Lockerbie Case

Libya v United States; Libya v United Kingdom ICJ Rep 1992 3, p. 114, International Court of Justice

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie Presented by: Nor Farhani Ahmad Nur Farah Hanim Burhan Nur Liyana Zainal Karib Zur Azureen Zainalkefli

Brief Fact of the Case

A bomb exploded in a plane, Pan Am over the town named, Lockerbie in Scotland.
259 people on board and 11 people in town of Lockerbie were killed.

All

Investigation team lead by United Kingdom found a bomb in a suitcase leading to two Libyans suspects, Al-Megrahi and Fhimah. UK and USA keep urging the Libyan Government to surrender the two suspects to be prosecuted. However, relying on Article 7 of Montreal Convention, Libya refused to extradite their citizens to UK and USA

21 December 1988
Pan

Timeline

Am flight 103 from London to New York is blown up over Lockerbie, Scotland.

14 November 1991
Libyans

Abdelbaset al-Megrahi and Al Amin Khalifa Fhimah are named as suspects to the case. is placed under house arrest.

Megrahi

23 March 1992
Libyas

UN delegate says the suspects will be handed over to the Arab League but the West rejects Libyas condition.

31 March 1992
Security

Council Resolution 748

April 1992
UN

Security Council imposes sanctions

11 June 1997
UN

Sanctions had caused losses to Libya of US$23.5billion.

20 March1998
Suggest

for trial in a neutral country.

22 April 1998
Libya

says it will accept a trial of the two suspects under Scots law on neutral territory.

5 April 1999
Megrahi

and Fhimah are flown to the Netherlands and formally charged with

murder.
UN

sanctions against Libya are suspended.

May 2000
The

trial begins.

January 2001
Megrahi Megrahi

is convicted of murder while Fhimah is acquitted.

is sentenced to life with a recommended minimum term of 20 years. He immediately appeals against his conviction.

April 2001
appeal is rejected

Megrahi's

2003
Megrahi

applies to the Scottish Criminal Cases Review Commission(SCCRC) to review his case. - A court tells Megrahi he must serve a minimum of 27 years as punishment for the crime, to comply with the Human Rights Act.
SCCRC refers the cases back to the High Court on the grounds that Megrahi may have suffered a miscarriage of justice. grounds of appeal are referred to the court, but Megrahi's lawyers successfully argue that all 48 grounds should be heard.

November

2007
The

Six

2008
Megrahi

is diagnosed with advanced prostate cancer.

2009
April:

The High Court begins hearing Megrahi's appeal.

May 5:

Application to transfer Megrahi to his home country under the Prisoner Transfer Agreement.

July 24:

Megrahi applies for release on compassionate grounds

August 14:

Seek leave from the High Court to abandon his appeal against conviction and sentence.

August 18:

Judges accept Megrahi's request to drop the appeal.

August 20:

Justice secretary Kenny MacAskill releases Megrahi on compassionate grounds. The prisoner transfer application is rejected. Megrahi is flown by private jet to Tripoli, where a large crowd turns out to greet him.

August 21:

The Crown drops its appeal against Megrahi's sentence.

October 1:

UK ministers and the Scottish Government release documents recording correspondence and

9 November 2010
Campaigners

2011

try to force the Scottish Government to hold an inquiry into the conviction.

January 23:
An

FOI request reveals the Scottish Government received about 10,000 letters and emails about the release of the Lockerbie bomber.

February 8:
Fresh

calls are made by American senators to open an independent inquiry into the decision to free al-Megrahi.

February 11:
A

civil war breaks out in Libya and last until October.

July 27:
Al-

Megrahi appears on Libyan television.

September 26:
Libyas

interim justice minister Mohammed al Alagi declares Lockerbie case closed.

October 3:

Al-Megrahi says 'leave me in peace' in first TV interview and says the facts (about the Lockerbie bombing) will become clear one day and hopefully in the near future.

2012

March 25:
The

full text of Lockerbie bomber's grounds for appeal is published.

May 20:
Megrahis

death is confirmed by his brother.

Jurisdiction of the Security Council or ICJ Which will prevail?

On 27 November1991, United States and United Kingdom had issued a joint declaration towards Libya -to surrender for trial all those charged with the crime and accept responsibility for the actions of Libyan officials; - disclose all it knows of this crime, including the names of all those responsible, and allow full access to all witnesses, documents and other material evidence, including all the remaining timers; - pay appropriate compensation

Libya ask the court to adjudge and declare :

That Libya has fully complied with all of its obligations under the Montreal Convention. That the United States has breached, and is continuing to breach, its legal obligations to Libya under articles 5 (2), 5 (3), 7, 8 (2) and 11 of the Montreal Convention. That the United States is under a legal obligation immediately to cease and desist from such breaches and from the use of any and all force or threats against Libya, including the threat of force against Libya, and from all violations of the sovereignty, territorial integrity, and the political independence of Libya."

Articles under Montreal Convention

(a) The appropriate convention should be the Montreal Convention as it is the only appropriate convention in force between the Parties dealing with the offences listed in Article 1 referred to above. Consequently, the United States and United Kingdom are bound to adhere to the provisions of the Montreal Convention relating to the incident. (b) Pursuant to Article 5 (2) of the Montreal Convention, Libya is entitled to take such measures as may be necessary to establish its jurisdiction over the offenses listed above in cases where, as is the situation here, the alleged offender is present in its territory and is not extradited pursuant to Article 8 of the Convention. By its actions and threats against Libya, the United States and United Kingdom, in violation of Article 5 (2) of the Convention, are attempting to preclude Libya from establishing its legitimate jurisdiction over the matter.

