CASE CONCERNING QUESTIONS OF INTERPRETATION AND
APPLICATION OF THE 1971 MONTREAL CONVENTION
ARISING FROM. THE AERIAL INCIDENT AT LOCKERBIE
(LIBYAN ARAB JAMAHIRIYA V. UNITED STATES OF AMERICA)
-----------------·-----
REJOINDER.
SUBMITTED BY
THE UNITED STATES OF AMERICA
3 AUGUST 2001 TABLE OF CONTENTS
INTRODUCTION AND OVERVIEW . . . . . . . . . . . . . . . . . . . . . .1. . . . . . . . . . . . . .
PART 1 RECENT FACTUAL DEVELOPMENTS
BEARING ON THIS CASE . . . . . . . . . . . . . . . . . . . . . . . .4. . . . . . . . .
PART Il A DECISION BY THIS COURT ON THE DISPUTE
PRESENTED IN LIBYA'S APPLICATION WOULD
BE WITHOUT OBJECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
PART III THE UNITED STATES DID NOT VIOLA TE ANY
LIBYAN RIGHTS UNDER THE MONTREAL
CONVENTION ........................................... 14
Chapter I Limited Scope Of Court's Jurisdiction
Under The Convention ..................................... 14
Chapter Il The Montreal Convention Is Not An
Exclusive Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Chapter III There Was No Violation Of Article 7 Of
The Convention ........................................... 20
Section 1. The Convention Does Not Give aState Holding
an Alleged Offender the Exclusive Right to
Choose the Venue of Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2. No Actions Taken by the United States Violated
Article 7, Read in Conjunction With Other Relevant
Convention Articles .. :.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
A. Refusing to Adopt Libya's Proposais asto Trial ............... 23
B. Referral of Dispute to Security Council ...................... 24
Chapter IV There Was No Violation Of Article 11 OfThe Convention ....... 27
ChapterV Libya's Allegation With Respect To Alleged Threats
Is Not Within The Jurisdiction Of The Court, And, In
Auy Event, The United States Did Not Threaten The
Use Of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 - 11-
Chapter VI Libya's Attempt To Reserve The Right To Dring A
New Claim Involving New Substantive Allegations
Has No Legal Effect On These Proceedings ................... 37
Section 1. Libya Cannot Reserve the Right to Assert a New
Claim at this Stage in the Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 2. To Permit Libya to Reserve the Right to Make an
Additional Claim at this Stage Would be Contrary to
Sound Judicial Administration and the Practice of this Court ........ 40
PART IV THE OBLIGATION OF MEMBER.STATES TO CARRY
OUT DECISIONS OF THE SECURITY COUNCIL
PREV AILS OVER THE OBLIGATIONS ALLEGED
BY.LIBYA ................................................ 43
Chapter 1 The Decisions Of The Security Council Required The
Surrender Of The Two Accused lndividuals . . . . . . . . . . . . . . . . . . . 45
Section 1. The Language ofResolutions 731. 748 and 883 Clearly
Shows that Libya was Reguired to Surrender the Two Accused
to United Kingdom or United States Authorities .................. 45
Section 2. The Council's Latest Resolution Confirms that its Earlier
Resolutions Required Libya to Surrender the Two Accused ......... 48
Section 3. The Plain Meaning of the Language of the Councii's
Resolutions isConfirmed by the Statements of Counci1
Members .............. ·................................... 49
Chapter II The Security Council's Resolutions Preclude The Rights
Asserted By Libya Under The Montreal Convention . . . . . . . . . . . . 51
Section 1. Libya's Claims Are Inconsistent With the Council's
R.esolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 2. The Council's Resolutions Take Precedence Over
Libya's Claims Under the Montreal Convention .................. 52
Section 3. The Council's Resolutions Can and Do Supersede
Inconsistent International Law Obligations ...................... 54 - lll-
Chapter III The Security Council's Exercise Of Its Cbapter VII
Fonctions ls Not Subject To Review .......................... 58
Section 1. The Council Had the Authority to Require the Surrender
of the Accused ......................................... ·.... 58
Section 2. Decisions of the Council Under Chapter VII May Not
Be Reviewed or Disregarded by Any Other Authority .............. 61
Chapter IV The United States Cannot Be Held Responsible For Resort
To The Security Council Or The Effects OfThe Council's
Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 1. The United States Had the Right to Ask the Council to
Take the Decisions in Question ............................... 67
Section 2. The United States Cannot be Held Responsible for the
Decisions of the Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
PART V RESERVATIONS AND SUBMISSIONS ...................... 70 INTRODUCTION AND OVERVIEW
1. Pursuant to the Courfs Order of 6 September 2000, the United States of America
submits its Rejoinder in this case.
