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Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya Arab Jamahiriya v United States of America), Request for the Indication of Provisional Measures, Order of 14 April 1992, [1992] ICJ Rep 114

Lydia Davies-Bright and Nigel D. White

Relevance of the case

In the early 1990s the UN Security Council (UNSC) was engaging more assertively in international affairs and pursuing a more activist role in maintaining international peace and security.1 This was not received without criticism,[1] [2] especially as the United Nations Charter does not contain explicit provisions for oversight, a balancing of powers, or a procedure, in the case of a conflict of interests, in situations where states disagree as to the path to resolution. The Lockerbie cases provided the Court with the opportunity to assert its role in providing judicial scrutiny over the actions and Resolutions of the UNSC.

The US government’s response to the air- i ncident at Lockerbie was to pursue a UN-centred diplomatic approach, as opposed to a military reaction as with the 1986 Berlin bombing, in order to effect Libyan compliance.[3] Libya did not comply with the demands issued by the administration and so the US, together with the UK, sought UNSC action. The demands issued by the interested states arguably demonstrate an unwillingness to entertain any alternative to the conclusions of the investigators and also reveal the effect of the domestic political pressure on the governments to respond with strength to the incident. Libya attempted to rely on the provisions of the 1971 Montreal Convention, which was rebuffed by the US and UK. The successful resort to the UNSC raises the question of whether or not it is possible for the international system to deliver justice in such cases where parties are unwilling to comply with their treaty obligations and where there is no established practice of judicial review. By invoking the power of the UNSC, the UK and US departed from the consensual element of international law in a situation where a legal framework already existed and was applicable to the event in question.

I. Facts

On 21 December 1988 Pan Am Flight 103, bound for New York, fell from the sky onto the southern Scottish town of Lockerbie killing all 243 passengers and sixteen crew members on board, plus eleven people on the ground. On 13 November 1991, the Lord Advocate of Scotland issued warrants, on charges of murder, conspiracy to murder, and contravention of the Aviation Security Act 1982 (UK), for the arrest of Abdelbaset Ali al-Megrahi (a Libyan intelligence officer and head of security for Libyan Arab Airlines (LAA)) and Lamin Khalifa Fhima (LAA station manager to Luqa Airport in Malta). The US also issued charges against the two suspects on the same day. The charges centred on the allegation that the suspects had placed a bomb on board the flight that then exploded and caused the plane to crash. The Libyan government denied any involvement in the events leading to the incident and was not willing to surrender the accused or to admit general involvement in terrorist activities. As the suspects were present on Libyan territory, the government sought to rely on the ‘extradite or prosecute’ formula of the Montreal Convention 1971, to which all the states involved were parties.

On 30 December 1991, the UK and US issued a joint declaration, circulated to the UN General Assembly (UNGA) and UNSC, stating that ‘Libya must surrender for trial all those charged with the crime’.[4] The two states also issued a declaration on terrorism and requested that Libya comply with their demands.[5] In January 1992, Libya attempted to call a special assembly of the UNGA denying UNSC competence in the matter and invoking the dispute settlement provisions in art. 14 of the Montreal Convention 1971, to which all the states involved were parties. On 2 January 1992 the UK and US began to seek support for a UNSC resolution calling on Libya to comply with their demands. The UNSC passed Resolution 731 on 21 January 1992 urging Libya to provide a ‘full and effective’ response to the ‘requests’ of the UK and US.[6]

II. The legal question

Together with requests for an indication of provisional measures of protection, Libya filed separate applications against the UK and US at the International Court of Justice (ICJ), invoking art. 14 of the Montreal Convention 1971 as the basis, claiming that the UK and US were attempting to bypass the provisions (and obligations) of the Convention by seeking sanctions. Libya claimed that it had sought the co-operation of the two states in conducting an investigation into the incident and the alleged offences, but had received no response.[7] The UK and US resisted Libya’s application to the ICJ to resolve jurisdictional issues and claimed that Libya had not tried arbitration. Three days after the completion of oral hearings on Libya’s request for provisional measures, the UNSC adopted UNSC Resolution 748s under Chapter VII of the UN Charter imposing sanctions on Libya for failing to comply with UNSC Resolution 731 1992, which urged Libya to ‘provide a full and effective response’ to the requests of the UK and US. On 3 March 1992 the Libyan Arab Jamahiriya filed an application with the ICJ, in accordance with art. 40(1) of its Statute, against the governments of the United Kingdom and United States of America. Libya argued that the UNSC Resolutions made a ‘grave legal mistake’ in linking the alleged acts of two Libyan nationals to international terrorism generally[8] [9] and asserted its rights under the 1971 Convention.

