Scottish authorities recently freed convicted Pan Am 103 bomber, Abd al-Basit al-Megrahi, on “compassionate grounds,” sparking protests in America and the UK. Magrahi has been diagnosed with terminal prostate cancer, and is expected to live only a few more months. But make no mistake; Megrahi’s release was part of a deal. I’m not speaking of some sort of trade or business deal between the UK and Libya (as others have suggested), but rather the deal by which Megrahi had to drop his appeal and related discovery request, which had been winding their way through the Scottish Courts, in order to obtain his freedom.
Megrahi’s current appeal was filed in 2007, after a four-year review by the Scottish Criminal Cases Review Committee concluded that “a miscarriage of justice could have occurred” in the case. Magrahi’s legal team have said that the appeal was based on new evidence, including: (1) information that the critical eye-witness ,Tony Gauci, was paid $2 million for his testimony and was coached by detectives; (2) new scientific analysis that raises substantial doubts about the location of the bomb aboard the airliner; and (3) documents showing that evidence that the bomb was planted by a Syrian-backed Palestinian cell based in Germany had been ignored. There is reportedly 600 pages of evidence in the possession of the Scottish Criminal Cases Review Commission that bolster these allegations. With the withdrawal of Megrahi’s appeal, none of it is likely to ever see the light of day.
Elsewhere, I have written that the Lockerbie trial was a great diplomatic success story, but not a very good vehicle for getting at the truth about who was really responsible for the bombing. See below. That conclusion is only fortified by these latest developments.
Michael P. Scharf, The Lockerbie Model, in International Criminal Law (M. Cherif Bassiouni ed., 3rd ed, Transnational Publishers/Brill, 2007) (footnotes omitted for this posting).
I. Introduction
On December 21, 1988, Pan American Airways Flight 103 exploded over Lockerbie, Scotland, killing 259 passengers and crew members as well as eleven residents of the small Scottish town. With the exception of the attacks of September 11, 2001, this was the worst case of air terrorism ever committed on Western soil and the Scottish and American authorities responded by launching the largest international criminal investigation ever undertaken. It took three years for the investigators to piece together what happened and who they believed to be responsible. In 1991, the United States and United Kingdom each issued indictments against two Libyan agents for the Lockerbie bombing, which had allegedly been undertaken in revenge for the U.S. bombing of Tripoli in 1986. It required the imposition of UN Security Council sanctions and eight years of shuttle diplomacy to work out a deal between the United Nations, the United States, the United Kingdom, and Libya to bring the accused perpetrators to trial before a novel Scottish court sitting at a retired U.S. air force base known as Camp Zeist in The Netherlands.
II. Creation of the Pan Am 103 Tribunal
Like other anti-terrorist treaties, the Montreal Convention, which covers aircraft sabotage, requires a state in whose territory an alleged offender is found to either prosecute or extradite, and requires other states to cooperate in the prosecution of alleged offenders. It also provides jurisdiction to prosecute to the state in whose territory the offense occurred and the state whose citizens were harmed. In response to the U.S. and U.K. indictments, Libya asserted its right to prosecute the accused Libyan nationals who were then present in Libyan territory, but the United States and U.K. felt that such prosecution would be a sham since the government of Libya itself was implicated in the bombing and the Libyan courts were not sufficiently independent of the Executive. Consequently, the United States and U.K. obtained a Chapter VII resolution of the U.N. Security Council, requiring Libya to surrender the alleged offenders to the United States or U.K. for trial, or face economic sanctions. This was the first time the Security Council had ever used its powers to take coercive action to maintain or restore international peace and security to compel a State to surrender its own nationals for trial abroad.
In 1997, Libya issued a Position Paper, indicating that Libya was prepared to accept “the trial of the two suspects by Scottish judges at the seat of the International Court of Justice under Scottish law.” Six months later, in August 1998, the United States and U.K. presented their compromise proposal to the UN Secretary-General: “As an exceptional measure,” the trial would be held in a neutral venue, the Netherlands, following normal Scottish law and procedure except that the jury would be replaced by a panel of three High Court judges. The Scottish rules of evidence would apply, as would all the normal guarantees for a fair trial. The accused were assured of safe passage to the Netherlands, from which they would not be transferred for trial elsewhere. The accused would be entitled to Scottish lawyers of their choosing and the proceedings would be translated into Arabic. International observers would be entitled to attend the trial and visit the accused in custody. Finally, if found guilty, they would serve their sentence in Scotland.
