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.]

Labour Government policy on Lockerbie prosecution

[What follows is an exchange that took place in the House of Lords on this date in 1997, shortly after the election of Tony Blair’s Labour government, between the new Lord Advocate, Lord Hardie, and one of his Conservative predecessors, Lord Fraser of Carmyllie:]

HL Deb 25 June 1997 vol 580 cc1571-3

Lord Fraser of Carmyllie asked Her Majesty's Government:

What is their policy concerning the prosecution of those responsible for the murder of those on flight PanAm 103 and of residents of Lockerbie in December 1988.

The Lord Advocate (Lord Hardie) My Lords, the Government's policy in relation to the prosecution of any crime is that those allegedly responsible should be brought before the courts having jurisdiction for such matters in order that the accused may receive a fair trial.

Lord Fraser of Carmyllie My Lords, the noble and learned Lord has not quite answered the Question that I put to him. As the new Administration takes up office and as the noble and learned Lord as the new Lord Advocate takes over responsibility for these matters, it would be helpful if a clear signal were given not only to this country but also to the rest of the world that the policy pursued by previous Lord Advocates will be maintained. Even in the absence of a clear answer from the noble and learned Lord, I hope I may ask him two questions. First, he will appreciate that as the public prosecutor in Scotland in that respect he does not share a collective responsibility with other ministerial colleagues but has a singular and possibly rather lonely duty to determine whether or not there should be a prosecution. Will he guard against any attempt, however well intentioned, to fetter that discretion for foreign policy or trade reasons?

Secondly, if the noble and learned Lord should determine at any stage that there should not be a prosecution in this matter, will he give an assurance that he will explain that to your Lordships' House? It is not just the relatives of those 270 people who died at Lockerbie who would like to know on what evidence the original decision was taken, but those of us who were involved in the prosecution and the original investigation, who have had our integrity impugned as conspiracy theory has piled upon conspiracy theory, would like the opportunity to reflect on how we would wish to take the matter forward.

Lord Hardie My Lords, I assure the House—as I did in my maiden speech—that I intend to guard the independence of the office which I hold. I assure the noble and learned Lord that I shall not allow anyone from any side of the House to fetter my discretion in any way. As regards reaching any decision, as the noble and learned Lord will be aware, I was involved, along with him, in the public inquiry into the Lockerbie disaster. Since taking up office I have had access to much information that was not available to me at that stage and which is not in the public domain. I can assure the House that I am satisfied on the information available to me that there is no reason not to proceed with the petitions. The noble and learned Lord will be aware that the situation is still fluid in the sense that if additional information becomes available any decision would have to be reviewed. I can also assure the noble and learned Lord that should it be decided that no prosecution will take place I shall return to the House and make a Statement to that effect.

Lord Bruce of Donington My Lords, can the noble and learned Lord tell the House whether Her Majesty's Government are in possession of any prima facie evidence indicating the identity of those responsible?

Lord Hardie My Lords, as the noble Lord may be aware, there are petition warrants which name two people. Those warrants were issued on the basis of information available linking them with the disaster which occurred.

Prosecution policy over Lockerbie

[On the formation of Tony Blair’s Labour government following the general election held on 1 May 1997, Andrew Hardie QC became Lord Advocate. What follows is an exchange in the House of Lords on this date in 1997 between him and the Lord Advocate who had been in office in 1991 when charges were brought against Megrahi and Fhimah:]

Lord Fraser of Carmyllie asked Her Majesty's Government:

What is their policy concerning the prosecution of those responsible for the murder of those on flight Pan Am 103 and of residents of Lockerbie in December 1988.

The Lord Advocate (Lord Hardie) My Lords, the Government's policy in relation to the prosecution of any crime is that those allegedly responsible should be brought before the courts having jurisdiction for such matters in order that the accused may receive a fair trial.

Lord Fraser of Carmyllie My Lords, the noble and learned Lord has not quite answered the Question that I put to him. As the new Administration takes up office and as the noble and learned Lord as the new Lord Advocate takes over responsibility for these matters, it would be helpful if a clear signal were given not only to this country but also to the rest of the world that the policy pursued by previous Lord Advocates will be maintained. Even in the absence of a clear answer from the noble and learned Lord, I hope I may ask him two questions. First, he will appreciate that as the public prosecutor in Scotland in that respect he does not share a collective responsibility with other ministerial colleagues but has a singular and possibly rather lonely duty to determine whether or not there should be a prosecution. Will he guard against any attempt, however well intentioned, to fetter that discretion for foreign policy or trade reasons?

