Thursday, 17 February 2011

Blair's desert deal with Libya broke UN resolution on Lockerbie bomber

[This is the headline over a report in today's edition of The Scotsman. It reads in part:]

A former British ambassador has accused the previous Labour government of "flagrantly contravening" United Nations resolutions over its decision to allow the Lockerbie bomber to apply for release back to Libya.

Sir Brian Barder, who served as British High Commissioner to Australia, writes in The Scotsman today [RB: article available only to subscribers] that the so-called "deal in the desert" between the then prime minister, Tony Blair, and Libyan leader Colonel Muammar al-Gaddafi in 1997 was a clear breach of a UN resolution which stipulated the bomber should see out his sentence in the UK.

At the meeting, Mr Blair agreed to a Libyan request to sign a Prisoner Transfer Agreement (PTA) for Libyan prisoners in the UK. At the time, Abdelbaset Ali Mohmed al-Megrahi, the only man convicted of the Lockerbie atrocity, was the only Libyan in a UK jail.

But Sir Brian points out that this decision was "in obvious breach" of UN resolution 1192, signed in 1998, which had endorsed a UK-United States initiative to keep anyone convicted of the bombing in the UK.

Sir Brian suggests that the UK government signed the deal first and only then gave lawyers instructions on how to devise a justification for the breach.

He describes those justifications, released in letters over the past two years, as "feeble".

The diplomat, who also led the UK's diplomatic mission in Ethiopia, Poland and Nigeria in a 30-year career in the Foreign Office, said the Scottish Government's decision to release Mr Megrahi was "fully consistent" with the UN resolution, because it had been taken on compassionate grounds. (...)

[It is comforting to have this belated diplomatic recognition of the accuracy of what I have been saying repeatedly on this blog since at least 29 August 2009.]


  1. Just a thought: this trial was under Scots Law. I'm not sure the UK was authorised to participate in any UN resolution concerning Megrahi's custodial conditions. This was always going to be decided in Scotland surely?

  2. ......had the man's appeal been heard and he'd been freed would they have obstructed that too because it breached a UN resolution?

  3. It was part of the deal, agreed to by the UK Government, whereby the accused went to Camp Zeist for trial, that UN Security Council Sanctions against Libya would be suspended, and were eventually lifted, that, if convicted, the accused would serve out any sentence in Scotland.

    The Sanctions were suspended and ultimately lifted via UN Security Council Resolutions so this must be what the former Ambassador is referring to.

  4. I'm still not certain they had the authority to make decisions for the Scottish Justice System Full.

    The trial was Scottish, sentence was passed in Scotland (effectively) and the term was to be served there too obviously. But what of later developments like the application, under Scots Law, for compassionate release? Or even the appeal? Those are decisions for Scotland and Scotland is not itself bound by agreements a UK government made at the UN. Perhaps Prof B might come in on this. It intrigues me. For it is such differences for Scotland, as a country with an independent justice system in its own right, that even those at Westminister, who should know better, tend to overlook at times. As was demonstrated beautifully when Blair was out in the desert negotiating Megrahi's release.

  5. Full Inquiry hits the nail on the head. Scoland (since 1707) is not a state in international law. The state is the United Kingdom of Great Britain and Northern Ireland. The government of that state is responsible for the international relations (including entering into treaties and other international agreements) of all the component parts of the UK (just as the Federal Government acts internationally for the states in the US and the Federal Government for the Laender in Germany). So the UK Government's international acts bind Scotland.

    The UK undertook a binding legal obligation to the United Nations that anyone convicted of the Lockerbie bombing would serve his sentence in the UK. This undertaking is incorporated into UN Security Council Resolution 1192. There is a strong argument that it was breached by the UK-Libya PTA which clearly envisaged that Megrahi would (or could) serve part of his sentence in Libya. Indeed, the view that a binding undertaking about serving the sentence in Scotland had been given by the UK Government was Kenny MacAskill's main reason for rejecting the prisoner transfer application.

    Compassionate release is entirely different. It was an existing part of the Scottish penal system at the time of UNSC Res 1192 and so (at least impliedly) covered by the international undertaking that imprisonment would be under the established rules of Scots law.

  6. Thank you for drawing attention to my article about Megrahi and the Prisoner Transfer Agreement, published in The Scotsman on 17 February. The full text of my article is now available online at I have also posted on my own blog some further comments on the issues raised in my Scotsman article: please see

    I gladly acknowledge that you and a very few other experts on the Lockerbie affair have been drawing attention for a long time to the blatant contradiction between (a) the provision in the original US-UK 'initiative' as approved by a legally binding Security Council resolution that anyone convicted of involvement in the Lockerbie bombing should serve his sentence in the UK (effectively meaning in Scotland), and (b) the use of the UK-Libya Prisoner Transfer Agreement to transfer Megrahi to Libya to serve the rest of his sentence in a Libyan prison. I don't claim to have been the first to spot this contradiction. But the documents declassified and released just two weeks ago by the Cabinet Secretary do throw some fresh light on the subject, showing how the Blair government switched from acknowledging in writing in a ministerial letter to Mr MacAskill that the PTA could not be applied to Megrahi, because of the requirement that he serve his sentence in the UK, to arguing that there would be no obstacle in international law to transferring Megrahi under the PTA and that the UK could transfer him (if the Scottish government were so to decide)under the PTA without the need for the prior agreement of either the US government -- a proposition disputed by the Americans -- or of the UN Security Council. The documents (perhaps wisely) don't reveal the grounds for this bizarre assertion about the legal position, but they do set out the then government's grounds for asserting its right on political grounds to effect a PTA transfer unilaterally, despite the provisions of the initiative and the UN resolution: and these grounds appear to me as a layman to be feeble and unconvincing in the extreme. I hope that you, as a distinguished legal authority with an unrivalled knowledge of the intricacies of Lockerbie, will give us the benefit of your own verdict on the Blair government's case as revealed in the newly released documents, and on whether you agree with my own verdict on it -- perhaps by contributing a definitive 'comment' to

    Brian Barder

  7. Robert, yes I understand that Scotland isn't the state in international law but we do have an independent legal system. And there is no such thing as a UK legal system.

    That was the point Salmond repeatedly made when Blair started his deals over Megrahi. Salmond claimed from the very beginning that Blair was into areas over which he had no jurisdiction, that Megrahi was Scotland's prisoner and only Scotland could decide what was to be done with him whether that was under the PTA or Compassionate Release or in fact neither (with an ongoing appeal still in existence at that time.)