Sir Brian Barder and Lockerbie

Today’s edition of The Times contains an obituary of retired British ambassador Sir Brian Barder KCMG who died on 19 September 2017 aged 83. Sir Brian in his retirement wrote extensively and perceptively about Lockerbie and the Megrahi case. Blogposts about, and links to, these writings can be found here.

Doomed from the outset

[On this date in 2010 a letter from Sir Brian Barder was published in The Guardian under the heading Vital point missed in Megrahi controversy. It reads as follows:]

In all the renewed controversy over the release of Abdelbaset al-Megrahi, the man convicted of the Lockerbie bombing ... a vital point seems to have been missed. Under the terms of the US-UK "initiative" under which Megrahi was convicted, he was required to serve his sentence in the UK. The initiative was accepted by Libya and approved by UN security council resolution 1192. For that reason Megrahi could never have been transferred to serve the rest of his sentence in Libya under the prisoner transfer agreement (PTA) negotiated by the Blair government with Libya, regardless of whether Megrahi was included in or excluded from its scope.

It's difficult to understand how the PTA came to be signed when it could never have been used to transfer Megrahi, the only Libyan then in UK custody. If BP was pressing for Megrahi to be transferred under the PTA, why was it not told that this was ruled out by the terms of the original agreement? Why didn't Alex Salmond and Kenny MacAskill point this out to Tony Blair and Jack Straw when they were arguing about the pros and cons of the PTA? Above all, when Blair and Straw made their "concession" to the Libyans under which Megrahi was not after all to be excluded from the PTA, did they remind the Libyans that Megrahi couldn't be transferred to Libya? If not, why not?

In an article published on Comment is Free on 1 September 2009, Oliver Miles pointed out that Megrahi's transfer to Libya under the PTA would have been contrary to the original agreement. It's strange that even then no one seems to have seen the implications of this.

[RB: The implications had, of course, already been seen on this blog: Britain accused of breaking promise to US over Abdel Baset Ali al-Megrahi and Foreign Office told Scotland it made no promises to US over how long Megrahi would stay in prison.

The reason why the "promise" was not taken seriously by the UK Foreign Office was that the only country that might have an interest in complaining if it was broken was the United States of America. And both the United Kingdom government and the Libyan government knew (because -- as Libyan officials informed me -- they had checked) that Washington was relaxed about Abdelbaset Megrahi's repatriation, though it would have to huff and puff for US public consumption when it happened.

When Kenny MacAskill rejected the application for prisoner transfer his principal reason for doing so was the undertaking contained in the “initiative” that led to the Zeist trial that, if convicted, the suspects would serve their sentence in the UK. Of course, if it had been accepted by the Libyan Government that transfer of Megrahi to a prison in Libya was simply not possible under the terms of the “initiative” (and I did my very best to convince them) no prisoner transfer application would have been made and, in consequence, abandonment of Megrahi’s appeal would not have been necessary when, later, his application for compassionate release was lodged. The prisoner transfer application may have been -- indeed, was -- doomed from the outset, but it served the interests of the United Kingdom and the United States very well by ensuring the abandonment of Megrahi’s appeal.]

Someone, somewhere, has been and still is hiding something

[The following are excerpts from a long article by retired ambassador Sir Brian Barder that was published on his website on this date in 2010:]

Several well informed people believe there are skeletons in this cupboard which powerful people in the UK and the US want to keep securely and permanently locked away right where they are.  For example, an impressive body of respectable opinion, by no means all professional conspiracy theorists, is not convinced that al-Megrahi was properly convicted. It’s impossible to know whether this doubt was a factor in Kenny MacAskill’s mind when he made his decision: fortunately for him, there were ample other grounds for compassionate release.  It does look however as if some of those concerned were anxious that al-Megrahi’s appeal should not be heard, either because it would risk bringing Scottish justice into disrepute by discrediting the original trial as unfair and defective, or for more sinister reasons.  Or were the likely consequences of al-Megrahi’s appeal possibly succeeding simply too awful to contemplate — for example, the reactions to be expected in the US, and the appalling questions then to be answered: if the two Libyan suspects didn’t do it, who did? And what compensation would be due to al-Megrahi or, if he had died in the meantime, his family?

So why did al-Megrahi agree to abandon his appeal before it could be heard? Was it because he feared that he would not live long enough to see it determined, or because abandoning the appeal was a condition, implied or explicit, of his release on compassionate grounds? Perhaps someone should put this question to al-Megrahi while he is still alive.

