The Lockerbie Legality
What went wrong in international criminal law?
The Lockerbie Legality
What went wrong in international criminal law ?
This paper has the principal aim to investigate the legal problems of international criminal law in connection with the so-called Lockerbie-case. In order to do so I have mainly chosen to approach the subject by these points:
1. to describe and analyze the legal opinions of the 3 parts involved in the Lockerbie-case,2. to analyze the legal grounds and interpretations of the Security Council's resolutions regarding this case3. to propose an alternative solution for the Lockerbie Case based on the findings of points 1-2 with the purpose of rendering international criminal law more legal effective and less political motivated
This paper may be described as falling into the category of penal legislation and its procedures insofar as it provides a logical description of present legal institutions and rulings and the effects of the law in connection with international criminal matters. Since the laws which have been subjected to analysis are partly governed by international laws and treaties, my study may also be described as a study of international law.
2, Methods and structure:
The design of my study is somewhat complicated because its aims vary, and are at some points interwoven. The Lockerbie case presents a genuine case of both simple criminal procedure according to general rules in international criminal laws, and at the same time strong indications of a political involvement and involvement of tools, normally only used in political, international affairs. How should one analyze the Lockerbie-case ?
The mere use of traditional legal schemes for investigation of international criminal laws would not result in a full analysis of the problems in this case. It wouldn't be enough to explain the present conclusion of the Lockerbie-case by the mere use of traditional legal investigations.
Therefore I needed to involve certain aspects of international law, such as the International Court of Justice and the UN Security Council, not because I wanted to personally, but because these aspects were brought into the case by the 3 involved parts themselves. Since political motivation is the basis of most international treaties as well as the driving factor behind the incitement of the UN charter and the founding and exercise of the UN Security Council, one cannot look away from these aspects, when analyzing the use and the legal motives of the UN SC-sanctions in connection to this case.
Since the objects of the Lockerbie-case are two Libyan citizens and the case originally was presented as an extradition-case, I have chosen to investigate the Libyan, British and American legislation of extradition in connection with that particular case; the Lockerbie-case. In order to understand the 3 involved parts legal intentions in the case I have also investigated some of their legal beliefs in international laws in general, as well as having investigated their choice of legal procedures both in criminal procedures and in international procedures.
To obtain some of the actual facts of the case has almost been impossible. I have been forced to base my study on second-hand information, provided by the involved parts in the case. The case is also somewhat obscure, involving evidence, kept secret by 2 of the involved parts, as well as a great deal of uncertainty of the actual events leading to the extradition claim and the first court orders. Some of my information-material contains both informal and also legal contradictions.
I have chosen to discard the information, that are contradictional, and have only investigated material, which a majority of present researches have agreed upon, but in my discussion I have, of course, taken up those opinions that could shed some new light on the case, though they may be diverting from consensus.
My methodology is preliminary build up on logical induction and separating of found observations. In some places I have tried to analyze the essence of some legal paradigms in connection with international criminal law.
My approach into international criminal law has not been quantitative, since I wanted to look at one specific case i.e. the Lockerbie-case, but all quantitative study are composed of qualitative studies, and I think, this particular case is a good example of some of the main problems in international criminal law today.
Seeing the Lockerbie-case as a qualitative study of international criminal law demands a certain broadness of legal theories and investigations as well as legal depth at the same time. I should say I have managed to achieve both in my study.
3, The Lockerbie Case:
3.1, The incident
On 21st December 1988 a Pan American aircraft (flight 103) fell on the village of Lockerbie, Scotland, killing the 259 people aboard and 11 people on the ground, as well as damaging several residential buildings.
Investigations by a flight-commission found, that the crash was due to an intentional bomb aboard the plane. The bomb was in the luggage compartment.
It was asserted that the luggage was coming from direct passengers boarding in Frankfurt, as well as from some possible suitcases transferred from Air Malta flight 180 to Pan Am 103 in Frankfurt Airport.
During the aftermath of the investigations, British and American governments and experts involved in the investigation began making a long series of unstable and ever-changing allegations from which it seems, few countries in the Middle East escaped uncathed. The flow of information became confused and soon the incident lost it's media-appeal, whereas only a small specialized force of investigators kept looking for a possible clue to the terrorist act.
3.2, The legal evolution of the case
On 14 November 1991, a Grand Jury of the United States District Court for the District of Columbia handed down an indictment charging two Libyan nationals Lamen Khalifa Fhima and Abdel Basset Ali al-Megrahi, and, on the same day, the Lord Advocate of Scotland announced the issue of warrants for their arrest. The accusations were conspiracy to murder, murder according to British Penal Codes and offenses under the Aviation Security Act of 1982 ss. 2(1) and 2(5), as well as accusations under the Criminal Justice Act of 1988. The warrant for arrest was distributed to the member-states of Interpol, which Libya is a member of. Due to guidelines of Interpol etc. the two Libyan citizens were sized and placed under customary arrest by the Libyan police.
At the time of the charge the two accused persons were situated in Libya, and have remained there since.
On 18 November 1991 the Libyan authorities issued a statement saying that they had received the indictment documents. A Libyan Supreme Court Justice had then been assigned to investigate the charges. Libyan judiciary declared themselves ready to cooperate with all legal authorities, according to general procedure of international criminal law.
Libya, having signed the Montreal Convention, turned to the Lord Advocate of Scotland requesting cooperation in the investigation and sought information from all related authorities, asking to review the evidence, eventually by traveling to Scotland or elsewhere, according to article 7 and 11/1. Libya received no formal answers from the Lord Advocate of Scotland.
On 27 November 1991 the governments of both the USA and the UK issued a joint declaration demanding that Libya surrender for trial those charged with the crime, accept responsibility for the actions of Libyan officials, disclose all it knows of this crime, allow full access to the evidence and pay appropriate compensation. At this date, the USA and the UK were already working on the preamble for a resolution in the UN Security Council.
On 17 January 1992 Libya addressed the UK and the USA in two letters, reminding them of the Montreal convention, the general rule of jurisdiction in case of claims to extradite nationals, as well as asking for arbitration according to Article 14/1 of the Montreal Convention.
On 21 January 1992 the UN Security Council adopted resolution 731/1992 calling on Libya to cooperate in the implementation of the provisions of that resolution and to commit itself to renounce and condemn terrorism. The resolution was based on the British and American demands put forward on the 27.11.1991. However, the resolution did not oblige Libya to extradite the two national suspects. Libya declared, that it had fully cooperated in the case according to international jurisdictions, thus already having fulfilled the demands of the resolution.
As the governments of the US and the UK failed to respond, Libya resorted on 3 March 1992 to the International Court of Justice, in implementation of article 14/1 of the Montreal Convention. The claim to the court was, that it should declare that Libya had complied with the Montreal Convention, and in addition Libya submitted a request for an order for provisional measures to protect Libya's international rights under international law in general.
During the waiting of judgment, the UN Security Council adopted another resolution no. 748/1992 the 31. March 1992. This resolution is calling for the use of economical and political sanctions against Libya, if the Libyan authorities continue to refuse extradition of the two nationals to either the USA or the UK for prosecution.
On 14 April 1992, the day before resolution 748 would come into action, the International Court of Justice declined to exercise its power to indicate provisional measures.
On the 15 April 1992 economical, political and technical sanctions were put into force by the UN against Libya, and has been renewed every 6 months since then. Sanctions consists of an air-traffic ban, financial freeze of Libyan capital abroad, breaking diplomatic contact, and other economical trade-blockades.
