82

DISSENTING OPINION OF JUDGE ODA

1. I regret that I am unable to agree with any of the three points in the
operative part of the Judgment as I see the whole case from a different
viewpoint to that of the Court.

J. Lack oF JURISDICTION — No DIspuTE IN TERMS
OF THE 1971 MONTREAL CONVENTION

2. The crux of the case before us is simple in that, to use the expression
used by Libya in its Application, the United Kingdom “continues to
adopt a posture of pressuring Libya into surrendering the accused” and
“is rather intent on compelling the surrender of the accused”.

The United Kingdom and Libya have adopted different positions con-
cerning the surrender (transfer) of the two Libyans who are accused of
the destruction of Pan Am flight 103 over Lockerbie and who are located
in Libya. Those differing positions of the applicant State and the respon-
dent State did not, however, constitute a “dispute . . . concerning the
interpretation or application of the [1971 Montreal] Convention” to
which both are parties (Montreal Convention, Art. 14, para. 1).

It is my firm belief that the Application by which, on 3 March 1992,
Libya instituted proceedings against the United Kingdom pursuant to
Article 14, paragraph 1, of the Montreal Convention should be dismissed
on the sole ground that the dispute, if one exists, between the two States
is not one that “concern[s] the interpretation or application of the
[Montreal] Convention”.

In order to clarify this conclusion, I find it necessary to examine the
chain of events which have occurred since the United Kingdom outlined,
on 13 November 1991, its position on the Lockerbie incident and which
led to Libya filing its Application on 3 March 1992.

A. The United Kingdom and Libya’s Respective Claims

3. The destruction of Pan Am flight 103 occurred on 21 December
1988 over Lockerbie, Scotland, in the territory of the United Kingdom
and involved the death of 11 residents of Lockerbie, 259 passengers and
crew, including 189 United States nationals and at least 29 United King-
dom nationals, and a number of citizens of another 19 States.

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83 1971 MONTREAL CONVENTION (DISS. OP. ODA)

The United Kingdom’s demand that Libya surrender the suspects

4. After carefully conducting a scientific investigation of the crash evi-
dence for a period of over three years, the United Kingdom considered
that it had identified the two persons responsible for the explosion —
then located in Libya — who were said to have been acting as agents of
the Libyan Government. The United Kingdom’s position is set out in
(i) the “Statement of facts by the Lord Advocate, Scotland, in the case
of [the two suspects]” and (ii) the “Petition of the Procurator Fiscal of
Court for the Public Interest unto the Honourable the Sheriff of South
Strathclyde, Dumfries and Galloway at Dumfries”, both dated 13 Novem-
ber 1991.

On the following day, 14 November 1991, the United Kingdom made
public its charges against the two suspects through (i) the Announcement
by the Lord Advocate of Scotland in which he stated that “I remain com-
mitted to bring this matter to a proper conclusion in a Court of Law
whether it is to be in this country or in the United States” (United
Nations doc. A/46/826; S/23307, Ann.) and (ii) the Statement of the then
Foreign Secretary, the Rt. Hon. Douglas Hurd in the House of Com-
mons, in which he said:

“a demand is being made of the Libyan authorities for the surrender
of the accused to stand trial. I repeat that demand on behalf of the
whole Government.

We expect Libya to respond fully to our demand for the surrender
of the accused. The interests of justice require no less. This fiendish

act of wickedness cannot be passed over or ignored.” (See United
Nations doc. A/46/826; S/23307, Ann. IL.)

5. On 27 November 1991, the United Kingdom Government issued a
statement that

“the [British] Government demanded of Libya the surrender of the
two accused for trial. We have so far received no satisfactory response
from the Libyan authorities”

and in which it was further stated that:
“The British and American Governments today declare that the
Government of Libya must:

— surrender for trial all those charged with the crime; and accept
complete responsibility for the actions of Libyan officials;

— disclose all it knows of this crime, including the names of all
those responsible, and allow full access to all witnesses, docu-
ments and other material evidence, including all the remaining
timers ;

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84 1971 MONTREAL CONVENTION (DISS. OP. ODA)

— pay appropriate compensation;
We are conveying our demands to Libya through the Italians, as

our protecting power. We expect Libya to comply promptly and in
full.” (See United Nations doc. A/46/826; S/23307, Ann. III.)

The second point seems to me to be contingent on the first point and the
third point is nothing but a subsidiary request which was apparently not
pursued by the United Kingdom.

