An epistolary exchange (continued)

[On 6 September 2011 this blog featured a three-item correspondence between barrister and author David Wolchover and the Scottish Government under the heading An epistolary exchange. Here are two further items:]

4.  28 September 2011

Dear Mr Wolchover
‘Thank you for your further e-mails of 2 September and 12 September regarding earlier correspondence on the conviction of Abdelbaset Ali Mohmed al-Megrahi.

As we made clear in our earlier reply and you quoted in yours, "An independent judiciary is a cornerstone of Scottish justice. It would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case."

This should be taken to mean exactly what it says. The Scottish Government does not doubt the conviction of Mr al-Megrahi.

Insofar as Ministers have ever had a duty in respect of possible miscarriages of justice, that responsibility passed in 1999 to the Scottish Criminal Cases Review Commission. This development has been widely welcomed both for further removing Ministers from involvement in the decisions of the criminal courts and for allowing greater scrutiny of cases than was formerly possible. Since its inception the SCCRC has referred over 100 cases, including that of Mr al-Megrahi, to the High Court.

Thank you for writing to us with your views.’

Lockerbie Team
Scottish Government

5.  29 September 2011

Dear Mr [...]

I thank you for your message. It is gratifying to discover that it took a feature article by me in that internationally renowned weekly, the Jewish Chronicle - an article which has "gone viral" on the internet - to elicit a response to letters which I was led to suspect were deliberately and therefore discourteously going unanswered in the belief that I would not bother to pursue the correspondence. How wrong you would have been! In fact I was in the process of drafting a further chaser (by way of capitalising on the article) when your message came in and I note with some surprise that you make no mention of the article, as if your response was a pure coincidence.

It is with some justice therefore that I described the Scottish Government's position as "stonewalling." 

I do not wish to get caught up in semantics but I am afraid that I am bound to disagree with the implications of your reasoning.

With respect, contrary to what you aver the admittedly defensible (if pusillanimous) position that "[i]t would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case" does not equate to the statement that the Government "does not doubt the conviction of Mr al-Megrahi." 

Incidentally, I think you meant "the safety of Mr al-Megrahi's conviction." Few doubt he was convicted.

As I pointed out in my previous letter, there is a principled difference between on the one hand the executive studiously regarding itself as constitutionally debarred from making a public judgment on a judicial decision (whether to agree or disagree) and on the other hand collectively making a positive avowal of agreement with it. The statement "I do not doubt" a certain proposition unequivocally expresses a value judgment. 

However, I concede the possibility that such judgment may be arrived at either by a personal consideration of the facts or vicariously. Thus, you (and the unidentified earlier spokesperson/correspondent) may have been meaning to imply that the government have adopted the following position: "We as a cabinet implicitly trust the opinion of the judges on this matter. They have asserted such and such is the case, and by reason of our absolute confidence in their authority, expertise and wisdom we do not doubt they are right though we have not studied the facts ourselves."

So I modify my original questions to you. 

1. Have the cabinet considered the facts of the case in depth?

2. If not, have they collectively resolved to express a vicarious confidence in the judges' decision?

3. If the latter, when was that determination made?

4. If they have not made such a resolution was the decision to pronounce confidence in the verdict made on behalf of the government by certain cabinet members (eg the First Minister, the Minister of Justice, the Lord Advocate) without consulting the rest of the cabinet? 

5. Was there any discussion over the question whether to go beyond simply stating that it was not the cabinet's place to make a value judgment on the merits?

6. If the decision to pronounce confidence in the verdict was made by the cabinet collectively was there nonetheless any dissent?

Please forgive my inquisitiveness, but the destruction of Pan Am 103 is a matter of such considerable international importance and the trial verdict now so controversial, if not widely discredited, that it is surely right to seek an account of the process by which the Government of Scotland came to make a pronouncement of confidence in the verdict.
 

Perhaps when the Libyan National Transitional Council becomes a little more confident it will no longer feel the need to kowtow to official Scottish amour propre and may begin to apply the sort of pressures to which I referred in my article.

David Wolchover

Lockerbie: CIA made US State Department attorney ‘lie’ to UN Security Council

This is the headline over an article by Patrick Haseldine published today on Dr Christof Lehmann's NSNBC website.  It deals with the published views of Michael Sharf, the US State Department lawyer who drafted the UN Security Council resolutions that imposed economic sanctions on Libya following the refusal to extradite Abdelbaset Megrahi and Lamin Fhimah after they were accused by the United States and the United Kingdom of being responsible for the bombing of Pan Am 103. Mr Sharf (now a professor at Case Western Reserve Law School in Cleveland, Ohio) is reported as saying that the case was “so full of holes it was like Swiss cheese” and should never have gone to trial. The article can be read here.

