Legal opinion openly and publicly expressed grave doubts

[On this date in 2009 an article headlined Malta and Lockerbie by Dr George Vella, now Malta’s Minister of Foreign Affairs but then in opposition, was published in The Malta Independent on Sunday. It reads as follows:]

The role that Malta played helped resolve the question of sanctions on Libya, and to seek a fair trial of the two persons suspected of the crime.

The recent release of Abdel Basset al Megrahi from a Scottish jail on humanitarian grounds, and the controversy which has erupted on the decision of the UK and the Scottish authorities to grant such an amnesty, has once again brought the issue of the disaster at Lockerbie to world attention.

I do not intend going into the merits or demerits of such a decision, but have to register my disappointment at the fact that Mr Megrahi, for reasons unknown, decided to, or was made to, abandon an appeal against the court sentence that had incriminated him as the person responsible for the Lockerbie disaster.

Over the past few years there has been mounting respected legal opinion that openly and publicly expressed grave doubts as to how correct the decision of the Scottish Court was that had found al-Megrahi guilty.

Serious doubts also emerged as to how reliable and how truthful certain witnesses were. Everything was pointing in the direction of a new trial, which most probably would have exculpated Mr al-Megrahi.

In all probability it would also have shattered, once and for all, the theory that the luggage containing the bomb that caused the disaster had been loaded at Malta airport.

I do not see how Malta can clear its name in this Lockerbie issue, now that the appeal has been abandoned.

This is very unfair, because there is mounting compelling evidence that the bomb could not have been loaded in Malta.

Besides, it is doubly unfair because we only got bad publicity.

There is little if any recognition of the fact that whatever was happening in Libya was impacting negatively on our daily lives in Malta… socially, economically and politically.

The 1992 UN-imposed air and arms embargo, and the application of selective sanctions, bore heavily on the quality of life of the Libyan population, and brought about hardship and suffering… and Malta became the main exit point for Libyans who had to travel to anywhere in Europe and beyond. The daily ferry trips from Tripoli brought to Malta an ever increasing number of Libyans, both the well intentioned who came for business, for healthcare or for onward travel, as well as less sedate and more rowdy youngsters dead bent on having a good time in Malta’s entertainment spots.

One could say that what financial loss we experienced from tourists who kept away from our shores because of Malta’s proximity to Libya, was made good by the increase in business generated by large numbers of Libyans arriving daily by sea, as well as by the increased revenue from the use they made of Air Malta flights.

For Malta, the whole Lockerbie saga also had interesting political aspects.

While sanctions lasted, both the Nationalist (1992-1996) and Labour (1996-1998) governments had to find the right balance between maintaining the best of relations with Libya, (while condemning without any reservations the terrorist act and whoever mandated it), and at the same time observing in the most scrupulous of manners the spirit and the letter of the UN-imposed sanctions.

We set up a Sanctions Monitoring Committee, and were continuously under the scrutiny of western countries to ensure that nothing that was against the sanctions, or other “dual use” materials or equipment, passed through our ports en route to Libya.

It stands to reason that the most vigilant countries were the USA and the UK.

In spite of our limited resources, we managed to retain effective control and maintained the best of relations with everyone.

When I was entrusted with the Ministry of Foreign Affairs in 1996, four years after the imposition of sanctions, the situation in Libya was becoming alarming and worrying.

It was becoming evident that the UN sanctions were having disastrous effects on the civilian population, not least in the fields of healthcare and medical services, while leaving the regime at the top unscathed. Such “wide” sanctions were not targeting particular sectors, and they were not being monitored as to whether they were achieving the desired results.

I always tended to agree with J Kenneth Galbraith when he opined that in modern times sanctions, boycotts, and embargoes tend to have “minimal effect”. He says that sanctions “are thought to be an attractive design for bringing recalcitrant governments to heel. Instead what occurs is a reallocation of resources and a sacrifice of nonessentials”. He concludes: “With sanctions hope is great, disappointment endemic”.

I expressed these opinions and concerns on all occasions when meeting other politicians. Undoubtedly, the most fruitful meeting was the one I had with UN Secretary General Kofi Annan in Geneva in late April 1997, where, during a leisurely lunch I explained the whole situation to him, my concerns, and the way Malta was being affected. Mr Annan needed little persuasion to understand the situation, and agree that the general population in Libya was suffering unduly. He promised to follow it up with concrete measures.

