Lockerbie Incident - An Analysis
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LOCKERBIE INCIDENT: AN
ANALYSIS
Shreeji Saraf, IILM University, Greater Noida Introduction The Lockerbie incident had happened on December 21, 1988. This incident involved three countries namely the United Kingdom, United States and Libya. The subsequent decisions or rulings made by the International Court of Justice with regard to this matter had escalated several significant questions with regard to the interpretation and application of international law. This paper aims to provide an analysis of the events that had taken place in this regard, the issues at stake, the legal framework and more. Facts of the case The Lockerbie bombing incident took place on December 21, 1988. On this date a bomb had exploded and destroyed a Pan Am Flight 103 over Lockerbie, Scotland. This resulted in the death of all the present 259 passengers and crew members along with 11 residents of Lockerbie.
There was evidence that was directing the involvement of Iran and Syria but the United States and Scottish investigators who relied on the fragments of the bomb found that two Libyan spies were responsible for the bombing. An arrest warrant was issued against the Libyan spies who were involved namely Abdel Basset Ali al-Megrahi and Lamen Khalifa Fhimah in the bombing incident. Both the mentioned Libyan spies were convicted by the federal grand jury in some district of Columbia and they were accused by the Lord Advocate in Scotland. On 27th of November, 1991, the United States and United Kingdom jointly had issued a declaration stating that Libya should hand over the two suspects for the purpose of trial and provide relevant information related to the crime. They were even asked to pay appropriate compensation in relation to the crime.
However, Libya had agreed to initiate the proceedings against the suspects but it had asked for the assistance of US and UK investigators. Afterwards Libya mentioned that its own domestic laws prohibit the extradition of citizens. Instead, Libya offered that the suspects could be prosecuted domestically and observers from both the US and UK could attend the proceedings. These requests made by Libya were completely ignored by both the countries. On 21st January, 1992 the Security Council had issued a Resolution 731 expressing its concern over Libya's lack of response to the joint declaration made by UK and US and urged Libya to fully assist and cooperate with them. On 3rd March, Libya had filed two applications with reference to the Article 14(1) of the Montreal Convention to the International Court mentioning that the parties were not able to solve the dispute through negotiation.
It even added that parties were not able to agree on how the arbitration would be set up. On one hand the US and UK had stated that Libya should surrender the suspects for the trial and while on the other hand Libya insisted on its right to negotiate and sought to question the legitimacy of the sanctions. Contentions Libya Libya asserted that both the UK and US had completely ignored and rejected the attempts that had been made by Libya to resolve the dispute within the limits of international law and the Convention. Not only this but both the countries were forcing Libya to surrender the two citizens. Two applications had been filed by Libya. In one application Libya mentioned that the court should rule on the legality of the respective parties as per Convention.
In the other application Libya requested the court to prevent the UK and US from forcing Libya to hand over the two accused and to make certain that no steps or actions would be taken that would undermine Libya's right to legal proceedings in this current matter. Further Libya highlighted that the U. S. and U. K. violated international law by demanding the surrender of the suspects without due process of law. Libya claimed that the actions of the Security Council involved political motives and this resulted in the violation of sovereignty and the Montreal Convention had clearly indicated that a clear and proper mechanism should be used to solve disputes through negotiation and arbitration. United States and United Kingdom The US and UK asserted when Libya had not agreed with the surrender of the suspects, it had violated the principles of international law.
Actions on part of Libya seemed to pose a threat to international peace and security as per the UK and US. They put forward that Security Council was empowered under the UN Charter to impose sanctions. They wanted Libya to claim accountability for the action of bombing and were in favor of the sanctions imposed by the Security Council. Issues before the court
1. Whether the international court of justice had the jurisdiction to hear the matter despite
the involvement of the Security Council?
