Faltering steps on the path towards a Lockerbie trial

[Today is St Andrew’s day.  Andrew the Apostle is the patron saint of Scotland. He is also the patron saint of Luqa in Malta, which falls within St Andrew’s Parish.  The bomb that destroyed Pan Am 103 over Lockerbie is alleged to have started its progress as unaccompanied baggage sent from Luqa Airport via Frankfurt to Heathrow. That version of events cannot, of course, survive the researches of Dr Morag Kerr, as set out in her book Adequately Explained by Stupidity? Lockerbie, Luggage and Lies.

Here is another in the blog’s series of pieces about the tortuous path towards a Lockerbie trial, taken from a report published in The Scotsman on 30 November 1998:]

The United Nations secretary-general is hoping to travel to Libya this weekend to complete the handover of the two Libyans accused of the Lockerbie bombing. It is understood from diplomatic sources that Mr Annan is optimistic that the Libyan leader, Colonel Muammar al-Gaddafi, is finally prepared to surrender the pair for trial in the Netherlands.

Scottish Office sources indicated that the technical details of a handover are in place, though they insist that the final decision is one which will be taken by Col Gaddafi himself. They suggested that Col Gaddafi's own unpredictability was now the sole obstacle to a handover. Mr Annan will not decide whether or not to travel to Libya until later this week and will go only if he gets an indication from Tripoli that the two accused, Abdel Basset Ali al-Megrahi and al-Amin Khalifa Fhimah, will he handed over. The UN Security Council has agreed to lift the sanctions when the men are handed over for trial. Although Mr Annan is optimistic, his UN team cannot predict how Col Gaddafi will respond.

In August, Britain and the United States offered a compromise to break the ten-year deadlock. They agreed to allow the suspects to be tried in the Netherlands rather than in Scotland, but under Scots law and with a panel of Scottish judges instead of a jury. Washington and London have hinted that they will push for a strengthening of sanctions if Col Gaddafi does not accept this "non-negotiable" deal, though they are unlikely to be able to command enough support for a full oil embargo. In September, the lawyers used by the accused were dismissed and a new team, including a former Libyan foreign minister, was appointed.

The former legal team, including the Edinburgh lawyer Alistair Duff, refused to guarantee that the suspected bombers would surrender for trial. Their dismissal was interpreted as a sign that Col Gaddafi wanted a legal team that would recommend that the accused accept the new offer from Britain and the US. The new legal team has had long discussions at the UN headquarters in New York with the UN legal counsel, Hans Corell, to seek assurances about their treatment.

It is understood that the only sticking point is the Libyans' demand that the suspects serve their sentences in the Netherlands or Tripoli if convicted. Britain and the US are adamant that they would serve their sentences in Scotland. Libya has said it accepts in principle a trial in the Netherlands. Col Gaddafi is under intense pressure from allies in the Arab League and the Organisation of African Unity to accept the offer. It is understood that President Mandela of South Africa and the Egyptian government have been pressing him to accept.

Mr Annan said last week: "I think we have offered most of the clarifications and I had hoped we would be able to bring the issue to closure by the end of November. We are still pressing for that." This was interpreted by diplomats as meaning that Mr Annan is optimistic about securing a trial. He is in North Africa this week and will be in Tunis on Friday. He has scheduled rest time in Djerba, Tunisia.

[And here is part of an invited lecture delivered by me in the year 2000:]

Although the British proposal was announced in late August 1998, it was not until 5 April 1999 that the two suspects actually arrived in the Netherlands for trial before the Scottish court. Why the delay? The answer is that some of the fine print in the two documents was capable of being interpreted, and was in fact interpreted, by the Libyan defence team and the Libyan government as having been deliberately designed to create pitfalls to entrap them. And since the governments of the United Kingdom and United States resolutely refused to have any direct contact with either the Libyan government or the Libyan defence lawyers, these concerns could be dealt with only through an intermediary, namely the Secretary-General of the United Nations.

Between 20 and 22 September 1998, Dr Swire and I were again in Tripoli and were able to provide to the Libyan government and the Libyan defence team a measure of reassurance regarding some of the issues that concerned them. However, we it was who (having received the information hot off the presses from a journalist in The Hague) had to inform the Libyan government that the chosen location in the Netherlands for trial was Kamp van Zeist, a former NATO base to which the air force of the United States still had extant treaty rights of access. I anticipated that this information would cause the Libyans to renounce the "neutral venue" concept in high dudgeon and complain of the lack of good faith demonstrated by Her Majesty's Government in selecting, or agreeing to, such a site. But they did not do so. This, more than anything else, convinced me that the Libyan government and the Libyan defence lawyers genuinely wished a trial to take place and that the concerns they had expressed regarding details of the scheme now on offer were genuine concerns, not merely a colourable pretext for evading their earlier commitment to such a solution.

On 22 September we had a further meeting with the Leader of the Revolution. On this occasion the meeting took place not in Tripoli but 400 km to the east in a genuine (not reinforced concrete) Bedouin tent in a desert location inland from the town of Sirte. Surrounded by sand dunes and noisily ruminating camels, Colonel Gaddafi, Dr Swire and I discussed the details of the British scheme. He accepted my assurance that at least some of the concerns that Libyan government lawyers had raised were unwarranted and that it would be worthwhile to continue to seek clarifications and reassurances through the office of the Secretary-General of the United Nations regarding the remaining issues.