Libya stated later in a letter to the UN General Secretary that they had tried everything within the law to resolve its dispute with the UK and the USA, accepting either to try the two accused nationals in Libya or transferring them for trial in a 3.rd party country, having no opposition to the trial being conducted by a Scottish court applying Scottish law.
3.3, Involvement of other parties
Efforts have been made by other international bodies to solve the conflict both on a legal as well as on political level.
For instance has the Organization of African Unity OAU on 11 June 1994 adopted resolution no. 1525 (LX) and res. no. 1457 (LIIX) urging the involved parties in the conflict to settle their dispute according to international criminal law, i.e. the Montreal Convention, supporting the Libyan point of view.
The International Commission of Inquiry on Economic Sanctions, containing several former heads of states and international legal experts, issued several communiqués on the issue, latest on the 11 May 1996, which condemns the effects of the sanctions on the Libyan population, urging the involved parts to cooperate according to several international conventions.
Other alternatives were brought forward by the League of Arab States, the Inter Parliamentary Conference, as well as various other humanitarian organizations and a few persons with a deeper knowledge of international criminal law.
At present, the two Libyan nationals are still in preliminary custody in Libya, awaiting trial, and the US- and UK-governments have not ceased demanding extradition. The international economical sanctions against Libya are still in effect.
4, Legislation and claims
The Libyan Penal Code and penal procedure are more or less in their content a heritage of European continental laws, mainly French and Italian. Since 1969 there have been efforts to re-new the Penal Code in accordance with basic Islamic and traditional Libyan legislations. Libyan Penal Law may thus be seen as a mix of both basic European continental values added a few Islamic legal points.
The issue of extradition is however quite clear, and does not differ much from the attitude of other penal codes elsewhere in the world.
The criminal proceedings concerning extradition and other issues of international related criminal law are found in the Libyan Code of Criminal Procedures articles 490 to 510.
Due to article 493 section A of the Libyan Code of Criminal Procedures, Libya does reserve it's sovereign right to prosecute nationals when found on national territory, and does not extradite nationals to prosecution outside national territory. Libyan Penal Code Article 6 declares that Libya has the right to prosecute a Libyan national for crimes committed in foreign territory, if and when he returns to Libya.
I have not been able to find any precedence, that could support or differ from the contents of article 493 A and Art. 6, in Libyan jurisdiction. Thus I must assume, that there has never been any Libyan cases, where nationals have been extradited in contrary to article 493A and
Libya as a member of the Arab League has furthermore ratified the Treaty for Rendering Criminals of 1952, ratifying it on the date of 19.5.1957. Article 7 of that treaty declares that a state can choose to refuse an extradition claim from the requesting state, if the subject for extradition is a subject of that states jurisprudence, i.e. a national of the requested state. The requested state may choose to enter legal proceedings against the requested subject or choose to extradite, aut dedere aut judicare.
There are no treaties of extradition between Libya and the UK/USA, i.e. Libya is not bound by any multi- or bi-lateral treaty to extradite its citizens to the UK/USA for trial.
However, Libya is bound to some legal procedures due to another treaty:
Libya is a signatory to the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civilian Aviation, as well as Britain and the USA. Libya's legal actions in this case have been taken in accordance with that Montreal Convention and Libya continuously refers to the Montreal Convention in its legal arguing.
The legal points of those arguments are as follows:
Under the Article 5 Paragraph 2 of this Convention, the Libyan authorities assumed their responsibility for submitting the two accused to the processes of Libyan criminal law.
Under Article 6 Paragraph 1 of the Convention, the Libyan authorities took steps to ensure the presence of the two accused for the purpose of legal procedures. They were placed under custody arrest.
Under Article 7 of the Convention, the Libyan authorities carried out a preliminary inquiry into the case. Libya's legal claim and argumentation is based on the idea, that the principle aut dedere aut judicare is incorporated into Article 7. Under the Article, the state, which is having custody of an offender suspected of having violated the laws of Civil Aviation, is free to choose whether to extradite him or submitting him for national/local prosecution.
Libya is claiming, that the acts of force carried out by the USA and the UK to coerce Libya into extradition is a violation of Article 8 Paragraph 2 of the Convention.
Under Article 11 Paragraph 1, the Libyan authorities sought relevant judicial assistance from the US and the UK to take the process further.
Libya also took the point of view, that the UK and the USA were bound to cooperate with Libya and accept Libyan actions already taken, due to the article, since the article stipulates "the involved parties shall afford one another the greatest measure of assistance ... in the criminal proceedings".
Under Article 14 Paragraph 1 of the Convention, the Libyan authorities requested arbitrational measures from the UK and the USA, since the 3 involved countries disagreed upon the actual application and interpretation of the Convention.
Also partly under the same Article 14 P. 1, Libya later chose to proceed the case in front of the International Court of Justice, since the issue of arbitration was rejected by the UK/USA.
The view of the UK and the USA concerning the provision or use of Article 14 was, that Libya was not using it correct. Article 14 conditions a 6 month waiting-period, and Libya - in the view of UK and USA - had not abided this 6 month waiting period before taking the case to the ICJ. Judge Ni, one of the judges from ICJ, affirmed this point of view in his decision.
Libya's point of view into the Lockerbie-case has, until the rise of the question in front of the UN Security Council, been a mere legal point of view. Libya regarded the case as a simple criminal case interacting with the rules of international criminal law. This was exactly why Libya presented the case in front of the ICJ, and the case was presented as a conflict of legal interpretations, not as a conflict of interpretation of the UN Charter or clarification of international jurisprudence.
After the implementations of economical sanctions against Libya due to Security Council resolutions 731 and 748, Libya's legal argumentation split into two;
1) maintaining the use of the Montreal Convention to solve the case, and
2) trying to use international law (UN Charter and Statute of the international Court of Justice) to "force" the UK+USA to accept the use of the Montreal Convention in solving this case.
By raising the issue of international law, Libya went from interpretation of mere international criminal law in the context of the Lockerbie-case, to a discussion of the legal hierarchy between the International Court of Justice and the UN Security Council. In fact, Libya's claim in front of the ICJ for the first time in legal history raised the question of the legal structures in international criminal law challenging the legal powers of the UN Security Council in drafting rules for international criminal law. A similar legal challenge was presented by Bosnia in front of the ICJ 2 years later.
4.2, USA and United Kingdom/Britain
Extradition in the UK and in the USA as a general rule, follows the normative rule of extradition in the rest of the world aut dedere aut judicare. General practice in both countries is not to request nor permit extradition in the absence of a treaty.
Yet, the legal procedures show several exeptions to this rule.
Furthermore, the USA does use ways of rendering national offenders for prosecution in other countries, but in the form of legal rendition.
However there are cases in legal procedure, where USA does and does not extradite in the absence of a treaty, not making it easy to interpret any legal general rule of action.
In the case Valentine vs. US ex.-rel. Neidecker, the Supreme Court of the United States did rule, that the option to extradite does not suffice to surrender an accused national to foreign power.
But a later request from Costa Rica to extradite US citizen John Hull, charged with homicide, drugs trafficking and bombing, was denied by a US court.
In the case Rausher vs. United States, the Supreme Court of the United States explicit declares the use of extradition without a treaty "not being among those obligations of one government towards another..." and the principle of aut dedere aut judicare as "resting upon established principles of international law". This decision could indicate, that the USA recognizes the principle of aut dedere aut judicare as a rule of jus cogens. Thus USA in general would be expected to accept a refusal to extradite if the requested state prefers to prosecute instead of, and that USA would not push for any derogation of that principle, unless it has been modified by a subsequent norm of general international law having the same essence or character. Whether the USA is promoting a resolution from the UN Security Council as such a legal acceptable modification is dealer with later on.
