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Lockerbie: The Other Case

Published online by Cambridge University Press:  17 January 2008

Anthony Aust
Anthony Aust
Affiliation:
Legal Counsellor, Foreign and Commonwealth Office, London, and Legal Adviser to the UK Mission to the United Nations, New York, 1988–1991. The author has been legal adviser to the FCO department dealing with counter-terrorism since 1991 and is Deputy-Agent for the UK in the ICJ case. He wishes to thank others closely involved with Lockerbie who were kind enough to read the article in draft. Needless to say, the views expressed do not necessarily represent those of the British Government.
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Extract

To public international lawyers “Lockerbie” is more than likely to evoke the cases which Libya brought in the International Court of Justice in 1992 against the United Kingdom1 and the United States under the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 1971.2 The issues raised by the cases have spawned a huge literature. But, in truth, the ICJ proceedings have never been at the centre of, what might be called, the Lockerbie affair. Although they raise important constitutional issues for the United Nations, in terms of the crime committed—the sabotage of the Boeing 747 airliner on flight PA103 which exploded over Lockerbie in Scotland on 21 December 1988 killing 270 people—the ICJ proceedings have never been more than a sideshow; or as that word was once, aptly for the present case, denned in The Times crossword, an incidental skirmish. The real story is how international action, and in particular the ingenious use of international law, was successful in achieving the appearance of the accused for trial before a Scottish court sitting in the Netherlands. This example of what can be achieved in the cause of justice by legal inventiveness, imaginative diplomacy and sheer persistence, should be properly recorded.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 49 , Issue 2 , April 2000 , pp. 278 - 296
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom). For the Order on the Libyan Request for Provisional Measures, see ICJ Rep. 1992, 3, and Beveridge, F., “The Lockerbie Affair” (1992) I.C.L.Q. 907CrossRefGoogle Scholar. For the judgment of the ICJ on the United Kingdom's Preliminary Objections (UKPOs), see ICJ Rep. 1998, 9, and Beveridge, F., “The Lockerbie Cases”, (1999) I.C.L.Q. 658CrossRefGoogle Scholar. The judgment and pleadings are available on the ICJ's Website (http://www.icj-cij.org). The counter-memorial was submitted in Mar. 1999 and the reply by Libya is due by 29 Jun. 2000. The court has not decided on the subsequent procedure.

2. 974 UNTS 177 (Reg. No.14118); UKTS (1974) 10.

3. A summary is in the UKPOs at paras.2.36–2.42.

4. The statement was before the ICJ for the Provisional Measures and Preliminary Objections hearings but, at the request of the United Kingdom, the ICJ has decided that, in order to avoid any risk of prejudicing the trial of the accused, it should remain confidential for the time being.

5. S/23221.

6. S/23226.

7. S/23308.

8. S/23306.

9. S/1999/726, para.18. And see p.296 below.

10. See Guillaume, G., “Terrorisme et Droit”, Recueil des Cours (1989) Vol.215, pp.287–416.Google Scholar

11. See, e.g., Resolutions 286(1970) and 579(1985) and the statements in S/17554, S/17702 and S/18641.

12. UN press release SC/5057.

13. ILM (1991), p.726.

14. Resolution 2625 (XXV); ILM (1970), p.1292. Emphasis added. See also the statement of the President of the Security Council on 31 Jan. 1992 at the conclusion of the meeting of the Council held at the level of Heads of State and Government (S/23500).

15. For details, see UKPOs, paras.2.15–2.27.

16. In 1991 the Libyan Police Syndicate sent a cheque for £250,000 to the United Kingdom Police Dependants Trust, which the latter declined. See also p.296 below.

17. S/23918.

18. UKPOs. para.2.25.

19. S/23226.

20. S/23306, S/23307 and S/23308.

21. A/46/840 and A/46/840 Corr.1.

22. S/23396.

23. S/23574 and S/23672.

24. ICJ Rep. 1992, 3; ILM (1992), p.662. In Lockerbie (Libya v. United Kingdom) (Preliminary Objections), ICJ Rep. 1998, 9, the court found that it had jurisdiction.

25. S/24209.

26. S/26859.

27. S/1994/900.

28. See PCNICC/1999/INF/3; ILM (1998), p.999.

29. S/26859.

30. S/26500.

31. But not published.

32. S/26523 and S/26629.

33. S/1995/226.

34. S/1997/1991.

35. S/1994/373, S/1995/834, S/1997/35, S/1997/273, S/1997/406, S/1997/497 and S/1997/529.

36. In view of the fact that the initiative was a joint UK–US enterprise, the US Government has agreed to pay a substantial part of the cost of holding the trial in the Netherlands.

37. If a Bill would affect particular private interests in a manner different from the private interests of other persons of the same category or class, the normal parliamentary process it supplemented by a procedure in which those who might be affected can object to the Bill and bring evidence in support of their objection: see Erskine May (1999 Edn), pp.554–560.

38. For the text of the draft, see S/1998/795 (Annex I). For the Order, see S.I. 1998 No.2251 (ILM (1999), p.942).

39. S/1994/848 and Corr.1.

40. For the draft text see S/1998/795 (Annex II). For the final text, see UKTS (1999) 43; ILM (1999), p.926.

41. See UKTS (1999) 43, p.18.

42. 359 UNTS 273; UKTS (1991) 97.

43. 1137 UNTS 93; UKTS (1978) 93.

44. S/1998/795.

45. See Art.8 of the European Convention on Mutual Assistance in Criminal Matters 1959 (UKTS (1992) 24).

46. See Klabbers, J., “The New Dutch Law on the Approval of Treaties” (1995) I.C.L.Q. 629, at p.632.Google Scholar

47. See p.283 above.

48. See S/1997/529, para.6.

49. S/1998/795.

50. The text of the resolution, and of the letter, is annexed to the signed Agreement: see UKTS (1999) 43, at pp.14 and 16.

51. For a brief account of how the Security Council actually works, see Aust, A., “The Procedure and Practice of the Security Council Today”, in Development of the Role of the Security Council (Hague Academy Workshop 1992)Google Scholar; Wood, M., “The Interpretation of Security Council Resolutions”, in Max Planck Yearbook of United Nations Law (1998), pp.73–95.Google Scholar

52. The initial term of one year (see n.46 above) has been extended.

53. S.65 of the Criminal Procedure (Scotland) Act 1995.

54. The aircraft was provided to the UN by the Government of Italy. Since the UN Secretariat had to be ready to carry out the transfer at short notice, the arrangements had to be made in good time. Mr Corell visited Italy and The Netherlands in early Nov. 1998, and the necessary arrangements were in place by mid-November.

55. See S/PRST/1999/10.

56. SG/SM 6913.

57. S/1999/311.

58. S/1999/378 (ILM (1999), p.939).

59. See S/PRST/1999/10 confirming the suspension of sanctions as from 5 Apr. 1999.

60. S/1999/726, paras.25–6.

61. S/1999/1183.

62. http://www.law.gla.ac.uk/lockerbie/headline.htm.

63. S/1999/378; UN press release SC/6662.

64. See para.l of Resolution 748 and document S/23308.

65. S/1999/726, para.18. Under French law if a person convicted in absentia is later apprehended, a full trial must be held.

66. See n.16 above.