114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

THE LOCKERBIE AFFAIR: WHEN EXTRADITION FAILS ARE
THE UNITED NATIONS’ SANCTIONS A SOLUTION?
(THE ROLE OF THE SECURITY COUNCIL IN THE
ENFORCING OF THE RULE AUT DEDERE AUT JUDICARE)
Michael Plachta*
I. STATEMENT OF FACTS
On December 21, 1988, Pan American
Flight 103 took off from London’s Heathrow
Airport on its transatlantic flight to John
F. Kennedy Airport in New York. At 6:56
P.M. EST, at an altitude of 10,000 meters,
the Maid of the Seas made its last contact
with ground control. Seven minutes later,
the green cross-hair at air traffic control
split into five bright blips as Pan Am Flight
103 exploded in midair. Her fiery skeleton,
laden with the bodies of passengers andcrew, rained down on the people of
Lockerbie, Scotland. Within the hour, 243passengers, 16 crew members, and 11
townspeople were dead.
Between January 1989 and November
1991, a joint USA-Scottish team tracked
down leads in fifty countries, questioned
14,000 people, and combed some 845
square miles around Lockerbie. The fruitsof their search: a shard of circuit board
smaller than a fingernail, a fragment of an
explosive timer embedded in an article ofclothing, and a few entries in a private
diary. These three pieces of physicalevidence led investigators to two Libyan
nationals, Abbel Basset Ali al-Megrahi and
Lamen Khalifa Fhimah. That country’s
involvement was apparently confirmedwith a forensic scientist’s discovery of a tiny
microchip of the bomb’s trigger mechanism.
This “technical fingerprint” was embedded
in a shirt that had come from the suitcase
containing the bomb. The most significant
link, however, came from two Libyan* Gdansk University, Faculty of Law, First Vice-Dean,
Chair of Criminal Procedure, Poland

intelligence agents arrested in Senegal in
1988. At the time of their arrest, they werediscovered carrying Semtex (plastic
explosives) and several triggering devices.
The connecting link between the Lockerbie
timer and the two Libyan suspects camefrom Fhimah’s own notebook.
Nearly three years later, the cumulative
evidence led to the indictment of the two
Libyan intelligence officers by a federal
grand jury in Washington, D.C. The 193count indictment accusing Fhimah and alMegrahi with planning and carrying out
the Lockerbie bombing represented themost extensive investigation everconducted for an act of terrorism. Handed
down on November 14, 1991, theindictment supplied the final piece of amultinational jigsaw puzzle that took three
years to complete. On the same day, asimilar indictment was handed down in the
United Kingdom.
II. LEGAL ACTION AND LIBYA’SRESPONSE
Although neither formal diplomatic
relations nor a bilateral treaty existed
between the United States and United
Kingdom, on the one hand, and Libya - on
the other, informal extradition requests
were forwarded through the Belgian
Embassy to Tripoli. Two weeks later, thetwo governments issued a joint declarationin which they demanded Libya to:• surrender for trial all those charged
with the crime; and accept
responsibility for the actions of Libyan
officials;

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RESOURCE MATERIAL SERIES No. 57•

disclose all it knows of this crime,
including the names of all those
responsible, and allow full access to all
witnesses, documents and othermaterial evidence, including all theremaining timers;
pay appropriate compensation 1.”

investigation conducted by the Libyan
authorities is of crucial importance in thiscase as the only viable alternative to
extradition (“judicare” as opposed to“dedere”) under the Montreal Conventionof 1971, this matter warrants a closer look
and a more detailed elaboration.

Libya’s response to these demands has
evolved since November 1991, taking thefollowing forms:
1. The first reaction was predictable: the
Libyan government refused to grant
extradition, asserting that such an act
constituted direct interference in
Libya’s internal affairs. At times,
Colonel Qadhafi was trying to laugh out
the whole matter.
2. After a while, Libya started its own
judicial investigation. The competentauthorities officially instituted criminal
proceedings in this case. The Libyan
examining magistrate ordered the twosuspects to be taken into custody.
3. Later on, Libya went even a stepfurther by offering to admit both the
British and American observers to the
Libyan trial, or, in the alternative, tohave the International Court of Justicedetermine which nation has the proper
jurisdiction.
4. The Libyan government has also
indicated, at various times, that it
might surrender the suspects for trial
in a “neutral” forum.
5. Finally, that government suggested
that it would not object if the twosuspects voluntarily surrender for trial
in Scotland. (After consultation with
Scottish counsel, the two suspects
apparently decided not to surrenderthemselves.)

On November 18, 1991, the Libyan
authorities issued a statement indicatingthat the indictment documents had been
received from the United States and theUnited Kingdom and that, in accordancewith the applicable rules, a Libyan
Supreme Court Justice had already been
assigned to investigate the charges. The
statement also, inter alia, asserted that
Libyan judiciary’s readiness to cooperatewith all legal authorities concerned in the
United Kingdom and the United States.

•

Since the domestic criminal
1

Statement Issued by the Government of the UnitedStates on November 27, 1991, Regarding theBombing of Pan Am 103, U.N. Doc. S/23308 (1991).