The August 1998 U.S./U.K. proposal contained a draft Agreement between the Government of the UK and the Netherlands, which was finalized and agreed to on September 18, 1998. Under the Agreement, the Dutch undertook to make premises available for the Scottish Court, which would be inviolable and under the control of the Scottish Court. Internal Security was to be the responsibility of the Scottish Court, with external Security falling to the Dutch authorities. The Court was accorded legal personality, immunity from legal process, and exemption from taxes and duties. The accused, witnesses, and lawyers were afforded safe passage. All costs incurred by the Dutch government were to be borne by the United Kingdom.
Under Scottish law, special legislation was necessary in order to permit a Scottish court to sit outside Scottish territory. The legislation, adopted on September 16, 1998 under the United Kingdom’s United Nations Act of 1946, and pursuant to UN Security Council Resolution 1192, specified that the Pan Am 103 Tribunal would be composed of three judges rather than a jury, that decisions would be made by majority vote, that the judges must give written reasons for their decisions, that they would utilize the normal Scottish criminal procedure, and that UN observers would be permitted to observe the proceedings. The Scottish Court was located at Camp Zeist, eight miles from Utrecht in Central Holland.
III. An Analysis of the Judgment
On January 31, 2001, after a nine-month trial, the Pan Am 103 Tribunal rendered its verdict. The court found one of the two Libyan defendants, Al Amin Fhima, not guilty and he was immediately returned to Libya where he received a hero’s welcome. It found the other defendant, Abdelbaset al-Megrahi, guilty of murder and sentenced him to a minimum of 20 years imprisonment in Berlinie prison in Scotland. The verdict did not, however, implicate those higher up in the Libyan government, nor did it rule out the possible involvement of Iran in the bombing. Moreover, although the decision to convict Al-Megrahi was unanimous, the judgment indicates that it had been a close call, with the three judges acknowledging that the prosecution’s case had “uncertainties and qualifications” and that key witnesses had repeatedly lied. Indeed, portions of the judgment read as though the text had been drafted for a “not proven” verdict, which is used under Scottish law when the court is convinced of guilt but the evidence does not rise to the level of “beyond reasonable doubt.”
Although the eight-month-long trial featured the testimony of 235 witnesses and the admission of thousands of pieces of physical and documentary evidence, the case ultimately turned on just four key pieces of physical evidence recovered from the wreckage of Pan Am 103 in Scotland, one vital document supplied by Germany, and four crucial witnesses from the United States, Switzerland, Malta and Sweden.
The first important piece of physical evidence was the reconstruction of the aircraft itself, which the court found indicated that there had been a bomb detonation in cargo container AVE 4041. The suitcases loaded onto that particular container, the court concluded, came from the Pan Am feeder flight (Pan Am 103A) from Frankfurt. The second was the recovery from the wreckage of charred pieces from a Toshiba RT-SF 16 Bombeat radio cassette player and a brown Samsonite suitcase, which the court found had contained the bomb. The third was the discovery of charred remnants of clothing (two pairs of Yorkie trousers, a blue Babygro jumper, and an umbrella) which had been packed in the bomb suitcase. The court found that the clothing originated in Malta and had been sold by a small store called “Mary’s House.” The fourth was a tiny fragment of a circuit board for an MST-13 timer, which the court found had been manufactured by a Swiss electronics firm called MEBO.
The document that played such an important part in the case was a computer printout of baggage tracking information for Frankfurt airport at the time the Pan Am feeder flight was being loaded. The document proved to the court’s satisfaction that an unaccompanied bag had been transferred from Flight KM180 from Malta to Pan Am 103A. But the Court found that the prosecution had not proved how this suspicious suitcase had been placed on board KM180. This, the court pointed out, is “a major difficulty for the Crown case.”
The first key witness was Abdul Majid (aka Giaka), a member of the Libyan External Security Organization (JSO) who worked as a double agent for the CIA and is now in the U.S. witness protection program. In light of inconsistencies in his testimony and CIA documents released late in the trial suggesting he was prone to fabrication, the court found that Abdul Majid could not be accepted as a “credible and reliable witness.” After summarizing Majid’s various lies and exaggerations, the court concluded: “Information provided by a paid informer is always open to the criticism that it may be invented in order to justify payment, and in our view this is a case where such criticism is more than usually justified.” The court therefore rejected Majid’s claims that the defendant Fhima possessed plastic explosives in his office desk at Luqa airport and that he saw the two defendants load a brown Samsonite suitcase into KM180 on the morning of the Lockerbie bombing. The court did, however, accept Majid’s testimony that al-Megrahi was a high-ranking member of the JSO, that al-Megrahi traveled on a fake passport, and that his job was military procurement — findings that were to prove critical to the verdict.