6. On the same day, the United Kingdom and the United States,
together with France (which had also been the victim of the destruction
of an aircraft in flight, a UTA DC10, on 19 September 1989, in an attack
allegedly carried out by Libyan agents), issued a tripartite declaration on
terrorism. The declaration reads in part:

“following the investigation carried out into the bombingjs] of Pan
Am 103... the three States have presented specific demands to the
Libyan authorities related to the judicial procedures that are under
way. They require that Libya comply with all these demands, and, in
addition, that Libya commit itself concretely and definitively to
cease all forms of terrorist action and all assistance to terrorist
groups. Libya must promptly, by concrete actions, prove its renun-
ciation of terrorism.” (See United Nations doc. A/46/828 ; S/23309,
Ann.)

The main thrust of the United Kingdom’s claim was the demand for
the surrender of the suspects. In demanding the surrender of the suspects,
the United Kingdom took no further action other than issuing a state-
ment or declaration in this respect which was conveyed to Libya through
the Italian Government as the United Kingdom’s protecting power.

Libya’s response to the United Kingdom’s demand

7. Libya responded to the accusation promptly on 15 November 1991
by means of a Communiqué issued by the People’s Committee for For-
eign Liaison and International Co-operation (hereinafter “the Libyan
People’s Committee”) in which it “categorically denie[d] that Libya had
any association with that incident” and “reaffirm[ed] its condemnation
of terrorism in all its forms”. The Communiqué continued:

“When a small, developing country such as Libya finds itself
accused by super-Powers such as [the United States and] the United
Kingdom, it reserves its full right to legitimate self-defence before a
fair and impartial jurisdiction, before the United Nations and before
the International Court of Justice and other bodies.

We urge the United States and the United Kingdom to be gov-
erned by the logic of the law, by wisdom and by reason and to seek

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the judgement of impartial international commissions of inquiry or
of the International Court of Justice.” (See United Nations doc.
S/23221, Ann.)

8. The Libyan People’s Committee commented in its 28 November
1991 Communiqué on the statements issued by the three States that:

“[aJll the applications [of the three States] will receive every atten-
tion, inasmuch as the competent Libyan authorities will investigate
it and deal with the matter very seriously, in a manner that accords
with the principles of international legitimacy, including the rights of
sovereignty and the importance of ensuring justice for accused and
victims”

and that

“Libya takes a positive view of international détente and the atmos-
phere which it spreads and which establishes international peace and
security and leads to the emergence of a new international order in
which all States are equal, the freedom and options of peoples are
respected and the principles of human rights and the United Nations
Charter and the principles of international law are affirmed” (see
United Nations doc. A/46/845; S/23417, Ann.).

9. On 2 December 1991, the Libyan People’s Committee issued a
further declaration refuting the United Kingdom’s accusation against
Libya and reiterating its readiness to see that justice was done in connec-
tion with the Lockerbie incident.

10. These responses from Libya dated 15 November 1991, 28 Novem-
ber 1991 and 2 December 1991 (as referred to above), which ali three
dealt with more general issues relating to acts of terrorism, certainly
implied a categorical refusal by that State to accede to the United King-
dom’s demand to surrender the suspects.

The real issues existing between the United Kingdom and Libya

11. Since making the announcement, on 14 November 1991, of the
indictment for a criminal act relating to the Lockerbie incident, the
United Kingdom has accused Libya in the strongest terms of having links
with international terrorism. Libya, on the other hand, contended that no
Libyan agent was linked to the Lockerbie incident but stated its willing-
ness to make every effort to eliminate international terrorism and to co-
operate with the United Nations for this purpose.

Despite the mutual accusations that were made in relation to the
respective positions of the two States on international terrorism, that
issue, however, is not in dispute between the two States in the present
case. Rather, Libya insisted on carrying out any criminal justice pro-

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cedure on its own territory where the suspects were to be found and made
clear that it had no intention of surrendering them to the United King-
dom, although it later expressed its readiness to hand the two suspects
over to a third, neutral, State or to an international tribunal. Libya
accused the United Kingdom of attempting to cause difficulties in
demanding the surrender of the suspects.

12. In fact, what occurred between the United Kingdom and Libya
was simply a demand by the United Kingdom for the surrender to it of
the suspects located in Libya and a refusal by Libya to comply with that
demand.