Logically, it must be concluded that also the USA mainly relies on treaties in concern to extradition. Legally that means, that the issue of interpretation becomes an important issue in dealing with legal twists in international criminal law. Extradition in the USA is closely linked to the making of bi-lingual treaties , rather that multi-lingual conventions such as for instance the Montreal Convention. Furthermore, USA does not recognize extradition as part of customary international law, but chooses to make extradition-treaties with each separate country. The USA does not have any extradition-treaty with Libya.
Yet the USA is a signatory to the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. Both the USA and the UK are two of the main driving forces behind the making of the Montreal Convention, thus implicating that there must have been a political as well as a legal need to cope with those situations described in the contents of the convention. The underlying message of the Montreal Convention is that the mere use of bi-lingual treaties for such situations (i.e.hijacking, bomb on planes etc.) in the past have not been a sufficient way of action.
Also the UK is a signatory to the same convention, and also in the laws of the UK, extradition without the presence of a treaty is not ccepted.
The English Extradition Act of 1870 is a basis for this principle, as well as British legal procedure confirms the denial or request for extradition in the absence of a treaty. But contrary to US-legislation, British law does not specifically require a treaty, but speaks only about "arrangements", which again gives a broad range of interpretations to what kind of arrangements are accepted. Precedence to substitute the expression "arrangements" have been treaties, conventions, and a discussion of whether diplomatic correspondence would be sufficient, which was negative. Thus one must assume "arrangements" should be followed by some Order-in-Council to bring the act into force. The Montreal Convention is assumed to fall into the context of such arrangements.
The British request for the extradition of the two Libyan nationals is legally based on the Scottish HMOS's Extradition Act of 1989. Part V of that Extradition Act is dealing with extradition cases due to international cases. Part V art. 22 regards the extension of purposes of extradition for offenses under Acts giving affect to international Conventions and treaties, where the UK is a signatory. Part V art 24 deals especially with extradition in cases of terrorism, also on the international level, but throughout the Act and its amendments, there are no changes as to the British view of extradition without treaties or "arrangements" that in any way could make changes to the views from the 1870-Act.
Both the UK and the US government in the Lockerbie case have chosen not to proceed the case as a simple criminal act with international legal involvement, but as a semi-political issue, trying to solve it by the use of international law.
The US+UK-points of view in the Lockerbie case are, that they consider the two accused Libyan citizens to have acted as government-agents for Libya, thus placing the responsibility for the criminal act in the hands of the Libyan government, making the Lockerbie case an issue for the United Nations Security Council.
From beginning of the Case, the UK/USA have refused to apply the use of the Montreal Convention to this case due to the reasons mentioned above. Instead of, they have made use of the UN Charter Chapter VII dealing with the use of force or economical sanctions against a member state in case of imminent danger to the peace of international community. The point taken by the USA and the UK, is that the government of Libya, i.e. Libya as a memberstate of the UN, is treathening world peace by the action of Lockerbie, which gives the USA and the UK the legal right according to the UN Charter Chapter VII to act in compliance with the charter.
Where Libya's point of view is that the Lockerbie-case is a legal question between 3 signatories of a multi-lingual treaty and a pure question of procedure in international criminal matters, the UK and US-point of view is, that the Lockerbie-case is a political question of international security and placing it above regular criminal procedure matters.
Yet, UK and USA commenced the issue by simultanely handing down two formal indictments towards two Libyan nationals to the Libyan legal authorities on the 14th of November 1991, using the normative and usual channels in international criminal procedure for requesting extradition.
On the 27th November 1991 the present approach to the Lockerbie-case changed from a mere criminal one to a political one by issuing a joint declaration, that in its context closely resembles the context of the later UN Security Council Resolution 731.
Buy using the international arena of politics, UK and USA made it clear, that they did not view the case as an act of international criminal law, but as a case of two states against another state, paving the road for the use of the UN Charter.
5. Discussion of legalities
A majority of researchers and legal experts on the issue of extradition-refusal of nationals all agree on the principle of aut dedere aut judicare. Extradition of nationals is close linked to the principles of sovereignty in international law. A state has the sovereign right to legally rule over it's own citizens. Whenever the question of jurisdiction arises in cases where several sovereign states are involved, such as in the Lockerbie Case, a state may choose to prosecute it's own citizen, rather than surrender him for prosecution in another state. It would be unfair and dangerous for the other states, if one state could refuse extradition as well as prosecution...unless the crime is not a crime in the state of the requested national.
In this case, however, the crimes charged onto the two Libyan nationals, are offenses both under UK/US-law, as well as under Libyan legislation.
The principle that there can be no extradition in the absence of a treaty is as old as legal science itself. Historically, the issue of extradition arose first time in about 2nd century BC as a claim from the Roman Empire to surrender Tunisian general Hannibal, accused for "terrorist crimes" against the Roman Republic. The request for surrender was refused on grounds that there was no treaty between the Roman Republic and the kingdom of Asia Minor, where he had taken refuge. The principle of not rendering nationals for prosecution to another state is incorporated in almost every treaty or convention on extradition in international criminal law of today and in the past. It is indeed very strong followed in the practice of treaties bi-lingual as well as multi-lingual and on a regional plan.
Libya has continuously pointed out, that in case of extradition of the two accused Libyan citizens to either UK or USA, they have no chance of a fair trial, since public opinion with the help of sensational and shallow media coverage already branded them as guilty. Libya's point is that the jurors would be prejudiced and partial in their verdicts put forward by dr. Ibrahim Legwell, head of the defense team of lawyers for the two Libyan uspects.
Legwell grounds his observations apart from the above mentioned reasons, also on the resolution 731 and the UN Security Council's debate before the voting.
This point of view was furthermore empathized by Judge Shahabuddeen from the ICJ in his opinion, where he specially mentioned the claim of compensation in the R.731 as a sign, that the USA/UK already had made up their minds as to the issue of guilt. Also dissenting judge Kosheri emphasized that point of view, saying that "the authors of the Lockerbie massacre could not possibly receive a fair trial, whether in the USA or in the UK, nor in Libya."
USA and UK, on the other hand, have both claimed, that due to suspicion of governmental involvement, the two Libyan accused are not expected to receive fair trial in Libya as well. In case of a verdict, any sanctioning might be superficial. Or in case of a verdict and a sanctioning of maybe prison for life, the truth about any possible involvement of the Libyan government or not, may never come forward.
Both statements could be rated as reasonable, but still do not give the USA/UK the legal rights to request extradition beyond all former jurisprudence, nor gives them any legal claim to coerce Libya into extradition in the absence of a treaty.
This arises the actual discussion of where the accused Libyan nationals would get a fair and impartial trial of their case. If we first look upon the possibility of having them tried in Libya, one could put following arguments in favor of such a claim:
There are some obvious reasons for letting a state try his own nationals for crimes committed outside the territory, which of course has been put forward by Libya as well: the two accused would personally be better of if tried in their own country, their own surroundings, their own language and their own laws. In case of custodial punishment, if found guilty, the two accused would also be better off by serving their time in national prison, close to their families, and in familiar social and linguistic surroundings.
The arguments in favor for a trial either in USA or in UK could be summoned up in these arguments:
From a political view, the surrender of the two Libyan citizens would be a political victory for the USA/UK, having proclaimed Libya as public enemy no.1 during the last decades in various political motivated statements. From a legal point of view, there are no obvious advantages of having the two accused tried in USA/UK, since international criminal law clearly gives Libya the legal right to prosecute rather than extradite, and any surrender would undermine this principle. The possibility of a positive verdict would drastically be mush larger then, but the political consequences of a negative verdict would trigger a political scandal in the USA or the UK, like the case of "The Birmingham Six". A verdict in an impartial country would be much more favorable to the USA/UK, whether it is going to be positive or negative.