Libya ready to probe possible other Lockerbie suspects

[This is the headline over a report published yesterday by the Reuters news agency.  It reads in part:]

Libya's interim justice minister Mohammed al-Alagi said on Wednesday he was ready to work with Scottish authorities to probe the possible involvement of others in the Lockerbie bombing apart from the sole Libyan convicted for the attack.

His remark at news conference reversed a position he took only on Monday, when he said that as far as Libya was concerned the case of the bombing of the U.S.-bound airliner over the Scottish village of Lockerbie with the loss of 270 lives was closed.

Scottish prosecutors had asked Libya's National Transitional Council (NTC) to give them access to papers or witnesses that could implicate more suspects in the attack, possibly including deposed leader Muammar Gaddafi.

Asked on Wednesday about his response to this request, he said through an interpreter: "I'd like to confirm that we are accepting any facts that might arise in this regard, if there is any suspicion about any other person." 

He added: "We will cooperate in this regard with whoever has any other facts, according to international treaties." (...)

Alagi added on Wednesday that he welcomed the possibility of an investigation into the possibility of others' culpability because "this will lead to the acquittal of Abdel Basset al-Megrahi, who has been unjustly convicted in this case". 

[Today's edition of The Scotsman contains a related report, as does The Herald which, for some reason, does not see fit in its report to mention the portion of Mr Alagi's statement that I have italicised above. This aspect is, however, stressed in the news item in Scottish lawyers' magazine The Firm.]

Lockerbie: time for us to reveal the true culprits

[This is the headline over an article by David Wolchover published today on the website of The Jewish Chronicle.  It reads as follows:]

The Arab Spring may have heightened tensions between Egypt and Israel but, on the upside, it also achieved Colonel Gaddafi's overthrow. Strangely, this could actually benefit the Jewish state - but only if Libya takes the initiative.

With Gaddafi gone, the world could recognise, finally, that the perpetrators of the Lockerbie bomb were not from the Libyan secret service, did not include the man who was ultimately convicted, Abdelbaset al-Megrahi, and indeed had nothing to do with Libya. The world could learn that the culprits were the original suspects, a gang of Palestinian terrorists. 

As it takes its first steps, the new Libyan leadership will likely want to remove the stigma of Libya's association with the atrocity of December 1988 and seek international acceptance of al-Megrahi's innocence. A democratic Libya could wield a good deal of clout if it applied the sort of economic and diplomatic pressures Gaddafi used to secure al-Megrahi's release on compassionate grounds to urging the Scottish and British governments to declare him innocent. And they may be pushing at an open door. 

It is no conspiracy theory to claim that the case against al-Megrahi and Libya was manifestly absurd, or that the government knows that. Any study of the details of his trial, a decade ago at Camp van Zeist in Holland, will reveal that, unbelievable as it seems, the Scottish judges who convicted him and rejected his appeal made an utter hash of the evidence. Moreover, they actually missed a key piece of evidence which, alone, would have been enough to sink the prosecution.

The Scottish government say they "do not doubt the safety" of al-Megrahi's conviction, a statement which implies a rational consideration of the evidence. Yet they have stonewalled on revealing whether the cabinet ever actually deliberated on the issue. 

They know they are on weak ground. A little prodding from a powerful, influential, oil-rich country looking to restock its armoury and they will admit the obvious.

How do we know the true culprits were Palestinian terrorists? In July 1988, the battle cruiser USS Vincennes shot down IranAir flight 655 over the Straits of Hormuz. The Americans were steeled for a terrorist response and the Western intelligence community was tipped off, probably by Mossad, that a deal to carry out such an attack had been struck between Iran and Ahmed Jibril, leader of the Popular Front for the Liberation of Palestine, "General Command". This was a Syrian-based ultra-extremist splinter group of the PFLP, with an active cell in West Germany. The deal was that Iran would pay them a bounty to destroy an American civil airliner departing from a European airport. 

As a result, the West German police set up the "Autumn Leaves" surveillance operation, whereby a CIA proxy double-agent named Marwen Khreesat, an expert bomb-maker from Jordan, was infiltrated into the cell. He built a number of similar improvised explosive devices (IEDs) one of which was virtually identical to that which brought down Pan Am flight 103 a mere two months later. 

The device was removed from under his nose and delivered to the cell's airport security expert, Abu Elias. Khreesat tipped off his control in Jordan and the police immediately swooped, rounding up members of the cell and seizing a second device, also virtually identical to the Lockerbie bomb.

"Abu Elias was never seized and the missing IED was never recovered, two facts enough in themselves to prompt the strongest suspicion. Combined with other compelling circumstantial evidence they plainly connected the cell with the bombing."

This is not conspiracy theory. It is non-contentious stuff, most of it given in evidence at Camp Zeist. Yet the judges turned a blind eye to the obvious and based their decision on a series of weak findings. What the Scottish judges did not appreciate was the utter horror Khreesat's CIA controllers must have felt in the aftermath of the Lockerbie tragedy: that a bomb made by their proxy in pursuance of his cover on their behalf was almost certainly used to bring down the Pan Am jet. 