As a matter of fact, he entrusted Deputy Secretary General Vladimir Petrovsky, with whom I also had had discussions, to make arrangements for a fact-finding mission to Libya, and to report back his findings for onward transmission to the Security Council.

Petrovsky and his delegation were in Libya between 13 and 18 December, and by the beginning of February presented a report that confirmed, without any shadow of doubt, the disastrous effects sanctions were having on the general population.

The report was factual, but the unwritten message was that when United Nations member states introduce sanctions they also have to shoulder the responsibility of ensuring that such sanctions do not prejudice the economic and social well-being of the general population.

A week after publishing his report, Mr Petrovsky, in recognition of the role we played in highlighting the humanitarian situation in Libya, came to see me in Malta and we gave a press conference together at which he spoke about his mission, his findings, and his recommendations.

Following Petrovsky’s report, the UN General Assembly, on 20 March, embarked on an open debate on the effectiveness of sanctions. Malta participated in this debate and we took the opportunity to explain clearly our views on the subject.

During all this time the USA and the UK kept insisting that Libya hand over to them for trial, in either the USA or Scotland, two men – Abdel Basset al-Megrahi and Lamin Kalifah Phimah, described as Libyan intelligence agents – who were to be charged with the planting of the suitcase bomb that caused the Lockerbie disaster.

Libya always insisted that these suspected Libyan citizens would never get a fair trial in either of these countries.

The standoff continued as both sides would not budge from their entrenched positions.

Libya repeatedly stated that it would accept a trial before a Scottish court sitting in a third country. Libyan Foreign Minister Omar Montasser, in a letter to the President of the Security Council in January 1998, wrote that Libya “accepted the proposal of the League of Arab States that the two suspects should be tried by a court in a neutral country and that they should be tried at The Hague by Scottish judges and in accordance with Scottish law”.

When I visited the Libyan leader Muammar Gaddafi in his traditional tent in a military complex in Sirte on 7 March 1998 at the end of a long meeting, during which no reference was made to the Lockerbie stalemate, he asked me whether I could do him the favour of relaying a message to the UK Foreign Minister, Robin Cook, who he knew I was to meet in London in a few days’ time.

He asked me to convey to the British Foreign Secretary his solemn commitment that if the Libyan proposal to have a trial in a neutral third country under Scottish law was accepted by the UK and USA, he would be willing to hand over the suspects,

On 26 March, I was at the UK Foreign Office in London meeting Robin Cook.

My acquaintance and friendship with Robin, through party relations, went back to well before he became Foreign Minister. Even so I must say I was at a loss as to how to broach the subject of Lockerbie in our discussion, as after years of stalemate and Libyan intransigence, it had become a sore topic to discuss. Luckily it was Robin himself who provided the opportunity by asking me how my meeting with Muammar Gaddafi had gone.

When I passed on Gaddafi’s message and promise, Robin Cook seemed pleasantly surprised, acknowledged the commitment expressed and promised to work on it, as he wished to get this issue out of the way as soon as possible. He asked me whether he could count on us as a go-between if need be, and wanted to know where the suspects would spend their prison term if found guilty.

I told him I had to refer back for an answer, but informed him that the Libyan Foreign Minister Montasser had qualified Gaddafi’s commitment by saying that they would only accept a trial under Scottish law, as this did not include the death penalty; that during the trial no extra charges against the suspects would be contemplated; and that if found guilty the suspects would not be sent to a US jail.

We informed the State Department of these recent developments through our Embassy in Washington, and got the impression that whereas they were happy with developments, they would rather let the UK take the initiatives. This attitude is also expressed in Madeline Albright’s autobiography, when explaining the pressure she was under from the families of the Lockerbie victims to take effective action.

I know for a fact that the British started exploring the possibility of changing their stance and, apart from doing further research on the Libyan proposal through their contacts, also started exploring the possibility of enacting legislation so that a Scottish Court could hold a trial under Scottish law in The Hague.

With Robin Cook’s knowledge, I had separate meetings in April with Belgian Foreign Minister Derycke in Brussels, as well as with the German Foreign Minister Klaus Kinkel in Bonn, who were both enthusiastic about the prospects of a breakthrough.

In the same month I had two other meetings with Robin Cook, one in Palma de Majorca and the other in Brussels, during which he briefed me on developments, and I renewed our commitment to be of help if needed.

On 19 May I had a scheduled meeting with Libyan Foreign Minister Montasser in Cartghena, Columbia where we were both attending a meeting of the non-aligned countries. Mr Montasser brought me “au courant” on what was happening through discreet diplomatic contacts, and reiterated Libya’s commitment to keep its promise if the UK and the US accepted the notion of a trial held in a neutral third country under Scottish law.