2. On 29 June 2000, the Government ofLibya filed its Reply in this proceeding,
reiterating its allegation that the United States violated the Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation done at Montreal on 23 September 1971
("Montreal Convention") by taking steps to bring two Libyan nationals, accused ofhaving
caused the destruction ofPan Am 103, to trial outside Libya. The fundamental weaknesses
ofLibya's Application remain as they have been throughout this long proceeding: first, the
Montreal Convention does not, as a matter of law, impose on Contracting States such as the
United States the obligations that Libya asserts that the United States bas violated; and,
second, even if the Montreal Convention did create such obligations, the Security Council bas
taken decisions that render those alleged obligations inapplicable to this dispute involving the
destruction of Pan Am 103. Many of the assertions made by Libya in its Reply are not new
and have been addressed in the United States Counter-Memorial and ether pleadings. The
United States reaffirms the arguments made in its earlier submissions and, to the extent
possible, will not repeat them here.
3. The United States respectfully submits that the Court need not reach the merits of
Libya's claims in deciding this case. Libya's recent surrender of the accused for trial in the
Netherlands by a Scottish court and the successful conduct and conclusion ofthat trial have
rendered the Application without abject. Part lof this Rejoinder will set forth a brief
summary of the relevant factual developments. Part II will demonstrate that these - 2-
developments have rendered a decision by this Court witbout object and that, accordingly, the
Court is not required to adjudicate the rnerits of Libya's claim.
4. In Part III, the United States will show that as the dispute bas evolved and as Libya
bas recast its arguments, the linkbetween Libya's complaints and what it says are the
obligations of the parties to the Montreal Convention bas grown ever more attenuated. Libya
now focuses its Montreal Convention arguments on allegations that the United States violated
an undefined "spirit of the Convention" or failed to implement in good faith its alleged
obligations under the Convention. Moreover, Libya now agrees that the Montreal
Convention does not encompass the entire range of legally available solutions regarding trial
ofthe two accused individuals. Indeed, the trüil in the Netherlands, which was accepted -
and strongly endorsed -- by Libya as a resolution of this matter, is not an arrangement
undertaken pursnant to any provision of the Montreal Convention, but one arrived at tbrough
compliance with resolutions of the Security Council. Libya's assertion that the United States
acted unlawfully in resorting to the Security Council to take action to address the threat to
international peace and security created by Libyan involvement in terrorist activities,
including its involvement in the destruction ofPan Am 103, is without merit and should be
rejected by the Court.
5. In Part IV, the United States will discuss the relevant resolutions of the Security
Council and show that these resolutions required Libya, inter a/ia,to surrender the two
accused for trial in courts of the United Kingdom or the United States. It will also show that
the obligation ofMember States to comply with these resolutions prevails over the rights
claimed by Libya under the Montreal Convention. In addition, the United States will
demonstrate that the Security Couneil's exercise of its Chapter VII fonctions is not subject to -3""
rev1ew. Finally, the United States will show that it cannot be held responsible before this
Court for its resort to the Security Council or for the effects of Council decisions. -4-
PARTI
RECENT FACTUAL DEVELOPMENTS BEARING ON THIS CASE
1.1 The United States previously submitted to the Court detailed information
concerning the destruction ofPan Am 103, the subsequent criminal investigation and
indictments, and relevant Security Council actions and Libyan responses. We respectfuUy
refer the Court to the United States Counter-Memorial of 31 March 1999 and to the Annex of
Factual Background at Counter-Memorial Exhibit 1. Since the filing ofthe United States
Counter-Memorial, there have been significant developments that bear on the issues before
the Court. These developments confirm that the United States bad a reasonable basis for
believing that Libya was implicated in the destruction of Pan Am 103 and that the United
States acted properly in the circumstances of this case. They also provide the basis on which
the Court may conclude that the Libyan Application bas been rendered without object.