94

Ten days later, the Libyan government
issued a communiqué in which it wasstated that the application made by theUnited States and the United Kingdom
would be investigated by the competent
Libyan authorities who would deal with itseriously and in a manner that would
respect the principles of international
legality, including, on the one hand, Libya’s
sovereign rights and, on the other, the needto ensure justice both for the accused andfor the victims. In the meantime, theLibyan investigating judge took steps torequest the assistance of the authorities in
the United Kingdom and the United States,
offering to travel to these countries in orderto review the evidence and cooperate with
his American and British counterparts.
Since these offers were either explicitly
rejected in public (parliamentary debates)
or ignored, remaining without response,
two identical letter were addressed in
January 1992, to the United States
Secretary of States and the British
Secretary of States for Foreign Affairs by
their Libyan counterpart in which he

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
pointed out that Libya, the United states,
and the United Kingdom were all parties
to the 1971 Montreal Convention2. He thenindicated that as soon as the charges had
been made against the two accused, Libya
had exercised its jurisdiction over them inaccordance with Libyan national law and
Article 5(2) of that Convention which
obligates each contracting state to establish
its jurisdiction over offences mentioned in
the Convention where the alleged offenderis present in its territory and it does notextradite him.
The letter went on to note that Article
5(3) of the Convention did not exclude any
criminal jurisdiction exercised inaccordance with national law. Recallingthe stipulation adopted in Article 7 of theConvention (aut dedere aut judicare), thetwo letters indicated that Libya had
already submitted the case to its judicial
authorities and that an examining
magistrate had been appointed. The lettersthen observed that the judicial authoritiesof the United States and the United
Kingdom had been requested to cooperate
in the matter but instead, had threatened
Libya while not ruling out the use of armed
force.
III. A STALEMATE: WHERE TO GO
FROM HERE?
Typically, under normal circumstances,the vast majority of cases in which
extradition was denied for whateverreasons, ends here - in a stalemate.
Chances for it being resolved to thesatisfaction of both (or all) of the parties
involved are close to null. This reality
makes some countries think twice before
authorizing their competent authorities tosubmit the extradition request to another2

Convention for the Suppression of Unlawful Acts
Against the Safety of Civil Aviation, September 23,
1971, 974 U.N.T.S. 177.

state. Some sort of practical wisdom (orpragmatic approach) suggests that this isa situation to which the popular saying “itdoesn’t hurt to ask” simply does not apply.
Instead, there is so much to loose and solittle to win. Both experience andknowledge of even the basic rules andprinciples of extradition clearly indicatethat once this mechanism is formally set
in motion it will take its own course which
represents an uneasy marriage between
law and politics. Consequently, some statesrather try to find a way around theextradition while others ignore it
altogether and resort to fait accompli
instead.
The Lockerbie case is unique in that it
did not stop where it could have stopped,
and where, possibly, it was expected tocome to the “dead end”. Interestingly
enough, both sides involved in the conflict
contributed to next stages by undertaking
further actions in this case.
Clearly, the two parties were on a
conflicting course. While Libya relied on
the codified rule of aut dedere aut judicare(Article 7 of the Montreal Convention), as
the governing principle which entitles it toprosecute its own nationals especially inthe absence of an extradition treaty, both
the American and British governments
categorically demanded the surrender of
the two suspects, and made it clear that
nothing less than an unconditional
compliance with their request will satisfy
them. While Libya declared that it will try
the accused, and invited the United States
and the United Kingdom to send theirofficials and lawyers to observe the trial,
arguing that it was thus satisfying its
obligations under the Montreal
Convention, the two other governments
demanded that the suspects be tried intheir courts. While Libya contended thatits domestic law forbids the extradition of
its nationals, the U.S.A. and the U.K.

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denied that this is a valid excuse for notsurrendering them.

U.N. Security Council involvement in the
Lockerbie case are possible:

A. The Case: Security Council andInternational Court of JusticeDetermined not to submit all theevidence that have been gathered as aresult of the three-year extensive
investigation, the United States and theUnited Kingdom (joined by France)
presented the case before the UN Security
Council and the General Assembly.3 In
January and March 1992, the Security
Council adopted two resolutions in thismatter: the first was urging Libya to
respond fully and effectively to the requestsof the United States, the United Kingdom
and France,4 while the second imposed
economic sanctions on Libya. 5 The
sanctions were extended in 1993.6 Libya
brought the case before the International
Court of Justice seeking provisional
measures to prevent the United States or
the United Kingdom from taking any action
to coerce Libya into handing over the twosuspects or otherwise prejudice the rights
claimed by that country. 7 On April 14,
1992, the Court declined (by a vote of 11 to5) to indicate the provisional measures
thereby confirming the validity andbinding force of Resolution 748. 8 The
following three interpretations of the of the(a) L i b y a f a i l e d t o d e m o n s t r a t econvincingly that it is capable offulfilling the obligation which it
claimed under the Montreal
Convention, that is, to make a goodfaith effort to prosecute the crimes
itself.
(b) The resolutions signal a substantial
loss of faith in the Montreal
Convention’s authority and efficacy
in bringing the offenders to justice.
(c) The Security Council offered an
extraordinary remedy which, while
upholding the existing extradition
system, at the same time,
supplemented it with the recourse tothat organ for intervention in
exceptional situations, especiallywhere the traditional treaty model
proves unworkable.