On 21 July the information reaching the Maltese Ministry of Foreign Affairs from the Middle Eastern Affairs Section of the State Department was that a deal had not yet been done, but it looked as if it was going to go through, as the US had agreed, together with the UK, to try the Lockerbie suspects under Scottish law in The Netherlands with a senior Scottish judge and a panel of international judges but no jury.

Concerns were expressed as to whether Gaddafi would keep his promise and let the suspects go to trial. Malta’s help was again solicited, if the need arose.

These views and doubts as to whether Gaddafi would keep his word were expressed in the press. The Guardian wrote about “New Move to Force Trial of Lockerbie Bomb Suspects”, and another piece entitled “Lockerbie: the West takes a gamble”, reflected the lack of faith the West had in Libya’s credibility.

That same evening, following the speculation in the press, Ceefax reported that Rosemary Wolf, the representative of the American relatives of the Lockerbie victims, said she had been told by Madeline Albright that a trial under Scottish law, but not on Scottish soil was being explored, which sparked off a lively debate on the whole issue during adjournment time in the House of Commons.

This was the 15th adjournment debate on Lockerbie, but contrary to the others this debate was one that saw hope in finding a way out of the impasse. As one member put it, “This adjournment debate is really a plea of encouragement for such a course of action.”

The next day the world press headlines were all about the possible “softening” of the US and UK stance on Lockerbie; the possibility of the Pan Am 103 Trial moving to The Hague; Madeline Albright being reported lobbying American relatives of the Lockerbie victims to accept a trial of the Libyan suspects under Scottish law in The Hague and other headlines expressing general agreement and praising the breakthrough.

In the meantime, I was asked to ascertain once again the Libyan position, in view of the imminent decision that was to be taken by the UK and the US.

On the morning of 22 July I once again contacted Libyan Foreign Minister Omar Montasser by phone.

Mr Montasser asked me to pass on the following information – that the Libyan government was standing firm in its intention to accept a trial of the suspects in a third country, a neutral country. He mentioned The Hague, but he even mentioned Malta. He told me that Libya was ready to discuss details if there was a UN Security Council Resolution providing for this option and that Libya would accept a trial under Scottish law, with a whole bench of Scottish judges, or with a Scottish Chief Justice and a bench made up of other international judges. As to where the alleged suspects were to spend their time in jail if found guilty, Montasser told me that Libya was ready to discuss this and come to an agreement before the trial. Asked whether Libya would accept extradition of condemned suspects to another country in which to spend their sentences if found guilty, Montasser replied that this would be discussed and decided on at Security Council level.

I informed Montasser that I was going to convey his message to Robin Cook, and that I would keep in contact, were I to have any replies or further questions.

That same day this message was relayed to both the British Foreign Office as well as to the US State Department. To this message we added that, for our part, we felt that this commitment from Libya was useful in helping them form an opinion and come to a decision, and secondly we conveyed our feeling that with this option, the Libyans, according to our reading, “will play ball”.

That same day a message was sent by the US State Department to all the US Embassies around the world, explaining the US position on the matter, in view of the fact that “Although no decision has yet been made to pursue the case in another venue, that option is now being actively considered.”

On 24 August, a month later, the UK and the US sent a joint letter to the UN Secretary General, informing him of the agreed arrangements, outlining the parameters within which the trial was to be held, and detailing what they expected of the Libyan authorities by way of cooperation. They informed Kofi Annan that the initiative they were presenting was a sincere attempt “… to resolve this issue, and is an approach which has recently been endorsed by others, including the Organisation of African Unity, the League of Arab States, the Non Aligned Movement, and the Islamic Conference.”

The letter from the UK and the US ended by expressing trust “that Libya will respond promptly, positively and unequivocally by ensuring the timely appearance of the two accused in the Netherlands for trial before the Scottish Court…”

Two days later, the General People’s Committee for Foreign Liaison and International Cooperation in Libya expressed general agreement with the terms outlined in the letter from the US and the UK to the UN Secretary General.

A draft UN Resolution, covering the agreement and the modalities within which the trial was to be held, was adopted unanimously by the Security Council on 27August 1998.

Our only remaining task then was to exhort the Libyan authorities to keep their promise and abide by the resolution. This the Libyan authorities did without fail.

As the saying goes, “The rest is history”!