Therein lies the clue to why attention was drawn away from Iran and the PFLP-GC and why Libya became the scapegoat. But Israel has no need to defer to the embarrassed sensibilities of a handful of long-retired CIA staffers. Nor need it wait for pressure to build up from the new Libyan leadership.

Benjamin Netanyahu's government might not want to be seen too openly pressing for al-Megrahi's vindication and the corresponding condemnation of Palestinian extremists. Yet behind the scenes they ought to be attempting to secure that outcome. It can do Israel no harm for the world to learn that her enemies were paid $4.5 million to murder 11 residents of Lockerbie, and 259 innocent passengers, of all religions.

"Embarrassing" Crown Office Pan Am 103 request rebuffed by Libya’s NTC

[This is the heading over a news item published today on the website of Scottish lawyers' magazine The Firm.  It reads as follows:]

A request from the Crown Office to the newly changed regime in Libya for documents and testimony to assist in an investigation into the Pan Am 103 airliner incident has been rebuffed.

Libya's interim justice minister Mohammed al-Alagi rejected the overture and said last night: “The case is closed."

The Crown Office asked for “any documentary evidence and witnesses, which could assist in the ongoing inquiries.”

Robert Forrester, Secretary of the Justice For Megrahi group, whose petition for an inquiry into the affair will be deliberated by the Parliament’s Justice Committee, said the Lord Advocate’s request was “highly embarrassing.”

“Firstly, we were treated to his proclamation that he was out to get Mr Fhimah under the new facility availed the Crown to persecute an individual to the grave with the lifting of the prohibition on double jeopardy. Now, we have him pleading with the NTC to cobble together some evidence for him since he clearly doesn't have any of his own to support his objective,” he said.

“Such behaviour, whilst highly embarrassing to the Scottish criminal justice system of course, also lends considerable credence to the view that the much trumpeted delegation representing the Crown and Dumfries and Galloway Constabulary which met with Mr Koussa earlier in the year in the hope that he would provide the necessary goods with which to defend the indefensible, namely, a conviction supported by thin air, gleaned absolutely nothing from Colonel Gaddafi's former security services chief.” 

[For further consideration of this issue, see the blog post immediately below this one.]

Libya's NTC says Lockerbie case closed

[This is the headline over a report published this evening by the Reuters news agency.  It reads in part:]

The investigation into the 1988 bombing of a U.S.-bound airliner over Lockerbie in Scotland is closed and Tripoli will not release more evidence that could lead to others being charged, Libya's interim leaders said on Monday.

Scottish prosecutors had asked Libya's National Transitional Council (NTC) to give them access to papers or witnesses that could implicate more suspects, possibly including deposed leader Muammar Gaddafi.

However, Libya's interim justice minister Mohammed al-Alagi turned them down, telling reporters: "The case is closed." (...)

Pamela Dix, whose brother Peter was among those killed in the attack, told Reuters in an emailed statement: "Suggesting that the Lockerbie case is closed is ludicrous.

"I am not surprised that the new interim government might want to avoid getting involved, but this is a miserable attempt to avoid a perfectly reasonable request for any information or evidence that there might be in Libya. Perhaps there is nothing."

No one at Scotland's public prosecution service was available to comment on the Libyan minister's statement. 

[A later edition of the same Reuters report contains the following:]

But the Foreign Office in London said it had talked with the NTC late on Monday and it had promised continued cooperation.

"NTC chairman Mustafa Abdul Jalil has already assured the prime minister that the Libyan authorities will cooperate with the UK in this and other ongoing investigations," a Foreign Office spokesman said.

"Having spoken with the NTC this evening, we understand that this remains the case. The police investigation into the Lockerbie bombing remains open and the police should follow the evidence wherever it leads them."

[A report published on Tuesday 27th on the website of The Wall Street Journal contains the following:]

Libyan Minister of Justice and Human Rights Mr. Mohammed Al-Alagi said at a news conference that he considered the case closed (...)

Mr. Alagi, the interim justice minister, said after the news conference that Libya would in fact consider cooperating on some aspects of the Lockerbie bombing, in a sign of further confusion within the ranks of the interim leadership.

A spokeswoman from the FCO said NTC Chairman Mustafa Abdul Jalil has already assured Prime Minister David Cameron that the new Libyan authorities will cooperate with the U.K. on Lockerbie and other ongoing investigations.

"Having spoken with the NTC this evening, we understand that this remains the case," the spokeswoman said.  

[The Chinese Xinhua news agency's account of the news conference contains the following:]

Also, the NTC said Monday the convict of the notorious December 1988 bombing of a plane over Lockerbie of Scotland was not to be put on trial again as the case is already closed.