In demanding the surrender of the two suspects, the United Kingdom
made an attempt to justify that demand as an appeal that criminal justice
be pursued. The United Kingdom did not claim that Libya would be
legally bound under any particular law to surrender the two suspects. In
none of the documents that it issued did the United Kingdom make any
mention of the Montreal Convention nor did it accept that that Conven-
tion applied to the incident, including the matter of the surrender of the
suspects. Nor did Libya, until January 1992, invoke the Montreal Con-
vention as the basis of its refusal to surrender the two suspects to the
United Kingdom.

Libya invokes the Montreal Convention only on 18 January 1992

13. On 18 January 1992, the Secretary of the Libyan People’s Com-
mittee addressed a letter to the United States Secretary of State and the
Foreign Secretary of the United Kingdom through the Embassies of Bel-
gium and Italy which were entrusted. with looking after the interests of
those two countries in Libya. After pointing out that the United States,
the United Kingdom, and Libya were States parties to the 1971 Montreal
Convention, Libya’s letter stated: . |

“out of respect for the principle of the ascendancy of the rule of law
and in implementation of the Libyan Code of Criminal Procedure
. . as soon as the charges were made, Libya immediately exercised
its jurisdiction over the two alleged offenders in accordance with its
obligation under article 5, paragraph 2, of the Montreal Convention
by adopting certain measures to ascertain their presence and taking
immediate steps to institute a preliminary inquiry. It notified the
States ... that the suspects were in custody . ..

As a State party to the Convention and in accordance with para-
graph 2 of [article 5], we took such measures as might be necessary
to establish our jurisdiction over any of the offences . . . because the
alleged offender in the case was present in our territory.

Moreover, article 7 of the Convention stipulates that the Con-
tracting Party in the territory of which the alleged offender is found
shall, if it does not extradite him, submit the case to its competent

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authorities for the purpose of prosecution and that those authorities
shall take their decision in the same manner as in the case of any
ordinary offence of a serious nature under the law of that State.”
(See United Nations doc. S/23441, Ann.)

14. It was in Libya’s letter of 18 January 1992, as quoted above, that
the 1971 Montreal Convention was first mentioned. The United King-
dom did not respond to that letter. The United Kingdom was then
informed by the Registrar of the Court on 3 March 1992 of Libya’s
Application in which reference was again made to the Montreal Conven-
tion. It is important that this point should not be overlooked in deciding
whether there did or did not exist, on the date of the Application (namely
3 March 1992), “any dispute . . . concerning the interpretation or applica-
tion of the [Montreal] Convention which cannot be settled through nego-
tiation” (Montreal Convention, Art. 14, para. 1).

B. The Relevant Issues of International Law

The issues in the present case

15. There is no doubt that the 1971 Montreal Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation is, in
general, applicable to the destruction of the American Pan Am aircraft
which occurred in December 1988 over Lockerbie in the United King-
dom, as long as both Libya and the United Kingdom are parties to it.

Neither Party seems ever to have doubted that that destruction consti-
tuted a “crime” under the 1971 Convention. That point, however, is not
in issue between the two States; nor is the prevention of international
terrorism at issue in this case since proceedings were brought by Libya
and not by the United Kingdom.

Furthermore, the question of whether the United Kingdom can hold
Libya, as a State, responsible for the acts of Libyan nationals relating to
the destruction of the American Pan Am aircraft over United Kingdom
territory and of whether the explosion was caused by alleged Libyan
intelligence agents (which would make Libya responsible for the acts
committed by such persons), were not at issue either in the present Appli-
cation which was instituted by Libya and not by the United Kingdom.

16. It would be wrong to consider that the present Application con-
cerns the destruction of Pan Am flight 103 or, more generally, the
Lockerbie incident as a whole which constituted an act of international
terrorism. An application of that nature could have been filed by the
United Kingdom but not by Libya.

The issues in the present case submitted by Libya to the Court relate
solely to the demand of the Respondent, the United Kingdom, that the

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Applicant, Libya, surrender the two suspects identified by the Lord
Advocate of Scotland as having caused the destruction of the Pan Am
aircraft (clearly a crime pursuant to the Montreal Convention) and
Libya’s refusal to accede to the Respondent’s demand. Relations
between those two States regarding the case went no further than this.

Criminal jurisdiction

17. No State is prevented from exercising its criminal jurisdiction over
a person or persons who have committed a crime on its territory, or a
person or persons who have committed serious damage to its interest or
against its nationals, or who have committed a crime of universal juris-
diction anywhere in the world. Accordingly, there is no doubt that in this
case the United Kingdom is competent to exercise its criminal jurisdic-
tion over the two suspects, whoever they may be and wherever they may
be located.

