THE LOCKERBIE DISASTER
QC, FRSA, FRSE
Professor of Scots Law
University of Edinburgh.
A. THE EVENT
On Wednesday, 21 December 1988 at 7.03 p.m. GMT, a Boeing 747 airliner owned and operated by PanAmerican International Airlines and cruising at 31,000 feet exploded above the small Scottish border town of Lockerbie (population 2600). Pan Am Flight 103 had taken off from London Heathrow and was en route to JFK Airport in New York. Aboard the aircraft were 243 passengers and a crew of sixteen. None survived. Debris from the explosion demolished a small street of privately-owned detached houses, and 11 townspeople were killed instantly.
B. THE INVESTIGATION
Within a week it had become apparent to the joint team of British and American investigators that the occurrence was no accident, and that the cause of the destruction of the aircraft had been a bomb. There then followed the most extensive criminal investigation ever conducted in Scotland -- or, it seems probable, anywhere else -- into an act of terrorism. The investigation was under the control of the local police force (the Dumfries and Galloway police) -- the smallest force in Scotland. Also closely involved in the investigation were other United Kingdom police forces and personnel from the British, United States and West German intelligence services.
Around and to the south of Lockerbie some 845 square miles of land were combed for debris. Over a period of several years more than 15,000 people were questioned; information and evidence were sought in more than thirty different countries. The aircraft had been some thirty minutes late in leaving Heathrow. Had it been on schedule, the bomb would have detonated over the Atlantic Ocean, sparing the town of Lockerbie but making investigation of the incident and recovery of physical evidence very much more difficult.
In mid-1990 it was reported that sources within the US Central Intelligence Agency were indicating that the evidence pointed towards the atrocity's having been committed by Ahmed Jibril's Syrian-backed Popular Front for the Liberation of Palestine--General Command (PFLP-GC). The theory was that this group had been commissioned and paid by Ayatollah Khomeini to destroy an American airliner in revenge for the shooting down of an Iranian Airbus containing pilgrims to Mecca in the Persian Gulf in July 1988 by the USS Vincennes.
C. LIBYA ENTERS THE FRAME
From the foregoing it will be appreciated that it came a something of a surprise when on 14 November 1991 the prosecution authorities in Scotland and the United States (the Lord Advocate and the Attorney-General of the United States respectively), simultaneously announced that they had brought criminal charges against two named Libyan nationals (Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhima) who were alleged to be members, and to have been acting throughout as agents, of the Libyan intelligence service.
According to the Scottish and American prosecutors, what had happened was this. The two Libyans had manufactured a bomb using a Toshiba cassette recorder, Semtex explosive and a digital electric timer (supplied and manufactured by a Swiss company, MeBo AG). The device had been placed in a brown Samsonite suitcase in Malta, along with items of clothing purchased for the purpose from various shops in Malta. Using stolen Air Malta luggage tags, the Libyans (one of whom had occupied the post of station manager for Libyan Arab Airlines in Malta) introduced the suitcase into Luqa Airport's inter-airline baggage system as unaccompanied luggage on Air Malta Flight KM 180 from Malta to Frankfurt, with directions for its onward transmission (first) onto Pan Am Flight 103A to Heathrow and (second) onto Pan Am Flight 103 from Heathrow to JFK in New York.
In passing, it is perhaps worthwhile to point out that, although the baggage handling records for Luqa, Frankfurt and Heathrow are extant and ex facie complete for the relevant period, there appears to be no documentary or computerised record that any piece of unaccompanied baggage went on flight KM 180 to Frankfurt or on Flight PA 103A from Frankfurt to Heathrow or was transferred therefrom to Flight 103 to New York. In December 1993 Air Malta accepted substantial damages from Granada Television in settlement of a libel action raised by the airline in the English courts in respect of a dramatised documentary programme on the Lockerbie disaster which had portrayed the suitcase containing the bomb commencing its fatal progress by being loaded onto an Air Malta flight to Frankfurt.
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.
D. UNITED NATIONS INTERVENTION
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.
E. THE INTERNATIONAL COURT OF JUSTICE
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 (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.