The second important witness was Edwin Bollier, the owner of the MEBO electronics firm in Zurich. Bollier, the court found, was an “untruthful and unreliable witness” and much of his testimony “belongs in the realm of fiction where it may be best placed in the genre of the spy thriller.” However, the court accepted Bollier’s testimony that he had rented office space “some time in 1988 to the firm ABH in which the first accused [al-Megrahi] and one Badri Hassan were the principals.” The court also accepted that Bollier had supplied MEBO MST-13 timers to both Libya and the East German Stasi, but found that there was no positive evidence that the Stasi ever supplied the timers to the PFLP-GC terrorist group as the Defense suggested.
The most important witness of all was Tony Gauci, the proprietor of Mary’s House in Malta. Gauci identified al-Megrahi in court as the person who purchased the clothing that had been found in the Lockerbie bomb suitcase, although in the words of the court it was “not an unequivocal identification.” The Court noted that Gauci had previously identified individuals other than the defendant out of photo displays. In particular, Gauci had previously said that a photo of Abu Talb, a member of a palestinian terrorist group, “resembled him alot.” Gauci also testified that it had been raining the evening of the sale and that his brother had been at home watching a soccer game on TV. The day defendant al-Megrahi was in Malta and allegedly purchased the clothes from Mary’s House, December 7, 1988, had according to meteorological records been dry and there was no soccer game on TV. Despite these inconsistencies, the Court stated that it was “nevertheless satisfied that [Gauci's] identification so far as it went of the first accused as the purchaser was reliable and should be treated as a highly important element in this case.”
The final witness of importance was Abu Talb, a member of a Palestinian terrorist group, who had close ties to a PFLP-GC bomb-making operation in Germany that was uncovered by Germany authorities two months before the Lockerbie bombing. Talb, it was revealed, had been in Malta in late October 1988. He was subsequently arrested and convicted by a Swedish court in 1989 for a series of terrorist bombings in Copenhagen. A search of his apartment in 1989 had uncovered a barometric detonator, clothing from Malta, and a calendar with the date of the Pan Am 103 bombing, December 21, 1988, circled. Despite these revelations, the court concluded: “We accept that there is a great deal of suspicion as to the actings [sic] of Abu Talb and his circle, but there is no evidence to indicate that they had either the means or the intention to destroy a civil aircraft in December 1988.”
The murder conviction of al-Megrahi was therefore based on four findings: first, that he was proved to be a Libyan intelligence officer “of fairly high rank”; second, that he traveled on a fake passport; third, that he was in military procurement and had dealings with MEBO; and fourth, that Gauci had identified him as the purchaser of the clothing found in the bomb suitcase. From the point of view of the families of the victims, the most important finding in the judgment had to do with Libya’s responsibility for the bombing. The court stated: “The clear inference which we draw from this evidence is that the conception, planning, and execution of the plot which led to the planting of the explosive device was of Libyan origin.” The court did not, however, indicate how high up the Libyan government chain of command the responsibility extends, nor did it rule out the possibility that Iran had also been involved in the bombing plot, as many experts still suspect. As Professor Cherif Bassiouni has suggested, “the [Lockerbie] trial was designed to make sure that history would not be recorded because the political interests of certain states were at stake.”
On March 14, 2002, the Scottish Appeals Court upheld Magrahi’s conviction, ruling in a lengthy opinion that “none of the grounds of appeal are well founded.” In doing so, the Appeals Court applied an extremely deferential standard to the Trial Court’s findings of fact and inferences drawn from the evidence. Despite the Appeals Chamber’s judgment, many experts continue to question the findings of the Pan Am 103 trial. In particular, Professor Hans Kuchler, the official UN observer of the trial and appeal, has said: “I am sorry to admit that my impression is that justice was not done and that we are dealing here with a rather spectacular case of a miscarriage of justice.”
IV. A Diplomcatic Success Story?
The mixed verdict, limited findings, and dubious conclusions in the Lockerbie case have left the public questioning whether the trial succeeded in achieving justice and truth. But perhaps a more important measure for judging the success of the Lockerbie trial is the extent to which it contributed to peace and security.