Conversely, nor is there any doubt that any State is entitled to exercise
its criminal jurisdiction over a serious crime committed by its nationals
anywhere, either on its own territory or abroad. Libya’s rights in this
respect do not seem to have been challenged by the United Kingdom.

18. Thus, the right to prosecute or punish criminals does not fall
within the exclusive jurisdiction of any particular State, either the State in
which the crime has been committed (in this instance, the United King-
dom) or the State of which the criminal is a national (in this instance,
Libya). The Libyan suspects in this case are subject to the concurrent
jurisdictions of either the State where they have committed the crime
or of the State where they are located. The Montreal Convention adds
nothing to this general principle and does not deviate at all from it.

There is no difference in the views of the Applicant and the Respon-
dent regarding the interpretation of those general rules of international
law. There exists, apparently, no dispute in this respect.

19. The issues in this case arose not in relation to a legal question gov-
erning the rights and obligations of either Party to prosecute or punish
the two suspects but are related rather to the fact that while the United
Kingdom demanded that Libya transfer or surrender the two suspects
located on its territory with a view to achieving criminal justice, Libya
refused to accede to that demand, and, accordingly, the suspects have (so
far) avoided the criminal jurisdiction of the United Kingdom.

Law of extradition

20. States have not been under an obligation to extradite accused per-
sons under general international law but some specific treaties, either

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multilateral or bilateral, have imposed the obligation on contracting
States to extradite accused persons to other contracting States. The
Montreal Convention is certainly one of those treaties.

An exception to that obligation to extradite criminals is made, how-
ever, in the event that the accused are of the nationality of the State
which is requested to extradite them. This rule of non-extradition of
nationals of the requested State may not seem to be quite appropriate for
the purposes of criminal justice, as the accused may more adequately be
prosecuted in the country where the actual crime occurred. While no rule
of international law prohibits extradition of nationals of the requested
State, there is a long-standing international practice which recognizes
that there is no obligation to extradite one’s own nationals. The
Montreal Convention is no exception as it does not provide for the extra-
dition of nationals of the requested State even for the punishment of these
universally recognized unlawful acts.

The rule of non-extradition of political criminals has long prevailed
but that rule does not apply in the case of some universal crimes, such as
genocide and acts of terrorism.

21. The Montreal Convention, however, goes one step further in the
event that States do not extradite the accused to other competent States,
by imposing the duty upon the State where the accused is located to bring
the case before its own competent authorities for prosecution. Under the
Montreal Convention, Libya would thus assume the responsibility to
prosecute the accused if it did not extradite them. Libya has not chal-
lenged this point at all. Libya has claimed that it was proceeding to the
prosecution of the suspects and it has also expressed its willingness to
extradite them to what it maintains are certain politically neutral States.

C. Conclusion

22. Thus conceived, the question relating to the United Kingdom’s
demand that Libya surrender the. two suspects and Libya’s refusal to
accede to that demand is not a matter of rights or legal obligation con-
cerning the extradition of accused persons between the United Kingdom
and Libya under international law nor is it a matter falling within the
provisions of the Montreal Convention. Or, at least, there is no. legal dis-
pute between Libya and the United Kingdom concerning the interpreta-
tion or application of the Montreal Convention which could have been
brought to arbitration or to the Court.

If there is any difference between them on this matter, that could
simply be a difference between their respective policies towards criminal
justice in connection with the question of which State should. properly

. do justice on the matter. That issue does not fall within the ambit of
the Montreal Convention.

From the outset, no dispute has existed between Libya and the United
Kingdom “concerning the interpretation or application of the [Montreal]
Convention” as far as the demand for the surrender of the suspects and

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the refusal to accede to that demand — the main issue in the present case
— are concerned. Libya neither presented any argument contrary to that
viewpoint nor proved the existence of such a legal dispute.

*

‘23. I therefore conclude that no grounds exist on which the Court may
exercise its: jurisdiction to hear the present Application instituted by
Libya.

