidence of Mr Gauci’s exposure to this photograph in such close proximity” to the lineup “undermines the reliability of his identification of the applicant at that time and at the trial itself,” the commission said.

In Scotland, Mr Megrahi’s lawyer, Tony Kelly, read a statement from his client: “I was never in any doubt that a truly independent review of my case would have this outcome. I reiterate today what I have been saying since I was first indicted in 1991: I was not involved in the Lockerbie bombing in any way whatsoever.”

Libya confirms support for proposed neutral venue trial

[On this date in 1998 Dr Jim Swire and I were in Libya. During our discussions in Cairo on 16 April 1998 at the headquarters of the Arab League, it was suggested that it would be useful for us to make a visit to Tripoli. This we did. What follows is from a press release issued following that visit:]

A meeting to discuss issues arising out of the Lockerbie bombing was held in the premises of the Libyan Foreign Office in Tripoli on the evening of Saturday 18 April 1998. Present were Mr Abdul Ati Obeidi, Under-Secretary of the Libyan Foreign Office; Mr Mohammed Belqassem Zuwiy [or Zwai], Secretary of Justice of Libya; Mr Abuzaid Omar Dorda, Permanent Representative of Libya to the United Nations; Dr Ibrahim Legwell, head of the defence team representing the two Libyan citizens suspected of the bombing; Dr Jim Swire, spokesman for the British relatives group UK Families-Flight 103; and Professor Robert Black QC, Professor of Scots Law in the University of Edinburgh and currently a visiting professor in the Faculty of Law of the University of Stellenbosch, South Africa.

At the meeting, discussion focused upon the plan which had been formulated in January 1994 by Professor Black for the establishment of a court to try the suspects which would: operate under the criminal law and procedure of Scotland; have in place of a jury an international panel of judges presided over by a senior Scottish judge; and, sit not in Scotland but in a neutral country such as The Netherlands.

Among the issues discussed were possible methods of appointment of the international panel of judges, and possible arrangements for the transfer of the suspects from Libya for trial and for ensuring their safety and security pending and during the trial.

Dr Legwell confirmed, as he had previously done in January 1994, that his clients agreed to stand trial before such a court if it were established. The representatives of the Libyan Government stated, as they had done in 1994 and on numerous occasions since then, that they would welcome the setting up of such a court and that if it were instituted they would permit their two citizens to stand trial before it and would co-operate in facilitating arrangements for that purpose.

Dr Swire and Prof Black undertook to persist in their efforts to persuade the Government of the United Kingdom to join Libya in accepting this proposal.

Unfulfilled hopes

[On this date in 2000 an article headlined Dr Jim Swire: My hopes was published on the BBC News website. It reads as follows:]

Since the Lockerbie disaster, Dr Jim Swire has led a high-profile campaign for justice on behalf of UK relatives. Here, he explains his motivation and reveals what he hopes the trial will achieve.

My daughter, Flora wanted to fly to the US to spend Christmas with her American boyfriend.

The week before Christmas is a busy time for transatlantic flights. Twenty-four hours before the fatal flight, Flora was able to get a seat - on Pan Am Flight 103.

Why was that, and why was the 103 only two-thirds full that night?

Our group has sought truth and justice throughout the last 11 years since our loved ones perished so horribly.

We want to know why the intelligence warnings were ignored, why UK aviation security was so inept that its head, who had seen a warning about a bomb in a tape recorder specifically designed to work in the hold of an aircraft in-flight, actually informed his staff, just before Lockerbie, that if they were unsure about a tape recorder: "Any device about which a searcher is unable to satisfy himself/herself must, if it is to be carried in the aircraft, be consigned to the aircraft hold."

No explanation or apology has been forthcoming, for this or for the apparent torpor of the intelligence services.

All attempts to persuade the Conservative Government to hold an objective inquiry were dismissed, even though the doomed aircraft "Maid of the Seas" had been loaded from empty, (and therefore the bomb itself had been loaded) at Heathrow Airport, under the "Host State Protection" of the UK.

Indictments issued

In November 1991, the UK and US Governments suddenly issued indictments against two named Libyans, claiming that there was no evidence for the involvement of any other country, and demanding their immediate surrender for trial in the UK or US.

In 1971, the Libyans, the UK and the US had all been parties to the Montreal Convention, which stated that under these circumstances the accused could be tried under the law of their own country, that is Libya.

I am two-thirds Scottish and my daughter died in Scotland. I wanted the accused tried under Scottish law, with its excellent reputation for impartiality.