The Lockerbie trial must be viewed in the context of the thirty-year-long, low-intensity conflict between Libya and the United States. When Colonel Moammar Khadafy came to power in 1969, Libya nationalized U.S. corporate-owned oil wells and refineries and began to support anti-Western terrorist organizations. In the early 1980s, the Reagan administration conducted naval and air exercises off the coast of Libya, provoking the first of several minor military confrontations. Then, when terrorists detonated a bomb in the LaBelle Discotheque in Germany, killing several American servicemen, the Reagan administration claimed that Libya was behind the bombing and launched a surprise airstrike on Khadafy=s residence in Tripoli, which injured his son and killed his infant daughter.
The verdict in the Lockerbie case confirmed the U.S. government=s charge that the bombing of Pan Am 103 in 1988 was undertaken by Libyan agents in retaliation for the 1986 US airstrike on Tripoli. When evidence of Libyan involvement first came to light in 1991, officials throughout the US government debated the best way to respond. It was generally agreed that use of force would only lead to international condemnation as well as further Libyan attacks against U.S. citizens. Instead, a decision was made to employ the mechanism of criminal prosecution.
But achieving justice was never the main objective. Indeed, the fact that the United States issued a public, rather than a sealed, indictment indicates that U.S. authorities had low expectations that the accused would ever actually be brought to trial. Instead, U.S. officials saw the indictment itself as a diplomatic tool that would help them persuade members of the Security Council to impose sanctions on Libya, thereby furthering their goal of isolating a rogue regime. The so-called money bomb ended up costing Libya more than $18 billion in lost revenue during the 1990s.
Choking under the effects of sanctions, Khadafy ultimately agreed to surrender the two Libyan defendants to a Scottish court sitting in the Netherlands reportedly because his advisers told him that the case would likely result in acquittal, and even if there were a conviction, there would be no evidence linking the defendants= actions to Khadafy himself. At this point, with international support for expanding or even continuing the sanctions quickly fading and American companies clamoring to regain access to Libyan oil fields, the Clinton administration viewed a Scottish trial in the Netherlands as a convenient way to put the Lockerbie incident behind it.
Despite its inadequacies, the judicial response did succeed in severing the cycle of violence between the United States and Libya. It prompted Libya to terminate its support for terrorist groups, to dismantle its chemical weapons program, to acknowledge responsibility for the Pan Am 103 bombing, and to pay billions of dollars to the families of the victims to settle the pending law suits. From the standpoint of international peace and security, the Lockerbie trial was a tremendous achievement.
V. A Model for the Future?
The United States initially viewed the Lockerbie strategy as providing a useful model for effectively dealing with other terrorist incidents without having to resort to a costly military campaign. Thus, after the bombings of the U.S. embassies in Kenya and Tanzania in 1998 and the attack on the U.S.S. Cole in Yemen in 1999, the United States issued a public indictment against Osama bin Laden and obtained Security Council sanctions against Afghanistan (from whose territory bin Laden=s al Qaeda organization operated) — the same strategy it had employed in response to the Pan Am 103 bombing.
The September 11, 2003 attacks by al Qaeda against the World Trade Center and Pentagon triggered a seismic shift in the U.S. approach to dealing with terrorists. Rather than seeking to bring terrorists to justice in a traditional court, U.S. policy after 9/11 became, in the words of President Bush, to Abring justice to the terrorists@ by hunting them down or detaining them indefinitely as enemy combatants or prosecuting them in military commissions.
Military Commissions were favored over other judicial options because the defendants would have fewer rights, there would be greater protection of national security information, and there would be a greater likelihood of obtaining convictions. But these same advantages would weaken the legitimacy of the proceedings and lead to international criticism. Most importantly, few countries would be willing to surrender an accused before the US Military Commissions, which are therefore likely to be useful only with respect to individuals apprehended by the United States or its agents.
It is conceivable that individuals implicated in major terrorist incidents in the future will find themselves in a third country which is unwilling to surrender the accused to the indicting state for trial and uninterested in undertaking its own prosecution. If the crime rises to the level of a crime against humanity, the International Criminal Court might be an acceptable venue. The Security Council would create an ad hoc tribunal, as it is in the process of doing for the prosecution of Syrian officials implicated in the 2005 assassination of former Lebanese Prime Minister Rafik Hariri. But in other situations the Lockerbie Trial approach might still hold promise as a viable judicial option for responding to terrorism.
