"We are not creating any obstacles"

[On this date in 1998 a lengthy interview with Dr Ibrahim Legwell, the then lawyer for the two Libyan Lockerbie suspects, was published on the website of the Dutch NRC Handelsblad newspaper. Google Translate provides a comprehensible English language version of the article. The following are the headline and first sub-heading, courtesy of Google Translate assisted by me:]

Lockerbie suspects’ Libyan lawyer: 'We are not creating any obstacles'

Libyan lawyer Ibrahim Legwell, who is representing the suspects in the Lockerbie attack, denies imposing any conditions for their trial in accordance with Scottish law in the Netherlands. However, the trial process must be rounded off with "legal guarantees" for a fair trial.

[RB:  Dr Legwell was replaced as the suspects’ lawyer shortly after this interview was published (though there was no connection). What follows is something written by me some years ago about this stage in journey towards a Lockerbie trial:]

Although the British proposal [for a Scottish non-jury court to sit in the Netherlands] 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 [that set out the details of the proposal] was capable of being interpreted, and was in fact interpreted, by the Libyan defence team (now chaired by Mr Kamel Hassan Maghur as successor to Dr Legwell) 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 -- their attitude being that the scheme had been advanced on a “take it or leave it basis” and that no negotiations would be entered in to -- these concerns could be dealt with only through an intermediary, namely the Secretary-General of the United Nations, Kofi Annan (or, in practice, the Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations, Hans Corell).   This meant that issues that could have been thrashed out and settled in a matter of a few hours in a face-to-face meeting took weeks and months to resolve.  The US government, particularly the Secretary of State, Madeleine Albright, took every available opportunity to accuse the Libyan government and lawyers of stalling and trying to wriggle out of the assurances they had given over the years to support a “neutral venue” trial.  My own clear impression, however, through my continuing contacts with the Libyans, was that if anyone was looking for pretexts to avoid a trial ever taking place, it was the US and UK governments.

Between 20 and 22 September 1998, Dr Jim 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 points that concerned them.  However, it was we who 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.  This information was faxed to me (in Dutch, which I can read  -- with difficulty -- through my knowledge of Afrikaans) at my hotel in Tripoli by a Dutch journalist who had developed an interest in Lockerbie and who had heard it from an official at The Hague.  Dr Swire and I discussed whether we should inform our Libyan government contacts of the intended venue and came to the conclusion that we should do so.  One compelling reason for doing so was to preserve the trust that the Libyan government appeared to have developed in us.  Another was our assumption – which may or may not have been justified -- that all our communications in Libya were monitored and that the Libyan authorities would have the information anyway as soon as they could arrange for a copy of the fax to be translated from Dutch into Arabic.

I anticipated that the news about the proposed location would cause the Libyans to renounce the "neutral venue" concept in high dudgeon and complain of the lack of good faith demonstrated by the British Government in selecting, or agreeing to, such a site.  But they did not do so.  When we raised the issue at our next meeting, the Libyan officials were remarkably relaxed about the matter.  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 Dr Swire and I had a further meeting with the Leader of the Revolution.  On this occasion the meeting took place not in Tripoli but 400 kilometres to the east in a genuine (not reinforced concrete) Bedouin tent in a desert location inland from the town of Sirte. (...)

Surrounded by the sand dunes and by 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. (...)

I returned to the UK after this visit to Libya reasonably confident that a trial would take place.  It was clear to me that the Libyan authorities at the highest level wanted it to happen and that the accused men wanted their families and themselves to be able to get on with their lives, something that could never happen, even within the boundaries of Libya, while the charges against them remained unresolved and UN sanctions remained in place.

World Court decision prompts UK and USA to agree to neutral venue trial

[Seventeen years ago today the International Court of Justice (the “World Court”) ruled against the United Kingdom and the United States in cases raised against them by Libya arising out of their demands that Megrahi and Fhimah should be surrendered for trial in either Scotland or the United States. Here is what I wrote in an article headed “The Lockerbie Disaster” published in (1999) 3 Edinburgh Law Review 85-95:]

On 27 November 1991 the Governments of the United Kingdom and the United States each issued a statement calling upon the Libyan Government to hand over the two accused to either the Scottish or the American authorities for trial.  Requests for their extradition were transmitted to the Government of Libya by diplomatic channels.  No extradition treaties are in force between Libya on the one hand and the United Kingdom and United States on the other.

