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.