(c) Pursuant to Article 5 (3) of the Convention, Libya is entitled to exercise criminal jurisdiction over the master in accordance with its national law. By its actions and threats, the United States and United Kingdom are attempting to preclude Libya from exercising that right in violation of the Convention.

(d) Under Article 7 of the Convention, Libya is obliged to submit the case to its competent authorities for the purpose of prosecution a step that Libya has taken. By its efforts to force Libya to surrender the accused, the United States and United Kingdom are attempting to prevent Libya from fulfilling its obligations in this respect in violation of the Convention. (e) Under Article 8 (2) of the Convention, extradition is made subject to the laws of the State from which extradition is requested. Under Article 493 (A) of the Libyan Code of Criminal Procedures, Libyan law prohibits the extradition of its nationals. It follows therefore, that there is no basis in either Libyan law or under the Montreal Convention for the extradition of the accused from the territory of Libya, and the United States and United Kingdoms effort to the contrary constitute a violation of this provision of the Montreal Convention.

f) Under Article 11 (1) of the Convention, the United States and United Kingdom are under an obligation to afford Libya, as a Contracting State, with the greatest measure of assistance in connection with criminal proceedings brought by Libya in respect of the offences listed in Article 1. By failing to provide such assistance, the United States has breached its obligations under the Montreal Convention. (g) The US and UK are bound by its legal obligations under the Montreal Convention, which obligations require it to act in accordance with the Convention, and only in accordance with the Convention, with respect to the master involving flight PA 103 and the accused. Whereas Libya submits that it has fully complied with its own obligations under the Convention, the United States and United States has breached, and is continuing to breach, those obligations.

After order of 14 April 1992, the UK and US filed preliminary objections on 16 June 1995, alleging that :

The court lacked jurisdiction. The Libyan application was inadmissible. The Libyan claims had become moot as having been rendered without object.
Hearing on the preliminary objections were held in the

Hague on 13-22 October 1997.

Judgement of 27 February 1998

1.

Rejects the objection by the UK and US and finds that it has jurisdiction, on the basis of Article 14, paragraph 1, of the Montreal Convention of 23 September 1971, to hear the disputes between the parties. Finds that the Application filed by Libya on 3 March 1992 is admissible. Declares that the objection raised by the United Kingdom according to which Security Council resolutions 748 (1992) and 883 (1993) have rendered the claims of Libya without object does not, in the circumstances of the case, have an exclusively preliminary character

2.

3.

Jurisdiction of courts

Libya submits that the courts has jurisdiction on the basis of Article 14, paragraph 1, of the Montreal Convention. However, the US and UK object on the ground Libya failed to show existed legal disputes. The United States claimed also that, even if the Montreal Convention did confer on Libya the rights it claims, those rights could not be exercised because they were superseded by Security Council resolutions 748 (1992) and 883 (1993) which, by virtue of the UN Charter, have priority over all rights and obligations arising out of the Montreal Convention. In any event, the adoption of those resolutions meant that the only dispute that might exist is between Libya and the Security Council as a whole, falling outside Article 14(1) of the Montreal Convention. But the Court pointed out that both resolutions were adopted after the date on which Libya filed its Application. On that date, which alone is relevant, the Court had jurisdiction.

The Admissibility of Libyas Application

The Court agreed with Libya that the critical date for determining the admissibility of an application is the date on which it is filed, in this case March 3, 1992. Resolutions 748 and 883 were adopted after March 3, 1992, and resolution 731, although adopted before the application was filed, was a mere recommendation without binding effect. Consequently, the Court, by 12 votes to 3, rejected the U.S. objection to admissibility derived from Security Council resolutions 748 and 883 and found that the Libyan Application is admissible.

The Objection that intervening Security Council resolutions have rendered the Libyan claims without object.

The United States argued that the Libyan claims had been rendered moot, and Libya had been precluded from obtaining the relief it seeks, by the subsequent adoption of Security Council resolutions 748 (1992) and 883 (1993). However, the Court declared, by 10 votes to 5, that the U.S. objection according to which Libya's claims became moot because Security Council resolutions 748 and 883 rendered them without object, does not, in the circumstances of the case, have an exclusively preliminary character, and can be considered at the merits stage.

Introduction of Aut Transferere

Defintion: delivery Principle:

once, there only exist 2 options- aut dedere (extradite) aut judicare (prosecute) Discretionary power of requested state had increased and broaden to opted for middle path-delivery of accused to a third state Delivery is seen as de facto extradition especially from perspective of the requested state and its domestic law Security Council play a role as an enforcer of the principle of aut dedere aut judicare Intervention of Security Council in extradition is justified as long as the situation constitutes threat to international peace and security (Chapter VII UN Charter)

Aut Dedere Aut Judicare

Extradite or prosecute The legal obligation of states under public international law to prosecute persons who commit serious international crimes where no other state has requested extradition. Obligation arises regardless of the extraterritorial nature of the crime and the fact that the perpetrator and victim may be of alien nationality Article 7 Montreal Convention.

The Contracting State in the territory of which the alleged offender

is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.

END