Hans Köchler's article for National Law School of India Review (NLSIR), Vol. 19 (2009)

At the time of this writing (November 2008) – almost twenty years after the mid-air explosion of Pan Am flight 103 over Lockerbie, Scotland – the mystery of what caused the catastrophic disintegration of the American jumbo jet on that fateful night in December 1988 is still not resolved and the hearings of the new appeal of the only person convicted in the case are further delayed into 2009 – amidst revelations that the appellant is terminally ill with cancer in an advanced stage.

The trial of the two Libyan suspects at a special Scottish Court sitting in the Netherlands (which lasted from May 2000 until January 2001) has become an exemplary case for the evaluation of the problems and prospects of criminal justice in the framework of international politics, especially when the issue of personal criminal responsibility is related to questions of terrorism, including state terrorism. The complexity of the case lies in the juxtaposition of criminal proceedings (at the domestic level of Scotland) and a political controversy (at the intergovernmental level): Whereas the Court dealt with the question of personal criminal responsibility
of – initially – two Libyan suspects, the criminal proceedings were constantly being interfered with by a dispute between three states (including the suspects’ state of origin) over issues of jurisdiction as well as state responsibility (in terms of liability for
compensation for the loss of life and damages caused by the incident).

The author has followed the political dispute since its beginning and has – through the International Progress Organization (I.P.O.), an NGO in consultative status with the United Nations – made repeated proposals for a peaceful settlement, including the resolution of the question of personal criminal responsibility of the accused Libyan nationals. When, approximately four years after the incident, the Lockerbie tragedy was brought before the United Nations Security Council as an issue of international terrorism, in particular state terrorism, the I.P.O. had formed a committee of experts with the aim to analyze the international legal issues and the political controversy that unfolded between the United States, the United Kingdom and Libya over how to investigate the incident and bring to justice those responsible.

At the time, we were of the opinion that the legal-political dispute should have been resolved on the basis of the “Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation,” the so-called Montreal Convention of 1971.

Concerning the judicial aspect, we had further suggested that the parties involved in the dispute “should consider submitting the question of personal criminal responsibility to an ad hoc international criminal tribunal.” After a session in New York City on 1 December 1994 – in the course of which we held consultations with the President of the Security Council – we further suggested, inter alia, that the Security Council submit the question of personal criminal responsibility of the accused Libyan nationals “to a criminal tribunal of Scottish Judges meeting at the seat of the International Court of Justice.”8 At that time, in December 1994, we also had called upon the U.S. Congress and the U.K. Parliament to hold public hearings into the Lockerbie incident and the author subsequently held a series of consultations with members of the United States Congress in Washington, D.C.

When eventually – four years later – the Security Council had welcomed the initiative for the trial of the two Libyan suspects before a Scottish Court sitting in the Netherlands, the author reiterated the Committee’s view that “a criminal tribunal on this case should either be international in its composition or should operate in an international framework such as that of the International Court of Justice.”

We also had stated that “[t]here is no reason to doubt the report of the independent experts appointed by the Secretary-General of the United Nations on the Scottish judicial system. The real issue, however, is not whether Scottish law is applied or not, but
whether a tribunal consisting exclusively of Scottish judges can meet the requirement of impartiality” – because of the political nature of the dispute which was related to a case of criminal justice, with the United Kingdom, the country of jurisdiction (via
the Scottish judicial system), as a party.

The actual conduct of the trial and appeal proceedings in the rather unique extraterritorial framework on the grounds of a former NATO air force base in the Netherlands has made obvious that the concerns the author had raised in the years when these arrangements were proposed and negotiated were well justified. One fundamental aspect must not be overlooked when it comes to these special arrangements: Contrary to the widespread perception in the international public, the High Court of Justiciary sitting at Kamp van Zeist was essentially a domestic court, created on the basis of a decree of the Queen of the United Kingdom that in turn was initiated by a Chapter VII resolution of the Security Council (1192 [1998]) and implemented through an intergovernmental agreement between the United Kingdom and the Netherlands.

I shall not repeat here the remarks on the trial and appeal which I have made in two comprehensive reports that were submitted to the United Nations Organization and forwarded, in turn, to the Scottish Court. What I have learned – in the course of the two years at Kamp van Zeist (2000-2002) – was that, in spite of the “geographical isolation,” even conclave-like situation, in which these proceedings were conducted, it is almost a “mission impossible” for any judiciary – whether from Scotland or elsewhere – to meet basic standards of fairness and impartiality in the handling of a criminal case which is part of a dispute in the domain of international power politics, and even more so when this involves questions of state responsibility for acts of terrorism.