As a footnote to this rather lengthy explanation as to why Malta should not be made to carry the burden of a negative image because of any involvement in the Lockerbie tragedy, it has to be said that, on the contrary, Malta has to be commended for undertaking such an onerous diplomatic task and for contributing in its small way to the solution of a political issue that could have had far worse consequences, had it been left to continue indefinitely for years.

Probe into Lockerbie timer claims

[This is the headline over a report that was published in The Herald on this date in 2007. It reads as follows:]

The makers of the timer used to explode the Lockerbie bomb will travel to Scotland following the revelation that their former employee planted vital evidence.

Edwin Bollier, whose now bankrupt company Mebo manufactured the timer switch that prosecutors used to implicate Libya, plans to visit Scotland with police forensics experts, following news that an engineer was asked to fabricate evidence.

Ulrich Lumpert, formerly an electronics engineer with Mebo AG, Zurich, has signed an affidavit admitting he committed perjury before the Scottish Court in the Netherlands.

In his affidavit he states that he stole a handmade sample of an "MST-13 Timer PC-board" from Mebo in Zurich and handed it over, on June 22 1989, to an "official person investigating the Lockerbie case."

He further states that the fragment of the timer, cut into two pieces for "supposedly forensic reasons," which was presented in court stemmed from the same piece.

He further states that when he became aware that this piece was used for an "intentional politically motivated criminal undertaking" he decided, out of fear for his life, to keep silent on the matter.

Mr Bollier has already spoken to prosecutors in Switzerland who will begin their investigation into charges of perjury next week.

The timer was used as a key part of the evidence against Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the 1988 bombing which killed 270 people. The revelation will strengthen Megrahi's fresh appeal which was granted in June by the Scottish Criminal Cases Review Commission.

Despite Megrahi's conviction, there have been persistent claims that Libya was not responsible, some evidence was rigged, and the finger of suspicion pointed elsewhere.

The commission rejected allegations that evidence had been falsified or "spirited away" by the investigating teams, but the affidavit by Mr Lumpert suggests otherwise.

Mr Bollier told The Herald last night: "We hope to go to Scotland with the police and forensics people from Switzerland to see the manipulated fragment. We have forwarded on the papers and affidavit to prosecutors here and they will also be passed to the lord Advocate in Scotland."

In 2001, Mr Bollier spent five days in the witness box at the Lockerbie trial at Camp Zeist in the Netherlands.

He told The Herald that the fragments he was shown at the trial were different to those originally shown to him. "The fragments kept changing," he said. "The procurator-fiscal showed me one fragment then the police showed me a fragment in two parts - one was green, one was brown.

"Later in the witness box I was shown a screen and the smaller piece was completely carbonised - you could not even see the colour. It had been manipulated, but when I tried to say that the judge cut me off."

Dr Hans Koechler, international UN observer at the Scottish Court in the Netherlands, has seen a copy of the affidavit made on July 18. He said: "The Scottish authorities are now obliged to investigate this situation. Not only has Mr Lumpert admitted to stealing a sample of the timer, but to the fact he gave it to an official and then lied in court."

Failure of the justice system

[On this date in 2011 an article in Dutch about the Lockerbie case by Daan de Wit was published on the DeepJournal website. What follows is a translation into English:]

The verdict in the Lockerbie case is based on lies and deception, and the man convicted of the crime, Abdelbaset Ali al-Megrahi, cannot be the perpetrator. This appears from revelations contained in a secret section of an official report.

'Lockerbie' was investigated down to the last detail by the Scottish Criminal Cases Review Commission, SCCRC. After four years, the Commission produced the findings of an investigation which cost millions to carry out and that is partly still secret, but which was seen by journalist Marcello Mega: 'The report shows Scots detectives on the original investigation, together with Crown prosecutors and their US colleagues, deliberately covered up evidence and witness statements that did not fit the case.' This quote is taken from an article by Mega published in The Scottish Sun. His article can no longer be found on The Scottish Sun website. It was erroneously edited by one of the newspaper's editors, after which - even though it was related to a technicality - the article was removed from the website in its entirety. Upon request, Mega emailed the quote and the remainder of the article to DeepJournal.