1.2 On 5 April 1999, Messrs. Abdelbasset Ali Mohmed Al Megrahi ("Mr. Al
Megrahi") and Al Amin Khalifa Fhimah ("Mr. Fhimah") arrived in the Netherlands to stand
trial before a Scottish court on charges ofhaving carried out the bombing of Pan Am 103.
Libya's surrender of the two accused implemented Security Council Resolution 1192,
adopted on 27 August 1998,',whichendorsed "the initiative for the trial ofthe two persons
charged with the bombing ofPan Am flight 103 before a Scottish court sitting in the
1
Netherlands" and required Libya to ensure the appearance of the suspects for tria1 • The
United K.ingdomand the United States bad proposed this initiative .tothe Secretary-General
1
Resolution 1192, United Nations Security Council, 3920thMeeting, 27 August 1998, United Nations
Document S/RES/1192, paras. 2 and 4. Exhibit 3 to United States Counter-Memorial. - 5-
2
in a letter of 24 August 1998 • By letter dated 19 March 1999. Libya communicated to the
Secretary-General its agreement that the two suspects would appear before the Scottish
coure. In that letter, Libya thanked the Secretary-General, as weil as Mr. Nelson Man(lela,
President of South Africa, His Majesty King Fahd Bin Abdul-Aziz Al Saud, Custodian of the
two Roly Mosques, and His Royal Highness Crown Prince Abdullah Al Saud of the
4
Kingdom of Saudi Arabia, for efforts "to find a just solution to the Lockerbie question ". As
called upon in paragraph 5 of Security Council Resolution 1192, the Secretary-General
assisted Libya with the safe transfer of the two accused to the Netherlands. Upon the arrivai
ofthe two accused in the Netherlands on 5 April 1999, the Secretary-General immediately
5
reported to the Security Council conceming the transfer . On that same day, the Security
Council issued a press release, acknowledging that Libya's action had led to the immediate
6
suspension ofthe sanctions originally ordered in Resolution 748 (1992) of31 March 1992 .
7
The Security Council confimied the suspension at its 3992ndmeeting on 8 April 1999 • Ali
2
The Reply of the Government ofLibya criticizes the United Kingdom and the United States at length for an
alleged attempt to take credit for an initiative tbat was originally proposed by Libya. See Reply of the Great
Socialist People's Libyan Arab Jamahiriya, 29 June 2000 (hereinafter "Libyan Reply"), paras. 1.16-1.27. The
24 August 1998 proposai of the United K.ingdomand the United States that a Scottish court be constituted to sit
in the Netherlands to conduct the trialof the two suspects was specifically endorsed by the Security Council in
Resolution 1192. The United States noted in its Counter-Memorial that Libya too bad endorsed a trial by
Scottishjudges applying Scottish law in a venue outside of Scotland or the United States. See Counter
Memorial Submitted by the United States of America, 31 March 1999 (hereinafter "United States Counter
Memorial"), para. 1.5.
3
The E:xhibitsin the volume accompanying this Rejoinder are identified throughout as "Rejoinder Exhibit _."
The Libyan letter of 19 March 1999 to the Secretary-General is the attachment to a letter from the Secretary
General to the President of the Security Council dated 19 March 1999, United Nations Document S/1999/311,
23 March 1999. This document is Re]oinder Exhibit 1.
4 Idem.
5
Letter dated 5 April 1999 from the Secretary-General to the President of the Security Council, United Nations
Docwnent S/1999/378, 5 Aprill999. Rejoinder Exhibit 2.
6
Security Council Press Release, United Nations Document SC/6662, 5 April1999. Rejoinder E:xhibit3.