Despite Britain's recent requests for assistance from the new Libyan authorities to re-open the Lockerbie investigation, Mohammed al-Allaqi, chief of justice and human rights issues of the NTC, told a press conference in Tripoli that, Abdel Basset al-Megrahi, the main convict of Lockerbie bombing, was already tried, convicted and punished, and he was released with the consent of the British government on humanitarian basis. 

So the issue may not be tried twice, that is the basic rule of justice, said al-Allaqi.

Libya asked to find key papers on Lockerbie

[This is the headline over a report published (behind the paywall) in today's Scottish edition of The Times.  It reads in part:]

Scotland’s Lord Advocate has opened a dramatic new chapter in the Lockerbie saga by formally seeking evidence from the new Libyan authorities which could lead to a second trial for the atrocity, The Times has learnt.

Frank Mulholland, QC, has made the move in the growing belief that the Libyan National Transitional Council (NTC) in Tripoli will release key evidence and testimony relating to the blowing up of Pan Am Flight 103.

Scottish prosecutors believe that the co-operation of the NTC will provide them with the vital evidence they need to convict those who acted along with Abdul Baset Ali al-Megrahi in committing the terrorist act.

In particular, the Crown Office is keen to obtain further evidence against Al-Amin Khalifa Fhimah, the man who originally stood trial for the terrorist atrocity alongside al-Megrahi, but was acquitted of any involvement.

Confirming the Lord Advocate’s approach to Libya’s new political leaders, a spokesman for the Crown Office said: “The Crown will continue to pursue lines of enquiry that become available and following recent events in Libya has asked the National Transitional Council, through the Foreign and Commonwealth Office, for assistance with the investigation. In particular we have asked the NTC to make available to the Crown any documentary evidence and witnesses, which could assist in the ongoing enquiries.”

Mr Mulholland’s move reveals growing confidence within the Crown Office that it can secure further convictions over the Lockerbie bombing.

The Lord Advocate set up a specialist unit earlier this year charged with gathering evidence against Mr Fhimah, 55, after MSPs paved the way for a retrial by scrapping the country’s 800-year-old double-jeopardy law.

Mr Fhimah recently attempted to side publicly with the Libyan rebels as the Gaddafi regime fell, in what was seen as a desperate attempt to persuade them not to hand him over to the Scottish authorities.

As the Crown Office has stepped up efforts to secure evidence against him, Mr Fhimah also used an interview in a Swedish newspaper to deny any involvement in the Lockerbie bombing. (...)

Colonel Gaddafi’s former justice minister, Mustafa Abdul-Jalil, who claimed to have evidence of Gaddafi’s involvement in the Lockerbie outrage, is now one of the leaders of the NTC.

William Hague, the Foreign Secretary, said Mr Jalil pleged his full co-operation with the UK authorities when the two men met in London last month.

Although some members of the NTC have rejected calls for the suspect in the killing of PC Yvonne Fletcher to be handed over — or for Megrahi to be returned to jail — the Crown Office is hopeful that it will take a different approach in relation to the Lockerbie suspects, who have remained loyal to Gaddafi until the final days of his regime.

Mr Fhimah was given a hero’s welcome by Gaddafi when he returned to Libya following his acquittal at the trial in the Hague.

Al-Megrahi’s co-accused had been accused of helping to place the bomb in the baggage system of the New York-bound plane while it was at an airport in Malta.

However, Mr Fhimah’s defence argued that the case against him amounted to “inference upon inference upon inference upon inference ... leading to an inference”.

Earlier this year, Scottish police questioned the former Libyan foreign minister Moussa Koussa, who has defected from the Gaddafi regime and is believed to hold key information about the 1988 attack. Mr Fhimah is understood to have formed a central part of their questioning of Mr Koussa.

Other suspects in the case include Abdullah Senussi, Colonel Gadaffi’s brother-in-law who headed Libya’s intelligence services and was al-Megrahi’s immediate boss.

Ibrahim Nayili, Libya’s former head of airline security, is also on the list of potential suspects. He is said to have put al-Megrahi in contact with potential sources of arms and aircraft components.

However, Sa’id Rashid, who is suspected by US intelligence staff of being “the senior government official who orchestrated the attack”, is believed to have died during the current uprising.

Izz Aldin Hinshiri, a former Libyan minister said to have taken possession of timers that may have been used in the Lockerbie attack, may also be dead.

[This story has now been picked up on the BBC News website.  The first paragraph of a commentary on the website of Scottish lawyers' magazine The Firm by the editor, Steven Raeburn, reads as follows:]

This morning’s announcement from the Crown Office that they have contacted Libya’s newly changed regime in an effort to seek “assistance with the investigation” into the Pan Am 103 atrocity is a dangerous, disgraceful and disrespectful charade.

