from: http://www.mathaba.net/info/locker-leg.htm Click Here: <A HREF="http://www.mathaba.net/info/locker-leg.htm">Lockerbie Legality</A> ----- Much more at site. Om K ------ D O C U M E N T The Lockerbie Legality: What Went Wrong in International Criminal Law? By Safia Aoude 1. Introduction: 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 case, 3. 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. The plane and most of the passengers were American, the village of Lockerbie being in the territory of United Kingdom, and the 11 killed on the ground being Scottish citizens (British), both British and American governments became involved in the investigations. The bomb was estimated to have exploded inside British airspace. 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 unscathed. The flow of information became confused and soon the incident lost its 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 1988.1 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.2 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. 3 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 27.11.1991.4 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.5 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.6 Libya stated later7 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 3rd 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.8 The International Commission of Inquiry on Economic Sanctions, containing several former heads of states and international legal experts, issued several communiques 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.9 Other alternatives were brought forward by the League of Arab States10, 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.11 <A HREF="http://www.ctrl.org/">www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance—not soap-boxing—please! These are sordid matters and 'conspiracy theory'—with its many half-truths, mis- directions and outright frauds—is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. That being said, CTRLgives no endorsement to the validity of posts, and always suggests to readers; be wary of what you read. CTRL gives no credence to Holocaust denial and nazi's need not apply. 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