3

See UN Doc. A/46/825; S/23306; 31 Dec.1991.
S.C. Res. 731 (1992) 21 Jan. 1992.
5 S.C. Res. 748 (1992) 31 March 1992
6 S.C. Res. 883 (1993) 11 Nov. 1993.
7 Questions of Interpretation and Application of the1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v.
United States of America), provisional Measures,
Order of 14 April 1992, I.C.J. Reports 1992 at 114.
Questions of Interpretation and Application of the1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom ), provisional Measures, Order of
14 April 1992, I.C.J. Reports 1992 at 3.
8 Ibidem para. 39.
496

The latter seems to be the mostpersuasive. The Court’s ruling means that
under Article 103 of the U.N. Charter the
Resolution 748 takes precedence over any
other international agreement, including
the Montreal Convention. In one sense,
the genuine choice between extradition andprosecution has been brought down to analternative: extradite or extradite. On theother hand, given the U.N. Charter ’s
Chapter VII exceptions to Article 2(7), thesecurity Council has the authority todetermine whether a situation is so severethat it constitutes a threat to the peace, abreach of the peace, or an act of aggression.
Therefore, the Security Council has theauthority to take up such matters. In orderto reconcile both the Security Council
resolutions and the decision of theInternational Court of Justice in the
Lockerbie case, it was suggested that theinternational extradition law has not been
violated or altered because in exceptional
cases, “the law merely operates at a

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
different level through the internationallysanctioned ways and means of the United
Nations”.9
It is doubtful, however, whether
Lockerbie could and should be viewed as
the most appropriate mechanism designed
to end the stand-off in other similar cases.
B. Inquiry Into Other Options
1. JURISDICTIONAL level:♦ establishing of the hierarchy ofjurisdictional principles (or order ofpriorities) (apart from obvious
advantages that could be gained
through this solution it also has someinherent problems; just to mention afew: any proposed hierarchy will beperceived as an arbitrary act - unlessagreed upon in an international
instrument; if a proposition contains
clear-cut rules in an attempt to avoid
any ambiguity and eliminate discretion
and arbitrariness it may soon proveinefficient as the rules may become too
rigid and inflexible, and therefore,
unable to accommodate any set of
specific circumstances which may
appear in a case in hand; if, however,to avoid this problem, the rules would
allow some flexibility the question
immediately arise as to a body or an
organ called upon to decide in thesematters by conferring jurisdiction on
the particular state, in other words:
who would be the “keeper of the rules”?)
Examples: (Draft) Convention Benelux
concernant l’applicabilité de la loi
pénale dans le temps et dans l’espace(1979); Consultative Assembly of theCouncil of Europe, Recommendation
420 (1965) on the settlement of conflicts
9of jurisdiction in criminal matters;(Draft) European Convention on
Conflicts of Jurisdiction in Criminal
Matters, id.
2. PROSECUTORIAL and TRIAL
level:
A. Conditional Surrender (Extradition):
1. the requested state’s duty to repatriate
the sentenced person, i.e. to send him/
her back to his/her home country toserve sentence;
Example: the Dutch Extradition Law
as amended in 1988, Article 4,paragraph 2;
2. Consent of the Extraditee;
Example: the Swiss Law on
Extradition and International
Assistance in Criminal Matters of 1981,
Article 1, paragraph 1 (the consent
must be in writing);
B.
1.
2.
3.

“Neutral” Forum:
third state;international criminal tribunal;a variant: “Secretary General custody”
over the two suspects in the Lockerbie
case; It was suggested by Libya that
the Secretary General should attempt
to create some “mechanism” whereby
Resolution 731 could be implemented.

C. Transfer of Criminal Proceedings
Combined with Rendering Legal
AssistanceD. abduction or other illegal or irregularforms of apprehension of the would-beextraditee
3. ENFORCEMENT level♦ enforcement of foreign criminal
sentences

C. C. Joyner & W. P. Rothbaum, Libya and the
Aerial Incident at Lockerbie: What Lessons forInternational Extradition Law?, 14 Mich. J. Int'lL. 222, 256 (1993).

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IV. SETTING THE STAGE:
SECURITY COUNCIL RESOLUTION
1192 (1998)
The first breakthrough in bringing thesuspects to justice came at a meeting in
Tripoli in April 1998 between government
officials, lawyers and British
representatives of the bombing victims at
which the Libyans confirmed that theywould accept a plan devised by RobertBlack, professor of law at the University of
Edinburgh. His proposal involved the casebeing tried in a neutral country, operating
under Scottish law. Instead of a jury there
would be an international panel of judges
presided over by a senior Scottish judge.
While agreeing in principle to a neutral
venue Robin Cook, British Foreign
Secretary, rejected in August 1998 Black’s
proposal for an international panel andopted for an all-Scottish judges panel.
But an agreement over the venue andmake-up of the court was not the final
obstacle. A number of issues had to beaddressed and resolved before the men
would agree to leave Tripoli. These
included guarantees about their safe
custody from Libya. If they are acquitted
there will also have to be guarantees about
their safe custody back. Other questions
arose: what will the conditions of theirdetention be? what access will they haveto their legal team? how long are they
expected to remain in custody before thetrial takes place? what access will thedefence be given to the prosecution
evidence? how much time will the defence
have in order to get properly prepared?
In an effort to make the trial in Scotland(or by Scottish judges) and under Scottish
law more attractive to Libya, on 31 October
1997, the Permanent Representative of theUnited Kingdom to the United Nations
addressed a letter to the President of the
Security Council (S/1997/845) in which he98

invited representatives of the United
Nations to visit Scotland and to study the
Scottish judicial system. After consultingwith the Security Council, SecretaryGeneral Kofi Annan accepted the invitation
and requested two scholars to undertake
this study. In their report on the Scottish
judicial system, they concluded that the
Libyan accused would receive a fair trial
in Scotland (S/1997/991, Annex ). Theirrights during the pre-trial, trial and posttrial proceedings would be protected inaccordance with international standards.
The presence of United Nations and otherinternational observers can be fully andeasily accommodated.
As time passed without resolution of thematter, support for the economic sanctions
against Libya began to erode. Proposals
by Libya and by regional organizations,such as the Arab League, suggested a trialof the two suspects by international, or
perhaps Scottish, judges sitting in the
Netherlands.
In a letter addressed to the UN
Secretary-General dated August 24, 1998,
the Acting Permanent Representatives of
the United Kingdom and the United States
proposed an arrangement for a trial in the
Netherlands by Scottish judges.10 Afternoting prior assurances that had been
given regarding the fairness of a trial intheir jurisdictions and their “profoundconcern” at Libya’s disregard of the
Security Council’s demands, the two
Governments stated:
3. “Nevertheless, in the interest ofresolving this situation in a way
10 Letter Dated 24 August 1998 from the Acting

