Lockerbie case looks for trial site

By Myint Zan

BURWOOD, Victoria, Australia (JP): Two recent international events have brought forth a principle of domestic laws which could well be extrapolated into the international scene. However, such extrapolations are subject to the usual caveats and qualifications.

A team of lawyers from the United States, Britain and Libya appeared before the International Court of Justice (ICJ) in the Hague from Oct. 13 to Oct. 22.

Libya proposed that the two Libyan nationals accused by the U.S. and Britain of allegedly masterminding the bombing of the Pan Am airplane over the Scottish village of Lockerbie in December 1988 in which 270 people died, be allowed to be tried in a "neutral, third country".

Libya argued that the two could not get a fair trial in either Britain or the U.S. because of the animosity and bias against them in those countries.

Principles of jurisdiction in international law would prima facie (at first view) appear to support the claims of the British and American governments that the two Libyans be tried either in Britain's Scottish courts or American courts.

Under the territorial principle in international law, a state in whose territory the crime was committed can claim jurisdiction over the persons alleged to have committed the crime. The blowing up of the Pan Am plane took place in Scotland's territory. Hence Scotland can claim jurisdiction.

Under the passive personality principle, the state of the victims of the crime can also claim jurisdiction to try those who are alleged to have committed the crime. Most of the victims that were killed in the Lockerbie bombing were Americans -- hence the claim by the United States that its courts too can try the alleged Libyan suspects.

Of course Libya, too, can claim jurisdiction over its two nationals under the nationality principle. A state can exercise jurisdiction and try its nationals in its own courts even if the crimes they have been alleged to have commit were carried out abroad and even if the victims were foreigners.

The inevitable response by the American and the British governments of the "offer" by Libya to try its own nationals would be that Libya as a "terrorist" state cannot be impartial in regard to the two suspects. In this writer's opinion, though admittedly with a lesser degree of justification, Libya could also make a similar claim that the two accused might not get a fully fair trial either in the U.S. or British courts.

The principle of nemo judex in causa swa, "no man (sic) shall be a judge in his own cause", is a cardinal tenet of both common law and civil law. One might add that one can discern similar principles in many other traditions outside of the common and civil legal systems including, but not limited to, Islamic law.

But some might argue that surely neither the U.S. nor the British are "judging their own cause" in their push to try the Libyan suspects in their courts. They can even point to the resolutions of the United Nations Security Council imposing sanctions against Libya for refusing to surrender or extradite the suspects to the U.S. or Britain.

However, Libya's offer to let the two suspects be tried in a neutral third country is not without merits. It might even help dispel any element of possible doubt among the general public. Quite a few might -- while sympathizing with U.S. and British government positions and especially the families of the victims of the Lockerbie disaster -- still "wonder" whether the U.S. and Britain should act as "prosecutor, judge, jury and jailer" (in the metaphorical sense).

The judgment of the ICJ would depend on a host of factors. Among them would be the technical factors of the interpretation and application of the ICJ statute in relation to the particular facts of the case.

If the ICJ does endorse Libya's contention that the suspects be tried in a neutral third country, it might at least in theory be possibly construed as an arguable recognition that the nemo judex principle should operate in the international sphere too.

A more recent and indeed dangerous issue is the standoff between the United Nations (or more specifically the United States) and Iraq. Iraq's refusal to allow Americans in the UN Inspection team investigating Iraq's nuclear capacity to enter their country and the "order" by Saddam Hussein that Americans working with the UN leave Iraq have led to threats, if not saber rattling, from both sides.

Knowing what an aggressor Saddam Hussein is, Iraq's demand that Americans be excluded from any United Nations inspection team can perhaps be possibly argued under the nemo judex principle.

After all, the United States was the major initiator of "Operation Desert Storm" which saw Iraq's defeat mainly by the hands of the U.S.-led "coalition forces".

One could easily retort that Americans working in the UN inspection team are working as members of the United Nations under United Nations Security Council resolutions and that the fact of their being American nationals would not affect their impartiality.

There is also the additional argument that the UN inspection team (unlike the hypothetical scenario of U.S. or British courts trying the Libyan suspects over the Lockerbie bombings) is by no means a judicial body and therefore the nemo judex principle at least in a formal sense wouldn't or shouldn't apply.

Regarding the first contention, it is very clear from the statute of the ICJ that its judges have to decide cases before them owing allegiance only to their statute, principles of international law, "justice, equity and good conscience" and not as agents or representatives of their respective governments.

Yet even in the ICJ, in cases involving either the U.S. or indeed the former Soviet Union, both U.S. and Soviet judges -- and for that matter judges from other countries too -- have often never significantly departed from the official positions taken by their respective governments of which they are nationals.

Yet one more point that could be made, this time against Iraq, is that before now Iraq had accepted Americans in the UN inspection teams, so why protest their presence now? Should Iraq be stopped from reversing its previous stand?

The answer to the first question is that due to the abstention of China, France and Russia in a recent UN Security Council resolution extending the time period of the imposition of sanctions to Iraq, Saddam apparently saw a possible "weakening" of the UN Security Council's resolve and tried to test it further by throwing down the gauntlet -- albeit while indicating the need for compromise and dialog.

As a response to the second question, the U.S. Ambassador to the United Nations Bill Richardson had already stated that should Saddam not budge, the U.S. reserves the right to employ all options -- including the use of military force.

The principle and practice of "compromise" seem to this writer a plausible way out of the legal and political imbroglio arising from both the Lockerbie case and the current impasse in Iraq.

The ICJ may or may not rule in Libya's favor by stating that the alleged suspects of the Lockerbie bombing can be tried in a neutral third country.

But if it were to rule in favor of a trial in a "neutral" country, it would not only be a desirable political compromise but also perhaps legally appropriate. At least such a course is a viable legal option given the sensitivities of the case.

If Iraq does not back down from its current stand regarding the presence of Americans in the UN inspection team, the United States might use force against Iraq. If it does this time, unlike during the Gulf War, the U.S. is unlikely to get support from the majority of the permanent members of the Security Council.

Moreover, such use of force could, especially if it does not have official UN Security Council authorization, be of dubious legality.

It might also be costly inasmuch as such use of force could affect innocent Iraqi civilian lives notwithstanding the intention that the action was to compel Iraq's government to adhere to UN Security Council resolutions. Restraint and compromise in the latest Iraq crisis seem desirable on legal, political and humanitarian grounds.

The writer is a lecturer at Deakin University's school of law, Burwood, Victoria, Australia.