Criminal Justice Responses to Acts of International Terrorism - The Lockerbie Incident 1988 - Case Study Example

Criminal Justice Responses to Acts of International Terrorism: The Lockerbie Incident 1988 Although international terrorism is regarded as a significant “threat to international peace and security” it is not the subject of international criminal law to the extent that war crimes, crimes against humanity and genocide are (United Nations Office of Drugs and Crime, 2009, p.9). There are no international courts or tribunals specifically established for prosecuting acts of international terrorism although acts of terrorism may form a part of trial where they form a part of acts constituting “violations of the rules and customs of armed conflict” (van der Vyver, 2010, p. 528). It therefore follows that in times of peace, acts of international terrorism can only be prosecuted by national criminal justice systems (United Nations Office of Drugs and Crimes, 2009, p. 9). However, where national criminal justice exists in states that sponsor terrorism and an act of international terrorism is committed by or on behalf of state officials against citizens of another state, bringing these acts of terrorism to justice proves difficult as seen in the Lockerbie incident of 1988 (Evans, 1994). Three years after the Lockerbie incident and following an intensive investigation by U.S. and U.K. authorities, Abdelbaset Ali Mohamed Al-Megrahi and Al Amin Khalifa Phimah, two Libyan nationals were indicted by the U.S. and the U.K. Subsequently, warrants of arrest were issued on November 14, 1991. Despite the fact that there were not extradition treaties between Libya and the U.S. and Libya and the U.K., both the U.S and the U.K. demanded that Libya “surrender for trial all those charged with the crime”, “disclose all it knows of the crime”, and “pay appropriate compensation” (Plachta, 2001, p. 126). Libya refused to cooperate claiming that the extradition request was an encroachment of Libya’s right to manage its own “internal affairs” (Pachta, 2001, p. 127). Libya informed the U.S. and the U.K. that its authorities would investigate the claims themselves and subsequently acknowledged that the two individuals indicted in the U.S. and the U.K. were taken into custody and would remain under the jurisdiction of the Libyan authorities and would be prosecuted accordingly (Pachta, 2001). As Pachta (2001) argues, once an extradition demand is made, law and politics will usually have an uneasy co-existence. On the political side, Libyan had already been regarded as a “rogue state” since it was persistently accused of sponsoring or otherwise funding or supporting acts of terrorism against citizens of other states (McWhinney, 2009, p. 116). In the years leading up to the Lockerbie incident, Libya was the subject of boycotts and other forms of isolation from the international community and was also subjected to a “direct aerial attack against its Head of State’s residence” on the part of the U.S. and “its allies” (McWhinne, 2009, p. 116). It is therefore hardly surprising that Libya’s claim of jurisdiction over the accused terrorist in the Lockerbie incident was unacceptable to the U.K. and the U.S. The U.K. and the U.S. were of the opinion that the Libyan officials were complicit in the Lockerbie incident and could not be relied upon to ensure the suspected terrorists would be properly brought to justice (Scharf, 2008). The U.K. and the U.S. turned to the U.N. Security Council and the U.N. passed a resolution instructing Libya to turn the suspects over to either the U.S. or the U.K. for trial or economic sanctions would be imposed (U.N. Security Council Resolution 748/1992). According to Scharf (2008): This was the first time the Security Council had ever used its powers to take coercive action to maintain or restore international peace and security to compel a State to surrender its own national for trial abroad (p. 526). Libya agreed to a trial by Scottish judges in a neutral forum (the International Court of Justice) with the application of Scottish law (Grant, 2004). The proposal put forth by Libya was presented to the U.N. and a trial was set to take place in the Netherlands under Scottish law and a jury was replaced by three judges of the Scottish high court (Scharf, 2008). After an 8 month trial and more than 300 witnesses, Fhima was acquitted and Al-Megrahi was convicted and sentenced to a 20 year custodial sentence in a Scottish prison (Scharf, 2008). On its face, the Lockerbie tribunal appears to be a feasible method for brining international terrorists to justice. However, it was an “ad hoc” system, indicating that there are no guarantees that an international tribunal would be constructed for future acts of terrorism when a rogue state has jurisdiction over the matter (McWhinney, 2009, p. 117). Moreover, it is worthwhile considering whether or not the two suspects surrendered by the Libyan authorities were in fact the actual culprits or merely, secondary agents acting for a higher authority or even the Libyan government. It will be recalled that although the U.K. and the U.S. indicted the two individuals eventually brought to trial, the investigation was far from complete as both the U.K. and the U.S. requested additional evidence and cooperation from Libyan officials for further investigations. The effectiveness of the trial in achieving justice for the victims of the Lockerbie act of international terrorism and for safeguarding against future similar attacks was further compromised by the evidence adduced at trial. According to Scharf (2004), the testimony of several witnesses before the Lockerbie tribunal was demonstratively false and the evidence against the suspects was entirely unreliable. In fact, discussions by the panel of judges indicated that even where a verdict was returned against Al-Megrahi, was one that was not supported by the evidence (Scharf, 2004). As McWhinney (2009) points out: The first and most telling attack against Lockerbie, as a paradigm-model, goes to the factual record and the evidence, or lack of it in conclusive and fully persuasive ways, of a chain of causation between low-level defendants chosen to be put on trial and the bomb plot itself (p. 117).. According to McWhinney (2009), it is entirely possible that the two suspects brought to trial before the Lockerbie tribunal were no more than “convenient scapegoats” forming a part of Libya’s attempt to gain a foot hold in its attempts to transform from a “rogue state to a friendly state” (p. 117). McWhinney (2009) also points out that the entire legal process may have also been no more than