Libyan internal law, in common with the laws of many countries in the world, does not permit the extradition of its own nationals for trial overseas.  The Government of Libya accordingly contended that the affair should be resolved through the application of the provisions of the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, to which all three Governments are signatories.  Under article 7 of that Convention a state in whose territory persons accused of terrorist offences against aircraft are resident has a choice aut dedere aut judicare, either to hand over the accused for trial in the courts of the state bringing the accusation or to take the steps necessary to have the accused brought trial in its own domestic courts.  In purported compliance with the second of these options, the Libyan authorities arrested the two accused and appointed a Supreme Court judge as examining magistrate to consider the evidence and prepare the case against them.  Not entirely surprisingly, perhaps, the UK and US Governments have refused to make available to the examining magistrate the evidence that they claim to have amassed against the accused who, to this day, remain under house arrest.

The United Nations Security Council first became involved in the Lockerbie affair  on 21 January 1992 when it passed Resolution 731 strongly deploring the Government of Libya's lack of co-operation in the matter and urging it to respond to the British and American requests contained in their statements of 27 November 1991.  This was followed by Security Council Resolution 748 (31 March 1992) requiring Libya to comply with the requests within a stipulated period of time, failing which a list of sanctions specified in the Resolution would be imposed.  Compliance was not forthcoming and the sanctions duly came into  effect.  On 11 November 1993 the Security Council, by Resolution 883, further extended the range and application of the sanctions.  The imposition of sanctions under the last two Resolutions was justified by the Security Council by reference to Chapter VII of the Charter of the United Nations on the basis that Libya's failure to extradite the accused constituted a threat to peace.

On 3 March 1992 (after the passing of Security Council Resolution 731, but before Resolutions 748 and 883), Libya presented applications to the International Court of Justice in The Hague for declarations that she was entitled under Article 7 of the 1971 Montreal Convention to put the accused on trial in Libya and that the United Kingdom and the United States were in breach of their obligations under that Convention in insisting upon trial in the UK or the USA.  The Governments of the United Kingdom and United States sought to have these applications dismissed without a hearing on the merits on the grounds inter alia that (1) the ICJ had no jurisdiction to consider them and (2) the Security Council Resolutions of 31 March 1992 and 11 November 1993, imposing upon Libya an international obligation contended by the UK and the USA to be superior to that embodied in Article 7 of the Montreal Convention, had rendered the applications pointless.  On 27 February 1998 the judges of the ICJ by substantial majorities [RB: 13 to 3] (and with the American and British judges dissenting) rejected the submissions of the UK and the USA, thereby clearing the way for decisions at some time in the future on the merits of Libya's applications.

[RB: This judgement was followed within six months by the UK and US volte face whereby they agreed to a neutral venue trial. Here is what I wrote in the article mentioned above:]

For four years and seven months the Government of the United Kingdom (and that of the United States) consistently maintained that the "neutral venue" scheme proposed by the writer and accepted by the Libyan Government and defence lawyers in January 1994 was impossible, impracticable and inherently undesirable.  For a flavour of the strength and vehemence of the Government's opposition, the interested reader is referred to "The Lockerbie Trial"  1998 Scots Law Times (News) 9 by Lord Hardie, a response by the Lord Advocate to the present writer's "The Lockerbie Proposal" 1997 Scots Law Times (News) 304.

However, on 24 August 1998 the Governments of the United Kingdom and United States announced that they had reversed their stance on the matter.  In a letter of that date to the Secretary-General of the United Nations, Kofi Annan, the Acting Permanent Representatives of the UK and the USA stated:

".... in the interest of resolving this situation in a way which will allow justice to be done, our Governments are prepared, as an exceptional measure, to arrange for the two accused to be tried before a Scottish court sitting in the Netherlands.  After close consultation with the Government of the Kingdom of the Netherlands, we are pleased to confirm that the Government of the Kingdom of the Netherlands has agreed to facilitate arrangements for such a court.  It would be a Scottish court and would follow normal Scots law and procedure in every respect except for the replacement of the jury by a panel of three Scottish High Court judges.  The Scottish rules of evidence and procedure, and all the guarantees of fair trial provided by the law of Scotland, would apply."