Permanent Representatives of the United Kingdomof Great Britain and Northern Ireland and theUnited States of America to the United Nations
Addressed to the Secretary-General, UN Doc. S/
1998/795 (1998).

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
which will allow justice to be done,
our Governments are prepared, as an
exceptional measure, to arrange forthe two accused to be tried before a
Scottish court sitting in the
Netherlands. After close consultation
with the Government of the Kingdomof the Netherlands, we are pleased
to confirm that the Government of theNetherlands has agreed to facilitate
arrangements for such a court. It
would be a Scottish court and would
follow normal Scots law andprocedure in every respect, except for
the replacement of the jury by a panelof three Scottish High Court judges.
The Scottish rules of evidence andprocedure, and all the guarantees offair trial provided by the law of
S c o t l a n d , w o u l d a p p l y.
Arrangements would be made forinternational observers to attend thetrial.
4. The two accused will have safe
passage from the Libyan Arab
Jamahiriya to the Netherlands forthe purpose of the trial. While they
are in the Netherlands for the
purpose of the trial, we shall not seek
their transfer to any jurisdiction
other than the Scottish court sittingin the Netherlands. If found guilty,
the two accused will serve theirsentence in the United Kingdom. If
acquitted, or in the event of theprosecution being discontinued byany process of law preventing any
further trial under Scots law, the two
accused will have safe passage backto the Libyan Arab Jamahiriya.
Should other offences committed
prior to arrival in the Netherlands
come to light during the course of thetrial, neither of the two accused nor
any other person attending the court,
including witnesses, will be liable forarrest for such offences while in the
Netherlands for the purpose of thetrial.
5. The two accused will enjoy theprotection afforded by Scottish law.
They will be able to choose Scottish
solicitors and advocates to represent
them at all stages of the proceedings.
The proceedings will be interpreted
into Arabic in the same way as a trial
held in Scotland. The accused will
be given proper medical attention. Ifthey wish, they can be visited incustody by the international
observers. The trial would of course
be held in public, adequate provision
being made for the media.
6. We are only willing to proceed in thisexceptional way on the basis of theterms set out in the present letter(and its annexes), and provided that
the Libyan Arab Jamahiriya
cooperates fully by:(a) Ensuring the timely appearanceof the two accused in the
Netherlands for trial before theScottish court;(b) Ensuring the production ofevidence, including the presenceof witnesses before the court;(c) Complying fully with all therequirements of the Security
Council resolutions”.
Annexed to the letter was the proposed
agreement between the Netherlands andthe United Kingdom as well as the
proposed UK legislation. On the same day,
Secretary of State Madeleine Albrightreleased a statement in which she declared:“We note that Libya has repeatedly
stated its readiness to deliver thesuspects for trial by a Scottish court
sitting in a third country. Thisapproach has been endorsed by the
Arab League, the Organization of
African Unity, the Organization of theIslamic Conference and the NonAligned Movement. We now challenge

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Libya to turn promises into deeds. The
suspects should be surrendered for trial
promptly. We call upon the membersof organizations that have endorsed
this approach to urge Libya to end its
ten years of evasion now.
Let me be clear — the plan the US andthe UK are putting forward is a “takeit-or-leave-it” proposition. It is not
subject to negotiation or change, norshould it be subject to additional footdragging or delay. We are ready to
begin such a trial as soon as Libya
turns over the suspects”.11
On the next day, in a letter to the
Security Council, Libya stated:
1. “Libya is anxious to arrive at asettlement of this dispute and to turnover a new page in its relations with
the States concerned.
2. Libya’s judicial authorities need tohave sufficient time to study [theproposal] and to request theassistance of international experts
more familiar with the laws of theStates mentioned in the documents.
3. We are absolutely convinced that the
Secretary-General of the United
Nations, Mr. Kofi Annan, must be
given sufficient time to achieve what
the Security Council has asked ofhim, so that any issue or difficultythat might delay the desired
settlement can be resolved”.12

11 Secretary of State Madeleine K. Albright, Statement

on Venue for Trial of Pan Am # 103 Bombing
Suspects (Aug. 24, 1998), available in <http://secretary.state.gov/www/statements/1998/
980824a.html>.
12 Letter Dated 25 August 1998 from the Charged'Affaires A.I. of the Permanent Mission of the
Libyan Arab Jamahiriya to the United Nations
Addressed to the President of the Security Council,
UN Doc. S/1998/803 (1998).

