JULY 2000, pages 27, 86

Special Report

Beyond “Whodunit”: The Political Road to the Lockerbie Trial

By Shirin Sinnar

Conspiracy theorists and cynics of all political stripes are reveling in the Lockerbie trial now unfolding in the Netherlands. Lauded as a long-awaited opportunity to bring to justice those responsible for the destruction of Pan Am Flight 103 almost 12 years ago, the trial is already riddled with questions it seems unlikely to answer.

Skeptics have long asked how anyone can believe that the two Libyan men being tried for the crime, Al-Amin Khalifa Fahima and Abdel Basset Ali al-Megrahi, acted on their own, without orders from a state or other political group. And a CBS “60 Minutes” program in early June claimed that a top Iranian defector had documents to prove Iranian, not Libyan, sponsorship of the attack. But apart from these “whodunit” suspicions, controversies have surrounded the U.S. (and U.N.) response to the Pan Am 103 explosion from the outset.

The Trial

A panel of three Scottish judges, applying Scottish criminal law, is now trying the two suspects in the Netherlands—an unusual compromise worked out after years of U.S. and UK insistence that they be tried in Scotland, where the aircraft fell, and Libyan refusal to hand over the two men. In 1991, the two suspects were charged in Scotland with murder, conspiracy to murder, and crimes against civil aviation.

The United States and Britain demanded that Libya surrender the accused and pay compensation to the families of the 270 victims, 259 of whom were on the aircraft and 11 of whom were on the ground. At the time, the demands triggered speculation that political motivations—perhaps the U.S. need for cooperation during the Persian Gulf war—had led it to implicate Libya alone, deflecting blame from the Syrian, Palestinian, and Iranian interests the U.S. had originally identified. At the same time, the U.S. government refused to rule out the possibility that it might use military force to retaliate against Libya—a threat with precedent in the 1986 U.S. air attacks on Tripoli and Benghazi, in retaliation for the alleged Libyan role in the bombing of a Berlin nightclub frequented by U.S. servicemen.

Imposing U.N. Sanctions

When Libya refused to surrender the suspects, the United States and Britain turned to the U.N. Security Council for support, and the council endorsed their demands in January 1992. It was the first time the Security Council had ever asked a state to extradite its own nationals, prompting some countries to express doubts over the tendency of the Council—and its powerful members—to redefine international norms.

Under the Montreal Convention, an international treaty on violence against civil aviation which Britain, Libya and the U.S. had ratified, Libya could choose between extraditing the suspects or prosecuting them itself. Libya insisted it had initiated just such a procedure, starting with an investigation, and would provide information to American or British authorities.

The U.S. and Britain countered that a state sponsoring terrorism can’t be expected to prosecute its own agents, and urged the Security Council to confront the new threat to international peace and security. Libya then took the case to the International Court of Justice, arguing that the United States and Britain were in breach of the convention and should cease threatening coercion.

But before the court could arrive at an initial decision on Libya’s request for protective measures, the U.S. and Britain pushed through a new resolution in the Security Council imposing diplomatic sanctions, a ban on air travel, and an arms embargo on Libya. This new resolution pre-empted the court and led some states—and legal scholars—to argue that the United States and Britain had subverted the Security Council for their private ends.

Reluctant members of the Security Council faced strong pressure from the United States to go along with its position, and China was reportedly threatened with a loss of its preferential trading status were it to veto the resolution. The following year, similar U.S. pressure marked the passage of a new resolution intensifying the sanctions: the council ordered a partial freeze on Libyan assets and sanctioned equipment needed for oil refineries and export.

The U.N., however, never imposed a full embargo against Libya, as it had in Iraq; U.S. attempts were rebuffed by European allies with strong commercial links to Libyan oil. In 1996, the U.S. did, however, pass extraterritorial sanctions of its own against foreign companies that invested in Libyan oil.

Delegitimizing Sanctions

Between 1992 and 1998, Arab, Islamic, African and other developing countries protested the sanctions against Libya in increasingly stronger terms. From the outset, many argued that U.S. and British actions had exacerbated the crisis and challenged international law, and urged them to accept a compromise. In 1994, the Organization of African Unity (OAU) called on the United States and Britain to accept a trial of the two suspects in a neutral third country, a proposal apparently accepted by Libya and the regional organizations.

By 1998, the pressure on the U.S. and Britain had mounted while six years of sanctions had not delivered the suspects for trial. South African President Nelson Mandela, since his visit to Tripoli in 1997, had lent his universal prestige to calls for an end to the embargo. Moreover, the International Court of Justice in February 1998 ruled that it had jurisdiction to consider Libya’s case—not a judgment on the merits of the case, but a political irritant for the U.S. and British position.

In an open debate in March 1998 at the U.N., many countries demanded an end to sanctions on Libya. That summer, the Organization of African Unity passed a resolution instructing its members to ignore the sanctions, and the Non-Aligned Movement (representing over 100 countries) threatened to do the same at its next meeting.

These were unprecedented challenges: in effect, a majority of the U.N.’s states were threatening to defy mandatory U.N. sanctions. At the same time, British victims’ families came out in support of the compromise proposal, commercial interests thirstily eyed Libyan oil, and a general disenchantment with sanctions dampened the enthusiasm for their maintenance.

Faced with these developments, the U.S. and Britain agreed to a trial by a Scottish court to be convened in the Netherlands, and the Security Council accordingly endorsed the new plan in August 1998. In April 1999, after several months of U.N., South African and Saudi mediation, Libya turned over the suspects and the U.N. sanctions were suspended (but not lifted). Libya, which without admitting guilt already had compensated France $33 million for the deaths of passengers in the 1989 bombing of a French UTA airliner over Africa, signaled its interest in international rehabilitation—and business. Within months, European sanctions were removed, Britain restored full diplomatic ties with Libya, European countries flocked to do business, and U.S. companies lobbied to get rid of unilateral U.S. sanctions that kept them out of the action.

Crime and Punishment

While Libya seems on its way to shedding its pariah status, others are taking its place as America’s favorite rogue states. Meanwhile, the Security Council has used the same formula for other countries accused of harboring terrorists. Most recently, it imposed sanctions on Afghanistan’s Taliban government last October for refusing to surrender Saudi defector and alleged terrorist Osama bin Laden to the United States.

U.N. sanctions, in theory, offer a more international response to terrorism than, say, the clearly unlawful U.S. missile attacks against Sudan and Afghanistan in 1998, in retaliation for attacks on the U.S. embassies in Kenya and Tanzania. Yet, as in the Lockerbie dispute, the unrivalled—and transparent—power of the United States to control the mechanisms of U.N. authority continue to tarnish the legitimacy of even those responses to terrorism that have the U.N.’s blessing.

Shirin Sinnar, former communications director for the American Muslim Council, is a consultant at the World Bank and is enrolled as a law student at Columbia University starting in the fall of 2000. This article is based in part on her 1999 M.Phil. thesis at the University of Cambridge on U.N. Security Council legitimacy and the Lockerbie affair.