[RB: Once the trial and appeal at Camp Zeist were concluded, the World Court case brought by Libya was quietly dropped, to the enormous relief of the permanent members of the UN Security Council, who were in fear and trembling that the court was going to recognise what would, in effect, have been a form of judicial review of the legality of the acts of the Security Council. And that would never do. Good heavens, it might have judicially prevented the invasion of Iraq!]

RIP Nelson Mandela

Nelson Rolihlahla Mandela

18 July 1918 - 05 December 2013

Nkosi sikelel’ iAfrika

Among his many other achievements, Nelson Mandela played a significant and honourable part in the Lockerbie affair.  Here are a few excerpts from posts on this blog over the years.

Saturday, 12 January 2008  He [Abdelbaset Megrahi] spoke affectionately and admiringly of South African leader Nelson Mandela, who had visited him in prison, saying that Mandela refused to be accompanied by any British official when he visited him in his prison in Scotland. He added that Mandela also called him when he was visiting the Netherlands because his Dutch hosts had told him that he cannot visit him in prison as it would be a breach of protocol.

Friday, 18 July 2008  (on Mandela’s 90th birthday) 'With so much having been written about the man, the best insights can, perhaps, be gleaned from his 'lesser' successes rather than his iconic triumphs. Nowhere is this more evident than in his mediation on the Lockerbie issue. Mandela took a particular interest in helping to resolve the long-running dispute between Gaddafi's Libya, on the one hand, and the United States and Britain on the other, over bringing to trial the two Libyans who were indicted in November 1991 and accused of sabotaging Pan Am Flight 103, which crashed at the Scottish town of Lockerbie on 21 December 1988, with the loss of 270 lives. As early as 1992, Mandela informally approached President George Bush with a proposal to have the two indicted Libyans tried in a third country. Bush reacted favourably to the proposal, as did President Mitterrand of France and King Juan Carlos of Spain. In November 1994, six months after his election as president, Mandela formally proposed that South Africa should be the venue for the Pan Am Flight 103 bombing trial.

'However, British Prime Minister, John Major, flatly rejected the idea saying the British government did not have confidence in foreign courts. A further three years elapsed until Mandela's offer was repeated to Major's successor, Tony Blair, when the president visited London in July 1997. Later the same year, at the Commonwealth Heads of Government Meeting (CHOGM) at Edinburgh in October 1997, Mandela warned: "No one nation should be complainant, prosecutor and judge." A compromise solution was then agreed for a trial to be held at Camp Zeist in the Netherlands, governed by Scottish law, and Mandela began negotiations with Gaddafi for the handover of the two accused (Megrahi and Fhimah) in April 1999.

‘At the end of their nine-month trial, the verdict was announced on 31 January 2001. Fhimah was acquitted but Megrahi was convicted and sentenced to 27 years in a Scottish jail. Megrahi's initial appeal was turned down in March 2002, and former president Mandela went to visit him in Barlinnie prison on 10 June 2002. "Megrahi is all alone", Mandela told a packed press conference in the prison's visitors room. "He has nobody he can talk to. It is psychological persecution that a man must stay for the length of his long sentence all alone. It would be fair if he were transferred to a Muslim country, and there are Muslim countries which are trusted by the West. It will make it easier for his family to visit him if he is in a place like the kingdom of Morocco, Tunisia or Egypt."’

Sunday, 30 August 2009  Nelson Mandela played a central role in facilitating the handover of Megrahi to the United Nations so he could stand trial under Scottish law in the Netherlands, and subsequently visited him in Barlinnie Prison in Glasgow.

His backing [for the compassionate release of Megrahi] emerged in a letter sent by Professor Jakes Gerwel, chairperson of the Mandela Foundation.

He said: "Mr Mandela sincerely appreciates the decision to release Mr al Megrahi on compassionate grounds.

"His interest and involvement continued after the trial after visiting Mr al Megrahi in prison.

"The decision to release him now, and allow him to return to Libya, is one which is therefore in line with his wishes."