100

Nonetheless, the Security Council
passed a resolution 1192 on the matter on
August 27, 1998, in which it fully endorsed
the plan and procedure devised andproposed by the United States and theUnited Kingdom.
Throughout the fall of 1998, Libya
reacted ambivalently to the proposal, on
the one hand welcoming the “evolution” in
the U.S. and UK position, while on theother hand expressing concern about the
t r i a l ’s p r o p o s e d l o c a t i o n i n t h eNetherlands, a former U.S. air base, which
was agreed upon by the Dutch and British
Governments. The Libyan Government
announced that it would need to inspect
the location before assenting to holding thetrial there.13 In a speech to the UN General
Assembly, Libya’s ambassador to theUnited Nations criticized other aspects ofthe proposal, insisting that the accusedshould serve their sentences in either Libyaor the Netherlands — and not in Scotland— if convicted. Moreover, three top Libyan
intelligence officials reportedly were tried,
convicted, and jailed in Libya in connection
with the Lockerbie incident, possibly as ameans of blocking their testimony in thetrial in the Netherlands. Although in
December 1998, the Libyan parliament
reportedly approved the handing over of
the two suspects for trial, Libyan leader
Col. Muammar el-Qaddafi informed theDutch media on the tenth anniversary of
the bombing that the solution lay in having
an “international court” consisting of“judges from America, Libya, England andother countries.”14
On September 30, 1998, President
13 See, e.g., Letter Dated 26 August 1998 from theCharge d'Affaires AI. of the Permanent Mission of
the Libyan Arab Jamahiriya to the United Nations
Addressed to the President of the Security Council,
UN Doc. S/1998/808 (1998); see also UN Doc. S/
PV.3920, at 4 (1998).

114TH INTERNATIONAL TRAINING COURSE
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Clinton authorized the use of
approximately $ 8 (USD) million to support
the establishment and functioning of thecourt in the Netherlands.15
V. AUT DEDERE AUT JUDICAREAUT TRANSFERERE: A NEWLY
EMERGING RULE OF
INTERNATIONAL LAW OFEXTRADITION?
On 5 April 1999, more than a decade
after Pan Am Flight 103 exploded over
Scotland, the two Libyans charged withplanting the bomb arrived in the
Netherlands to face trial for the crime. As
a result, the United Nations immediately
removed severe sanctions on the
Government of Col. Muammar el-Qaddafi
of Libya. The end of those sanctions allows
international air travel and the sale of vitalindustrial equipment to resume. The step
will also release Libyan assets that had
been frozen in a number of countries.
The Scottish judges will have to weighthe still secret evidence provided by theUnited States and Britain and decide
whether the two Libyans are guilty ofplanting the suitcase bomb. The judges willthen face the fundamental questions of who
gave the orders to blow up the plane andwhy. The British and Americans haveoutlined the main conclusions of their case,but have withheld the particulars.
The operation of transporting the two
Libyans was intricate, complex and above
all secret. No one except Hans Corell, thechief legal counsel for the United Nations— not even Secretary General Kofi Annan
14 Barbara Crossette, 10 Years After Lockerbie, Still

No Trial, N.Y. TIMES, Dec. 22, 1998, at A14.
15 Memorandum on Funding for the Court to Try

Accused Perpetrators of the Pan Am 103 Bombing,
34 WEEKLY COMP. PRES. DOC. 1939 (Sept. 30,
1998).

— knew the details surrounding thelogistics for the surrender of the two Libyan
suspects. All the legal and logisticalproblems were resolved by mid-November.
He and Mr. Corell even asked Italy to lend
the United Nations a Boeing 707 jet on
which United Nations markings werep a i n t e d . M r. C o r e l l l o c a t e d a n dinterviewed trustworthy pilots, personallyapproved the flight plan to the Netherlands
and recruited doctors and nurses toaccompany the two “passengers”, as hecalled them. He even ordered appropriate
food — no ham, shellfish or alcohol, in lightof Muslim dietary prohibitions — and took
steps to insure that the food would not be
poisoned. Then Col. Muammar el-Qaddafi,
Libya’s leader, balked at the deal.
So Kofi Annan orchestrated a discreet
but relentless political campaign topersuade Colonel Qaddafi, including ahitherto secret appeal by Prime Minister
Yevgeny M. Primakov of Russia. As partof this appeal, the United States assured
Libya that the trial would not be used toundermine the colonel’s rule. One of thereasons why the high officials of the United
Nations were involved in this case wastheir growing awareness and concern thatthe sanctions imposed on Libya do notwork. Libya was slowly persuading theOrganization of African Unity, the Arab
League and other countries that the two
Libyan suspects, Abdel Basset al-Megrahi
and Al-Amin Khalifa Fahima, would never
get a fair trial in Britain or the UnitedStates. Chad, Niger and Gambia, among
other African states, began flouting theUnited Nations sanctions by flying theirleaders or senior officials into Tripoli
airport. And in summer 1998 the 53
members of the Organization for African
Unity voted to stop abiding by the
sanctions. At the same time, by rejecting
every Libyan proposal, the United States
and Britain had found themselves in asituation of being the stubborn negative

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ones.
In December, Kofi Annan flew to Libya
to meet with Colonel Qaddafi. After several
hours of one-on-one discussions in theleader ’s tent outside Sirte, his desert
capital, he left convinced that the colonel
had realized that a deal “had to be done”.
The chance that Colonel Qaddafi would
surrender the suspects as promised
increased substantially only after
President Mandela announced it on March
19, 1999, in a speech at Colonel Qaddafi’s
side in Tripoli.
An Italian plane took the two Libyans,each accompanied by a relative and alawyer, to the Dutch military air base.
Dutch authorities at first took the two
Libyans into custody after they arrived thisafternoon but hours later formally
extradited them to Britain - on paper, thatis - so the Scottish police could take over.
Dutch military helicopters then took the
Libyans to Camp Zeist, a former militarybase a few miles outside Utrecht. Some of
the camp’s buildings are being converted
to include a detention unit for the suspects
and a room for the Scottish court that will
be sitting here.The camp, once used byAmerican military and then taken over by
the Dutch, is kept under tight guard by
Scottish police officers. From now until theend of the trial, Camp Zeist is legally
Scottish soil. The suspects will be tried by
Scottish judges under Scottish law, accusedby Scottish prosecutors, defended by
Scottish lawyers and watched over by morethan 100 Scottish police and prison officers.
The trial itself will be open to the public.
The trial will be held before three Scottish
judges. But the start may be postponed
for several more months because defense
lawyers have asked for extra time toprepare their case. The trial has, in fact,
been postponed.
The cost of converting the base and102