7 Statement by the President ofthe Security Council, United Nations Docwnent S/PRST/1999/10, 8 April1999.
Rejoinder Exhibit 4. - 6-
United States actions with respect to the appropriate location for the trial oftheaccused
ceased with the surrender of the accused in the Netherlands.
1.3 Upon their arrivai in the Netherlands, Messrs. Al Megrahi and Fhimah were taken
into custody by Dutch officiais and were then transferred to the custody of Scottish offic.ials
as specified in the Agreement Between the Government of the Netherlands and the
Govemment of the United Kingdom of Great Britain and Northern Ireland Conceming a
Scottish Trial in the Netherlands. The accused were originally charged with conspiracy to
murder, altematively murder, alternatively violations ofthe Aviation Security Act 1982 8.
1.4 The trial of Messrs. Al Megrahi and Fhimah began on 3 May 2000 before a three-
judge Scottish court sitting at Camp Zeist in the Netherlands. The trial ended with the
announcement of a verdict and sentencing on 31 January 2001. Over the course of the trial,
the court sat for 77 days and beard evidence, documented in the trial transcript, from-230
witnésses. Near the end of the trial, the charges were amended so that each accused was
9
charged with murder . U~d tee terms of the amended indictrnent, Mr. Fhimah was charged
with murder as an employee ofLibyan Arab Airlines and Mr. Al Megrahi remained charged
with murder as a member of the Libyan Intelligence Services 10•Both were charged with
11
acting '"infurtherance of the_purposes of said Libyan Intelligence Services ".
8Opinion of the Court in causa Her Majesty's Advocate v. Abdelbaset Ali Mohmed Al Megrahî aAminl
Khalîfa Fhimah, Case number 1475/99, delivered 31 January 2001 (hereînafter "Opinion"), para. 1. The
Opinion is Rejoinder Exhibit 5.
9-
Idem, para. 1.
10Final Amended Indictment in the Case ofHer Majesty's Advocate v. Abdelbaset Ali Mohmed Al Megrahi
and Al Amin Khalifa Fhimah, indicating deJetions made by the High Court of Justiciary at Camp Zeist in
retuming its Verdict on 31 January 2001 {hereinafter "Final Amended Indictment"), para. (2). The Final
Amended Indicnnent is Rejoinder Exhibit 6.
11
Idem, para. (2). - 7-
1.5 On 31 January 2001, Lord.Suther]and, the presiding judge of the Scottish court,
12
delivered the court's verdict and opinion • By unanimous decision, the court found Mr. Al
Megrahi guilty of murder in the bombing of Pan Am 103 and sentenced him to life
imprisonment, with a recommendation that he not be considered for supervised re]ease for a
period oftwenty years. lt acquitted Mr. Fhimah, concluding that the evidence did not prove
beyond a reasonable doubt that he was aware that any assistance that he was giving to Mr. AI
Megrahi was in connection with a plan to destroy an aircraft by the planting of an explosive
deviee 13. The court amended the revised indictment to conform to its judicial findings. The
final arnended indictment 14 constitutes judicial fmdings of fact as to Mr. Al Megrahi.
1.6 The court convicted Mr. Al Megrahi of committing murder while acting in
concert with others and in furtherance of the pm-posesof the Libyan Intelligence Services (the
"Jamah[i]riya Security Organisation" or "JS0") 15. lt accepted the evidence that he was a
member ofthe JSO, occupying posts offairly high rank 16• It further found that Mr. Al
Megrahi traveled to Malta for an ovemight visit on 20/21 December 1988 using a coded (i.e.,
false) passport issued in the name of Ahmed Kalifa Abdusamad by the Libyan passport
17
authority • The court also concluded that Mr. Al Megrahi, acting with other members of the
JSO, ordered and obtained from the Swiss firm MEBO AG the type of explosive deviee
18
timers used in the bombing of Pan Am 103 • Based on the whole body of evidence in the
12
Rejoinder Exhibit 5.
13Opinion, para. 85.
14
Rejoinder EXhibit6.