'Megrahi is not the Lockerbie bomber'

Before Mega's article was removed, it had already been quoted online: '[...] Robert Black QC, retired Professor of Scots Law at Edinburgh University and the architect of the Lockerbie trial, told how he believes Megrahi is innocent. Mr Black said: "Megrahi is not the Lockerbie bomber and these revelations further underline that. […] "That the judges did convict him on the flimsiest of evidence, which required several leaps of faith on a number of crucial matters that had not been proven by the Crown, remains a matter of profound concern for all of us." Mr Black said it was now vital that a top-level public inquiry is held to get to the truth.'

Back in July, Mega wrote: 'You’ll just have to take my word for it that this case represents the worst injustice perpetrated by the courts that I’ve encoutered in 22 years as a journalist.’

In a letter dating roughly to 2008 that was recently discovered in the headquarters of the Libyan intelligence services and directed at a Gaddafi advisor, al-Megrahi writes that he is innocent.

'Failure of the justice system'

Robert Black quotes from Mega's article: ‘[The Scottish Criminal Cases Review Commission] has grave concerns over the evidence against the 59-year-old [Megrahi] following a multi-million-pound, four-year investigation. In the dossier - seen by The Scottish Sun - Maltese shopkeeper Tony Gauci, who helped finger Megrahi as the bomber, is described as an "unreliable" witness. […] One undisclosed memo reveals the FBI discussed with Scots cops an offer of unlimited cash to Gauci - with "$10,000 available immediately".' Mega from his email: 'He and his brother Paul were rewarded for their testimony, receiving more than $2m and $1m respectively.'

An 800-page summary of the report was published in 2007. A quote from the summary: ‘The applicant [Megrahi] may have suffered a miscarriage of justice’. A 2007 headline from The Scotsman reads: 'Lockerbie evidence 'was tampered with, destroyed and overlooked'.

'Police are also accused of lying in court while prosecutors - including then Lord Advocate Colin Boyd QC - are suspected of suppressing bombshell evidence that would likely have seen Megrahi walk free.'

Petition for a new investigation

On Black's website is a petition from Justice for Megrahi, an organization that Black is affiliated with: ‘We would argue that for nearly 23 years Scottish Courts and the Scottish Government have failed to deliver the truth about Lockerbie despite these claims of supremacy in human rights matters. We are at a loss to equate the current government’s refusal to hold a judicial inquiry into Lockerbie with this principle that Scotland and Scotland alone is capable of delivering justice to all of its people.’

Mega writes: 'Dr Jim Swire, who lost his daughter Flora on the doomed flight, said: ‘This underlines again the need for a full public inquiry. It’s too easy for everyone to maintain Megrahi was convicted so he must be guilty, when clearly he is not.' Megrahi was recently tracked down in Tripoli.

Palestinian terrorists acting on orders from Iran

This four part series of articles on Lockerbie offers more background information on the case. It starts with the search for the real perpetrator. For the time being all signs point in the direction of Iran and the Palestinian terrorist organization PFLP-GC. In 1988 the US Navy's USS Vincennes shot down an Iranian airliner, killing all 290 civilian passengers on board. In retaliation, the PFLP-GC, under the command of Ahmed Jibril and acting on orders from Iran, is suspected of bringing down Pan Am flight 103 that same year.

Serious problem of fairness and impartiality

[What follows is the text of a statement issued on this date in 1998 by a Committee of Legal Experts established by the International Progress Organization:]

Vienna, 3 September 1998/P/K/16104c-is

The Committee of Legal Experts on UN Sanctions Against Libya was established at the initiative of the International Progress Organization in 1992 and presented several proposals for the settlement of the dispute between the USA, the UK and Libya in conformity with international law. The Committee was the first international group to propose, in its Declaration of 23 May 1992, the setting up of an international crinrinal tribunal to judge the Lockerbie suspects. A delegation of the Committee held consultations with the President of the Security Council after its meeting in New York on 2 December 1994. The initial Memorandum of the International Progress Organization on the legal aspects of the Lockerbie dispute was circulated as official document of the Security Council and the General Assembly (Doc A/46/886, S/23641 of 23 February 1992). The Committee today issued the following Statement on the Security Council resolution of 28 August 1998 concerning the trial of the suspects in the Netherlands:

1. As stated in its Geneva Declaration of 23 May 1992, the Committee of Legal Experts considers the Security Council's sanctions resolutions against Libya as ultra vires. Judicial matters such as those of individual criminal responsibility are beyond the competence of the Security Council. This relates to the Council's initial resolution 731 (1992), to the sanctions resolutions 748 (1992) and 883 (1993), as well as to the recent resolution of 28 August 1998 calling for a trial in the Netherlands.