The extracts below are from the judgment of the ICJ in the case brought against the United States. The judgment in the case brought against the United Kingdom by Libya follows along the same lines.[10]

III. Excerpts

[...]

ORDER

  • 41. Whereas the Court, in the context of the present proceedings on a request for provisional measures, has in accordance with Article 41 of the Statute, to consider the circumstances drawn to its attention as requiring the indication of such measures, but cannot make definitive findings either of fact or of law on the issues relating to the merits, and the right of the Parties to contest such issues at the stage of the merits must remain unaffected by the Court’s decision;
  • 42. Whereas both Libya and the United States, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention;
  • 43. Whereas the Court, while thus not at this stage called upon to determine definitively the legal effect of Security Council resolution 748 (1992), considers that, whatever the situation previous to the adoption of that resolution, the rights claimed by Libya under the Montreal Convention cannot now be regarded as appropriate for protection by the indication of provisional measures;
  • 44. Whereas, furthermore, an indication of the measures requested by Libya would be likely to impair the rights which appear prima facie to be enjoyed by the United States by virtue of Security Council resolution 748 (1992);
  • 45. Whereas, in order to pronounce on the present request for provisional measures, the Court is not called upon to determine any of the other questions which have been raised before it in the present proceedings, including the question of its jurisdiction to entertain the merits of the case; and whereas the decision given in these proceedings in no way prejudges any such question, and leaves unaffected the rights of the Government of Libya and the Government of the United States to submit arguments in respect of any of these questions;
  • 46. For these reasons,

THE COURT

By eleven votes to five,

Finds that the circumstances of the case are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.

IN FAVOUR: Vice-President Oda, Acting President; President Sir Robert Jennings; Judges Lachs, Ago, Schwebel, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley;

AGAINST: Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola; Judge ad hoc El-Kosheri [...]

DECLARATION OF ACTING PRESIDENT ODA [...]

I do not deny that under the positive law of the United Nations Charter a resolution of the Security Council may have binding force, irrespective of the question whether it is consonant with international law derived from other sources. There is certainly nothing to oblige the Security Council, acting within its terms of reference, to carry out a full evaluation of the possibly relevant rules and circumstances before proceeding to the decisions it deems necessary. The Council appears, in fact, to have been acting within its competence when it discerned a threat against international peace and security in Libya’s refusal to deliver up the two Libyan accused. Since, as I understand the matter, a decision of the Security Council, properly taken in the exercise of its competence, cannot be summarily reopened, and since it is apparent that resolution 748 (1992) embodies such a decision, the Court has at present no choice but to acknowledge the pre-eminence of that resolution.

[...]

SEPARATE OPINION OF JUDGE LACHS [...]

The framers of the Charter, in providing for the existence of several main organs, did not effect a complete separation of powers, nor indeed is one to suppose that such was their aim. Although each organ has been allotted its own Chapter or Chapters, the functions of two of them, namely the General Assembly and the Security Council, also pervade other Chapters than their own. Even the International Court of Justice receives, outside its own Chapter, a number of mentions which tend to confirm its role as the general guardian of legality within the system. In fact the Court is the guardian of legality for the international community as a whole, both within and without the United Nations. One may therefore legitimately suppose that the intention of the founders was not to encourage a blinkered parallelism of functions but a fruitful interaction.

[...]

DISSENTING OPINION OF JUDGE BEDJAOUI

[...]