Against the background of such demands at international level, and the existence of such a treaty, it seemed very unlikely that an independent state, such as Libya, would ever comply.

It was difficult as a small-town GP in England to see what could be done, but with the help of an Egyptian journalist, Nabil Nagemeldin, who was able to arrange the logistics, I decided I must try to persuade Libya to allow her citizens to be tried under Scots law.

Sealed letters

I had to see Colonel Gaddafi. Leaving sealed letters with a solicitor, in case I could not return, I found myself finally making the nerve-racking trip down the concrete path to the colonel's tent in Tripoli.

I shall never forget that dark cold December night. Fear sharpens the senses.

Unfortunately, his aides did not allow me to bring in my briefcase which contained one or two small presents for him, so my opening gambit was, that while I was very grateful to him for agreeing to see me, I thought he must be almost as scared of me as I was of him.

After that the briefcase was brought and the ice was broken.

The Arabs have a rich tradition of courtesy to travellers, which was honoured that night. The colonel was determined that I should hear that he believed that his citizens were innocent and that he did not know how the disaster had been caused.

His adopted daughter had been killed in the 1986 bombing of Tripoli by the US, and he agreed that in the preserved ruined bedroom, where she had been mortally wounded, a photograph of her and of Flora should be put up side by side, with the message beneath in Arabic and English: "The consequence of the use of violence is the death of innocent people."

So far as I know it is still there.

West sanctions

As I left he allowed me to pin a badge to his robe. It read "Pan Am 103 - the truth must be known".

Western demands remained, and were backed by Security Council sanctions. The Libyans could not try the two because the West would not supply them with the evidence.

In January 1994 Professor Robert Black QC, a native of Lockerbie, had proposed a trial under Scottish criminal law, but in a neutral country. In addition he proposed that such a court have a panel of judges instead of a jury.

Under Scottish law, jurors should not come to a case having already formed opinions as to the guilt or innocence of those upon whom they are to give a verdict.

Where would 15 such Scots be found after the media coverage of the preceding years?

Professor Black had also obtained the agreement of the Libyans to such a solution. With the refusal of the US or UK Governments to consider such a "neutral country" trial, in April 1998 Prof Black and I decided to lobby internationally for support of his proposal.

Cairo trip

With the help of loyal friends we flew to Cairo and obtained the support of HE Esmat Abdel-Meguid, secretary-general of the League of Arab States.

The Organisation of African Unity had gone as far as to threaten to break Security Council sanctions imposed on Libya, unless the west found a solution to the Lockerbie deadlock.

With this encouragement we visited Libya again and obtained renewed and stronger support from both Colonel Gaddafi and the Libyan People's Congresses for the "neutral country" trial solution.

The following month, May 1998, I met Donald K Bandler, special adviser to President Clinton, and member of the National Security Council at the Whitehouse in Birmingham, England.

When asked why the US still refused to consider the concept of a "neutral country trial", his reply was that the Libyans "would never hand them over".

Change of government

Following the 1997 general election in the UK, the new foreign secretary, Robin Cook, while initially taking the line that a neutral country trial was not possible under Scots law, met our group and, with tremendous support from President Nelson Mandela, (who had been lobbying the UK Government during the Conservative years also), had the grace to agree to promote this solution.

How he and Prime Minister Tony Blair persuaded America to join them I do not know.

One piece was missing: the venue itself. That missing piece was supplied by the Netherlands.

The Dutch Government, in line with its magnificent past record in support of international justice, offered a choice of possible sites.

In the end Zeist was chosen to become Scottish territory for the duration of the criminal proceedings.

There remained the delicate task of clearing up remaining difficulties raised by the Libyan defence team.

'Fair verdict'

This was entrusted to the UN Secretary-General, Kofi Annan, and his team led by Hans Corell, legal counsel to the UN.

Our group has always worked for truth and justice and now we expect to see Scottish criminal justice deliver a fair verdict on the guilt or innocence of two individuals.

After that is done many questions will still remain unanswered.

In December 1998, for the first time since the disaster, a British prime minister (Tony Blair) met us to discuss these issues.

He supported the need to follow up any new avenues opened up by the trial.

He also said that "we had thought that the Lockerbie situation was set in stone and then we heard the voice of the relatives".

I think Flora would have been proud to hear that and that it goes some way to atone for the fearful price that this campaign has exacted from all of us.

That price for me includes the loss of my medical partnership together with much of my pension rights.

But it has also revealed the loyalty of my wife Jane, who has understood that this was something I had to do. Any alternative would have been infinitely worse.

Others in our group have suffered likewise Some have died from stress-related diseases.