15Opinion, para. 89; Final Amended Indictment, para. (2).
16
Opinion, para. 88.
17Opinion, para. 87; Final Amended lndictment., para. (2)(e). - 8-
case, the court detennined that there was a real and convincing pattern 1inking Mr. Al
Megrahi to the bombing and that there was no reasonable doubt asto his guilt. It also stated
its clear inference from the evidence ..that the conception, planning and execution of the plot
which led to the planting of the explosive deviee was ofLibyan origin 19".
18
Opinion, para. 88; Final Amended Indîctment, para. (2)(b).
19Op'IIDon,para.. 82. -9:..
PART II
A DECISION BY THIS COURT ON THE DISPUTE PRESENTED IN LIBYA'S
APPLICATION WOULD BE WITHOUT OBJECT
2.1 The Court's jurisprudence makes clear that once the dispute presented in the
Application has been resolved, the Court's judicial fonction cannot be exercised.
Accordingly, as explained below, the resolution of the dispute presented in Libya's
Application has obviated the need for the Court to decide the me.ritsof the case.
2.2 Contentions cases require an actual dispute in controversy, not a theoretical.
20
one. The result of the process must be a decision having binding force • The Court
emphasized in the Northem Cameroons case that its judgment must be one that can be
effectively applied. The Court stated:
If the Court were to proceed and were to hold that the Applicant' s contentions
were ali sound on the merits, it would still be impossible for the Court to render a
judgment capable of effective application.... The function of the Court is to
state the law, but it may pronounce judgment only in connection with concrete
cases where there exists at the time of adjudication an actual controversy
involving a conflict of legal interests between the parties. The Court'sjudgment
must have sorne practical consequence in the sense that it can affect existing legal
rights or obligations of the parties, thus removing uncertainty from their legal
relations 21•
Indeed, in the Preliminary Objections judgment in this case the Court recognized ..that
events subsequent to the.filing of an application may •render an application without
20See Sbabtai Rosenne, The Law and Practice of the International Court, 1920-1996, Volume II. p. 537 (3d ed.
1997).
21
Nortbern Cameroons, Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 15 at pp. 33-34.
22Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial
Incident at Lockerbie, (Libyan Arab Jamahiriyav. United StatesAmerica), Preliminary Objections, Judgment
of27 February 1998,I.C.J. Reports 1998, p. 115 (hereinafter "Judgment of27 February 1998"} at para. 45
(citing Border and Transborder Anned Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports, 1988, p. 69 at para. 66). - 10-
2.3 The dispute between the United States and Libya identified in the Application
and elaborated upon in Libya's Memorial involves the question ofwhether United States
efforts to seek the surrender of the accused acted "to prevent Libya from fulfilling its
obligations [to try the accused individuals in Libyan courts] in violation of the
[Montreal] Convention 23". In its Applicatio!l, Libya sought certain legal findings as a
predicate toits final operative request for relief, which was as follows:
that the United States is under a legal obligation immediately to cease and desist
from such breaches [of the Montreal Convention] and from the use of any and ail
force or threats against Libya, including the threat of force against Libya, and
from aUviolations of the sovereignty, territorial integrity, and the political
independence of Libya 24 .
2.4 In its Memorial, Libya recast the language ofits Application and asked the
Court to declare that:
les Etats-Unis sont juridiquement tenus de respecter le droit de la Libye à ce que
cette convention ne soit pas écartée par des moyens qui seraient au demeurant en
contradiction avec les principes de la Charte des Nations Unies et du droit
international généralde caractèreimpératifqui prohibent l'utilisation de la force
et la violation de la souveraineté,de 1'intégritéterritoriale, de 1'égalité
25
souveraine des Etats et de leur indépendance politique •
2.5 The fundamental right that Libya claimed in these proceedings was the right
. "to submit the ca5e toits competent authorities for the purpose ofprosecution 26". Libya
23Application Instituting Proceedings, 3 March 1992 (hereinafter "Libyan Application"), Part III(d).