A recent article in the Independent newspaper alleged that the Libyan government had paid the doctors whose prognosis that al-Megrahi would die within three months had provided the justification for his release on compassionate grounds:

There are several facts that batter these claims with question marks. The most obvious is that, 11 months later, Megrahi isn’t dead. It’s the most amazing medical recovery since Lazarus. Or is it? It turns out the doctors who declared him sick were paid for by the Libyan government, and one of them says he was put under pressure by Libya to offer the most pessimistic estimate of life expectancy. Susan Cohen, whose only daughter died in Lockerbie, asks: “Why didn’t the Scottish Government pay for the doctors?”     [Johann Hari, The Independent, 23 July 2010]

But as a crisp comment on this canard pointed out, —

This is utterly untrue. The medical report was by Scottish doctors, NHS cancer experts. The ones paid for by Libya were not part of the evidence used by the Justice Secretary. Fact checking mate, you call yourself a journalist?

Indeed, the main medical advice on which MacAskill relied was provided by the Director of Health and Care of the Scottish Prison Service, Dr Andrew Fraser,  who has been described by MacAskill as a doctor of “unimpeachable integrity”.  Yet the slanderous claim that the prognosis had been provided by doctors paid by the Libyan government spreads like toadstools all over the blogosphere and into the MSM.  Moreover, it has repeatedly been made clear that the three-month prognosis was accompanied by a warning that he might die earlier, or he might live longer: no forecast in such circumstances could be certain.  And who knows whether al-Megrahi would still be alive if he had been left in his Scottish prison cell to die, in a foreign country miles from his family?  As to the repugnance commonly expressed at the ‘hero’s welcome’ he received on his arrival back in Libya, it needs to be pointed out that he was being welcomed back as a victim of a monstrous injustice, the Libyans believing almost to a man and woman that he had been wrongly convicted;  this was the opposite of a welcome accorded to a mass murderer and terrorist.

I’m generally suspicious of conspiracy theories but in this case I seem to smell a number of rats — not least because of the decision of the Scottish Criminal Cases Review Commission (SCCRC) in June 2007 after lengthy study of the case to refer it to the High Court for a second appeal against conviction.  There were also a number of reports by Hans Köchler, who had been an international observer of the original trial, appointed by the Secretary-General of the United Nations, and who described the decisions of the trial and appeal courts as a “spectacular miscarriage of justice”. Some of the relatives of the victims, who have naturally followed all the proceedings closely, are doubtful whether al-Megrahi was properly convicted. There is a strong suspicion that Iran may have been involved, including a specific Iranian said to have been in the pay of the CIA (I am not of course suggesting that the CIA could have been involved in planning or carrying out the bombing). Al-Megrahi’s fellow-Libyan co-defendant was unanimously acquitted by the judges. There’s a good deal of doubt about (...) the principal prosecution witness, on whose testimony al-Megrahi’s conviction effectively stands or falls, and about his alleged identification of al-Megrahi at the trial, which was both shaky and possibly compromised. Even the vehemence of American protests at al-Megrahi’s release tends to arouse suspicion: what beans did they fear he might spill once out of prison? Why all the effort to prevent the second appeal from coming to court? And so on. It really does look as if someone, somewhere, has been and still is hiding something.

Lockerbie, Megrahi and the Prisoner Transfer Agreement: a mystery

[What follows is the text of an article by retired British diplomat Sir Brian Barder that was published in The Scotsman on this date in 2011:]

Megrahi at centre of transfer deal mystery

Why did the UK agree a deal  with Gaddafi to send the Lockerbie bomber to Libya in defiance of a binding United Nations resolution?

There’s a major mystery in the newly released British government  documents containing new revelations about the controversial release of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted (quite possibly wrongly) of responsibility for the 1988 Lockerbie bombing.  Moreover it’s puzzling that the mystery was never raised when the prime minister, David Cameron, made a statement and answered questions about the documents in the House of Commons on 7 February.  It’s the hippopotamus in the living-room that everyone is apparently too polite to mention.

Here’s the mystery.  In August 1998 the US and UK governments invited the United Nations Security Council to approve an initiative under which the two Libyans suspected of involvement in the Lockerbie bombing would be tried in a special court in the Netherlands under Scottish law.  The Security Council duly approved the initiative in a formal resolution passed under Chapter VII of the UN Charter, meaning that the resolution has binding force on all UN member states under international law.  But the relevant point is this:  the US-UK letter setting out the initiative, as approved by the mandatory UN resolution, stipulates in terms that if convicted, the suspects “will serve their sentence in the United Kingdom” – in practice meaning in Scotland, since all the proceedings were to be governed by Scottish law.  One of the two suspects was later acquitted:  the other, Megrahi, was convicted and sentenced to life in prison with a 27-year tariff.  Megrahi duly began to serve his sentence in a Scottish prison.