an attempt at “political face-saving” for all parties (p. 117). Despite the criticism, Bellelli (2010) expresses the view that the Lockerbie case represents a good “example of” a court established as a direct result of states effectively cooperating for preventing acts of terrorism in the future (p. 365). However, this is an entirely optimistic view since, the negotiations took place over a span of a decade and were limited to the U.S. and the U.K. with Libyan steadfastly resisting any negotiations, but merely stating how it would proceed. It took interference from the U.N. Security Council to compel Libya to cooperate and extradite the suspects. During the period between the Lockerbie incident and the actual extradition and trial of the two Libyan nationals, Libya was able to use the Convention for the Unification of Certain Rules of International Carriage by Air 1999 to which Libya, the U.S. and the U.K. are parties to its advantage. The 1999 Convention provides the rules for extradition relative to acts against security committed on aircraft. Since there were no extradition treaties between Libya and the U.K. and between Libya and the U.S., the 1999 Convention could be applied to Libya and by doing so, gave Libya jurisdiction over the matter since the suspects were Libyan nationals (Franck, 2002). An obvious problem for the U.S. and the U.K. was that the 1999 Convention did not take into account the possibility that a state might be complicit in the aircraft security breach. Fortunately, the U.S. and the U.K. were able to convince the U.N. Security Council to intervene. However, after passing a resolution demanding that Libya extradite the culprits to either the U.S. or the U.K., Libya attempted to delay the process by filing a writ before the International Court of Justice seeking injunctive relief (Franck, 2002). Again, but for the U.N. Security Council’s intervention by passing yet another Resolution, the Lockerbie incident had the potential to go unanswered (Franck, 2002). Although the U.N. Security Council’s intervention in the Lockerbie incident successfully brought the suspects to justice despite attempts by Libya to contain the efforts, it is not a reliable mechanism for preventing, investigating and prosecuting acts of terrorism. For the most part, acts of international terrorism are not always attached to a specific state and therefore the U.N. will not be amenable to intervening. Moreover, given the uncertainty surrounding the U.N. Security Council’s willingness to intervene, the international criminal justice procedure remains entirely unregulated and can only rely on the willingness of states to cooperate in the investigation, prevention and prosecution of suspected international terrorists. As demonstrated by the Lockerbie incident, unless the U.N. is prepared to intervene, acts of international terrorism can escape criminal justice. Therefore, unless and until an international convention establishing a central authority for bringing international terrorists to justice, the threat of international terrorism will continue to be a problem for all states. Bibliography Bellelli, R. International Criminal Justice. Surrey, England: Ashgate Publishing Limited, 2010. Evans, S. S. “The Lockerbie Incident Cases: Libyan-Sponsored Terrorism, Judicial Review and the Political Question Doctrine.” Maryland Journal of International Law, Vol. 18(1), (1994): 21-76. Franck, J. A. “A Return to Lockerbie and the Montreal Convention in the Wake of the September 11th Terrorist Attacks: Ramifications of Past Security Council and International Court of Justice Action.” Denver Journal of International Law & Policy, Vol. 30(4), (2002): 532-548. Grant, J. P. The Lockerbie Trial: A Documentary History. New York, NY: Oceana Publications, 2004. McWhinney, E. “Post-Bellum War Crimes Tribunals and Contemporary International Law: Adjudging State Responsibility and ‘War Guilt’ Issues,’ In Frick, M-L. and Oberprantacher, A. (Eds.). Power and Justice in International Relations: Interdisciplinary Approaches to Global Challenges. Surrey, England: Ashgate Publishing, 2009. Plachta, M. “The Lockerbie Case: The Role of the Security Council in Enforcing the Principle Aut Dedere Aut Judicare,” European Journal of International Law, Vol. 12(1), (2001): 125-140. Scharf, M. P. “The Lockerbie Model of Transfer of Proceedings.” In, Bassiouni, M. C. (Ed.). International Criminal Law: International Enforcement, 3rd Ed. The Netherlands: Martinus Nijhoff Publishers, 2008. United Nations Office on Drugs and Crimes. Handbook on Criminal Justice Reponses to Terrorism. New York, NY: United Nations Publications, 2009. U.N. Security Council Resolution 748/1992. van der Vyver, J. D. “Prosecuting Terrorism in International Tribunals.” Emory International Law Review, Vol. 24 (2010): 527-547. Summary This paper argues that the Lockerbie incident reminds us of the dangers associated with leaving international terrorism to national criminal justice systems for preventing, prosecuting and investigating acts of international terrorism. This sets out a brief description of the Lockerbie incident which as everyone knows involved an attack on a Pan Am flight which blew up over Lockerbie Scotland on its way to the U.S. The U.S. and the U.K. conducted extensive investigations and discovered that two Libyan nationals were most likely responsible for the terrorist attacks. In the absence of a centralized criminal justice system for dealing with international acts of terrorism and the absence of an extradition treaty between the U.S. and the U.K. with Libya, the U.K. and the U.S. were entirely dependent on Libya to cooperate. However, since Libya was at the time designated a rogue state and was most likely complicit in the attack, depending on Libya’s promise to investigate and prosecute the case was not a feasible option. The U.S. and the U.K. therefore turned to the U.N. Security Council. This paper argues that but for the U.N. Security Council’s intervention and its order instructing Libya to turn the identified suspects over to either the U.K. or the U.S., the Lockerbie incident could have gone unanswered. It is further argued that the ad hoc nature of the tribunal formed in response to the U.N. Security Council’s intervention, while not a small measure, it is too uncertain to provide any degree of certainty and insurance that international terrorists will be brought to justice even where they are sponsored by and supported by states. Therefore this paper demonstrates that it is entirely unsafe to rely on national criminal justice systems to cooperate in bringing international terrorists to justice. Read More