24
Libyan Application, Part IV(c).
zs Memorial of the Great Socialist People's Libyan Arab Jamahiriya, 20 December 1993 (hereinafter "Libyan
Memorial"), para. 8.1(d) ("The United States is legally required to respect Libya's right to ensure that this
convention not be circumvented by means that would becontrary to the principles of the United Nations Charter
and of general international law that categorically prohibit the use of force and the violation of sovereignty,
territorial integrity, equal sovereigntyStates, and their politîcal independence."). Throughout this Rejoinder,
the United States will provide in the footnotes English translations of French citations from the Libyan
Memorial and Reply. These translations were made by the Department ofState's Office of Language Services,
Translating Division.
26
Libyan Application, Part III(d). - 11"
bas now accepted an alternative to prosecution by its competent authorities. Pursuant to
the requirements of United Nations Security Council Resolution 1192, it bas surrendered
the accused for trial before a Scottish court. Accordingly, a decision by this Court asto
whether the Montreal Convention provided Libya wit ~n exclusive right to choose the
place of trial of the accused and obligated other States to refrain from seeking their
surrender for trial elsewhere would be without effect.
·2.6 Libya agrees that the United States bas ceased the actions that Libya alleged bad
27
violated the Montreal Convention • The decisions ofthis Court confirm that when ajudicial
pronouncement with respect to an issue presented by an Application would be incapable of
implementation, the Court will not make a declaratory statement of rights and obligations. In
28
the Nuclear Tests cases ,New Zealand and Australia sought to hait France's atrnospheric
nuclear testing in the South Pacifie Ocean. During the proceedings, France announced the
29
completion of the atmospheric portion ofits nuclear testing program • The Applicants,
however, sought a declaration from the Court that such testing was in violation of
1
international law and requested that the Court arder France not to resume such testing in the
30
future • In each of the cases, the Court stated that "as a Court oflaw, it is called upon to
27
See Libyan Reply, para. 2.2 ("Cet accord apparaissant conune une manière d'appliquer la convention de
Montréal(supra§ 1.29), les développements qui vont suivre ne concerne que l'époqueoù les défendeurs
refusaient d'appliquer la convention.")ince the agreement seems to be one way to apply the Montreal
Convention (supra §1.29), the arguments below concem only the period when Respondents .were refusing to
apply theConvention. al);Libyan Reply, para. 1.30.
28Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253 (hereinafter "Nuclear Tests
(Australia v. France)"); Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 457
(hereinafter "Nuclear Tests (New Zealand v. France)"):
29Nuclear Tests (Australia v. France), paras. 37 and 39; Nuclear Tests (New Zealand v. France), paras. 40 and
42.
30
Nuclear Tests (Australia v. France), paras. Il and 47; Nuclear Tests (New Zealand v. France), paras. Il and
50. - 12-
resolve existing disputes between States 3h' and noted that "the objective of the Applicant has
32
in effect been accomplished ". The Court concluded that because the dispute had
,_
disappeared, the reliefrequested by Australia and New Zealand in their respective
33
Applications was without object • Accordingly, the Court found it could not grant the
Applicants the relief requested.
2.7 Here, the controversy regarding the place of trial ofthe accused has been brought
to a final conclusion, one at least as final as the resolution of the disputes before the Court in
the Nuclear Tests cases. The Security Council has adopted Resolution 1192 and Libya has
transferred the accused to the Netherlands for trial by a Scottish court. In light of these
developments, the United States, like France in the Nuclear Tests cases, has ceased the
actions of which Libya complained in its Application.
2.8 In the Nuclear Tests cases, the unilateral statement of France that it bad ceased
atmospheric testing, found by the Court to be binding on France, was sufficient to render the
dispute without object. In the present case, Libya has accepted and implemented that portion
of a Security Council resolution relating to the location of the trial of the accused, thus giving
rise to a final resolution of the dispute Libya brought before this Court. In these
circurnstances, for the Court to pronounce on the dispute brought in Libya's Application
would be without object.
2.9 A decision ofthis Court asto the respective rights and obligations of the Parties
4
with respect to Libya's "requese " for judicial assistance, like a decision on the rights and
31Nuclear Tests (Australia v. France), para55; Nuclear Tests (New Zealand v. France), para. 58 (italics added).