Sunday, 14 February 2010  I have no doubt that President Mandela's influence and his interventions at the time of the Commonwealth Heads of Government Meeting (CHOGM) in Edinburgh in October 1997 were crucial in persuading the recently-elected Labour Government to countenance a "neutral venue" solution to the Lockerbie impasse. Also of crucial importance was the press conference held by the group UK Families-Flight 103 in Edinburgh during the Meeting and the worldwide publicity that it generated.

Friday, 17 June 2011  In November 1994, President Nelson Mandela offered South Africa as a neutral venue for the trial but this was rejected by John Major. A further three years elapsed until Mandela’s offer was repeated to Major’s successor, Tony Blair, when the president visited London in July 1997 and again at the 1997 Commonwealth Heads of Government Meeting in Edinburgh in October 1997. At the latter meeting, Mandela warned that “no one nation should be complainant, prosecutor and judge” in the Lockerbie case.

Sunday, 24 July 2011  Huge crowds greeted Nelson Mandela as he travelled from South Africa to meet Abdelbaset al-Megrahi.

He met the Libyan convicted of the Lockerbie bombing in 2002 on a diplomatic excursion to see how he was being treated.

The former president of South Africa also discussed a campaign for Megrahi to serve his sentence in a Libyan prison.

Everyone who has met Mandela speaks of his kindness, gentleness and good manners.

His visit to Gaddafi's Cafe, the nickname given to the area of Barlinnie where Megrahi was held, underlined the humanity of the man.

After all, Mandela himself spent 18 of his 27 years in jail on Robben Island after being locked up by the South Africa's apartheid government.

Most of the crowd hoping to meet him were positioned around the reception and the main gates. Everyone on the staff wanted a glimpse of the great man. The wellwishers were rows deep.

But as he passed through the throng, Mandela stopped, looked to the edge of the crowd and spotted a young prison officer right at the back.

He said: "You sir, step down here."

When the officer got to the front, Mandela shook his hand, giving him a moment he would never forget.

Mandela remarked that he, too, knew what it was like to be at the back row and not noticed.

The great leader then went inside to meet Megrahi. [RB: Here is a photograph taken at the time.]

But he declined an offer to visit the cell blocks.

Mandela had seen enough to last a lifetime.

Wednesday, 29 February 2012  I [Dr John Cameron] first became involved in the Lockerbie case when Nelson Mandela asked the Church of Scotland to support his efforts to have Abdelbaset al-Megrahi's conviction overturned. 

As an experienced lawyer, Mandela studied the transcripts and decided there had been a miscarriage of justice, pointing especially to serious problems with the forensic evidence. I was the only research physicist among the clergy and was the obvious person to review the evidence to produce a technical report which might be understood by the Kirk.

Scientists always select the competing hypothesis that makes the fewest assumptions to eliminate complicated constructions and keep theories grounded in the laws of science. This is 'Occam's razor' and from the outset the theory that the bomb entered the system in Malta as unaccompanied baggage and rattled around Europe seemed quite mad. I contacted everyone I knew in aviation and they all were of the opinion it was placed on board at the notoriously insecure Heathrow and that the trigger had to be barometric.  

[And while listening to or reading the tributes to Mandela from members of the UK government and Tory politicians, just bear this in mind.]

UK and US isolated in rejecting neutral venue trial proposal

[What follows is excerpted from a report by the Associated Press news agency published on this date in 1996:]

Lawyers representing the two Libyan men suspected of planting the Lockerbie bomb say they're ready to face trial -- but it must be in a neutral country.

And they say the suspects will appear voluntarily, without the need for extradition.

But so far it's a proposal which hasn't been taken up by any of the key players in the international investigation into Flight 103. (...)

The man leading the defence team for the two men is on a rare trip to London.

He says if the investigating countries -- the US, the UK and Scotland -- agree to a trial somewhere like The Hague, the suspects will turn up of their own free will.

Dr Ibrahim Legwell: “What we are proposing that the venue can be changed for a neutral country and that instead of the jury we have a panel of judges and what is going to come from our side is that I will come with them to stand for the trial voluntary, not as an extradition.”