One must furthermore differ between advantages for the accused, and advantages for the prosecutors. According to human right standards, the two Libyan citizens have the same right of legal protection and widest possible assistance as anybody else being accused or charged with crime. Both Libya and USA/UK are signatories to the UN Charter of Human Rights, thus being obliged to follow its guidelines, regardless of political motivation.
It is interesting, that the USA and the UK being countries of high legal and political standards, are requesting extradition contrary to normative rules in international criminal law. Surely they couldn't have expected Libya to comply and extradite its own citizens ?! Yet, the political propaganda effect of Libya refusing extradition, has actually paved the way for USA/UK to apply economical sanctions onto Libya, and one could suspect this to be the true reason behind the claim for extradition, rather than any legal reason.
5.2, The Montreal Convention and its application
The aim of the Montreal Convention is to serve as an instrument used by multiple parties in a mutual attempt to combat crime with an international dimension. It lays forward a mutual procedure of action and transfer of criminal proceedings in cases included under the contents of the Convention.
This, of course, requires some international cooperation also at the legal level. There is not much use of the Montreal Convention, if the signatories have grave disagreements of legal proceedings and basic legal philosophies. One could expect some legal diverting issues as to conflicts involving common law countries and non-common law countries. But the basics of these two different legal philosophies are not the point in the Lockerbie Case, nor is it the origin of the legal problematics in this case.
In the Lockerbie Case, the legal philosophies regarding criminal proceedings according to the laws of the UK, the USA and Libya do not show any divergence as to the issue of extradition, as I have shown in my paper.
Libya, being a former colonized country, still holds the basics of western, mainly Italian and British legislation.
Libya is claiming that the principle aut dedere aut judicare is incorporated into Article 7 of the Montreal Convention. The article gives Libya the right to choose between extradition or prosecution. What is important is, that even without the Montreal Convention Art.7 and its liberty of choice, the aut dedere aut judicare -principle gives Libya the same right to refuse extradition, since Libya in practice does not have any extradition treaties with USA/UK. According to aut dedere aut judicare Libya doesn't even have a choice: in the absence of a treaty, there can be no extradition. Libya is thus "forced" to refuse extradition of nationals.
One can summon up by saying, that Libya due to the Montreal Convention has the right to refuse extradition, and by the principle of aut dedere aut judicare as well as by national law is obligated to refuse extradition.
The right to refuse extradition of nationals must be seen as a part of a states sovereignty and a part of general international law. The efforts of the UK and the USA to enclose international law in the shape the UN Security Council and the UN Charter is a new situation in international criminal law. International criminal procedures are purposed for the object of individuals and consists mostly of bi- or multi-lingual treaties when found, whereas the UN charter concerns merely states and members of the UN.
The enclosure of international law (UN Charter) by the USA and the UK has been political motivated, since they consider the Lockerbie case not a simple criminal matter, but are insinuating a threat to world peace.
Lockerbie implicates a totally new dimension into international criminal law.....political international criminal law. Before the events at Lockerbie, political crime in context with international connections has so far always been treated as simple criminal procedures. Now there is a situation, where some of the involved parts have implicated international law with political reasoning to coerce extradition of individuals. In order to shed some light on the new situation, one must analyze what international legislation USA/UK have implicated and their raison d'etres.
5.3, The UN Security Council and the resolutions
The legal basis for the sanctions against Libya in order to coerce Libya into extradition of the two nationals are the UN Charter Article 34 and Article 41. USA/UK obviously shared the opinion that the two Libyan citizens consisted a threat to international peace, but they never explicit said so. The UN Charter deals with states, not persons/individuals. Yet, in so far the two Libyan individuals actually have been government agents, thus acting in lieu of Libya, a threat to world peace might very well be a fact. However, what actually is meant by the term threat is up to the UN SC to decide on.
According to the Security Council Resolution 748 of 1.4.1992 the treat or danger to world peace is not founded on the possible action, the two Libyan individuals are accused of having done, but the Libyan refusal to extradite the two nationals.
This is the major reason behind implicating international law into a political international legal procedure in the Lockerbie Case: the refusal of extradition becomes a danger to world peace. In other words....the sovereign right of a state to refuse extradition in the absence of a treaty aut dedere aut judicare becomes a danger to world peace. It doesn't become so automatically, but it does become so in this specific case.
Furthermore, it is ironically the Montreal Convention, that was supposed to be a step towards solving the problem of aircraft sabotage, which in the late 60ies and the early 70ies and later on became a danger to international peace. Now the Montreal Convention suddenly contributes to maintain the danger to international peace by its very article 7, which gives Libya the right to refuse extradition and prosecute their own nationals in their own territory!
The UN Security Council has the explicit right to determine what exactly is dangerous for world peace. But does the power of the UN Security Council extend to also abolish or rather outlaw multi-lingual treaties, and does the UN Security Council have the legal power to outlaw jus cogens insofar the principle of aut dedere aut judicare becomes a part of it ? Article 103 of the UN Charter seems to give the resolutions of the UN Security Council prevaillance over any international treaty or convention. But one can argue, that Article 103 not gives prevaillance to the UN Security Council resolutions over customary law, insofar its principles are not based on the jurisprudence of treaties or conventions. If a legal principle like aut dedere aut judicare is consisted of both treaties-decisions as well as customary law, does the Article 103 still have prevaillance ? The question has not been raised by any parts in the Lockerbie Case so far, namely because Libya has used and still uses the Montreal Convention as its legal right to refuse extradition in their arguments in the case. A claim to refuse extradition due to jus cogens or due to customary international law has only been made by the Libyan ambassador to the UN Security Council in the discussions before voting for resolution 731, not as a formal legal claim. The Libyans may have thought treaty-law to be a better or stronger juridical argument then the claiming of the latter.
5.4, The legal basis of the UN Security Council
The UN Charter gives the UN Security Council the task to settle disputes between member states and to take appropriate measures in case international world peace or security is threatened. At its basic, the UN Security Council is thus a political body, empowered with some legal tools. These legal tools are the UN Security Council- resolutions, which every member of the UN is obliged to follow and carry out in full. There are no guidelines as to what exactly constitutes a breach of world peace or security. This is entirely up to the members of the UN Security Council to decide on. There are some few UN General Assembly resolutions, which try to define breaches of world peace and security, but the UN Security Council is not bound by any legal rules to use these GA-resolutions as any guidelines, neither legally nor politically.
If one analyzes recent definitions of danger to world peace and security as described by UN Security Council-resolutions, there is no concrete legal pattern. One type of genocide for instance is criminalized, where as another act of genocide is not. One invasion of a neighboring country is a danger to world peace, another invasion is not. One terrorist act in international aviation is a danger to world security, another one is not. This clearly shows, that the resolutions passed on by the UN Security Council is no legal guideline to what exactly constitutes a danger to world peace and security. It is a pure political guideline. It cannot be used to pattern international criminal law. The legal irony in this case is, that the members of the UN are obliged by the Charter to follow up on the UN Security Council- resolutions.
It is only possible to act for international peace and security, when the five permanent members of the UN Security Council are voting in consensus. Any permanent member of the UN Security Council can veto a resolution, which politically is going against it self or a political/economical ally. And even more important, if a case in front of the UN Security Council is concerned or related to one of the member-countries, this or these countries shall abstain from voting.