32
Nuclear Tests (Australia v. France), para. 52; Nuclear Tests (New Zealand v. France), para. 55.
33 Nuclear Tests (Australia v. France), para. 59; Nuclear Tests (New Zealand v. France), para. 62.
34
The United States maintains that Libya dîd not submit an effective request for assistance under Article tt· of
the Montreal Convention. This argument is set forth in this Rejoinder at Part III, ChaptN. -13-
obligations of the parties in regard to the surrender of the accused, would be a futile exercise.
Assistance under Article 11 of the Montreal Convention is to be fumished in connection wîth
on-going or contemplated criminal proceedings. Libya's request for assistance related to the
two accused persons who had been indicted on 14 November 1991 by a United States federal
grandjury 35• With Libya's agreement, these two individuals have already been tried before a
Scottish court in the Netherlands. Libya does not claim that there is any further investigation
or prosecution of them pending in Libya. Adjudicating its request for assistance would also,
accordingly, be without object.
/
35See Letter dated 27 November 1991 addressed to the Foreman of the Grand Jury of the District of Columbia
by Judge Ahmad Al-Tahir al-Zawi. Exhibit 27 to United States Counter-Memorial. - 14-
PART Ill
THE UNITED STATES DID NOT VIOLATE ANY LIBYAN RIGHTS
UNDER THE MONTREAL CONVENTION
CHAPTERI
LIMITED SCOPE OF COURT'S JURISDICTION UNDER THE CONVENTION
3.1 In the previous Part of this Rejoinder, the United States bas demonstrated that a
decision by this Court on Libya's claims would be without object in light of recent events.
This Part will address Libya's claims Wlderthe Montreal Convention and show that they are
unfounded.
3.2 In its Judgment of 27 February 1998, the Court found that it bad jurisdiction ..on
the basis of Article 14, paragraph 1, of the Montreal Convention of 23 September 1971, to
hear the disputes between Libya and the United States as to the interpretation or application
36
oftheprovisions ofthat Convention ."The Court identi:fiedfour specifie disputes between
the parties regarding the interpretation and application of the Convention: whether the
destruction of the Pan Am 103 over Lockerbie is govemed by the Montreal Convention 37;
whether the United States violated Article 7 of the Convention, read in conjonction with other
38 39
articles ; whether the United States violated Article 11 ;and whether the United States
40
caused the Convention to be set aside contrary toits requirements . In îts Counter-
36Judgment of27 February 1998, para. 53(l)(b) (italics added).
37
Idem, para. 24.
38Idem, para. 28.
39
Idem, para. 32.
40Idem, para. 35. In its Reply, Libya also seeks a finding by the Court that Libya bas complied with its
obligations under the Montreal Convention. Libyan Reply, Conclusions l(d). This request for a generalized
fmding is not properly before the Court. Pursuant to the Judgment of 27 February 1998, the four specifie
disputes set forthn the text above are the only ones properly before the Court in this case.,----
1
- 15-
Memorial, the United States addressed each ofthese disputes, demonstniting, respectively,
that the Montreal Convention did not provide an exclusive regime goveming the destruction
41
ofPan Am 103 ,that the United States did not violate Article 7 ofthe Convention, read in
42
conjonction with ether articles ,that the United States did not violate Article 11 of the
43
Conventîon , and that the United States did not unlawfully cause the Convention to be set
3.3 At this stage in the proceedings, it bas become even clearer that there have been
no violations of the Montreal Convention by the United States. ln accordance with Security
Council Resolution 1192, Libya bas surrendered the two accused to a Scottish court sitting in
the Netherlands and a trial bas been conducted there and concluded. That trial took place
with Libya's agreement and cooperation and Libya may be regarded as having acquiesced in
the resolution of the matter. Libya's surrender of the accused for trial before a Scottish court
in the Netherlands, which it regards as consistent with its obligations under the Montreal
Convention, makes clear that the United States bas not violated the Montreal Convention in
connection with any aspect ofits response to the bombing of Pan Am 103.