Those representing the families of Lockerbie victims have backed the call for such a trial, saying at least the evidence would be brought out into the open.

The legal team acting for the men includes lawyers from each country involved in the events leading up to the explosion.

English lawyer Stephen Mitchell says the UK and the US are now isolated in rejecting the trial proposal.

Stephen Mitchell: “It will be accepted or rejected on the basis of political wills. When somebody wants to solve this problem it will be solved, is my view.”

International pressure for neutral venue Lockerbie trial

[What follows is excerpted from a press release issued by the United Nations Security Council on this date in 1998:]

The Security Council this morning heard of a proposal by the League of Arab States aimed at resolving the situation for which the Council had imposed sanctions upon Libya following the 1988 bombing of Pan Am flight 103 over Lockerbie, Scotland (...)

The proposal offers three options for the trial of the two Libyan nationals suspected in the Lockerbie bombing -- they could be tried in a neutral country chosen by the Council, at the World Court in The Hague by Scottish judges, or in a special tribunal to be created at The Hague. The League's Observer at the United Nations said the proposal had been formulated in consultation with the Organization of African Unity (OAU) and the Organization of the Islamic Conference.

Under its resolution 748 (1992) and 883 (1993), the Council imposed a wide range of aerial, arms and diplomatic sanctions on Libya pending its renunciation of terrorism and its action to ensure the appearance of those charged with the Lockerbie bombings before the appropriate courts in the United Kingdom or the United States. (...)

Many speakers today drew attention to two recent decisions by the International Court of Justice on cases submitted by Libya against the United States and United Kingdom. In those cases, Libya held that those countries did not have the right to compel it to surrender the suspects. Libya also argued that the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation authorized Libya to try the suspects itself. The Court found that it had jurisdiction to deal with the merits of the cases, that the Libyan claims were admissible, and that it would take action to consider them.

Addressing the Council, the representative of Libya said his country had been suffering from collective sanctions for the past six years, without a court judgement or a legal basis for them. Like the families of the bombing victims, Libya was anxious to have the two suspects brought to trial in a just and fair court in a neutral country and to uncover the truth.

He said his Government had urged the suspects to appear before a Scottish court, but they had refused on their lawyers' advice, stating they had already been condemned in the United Kingdom and the United States as a result of biased media coverage and official statements. Libya asked that the suspects be treated in the same manner as the American citizen accused in the Oklahoma City bombing, whose trial venue had been transferred from the state where the crime was committed.

The representative of the United States said that the World Court's rulings involved technical, procedural issues and in no way questioned the legality of the Security Council's actions affecting Libya or the merits of the criminal cases against the two accused suspects. It had simply said that the parties must now argue the legal merits of the case. While the case was proceeding, Libya must comply with its obligations under the Council decisions and turn over the two suspects for a fair trial.

The representative of the United Kingdom expressed the hope that the OAU and the Arab League would not be used to undermine the Council's resolutions, and that their influence would eventually be used to bring about Libya's acceptance of international law and justice for the victims. He said an expert mission sent by the Secretary-General had concluded that the Scottish legal system was fair and independent, that the accused would receive a fair trial under the Scottish judicial system, and that their rights would be fully protected during all phases of the trial proceeding in accordance with international standards.

Neutral venue Lockerbie trial accepted by UK and USA

[On this date in 1998 the governments of the United Kingdom and the United States, succumbing to international pressure, announced that they had reversed their stance on the matter of a "neutral venue" trial, such as I had proposed (and the Libyan Government, and the Libyan lawyer for Megrahi and Fhimah, had accepted) in January 1994. What follows is the text of a report published on the website of The Independent on the evening of 24 August:]

Britain and the United States took the unprecedented step yesterday of agreeing to hold a special trial in The Hague, under Scottish law, to bring to justice the alleged terrorists behind the Lockerbie bombing.

In a U-turn by the two governments, the Foreign Secretary, Robin Cook, said the decision to hold the trial in a neutral country 10 years after the bombing of PanAm 103, killing all 259 on board and 11 on the ground, should be seen as a signal to other terrorists responsible for the attacks on the US embassies in East Africa that "however long it takes, they will be brought to justice".