2. In its New York Declaration of 1 December 1994, the Committee of Legal Experts stated that the two suspects "have a basic human right under international law to a fair trial before an impartial tribunal."

3. In the same Declaration, the Committee of Legal Experts furthermore suggested to submit the question of criminal responsibility to an ad hoc international criminal tribunal or to a criminal tribunal of Scottish judges meeting at the seat of the International Court of Justice (as proposed by the League of Arab States).

4. The Security Council's resolution of 28 August 1998, apart from being ultra vires, is not in conformity with the basic requirements of a fair trial before an impartial tribunal.

5. As called for repeatedly by the Committee of Legal Experts, a criminal tribunal on this case should either be international in its composition or should operate in an international framework such as that of the International Court of Justice. The procedural details should be worked out on the basis of the Statute of the International Court of Justice and not through bilateral agreements between the governments of the UK and the Netherlands as stipulated in Art 3 of the Security Council resolution.

6. The Scottish legal system is undoubtedly up to international standards of due process and fair trial. There is no reason to doubt the report (Doc S/1997/991) of the independent experts appointed by the Secretary-General of the United Nations on the Scottish judicial system. The real issue is not whether Scottish law is applied or not, but whether a tribunal exclusively consisting of Scottish judges can meet the requirement of impartiality.

7. The two Libyan suspects have already been publicly convicted in the United States and in the UK in violation of basic requirements of due process of law and the presumption of innocence. Under the present circumstances, it is hard to see how Scottish judges should be completely independent of this public conviction in their own country. Only an international composition of the tribunal could provide remedy to this serious problem of fairness and impartiality.

8. In conformity with basic legal standards, it is inadmissible that an Agreement concerning the exercise of jurisdiction over the two suspects and the functioning of the Court in the Netherlands is worked out exclusively between the governments of the accusing states and the Netherlands, deliberately excluding Libya. On the basis of the provisions of the Montreal Convention of 1971 (which is undoubtedly applicable in this case) Libya could still claim the right to try the suspects on its own territory.

9. As Libya has agreed to the trial of the two suspects on the territory of a neutral country (outside the territory of the US or the UK), an agreement on procedures of the Court, detention of the suspects etc. must be reached between all parties concerned.

10. Under Article 10 of the Universal Declaration of Human Rights and Article 14 (1) of the International Covenant an Civil and Political Rights (1966), in the version of the 1966 Covenant, "everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law..." The US, the UK as well as Libya are parties to this Covenant and have an obligation to make sure that the two Lockerbie suspects receive a trial by an independent and impartial tribunal. It is clear from the above described facts that such a fair trial is not possible in the highly politicized framework as established by the Security Council resolution of 28 August 1998. Only an international tribunal under the auspices of the International Court of Justice might be able to guarantee due process of law in this highly political case in which the Security Council, contrary to basic rules of international law, has arrogated a competence which it does not possess.

[RB: In his report on the appeal proceedings at Camp Zeist dated 26 March 2002, Professor Hans Köchler stated:]

...the undersigned would like to recall the reservations expressed by the International Progress Organization’s Committee of Legal Experts on UN Sanctions against Libya, in a declaration dated 3 September 1998, concerning Security Council resolution 1192 (1998): “The Scottish legal system is undoubtedly up to international standards of due process and fair trial. There is no reason to doubt the report (Doc S/1997/991) of the independent experts appointed by the Secretary-General of the United Nations on the Scottish judicial system. The real issue is not whether Scottish law is applied or not, but whether a tribunal exclusively consisting of Scottish judges can meet the requirement of impartiality. … The two Libyan suspects have already been publicly convicted in the United States and in the UK in violation of basic requirements of due process of law and the presumption of innocence. Under the present circumstances, it is hard to see how Scottish judges should be completely independent of this public conviction …. Only an international composition of the tribunal could provide remedy to this serious problem of fairness and impartiality.” The IPO Committee further stated that “a criminal tribunal on this case should either be international in its composition or should operate in an international framework such as that of the International Court of Justice. The procedural details should be worked out on the basis of the Statute of the International Court of Justice and not through bilateral agreements between the governments of the U.K. and the Netherlands as stipulated in Art 3 of the Security Council resolution.” The undersigned regrets to admit that, contrary to his hopes at the beginning of the trial in May 2000, the above-expressed reservations – in the formulation of which he had participated as coordinator of the Committee of Legal Experts – were proven justified in the course of events.