My conclusion – after the announcement of the trial verdict in January 2001 and again after the appeal decision in March 2002 – was that a miscarriage of justice may have occurred, i.e. that the Libyan national who is now serving his sentence in a Scottish prison may not be guilty as charged. In the meantime, more than six years after my first observation in this regard, the Scottish Criminal Cases Review Commission (SCCRC) has come to the same conclusion (concerning a possible miscarriage of justice).

With the decision of the SCCRC, in June 2007, to refer Mr. Al-Megrahi’s case back to the appeal court, the case has entered a new and politically highly complex and sensitive phase. The critical nature of the new judicial review process has become more than obvious in the issuance of a so-called Public Interest Immunity (PII) certificate by the Foreign Secretary of the United Kingdom, which is aimed at withholding certain evidence (namely secret documents originating from a foreign government) from the Defence and thus from public view. In a jurisdiction where the European Human Rights Convention’s rules on fair trial are scrupulously
upheld, the staying of proceedings because of non-disclosure of evidence would be a real prospect.

This dilemma makes it all too obvious that the structural problem besetting the proceedings from the very beginning – namely that this case of criminal justice is situated in the space of international politics, not law – has not been resolved in any way (in spite of the SCCRC’s decision on the referral of the case). Since the arguments advanced by the British Foreign Secretary in his PII certificate have not been questioned by the judges – they appear resigned to accommodate his request by the appointment of a “Special Counsel” –, the Defence will effectively be denied access to important material that has, as we now know, been in the possession of the Prosecution since before the beginning of the trial in the Netherlands. How can there be equality of arms, one has to ask, if vital evidence is only made available to one party? 

An adversarial system of criminal justice, in particular, would be an absurdity if a court has to operate on the basis of a kind of “information privilege” granted to the Prosecution over the Defence. Such a “reductio ad absurdum” must not be allowed to happen whatever the case may be and under whatever circumstances.

There should be no illusions about it: If a fair trial cannot be ensured, no trial can be conducted – because (appeal) proceedings on the basis of evidence that is withheld from one side do not belong in a court of law, but would be an exercise of authoritarian (state)
power – and would thus make a mockery of the separation of powers, an indispensable principle of the rule of law.

As I had explained in my letter to the British Foreign Secretary (21 July 2008),24 there is indeed a recent precedent of such a scenario. On 13 June 2008, Trial Chamber I of the International Criminal Court in The Hague decided to stay the proceedings in the case of The Prosecutor v. Thomas Lubanga Dyilo because of the nondisclosure of exculpatory materials. The judges ruled as follows: “The Chamber has unhesitatingly concluded that the right to a fair trial – which is without doubt a fundamental right – includes an entitlement to disclosure of exculpatory material …”

They further referred to an earlier ruling by the International Criminal Tribunal for the former Yugoslavia according to which “the public interest [...] is excluded where its application would deny to the accused the opportunity to establish his or her innocence.”

Furthermore, it should be made clear that the appointment of a “Special Counsel” by the Court – who will be provided with a confidential summary of the evidence in question – will not in any way solve the problem. I am rather surprised that the High Court ruled on 19 August 2008 that such Counsel should be appointed at all – a decision that has not been disclosed to the public when it was issued but only was revealed through the author’s action several weeks later.

On the basis of what criteria is such Special Counsel chosen? Who will decide what information will actually be disclosed in the summary and what not? Is it the intelligence services of the UK and an unnamed “foreign country” or the Lord Advocate (Prosecutor) or the Court? In this almost Kafkaesque situation, the accused/appellant will never be allowed to know in full what specific additional information has been in the possession of the Prosecution all along; he, thus, is not only denied the basic human right (enshrined in Art. 6[3][c] of the European Convention for the Protection of Human Rights and Fundamental Freedoms) to defend himself through legal assistance of his own choosing, but will be deliberately kept in the dark about possible exculpatory material.