holding the trial has been estimated atclose to $200 million, which will be sharedby Britain and the United States. Some of
the work was held off until the Scottish
authorities were reasonably sure that thetwo men would be handed over. In addition
to this figure, an estimated cost of the trial
will be rather high - the cost can go over
£10 million. From a legal perspective, thetrial will be unique. The only comparable
cases have been war crimes trials but they
have all been held under international
legislation.
Roadmap: from Lockerbie throughTripoli to Zeist - key dates in the efforts
to bring two Libyans to trial in the bombingof the Pan Am flight near Lockerbie,
Scotland:DEC. 21, 1988 — Pan Am flight 103 from
London to New York is blown up over
Lockerbie, Scotland.
NOV. 14, 1991 — United States andBritain accuse Abdel Basset al-Megrahi
and Al-Amin Khalifa Fahima of Libya of
involvement. Libya denies any
involvement.
MARCH 23, 1992 — Libya’s United
Nations delegate says the suspects will behanded over to the Arab League, but theWest rejects Libya’s conditions.
MARCH 31 — Security Council
Resolution 748 tells Libya to surrender thesuspects by April 15 or face a worldwide
ban on air travel and arms sales.
APRIL 30 — The Libyan leader,
Muammar el-Qaddafi, says that Libya will
not hand over the two suspects.
NOV. 11, 1993 — The Security Council
tightens sanctions.
MARCH 23, 1995 — The F.B.I. offers arecord $4 million reward for information
leading to the arrest of the two Libyan
suspects.
APRIL 19 — Libya sends a flight ofMuslim pilgrims to Saudi Arabia despite
the air embargo.

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JUNE 11, 1997 — Libya says in a letterto the United Nations Secretary Generalthat sanctions had caused losses to Libyaof $23.5 billion.
MARCH 20, 1998 — The Security
Council debates the Lockerbie issue, withwidespread support for a trial in a neutral
country.
APRIL 22— After a visit to Libya,
representatives of victims’ families say theGovernment has agreed to a trial in the
Netherlands under Scottish law.
AUG. 24 — Britain and United Statesagree two suspects can be tried in The
Hague under Scottish law.
AUG. 27 — The Security Council
unanimously endorses the plan.
FEB. 13, 1999 — A South African envoy
meets with Colonel Qaddafi and says there
is an accord.
MARCH 19 — President Nelson
Mandela of South Africa goes to Libya and,with Colonel Qaddafi, announces that thetwo suspects will be handed over by April
6.
APRIL 5 — The suspects are handed
over to the United Nations, and thesanctions are suspended.
With the two accused Libyans awaiting
trial in the Netherlands, the question
arises as to whether the Lockerbie case has
modified the law governing theinternational cooperation in criminal
matters. Specifically, has the “third
alternative” been added to the traditional
rule aut dedere aut judicare - aut
transferere? Under this principle, therequested state has had only two options:either to submit the case to the competentauthorities for prosecution, or to surrender
the person to the authorities of therequesting state. Since Lockerbie, has thediscretionary power of the requested
country increased and broadened byencompassing also the “middle path”:
neither extradition, nor prosecution, but“delivery” of the accused to a third state?

Or, maybe, one could argue that the“delivery” (or whatever other names areused for that purpose) is a de facto
extradition, particularly from theperspective of the requested state and its
domestic law. However, if we assume, forthe sake of an argument, that “delivery” isa substantially new element then one
would be compelled to acknowledge that
the Security Council started playing a newrole of an “enforcer” of the principle aut
dedere aut judicare. Such realization raises
further questions, such as the scope rationemateriae of the modified principle. It is tobe assumed that the intervention of the
Security Council in extradition may bejustified, in so far as the situation
constitutes a threat to international peaceand security, thereby legitimizing theaction of the Security Council under
Chapter VII of the UN Charter. But thenagain the question arises as to whether
such an intervention would have to be
restricted to terrorism, terrorists andterrorist acts.
VI. OSAMA BIN LADEN: AN
AFTERMATH OF LOCKERBIE OR
THE LOCKERBIE RULE,
CONTINUED?
Encouraged by a clear success of astrategy employed in the Lockerbie case,the Government of the United States has
been trying to use the same tactic in themost recent case of Osama bin Laden.
Roving from camp to camp in fear of
American missiles, reduced tocommunicating with minions throughhand-carried computer disks, strictly
watched even by his Afghan “hosts,” Osamabin Laden is one of the world’s most soughtafter fugitives for his suspected role in thebombings of U.S. embassies in Kenya andTanzania last year. Bin Laden, themessianic heir to a Saudi Arabian
construction fortune, wants to eliminate