The trial could take place by next May, but there was widespread scepticism at the highest levels of Government that Colonel Muammar Gaddafi would surrender the two suspects for trial - Abdul Basset al-Megrahi and al- Amin Khalifa Fhimah - despite repeated Libyan demands for a trial in a neutral country, such as the Netherlands.

"I cannot answer for Colonel Gaddafi. His government has said they would accept a trial by a Scottish court with Scottish judges. If they choose not to take up that offer, it will very severely undermine the credibility that they will have for making that undertaking earlier this year," said Mr Cook. He added that sanctions against Libya could be lifted the moment the two accused were handed over for trial. The terms were not negotiable. The Lord Advocate, Lord Hardie, said the two could not be tried in their absence. There will be extradition proceedings, and, if they submit themselves for trial, a full committal procedure with a trial by three Scottish judges under full Scottish law held within 110 days.

They would be held "in a special facility" in The Hague by Scottish prison officers until the trial, and if found guilty, would serve their sentence in Scotland. Lord Hardie rejected calls for an international court, with a presiding Scottish judge, "because there is no body of international criminal law and procedure under which it could operate".

The move won support from Lord Fraser of Carmyllie, Tory Lord Advocate at the time of the bombing. He said that,10 years on, "the anguish of the relatives of all those who died in the tragedy and the way that conspiracy theories have proliferated" dictated holding a trial.

Families of the victims welcomed the decision. Jim Swire whose 23-year- old daughter, Flora, died on flight 103 on 21 December 1988, was "euphoric". He said: "Anyone in their right mind would welcome this decision." Mr Swire, the spokesman for the UK Families Flight 103 group, said: "This is something that our group have been working for six years for."

Alistair Duff, Scottish lawyer for the two Libyans, said the issue of the judges was not insurmountable. But Mr Duff told BBC Radio the men would need various reassurances, such as the condition of their custody and access to lawyers before agreeing to leave Tripoli.

Until recently the British and American governments maintained that the Libyans must be handed over for trial in Britain or the United States.

The US Secretary of State, Madeleine Albright, announcing the joint proposal in Washington, called for Libya to end its "10 years of evasion". She said: "We now challenge Libya to turn promises into deeds. The suspects should be surrendered for trial promptly."

The United Nations Secretary-General, Kofi Annan, welcomed the joint initiative and offered the UN's services to arrange the transfer of the accused men to the Netherlands, if Libya agreed. Details of the proposed compromise were to be given to Tripoli by Mr Annan.

The US and Britain are expected to submit the draft of a new resolution to the UN Security Council that will envisage an end to international sanctions against Libya if it agrees to surrender the accused men for trial.

[RB: The UK/US government statement is contained in a letter to the UN Secretary-General. It can be read here.]

The neutral venue solution: variations on a theme

[What follows is the text of a report that was published in The Herald on this date in 1995:]

Doubts over the feasibility of arranging for a Scottish court and jury to sit abroad are likely to prevent Labour from supporting an amendment to the new Criminal Justice Bill which could bring about a trial for the Lockerbie bombing.

The amendment, tabled by former Scottish Office minister Allan Stewart, would allow a Scottish court and jury to sit abroad for the trial of the two Libyans charged with carrying out the attack.

Libya has refused to hand over the men, who are accused of murdering the 270 people who died when Pan Am flight 103 exploded above Lockerbie in 1988, claiming they would not receive a fair trial in Scotland, or the United States.

Mr Stewart's amendment offers a potential solution by keeping the case

within the jurisdiction of the Scottish legal system while satisfying Libyan demands that the trial be held in a neutral third county, possibly The Hague in the Netherlands.

The amendment will be opposed by the Government when it comes up in the Commons Committee considering the Criminal Justice (Scotland) Bill. With a Government majority of one on the committee, Labour's support for Mr Stewart could force a defeat.

However, although the Scottish Labour leadership is sympathetic to the demands of those campaigning for a solution to the impasse, it is understood to be concerned about the feasibility of having a Scottish court sit abroad.

Sources suggest there are ''fundamental problems'' including the need to alter Scots law to fit in with European law which could result in a ''mongrel court''. However, Labour is not yet prepared to dismiss Mr Stewart's clause, and will wait for the committee debate, expected after Easter.