This means that, in the phase of the second appeal – since the referral of Mr. Al-Megrahi’s case by the SCCRC in June 2007 – the basic predicament that has characterized the trial will be even more acute, and a solution appears to be more evasive than ever: Serious doubts persist about the fairness and, thus, compatibility of the Lockerbie proceedings with basic human rights standards.
Scotland’s obligations under the European Human Rights Convention would have made it imperative nonetheless that the Scottish judges order full disclosure of all evidence that has been in the possession of the Prosecution and thus reject the British Foreign Secretary’s PII certificate, a measure which, according to Scots law, would have been at the discretion of the judges. In general, fairness and impartiality do not allow any other resolution of such an issue of disclosure. What is at stake here is the integrity of the system of criminal justice. The requirements of international politics (i.e. British national interests) must not stand in the way of due
process.

Regrettably, the judges have decided in favour of political expediency.

Up to a certain extent, political considerations may also have influenced the work of the Scottish Criminal Cases Review Commission. The specific formulation of the decision of the SCCRC, referred to above, reveals in itself the very problem of
impartiality in the operation of Scotland’s supreme judicial review body. The SCCRC’s “Press Release” of 28 June 2007, announcing the decision about the referral of Mr. Al-Megrahi’s case back to the High Court of Justiciary, does not simply give
the reasons for such referral, but also contains a strange kind of “preventive exoneration” of Mr. Al-Megrahi’s original defence team (who represented him during the Trial and first Appeal in the Netherlands and in a manner that was less than adequate) and of Scottish investigators (in connection, inter alia, with accusations of manipulation of key forensic evidence in the period preceding the trial).

In spite of Mr. Al-Megrahi’s repeated complaints about inadequate representation by his own Defence team, the Commission bluntly stated that it “did not consider the allegations to be well-founded.” The SCCRC apparently wanted to have these questions as to the fairness and impartiality of Mr. Al-Megrahi’s trial and (first) appeal excluded from a new appeal. Another remarkable feature of the SCCRC’s News Release was that it kept one of the six grounds for the referral secret.

A further dispute between the Crown Office (Prosecution) and Defence over the scope of the new appeal underlines the serious concerns about fairness and impartiality which the author has repeatedly raised since the beginning of the Lockerbie trial:

(a) The Prosecution wanted to restrict the “reasons” of appeal to the six reasons enumerated in the referral decision of the SCCRC. Can an appeal be fair – or at all meaningful –, one has to ask, if the Defence is prevented from developing the argument on the basis of additional reasons (not mentioned by the SCCRC) why Mr. Al-Megrahi may have suffered a miscarriage of justice?

(b) The more general question is what specific evidence will be admitted in the new appeal hearings. Will the Defence be in a position to use material that has become available in the time that has passed since the original verdict (in January 2001) – contrary to the expressed position of the Prosecution? As matters stand now, the government of the United Kingdom will effectively be in a position to interfere into the proceedings by determining that certain material, due to its “sensitive” nature in terms of national security, cannot be disclosed to the Appellant.

How the problem of the “Special Counsel” (with the issue of partial disclosure of evidence to a person not chosen by the Appellant) is finally handled by the Court will further reveal how far a Scottish Court is prepared to go in compromising the fairness of an appeal in favour of accommodating requirements set by the executive branch. Such a case of the state authority demanding non-disclosure of evidence is indeed without precedent in Scotland. (There have only been cases in England in connection with terror-related prosecutions.) Since the United Kingdom has ratified the Convention for the Protection of Human Rights and Fundamental Freedoms (which also applies to the Scottish jurisdiction), the meaning of the “rule of law” and the primacy of “human rights” in the European legal space will be under special scrutiny. Defence’s position: “The court’s conclusion is … that the appellant is entitled to have his stated grounds of appeal decided by the court on their respective merits.” (Abdelbaset Ali Mohmed Al Megrahi against Her Majesty’s Advocate, Scope of the Appeal, Summary, 15 October 2008.)

Conclusions in terms of the criminal justice system

At this point in time (towards the end of 2008), one can only speculate about the final outcome of the appeal process triggered by last year’s decision of the Scottish Criminal Cases Review Commission; it is impossible to say, at this stage, how the political scenario will eventually affect the legal domain; nonetheless, some conclusions – in terms of criminal procedure – can be drawn from the handling of the Lockerbie case by the Scottish judiciary so far.

What follows from my observations, is a rather gloomy scenario for the future of international criminal justice – in particular as regards the prospects of the ICC (as the only permanent institution in that field) and the doctrine of universal jurisdiction (which goes beyond the ICC’s complementary jurisdiction). The experience with the Lockerbie review process during the last few years has, to a considerable extent, confirmed the doubts about the sustainability of the project of international criminal justice which I had raised in my book “Global Justice or Global Revenge?” (2003) – especially as regards the highly politicized environment in which proceedings have to be conducted.