I have a burning desire to clear my name

[What follows is excerpted from an article headlined The Megrahi dossier: why he was set free that was published in The Herald on this date in 2009:]

The Greenock visit

One question mark that remains relates to Mr MacAskill's decision to visit Megrahi in Greenock Prison. An eight-page document by a senior civil servant in the justice department advises the minister: "Mr Megrahi, as a subject of the transfer request, should be given opportunity to make his own representation on the proposal."

That advice concludes with the recommendation: "The groups and individuals identified should be offered short meetings with you to present their representations."

That Mr MacAskill inferred from this that he should go to meet the prisoner at Greenock is still being challenged by opponents, but the advice appears sufficiently robust to entitle him to say he was acting on advice.

There are then two documents relating to the meeting at HMP Greenock on August 6 - the official minute from the government side and Mr Megrahi's own handwritten note of his presentation to the meeting. (...)

The minute records, in dry official language, the prisoner's insistence that he had been unjustly convicted and his sympathy for the "terrible loss" of the victims' families. The minute adds, as Megrahi told The Herald in Tripoli last week: "He feels there is little prospect that his appeal will be concluded before his death, and that his dreams of returning home cleared no longer exist."

While the minute records Mr MacAskill advising Megrahi that prison transfer could only take place if there were no court proceedings ongoing, there is no specific mention that compassionate release would not require this. However, aides pointed out last night that the meeting was specifically about prisoner transfer, not compassionate release.

The handwritten note from Megrahi states: "I'm a very ill person. The disease that I have is incurable. All the personnel are agreed that I have little chance of living into next year. The last report which I received some weeks ago from consultant reaches the view that I have a short time left. I have a burning desire to clear my name. I think now that I will not witness that ultimate conclusion."

And in words that echoed Mr MacAskill's later reference to a "higher authority", he stated: "As I turn now to face my God, to stand before him, I have nothing to fear." (...)

Holyrood-Westminster relations

The big question for UK ministers arising from documents released yesterday is simply this: Did UK ministers tell the Libyans that Gordon Brown did not want Megrahi to die in a Scottish jail?

According to the minute of a meeting in Glasgow with Libyans on March 12 this year, Abdulati Alobidi [RB: the normal English transliteration of this name is al-Obeidi], minister for Europe, spoke of a visit to Tripoli the previous month by Foreign Minister Bill Rammell at which it was pointed out that if Megrahi died in custody it would have "catastrophic effects" on Libyan-UK relations.

Mr Alobidi was minuted as saying: "Mr Rammell had stated that neither the Prime Minister nor the Foreign Secretary would want Mr Megrahi to pass away in prison but the decision on transfer lies in the hands of the Scottish Ministers."

That remains a clearer statement of the Prime Minister's opinion than Mr Brown has since been prepared to offer in public.

[RB: The accuracy of Mr al-Obeidi's statement was confirmed by David Miliband in a radio interview. According to a report on The Times website:

"The Foreign Secretary admitted that it was true that Bill Rammell, a Foreign Office minister, had told his Libyan counterpart back in February that the Prime Minister did not want Abdel Baset Ali al-Megrahi to pass away in Greenock prison."]

Gauci brothers rewarded

[What follows is the text of an item posted today on the Lockerbietruth.com website run by Dr Jim Swire and Peter Biddulph:]

On this day, 1st September 1989, the sole identification witness in the Lockerbie trial, Maltese shopkeeper Tony Gauci, met with a police investigation team headed by Detective Chief Inspector Harry Bell.

At this first meeting Gauci offered a vague account of a customer who had come into his shop to buy an assortment of clothes. In no way did it resemble the convicted Libyan al-Megrahi.

Gauci's next two interviews were on the 14th and 26th of that month. Neither indicated that al-Megrahi was the purchaser of the clothes.

Two days later on the 28th of that month, Bell wrote in his police diary that "The US Department of Justice are prepared to offer unlimited money to Tony Gauci, with $10,000 available immediately."

The purpose of the "immediately available" $10,000 was clear. Gauci could draw on it for his immediate use. There can be no other interpretation.

These three interviews would be the first of many extending over two years, each interview adding more and more detail. Only in February 1991 did Gauci finally say "he resembles the man a lot".

Every discussion at which money was mentioned was recorded in Bell's diary. But he concealed this diary from the trial judges and the defence team. It was discovered in 2007, six years after the conclusion of the trial and a subsequent appeal.

At the conclusion of the trial Tony Gauci was paid $2 million and his brother Paul Gauci $1 million.