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the U.S. presence in Islamic lands. He ison the FBI’s most wanted list and has a $5
million bounty on his head. He is underfederal indictment in New York, andAfghanistan’s Islamic fundamentalist
Taliban government is the target of U.S.
economic sanctions for harboring him. The
United States remains publicly committed
to his capture. In secret meetings in 1999
in Washington, New York and Pakistan,
U.S. representatives have continued topress Taliban officials to turn over bin
Laden.
In Summer 1998, Saudi Arabia andAfghanistan’s Taliban militia reached asecret deal to send Osama bin Laden to a
Saudi prison, nearly two months before
deadly bombs devastated two American
embassies and put the suspected terror
mastermind on the FBI’s 10 most wanted
list. But the deal crumbled as the US
embassies in Kenya and Tanzania werebombed and was dead by the time U.S.
forces retaliated two weeks later withmissile attacks on camps linked to bin
Laden.
Prince Turki al-Faisal, the Saudi chiefof intelligence, led a small Saudi delegation
to Taliban headquarters in Kandahar,
Afghanistan, in June 1998. They sought
either bin Laden’s ouster from Afghan
territory or his custody for trial in Saudi
Arabia for advocating the government’s
overthrow. During their three-hour
meeting, Taliban supreme leader Mullah
Mohammed Omar and his ruling council
agreed to end the sanctuary bin Laden has
enjoyed in Afghanistan since 1996. But thesurrender would have to be carefully
orchestrated so that it “would not reflect
badly on the Taliban” and would not appear
to be “mistreating a friend,” according toTurki. The key to that initial deal, Turki
said, was a Saudi pledge that bin Ladenwould be tried only in an Islamic court —a condition of surrender that would have104

precluded his extradition to face any U.S.
prosecution. Final terms for the bin Laden
hand-over were being hammered out
between Taliban and Saudi envoys,
according to Turki, during the same periodthat authorities now believe the embassy
attacks were being plotted. Those
negotiations ended amid a flurry of
recriminations in the aftermath of thebombings. The embassy bombings werelinked immediately to bin Laden byWestern authorities, with the apparent
side effect of rallying support for bin Laden
within the Taliban. Subsequent retaliatory
U.S. missile attacks on bin Laden’s Afghan
training camps only hardened that support.
In Summer 1999, a Taliban spokesman
told that bin Laden will never be forced outof Afghanistan against his will. The
spokesman specifically ruled out any future
surrender deals with the U.S. or Saudi
Arabia. However, the Taliban are willingto turn the matter over to a committee ofIslamic scholars from Saudi Arabia andother countries in the region who would act
as arbitrators. Moreover, they proposed
asking international group of Islamicscholars to look into the case and perhaps
find a way to meet the American request.
But they have always stopped short ofactually agreeing to place Osama in
American custody.
On July 6, 1999, President Clinton
banned all commercial and financial
dealings between the United States andAfghanistan’s ruling Taliban militia,
accusing the Taliban of continuing toprovide refuge to Osama bin Laden.
Clinton’s executive order freezes all Taliban
assets in the United States, bars the importof products from Afghanistan and makes
it illegal for U.S. companies to sell goods
and services to the Taliban, whose militant
Islamic fighters control about 85 percentof the mountainous, war-torn country. U.S.
officials said the measure is intended to put

114TH INTERNATIONAL TRAINING COURSE
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pressure on the Taliban to surrender bin
Laden.16 In a letter to Congress explaining
his order, Clinton said: “The Taliban
continues to provide safe haven to Osamabin Laden allowing him and the [al Qaeda]
organization to operate from Talibancontrolled territory a network of terrorist
training camps and to use Afghanistan asa base from which to sponsor terrorist
operations against the United States”.
Clinton’s order does not address trade
between Afghanistan and other countries,
and its immediate effect is likely to bemodest. Moreover, on August 20, 1998, an
executive order froze U.S. assets of bin
Laden and forbade any financialtransactions between U.S. companies andhis entities.17
U.S. government officials argue thatnabbing bin Laden is feasible and morally
necessary. They point to Libya’s surrender
last April, after years of political andeconomic pressure, of two suspects in thebombing of a Pan Am airliner over
Lockerbie. A federal grand jury in New
York has indicted bin Laden on murder andconspiracy charges for allegedly directing
the embassy attacks. The indictment also
links bin Laden to deadly attacks on U.S.
military personnel in Saudi Arabia andSomalia.18 Specifically, he is charged withconspiracy, bombing of U.S. embassies, and224 counts of murder. Bin Laden was said
to be the leader or emir of a group called“al Qaeda” or “the Base,” a terrorist group“dedicated to opposing non-Islamic
governments with force and violence.”

The Southern District indictment
charged that the al Qaeda leadership was
headquartered in Afghanistan andPeshawar, Pakistan between 1989 and1991, and in Sudan from 1991 until 1996,
returning to Afghanistan in 1996. U.S.
support for the governments of Saudi
Arabia, Egypt, and Israel, and the United
Nations and U.S. involvement in the 1991
Gulf War and in Operation Restore Hopein Somalia in 1992 and 1993, “were viewed
by al Qaeda as pretextual preparations for
an American occupation of Islamic
countries.” According to the indictment,
bin Laden formed an alliance with the
National Islamic Front in the Sudan andwith representatives of the Hezbullah,
issuing fatwas (orders) to other membersof al Qaeda that U.S. forces in Saudi
Arabia, Yemen, and Somalia should be
attacked, as well as a general fatwa in May
1998 warning that all U.S. citizens weretargets. The indictment also charged thatbin Laden sought to obtain chemical andnuclear weapons and their components.19
It is argued that there are four strategies
that are being used by the United Statesin their fight against terrorism: (1)procedures and measures inherent in thecriminal justice system; (2) seeking treaty
agreements to establish new international
norms and enforcement mechanisms; (3)disruption of terrorist structures throughcivil sanctions; (4) the prudent use of
military force to prevent terrorist attacks
and to degrade terrorist infrastructures.20
It should be noted, however, that,

16 John Lancaster, Afghanistan Rulers Accused Of

Giving Terrorist Refuge; Clinton Bans Trading With
Taliban Militia, THE WASHlNGTON POST, July7, 1999, A15.
17 See Exec. Order No. 13,099, 63 Fed. Reg. 45,167(1998); see also Continuation of Emergency
Regarding Terrorists Who Threaten to Disrupt the
Middle East Peace Process, 64 Fed. Reg. 3393 (1999)(continuing sanctions).