2. Whether the actions taken by the United States and United Kingdom in the current
matter according to the provisions of the Montreal Convention? Court's decision The court had heard the matter from 26th March to 28th March,1992. On March 31, 1992 the Security Council had passed a resolution in accordance with Chapter VII of the Charter. This resolution ordered Libya to turn over the suspected person by April 15, 1992 or if it failed to do so they would have to face the sanctions. On April 14 the International Court had rejected the interim measures. On April 15 once again the sanctions were put in place. In addition to this the Libyan General People's Congress had granted a resolution allowing and authorizing the surrender of the suspects. Not only this the Libyan government had even issued the names of I. R. A terrorists who were trained in the camps of Libya to the British Intelligence service.
The basis of court’s decision The International Court of Justice (ICJ) had denied the request of Libya made in relation to the interim measures as per the Resolution 748 of the United Nations Security Council (UNSC). When Libya had failed to surrender the suspects, certain sanctions were imposed on it. In this regard Libya contended that it contravened its rights under Montreal Convention. Referring to Article 25 of the UN Charter, ICJ highlighted that all the member states of the UN are obliged to comply with the orders and decisions of the Security Council. Article 103 of the un charter states that in case of conflict the provisions and obligations of the un charter would take precedence over the obligations of any other international agreements, even on the obligations of the Montreal Convention.
Similarly in this regard the provisions of the Resolution 748 were considered to supersede the obligations of the Montreal Convention.
If the ICJ had adopted the interim measures it would have led to violation of the rights of the United Kingdom and United States under Resolution 748. The court specifically clarified that neither the jurisdiction over the merits of the case nor the legal effect of Resolution 748 were impacted by its decision in this regard. The ICJ highlighted that the actions taken by the Security Council had constrained the capacity of the ICJ to take further actions in this regard. Views of the judges The courts dependence on Resolution 748 was considered lawful and legal by Judges Shahabuddeen and Lachs. Shahabuddeen presented issue one between Libya’s obligations under the UN Charter and Montreal Convention, rather than between ICJ and Security Council. Several judges were in favor of the court's decision.
While some judges laid out their concern suggesting that there might have been a political influence in the legal proceedings and further suggested that the court should have played a more active role in the situation. Relevant laws The Montreal Convention The Montreal Convention 1971 is also known as Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. It is a multilateral treaty which prohibits and punishes the actions which intend to endanger civil aviation safety. The convention was approved in a diplomatic summit which was held in Montreal on September 23, 1971 and was put into force on January 26, 1973. Article 14(1) provides that disputes between contracting states regarding the interpretation or application of the Convention should be submitted to arbitration if not settled through negotiation. UN Charter The U. N.
Charter establishes the framework for international relations and collective security. The charter is considered as the foundation document of united nations which intends to establish principles, procedures and organs. It empowers the Security Council to take measures to maintain or restore international peace and security, which can include sanctions and military action.
Analysis
of the case The Lockerbie incident which took place became one of the important cases in the field of international law, where debates concerning the state sovereignty, international treaties and the authority of Security Council were the main concerns. The rulings of the international court of justice raised several issues and concerns. Libya’s refusal to extradite the suspects and the Security Council forcing Libya to comply with the surrender of the suspects was seen as a violation of state sovereignty by Libya. Further the Security Council, relying its reference on Chapter VII of the UN Charter, stated that the actions of Libya posed a threat to international peace and security. The decision passed by the ICJ clearly layered out that supremacy of the UN Charter over other international agreements.
Conclusion This case has highlighted that the courts should have played a more active role in the current matter. They could have passed certain orders or imposed sanctions which avoided the worsening of the situation. It needed a great balance between the organs of the UN for better and proper functioning. Several mechanisms are needed in the international regime to ensure fairness and transparency. This case even highlights the concern for the development of international law in terms of state accountability and terrorism.
REFERENCES
https://www.icj-cij.org/case/88 • https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1523&context=gjicl • https://treaties.un.org/doc/publication/ctc/uncharter.pdf • http://unscr.com/en/resolutions/748 • https://treaties.un.org/doc/Publication/UNTS/Volume%20974/volume-974-I-14118english.pdf • https://treaties.un.org/doc/publication/ctc/uncharter.pdf