Now fast-forward to 2007.  Western relations with Libya have been ‘normalised’ following Libya’s abandonment of its nuclear weapons programme, sanctions have been lifted and UK firms are negotiating for lucrative and now legitimate contracts with Libya.  Tony Blair, then the UK prime minister, on the last of his visits to Libya, signs an agreement with Colonel Muammar al-Gaddafi in which the two governments promise to sign a Prisoner Transfer Agreement within a year.  The PTA allows a Libyan convict held in a UK prison to be transferred to serve the balance of his or her sentence in prison in Libya (and vice versa).  The Libyans make it clear that agreement to a PTA is the key to approval of various contracts with UK firms.  The only Libyan in a UK jail is Megrahi.  Everyone understands that Libyan insistence on a PTA is intended to open the way to the eventual repatriation of Megrahi to Libya – theoretically to serve the rest of his 27-year sentence in a Libyan prison.  The Scottish Government in Edinburgh, responsible under Scottish law for any decision affecting Megrahi’s future, repeatedly makes it clear that it is strongly opposed to the use of the PTA for transferring him to Libya.  But the PTA is signed under the British government’s foreign affairs power and the Scottish Government has no veto over it.  The mystery here is obvious.  The UK-US initiative approved by the Security Council resolution stipulates that Megrahi must serve his sentence in the UK.  The PTA envisages that he could be transferred to serve the remainder of his sentence in Libya.  The PTA is obviously inconsistent with the initiative and thus with a binding UN resolution.  So what was the point of the PTA?

It emerges from the newly released documents that in the course of discussions about the proposed PTA, the Scottish Government asked the British government whether there would be any obstacle in international law to the transfer of Megrahi to Libya under the Prisoner Transfer Agreement if the Scottish Justice Secretary were to agree to such a transfer.  After scratching its head, the British government replied, surprisingly, that there was not.  The documents don’t explain how the British government arrived at this counter-intuitive conclusion, with which (even more surprisingly) the US government had agreed.  But the documents do reveal a sharp disagreement between London and Washington over whether Megrahi’s transfer to Libya under the PTA would be in breach of the UK’s political (as distinct from legal) commitment to Megrahi serving his sentence in a UK prison.  The Americans said it would;  the UK government said it would not.  Moreover, the Americans maintained that Megrahi could not be transferred to a Libyan prison under the PTA without their prior agreement, since the whole initiative under which Megrahi had been tried and jailed had been jointly devised by the US and UK governments.  Again, the UK government disagreed, claiming that for it to transfer Megrahi under the PTA it would only need to inform the Americans (and the UN): American agreement, said the British, was not required.

How were the UK government’s lawyers to square this awkward circle?  They argued that the UK commitment could not have been “absolute”, because no British government could commit its successor (a novel and inherently subversive doctrine in international relations) and also because it could not have ruled out the possibility of a change in UK relations with Libya – another novel doctrine, allowing any government to wriggle out of its commitments at will.  For whatever reasons, the British government apparently decided not to disclose to the Scottish Government either its disagreement with the Americans over the status of the (“political”) commitment that Megrahi must serve his sentence in the UK, nor the grounds for its contention that there was no conflict between the two instruments.

It’s understandable that Tony Blair and his government were keen to satisfy Libyan demands implicitly concerning Megrahi so that valuable UK-Libyan commercial contracts could go ahead.  Getting Megrahi back to Libya would clearly be in Britain’s commercial and diplomatic interests.  But did Blair point out to the Libyans during the lengthy negotiation of the Prisoner Transfer Agreement that under the US-UK initiative and the UN resolution Megrahi could not be transferred to a Libyan prison?  If not, why not?  Were the Libyans or indeed Blair and his officials aware of the inconsistency?  Could they have failed to notice it?  The feeble grounds devised by the UK for its argument that there was no inconsistency, and that the UK could have legitimately gone ahead unilaterally in obvious breach of a mandatory UN resolution, suggest that the UK decision to have a Prisoner Transfer Agreement was taken first, and the lawyers were only later instructed to devise a justification for its obvious conflict with the UN resolution.