Fairness of a trial requires independence (a) in the conduct of the proceedings (which have to be free from political interference, whether domestic or international) and (b) of the mind on the part of all protagonists (first and foremost the judges). Neither the first nor the second requirement was met in the Lockerbie trial and appeal in the Netherlands – nor was independence in the above sense ensured in the functioning of the SCCRC (in the years after the first appeal decision of 2002) or will it be ensured in an eventual second appeal.

The lack of judicial independence has become painfully obvious in two basic
respects:

(1) During the proceedings in the Netherlands, vital evidence could not be made available because, for its provision, the Court had to depend on a reluctant executive branch, including foreign governments. Since the “Scottish Court in the Netherlands” (in spite of its extraterritorial setup and a Chapter VII resolution of the Security Council having triggered the process towards its creation) was essentially a domestic court, those governments were – and (as regards the forthcoming second appeal in Scotland) still are – under no legal obligation to produce certain material required as evidence in the course of the trial. (Security Council resolution
1198 [1998] does not constitute an obligation on the part of governments to co-operate with the Court on such matters.)

(2) (a) The judges produced an inconsistent verdict based on flawed arguments – something which cannot simply be explained by their lack of analytical skills, but is most likely to be attributed to the political scenario in which the trial was situated.

(b) The Prosecution appeared to depend, to a considerable extent, on two American FBI officers who were present in most sessions and were seen frequently interacting with members of the prosecution team.

(c) The Defence, on its part, repeatedly signed “Minutes of Agreement” with the Prosecution against the express will of the first accused Mr. Al- Megrahi, the only convicted Libyan national.

Altogether, the actions of the Prosecution and Defence often appeared co-ordinated, somehow following an external (non-judicial) strategy,40 and created the impression of a scripted procedure (whereby the “script” was followed at least to a certain extent)
and of a negotiated outcome. For an independent observer from outside the Scottish judicial establishment, there was simply no other way to explain the strange kind of “Solomonic judgment” which three Scottish law lords had unanimously reached at
the end of the trial and five other law lords had confirmed by unanimously rejecting the (first) appeal; in the author’s evaluation, this judgment was more the child of political (i. e. diplomatic) convenience than of sound legal reasoning.

How could one otherwise have explained that the first suspect was found “guilty” while the second suspect was found “not guilty” – both on the basis of an indictment the main argument of which was a rather complicated explanation, almost exclusively based on
inferences, how the two Libyan suspects had acted together to ingest a bomb, hidden in a brown Samsonite suitcase (that was supposed to travel as unaccompanied luggage to Frankfurt and from there on to Heathrow), at Luqa airport in Malta?

In this unique case of hybrid domestic-international statutes and arrangements, the Scottish judiciary could simply not evade the “structural predicament” that resulted from external influences at different levels and of different nature. Although, since the Acts of Union of 1707, Scotland has had its own judicial system within the United Kingdom of Great Britain (and [Northern] Ireland), the
Lockerbie court and the officials dealing with the judicial review have had to operate under conditions which the government of the United Kingdom, partly in tandem with foreign governments such as that of the United States, has determined to such an extent that the separation of powers, a fundamental requirement of the rule of law, was put in jeopardy:

(a) The Lockerbie court was set up as special court by Royal Decree (High Court of Justiciary [Proceedings in the Netherlands]
Order 1998) the rationale of which was derived from the binding nature, acknowledged by the United Kingdom, of a Chapter VII resolution of the Security Council, the supreme executive – and definitely not the judicial – organ of the United Nations organization.

(b) Certain evidence had to be procured through the government of the United Kingdom, including requests that had to be addressed to foreign governments by way of the British Foreign Office. Because of the lack of co-operation of certain foreign governments, substantial evidence could never be made available in court.

(c) More recently, the British Foreign Secretary, as explained above in more detail, has issued a so-called “Public Interest
Immunity certificate” which orders the non-disclosure of certain material (from a foreign government) to the Defence.

It is obvious that especially the latter measure makes a fair trial (i.e. new appeal) impossible. As we have stated earlier, the appointment of a security-vetted “Special Counsel” to represent Mr. Al-Megrahi in regard to the “secret” documents covered
by the PII certificate will not alleviate the situation in any way, but will make the eventual new appeal proceedings even more appear like measures that are part of a political process, not a court of law. Such “extraordinary” measures indeed resemble an intelligence operation that serves the political interests of the state(s) involved in it, and are incompatible with the independence of the judiciary and the fairness of judicial proceedings as a supreme public interest.