In the Lockerbie Case, the UK and the USA are both permanent members of the UN Security Council. They have passed and adopted the resolutions 731, 748 and 833, voting for them all 3 using the same preambles every time.
In accordance to "normal" legal criminal procedures, at least as we know them to be present in most civilized countries, there should be a parting of the Executive, Umpiring and Legislative Power. The UN Security Council has all 3 powers, and has exercised them in passing resolutions in the Lockerbie Case. Since the USA/UK are permanent members of the UN Security Council having both passed and voted for the resolutions, gives Libya another moral point of refusing to have the two accused Libyans tried in USA or UK. The prosecutor, the judge and the police being one and the same legal person, gravely endangers the legality of criminal law in general. It becomes an indication for the absence of fair trial. One can with good reason question the hability or competence of USA and UK in their action in the UN Security Council regarding this case.
The UN Security Council is by the UN Charter obliged to act in accordance with the principles of justice and international law. Article 36 Section 2 of the UN Charter states that the Security Council should take into consideration any procedures for the settlement of a dispute which already have been adopted by the parties. At a point in the legal disputes of the Lockerbie Case all 3 involved parties had agreed to Article 14 Section1 of the Montreal Convention. In accordance with that Article, the proper action for the Security Council to take would have been to call for rbitration.
Yet again, the UN Security Council itself defines the methods or measures to be taken in the event of danger to world peace and/or security.
An analysis of measures taken by the UN Security Council in cases, where the UN Security Council has decided a certain event as being a danger to world peace and security, shows no legal pattern. In some cases the UN Security Council called for arbitration, some cases merely called for condemnation, reducement of diplomatic staff, use of economical sanctions, till the use of direct force and international intervention. Why the UN Security Council in the Lockerbie Case called for the mentioned actions to be taken in accordance with resolution 731 and 748 is unclear. By the application of international sanctions, there would have been an indication of a threat to world peace or security, as it is requested by the UN Charter. But neither R731 or 748 do explicit refer to such a danger.
There is one specific case treated by the UN Security Council, that in its content is very similar to the Lockerbie Case. In January 1996 the UN Security Council adopted resolution 1044, that called upon the Islamic Republic of Sudan to extradite three nationals for trial to Ethiopia. Sudan provided details of its effort to apprehend the 3 suspects, but failed to locate them in Sudanese territory. The request for extradition was - contrary to the Lockerbie Case - backed up by resolutions from the Organization of African Unity. Furthermore there was no hability or competence-dispute, since neither Sudan nor Ethiopia are members of the UN Security Council. In response to Sudan not complying with resolution 1044, the UN Security Council passed resolution 1054 in May 1996, threatening Sudan with economical sanctions.
The context and legal basis for R 1054 is however quite different from R 731 or 748. In Resolution 1054 the UN Security Council "acting under UN Chapter VII" , determining Sudan's non-compliance with demands stated in 1044 constituted "a threat to international peace and security". It is interesting that the UN Security Council in two so similar cases reacted under two different Articles and Chapters of the UN Charter. The Libyan-resolution did not explicit mention such a threat. The Sudanese-resolution does. My guess is very simple, since it seems the UN Security Council has learned a legal lesson from the previous Lockerbie Case.
The Sudan Case and the sanction-issue was later brought to a halt due to different reasons, among them the evidence against the 3 accused people being contradictional, the 3 people de facto not being present or resident in Sudan, making it impossible for Sudan to comply. The question of legality or extradition aut dedere aut judicare was never raised from Sudan's point of view.
What is disturbing in the case, is the UN Security Council statement after passing the resolution. It says: "The UN Security Council calls for all States to act in strict conformity with Resolution 1054, despite any possible rights or obligations under prior international agreements or contracts.".
The resolution does not mention Article 103 of the Charter, but one could logically assume, it is implied in the statement. If the assumption is wrong, than this can only mean, that the UN Security Council per se in passing any resolution sees itself not obligated to respect any international rights and neither any agreements or extradition contracts or conventions. The statement, if it is legally valid, would place international criminal law in the hands of the UN Security Council, rendering every other legal tool of international criminal law as outdated. The statement would gravely undermine the legality of international criminal law.
There was no such UN Security Council statement made after the passing of R 731, but the issue was raised continuously in the debate by the USA and the UK representatives. However the Sudan Case is of little legal explenational help to the issues of the Lockerbie Case. It came at a historical later stage in 1996.
5.5, Resolution 731 and international criminal law
As to the jurisprudence of the UN Security Council in passing its resolution regarding terrorism, resolution 731 made new legal history. Before resolution 731 the UN Security Council in previous resolutions regarding terrorism had confined itself to supporting the treaty or convention regime for dealing with terrorism, if individuals had any alleged involvement.
The content of the resolution itself has also made legal history in contrary to previous resolution. The resolution urges Libya to comply with actions, that are not mentioned directly, but only in the way of references. Furthermore the text of the resolution does not, contrary to previous customs, explicit the legal basis for its creation. Resolution 731 does not with one single phrase mention any "danger or threat to peace or security", and the measures requested in the resolution are not of the nature as mentioned in the UN Charter Article 41 and 42.
Resolution 731 in its legal content has in fact no legal value in international criminal law. The context of R731 condemns international terrorism and criminal acts against aviation security, but gives no definition of what these acts are, and what international terrorism consists of. R731 requests Libya to cooperate fully in establishing responsibility for terrorist acts against flight Pan Am 103. As mentioned above, this cooperation or compliance is only mentioned in the context of R731 by way of reference.
The term cooperate fully can be understood in two ways:
1) Libya should comply to international criminal law in general, meaning to fulfill its obligation under international criminal law, or
2) Libya should surrender the two accused citizens to the requesting states.
Since Libya maintains the principle of aut dedere aut judicare and since Libya has responded according to international criminal law to the UK and the USA regarding legal help in the investigations of the Lockerbie Case, one must conclude, that the term cooperate fully can only mean the second explanation. Cooperate fully in the context of the political expectations of USA and UK would mean to surrender the two accused, i.e. to break the normative rules of international criminal law.
Furthermore, cooperate fully means that Libya should denounce all relations to terrorism, and also pay appropriate compensation to the victims of the Lockerbie Case and their relatives.
As to the issue of compensation, it would be a step back for legal science and the idea of justice, to make anyone pay before he is actually sentenced culpable. The principle of legality such as nulla poena sine lege or nullum crimen sine lege becomes scattered by political motivated resolutions of international law. From these points alone, the legal validity of resolution 731 is void and of no proper connection to the legality of international criminal law. This follows, that resolution 748, taken in accordance with resolution 731, becomes invalid as well. Resolution 748 is a punitive resolution, coercing Libya into extradition. It relates solely on the claims of R731.
Another point made by the USA and the UK is the Article 103 of the UN Charter, which states that a UN Security Council-resolution prevails over those of any prevailing treaty. The point of UN Security Council resolutions being legis major to any international agreements or contracts has been elaborated in the statement put forward after the Sudan Case. But does a resolution prevail, if it is legally invalid ? And how valid is a resolution, when the only purpose for it may have been, the establishment of a legal tool to override the Montreal Convention or other norms of international criminal law ?
Since the UN Security Council is the sole definer of danger to world peace and security, as well being the only entity to decide what measures are to be taken, one can ask the question, of what concern to the Lockerbie Case and the issues of international criminal law this discussion then may be ? What have I done, except showing that the UN Security Council has the definite last word ?