‘IL. THE QUESTION OF ADMISSIBILITY — THE EFFECT
OF THE SECURITY COUNCIL RESOLUTIONS

24. As I have stated above, I am firmly of the view that the Court
lacks the jurisdiction to consider this Application filed by Libya. If the
Court’s jurisdiction is denied, as I believe it should be, the issue of
whether the Application is or is not admissible does not arise. For me, at
least, it is meaningless to discuss the question of admissibility. However,
the Court, after finding that it

“has jurisdiction, on the basis of Article 14, paragraph 1, of the

Montreal Convention . . . to hear the disputes between Libya

and the United Kingdom as to the interpretation or application

of the provisions of that Convention” (Judgment, operative para-

graph 53 (1) (b)),
continues to deal with the question of admissibility and finds that “the
Application filed by Libya . . . is admissible” (para. 53 (2) (b)) by “reject-
[ing] the objection to admissibility derived by the United Kingdom from
Security Council resolutions 748 (1992) and 883 (1993)” (para. 53 (2) (a)).
Despite the fact that I am of the view that the question of admissibility
should not arise since the Court should dismiss the Application on the
ground of lack of jurisdiction, I would now like to comment upon the
impact of these Security Council resolutions, which is the only issue dealt
with in the present Judgment in connection with whether the Application
is admissible or not.

25. Before doing so, I also have to refer to another point in the Judg-

ment on which I disagree. The Judgment states that the Court

“Declares that the objection raised by the United Kingdom
according to which Security Council resolutions 748 (1992) and
883 (1993) have rendered the claims of Libya without object does
not, in the circumstances of the case, have an exclusively prelimi-
nary character.” (Operative paragraph 53 (3).)

By finding the Application admissible, the Court certainly indicated
that the objection of the United Kingdom that Libya’s claims are without
object as a result of the adoption of Security Council resolutions 748

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(1992) and 883 (1993) does not have an exclusively preliminary character.
In my view, however, this point should not form any separate or distinct
issue from the question of admissibility but should be included in that
question.

I believe that if the adoption of Security Council resolutions 748 (1992)
and 883 (1995) is to be dealt with in connection with the question of
admissibility of the Application, it should be dealt with at the present
(preliminary) stage irrespective of whether this question possesses or not
an exclusively preliminary character. I reiterate that the question of
whether Libya’s claims are without object because of the Security Coun-
cil resolutions is a matter concerning admissibility which the Court
should have dealt with at this stage.

A. Referral of the Incident to the United Nations — Particularly to the
Security Council — by the Parties and Their Subsequent Actions

26. It should be noted that the majority of the documents issued by the
United Kingdom and Libya were communicated to the United Nations
with the request that they be distributed as documents of both the Gen-
eral Assembly and the Security Council or of the Security Council alone
(see paras. 4-7 above).

Referral of United Kingdom and Libyan documents to the United
Nations

27. The United Kingdom only transmitted the relevant documents to
the United Nations as late as 20 December 1991: (i) the announcement
by the Lord Advocate of Scotland and the statement by the Foreign Sec-
retary of the United Kingdom, both of 14 November 1991, and the state-
ment issued by the British Government on 27 November 1991 were pre-
sented to the United Nations Secretary-General on 20 December 1991
and were distributed as document A/46/826 and S/23307; (ii) the Joint
Declaration of 27 November 1991 was also transmitted to the United
Nations Secretary-General on 20 December 1991 and distributed as
document A/46/828 and S/23309.

28. It was, however, Libya that had already informed the United
Nations Secretary-General of the British statements in which the accusa-
tion that the two suspects were involved in the Lockerbie incident was
made. This occurred well before the United Kingdom transmitted its
documents to the United Nations.

Three documents were transmitted by Libya to the United Nations:
(i) Libya’s first Communiqué was transmitted on 15 November 1991 to
the President of the Security Council and was distributed as document
S/23221 ; (ii) Libya’s Communiqué responding to the three States’ (the
United Kingdom, the United States and. France) Joint Declaration of
27 November 1991 was transmitted on 28 November 1991, and was dis-

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tributed as document A/46/845 and S/23417; and (iii) a letter dated
18 January 1992 from the Secretary of the Libyan People’s Committee
addressed to the United States Secretary of State and to the Foreign Sec-
retary of the United Kingdom was transmitted on that same day to the
President of the Security Council and was distributed as document
S/23441.