Labour MP Tam Dalyell, who sits on the committee and who will support the amendment, said yesterday he would fight to secure his party's backing. He said he had received assurances from Deputy Shadow Scottish Secretary John McFall that Labour would back the amendment. ''I would be astonished if we didn't,'' he said.

Yesterday Mr McFall, who leads for Labour on the committee, said his side would wait ''with interest'' to hear Mr Stewart explain his idea.

Mr Stewart proposes to visit Libya from next Friday, to meet Libyan government officials with the aim of persuading them to accept his idea.

The former minister, who will announce details of his trip today, will write to all the MPs on the committee explaining the reasoning behind the new clause. He does not accept the argument that procedural difficulties would make it impossible for a Scottish court to sit in a third country.

Meanwhile, the British authorities yesterday refused to comment on a newspaper report which named an Arab businessman as the mastermind behind the Lockerbie bombing.

It claimed that Dr Ihsan Barbouti, who had offices in London and Malta, planned the attack, and received £3.2m from a Libyan account. Officially, Dr Barbouti died in 1990 after suffering a heart attack, but the newspaper suggests he may have faked his own death to avoid capture and trial.

[RB: A fuller account of the Ihsan Barbouti story can be read here.

Eventually, in summer 1998, a neutral venue solution to the Lockerbie impasse -- based on my January 1994 proposal -- was accepted by the United Kingdom and the United States.]

Bid to restore Scottish legal reputation

[This is the headline over an article published in The Sunday Post on 29 July 2007. It reads as follows:]

Foreign judges for al-Megrahi appeal

By Paul Johnson

AN MSP wants the court hearing the Lockerbie bomber’s appeal to include at least two international judges.He says it’s a bid to restore the reputation of the Scottish legal system.The call came in a letter from SNP backbencher Alex Neil to the Lord President of the Court of Session, Lord Hamilton on Thursday. He claims his idea has the support of Lockerbie campaigner Dr Jim Swire, whose daughter, Flora, died in the bombing, plus former MP Tam Dalyell and Iain McKie, father of “fingerprint case detective” Shirley.

It also has the backing of Professor Robert Black, who originally suggested holding the trial in a neutral country.

Libyan Abdelbaset al-Megrahi was jailed in 2001 for the 1988 atrocity. But the Scottish Criminal Cases Review Commission recently said he could go ahead with a second appeal.

Supportive

Mr Neil said, “I haven’t discussed my letter with Executive members, but Tam Dalyell, Iain McKie and Jim Swire are all very supportive. “If you look through the report of the Review Commission there are a lot of unanswered questions about due process and justice at the original trial. This brings into serious question aspects of the Scottish legal system.”

Mr Neil claimed the conduct of the McKie and Lockerbie cases has damaged the system’s international standing.“I know people in the US who are very critical about what has happened,” he added. “There’s a need to re-establish the criminal justice system’s reputation.“The world’s eyes will be on the appeal, so it’s critical justice is done and seen to be done.“I feel people have been complacent about the effectiveness of the system because it has always been held up as something to admire.“Those romantic memories of yesteryear will not sustain us tomorrow.”

Edinburgh University professor Robert Black is credited with drawing up procedures for the original trial which convinced Libyan leader Colonel Gadaffi to hand over the accused men.

Neutral venue

He said last night, “My January 1994 proposal for a non-jury trial in a neutral venue suggested foreign judges should be involved with a Scot presiding. But the UK Government insisted all the judges should be Scottish.“I still think including foreign judges is a good idea.” There is no precedent for this but Prof Black says it could be possible to extend the categories of people who can become temporary judges in the High Court to include foreign judges.“I think it would require legislation in the Scottish Parliament which would be easy to draft. The question is whether it would have majority support.”

A Justice Department spokesman said, “The priority is to allow the legal process to follow its natural course. This is very much a matter between Mr Neil and the Lord President.” Tam Dalyell said, “I’ve been calling for an international element to the appeal hearing for some time. If not judges, what they might want to do is have some international observers.”