  • 6. Libya was fully within its rights in bringing before the Court, with a view to its judicial settlement, the dispute concerning extradition, just as the United Kingdom and the United States were fully within their rights in bringing before the Security Council, with a view to its political settlement, the dispute on the international responsibility of Libya. The respective missions of the Security Council and the Court are thus on two distinct planes, have different objects and require specific methods of settlement consistent with their own respective powers. Such a situation, involving two distinct procedures before two principal organs of the United Nations having parallel competences, is, I might add, not an unusual one, as I observed in paragraph 2 above. But the difficulty in the present case lies in the fact that the Security Council not only has decided to take a number of political measures against Libya, but has also demanded from it the extradition of its two nationals. It is this specific demand of the Council that creates an overlap with respect to the substance of the legal dispute with which the Court must deal, in a legal manner, on the basis of the 1971 Montreal Convention and international law in general. The risk thus arose of the extradition question receiving two contradictory solutions, one legal, the other political, and of an inconsistency between the decision of the Court and that of the Security Council.
  • 7. Such an inconsistency between the decisions of two United Nations organs would be a matter of serious concern. For it is as a rule not the Court’s role to exercise appellate jurisdiction in respect of decisions taken by the Security Council in the fulfilment of its fundamental mission of maintaining international peace and security, no more than it is the role of the Security Council to take the place of the Court, thereby impairing the integrity of its international judicial function. But, at this stage of provisional measures requested by Libya, the present case compels us to confront this possibility of inconsistent decisions inasmuch as one of the Security Council’s demands creates a ‘grey area’ in which powers may overlap and a jurisdictional conflict comes into being. For the facts of this case give the Court the power to indicate provisional measures to preserve the possible right of the Applicant to refuse the extradition of two of its nationals, whereas the Security Council has just taken a decision that is mandatory under Chapter VII of the Charter calling for the extradition of these two individuals.

[...]

12. The rights in question are neither non-existent, nor illusory, nor indeterminate. Article 7 of the 1971 Montreal Convention, the provision that gave rise to the most discussion and is at the heart of the Libyan Application, categorically imposes on every State party to the Convention the obligation either to extradite or to prosecute before its courts the alleged perpetrators of an offence, in keeping with the traditional option to which the maxim aut dedere aut judicare refers. Without entering into the merits of the case, I would point out that, as is well known, there does not exist in international law any rule that prohibits, or, on the contrary, imposes the extradition of nationals. All that the regime laid down by the Montreal Convention does is to complement general international law by, on the one hand, rendering the various national laws applicable and, on the other hand, imposing on States an ‘obligation to take action’, in accordance with their interna1 law, by either extraditing or arranging for prosecution before their own courts. This option is now valid, if not under general international law, at least between all the States parties to the 1971 Montreal Convention. This being so, it has been contended that the right to be protected here is illusory, since what we are dealing with is rather an obligation. But could it possibly be that a State is not authorized to claim the right, which it derives, fundamentally, from its sovereignty, not to be hindered in the fulfilment of its international duty? Furthermore, it has been maintained that the 1971 Montreal Convention does not confer on a State party any right under Article 7 that it does not already possess by virtue of general international law, so that even if the 1971 Montreal Convention did not exist or Libya had not become a party to it Libya would remain free to deny extradition by virtue of international law. From this observation, which is correct, an erroneous conclusion has been drawn, namely, that the treaty right to be protected is non-existent, or illusory, inasmuch as Article 7 does not confer an additional right on a State. But is it conceivable that a right recognized by general international law and confirmed by an international convention would cease to exist altogether and no longer be entitled to protection as a result merely of its confirmation, which, on the contrary, would, it appears, strengthen it? In truth, this line of reasoning is based on the implicit view that in this case the Court could only apply the 1971 Montreal Convention, to the exclusion of general international law, whereas, obviously, the Court’s Statute and its general mission spontaneously oblige it to apply that law.

[...]

  • 29. The situation thus characterized, with rights which deserve protection by the indication of provisional measures but have also been annihilated by a Security Council resolution that should be deemed prima facie to be valid, does not fall completely within the framework of Article 103 of the Charter, but in fact goes slightly beyond it. That Article, which gives precedence to obligations under the Charter (i.e., Libya’s obligation to comply with resolution 748 (1992)) as compared to obligations ‘under any other international agreement’ (here the 1971 Montreal Convention) is aimed at ‘obligations’—whereas we are dealing with alleged ‘rights’ such as, in my view, are protected by provisional measures—and, in addition, does not cover such rights as may have other than conventional sources and be derived from general international law.
  • 30. Subject to this minor nuance, it is clear that the Court could do no more than take note of that situation and hold that, at this stage of the proceedings, such a ‘conflict’, governed by Article 103 of the Charter, would ultimately deprive the indication of provisional measures of any useful effect. However, the operative part of the two Orders places itself at the threshold of the whole matter and decides that the Court, in the circumstances of the case, is not required to exercise its power to indicate provisional measures. I take the rather different view that the facts of the case do indeed justify the effective exercise of that power, while I would point out that its effects have been nullified by resolution 748 (1992). This means that I arrive, concretely, at the same result as the Court, albeit by means of a quite different approach, but also with the important difference that I am not led to reject the request for provisional measures, but rather to say that its effects have ceased to exist. [...]