Secondly, if the noble and learned Lord should determine at any stage that there should not be a prosecution in this matter, will he give an assurance that he will explain that to your Lordships' House? It is not just the relatives of those 270 people who died at Lockerbie who would like to know on what evidence the original decision was taken, but those of us who were involved in the prosecution and the original investigation, who have had our integrity impugned as conspiracy theory has piled upon conspiracy theory, would like the opportunity to reflect on how we would wish to take the matter forward.

Lord Hardie My Lords, I assure the House—as I did in my maiden speech—that I intend to guard the independence of the office which I hold. I assure the noble and learned Lord that I shall not allow anyone from any side of the House to fetter my discretion in any way. As regards reaching any decision, as the noble and learned Lord will be aware, I was involved, along with him, in the public inquiry into the Lockerbie disaster. Since taking up office I have had access to much information that was not available to me at that stage and which is not in the public domain. I can assure the House that I am satisfied on the information available to me that there is no reason not to proceed with the petitions. The noble and learned Lord will be aware that the situation is still fluid in the sense that if additional information becomes available any decision would have to be reviewed. I can also assure the noble and learned Lord that should it be decided that no prosecution will take place I shall return to the House and make a Statement to that effect.

HL Deb 25 June 1997 vol 580 cc1571-3

Crown case has always been highly questionable

[The following are excerpts from a letter dated 23 June 1997 from distinguished Scottish lawyer Peter Anderson to the Prime Minister, Tony Blair, as quoted in a speech by Tam Dalyell, MP for Linlithgow:]

My attention has been drawn to the question put to you by the MP for Linlithgow on 18 June 1997 (Hansard 309/310). Whilst mention of my name contributed nothing to their weight and substance, can I nevertheless respectfully suggest that the question and proposal which were advanced, merit very careful additional consideration by your new Government.

My interest and involvement in the appalling tragedy of the Lockerbie disaster is well known. I have acted for Pan Am and its insurers throughout and do still have some limited involvement in defending personal injury claims of alleged stress from Lockerbie area residents where liability is denied. This letter however is not written in any capacity as representative of my clients and is not on their instructions or with a view to promoting their interests. Pan Am effectively went out of business following the disaster and the insurers have paid out many millions of dollars which cannot be recovered just because the Libyan connection is doubted.

As a result of my fairly extensive knowledge of the background, I do have scepticism as to whether the Crown Office have properly identified the correct accused, and that is shared by many, journalists, lawyers and others. That scepticism grew during my representation of Pan Am and its insurers in the course of the five month Fatal Accident Inquiry in 1990/91, when, as I am sure you have been advised, the now Lord Advocate [RB: Andrew Hardie QC] was senior Crown Counsel assisting the then Lord Advocate, Lord Fraser of Carmyllie QC. It was heightened during the civil damages trial in New York by what I understand was the evidence led there before Chief Judge Platt, and also, importantly by the evidence which he excluded.

It would be unfair to ask you to consider the series of detailed points that exist made to question whether the two Libyans are still properly to be regarded as the murderers. In my assessment however, the Crown case to the effect that the Libyans achieved the destruction of Flight 103 over Lockerbie by introducing in Malta an unaccompanied bag containing the bomb for transit to Frankfurt and subsequent transfer has always been highly questionable and circumstantial.

There is a strong body of evidence from Air Malta to the effect that no unaccompanied bag did travel to Frankfurt carrying an interline tag showing the ultimate destination of New York. For reasons a British lawyer finds extraordinary, Chief Judge Platt chose to exclude that evidence from the consideration of the Jury in the New York civil damages trial.

Even if that evidence is disregarded, it has always seemed to me inherently improbable that sophisticated terrorists would adopt a method which required an unaccompanied bag containing a bomb to travel undetected through Malta Airport, then through Frankfurt and then by transfer at London Heathrow onto the Boeing 747 which was ultimately destroyed. The prospects of discovery, inadvertent detonation on some non-US flight or failure to make a connection, makes that scheme full of uncertainty. Such a plot becomes even less likely given that it is known that in late 1988 an Arab terrorist group had a bomb maker in Germany [RB: Marwan Khreesat] who had been detected fitting explosives in a radio of the same type which is said to have contained the Lockerbie bomb…

BBC renews attempt to be allowed to televise Lockerbie trial

[What follows is the text of a report headlined BBC renews bid to show Lockerbie trial that was published on the BBC News website on this date in 2000:]

The BBC has returned to court in a renewed attempt to be allowed to televise the Lockerbie bomb trial.

Last month, a judge turned down the corporation's original request saying the Libyan defendents' right to a fair trial was more important than the media's right to freedom of expression.