6. A solution for the Lockerbie Case
My point in this discussion is, that international criminal law, lacking procedural rules in general and lacking legal guidelines in specific, cannot be a useful tool for solving international criminal disputes such as seen in the Lockerbie Case, as long as the UN Charter and the UN Security Council is maintaining its pseudo-legal political power over the definitions and solutions of international criminal law. The UN Security Council and its resolutions, which the UN members must carry out under legal obligation of the Charter, has become an unequal instrument in international criminal law, throwing shame on the legality of international criminal law itself.
The system of international criminal law cannot function if there is no political support for its implementations in international law. On the other hand, international criminal law and its general jurisprudence can be implemented or "stored away" according to the political view-points of stronger nations, such as the 5 permanent members of the UN Security Council.
It seems there exists a mortal symbiosis between the legal and political rules of international criminal law. If there indeed exist a system of international criminal law, it exists only as a monopoly of political stronger nations and is used as a political tool. In the hands of the UN Security Council the tools of international criminal law become casual, random and politically applicated, taking legal credibility out of international criminal law.
There are already several solutions to this problem on the draftboard for international criminal law:
6.1, International Extradition Treaties
Throughout legal history, extradition mostly consist of bi-national treaties. Recent legal history shows an increasing creation of different regional multi-national treaties or conventions, for instance the Arab League Treaty for Rendering Criminals or the European Extradition Treaties. At present situation there is no worldwide extradition treaty or convention to be found in the context of international criminal law.
Extradition outside the treaty or conventional regime today is negotiated between involved states. In some cases, like in this Lockerbie Case, negotiations may prove to fail, and the result is international conflicts between states. Some legal experts have thus put forward the proposal of creating some sort of uniform convention on the issue of extradition to avoid just that.
At the Eight UN Crime Congress in Havana, 27.8-7.9.1990 a Model Treaty on Extradition has been drafted by the members of the Organization of United Nations.
Article 4 section a in the Model Treaty states, that extradition may be refused, if the person whose extradition is requested is a national of the requested state. This does not present anything new to international criminal law, but it goes beyond the conception of aut dedere aut judicare, and would not be politically acceptable for anyone. The refusal of extradition of a national without the substitution of a trial would only escalate the bad relations between states. Legally such a principle would furthermore be a violation of the 1970 Hague Convention.
The Model Treaty for Extradition is certainly not a good example or comes even close to an extradition convention.
Another step towards an international accepted set of rules for extradition related to the issues of the Lockerbie Case is the Draft Articles for a Convention on Extradition in Relation to Terrorist Offenses, adopted in 1988 by the International Law Association. This convention, if it would generate any international legal constitution on extradition, is however quite useless in international criminal law. The Draft Convention gives no clear definition of terrorist acts, and it does exclude extradition in political offenses, due to the Charter of Human Rights and due to political observations, that one act of terrorism very well not may be viewed as a terrorist act by another state in accordance of politics rather than legalities.
If such extradition conventions would exist, it still wouldn't be of much use, as long as Article 103 of the UN Charter states, that any resolution passed on by the UN Security Council prevails over any convention. The political instrument of the UN Security Council has per se prevaillance over any legal instrument of international criminal law.
The question is here, whether an international extradition treaty or convention would be of much help to cases such as the Lockerbie Case. In my opinion, the issue of the Lockerbie Case is not an extradition question, but the a question of legal application versus political motivation.
6.2, An international criminal tribunal
There have been several examples of international criminal tribunals in legal history.....put forward by the UN Security Council. The Nuernberg Trial in 1946 and the Tribunal for Warcrimes committed in former Yugoslavia in present times are some examples. Several intellectual experts on international criminal law, such as Bassiouni and professor Kelsen, are promoting a form of international court for international criminal cases like the Lockerbie Case.
At the International Meeting of Experts on the Establishment of an International Criminal Tribunal in Vancouver, Canada in March 22-26, 1993 the discussions showed several problems arising with the eventual establishment of such a court. Establishing such a court, as it seemed reading the report from the meeting, causes apparently more problems for international criminal law than it actually would solve:
1) Should the court be permanent or ad hoc, only operating when there is a reason to act?
2) If the court is an ad hoc-court, who would revive its operations ? Again, would we see the monopoly of the UN Security Council in the case of an ad hoc-court ?
3) In case of a permanent or ad hoc-court, where should such a court be placed geographically?
4) What procedure should the court use ? Would it be able to find a single legal approach, which would take into account the different existing legal systems in a manner which would attract broad/major support of member states ?
5) What definition of crime will be used ? The existing bi-lingual or multi-lingual conventions, UN resolutions, UN Security Council resolutions, treaties and charters altogether present a large handful of contradictions as to what definitions are applicated to which crime.
6) Should the jurisdiction of such a court prevail over the criminal jurisdiction of a national court ? If yes, then many states would not be able to be members of such a court, due to their constitutions.
7) The formal establishment of such a court would face problems of international legality. Should such a court be established under the sentence of a UN Charter, a treaty or a convention ?
8) Would the sentence of such a court subject a sentenced state to a jurisdiction, that it does not recognize ? Would such a court be able to criminalize an action, which in a member state is not legally criminalized ?
9) As to the individuals being objectives to such a court, should they be extradited to the court ? Where should the sentence be served ?
The conclusion of the above report was, that an international criminal court or tribunal best would serve its purpose for certain international crimes, such as crimes against humanity according to the draft Code of Crimes against Peace and the Security of Mankind, the latter raising as many legal problems if not more, as the possible establishment of a international criminal court itself !
As long as the problems of an international criminal court are not solved (and this may take decades, at its best!) this can be of no solution to the Lockerbie Case.
6.3, Arbitration or third-part intervention
Although Libya seems to cling onto its legal right to refuse extradition of its own nationals for prosecution abroad, Libya has not entirely dismissed the possibility to render Fhima and al-Megrahi for prosecution despite of this right. Libya just don't want to extradite them to USA or UK, due to reasons of fear of unfair trial. The changing Libyan point of view, where Libya on one hand refused extradition due to international criminal law and on the other hand refuses extradition due to reasons of fear of unfair trial, does not confuse the issue as much as it may seem at first glance.
Libya, as proven, has the sovereign right to refuse extradition in accordance to normative procedure and general legality of international criminal law. But the will to render Fhima and al-Megrahi to a third-part-country may be seen as a political motivated step, that could mean a possible solution of the Lockerbie Case also in legal terms.
The idea of legal arbitration both in national and in international law has the aim to solve problems, and in connection to international law, legal arbitration is almost obligatory, and Libyan lawyers have continuously called to the attention of the UN Charter and its references to arbitration.
But arbitration only works when the involved parts agree in consensus to the legal powers of an arbitration body, be it an international court, a tribunal or a national court under a third country legislation. It is interesting, whether there exist some legislation, that could make Libya somehow force the UK/USA into arbitration. As seen before, Libya has claimed the Montreal Convention as presenting such a legal obligation. The problem is, however, that the UK and the USA not accept the application of the Montreal Convention as a tool for the Lockerbie Case, i.e. they do not find any legal obligations for arbitration.
According to the Montreal Convention Libya might be able to coerce USA and UK into arbitration. But USA and UK are (metaphorical spoken) playing on two horses in this case: as legal parts in the Lockerbie Case, and as permanent members in the UN Security Council. USA and UK are therefore free to choose, where in the legal progress and at what times they want to play legal parts and at what times they choose to act as permanent members of the UN Security Council. Arbitration becomes only useful when the involved parts remain parts, and not shift seats to perform acts of inhability or ncompetence.
The involvement of a third-state party may prove to be a valid solution as to the problem of unfair trial or accusation of inhability or incompetence.
What then could be the legal consequences if Libya should render its two accused citizens for trial in a third party country, such as Malta, Switzerland, Egypt or Austria (as mentioned by Libya and some of the countries by own initiative) ?