IV. Commentary

Thomas Franck, the pre-eminent international jurist, saw the end of the Cold War as ushering in a new liberal democratic era in international law, which included a ‘right to democracy’.11 He also saw in the Lockerbie cases of 1992 a Marbury v Madison moment when/2 reflecting a true separation of powers, the ICJ would seize the chance and assert a power of judicial review over the executive body of the United Nations— the UNSC.13

The recipe for judicial review in the Lockerbie cases seemed to have been present with Libya using the ICJ to defend its right to try the two suspects under the terms of the Montreal Convention 1971, to which all three states were parties, while the US and the UK resorted to the UNSC to override that criminal justice regime and force Libya to hand the two suspects over, on the basis that Libyan support for terrorism was a continuing threat to international peace and security. In fact, the provisional measures order of 1992 (extracted above) was a more nuanced judgment that could be seen either as a gentle move towards constitutionalism, or as a plea from the Court for the UNSC not to tread on its toes or, more realistically, as an indication that, if the case progressed to the merits, the ICJ would re-consider the effects of Resolution 748, but not its legality (and, presumably, come to the same conclusion). Ultimately, the ICJ denied the Libyan request for provisional measures of protection against coercive actions by the US and UK, reasoning that the obligations created by UNSC Resolution 748 applied to all parties to the dispute and that these obligations prevailed over any other treaty obligation, including those found in the Montreal Convention of 1971, by virtue of arts. 25 and 103 of the UN Charter.

At least for the purposes of denying provisional measures, the ICJ accepted that UNSC resolutions imposed obligations that prevailed over the rights and duties of state parties under the Montreal Convention 1971. The question remained whether this prima facie finding of the ICJ, made at the provisional measures stage, would be affirmed at the merits stage. There were some crumbs for those hoping for judicial scrutiny of UNSC decisions in the separate and dissenting opinions, examples of which are extracted above. Judge Oda hinted at things to come when he stated that the ‘Court has at present no choice but to acknowledge’ the pre-eminence of UNSC Resolution 748, while Judge Lachs spoke eloquently of the Court being the ‘guardian of legality’ not only of the Charter, but for the international community more broadly. Judge Bedjaoui (dissenting), however, was more critical of the Court for not asserting its competence to award provisional measures, even though he recognized that they were nullified by UNSC Resolution 748, which was imposed after the Court had been seized of the case. His criticisms of the UNSC may have been guides as to where the [11] [12] [13]

Court might have gone in terms of judicial review at the merits stage, had the case reached that point. For instance, he questioned whether there was a threat to the peace in 1992 when the Lockerbie bombing had occurred in 1988. He also pointed to the lack of evidence before the UNSC, excusable if it were acting as a political organ, but not when it encroached on the competence of the judicial organ. He also suggested that art. 103 of the UN Charter was being over-interpreted to cover ‘rights’ in a treaty rather than duties and that, in any case, it could not overrule what he asserted was also a principle of customary international law.

The hint of promise in the 1992 order was made stronger in the 1998 judgment on admissibility and jurisdiction.[14] [15] [16] [17] [18] The US and UK, relying on art. 103 of the UN Charter, both argued that the UNSC Resolutions demanding that Libya provide a ‘full and effective response’ to the requests that Libya extradite the suspects to the UK or US^ rendered the application without object (as they superseded the Montreal Convention) and inadmissible. However, the Court, relying on a narrow interpretation of its jurisprudence/6 found that Libya’s application was admissible^ and that the Court had jurisdiction, notwithstanding the Resolutions that had been passed since the date of filing/8

The UK and US also argued that no dispute existed between the parties regarding the application and interpretation of the Montreal Convention, as required by art. 14 in order for a party to invoke the jurisdiction of the Court. Instead, the two states asserted that any dispute, if one existed, was between Libya and the UNSC on the effects of that body’s resolutions. However, the Court found that the parties were in dispute over the applicability of the Montreal Convention to the case in hand, over Libya’s asserted right to prosecute its own citizens (art. 7 of the Montreal Convention 1971) and over Libya’s allegation regarding the lack of assistance by the respondents in Libya’s prosecutorial investigations (art. 11 of the Montreal Convention 1971).