The BBC, which is seeking to broadcast the entire trial on the internet and show extracts on BBC news programmes, has taken its appeal against that decision to the High Court in Edinburgh.

The BBC's [counsel] Roy Martin QC has asked the panel of judges, headed by Lord Kirkwood, to overturn the judge's decision.

He told the court the Lockerbie trial was of unique interest, nationally and internationally.

He added: "It is of international significance. There is clearly very large international interest in the trial."

The BBC argues that the former Lord Advocate, Lord Hardie, was breaching the European Convention on Human Rights, which is now a part of Scottish law, by not allowing the trial to be broadcast.

Mr Martin said the BBC would ask the court to refer the matter to the judicial committee of the Privy Council to decide on the differing rights to a fair trial and to the media's freedom of expression.

The BBC contests Lord Macfadyen's ruling that witnesses at the Lockerbie trial would be affected by the presence of cameras.

The judge had said there was the risk of witnesses not attending the trial in Camp Zeist, Holland, if they knew it was being televised.

There were also concerns that witnesses would know what evidence had been given, and that some might play to the cameras.

Relatives of the people who died when the Pan Am flight 103 from Heathrow to New York blew up in the skies over Lockerbie on 21 December 1988, killing 270 people support Lord Macfadyen's decision however.

Spokesman Dr Jim Swire, who lost his daughter in the tragedy, said: "We feel in the case of this court, which does not have the power to subpoena witnesses except those living in the UK, there is a paramount need to avoid deterring witnesses from coming forward or from giving the fullest possible evidence.

"We had feared that broadcast televising of the trial might adversely affect the contribution from witnesses."

Abdelbaset Ali Mohmed Al Megrahi, 47, and Al Ali Khalifa Fhimah, 43, both deny conspiracy, murder and a breach of the 1982 Aviation Security Act.

At last month's hearing the BBC argued the Lockerbie trial, due to take place in Holland in May under Scottish legal procedures, should be televised.

The corporation's case centred on the decision by the former Lord Advocate, Lord Hardie, to allow relatives of those killed in the 1988 bombing to watch encoded pictures of the trial in four locations - Dumfries, London, New York and Washington.

The BBC said as they were physically outside the court, broadcasting had already been agreed.

But in his judgement, Lord McFadyen said there was a clear distinction between transmitting pictures to remote sites, to allow relatives to watch proceedings, and broadcasting to the general public.

[RB: The BBC’s appeal failed.]

Lawman's Lockerbie mission

[This is the headline over a report published on the BBC News website on this date in 2000. It reads as follows:]

Scotland's senior law officer has continued his efforts to reassure members of families of Lockerbie victims in the United States over the trial of two Libyans accused of the bombing.

Colin Boyd QC, the Lord Advocate, is in Washington, where he addressed 20 families in the Office for the Victims of Crime. He is going on to meet US Attorney General Janet Reno in the Justice Department.

He will be outlining to her the protocol and practice for the trial , which is due to start at Camp Zeist in the Netherlands on 3 May.

The purpose of his visit is to reassure the families that last month's resignation of the previous Lord Advocate, Lord Hardie, will not affect the prosecution.

Over the weekend he spoke to 50 families in Boston, Massachusets with the same message.  

Mr Boyd got a positive response from the president of the US families group, George Williams:

"From what I understand Colin Boyd was doing all the nuts and bolts to begin with, and that Lord Hardie was the head honcho but he was the supervisor.

"We feel that they haven't lost anything serious by losing Lord Hardie. We wish he hadn't gone, but we feel he's been replaced admirably."

Earlier, the United Nations said it had no plans to publish a controversial secret letter from its Secretary General Kofi Annan to the Libyan leader Colonel Gaddafi.

The document was written last year shortly before the two Libyans accused of the Lockerbie bombing were extradited to the Netherlands.

US President Bill Clinton has been sent an appeal from American relatives of those who died on Pan Am 103 urging him to put pressure on the UN to release the letter.

Some US relatives have claimed it contains details of a secret deal with Libya and they have written to President Clinton.

Bob Monetti, of US Families of Victims of Pan Am 103, said they want to see what is in the letter.

"It's incredibly bizarre for everybody to assure us that the letter means nothing and yet not to show it to us," he said.

Mr Boyd said he had seen the letter and would have no problems if it was published.

The contents of the secret UN letter would not prejudice the trial of the Libyans, due to start on 3 May.  

"I have seen the letter in the past few days, together with the annexe which is referred to in it," he said.

"Neither the letter nor the annexe in any way inhibits my responsibility, which is to prosecute and bring evidence in the case.

"I told the relatives that if it were to be published I would have no difficulty at all with that."