Despite all that, we shall still be seeking truth and justice after this trial is over - those we loved were too important for their fate to be pushed under any political carpet.

'Criminal investigation'

The verdict of this court on the guilt or innocence of these two accused will however have removed one of the most potent weapons used to frustrate our search for the truth - the mantra: "You can't have an inquiry because it might impinge on the criminal investigation."

Other major international political issues also hang upon the verdict. Perhaps this unprecedented legal solution may help point the way for future victims of international crime.

Despite deliberations stretching all the way back to Nuremburg, there is still no satisfactory route for the trying of those accused of international terrorist crimes such as Lockerbie.

President Mandela has said that no one country should be complainant, prosecutor and judge.

I would be proud if this trial contributes to fair and just resolution of future terrorist cases.

'This is a sensible compromise solution, accept it'

[On this date in 1998 Dr Jim Swire and I had a meeting in Cairo with Dr Esmat Abdel-Meguid, the Secretary-General of the Arab League. What follows is a report on the meeting:]

The Scottish lawyer Robert Black said on the 16th of April in Cairo after the talks with Abdel Maguid, that his latest proposal to end a dispute between Libya, Britain and the United States over the trial of two Libyan suspects in a 1988 airliner bombing would be his last. Black gave no details on the modifications in the more recent proposal. But he said there was “fine-tuning” to make it more acceptable to the British and Americans.

“What we are hoping for is that continued pressure on these two governments will cause them to see the error of their ways,” Black said.

Robert Black told a news conference he was “51 percent sure” the Libyans would accept the modified proposal. He would not give details, but Black and Swire are suggesting the suspects be tried under Scottish law in a neutral venue by an international panel of judges, without a jury. But Robert Black, a legal expert advising the victims' families, said there was little hope the United States would accept the proposal, although international pressure might succeed in winning Britain's support. “One simply has to give up on the American government,” Black said. “They are unmovable.”

“It's now plain that the United States and the United Kingdom as far as I know are the only two nations in the civilised world which are not saying 'this is a sensible compromise solution, accept it',” Black said after meeting the head of the Cairo-based Arab League. “What I am hoping is that the United Kingdom can see the error of its ways if it is given an opportunity marginally to save face. They have to find a solution. If this proposal does not work, then I suspect that this may very well be the end of the line.

“I can't very well go on drafting scheme after scheme, that are accepted by one side but rejected outright by the other. All three are going to have to accept something with which they are not 100% happy in order for there to be a compromise,” he said. "If they are prepared to do that then there is a remote possibility of progress. But I wouldn't put it above saying there is a slight chance. But any chance is better than no chance."

Swire slammed the British government for not moving fast enough to end the crisis. “For six years, I have been waiting for the men charged with the brutal murder of my daughter to be put on trial but on March 20, the permanent representative of my country in the United Nations was busy telling the Security Council that the sanctions they imposed on Libya were not working.

“Why have you kept us waiting for six years when they are not working? They are demolishing the thing they invited us to depend on and if that doesn't make you angry, then it should.”

Jim Swire, who acted as representative for British victims of the bombing, said Abdel-Meguid would pass the new proposal to the Libyans.

[RB: Just over four months later the UK and US governments finally accepted the solution of a Scottish court sitting in a neutral country.]

UN sanctions against Libya

On this date in 1992 United Nations sanctions against came into effect against Libya for failing to hand over Megrahi and Fhimah for trial in the United Kingdom or the United States, as the Security Council had ordered in Resolution 731 (21 January 1992). The sanctions imposed pursuant to Resolution 748 (31 March 1992) required UN member states to 

(a) deny permission for any Libyan aircraft to take off from, land in or overfly their territory if it had taken off from Libyan territory, excluding cases of humanitarian need;

(b) prohibit the supply of aircraft or aircraft components or the provision or servicing of aircraft or aircraft components;

(c) prohibit the provision of weapons, ammunition or other military equipment to Libya and technical advice or training;

(d) withdraw officials present in Libya that advise the Libyan authorities on military matters;

(e) significantly reduce diplomatic and consular personnel in Libya;

(f) prevent the operation of all Libyan Airlines offices;

(g) deny entry or expel Libyan nationals who had been denied entry or expelled from other states for terrorist activities.

These sanctions were greatly extended by Security Council Resolution 883 (11 November 1993). The sanctions were suspended when the suspects arrived for trial in the Netherlands in April 1999 and were finally lifted in 2003 after the Libyan “acceptance of responsibility” letter and payment of compensation to the families of the victims.