At al-Megrahi’s first appeal in 2002 a panel of five judges met at the special Scottish court at Camp Zeist in the Netherlands, led by then Lord President Lord Cullen

International pressure led UK and USA to agree to neutral venue trial

[What follows is an item headed Libya Sanction Hearings Sought in the UN Security Council posted on this date in 1998 on The Pan Am 103 Crash Website:]

Arab and African countries are urging an open Security Council debate to pressure Britain and Washington to ease sanctions imposed on Libya after the 1988 Pan Am bombing. The 15 council members had been scheduled to review -- and presumably renew -- the sanctions for another 120 days this week. Such reviews are routinely done in closed sessions.

But Arab and African members of the Security Council are urging the current president, Abdoulie Momodou Saleh of Gambia, to postpone the review and schedule an open debate, diplomatic sources said Wednesday on condition of anonymity. That would enable any UN member state to join the discussions.

The United States and Britain could block any decision to lift or ease the sanctions, which were imposed in 1992 to pressure Libyan revolutionary leader Moammar Gadhafi to extradite two suspects in the fatal bombing of Pan Am Flight 103 over Lockerbie, Scotland. The bombing killed 270 people. Still, an open debate would draw attention to calls by the Arab League and the Organization of African Unity to lift the sanctions. Libya has proposed sending the two Libyan suspects to a third country for trial. Washington and London insist they be tried in Scotland or the United States.

But a growing number of council members, including Russia, have urged the council to consider Gadhafi's offer. The use of sanctions as a means of pressuring governments has lost favor among many of the 185 UN member states, in part because they cause suffering among populations who often have little influence on their governments' policies. In an attempt to head off the debate, Britain and the United States have asked UN legal officers for a ruling on whether the review must be completed by the end of the week, the sources said.

If so, there would not be enough time under UN rules to organize an open debate.

[RB: Apart from the Arab League and the Organization of African Unity, the Organization of the Islamic Conference and the Non-Aligned Movement were losing patience with the intransigence of the United Kingdom and the United States in the face of Libyan willingness to countenance a trial of Megrahi and Fhimah in a neutral country. Here is the text of a communiqué issued on 25 September 1997 at the conclusion of a meeting of Ministers for Foreign Affairs and Heads of Delegation of the Non-Aligned Movement:] 

73. The Ministers for Foreign Affairs and Heads of Delegation reconfirmed the position of the Movement as contained in paragraph 163 of the Final Document of the Eleventh Summit in Cartagena. They expressed concern at the non-acceptance by the three Western countries of the appeals of regional and international organizations and their efforts to reach a peaceful settlement based on the principles of international law. They also affirmed that the measures imposed on Libya are no longer justifiable, and urged the Security Council to expeditiously review the air embargo and the other measures imposed on Libya with a view to lifting them. They further underlined that the escalation of the crisis, the threat to impose additional sanctions and the use of force as a means of conducting relations among States are a violation of the Charter of the United Nations and the principles of the Non-Aligned Movement. They reiterated their support for the proposals submitted jointly by the Organization of African Unity and the League of Arab States, as contained in the declaration of the 65th regular session of the Council of Ministers of the Organization of African Unity held in Tripoli from 24-28 February 1997. These proposals are as follows:

Option 1: To hold the trial of the two suspects in a third and neutral country to be determined by the Security Council.

Option 2: To have the two suspects tried by Scottish judges at the International Court of Justice ICJ at the Hague, in accordance with Scottish law.

Option 3: To establish a special criminal tribunal at the ICJ headquarters in the Hague to try the two suspects.

They called for refraining from resorting to the imposition of sanctions unless a real threat to international peace and security exists and only after all other peaceful means for settling the dispute have been exhausted. They also called for the refraining from adopting measures in the economic, financial, transportation and communication fields, due to their serious and inhumane effects on the people and should reflect the views of the General Assembly. The General Assembly is the only forum that reflects the position of all Member states. Where the imposition of sanctions is inevitable, they should be limited in their duration. After which, a decision should be made whether a consensus for their renewal exists and also serious consideration should be given to lift similar sanctions that are in place.

[RB: It was this erosion of international support for continuation of sanctions against Libya that motivated the UK and USA reluctantly to agree to a neutral venue trial in August 1998, some four years and seven months after my proposal had been accepted by the Libyan Government and the suspects’ defence team.]