However, a spokesman for the UN secretary general told BBC Scotland that the letter was a private communication between Kofi Annan and a head of state and would not be made public.

Dewar acts to calm anger as Lockerbie prosecutor quits

Circumstances precluded my posting on this blog yesterday (Thursday, 18 February 2016). What follows is what I would have posted had it been possible.

[This is the headline over a report by Gerard Seenan in The Guardian on this date in 2000. It reads as follows:]

Scotland's first minister, Donald Dewar, yesterday moved to allay fears that the prosecution of the Lockerbie bomb suspects was in disarray by quickly nominating a replacement for the man who had been due to lead the prosecution team.

In less than six weeks, Lord Hardie, the lord advocate, Scotland's senior law officer, was supposed to lead the prosecution against the two Libyan suspects at Kamp van Zeist, in the Netherlands. But he quit late on Wednesday - and appointed himself a judge.

The move prompted accusations that Lord Hardie had left the families of the Lockerbie victims in the lurch, and led opposition politicians to call for an immediate review of the way judges are appointed, particularly the notion of self-appointment.

During an angry exchange at first minister's questions, the Scottish National party leader, Alex Salmond, accused Lord Hardie of letting Scotland down in the eyes of the world. Mr Dewar dismissed this as "over-dramatic".

By yesterday morning there was growing concern north of the border that Lord Hardie's decision would leave a vacuum at the heart of the case against the Libyan suspects.

The Scottish executive denied the departure would affect the trial and Mr Dewar announced he was recommending to the Queen that Colin Boyd, the solicitor general for Scotland, should become the new lord advocate.

Mr Boyd has played a prominent role in the Lockerbie case, appearing in person for the prosecution at some of the pre-trial hearings in Edinburgh and the Netherlands.

Roseanna Cunningham, the shadow justice minister, said many people felt let down by Lord Hardie's departure. "He has been responsible for key decisions in the Lockerbie prosecution, and the least he could have done was see this very important trial through to a close," she said.

Families of those who lost their lives in the Lockerbie bombing said they were appalled by Lord Hardie's decision. Susan Cohen, from New Jersey, in the US, who lost her daughter Theodora, said: "I am appalled and amazed at a moment like this, that the lord advocate just decides to leave."

Lord Hardie recently came under fire over his role in the appointment of Scottish judges after a high court ruling that using temporary sheriffs was in breach of the European convention on human rights.

After the SNP claimed Lord Hardie had mishandled the incorporation of the convention into Scots law, the Scottish justice minister, Jim Wallace, gave Lord Hardie his backing.

22 September 1998 was quite eventful

[On this date in 1998, the prosecution team for the Lockerbie trial was announced. The press release reads as follows:]

The Lord Advocate, Lord Hardie has announced the composition of the team of counsel involved in the preparation for and conduct of the trial in the Netherlands of the accused in the Lockerbie case. The selection and appointments were made by the Lord Advocate in the course of the last few weeks and were confirmed yesterday when the team met for the first time at the Crown Office, Edinburgh.

The Lord Advocate will lead the prosecution team at the trial and will attend as required. Colin Boyd QC, the Solicitor General will be responsible for the overall supervision of the team during the preparation of the case.

The team members are: Alastair Campbell, QC (49), Home Advocate Depute; Alan Turnbull, QC (40); and Jonathan Lake (31), Advocate. A fourth advocate has also accepted the appointment but for professional reasons is not being named at present. [RB: The fourth member of the team was Morag Armstrong, Advocate.]

Alastair Campbell will lead the team in the absence of the Lord Advocate. Both Mr Campbell and Mr Turnbull who is a former Advocate Depute have considerable experience of preparing for and conducting major trials

The Lord Advocate said:

"In selecting the team of prosecution counsel for this trial, I considered the particular strengths of the counsel appointed by me. I am confident that the individual members of the team will complement each other and I am delighted that they were able to accept instructions to appear on behalf of the Crown in this case.

"A site has been identified for the trial and the prosecution team has now been appointed. All that remains is for Libya to comply with the United Nations Security Council Resolution and to deliver the accused for trial in the Netherlands.

"I hope that occurs soon so that the trial may commence at the earliest opportunity".

The team, which also includes senior Crown Office officials, has already commenced preparation for the trial. To enable Mr Cambell to concentrate on the case full time, he will resign as Home Advocate Depute with effect from 30 September 1998.

[On the same day, Dr Jim Swire and I were meeting Colonel Gaddafi. Here is what I wrote about this some years ago:]

On 22 September [1998] 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.  We drove most of the way in the usual government black Mercedes, transferring into a 4 x 4 only for the last few off-road miles.  When at the tent nothing could be seen but sand and sky; but out of sight just beyond the nearest dunes was a lengthy convoy of communications vehicles, ambulances, canteen vehicles and troop carriers. 