F. THE ATTITUDE OF THE DEFENCE
In October 1993 an international team of lawyers appointed to represent the two Libyan accused met in Tripoli. This team consisted of lawyers from Scotland, England, Malta, Switzerland and the United States and was chaired by the principal Libyan lawyer for the accused, Dr Ibrahim Legwell. A press release issued at the conclusion of the meeting indicated that the accused were not prepared to surrender themselves for trial in either Scotland or the United States. It subsequently transpired that the primary reason for this was their belief that, because of unprecedented pre-trial publicity over the years, neither a Scottish nor an American jury could possibly bring to their consideration of the evidence the degree of impartiality and open-mindedness that accused persons are entitled to expect and that a fair trial demands. The attitude of the Libyan Government was that it was satisfied (in part due to the information and advice supplied to it by the present writer regarding the Scottish law of criminal evidence and procedure) that its citizens would obtain a fair trial in Scotland, but that it had no constitutional authority to hand them over to the Scottish authorities. The question of voluntary surrender for trial was one for the accused and their legal advisers, and while the Libyan Government would place no obstacles in the path of, and indeed would welcome, such a course of action, there was nothing that it could lawfully do to achieve it.
G. AN ATTEMPT TO RESOLVE THE IMPASSE
On 10 January 1994 the present writer visited Tripoli for a second time and, in a letter to Dr Legwell, suggested a means of resolving the impasse created by the insistence of the Governments of the United Kingdom and United States that the accused be surrendered for trial in Scotland or America and the adamant refusal of the accused to submit themselves to trial by jury in either of these countries. The proposal embodied the following five elements:
Although not expressly stated in the proposal, it was the clear implication of its provisions that, in the event of the accused being convicted by the Court, they would serve any sentence of imprisonment imposed upon them in a prison in Scotland.
In a letter to the writer dated 12 January 1994, Dr Legwell stated that this scheme was wholly acceptable to his clients, and if it were implemented by the Government of the United Kingdom the suspects would voluntarily surrender themselves for trial before a tribunal so constituted. By a letter of the same date the Deputy Foreign Minister of Libya stated that his Government would place no obstacle in the path of its two citizens should they elect to submit to trial under this scheme.
H. THE UK GOVERNMENT’S INITIAL ATTITUDE
For the first four years and seven months that this "neutral venue" proposal lay on the table, successive Lord Advocates and British Foreign Secretaries resolutely refused to countenance it. During this period the British Government's stance remained consistent: United Nations Security Council Resolutions placed upon the Government of Libya a binding international legal obligation to hand over the accused for trial to the UK or the US authorities. With this obligation they were bound to comply. Nothing else would do. If Libyan law did not currently permit the extradition of its own nationals to stand trial overseas, then Libya should simply alter its law (and, if necessary, its Constitution) to enable it to fulfil its international duty.
While this remained the official British Government attitude, the question that cried out to be asked was whether that Government genuinely believed that the principle of having a trial within the geographical boundaries of Scotland was of such overriding and transcendent importance that if it could not be achieved it would be better for there be no trial at all, even one which satisfied the five conditions enumerated above. Was it truly the policy of Her Majesty's Government that the location of the trial was a matter of greater moment than that there should be a trial at all? If so, then the writer's belief was that the Government had a woefully distorted set of priorities.
I. THE OBJECTIONS TO THE PROPOSAL
Over the years British Government sources put forward six specific objections to the proposal. These are set out below, along with the answers to them.
The proposal to set up a non-jury court applying Scottish criminal law and procedure but sitting outside Scotland carried the implication that a fair trial could not be obtained in Scotland and thus cast an unwarranted slur on the Scottish system of criminal justice.
The only feature of the Scottish criminal justice system that those representing the Libyan accused have stated that they find unacceptable is the role played in it by the jury. Each and every other facet of Scottish solemn criminal procedure is acceptable to them. They contend that in a case which has already received unprecedented publicity in the media (including widespread dissemination of photographs of the accused) and which would undoubtedly generate further journalistic frenzy once the accused surrendered themselves for trial, it would be impossible to find a jury of fifteen people who could bring to the task of assessing the evidence against the accused, minds which were unaffected or uninfluenced by pre-trial publicity. It is submitted that to hold, to express and to act upon such a view involves no slur on the Scottish system of criminal justice, but is simply a recognition of the liability of human beings to be influenced, consciously or unconsciously, by the deluge of information and speculation that has over many years accompanied this case.
