In an unexpected broadside, UN appointed Special Observer to the Lockerbie proceedings Dr Hans Kochler has contradicted comments by Professor Robert Black -widely considered as the architect of the unique Zeist trial- in which he said that the intergovernmental agreement governing Abdelbaset Al Megrahi's extra-territorial trial in Holland had expired, and therefore his current appeal could be held in Scotland.

Dr Kochler says that the original intergovernmental agreement which allowed the trial to be held in Camp Van Zeist in the Netherlands in the first place is still in effect, and accordingly the current second appeal, which follows the referral of the case back to the High Court on the basis a miscarriage of justice may have taken place- is incompetent.

Kochler argues that the terms of the original agreement would have required written agreement from Megrahi that the proceedings should be held in Scotland. Kochler states that no such agreement has been given.  He further says that the Zeist agreement's own terms dictate that its effect would carry on until the trial outcome was final and conclusive. "As of today, this is clearly not the case since the Scottish Criminal Cases Review Commission has referred Mr. Megrahi’s case back to the High Court for a second appeal," he says.

Dr Kochler's full statement can be read below.

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Statement by Dr. Hans Koechler

International Observer at the trial before the Scottish Court sitting in the Netherlands, nominated by the Secretary-General of the United Nations pursuant to paragraph 6 of Security Council resolution 1192 (1998) and in conformity with Art. 18 of the Agreement between the Governments of the U.K. and the Netherlands (18 September 1998)



Vienna, 23 June 2008

P/RE/20146



In an article published in its issue of 15 June 2008, the Sunday Times reports that Prof. Robert Black (Edinburgh) “said that the intergovernmental agreement no longer applied.” He is quoted with the statement that the Agreement “existed for the original trial and the appeal. This is now the second appeal …” and that “the agreement was spent.”

The statement that the Agreement “no longer applied” and “was spent” contradicts the precise wording of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands concerning a Scottish Trial in the Netherlands, concluded at The Hague, Netherlands, on 18 September 1998 and entered into force on 8 January 1999 (United Kingdom Treaty Series No. 43 [1999]) in the following two respects:



(1) Art. 3, Par. 4 states that “the trial” “will be deemed to be ended when … any judgments of the Scottish Court following conviction have become final and conclusive.” (Lit. c) As of today, this is clearly not the case since the Scottish Criminal Cases Review Commission has referred Mr. Megrahi’s case back to the High Court for a second appeal.

(2) Under “Definitions” in Art. 1, lit. (i) it is expressly stated that the term “the trial” also means “any appeal by the accused following conviction, all in accordance with Scots law and practice.” (Emphasis by H.K.) Nowhere does the agreement distinguish between a “first” and a “second” appeal.



If one applies the provision of Art. 16, Par. 2, lit. (a) of the Agreement to the situation prevailing now – after a new appeal has been granted to the convicted Libyan national –, the appeal proceedings can only be held in Scotland under the condition that he has given his “written agreement” and has confirmed that agreement “in person to the High Court of Justiciary in the presence of any counsel instructed by [him].”

As of today, the undersigned is not aware of such a written agreement given by Mr. Megrahi in person to the High Court of Justiciary. An agreement conveyed by his defense counsel (should that have been the case) is not sufficient. Even in the case of Mr. Megrahi’s having given his agreement according to Art. 16, Par 2, lit. (a), the intergovernmental Agreement as such is still valid because it does not distinguish between “first” and “second” appeal.



Dr Hans Köchler