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. 

Incidentally, this meeting with Gaddafi was held on the day that President Clinton's videotaped grand jury testimony regarding his relationship with Monica Lewinsky was televised.  In the course of the pleasantries that took place before we all got down to business, Gaddafi informed us that he had spent the morning watching the President's performance on CNN television.  What most shocked him, he said, was the revelation that on some occasions while Miss Lewinsky was dutifully serving her President, the latter was speaking to foreign Heads of State on the telephone. 

The legal warrant for the Lockerbie trial

[It was on this date in 1998 that the legal instrument that allowed the Lockerbie trial at Camp Zeist to take place was laid before the UK Parliament. What follows is excerpted from an article by me entitled The Lockerbie Disaster that was published in the Edinburgh Law Review in January 1999:]

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 SLT (News) 9 by Lord Hardie, a response by the Lord Advocate to the present writer's "The Lockerbie Proposal" 1997 SLT (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."

In order to give effect to this change in policy, an Agreement was concluded on 18 September 1998 between the Government of the Kingdom of the Netherlands and the Government of the United Kingdom regulating the sitting of the Scottish Court in the Netherlands; and an Order in Council (The High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998, SI 1998 No 2251) was made on 16 September 1998 and laid before Parliament on 17 September, to confer the necessary legal authority for Scottish criminal proceedings against the two Libyan suspects to be conducted in the Netherlands. The scheme set out in these two documents differs from the January 1994 proposal in only two respects. First, the court is to consist of a bench of three Lords Commissioners of Justiciary (with a fourth who is to sit with the court, participate in all its deliberations, but to have no vote in any decision required to be taken unless one of the three dies or is absent for a prolonged period) as distinct from an international panel of judges chaired by a Lord Commissioner of Justiciary. Secondly, any appeal arising out of the proceedings is (where either of the accused is entitled to attend the appeal and intimates that he wishes to do so) to be heard in the Netherlands by a bench of five Lords Commissioners of Justiciary and not (as provided for in the January 1994 proposal) by three judges sitting in the Court of Criminal Appeal in Edinburgh in the usual way.

In the weeks since the announcement of the British and American change of heart there have been conflicting signals from Libyan sources regarding the acceptability or otherwise of the scheme. However, at meetings which the writer had between 20 and 22 September 1998 with Libyan government ministers (including Colonel Gaddafi) and with the new team of Libyan lawyers representing the suspects, he formed the clear impression that, provided certain clarifications of the details of the scheme were provided and reassurances as to its meaning and implications supplied, the suspects would surrender themselves for trial. But it may take some considerable time for these clarifications and reassurances to be obtained, largely because the Governments of the United Kingdom, the United States and the Netherlands refuse to negotiate or communicate directly with either the Libyan Government or the Libyan defence lawyers. They insist that all communications be channelled through the office of the Secretary-General of the United Nations. As far as the Libyans are concerned, however, what remain to be resolved are modalities or practicalities: the principle has been accepted, as have all but a few of the details. The odds in favour of the trial actually happening are good.

World Court Lockerbie case dropped

[What follows is excerpted from a document to be found on The Hague Justice Portal:]

On 10 September 2003, after more than ten years of proceedings before the International Court of Justice (ICJ), the disputes between Libya and both the United Kingdom and the United States concerning the extradition of two Libyan citizens were removed from the Court’s List following the Parties’ withdrawal from the proceedings. (...)

By two letters of 9 September 2003, the Governments of Libya and the United Kingdom on the one hand, and of Libya and the United States of America on the other, notified the Court that they had "agreed to discontinue with prejudice the proceedings".

Following those notifications, on 10 September 2003 the President of the Court, Judge Shi, made an Order in each case placing on record the discontinuance of the proceedings with prejudice, by agreement of the Parties, and directing the removal of the case from the Court’s List.

In the meantime, Libya had agreed that the two accused, Abdelbaset Ali Mohmed Al Megrahi and Ali Amin Khalifa Fhimah, be tried by five Scottish Judges sitting in a neutral Court, in the Netherlands. Abdelbaset Ali Mohmed Al Megrahi was found guilty on 31 January 2001. He was convicted of 270 counts of murder for his part in the bombing of Pan Am Flight 103 and sentenced to life imprisonment. His co-accused, Al Amin Khalifa Fhimah was found not guilty and released.

[Here is what I have previously written about this chapter in the Lockerbie affair:]

[This] 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!