Overshadowed by the recent attempted terrorist attacks in London and Glasgow–on July 28th the Scottish Criminal Cases Review Commission released an 800-page report, examining whether the Lockerbie trial constituted a miscarriage of justice. See:
http://news.bbc.co.uk/2/hi/uk_news/scotland/south_of_scotland/6242828.st
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Although I have written that the Lockerbie trial was a diplomatic success story, bringing an end to the 30-year low intensity conflict between Libya and the United States, I have been very critical of the court’s judgment and have been one of the experts calling for a review of the case. For my latest article on the issue, see:
http://ssrn.com/abstract=970350 .
Last week, from Utrecht University (just 5 miles from the venue where the Lockerbie trial took place in 2000), I was interviewed by the BBC for a story that has been broadcast worldwide several times in the past twelve hours. For the segment, see: www.bbc.co.uk/scotlandnews
During my interview, I told the BBC that in hindsight, my colleagues and I at the State Department in 1991 were made to play the role that Colin Powel played on the eve of the 2003 invasion of Iraq. The Department of Justice had assured us that there was an air-tight case against the two Libyans, based on indisputable forensic evidence, a confidential informant whose credibility was without question and an eye witness who could prove the two Libyans had planted the bomb. Based on these representations, we were able to obtain Security Council
approval for comprehensive economic sanctions against Libya. After attending the trial at Camp Zeist in 2000, however, I saw firsthand that the case was not a very strong one; the insider witness (Abdul Majid Giaka) was (in the words of the court) “prone to fabrication and could not be accepted as a credible and reliable witness”, and the crucial eye witness (Tony Gauci) did not provide an unequivocal identification.
I also told the BBC that perhaps I should have seen this coming when the US and UK governments made the decision not to seal the indictments against the two Libyans. If it had really been our intention to bring the case to trial, the indictments would have been kept secret so that there would be a greater chance of apprehending the accused the next time they left Libyan territory. The decision to publicly identify the two accused Libyans suggested that a decision had been made to use the case solely as a diplomatic tool to obtain economic sanctions against Libya.
Finally, I told the BBC that the trial seemed designed to achieve a diplomatic solution rather than the truth about who was really behind the Pan Am 103 bombing. The judgment did not indicate how high up the Libyan government chain of command the responsibility extended, nor did it rule out the possibility that Iran and Syria had also been involved in the bombing plot, as many experts still believe. As Professor Cherif Bassiouni has stated, “the Lockerbie trial was designed to make sure that history would not be recorded because the political interests of certain states were at stake.”
The Lockerbie judgment may not be the “Dred Scott” of Scottish jurisprudence, but I do think there there were enough problems with the judgment to warrant a decision by the Scottish Criminal Cases Review Commission to order the Case to be reopened.