Although the majority upheld the Court’s jurisdiction, there were significant disagreements on the impacts of the aforementioned UNSC Resolutions. Judges Fleischhauer and Guillaume, in their joint declaration, stated that the jurisdiction of the Court was limited to the interpretation and application of the Convention and does not extend to the UNSC Resolutions. This view concurs with the arguments of the respondents that the UNSC Resolutions had rendered the case without object. However, a broader reading of the 1998 judgment would indicate that the relationship between the Montreal Convention and the UNSC Resolutions does indeed fall within the Court’s jurisdiction and the Court found that this issue concerned the substance of the case. Thus, it appeared in 1998 that the Court may have been willing, had the case progressed to the merits stage, to examine the question of the UNSC Resolutions’ primacy over the Montreal Convention. This approach would allow the Court to submit the UNSC Resolutions to judicial scrutiny. However, it is also arguable that, as the Court’s jurisdiction was based in the Convention (a treaty), a more narrow view of jurisdiction is perhaps more appropriate, which would restrict judicial scrutiny of the UNSC Resolutions. Nevertheless, the majority judgment in 1998 contained enough promise of judicial review to provoke strong dissents from both the UK and US judges, with Judge Schwebel warning that although the UN Charter was a ‘living instrument’, such review would not be ‘evolutionary but revolutionary’ by upsetting the primacy of the UNSC in matters of peace and security.

The 1998 decision avoided the substantive issues and left them for the merits phase. From the separate judgments it is clear that there was internal disagreement as to the appropriate limits to the Court’s jurisdiction—whether or not the Court is restricted to declarations on the rights and duties of the parties under the Montreal Convention, or whether its jurisdiction extends to allowing it to determine the relationship between the UNSC Resolutions and the Convention. The latter approach appears to have been favoured by the Court, which may have led to a significant confrontation between the ICJ and UNSC. However, the temporary political rapprochement between the states involved led to the suspects being extradited and tried, and the ICJ was asked to remove the case from its list.

After lengthy negotiations and a change in the international mood (caused by the perceived intransigence of the UK and US), the states agreed to a trial of the two Libyan suspects by a Scottish court sitting in The Hague. UNSC Resolution 1192[19] stated that sanctions would be suspended when the accused were handed over for trial and other conditions[20] were met.[21]i Libya formally admitted responsibility for the Lockerbie bombing in a letter to the president of the UNSC in 2003, stating that it ‘accepted responsibility for the actions of its officials’.[22] [23] [24] However, it has subsequently been claimed that Libya’s actions were motivated by a desire to see the sanctions removed as they were producing devastating consequences for the Libyan people and economy”

The US and UK were able, through their permanent membership of the UNSC, to utilise the Chapter VII powers of the UNSC in order to attempt to force Libya to hand over the two suspects and to bring about a result that suited both their political and security agendas” These two states made the decision to follow a different path and not to pursue the process laid out by the Montreal Convention 1971. In doing so, they arguably undermined the criminal justice approach, the aut dedere aut judi- care provisions of the 1971 Convention, and made it appear ‘cumbersome’ and ‘ineffective’.[25] The US and UK made explicit demands from the start of the process and seemed determined to involve the UNSC if their demands were not met. Under art. 5(2) Montreal Convention 1971, Libya had the legal right, as the two men were on Libyan territory, to try the suspects in a domestic court and under its domestic law. The UK and US relied on arts. 25 and 103 of the UN Charter in seeking a UNSC resolution to thereby circumvent the established treaty regime. However, although art. 103 of the UN Charter gives UNSC Resolutions primacy over pre-existing international obligations, it does not provide that such resolutions are supreme and unquestionable. As the UNSC is not subject to effective judicial scrutiny, and the ICJ was, in the event, unable to assert its jurisdiction in this area, the Lockerbie cases demonstrate that influential states utilizing powerful international organizations are able to circumvent the provisions of international law.