Libya’s notification of the events to the United Nations

29. The relevant documents were thus transmitted by Libya for distri-
bution to the delegates in the General Assembly and particularly to the
members of the Security Council. In addition, a few days after the United
Kingdom and the United States announced the indictment of the two
Libyan suspects, the Secretary of the Libyan People’s Committee sent
letters addressed directly to the United Nations Secretary-General (as
indicated in paragraph 30 below) in an effort to draw the attention of the
United Nations member States to the chain of events that had unfolded
since 13 November 1991, particularly in relation to the transfer of the
suspects. Libya seems to have believed that the matters involved were not
legal issues but were concerned with international peace and security,
and, as such, were to be dealt with by the United Nations.

30. In (i) its letter to the Security Council of 17 November 1991, issued
as United Nations document A/46/660 and S/23226, Libya requested a
dialogue between itself, on the one hand, and the United Kingdom and
the United States, on the other, and expressed its readiness to co-operate
in the conduct of any neutral and honest enquiry. Libya affirmed its
belief in the peaceful settlement of disputes, as provided for in Article 33,
paragraph 1, of the Charter, which lays down that the parties to any dis-
pute “shall, first of all, seek a solution by negotiation, enquiry, media-
tion, conciliation, arbitration, judicial settlement . . .”; (ii) in its letter of
20 November 1991, issued as United Nations document A/46/844 and
S/23416, Libya stated its “unconditional readiness to co-operate in order
to establish the truth” and declared its “readiness to co-operate to the full
with any impartial international judicial authority”. This letter empha-
sized that the Charter “guarantees the equality of peoples and their right
to make their own political and social choices, a right that is enshrined in
religious laws and is guaranteed by international law”; (iii) in its letter of
8 January 1992, issued as United Nations document A/46/841 and
S/23396, Libya stated:

“If it is a matter of political differences between the three coun-
tries and Libya, then the differences must be discussed on the basis
of the Charter of the United Nations, which does not endorse
aggression or the threat of aggression but rather calls for the resolu-
tion of differences by peaceful means. Libya has expressed its readi-

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ness to pursue any peaceful means that the three countries may
desire for the resolution of existing differences.”

31. It is thus clear that the announcement of the Lord Advocate of
Scotland and the United Kingdom’s demand for surrender of the two
suspects, and Libya’s immediate refusal to accede to that demand, had
already been notified by Libya to the United Nations on 17 November
1991 — not apparently as legal issues existing solely between the two
States but as matters concerning international peace and security in
which the United Nations should be involved.

B. The Security Council Resolutions

Security Council resolution 731 (1992) of 21 January 1992

32. On 20 January 1992 — that is to say two days after the Libyan
letter of 18 January 1992 addressed to the United States and to the
United Kingdom was distributed as a Security Council document S/23441
(as stated above in paragraph 28) — the United Kingdom and the United
States, together with France, presented a draft resolution for adoption to
the Security Council (United Nations doc. $/23762), the main purpose of
which was to encourage Libya to provide “a full and effective response to
the requests” (emphasis added) made by the United Kingdom and the
United States.

It should be noted that, in fact, the surrender of the two suspects to the
United Kingdom (or to the United States) was not mentioned explicitly
in this draft resolution except by a simple reference to the letters repro-
duced in Security Council documents S/23306, $/23307, S/23308, S/23309
and S/23317 (the letters addressed to the United Nations by the United
Kingdom and the United States; S/23306 was sent to the Security Coun-
cil by France).

33. On the following day, 21 January 1992, the Security Council was
convened and the agenda — letters dated 20 and 23 December 1991
(S/23306; S/23307; S/23308; S/23309; and S/23317): the letters indi-
cated in the agenda consisted of the letters addressed to the United
Nations Secretary-General by France, the United Kingdom and the
United States, mentioned above — was adopted.

34. Most of the arguments presented were directed at rather general
questions relating to the condemnation or elimination of international
terrorism, on the tacit understanding that the destruction of Pan Am
flight 103 was caused by persons (allegedly Libyan intelligence agents)
now residing in Libya. |

The surrender of the two suspects. by Libya to either the United King-

dom or the United States was barely addressed in the Security Council
debates. Support for the surrender of the two suspects was mentioned in

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1971 MONTREAL CONVENTION (DISS. OP. ODA)

the debates in only the statements of the United Kingdom and of the
United States. The United States representative said:

The

“The resolution makes it clear that the Council is seeking to
ensure that those accused be tried promptly in accordance with the
tenets of international law. The resolution provides that the people
accused be simply and directly turned over to the judicial authorities
of the Governments which are competent under international law to
try them.” (United Nations doc. S/PV.3033, p. 79.)