Malta being a small Commonwealth Island could seemingly present some vision of innocence and habil competence, but because of its tight economical and political ties with its big Libyan neighbor, was discarded almost at once. Egypt, in the Middle East known as a close ally to USA and UK, also well known for its ability to resolve political problems among countries in the Middle East, could be a good choice. Austria, being a non-aligned country, a good choice as well, and as for Switzerland, one could argue, that Switzerland due to its non-membership of the UN might be the optional choice. At present only Malta and Egypt have declared themselves ready to act as arbitrational courts in the Lockerbie Case.
In the event of a third country court in one of these countries, there are problems of legislation, crime definitions, custody and sentencing, problems similar as to the establishment of an international criminal court, but to a much lesser extend, that international criminal law might be able to handle after all.
A court in a third-part country might legally be more within the reach of than an international criminal court. But as a permanent solution for international criminal law in conflicts similar to the ones we find in the Lockerbie Case the third-country solution is a poor solution.
Politically, a third country court might be subject to economical pressure from more powerful countries, making the outcome of a trial legally valid, but under false premises. In order to avoid such political bribery, only an impartial and independent court would be void of such allegations and ensure valid verdicts in accordance with the valid principles of international criminal law.
The Libyan solution of a third-country court might be or might not be a good solution for the Lockerbie Case, but does not prove a permanent acceptable solution for other cases in the long run and cannot be viewed as a permanent tool for international criminal law. We need a long term solution for these problems.
6.4, Modification of the UN Charter
What is it exactly, that is creating problems for international criminal law in the Lockerbie Case ? The issue of aut dedere aut judicare is quite clear, then why is there a problem ?
Sometimes it pays off to leave a problems outskirts and go down to the simplicity of its basic roots. The roots of the Lockerbie Case arise from the contents of the UN Charter.
So logically, if we solve the problem created by the UN Charter, then we might be able to find a solution for the Lockerbie Case, too. My contribution to solving the Lockerbie Case consist of an analysis of the possible alternative solutions, proposed by various parties in the case, as well as my personal legal opinion or proposition for a solution.
So far no one, not even Libya, has put forward the proposal of a modification of the UN Charter. One may argue, that a modification of the UN Charter is a too drastic and to difficult solution, out of proportions in international criminal law. But my study shows, that one of the main reasons for the inefficiency of international criminal law is the legal monopoly of 5 political organs, i.e. the permanent members of the UN Security Council.
A possible modification of the UN Charter might be the establishment or creation of a legal body to survey and control the legal outcome of the resolutions passed by the UN Security Council. Libya tried to apply such legal powers to the ICJ in presenting its case to the court. But the court voted not to act in such a way. In fact, the ICJ refused to enter any debate concerning legal hierarchy-questions of the ICJ and the UN Security Council.
I shall not enter any speculations of the reasons why. But one cannot ignore the need for a clarification of such a hierarchy.
In national laws, in most democratized countries, the court functions as a legal surveillance tool for the legal validity of laws, passed on by the government. But then again, the Organization of United Nations cannot be compared to any national bodies or legal societies. The UN is a political organization, and the UN Security Council is a political body. The politically or legal ideology of Montesqiues Parting of Power cannot be applied to the Organization of United Nations.
At present there is no possibility and legal will to let the ICJ function as such an surveillance tool, that may act as a guarantee for the legality of resolutions passed on by the UN Security Council.
Should the ICJ change its present view of the hierarchy-question, or should any other international legal bodies be created to function in such a way, it would in reality not be of much use, anyway.
As long as the UN Charter gives the indefinite legal power for the UN Security Council to solely define what crimes are to consist any danger to world peace and security, and which measures are to be taken and to what extend, the verdicts of the ICJ or any other international legal body wouldn't be worth the paper, they are written onto. Any jurisprudence of the ICJ or any other international court has only legal value, as long as there exist no legal override-measures.
The statement of the UN Security Council after passing resolution 1054 (the Sudan Case) shows, that the UN Security Council sees itself positioned above any international agreements or contracts as well as above any international rights. What use is there of any agreements undertaken and signed in international criminal law when they can be nullified due to political interests ? The consequences would be, that the only international criminal law would consist of UN Security Council resolutions and the international agreements or Conventions or jus cogens insofar the UN Security Council is approving of their appliance, maybe changing opinion from case to case....
So, another way of modifying the UN Charter is to entirely change Chapter VII or other parts, restraining the legal possibility for the UN Security Council, or rather its 5 permanent members to act on political terms. The modification could be done as follows:
1) The UN Security Council should first of all, before any acting, confirm its own authority to act under Chapter VI of the Charter. This may be described as a political hardship, and the UN Security Council could argue, that sometimes there is not enough time to do so in urgent situations.
However, such an obligatory confirmation would give the correct legal basis, and generate international jurisprudence. The resolutions of the UN Security Council would become a legal part of international criminal law. Such a confirmation would drastically make the UN Security Council abstain from using political interests as motivations in passing resolutions and require the UN Security Council to use a more legal approach in defining any breach of world peace or security in accordance with Article 34. Moreover it would explain the legal basis for the UN Security Council whenever it chooses to enclose international law in cases, where international law not has been enclosed before, such as it happened in the Lockerbie Case.
Raising his separate opinion in the conclusions of the ICJ, dissenting judge Shahabudeen raised the critical point of whether there are any legal limits to the UN Security Council whatsoever, or if there are any limits for its powers of appreciation of issues related to the right of States in international law. The thought of such a modification of the UN Charter is thus not alien. I should assume, that this point of view will be elaborated more and more in future decisions of the ICJ, in future actions taken by the UN Security Council and in general legal discussions of the future.
2) In case of arbitrational measures already taken by the involved parts or agreed to be taken, the UN Security Council must abstain from taking any action, including prejudging any legal proceedings. Again the protest of the UN Security Council would be a reference to the urgency in some matters, not making it reasonable to wait. A legal argument from the UN Security Councils point of view would be, that the UN Security Council as a political body cannot be legally obligated to await legal instruments to finish up first. My point is, that a modification of the UN Charter exactly should force the UN Security Council to do just that. Of course, if the involved parts choose to proceed arbitrational matters in front of the UN Security Council rather than for instance the ICJ, then the UN Security Council would be free to act at once.
Such a waiting act is not only the idea of my own considerations. Adoption of resolution was made with 10 members of the UN Security Council voting fore, and 5 others, among them one permanent member, abstaining. If one takes a look at the reasons of these members for abstaining, I found that the reservations made during the debate in the UN Security Council almost all concern the issue, whether the UN Security Council was right to move on adopting or discussing the resolution while the ICJ was considering the case. The only permanent member to abstain, China, acted on reasons that international sanctions will not work and called for more positive suggestions.
3) Article 27/3 of the UN Charter should be modified into putting a more obligatory approach onto the term shall abstain from voting, making any voting of the UN Security Council where a member is involved invalid, if this member participates in the voting process. This modification, if it was made before the arise of the Lockerbie Case, would very easily have taken the issues of the Lockerbie Case away from the political arena and put it back into its legal place, in front of the ICJ and in accordance with the provisions and Articles of the Montreal Convention or other tools of international criminal law. This modification, as seen in the light of the Lockerbie Case, could avoid any inhability or incompetence problems, and avoid parties in a conflict to gain their favored outcome, political outcome that is, under the false pretext or at the cost of legality, including the legality of international criminal law.