Conclusions in terms of law and (international) politics

The Lockerbie case has exposed the fundamental, almost insurmountable, difficulties faced by any system of criminal justice when administered in a context of international politics:

– The principle of the separation of powers, indispensable for the legitimacy of judicial proceedings and for the rule of law in
general, cannot be upheld if a state’s foreign policy interests are directly affected not only by the outcome, but by the very
conduct of a particular trial (criminal prosecution) within that state’s jurisdiction, something which almost unavoidably implies
that the respective proceedings will be prone to interference by intelligence services, whether domestic of foreign.

– If criminal justice in a particular case (such as that of the Libyan Lockerbie suspects) can only be practiced by the protagonists’
following a political script and, ultimately, the judges’ committing a kind of “judicial” sacrificium intellectus, compromising their reputation and independence on the altar of “national interests” that are never clearly specified (and carefully hidden from the public anyway), such practice of the law will be intrinsically flawed and ultimately counterproductive in terms of the fundamental goal of international criminal justice, namely the promotion of the international rule of law and, through it, peace among nations. As stated earlier, such practice does equally not bode well for the ambitious contemporary project of universal jurisdiction or the only permanent institution, so far, for the administration of criminal justice at the transnational level, the ICC.

The final chapter of the Lockerbie trial is not yet written. What can be said at this stage, however, is that a hybrid arrangement for an extra-territorial domestic court – such as the one for a Scottish Court sitting in the Netherlands – cannot overcome the “judicial predicament” caused by the involvement of the respective country’s executive in an international dispute that is directly related to the criminal case in question. So far, the conduct of the trial and appeal proceedings by the Scottish judiciary has set a negative example; it has alerted us about the problems and pitfalls of criminal justice in the international domain and – regrettable as it may be, depending upon one’s approach towards international affairs – has done disservice to the cause of introducing “universal jurisdiction,” whether exercised by domestic or ad hoc international courts, into the body of contemporary international law.4

Apart from criminal justice and the (international) rule of law, the concerns which the author has repeatedly raised as International Observer of the proceedings at Kamp van Zeist in the Netherlands also relate to basic issues of international security. The handling of the Lockerbie case by the Scottish judiciary will have far reaching implications for what some governments call the “global war on terror.”

Only a just and convincing resolution (in terms of arguments and legal procedure) of the question of personal criminal responsibility will enable the countries involved in the dispute, first and foremost the United Kingdom and, subsequently, the
“international community,” to draw the appropriate lessons for a credible and sustainable counter-terrorist strategy. There can be no justice without truth – and no efficient measures to protect a country’s citizens can be taken if political (in particular foreign policy) interests prevent a proper and thorough investigation into the causes of – and possible criminal responsibility for – an incident such as the explosion of the Pan Am jet over Lockerbie in December 1988.

After an involvement of over more than 15 years in the observation and analysis of the legal and political disputes between the United Kingdom, the United States and the Libyan Jamahiriya – essentially over an issue of criminal jurisdiction in a suspected case of international terrorism –, the author has summarized his conclusions in remarks at the Law Awards of Scotland 2008:

“Whether those in public office like it or not, the Lockerbie trial has become a test case for the criminal justice system of Scotland.
At the same time, it has become an exemplary case on a global scale − its handling will demonstrate whether a domestic system
of criminal justice can resist the dictates of international power politics or simply becomes dysfunctional as soon as "supreme
state interests" interfere with the imperatives of justice. Fairness of judicial proceedings is undoubtedly a supreme and permanent
public interest. If the rule of law is to be upheld, the requirements of the administration of justice may have to take precedence over
public interests of a secondary order − such as a state's momentary foreign policy considerations or commercial and trade
interests. The internal stability and international legitimacy of a polity in the long term depend on whether it is able to ensure the
supremacy of the law over considerations of power and convenience. Contrary to what skeptics and the advocates of the
supremacy of realpolitik try to make us believe, the basic maxim of the rule of law is not fiat justitia, pereat mundus but fiat justitia ne pereat mundus –‘let justice prevail so that the world does not perish.’”

From the author’s keynote address delivered at the Law Awards of Scotland 2008 in association with Registers of Scotland, The Hilton Hotel, Glasgow, Scotland, 18 September 2008.