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.