4) The establishment of a strictly legal body, may its form be a court, a hearing-committee or a panel of experts, that assures the actions of the UN Security Council to have been taken in strict accordance of the UN Charter Article 24/2 and Article 1/1. The counter-argument would be, that it would be costly and time-spending efforts to have a legal body to survey the resolutions every time one is passed by the UN Security Council. But such a legal body would be a vast contribution to clarify the aspects of international criminal law. A legal body would in its verdicts or conclusions from case to case create some sort of jurisprudence as to definition of international crime, international criminal law and the actions of the UN Security Council would be limited to have been taken in accordance with the widest recognized principles of international criminal law. Such a legal body would furthermore be a benevolent security mechanism for both the parts involved in any conflict of international criminal law, as well as being a legal assurance for the UN Security Council itself. It would even create a more legal credibility of the actions or resolutions of the UN Security Council.
Only then the UN Security Council resolution would become legal instruments, void of political incredibility, and only then, the possibility to form a sort of international legal conformity under international criminal law will be open.
Such a legal body could hinder the UN Security Council passing resolutions which are contradictory to already widely accepted legal principles, jus cogens.
There exist already a similar legal body, the ICJ. But since the ICJ in its own conclusions several times has abstained from acting in the legal way, as I have described, we still need a modification of the UN Charter. It is the UN Charter which confirms and defines the statutes of the ICJ, and it must naturally be the UN Charter which clearly defines the work of the ICJ to also employ such legal matters, or even more important: it must be through modification of the UN Charter, the ICJ employ these legal control mechanisms, and not through the conclusions of the ICJ on its own.
Any modification of the UN Charter arises some new legal problems, as to whether there would be an actual change of the oral contexts in the Articles, or the modifications should be done in the form of amendments etc.
However, a modification of the UN Charter is a far less complicated solution to the problems of international criminal law in situations like in the Lockerbie Case and other disputes concerning international criminal law, than the finding or creation of new legal conventions or similar tools to operate the confuse contexts of international criminal law in general.
I am, of course, speaking of a less legal complicated solution. For I am aware, that any modification of the UN Charter may be legally less complicated, but political almost impossible. It is almost a legal status quo: without the political motivation, we cannot make international criminal law more credible and effective, but without the proper legal tools, there simply exists no credible international criminal law, for it can be amplified and abused according to political motivation.
The Lockerbie Case is a very good example of just that paradox in international criminal law. It was the first case ever proposing the legal basis for a challenge against the UN Security Council actions, but it won't be the last case. However, it is certainly one of the cases, which best illustrates the main problematics of international criminal law.
7. The legal conclusions of the Lockerbie Case
Bassiouni, among others, is of that opinion, that extradition as a legal process is a part of political process between states involving their foreign relations. The question of extradition is in its basic nature not merely a legal one, but also a political one. Therefore the problems of extradition cannot be solved without involving both legal and political speculations and analysis.
But what is the true legal point in the Lockerbie Case ?
It is not the question of priority between extradition or local prosecution in Libya . The beginning of the Lockerbie Case emerged as a legal disagreement of exactly that question. And the Montreal Convention in its context has foreseen, that some member states sooner or later would disagree upon the issue of extradition vs. local prosecution and other questions of interpretation or application. Article 14 of the Convention deals with those problems, and so far Libya has chosen to solve the question by referring to the measures of Article 14, i.e. arbitration and in case of refusal or disagreement of arbitration, the International Court of Justice.
However, the main question of the Lockerbie Case, brought forward by the UK and the USA at a later stage in the legal actions taken is whether the Montreal Convention should be used at all. The two states do not consider the Lockerbie Case as a case for the use of the Montreal Convention. Instead they have chosen to make the Lockerbie Case a case for the UN Charter. The two states do not regard the Montreal Convention as the only means of combating aircraft sabotage.
The question whether the Montreal Convention generates some sort of jus cogens in its article 7 regarding the issue aut dedere aut judicare and therefore must be used in the Lockerbie Case thus becoming some kind of basis for the international legal community, or whether the Montreal Convention is voluntary and can be substituted for other law such as the UN Charter (Article 103) is very important. If the rule of aut dedere aut judicare as claimed by Libya becomes a rule of customary international law, then we have taken one step further into the direction of creating some sort of international legal community with a common based legislation concerning international criminal law. That again would mean, that the UK and the USA simply were obliged by international law to follow the principles of aut dedere aut judicare in the Lockerbie Case and in all other cases. But the UK and the USA have blocked this legal thesis with the political creation of the UN Security Council-resolutions 731 and 748.
Should aut dedere aut judicare become a peremptory norm, we still do not know, in exactly what kind of facultative form it ought to be in order to be peremptory. A solution based on international conventions or in the picture of an UN Extradition Charter does not solve the political problems of the UN Security Council and its interference into international criminal law. The Libyan propositions are based on a concrete case (Lockerbie Case) and the extradition issue is only related to the case seemingly, since the true problem consists of political demands rather than legal ones.
The analysis of the Lockerbie Case has shown, that international criminal law today is rather ineffective because of these reasons:
1) The politically motivated interference of the UN Security Council
2) The inability to present a uniform rules in crime definition and criminal procedure
3) The inability to protect the individuals, being objectives of international criminal law
International criminal law cannot function effectively, as long as these problems are present. In solving the political problem of the UN Security Council and its interference, the road to solving the remaining, mostly legal problems mentioned in 2) and 3) are open. Any effort to solve the legal problems of international criminal law as put in 2) and 3) without first solving the political problems of international criminal law as put in 1) will be a void effort.
Legality emancipates from politics, but politics can kill legality. In order to render international criminal law a better legal tool, we must abolish some of the old-fashioned political views of international law in general. A modification of the UN Charter would be a step into the right legal direction.
Safia Aoude, Islamic Student Organization, Seif al-Jamahiriya, Int.Rev.Com.
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dr. Mohammed Ramadan Bara: Qanun Al-Aqubat Al-Libi (Libyan Penal Law), Tripoli 1993
literature other than books/periodicals, documents etc.:
6th. Comprehensive Report on the Impact of the UN sanctions against Libya transmitted to Secretary general Boutros Ghali by the Libyan Mission to the UN in September 1996
Brief Note Concerning The Initiatives Taken By the Libyan Arab Jamahiriya to Solve the Crisis of Lockerbie, presented by the Libyan Delegation to the 58th Ordinary Session of the Council of Ministers of the OAU, Tunis 14.6.1993
Official document from ICJ case concerning question of interpretation and application of the 1971 Montreal Convention Libya vs. USA march 1992 (1992 Report of the ICJ Libyan Arab Jamahiriya vs. United States of America)
Press statement from Libyan Government concerning Libya's actions in the Lockerbie Case, Libyan People's Bureau, Copenhagen 9/1/1992
Robert W.Rafuse: The Extradition of Nationals, University of Illinois ,no year
International and Comparative Law Quarterly vol 41 (October 1992): "The Lockerbie Affair" pp.907-920
Michigan Yearbook of Intern.Legal Studies vol. 14 (1993): "Libya and the Aerial Incident at Lockerbie: what lessons for international Extradition Law." Joyner and Rothbaum pp.222-261
Historical Survey of the Question of International Criminal Jurisdiction, United Nations-General Assembly, International Law Commission, New York 1949
American Journal of International Law Vol. 90 no.1, 1996, Jose Alvarez "Judging the Security Council"
European Journal of International Law 1993, pp 184-205, Bernhard Graefrath "Leave to the Court what belongs to the Court: The Libyan Case"
Virginia Journal of International Law, 33:pp 899-925,1993, R.F.Kennedy: "Libya vs. The United States: The International Court of Justice and the Power of Judicial Review"
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