The conviction of the British nanny, Louise Woodward, in 1997 by a jury in Massachusetts gave rise to much popular concern in both Britain and the United States about the ability of that jury to return a just verdict, solely on the evidence led in the courtroom, in a case which had been the subject of so much pre-trial publicity and in respect of which such strong and conflicting feelings had been aroused in the public before the trial even started. Similar concerns were surely not self-evidently baseless in the case of those accused of the Lockerbie bombing, particularly in view of the fact that Scottish criminal procedure, unlike that in United States, prohibits the questioning of potential jurors with a view to excluding from service any who might have been influenced by what they had seen, heard or read in the media before the commencement of the trial.
There would be formidable technical difficulties in implementing the proposal to set up a non-jury court applying Scottish criminal law and Scottish rules of criminal procedure and evidence, but sitting outside Scotland, for example in The Hague.
The writer has from the outset accepted that implementation of the proposal would require legislation in the United Kingdom: as the law stands at present, a Scottish High Court judge has no authority to preside over a tribunal sitting outside Scotland, nor are Scottish prison governors entitled to incarcerate in their institutions persons other than those committed by the warrant of a duly-constituted UK court. However, he has always submitted that the British Government could not realistically contend:
That none of these matters has ever given rise to an insuperable (or indeed any real) problem is corroborated by the Agreement Between the Government of the Kingdom of The Netherlands and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning a Scottish Trial in The Netherlands concluded in September 1998 and the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 (SI 1998 No 2251), as to which see paragraph 10, below.
The fact that the proposal for a "neutral venue" Scottish court provided that the court should sit without a jury rendered it unacceptable in principle.
This objection gives rise to, and can be addressed in, two questions:
The Government of the United States would (or might) refuse to make essential evidence which is in its possession available to a "neutral venue" Scottish court.
1. The Criminal Justice (International Co-operation) Act 1990, section 3, provides a mechanism whereby evidence not already in the hands of the prosecutor (including documents and articles) may be obtained by invoking, through "letter of request" procedure, the aid of a court having jurisdiction in the country in which the evidence is located.
2. The Criminal Procedure (Scotland) Act 1995, section 273, makes provision for evidence to be given by witnesses who are outside the United Kingdom through the medium of a live television link. The procedure involves invoking, again by means of a "letter of request", the aid of a court having jurisdiction in the country in which the witness is resident.
It is difficult to believe that the British Government could ever seriously have intended to suggest (a) that a court in the United States would not respond to such letters of request from the Lord Advocate or from the judge of the High Court of Justiciary appointed to preside over the "neutral venue" court or (b) that the US Government has either the constitutional authority or the desire to impede the courts of the United States in responding to such letters of request.
Accused persons should not be allowed to choose (or to have any say in) where they will stand trial.
This supposed principle had been honoured in the breach at least since the time of the passing of UN Security Council Resolutions 731 and 748 which imposed upon the Libyan Government an obligation to hand over the accused for trial either in the United Kingdom or in the United States. The choice between these venues has from the outset rested with the Libyans. It has accordingly always been difficult to apprehend just what principle would be infringed by allowing the Libyans a third option (one which they had indicated in writing that they would accept), namely that the trial be held before a court applying Scottish law and procedure, presided over by a Scottish judge, but sitting outside the boundaries of Scotland.
There is no guarantee that if the British Government went to the trouble of setting up a "neutral venue" Scottish court the two Libyan accused would surrender themselves for trial before it.