United Kingdom’s representative said:

“We very much hope that Libya will respond fully, positively and
promptly, and that the accused will be made available to the legal
authorities in Scotland or the United States . . . The two accused of
bombing Pan Am flight 103 must face, and must receive a proper
trial. Since the crime occurred in Scotland and the aircraft was
American, and since the investigation has been carried out in Scot-
land and in the United States, the trial should clearly take place in
Scotland or in the United States. It has been suggested the men
might be tried in Libya. But in the particular circumstances there
can be no confidence in the impartiality of the Libyan courts.”
(Ibid, p. 105.)

35. In the meeting that took place on 21 January 1992, the Security
Council unanimously adopted resolution 731 (1992) which includes the
following:

89

“The Security Council,

Deeply concerned over the results of investigations . . . which are
contained in Security Council documents that include the requests
addressed to the Libyan authorities by . . . the United Kingdom ...
and the United States . . . in connection with the legal procedures
related to the attac[k] carried out against Pan Am flight 103 . . .;

Determined to eliminate international terrorism,

2. Strongly deplores the fact that the Libyan Government has not
yet responded effectively to the above requests to cooperate fully in
establishing responsibility for the terrorist ac{t| . . . against Pan Am
flight 103 ...;

3. Urges the Libyan Government immediately to provide a full
and effective response to fhose requests so as to contribute to the
elimination of international terrorism;

4. Requests the Secretary-General to seek the cooperation of the

Libyan Government to provide a full and effective response to those
requests” (emphasis added).
95 1971 MONTREAL CONVENTION (DISS. OP. ODA)

It should be noted that, although the surrender of the two suspects was
not specifically mentioned in the resolution, the “request” referred to
therein meant mainly the surrender of the suspects, and that the Security
Council referred to the request of the United Kingdom and of the United
States that Libya co-operate in establishing responsibility for the terrorist
act, which request, as I repeat, included a call for the surrender of the two
suspects.

36. The Secretary-General presented a report on 11 February 1992,
issued as United Nations document S/23574, pursuant to paragraph 4 of
Security Council resolution 731 (1992) in which the Secretary-General
gave a report on the visit of his mission to Libya and transmitted Libya’s
viewpoint. On 3 March 1992, the Secretary-General presented a further
report on the same issue as United Nations document S/23672 which
concluded that:

“it will be seen that while resolution 731 (1992) has not yet been
complied with, there has been a certain evolution in the position of
the Libyan authorities since the Secretary-General’s earlier report of
11 February 1992”.

It was on that very date, 3 March 1992, that Libya filed the Appli-
cation in the present case instituting proceedings against the United
Kingdom on “questions of interpretation and application of the [1971]
Montreal Convention arising from the aerial incident at Lockerbie”.

The meaning of Security Council resolution 731 (1992)

37. It appears from this chain of events dating from November 1991 to
the date of the Application, namely 3 March 1992, that what concerned
Libya was the fact that, on the basis of a proposal made by the United
Kingdom and the United States, as well as France, the Security Council
had passed resolution 731 on 21 January 1992 by which it “urgefd] the
Libyan Government immediately to provide a full and effective response
to those requests so as to contribute to the elimination of international
terrorism” (emphasis added) (“those requests” being mainly the requests
of the United Kingdom and the United States for surrender of the sus-
pects).

The United Kingdom and the United States did not at that time appear
to have considered that there was a “dispute” between themselves and
Libya within the meaning of Chapter VI of the United Nations Charter,
as is clear from the fact that the United Kingdom and the United States
participated in the voting on that Security Council resolution 731 (1992).
Libya appears to have considered that the United Kingdom and the
United States would have been well aware that their demand, now called
a “request”, would have had to be made simply from the standpoint of a
political consideration that international terrorism should be condemned
and eliminated.

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96 1971 MONTREAL CONVENTION (DISS. OP. ODA)

. 38. The United Kingdom and the United States were apparently of the
view, on 20-21 January 1992, that Libya’s refusal to surrender the two
suspects named in connection with the Lockerbie incident would have
consequences for the maintenance of international peace and security,
and should have been dealt with by the Security Council which has pri-
mary responsibility for that object. It may be assumed that the United
Kingdom and the United States would have known that the demand
would not be a matter that could be dealt with from a legal point of view.

The fact that, on 21 January 1992, the Security Council dealt unani-
mously with the Lockerbie incident as a matter connected with interna-
tional peace and security had nothing to do with the issue of whether or
not the United Kingdom and the United States had legal competence to
require the surrender of the two suspects and of whether or not Libya
was obliged to surrender them under the provisions of the Montreal Con-
vention. These separate issues should be examined on their own merits.