  • [1] Such as in S/RES/678 (1990), which authorized member states to utilise ‘all necessary means’ to ensure compliance with the previous Resolutions dealing with Iraq’s invasion of Kuwait.
  • [2] See, for example, B.H. Western, ‘Security Council Resolution 678 and Persian Gulf DecisionMaking: Precarious Legitimacy’ (1991) 83 American Journal of International Law 516; O. Schachter,‘United Nations Law in the Gulf Conflict’, (1991) 85 American Journal of International Law 432;M. Weller, ‘The Kuwait Crisis: A Survey of some Legal Issues’, (1991) 3 The African Journal of Internationaland Comparative Law 1, on UNSC action on Iraq’s invasion of Kuwait.
  • [3] D.R. Andrews, ‘A Thorn in the Tulip—A Scottish Trial in The Netherlands: The Story Behind theLockerbie trial’, (2004) 36 Case Western Reserve Journal of International Law 307.
  • [4] A/46/827 S/23308 (1991). 5 a/46/828 S/23309 (1991). 6 s/RES/731 (1992).
  • [5] 7 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial
  • [6] Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America; Libyan Arab Jamahiriya v
  • [7] United Kingdom), Application Instituting Proceedings, 3 March 1992, http://www.icj-cij.org/docket/files/89/13253.pdf
  • [8] 31 March 1992.
  • [9] Letters dated 20 and 23 December 1991 from France, the United Kingdom of Great Britain andNorthern Ireland, and the United States of America, Decision of 11 November 1993 (3312th meeting):Resolution 883 (1993) repertoire. Available at https://www.un.org/en/sc/repertoire/93-95/Chapter%208/AFRICA/93-95_8-7-LETTERS%20FRANCE%20UK%20US.pdf
  • [10] Case Concerning Questions of Interpretation and Application of the 1971 Montreal ConventionArising from the Aerial Incident at Lockerbie (Libya Arab Jamahiriya v United Kingdom), Request for theIndication of Provisional Measures, Order of 14 April 1992, [1992] ICJ Rep 3.
  • [11] T.M. Franck, ‘The Emerging Right to Democratic Governance’, (1992) 86 American Journal ofInternational Law 46.
  • [12] Marbury v Madison, 5 US 137 (1803) is seen as the constitutional moment when the US SupremeCourt asserted its judicial review competence.
  • [13] T.M. Franck, ‘The “Powers of Appreciation”: Who is the Ultimate Guardian of UN Legality?’ (1992)86 American Journal of International Law 519.
  • [14] See N.D. White, ‘To Review or Not to Review? The Lockerbie Cases Before the World Court’, (1999)12 Leiden Journal of International Law 201.
  • [15] 15 S/RES/748 (1992) and S/RES/883 (1993).
  • [16] That the date of filing is the relevant date for judging admissibility, Case Concerning Questions
  • [17] of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incidentat Lockerbie (Libyan Arab Jamahiriya v United Kingdom; Libyan Arab Jamahiriya v United States ofAmerica), Judgment of 27 February 1998, [1998] ICJ Rep 115, para. 38; Border and Transborder ArmedActions (Nicaragua v Honduras), Jurisdiction and Admissibility, [1988] ICJ Rep 95, para. 66.
  • [18] 17 Lockerbie (n. 16), paras 44-5. 18 Ibid., paras 38-9.
  • [19] SC Resolution of 27 August 1998.
  • [20] Making evidence and witnesses available to the court upon request for the purposes of the trial(para. 4).
  • [21] On the establishment of this court see A. Aust, ‘Lockerbie: The Other Case’, (2000) 49 International& Comparative Law Quarterly 278. See further S.D. Murphy, ‘Verdict in the Trial of the LockerbieBombing Suspects’, (2001) 95 American Journal of International Law 405.
  • [22] Libya Letter: full text, BBC News, 16 August 2003. Available at http://news.bbc.co.uk/1fhi/scotland/3155825.stm
  • [23] 23 For example Saif al-Gaddafi said that Libya had admitted responsibility in order to see the tradesanctions removed, The Conspiracy Files: Lockerbie, 31 August 2008, BBC2. Libyan Prime MinisterShukri Ghanem stated that Libya had paid compensation as the ‘price for peace’ and to secure the end ofsanctions, 24 February 2004, BBC Radio 4.
  • [24] 24 M.P. Scharf and A.E. Miller, ‘Foreword: Terrorism on Trial’, (2004) 36 Case Western Reserve Journalof International Law 287.
  • [25] N.D. White, ‘Terrorism, Security and International Law’ in A. Hehir, N. Kuhrt, and A. Mumford(eds), International Law, Security and Ethics (London, Routledge 2011), 11.
 
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