In his letter to the present writer dated 12 January 1994, Dr Legwell, the then head of the legal team representing the accused, clearly and unequivocally stated that his clients would surrender themselves for trial before such a court. On 15 January 1998 in the course of the television programme Words with Wark broadcast by BBC Scotland, this assurance was repeated by Mr Alistair Duff, the Edinburgh solicitor-advocate who has for a number of years been the Scottish legal representative of the two accused. And at a meeting held in Tripoli on 18 April 1998, Dr Legwell confirmed to the writer that the attitude of his clients remained the same: if such a court were established they would stand trial before it. As far as the Libyan Government is concerned there had (until the events narrated in paragraph 10, below) been no indication of any change of attitude from that expressed in the Deputy Foreign Minister's letter of 12 January 1994, namely that the Government would place no obstacle in the path of any surrender by its citizens for trial before such a tribunal. Moreover, during the visit by South Africa's President Nelson Mandela to Tripoli in October 1997 en route to the Commonwealth Heads of Government Meeting held in Edinburgh, Colonel Gaddafi confirmed that this remained the stance of the Libyan Government. That it continued to be the position of the Libyan Government that it would welcome the setting up of such a court, that it would permit its two citizens to stand trial before it, and that it would co-operate in arrangements for that purpose was confirmed in a press release issued in Libya on 20 April 1998 following a meeting between the writer and Colonel Gaddafi. It has always, of course, been possible that the two accused might change their minds about voluntarily submitting themselves for trial (or, indeed, might change their legal advisers for others whose advice regarding surrender for trial was different). But it is submitted that this was never really a sufficient reason for the British Government's rejection of the "neutral venue" proposal and consequent failure to put the good faith of the Libyans to the test.
J. THE GOVERNMENT VOLTE-FACE
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.
K. WILL IT HAPPEN?
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.
It has always been the writer's firmly held view that the ordinary Scottish system of criminal justice was eminently capable of providing a fair trial to those accused of the Lockerbie bombing. However, those responsible for advising the accused, including Scottish lawyers of great experience and unimpeachable integrity, were of a different opinion. Their attitude was that it would not be possible to find in Scotland a jury of fifteen people who could be relied upon to reach a verdict in respect of the accused on the basis only of the evidence led in court and without being influenced by pre-trial publicity and media speculation about the atrocity. It was in order to address these, not obviously fanciful, concerns that the present writer in 1994 formulated the scheme which has been outlined above for the trial to be held before a non-jury court applying Scottish criminal law and the rules of Scottish criminal procedure and evidence. He always accepted that this proposal represented a second-best option, and that trial in Scotland under ordinary Scots criminal procedure would be preferable. His case was simply that such a trial was never going to happen and that the second-best alternative was not so deficient and so objectionable that the British Government was justified in rejecting it out-of-hand, which was the steadfast official attitude until August 1998.
Since November 1991 it has been the contention of the Scottish and the American prosecution authorities that they have evidence which is amply sufficient to justify the charges that they have levelled against the accused. Until the British Government's belated acceptance of the "neutral venue" scheme it appeared that that evidence would never be led in open court and would never be subjected to the impartial scrutiny of a judicial tribunal. That would have been a tragedy, not only for the families of the victims thereby deprived of the best opportunity of discovering where the truth lay in relation to responsibility for the deaths of their loved ones, but also for the Governments of the United Kingdom and the United States, whose obstructionism could readily be (and was being) attributed to a recognition by them of the weakness of the case against the Libyan accused and a consequent desire on their part to avoid embarrassment by ensuring that the evidence was never exposed to the light of day. The writer was always reluctant to believe that any such improper and oblique considerations motivated the policy of the UK Government in this tragic affair and is happy that his notorious propensity always to think the best of everyone has in this instance seemingly proved not to be misplaced.
On 15 December 1998, following a meeting some ten days earlier between Colonel Gaddafi and Kofi Annan, the Libyan People's Congress (the highest legislative and policy-making body under the Libyan Constitution) at a session held in Sirte announced that it approved the proposal for a neutral country trial and adjured all three interested governments, namely Libya, the United Kingdom and the United States, to take the necessary steps to remove all remaining obstacles to the occurrence of the trial. This may properly be regarded as a significant advance since the People's Congress has, since the formulation of the "neutral venue" proposal in January 1994, traditionally taken a noticeably harder line over the issue of the surrender of the suspects for trial than that adopted by either the Libyan government or the Libyan defence team. The principal remaining "obstacle" is the issue of where, if convicted, the accused should serve any sentence of imprisonment. Britain and the United States insist that this should be in Scotland and not in either the Netherlands or Libya itself. Since this is not a matter which has ever been raised by the defence team as of concern to themselves or their clients, but rather is one raised only, and at a relatively late juncture, by the Libyan government, it is the writer's reasonably confident view that it will not constitute an ultimately fatal stumbling block. His expectation is that the suspects will surrender themselves for trial in the Netherlands soon after the end of the holy month of Ramadan in January 1999.
Robert Black QC
Professor of Scots Law
University of Edinburgh
(1999) 3 Edinburgh Law Review 85-95.