In the event Megrahi’s diagnosis with terminal cancer spared the Scottish Justice Secretary the need to respond to an application for his transfer to a Libyan prison under the PTA, which he had always opposed and would not have agreed to: his decision instead to release Megrahi on compassionate grounds was fully consistent with the US-UK initiative, the UN resolution embodying it, Scottish law and precedent, and humanitarian principles – although that hasn’t stopped the new British prime minister, the President and several Senators and Congressmen of the United States, and some (but not all) of the relatives of the Lockerbie victims passionately denouncing the decision.  There’s no love lost between Mr Cameron on the one hand and the Scottish government or the former Labour government on the other, so his denunciation of Kenny MacAskill’s compassionate release decision is understandable in political terms, if not in human ones.  But  why did David Cameron not point out in his Commons statement that to have transferred Megrahi under the PTA would have flagrantly contravened not only the whole agreed basis for Megrahi’s trial and imprisonment but also a mandatory resolution of the Security Council? How on earth did he fail to spot the dirty great hippo in that living-room next door?

• Sir Brian Barder is a former British ambassador to both Ethiopia and Poland and a former High Commissioner to Nigeria [and Australia — BLB].  He never had any official involvement in relations with Libya or the Lockerbie affair.

Lockerbie, Megrahi and the Prisoner Transfer Agreement: a mystery

[I am grateful to Sir Brian Barder for letting me know that the full text of his article, referred to in a report in The Scotsman on 17 February, can now be read here. The following is an excerpt:]

There’s a major mystery in the newly released British government documents containing new revelations about the controversial release of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted (quite possibly wrongly) of responsibility for the 1988 Lockerbie bombing. Moreover it’s puzzling that the mystery was never raised when the prime minister, David Cameron, made a statement and answered questions about the documents in the House of Commons on 7 February. It’s the hippopotamus in the living-room that everyone is apparently too polite to mention.

Here’s the mystery. In August 1998 the US and UK governments invited the United Nations Security Council to approve an initiative under which the two Libyans suspected of involvement in the Lockerbie bombing would be tried in a special court in the Netherlands under Scottish law. The Security Council duly approved the initiative in a formal resolution passed under Chapter VII of the UN Charter, meaning that the resolution has binding force on all UN member states under international law. But the relevant point is this: the US-UK letter setting out the initiative, as approved by the mandatory UN resolution, stipulates in terms that if convicted, the suspects “will serve their sentence in the United Kingdom” – in practice meaning in Scotland, since all the proceedings were to be governed by Scottish law. One of the two suspects was later acquitted: the other, Megrahi, was convicted and sentenced to life in prison with a 27-year tariff. Megrahi duly began to serve his sentence in a Scottish prison.

Now fast-forward to 2007. Western relations with Libya have been ‘normalised’ following Libya’s abandonment of its nuclear weapons programme, sanctions have been lifted and UK firms are negotiating for lucrative and now legitimate contracts with Libya. Tony Blair, then the UK prime minister, on the last of his visits to Libya, signs an agreement with Colonel Muammar al-Gaddafi in which the two governments promise to sign a Prisoner Transfer Agreement within a year. The PTA allows a Libyan convict held in a UK prison to be transferred to serve the balance of his or her sentence in prison in Libya (and vice versa). The Libyans make it clear that agreement to a PTA is the key to approval of various contracts with UK firms. The only Libyan in a UK jail is Megrahi. Everyone understands that Libyan insistence on a PTA is intended to open the way to the eventual repatriation of Megrahi to Libya – theoretically to serve the rest of his 27-year sentence in a Libyan prison. The Scottish Government in Edinburgh, responsible under Scottish law for any decision affecting Megrahi’s future, repeatedly makes it clear that it is strongly opposed to the use of the PTA for transferring him to Libya. But the PTA is signed under the British government’s foreign affairs power and the Scottish Government has no veto over it. The mystery here is obvious. The UK-US initiative approved by the Security Council resolution stipulates that Megrahi must serve his sentence in the UK. The PTA envisages that he could be transferred to serve the remainder of his sentence in Libya. The PTA is obviously inconsistent with the initiative and thus with a binding UN resolution. So what was the point of the PTA?

It emerges from the newly released documents that in the course of discussions about the proposed PTA, the Scottish Government asked the British government whether there would be any obstacle in international law to the transfer of Megrahi to Libya under the Prisoner Transfer Agreement if the Scottish Justice Secretary were to agree to such a transfer. After scratching its head, the British government replied, surprisingly, that there was not. The documents don’t explain how the British government arrived at this counter-intuitive conclusion, with which (even more surprisingly) the US government had agreed. But the documents do reveal a sharp disagreement between London and Washington over whether Megrahi’s transfer to Libya under the PTA would be in breach of the UK’s political (as distinct from legal) commitment to Megrahi serving his sentence in a UK prison. The Americans said it would; the UK government said it would not. Moreover, the Americans maintained that Megrahi could not be transferred to a Libyan prison under the PTA without their prior agreement, since the whole initiative under which Megrahi had been tried and jailed had been jointly devised by the US and UK governments. Again, the UK government disagreed, claiming that for it to transfer Megrahi under the PTA it would only need to inform the Americans (and the UN): American agreement, said the British, was not required.

