Friday, 3 March 2017

Libya raises World Court proceedings against USA and UK

[On this date in 1992 Libya filed an application against the United States of America in the Registry of the International Court of Justice in The Hague (and a similar application against the United Kingdom). The Statement of Facts in the application against the United States reads as follows:]
On 21 December 1988, Pan Am flight 103 crashed at Lockerbie, Scotland.
On 14 November 1991, a Grand Jury of the United States District Court for the District of Columbia, United States of America, indicted two Libyan nationals (the "accused") charging, inter alia, that they had caused a bomb to be placed aboard Pan Am flight 103 on 21 December 1988 bound from London to New York which bomb had exploded causing the aeroplane to crash.
The allegations contained in the indictment constitute an offence within the meaning of Article I of the Montreal Convention which, in relevant part, provides: "Any person commits an offence if he unlawfully and intentionally:
(a) performs an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft;
or (b) destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight;
or (c) places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight."
The said indictment was communicated to Libya.
At the time the indictment was communicated to Libya, or shortly thereafter, the accused were present in the territory of Libya and have remained there since.
After being apprised of the indictment, Libya took such measures as were necessary to establish its jurisdiction over the offenses alleged therein. Libya also took measures to ensure the presence of the accused in Libya in order to enable criminal proceedings to be instituted and initiated a preliminary enquiry into the facts.
Libyan investigators sought information from the authorities in the United States, and expressed their willingness to travel to the United States or elsewhere to review the evidence or co-operate with the investigations in those countries. The Libyan Government also sent communications to the Attorney General of the United States and the foreman of the Grand Jury which issued the indictment requesting their co-operation in the Libyan judicial investigations. Libya received no response to any of these initiatives, and the United States together with its law enforcement officials have refused to co-operate in any respect with the Libyan investigations.
There is no extradition treaty in force between Libya and the United States. Consequently, Libya has not extradited the accused or either of them. Nor has Libya surrendered them, despite the efforts of the United States to pressure Libya to do so.
Libya has submitted the case to its competent authorities for the purpose of prosecution, which authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under Libyan law.
On 17 January 1992, Libya addressed a letter from Mr. Ibrahim Mohammed Elbushari, Secretary of the People's Committee for Foreign Liaison and International Co-operation, to Mr. James Baker, Secretary of State of the United States. In this letter, Mr. Elbushari referred to the fact that Libya had undertaken the necessary measures relating to the incident provided for in the Montreal Convention. Mr. Elbushari also indicated that, despite requests to the competent United States authorities to provide assistance to the Libyan judicial authorities, these requests had not met with any response, and he invited the United States to agree to arbitration in accordance with Article 14 (1) of the Montreal Convention.
The United States failed to respond formally to that letter. Nonetheless, after the letter was sent, the United States Ambassador to the United Nations stated that the situation was one "to which standard procedures are clearly inapplicable" (S/PV.3033, 21 January 1992, p. 78), that "the issue at hand is not some difference of opinion or approach that can be mediated or negotiated" (ibid., p. 79), and that ". . . neither Libya nor indeed any other State can seek to hide support for international terrorism behind traditional principles of international law and State practice" (ibid., p. 80).
Thus, despite the efforts of Libya to resolve the master within the framework of international law, including the Montreal Convention, the United States has rejected this approach and continues to adopt a posture of pressuring Libya into surrendering the accused.
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Accordingly, while reserving the right to supplement and amend this submission as appropriate in the course of further proceedings, Libya requests the Court to adjudge and declare as follows:
(a) that Libya has fully complied with all of its obligations under the Montreal Convention;
(b) that the United States has breached, and is continuing to breach, its legal obligations to Libya under Articles 5 (2), 5 (3), 7, 8 (2) and 11 of the Montreal Convention; and
(c) that the United States is under a legal obligation immediately to cease and desist from such breaches and from the use of any and all force or threats against Libya, including the threat of force against Libya, and from all violations of the sovereignty, territorial integrity, and the political independence of Libya.
Libya will further request the Court in a separate document to indicate, as a master of urgency, interim measures of protection.
[RB: The history and eventual outcome of Libya’s World Court applications against the USA and UK can be followed here.]

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