Security Council resolutions 748 (1992) and 883 (1993)

39. The United Kingdom and the United States appear, after the filing
of Libya’s Application in the present case, to have considered that
Libya’s firm resistance to the surrender of the two suspects would consti-
tute “threats to the peace, breaches of the peace, and acts of aggression”
(United Nations Charter, Chap. VIE). In fact, the United Kingdom and
the United States, together with France, submitted another draft resolu-
tion to the Security Council on 30 March 1992 (United Nations doc.
S/25058). This appeal by the United Kingdom and the United States (as
well as France) to the Security Council to adopt a draft resolution under
Chapter VII of the United Nations Charter was not directly related to the
present Application filed by Libya on 3 March 1992 and had been under
negotiation in the Security Council before that date.

40. On 31 March 1992, the Security Council, “acting under Chap-
ter VII of the Charter”, adopted resolution 748 (1992). The United King-
dom and the United States, as sponsoring States, ensured that the pro-
posal before the Security Council stated that it was “deeply concerned
that the Libyan Government has still not provided a full and effective
response to the requests in its resolution 731” (emphasis added).

During the meeting in the Security Council, the United States repre-
sentative said: ,

“We have called upon Libya to . - . turn over the two suspects in
the bombing of Pan Am 103 for trial in either the United States or
the United Kingdom . . . This resolution also makes clear the Coun-
cil’s decision that Libya should comply with those demands.” (United
Nations doc. S/PV.3063, p. 66.)

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97 1971 MONTREAL CONVENTION (DISS. OP. ODA)

The United Kingdom representative stated:

“We were especially grateful to the Arab Ministers who went
to Tripoli last week to seek to persuade the Libyan leader to
comply and hand over the accused so that they could stand trial.
The three co-sponsors of the resolution have taken the greatest
care to allow time for these efforts to bear fruit.” (United Nations
doc. S/PV.3063, p. 69.)

In fact the demand for the surrender of the suspects was inserted impli-
citly into that resolution, although its main purpose was to condemn the
Lockerbie incident itself totally and also, more generally, acts of terror-
ism in which Libya was allegedly involved. The Security Council decided
to impose economic sanctions upon Libya.

41. Having obtained no positive result from Security Council resolu-
tion 748 (1992), the United Kingdom and the United States (together
with France) again took the initiative in proposing a renewed resolution
to the Security Council (United Nations doc. S/26701) which, on
11 November 1993, adopted Security Council resolution 883 (1993),
along similar lines to resolution 748 (1992). In that meeting the United
States representative said “[w]e await the turnover of those indicted for
the bombing of Pan Am 103” (United Nations doc. S/PV.3312, p. 41),
and the United Kingdom’s representative stated:

“if the Secretary-General reports to the Council that the Libyan
Government has ensured the appearance of those charged with the
Lockerbie bombing before the appropriate United States or Scottish
court ... then thé Security Council will review the sanctions with a
view to suspending them immediately” (ibid., p. 45).

C. Conclusion

42. The question remains whether these Security Council resolutions,
particularly resolutions 748 (1992) and 883 (1993), which were adopted
after the filing of the Application in this case, bear on the present case as
brought by Libya. Incother words, the question of whether Libya’s
3 March 1992 Application has become without object after the adoption
of these 31 March 1992:and 11 November 1993 Security Council resolu-
tions is distinct from the:case as presented by Libya. If there is any dis-
pute in this respect, it could be a dispute between Libya and the Security
Council or between Libya and the United Nations, or both, but not
between Libya and the United Kingdom.

The effect of the Security Council resolutions (adopted for the aim of
maintaining international peace and security) upon member States is a

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matter quite irrelevant to this case and the question of whether Libya’s
Application is without object in the light of those resolutions hardly
arises.

Ed

43. Even though I found that Libya’s Application should be dismissed
owing to the Court’s lack of jurisdiction, I nonetheless wanted to express
my view that these Security Council resolutions, which have a political
connotation in dealing with broader aspects of threats to the peace or
breaches of the peace, have nothing to do with the present case, which,
had there been jurisdiction, could have been submitted to the Court as a
legal issue which existed between the United Kingdom and Libya, and
between the United States and Libya, before the resolutions were adopted
by the Security Council.

(Signed) Shigeru ODA.

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