18 Indictment, United States v. Osama bin Laden, S(2)98 Cr. 1023 (LBS), (S.D.N.Y. Nov. 4, 1998), available
i n h t t p : / / w w w. f e r o e s . n e t / p u b / h e r o e s /indictments.html.
19 See also US Indicts Osama bin Laden on Embassy
Bombing Charges, Agence Fr.-Presse, Nov. 4, 1998,
available in LEXIS, News Library, Wire Service
Stories File.

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RESOURCE MATERIAL SERIES No. 57
particularly in the nineties, the US
Government tried, with success, anothermethod, that is, to engage the Security
Council in the law enforcement operations.
The Osama case illustrates this strategy.
In its resolution 1214, adopted at the3952nd meeting, on 9 December 1998, theSecurity Council stated, inter alia :“Deeply disturbed by the continuing useof Afghan territory, especially areas
controlled by the Taliban, for the shelteringand training of terrorists and the planningof terrorist acts, and reiterating that the
suppression of international terrorism isessential for the maintenance ofinternational peace and security,
13. Demands also that the Taliban stop
providing sanctuary and training forinternational terrorists and theirorganizations, and that all Afghan factions
cooperate with efforts to bring indicted
terrorists to justice”.
Finally, in October 1999, the UnitedStates asked the Security Council to
impose economic sanctions on the Islamic
Taliban Government in Afghanistan,demanding that the Afghans turn overOsama bin Laden.21 In the operative partof the resolution 1267 (1999), adopted at
its 405lst meeting, on 15 October 1999, theSecurity Council, among other things,“2. Demands that the Taliban turn overOsama bin Laden without further delay toappropriate authorities in a country where
he has been indicted, or to appropriate
authorities in a country where he will be
20 Ruth Wedgwood, Responding to Terrorism: The

Strikes Against bin Laden, 24 Yale Journal ofInternational Law 559 (1999).
21 Barbara Crossette, U.S. Presses Security Council
for Sanctions against the Taliban, N.Y. TIMES, 7
October 1999, A9.

106r e t u r n e d t o s u c h a c o u n t r y, o r t oappropriate authorities in a country where
he will be arrested and effectively brought
to justice”.
At a time when the United Nations
Security Council often has trouble reaching
agreement on whether one crisis or anotherconstitutes a threat to international peace,the 15-member panel has been able tocoalesce solidly on the growing dangers ofinternational terrorism. The council voted
unanimously to wage a common fighta g a i n s t t e r r o r i s t s e v e r y w h e r e . 22
Remarkable is not only an accord in thismatter, but also the fact that two Islamic
countries voted in favor. As pointed out by
the US representative during the debate,
the resolution will send a direct message
to Osama bin Laden and terrorists
everywhere: “You can run, you can hide,
but you will be brought to justice”.23 He
added that this action will bring newpressure on the Taliban to turn over Osamabin Laden to authorities in a country where
he will be brought to justice. The Taliban
in Afghanistan continue to provide bin
Laden with safe haven and security,
allowing him the necessary freedom tooperate, despite repeated efforts by theUnited States to persuade the Taliban toturn over or expel him and his principal
associates to responsible authorities in acountry where he can be brought to justice.
The resolution gives the Taliban a clear
choice. It has 30 days to turn over bin
Laden. If the Taliban do not turn him overwithin that period, the sanctions will takeeffect. Those sanctions will restrict foreign
landing rights on aircraft operated by the
Taliban, freeze Taliban accounts aroundthe world and prohibit investment in any
undertaking owned or controlled by the
22 Barbara Crossette, U.N. Council in Rare Accord:Fight Terrorism, N.Y. TIMES, 20 October 1999, A8.
23 S/PV.4051 (1999).

114TH INTERNATIONAL TRAINING COURSE
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Taliban. The draft resolution alsoestablishes a Committee to monitor the
implementation of sanctions.
Shortly after the adoption of theresolution 1267 (1999), the Taliban
representatives expressed their willingness
to discuss the most contentious issue with
the Americans, that is, the hand-over ofOsama.24 He himself made the offer in a
letter to the Taliban chief Mullah, Omar,on condition that the Taliban insure safe
and secret passage to a third, unidentified
country.25 It is unlikely, however, that theUnited States will find this movesatisfactory as the pertinent operative
paragraph in the resolution makes it clearthat the main point is that Osama be
brought to justice, not necessarily in the
United States.
Let me end by asking a provocative
question (before anyone else addresses it
to me): after the Lockerbie and bin Ladencases, do other countries have a reason tofear an intervention of the Security Council
in their extradition relations?

24 Taliban Willing to Talk, N.Y. TIMES, 24 October

1999, A8; Barbara Crossette, U.S. Steps Up
Pressure on Taliban to Deliver Osama bin Laden,
N.Y. TIMES, 19 October 1999, A7.
25 Taliban Ponder Bin Laden Offer, N.Y. TIMES, 31
October 1999, A10.

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