The big lie

This is part of the title of the first instalment of a lengthy article (mainly in German) published today on the website Das Treiben der Lämmer.  It sets out, with useful references to published material (usually in English), the main gaps and deficiencies in the evidence that resulted in the conviction of Abdelbaset Megrahi.  For those with a reading knowledge of German, this is a helpful introduction to Lockerbie studies.

More on Hana Gaddafi

[The Sunday Telegraph is running a story headed Emails show British Government knew Hana Gaddafi was still alive. It reads in part:]

Documents found in the British embassy in Tripoli and seen by The Sunday Telegraph show that Hana Gaddafi, supposedly killed 25 years ago, was actually granted a two-year visa to come to Britain as recently as October last year. The UK even paid her application fee. 

For the relatives of the Lockerbie victims it is a terrible betrayal. Gaddafi had used Hana’s alleged death, aged 18 months, as a propaganda coup and to suggest to the British families that he too had suffered as they had.

Dr Jim Swire, whose 24-year-old daughter Flora was blown up on Pan Am flight 103, was even shown — by Gaddafi himself — a photograph of Hana, covered in blood and on the verge of death, lying on a hospital trolley. That meeting took place in Tripoli 20 years ago and had a profound effect on Dr Swire and his attitude towards the Libyan dictator. 

That the British Government never bothered to inform Dr Swire and the other Lockerbie relatives what really happened to Hana has simply added to the sense of betrayal. 

“If the Government knew the story about Hana was phoney then it makes me angry,” said Dr Swire. “The Foreign Office has always kept me in the dark. In an ideal world the CIA and the people from MI6 should have sat down with relatives and said 'we cannot make this public, but this is what really happened’. But nothing of that sort ever happened. That is a source of considerable anger for me.” 

Dr Swire flew to Tripoli in 1991 to persuade Gaddafi to hand over Abdelbaset al-Megrahi for trial for the Lockerbie bombing – still the biggest single terrorist atrocity committed in the UK. Dr Swire, incidentally, no longer believes al-Megrahi is guilty and is convinced of his innocence. 

“It may well be Gaddafi was lying when he talked to me about Hana. The fable I was asked to believe was she was killed not outright but that she died of shrapnel injuries. I have no idea if it was true or false,” said Dr Swire. 

He had even taken with him on the trip a photograph of Flora at 18 months – the same age as Hana when she was purportedly killed – as a kind of emotional leverage in his appeal to Gaddafi to hand over Megrahi. With the photograph of Flora, he gave Gaddafi an inscription in English and Arabic which read: “The consequence of the use of violence is the death of innocent people” which was placed on a wall beside a photograph of Hana in what was said to be Hana’s bedroom. The inscription was still there when Dr Swire revisited Libya last year, though the picture of Hana had been replaced by one of Gaddafi’s mother. 

Pam Dix, whose brother died on the Pan Am flight, said: “If the British authorities knew Hana had not been killed it is yet another example of them creating a story to suit themselves. For some unknown reason they decided to allow this mystery to continue. Why was this kept a secret? 

 “The whole thing smells badly of a cover-up. It is deeply hurtful. The British Government has been buying into Gaddafi’s deceit.” (...)

A Foreign Office spokesman said yesterday: “There was no evidence to suggest Hana Gaddafi had not been killed and that the Hana Gaddafi in Tripoli was anything other than a different person. Gaddafi adopted many children and Hana was a common name.” 

[The same newspaper also publishes reports headlined Tony Blair's six secret visits to Gaddafi and Series of talks before Megrahi’s release about trips to Libya in the three years following Blair's departure from Downing Street.

The Mail on Sunday jumps on the bandwagon with a report headlined Blair had secret meeting with Gaddafi aide at his home... a month before Lockerbie bomber’s release.]

Prosecuting Gaddafi: ensuring justice in Libya

[This is the title of an article published two days ago on the University of Pittsburgh Law School's Jurist website by Charles Adeogun-Phillips a former international prosecutor and senior UN lawyer, who for over a decade led the prosecution of persons responsible for the Rwandan genocide. It reads in part:]

From all indications, it would seem as though the 42-year reign of Libyan leader and Pan African activist Colonel Muammar Gaddafi is finally over. Like Saddam Hussein, his ego is bound to get the better of him, and he will mostly likely remain on Libyan soil until he is captured by rebel forces. That is not necessarily a bad thing. 

At a minimum, it is clear that the preferred choice of the National Transitional Council (NTC) is that Gaddafi be tried at home on account of the fact that he presided over the brutal slaughter of Libyan civilians during the recent uprising. It may well be that, in an attempt to reflect the totality of Gaddafi's alleged criminal conduct, the NTC may decide that he face trial on international terrorism charges in connection with the bombing of Pan Am flight 103 over Lockerbie, Scotland 23 years ago. Many international commentators have objected to this view on the premise that it is inconceivable that Gaddafi could receive justice at the hands of those whom he has repressed for so long. Consequently, they have argued that his fate should be left to the International Criminal Court (ICC) at The Hague. 