But what did Tony have to do to get the money to be shared between himself and his brother? In the words of the US Department of Justice, "only if he gives evidence".

Since the original 1991 indictment against al-Megrahi was substantially based on eye witness evidence by Tony Gauci it was clear what that evidence would be. It would prove that al-Megrahi was guilty.

Eyewitness testimony in the Lockerbie bombing case

[1 September 1989 was a crucial date in the Lockerbie investigation. What follows is excerpted from an important article written by Professor Elizabeth Loftus, doyenne of US psychologists of memory and identification:]

Al-Megrahi had allegedly purchased trousers, pyjamas, and other clothing from Mr Gauci at Mary’s House in November or December of 1988. Those items were thought to be packed in the Samsonite suitcase that contained the explosives which themselves were hidden in a Toshiba radio cassette player.

Mr Gauci was first interviewed on 1 September 1989, nearly 9 months after the clothing purchase (...). The police reports reveal that, upon being shown pyjamas with a distinct pattern, Gauci recalled that one day in winter 1988 he had been working alone in the shop when a man came in shortly before the 7 pm closing time. The man did not seem to care what he bought, saying that the items were not for him. The shopper paid in cash, about 56 Maltese pounds. He walked out of the shop with his umbrella opened as it was raining. The man returned, and then the two of them brought the purchases out to a taxi. Gauci described the shopper as six feet or more in height, big chest, large head, clean shaven, wearing a dark-coloured two-piece suit, and speaking Libyan. Gauci couldn’t remember the day or date but thought it was a weekday. He went on to say that he thought he would be able to identify the man.

Less than 2 weeks later, on 13 September 1989, Gauci went to the police headquarters and tried to make a photofit likeness of the shopper. After viewing the photofit created by the office, Gauci felt the hair and forehead were close, as were the nose, mouth, shape of face, and thickness of neck. The shopper’s eyes were a bit bigger than in the photofit. Gauci said that the shopper was about 50 years old and the man in the photofit looked to be between 45 and 50. The photofit construction is shown in Figure 1a.

Later that same day Gauci worked with a police artist to produce a sketch, which he felt was slightly better than the photofit. Later he said the artist sketch looked quite like the shopper, with exactly the same hair, nose, and eyebrows. That sketch is shown in Figure 1b.

A day later, on 14 September 1989, Gauci again went to police headquarters and looked at two cards of photos, containing a total of 19 photos. He identified one man as similar but said that he was too young to be the shopper. If only older by 20 years, the man in that photo would look like the shopper. The photo that Gauci selected was in the second card, top row, #2, shown in Figure 2.

[RB: The photographs and sketches referred to above can be viewed here. The concluding section of Professor Loftus’s article reads as follows:]

My analysis identified a number of areas in which Gauci changed his testimony from one point in time to another. More specifically, the statements he gave relatively early on (9 months after the crime) before Al-Megrahi was a suspect differed in many respects from what Gauci would recall later, after Al-Megrahi was a suspect. While the defence attorney did, at trial, point out some of the changes, it might have been useful to compile them and show the entire collection. Since one of the major reasons why someone’s testimony changes from one point in time to another is that they have been supplied with new details, it would have been important to try to discover the new details to which Gauci had been exposed. After investigators began to look for Libyans, and began to suspect Al-Megrahi, what kind of information did Gauci receive, either deliberately or inadvertently?

This information, and more, was presented to the Scottish Criminal Cases Review Commission, a commission that reviews cases post-conviction and did so in this case. The Commission is an independent public body, which was established in 1999 and bears the responsibility for reviewing alleged miscarriages of justice in Scotland. The Commission has the power to refer to the High Court of Justiciary any conviction regardless of whether appeals of that conviction have been heard previously. The Commission refers cases when it believes that a miscarriage of justice might have occurred. In Al-Megrahi’s case the Commission expressed deep reservations about the conviction and concluded that it might have been a miscarriage of justice (...). Much of the world knows less about this development, but much more about a different development, namely that Al-Megrahi was released from prison in 2009 and sent back to Libya on compassionate grounds because of advancing cancer. Public outrage was sparked. Al-Megrahi lived with his cancer for a few years and, as noted earlier, died in 2012. One cannot help but wonder whether the outrage over his release might be tempered if those angry individuals were to seriously examine the suspicious eyewitness testimony that led to Al-Megrahi’s conviction in the first place. My examination has led me to seriously wonder: Is the Lockerbie bomber still out here?