How were the UK government’s lawyers to square this awkward circle? They argued that the UK commitment could not have been “absolute”, because no British government could commit its successor (a novel and inherently subversive doctrine in international relations) and also because it could not have ruled out the possibility of a change in UK relations with Libya – another novel doctrine, allowing any government to wriggle out of its commitments at will. For whatever reasons, the British government apparently decided not to disclose to the Scottish Government either its disagreement with the Americans over the status of the (“political”) commitment that Megrahi must serve his sentence in the UK, nor the grounds for its contention that there was no conflict between the two instruments.

Blair's desert deal with Libya broke UN resolution on Lockerbie bomber

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

A former British ambassador has accused the previous Labour government of "flagrantly contravening" United Nations resolutions over its decision to allow the Lockerbie bomber to apply for release back to Libya.

Sir Brian Barder, who served as British High Commissioner to Australia, writes in The Scotsman today [RB: article available only to subscribers] that the so-called "deal in the desert" between the then prime minister, Tony Blair, and Libyan leader Colonel Muammar al-Gaddafi in 1997 was a clear breach of a UN resolution which stipulated the bomber should see out his sentence in the UK.

At the meeting, Mr Blair agreed to a Libyan request to sign a Prisoner Transfer Agreement (PTA) for Libyan prisoners in the UK. At the time, Abdelbaset Ali Mohmed al-Megrahi, the only man convicted of the Lockerbie atrocity, was the only Libyan in a UK jail.

But Sir Brian points out that this decision was "in obvious breach" of UN resolution 1192, signed in 1998, which had endorsed a UK-United States initiative to keep anyone convicted of the bombing in the UK.

Sir Brian suggests that the UK government signed the deal first and only then gave lawyers instructions on how to devise a justification for the breach.

He describes those justifications, released in letters over the past two years, as "feeble".

The diplomat, who also led the UK's diplomatic mission in Ethiopia, Poland and Nigeria in a 30-year career in the Foreign Office, said the Scottish Government's decision to release Mr Megrahi was "fully consistent" with the UN resolution, because it had been taken on compassionate grounds. (...)

[It is comforting to have this belated diplomatic recognition of the accuracy of what I have been saying repeatedly on this blog since at least 29 August 2009.]

Vital point missed in Megrahi controversy

[This is the heading over a letter from Brian Barder in today's edition of The Guardian. It reads as follows:]

In all the renewed controversy over the release of Abdelbaset al-Megrahi, the man convicted of the Lockerbie bombing ... a vital point seems to have been missed. Under the terms of the US-UK "initiative" under which Megrahi was convicted, he was required to serve his sentence in the UK. The initiative was accepted by Libya and approved by UN security council resolution 1192. For that reason Megrahi could never have been transferred to serve the rest of his sentence in Libya under the prisoner transfer agreement (PTA) negotiated by the Blair government with Libya, regardless of whether Megrahi was included in or excluded from its scope.

It's difficult to understand how the PTA came to be signed when it could never have been used to transfer Megrahi, the only Libyan then in UK custody. If BP was pressing for Megrahi to be transferred under the PTA, why was it not told that this was ruled out by the terms of the original agreement? Why didn't Alex Salmond and Kenny MacAskill point this out to Tony Blair and Jack Straw when they were arguing about the pros and cons of the PTA? Above all, when Blair and Straw made their "concession" to the Libyans under which Megrahi was not after all to be excluded from the PTA, did they remind the Libyans that Megrahi couldn't be transferred to Libya? If not, why not?

In an article published on Comment is Free on 1 September 2009, Oliver Miles pointed out that Megrahi's transfer to Libya under the PTA would have been contrary to the original agreement. It's strange that even then no one seems to have seen the implications of this.

[The implications had, of course, already been seen on this blog: Britain accused of breaking promise to US over Abdel Baset Ali al-Megrahi and Foreign Office told Scotland it made no promises to US over how long Megrahi would stay in prison.

The reason why the "promise" was not taken seriously by the UK Foreign Office was that the only country that might have an interest in complaining if it was broken was the United States of America. And both the United Kingdom government and the Libyan government knew (because they had checked) that Washington was relaxed about Abdelbaset Megrahi's repatriation, though it would have to huff and puff for US public consumption when it happened.]