Notable among those clamoring for a trial in the ICC is a leading international human rights lawyer and former president of the UN-backed Special Court for Sierra Leone, Geoffrey Robertson. In recent articles in The Sydney Morning Herald and the Guardian, he argues that as a matter of principle, the fate of the Gaddafis must not be left to Libyans. In that regard, Robertson identifies the massacre of 1,200 captives in a prison compound, the killing of 270 people in the Lockerbie bombing and almost as many in a passenger jet over Chad a few months later, as "the most egregious examples of Gaddafi's international crimes." He argues that it is essential for "Gaddafi [to] face justice in The Hague, not in Benghazi."

I am a little surprised and perhaps even more confused by Robertson's arguments in this regard, considering that the ICC does not have retrospective jurisdiction and is therefore unable to try Gaddafi for these particular crimes. All crimes within the jurisdiction of that court must have occurred after the entry into force of the Rome Statute on July 1, 2002. This is one key feature of proceedings before the ICC. That being the case, even with its best efforts, the ICC will be unable to try Gaddafi for these events.

Apart from lacking the temporal jurisdiction to try Gaddafi for these crimes, the ICC also lacks subject matter jurisdiction, at least so far as the Lockerbie and Chad bombings are concerned. These were acts of terrorism committed without any connection to an armed conflict and as such are outside the jurisdiction of the Rome Statute, even though they constitute international crimes. I fail to understand the logic in Robertson's suggestion that a court, which obviously lacks jurisdiction, provides Libyans with an appropriate forum to try Gaddafi for these crimes. Astonishingly, and still in favor of The Hague, Robertson argues that the fact that "liberation has come to the Libyans courtesy of international law, they have a reciprocal duty to abide by it." As evidence of this, Robertson cites the UN Security Council Resolution 1970 [PDF] of February 2011, which referred the situation in Libya to the ICC, and which has led to charges being filed by the ICC prosecutor against Muammar Gaddafi, his son, Saif al-Islam and Abdullah al-Senussi by the said court.

However, a close examination of UN Security Council Resolution 1970 will reveal that it has nothing whatsoever to do with either the Lockerbie or Chad bombings. In fact, ICC prosecutor Luis Moreno-Ocampo has not indicted the Gaddafis for any of these crimes because he is quite simply barred by statute, thus raising one of the most unique and fascinating aspects of international criminal law. In that regard, although there is no statute of limitation for the prosecution of international crimes, several of the international penal institutions where such crimes can be prosecuted are often of limited temporal and subject matter jurisdiction. Such is the case here.

So, if the ICC prosecutor is statute barred from prosecuting Gaddafi at least in connection with the Lockerbie bombing, he is in effect devoid of the ability to reflect the totality of Gaddafi's alleged criminal conduct in court, especially as this particular crime was "international" in all its ramifications. That cannot be the right approach to seeking justice for both Libyans and the international community at large.

Robertson further cites UN Security Council Resolution 1973 mandating NATO's action in Libya to protect civilian lives, and concludes that no one can pretend that Gaddafi's regime could have been overthrown without the air, sea and logistical support provided by NATO forces. To be fair, he is not the only one that shares this view. It is the collective opinion of many in the "West." However, he likens it to a "duty" under international law, and that is what I have a problem with.

Having totally confused the temporal and subject matter jurisdiction of the ICC in relation to the events outlined above, I trust this renowned British human rights lawyer is not now suggesting that the Libyan people owe the super powers in control of NATO, immense gratitude for their "intervention" in saving the people of Libya and that the time has come for some sort of "payback," after all, as the saying goes, nothing goes for nothing. In all my years of practice as a distinguished member of the international bar, I have never come across such a notion under public international law — namely, one which imposes on a sovereign state, a "reciprocal duty to abide by international law."

On Megrahi, again, as before

[This is the heading over a post by John Rentoul today on the Eagle Eye blog on the website of The Independent. It reads in part:]

I thought it worth putting something that William Hague, the Foreign Secretary, told The Times last week, outside the pay wall:

"The overall strategy of engaging with Gaddafi to turn him away from a nuclear programme was right, including the contact with the intelligence services. Imagine the greater difficulty we would have had if he had had a whole range of weapons over the last few months." (...)

Thus my surprise that The Sunday Telegraph should have thought that “After he was prime minister, Tony Blair had two meetings with Gaddafi” was worth the front-page lead. Laden with innuendo about the media myth of the release of the Lockerbie bomber that is simply wrong.

We know that Blair wanted Megrahi out (or, rather, that he wanted Gaddafi to think that he was trying), but that it was not his decision. It was the decision of the Scottish executive, namely Alex Salmond, the Scottish National Party leader, and Kenny MacAskill, his justice minister.

Salmond would not have released Megrahi because Blair wanted him to. Salmond hates Blair, whom he tried to “impeach” over Iraq (showing no better understanding of the English language than the UK constitution or what was right), and the sentiment is warmly returned.

(It is not legally or formally relevant, but it is not irrelevant that there are serious doubts about Megrahi’s guilt.)

Lockerbie Libya Syria; Who to frame next

This is the heading over a long article by Dr Christof Lehmann published yesterday on his NSNBC website. It explores some of the well-known concerns about the Megrahi conviction and bears to have been motivated by a "recent article" by Dr Ludwig de Braeckeleer about the Lumpert affidavit. The article in question was in fact published on 6 September 2007, though it has been featured over the past few days on a number of websites, such as this one, as if it were new.

Evidence grows of Blair's links with Gaddafi

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

Tony Blair's shadowy links with Muammar Gaddafi were thrust into the spotlight again last night after it emerged that he met the former Libyan dictator twice for secret talks in the run-up to the release of the man convicted of the Lockerbie bombing.

A collection of documents found in Tripoli have revealed that Mr Blair was flown to Libya twice on one of Colonel Gaddafi's private jets after he left office in the UK, according to a report in The Sunday Telegraph. In the letters and emails, Mr Blair's private office repeatedly refers to Gaddafi as "The Leader".

The meetings, in 2008 and 2009, came at a time when Libya was threatening to cut all business links with the UK if Abdelbaset al-Megrahi stayed in a British jail.

The correspondence, between Mr Blair's office, the British ambassador in Tripoli and the Libyan ambassador in London, raise possible conflicts of interest regarding his roles as Middle East peace envoy, philanthropist and consultant. 

The former prime minister, who brought a US billionaire to one of the meetings, makes no reference to the trips on any of his websites. 

Mr Blair's office last night denied that the visits were business-related. A spokesman confirmed that Megrahi's situation was raised at the meetings, but insisted that Mr Blair always told the Libyans that the prisoner's status was a matter for the Scottish Executive. Megrahi, who has cancer, was eventually released on health grounds in August 2009 after doctors judged that he had only three months to live. 

But Pam Dix, whose brother died in the Lockerbie bombing, said yesterday: "These meetings ... are disturbing, and details of what was discussed should now be made public. I am astonished Tony Blair continued to have meetings like this out of office." 

The meetings took place at a time of intense negotiations with Colonel Gaddafi's regime over Megrahi's release (...)

A spokesman for Tony Blair said last night: "Tony Blair has never had any role, either formal or informal, paid or unpaid, with the Libyan Investment Authority or the Government of Libya and he has no commercial relationship with any Libyan company or entity.

"The subject of the conversations during Mr Blair's occasional visits was primarily Africa, as Libya was for a time head of the African Union; but also the Middle East and how Libya should reform and open up. At the time, governments around the world were engaging with Libya."

[It appears that the story on The Independent website is in fact a re-hash of a longer report that appeared on the website of The Telegraph on Saturday evening.  The original report can be read here. It contains the following paragraph:]

Mr Blair has always denied involvement in Megrahi's release – saying it was a decision taken by the Scottish Executive alone. Last night a spokesman admitted Megrahi's release was raised by Gaddafi.

[The report in The Scotsman of Monday, 19 September contains the following:]

Yesterday justice secretary Kenny MacAskill, who made the decision to release Megrahi, insisted that the meetings played no part in his decision.

He said: "Al-Megrahi is dying of terminal prostate cancer, and was released on compassionate grounds. These reports underline the extent of Labour's hypocrisy over al-Megrahi. It was Tony Blair who rode roughshod over Scotland by secretly negotiating a prisoner transfer agreement with Col Gaddafi in the first place, for reasons of trade and politics.

"As all the documentation and inquiries demonstrate, only the SNP government played with a straight bat on this matter."

[A similar but longer report in Monday's edition of The Herald can be read here.]

The proverbial dog not barking

[The following are excerpts from a long article by Robert Parry published yesterday on the Consortium News website:]

During the six-month uprising against Muammar Gaddafi, major US news outlets repeated again and again that the Libyan dictator was behind the 1988 bombing of Pan Am 103 over Lockerbie, Scotland, and they ignored warnings that militant Islamists were at the core of the anti-Gaddafi rebel army. (...)

Only outside the mainstream press would you find significant questions asked about the certainty over Libya’s guilt in the Pan Am bombing and about the makeup of the rebels. 

Now, after the United States and its NATO allies have engineered the desired “regime change” in Libya – under the pretext of “protecting civilians” – those two points are coming more into focus.

The New York Times and The Washington Post on Thursday finally acknowledged that radical Islamists, including some with links to al-Qaeda, are consolidating their power inside the new regime in Tripoli.

And, the proverbial dog not barking – even as Libya’s secret intelligence files have been exposed to the eyes of Western journalists – is the absence of any incriminating evidence regarding Libya’s role in the Lockerbie case. Earlier interrogations of Libya’s ex-intelligence chief Moussa Koussa by Scottish authorities also apparently came up empty, as he was allowed to leave London for Qatar.

Since Gaddafi’s fall, news outlets also have reported that Libyan intelligence agent, Ali al-Megrahi, who was convicted of the Lockerbie bombing by a Scottish court and was later released on humanitarian grounds because of terminal prostate cancer, is indeed gravely ill, bedridden and seemingly near death.

Megrahi’s trial in 2001 before a panel of Scottish judges was more a kangaroo court than any serious effort to determine guilt – even a Scottish appeals court [RB: Presumably it is the Scottish Criminal Cases Review Commission that is being referred to] expressed concern about a grave miscarriage of justice – but the Western press continues to describe Megrahi, without qualification, as the “Lockerbie bomber.”

It also was common in the West’s news media to smirk at the notion that Megrahi was truly suffering from advanced prostate cancer since he hadn’t died as quickly as some doctors thought he might. After Gaddafi’s regime fell, Megrahi’s family invited BBC and other news organizations to see Megrahi struggling to breathe in his sick bed.

His son, Khaled al-Megrahi, also continued to insist on his father’s innocence. “He believes and we know that everybody will see the truth,” the younger Megrahi told the BBC. “I know my father is innocent and one day his innocence will come out.”

Asked about the people who died in the bombing, the son said: “We feel sorry about all the people who died. We want to know who did this bad thing. We want to know the truth as well.”

As more information becomes available inside Libya, the facts may finally be clarified about whether Gaddafi’s government did or did not have a hand in the bombing over Lockerbie. However, so far, the indications are that Megrahi may well have been railroaded by the Scottish judges who found a second Libyan defendant innocent and were under political pressure to convict someone for the crime.

After Megrahi’s curious conviction, the West imposed harsh economic sanctions on Libya, agreeing to lift them only if Libya accepted “responsibility” for the bombing and paid restitution to the families of the 270 victims. To get rid of the punishing sanctions, Libya accepted the deal although its officials continued to insist that Libya had nothing to do with the Lockerbie bombing.

However, amid this year’s propaganda campaign in support of the Libyan rebels, none of this uncertainty was mentioned in The New York Times, The Washington Post or other leading US news outlets. Gaddafi’s guilt for Lockerbie was simply stated as flat fact, much as the same news organizations endorsed false claims about Iraq’s WMD in the run-up to the 2003 invasion of that Arab country.

The Times of Malta on the CIA Giaka cables

[Today's edition of the Maltese newspaper The Times contains a report on the CIA cables relating to the Pan Am 103 bombing that were referred to in a post on this blog on 5 September 2011. The report reads in part:]

Malta was a “primary launching point” for Libyan intelligence and terrorist teams transiting Europe, according to a recent compilation of declassified CIA cables dating between 1988 and 1991.

But campaigners for justice in the Lockerbie bombing case have slammed such claims, describing the CIA’s main informant as a “money-grubbing fantasist” who led the CIA by the nose.

The informant quoted extensively in the 255-page document (taken predominantly from declassified CIA cables released in 2008 and compiled by an international organisation) is Abdul Majid Giaka, whose testimony, as an informant, was pivotal in convicting Abdelbaset al-Megrahi for the Lockerbie bombing, despite the court having cast doubts on Mr Giaka’s credibility and reliability as a witness. [RB: Giaka's testimony was not "pivotal" in convicting Megrahi. The Lockerbie judges rejected his evidence in its entirety, with the exception of that part relating to the structure of the Libyan security and intelligence services and Megrahi's alleged position in them.]

According to Lockerbie campaigner Robert Forrester, the recently compiled cables are so heavily redacted that any effort to corroborate the veracity of intelligence is impossible.

“Giaka was showered with US tax dollars in return for nothing of substance,” he told The Times.

Mr Forrester – who forms part of a group of Lockerbie victim family members who believe Mr al Megrahi was wrongly convicted – also criticised the CIA for showing no indication of having tried to independently corroborate any of the “so-called intelligence”. [RB: The Justice for Megrahi group, of which Robert Forrester is secretary, is not, of course, "a group of Lockerbie victim family members" but a group of concerned persons, some of whom are Lockerbie family members.]

“It really does look like [the CIA] swallowed it all, hook, line and sinker, until it finally dawned on them that he was worthless,” he said.

“These additional papers detailing the CIA’s relationship with Mr Giaka, add little to what is already known and to the doubts which have always hung over this case... Malta has absolutely no reason to think that these documents taint the island’s good name any more than it has been.”

However, he added that it is up to the Maltese government to take “concrete steps” to lift the cloud of Lockerbie which hangs over the island.

“The evidence is there which proves that there is no evidence to support this conviction.”