41See United States Counter-Memorial, paras. 2.11-2.17.
42
See idem, paras. 2.18-2.34.
43See idem, paras. 2.35-2.47.
44
See idem, paras. 2.48-2.51 {notingjurisdictional deficiencies ofLibya's claim). - 16-
CHAPTERII
THE MONTREAL CONVENTION IS NOT AN EXCLUSIVE REGIME
3.4 As the United States emphasized in its Counter-Memorial, the Montreal
45
Convention is not and was never intended to be an exClusive regime • The Convention's
basic purpose is to promote the effective criminal prosecution of persans perpetra ting attacks
on civil aircraft by ensuring that its more than 170 Contracting States establish jurisdiction
over such crimes. It neither entitles one State to assert a superior right to jurisdiction nor
limits options for effective prosecution.
3.5 Libya now recognizes that the Convention cannat be read to limit options for
prosecution to either domestic trial or extradition. In its Reply, Libya refers to the
arrangement for trial of the Libyan suspects before the Scottish court in the Netherlands and
states that "[c]et accord apparaissant comme une manière d'appliquer la convention de
Morîtréal 46". By recognizing that the trial in the Netherlands is consistent with the
Convention, Libya admits that the Convention is not an exclusive regime. Libya took a
different view in its Memorial, where it argued that:
C'est donc en vain que le Royaume-Uni et les Etats-Unis refusent le caractère
alternatif de cette obligation en prétendantcontraindre la Libye à extrader les
suspects. Les règles applicables in casu prévoientexplicitement une obligation
alternative d'extradition ou de renvoi des suspects aux autoritéspénalescompétentes
pour 1'exercice de l'action pénale(art. 7) et les défendeursdoivent donc s'abstenir de
toute action visant à empêcherl'application par la Libye de l'art.7 47•
45
See United States Counter-Memorial, para. 2.11.
46
Übyan Reply, para. 2.2 ("the agreement seems to be one way to apply the Montreal Convention").
47Libyan Memorial, para. 4.34 ("It is therefore futile for the United K.ingdomand the United States to reject the
'either-or' naturef this obligation in seekîng to campel Libya to extradite the suspects. The applicable rules in
casu explicitly provide an obligation either to extradite or to refer the suspects to the appropriate criminal justice
authorities to institute criminal proceedings (Article 7) and the Respondents must therefore refrain from any
action that seeks to prevent Libya from applying Article) · - 17-
Libya also stressed in its Memorial that its Montreal Convention obligations under Article 7
were not only binding with regard to the United States and United Kingdom, but that the
Convention ..lie égalementla Libye à l'égarddes quelque 135 autres Etats parties à la
convention de Montréal 48". This previous Libyan position insisted that the Montreal
Convention would permit only domestic prosecution or extradition in any case to which it
applied. The position Libya took in its Memorial would appear not to have provided the
flexibility to adopt an arrangement not explicitly contemplated by the Convention. As the
49
United States bas argued tbroughout, bowever, the Montreal Convention is not exdusive .
We welcome Libya's belated recognition oftbis fact.
3.6 As the Montreal Convention is not an exclusive regime, it follows that the
solution sought by the United States -- to try the suspects in a court ofthe United States or the
United Kingdom -- was fully consistent with the Convention. Nothing in the Convention
limits the ability of a Contracting State to seek through diplomatie channels to exercise
criminal jurisdiction over a suspect located in the territory of another Contracting State.
Libya bas recognized that arrangements that are neitber extradition nor domestic prosecution
50
can be consistent witb the Convention . lndeed, it bas argued at length in its Memorial and
Reply that it was Libya that originated the proposai to bold the trial in front of a specially-
constituted judicial forum in a third country. Libya also proposed at earlier stages the
possibility ofhanding the accused over for trial to the authorities of a third country, such as
48Libyan Memorial, para. 4.ll(iii) ("It also binds Libya vis-à-vis approximately 135 other States Party to the
Montreal Convention.").
49
Even if the Montreal Convention were an exclusive regime, the obligations of a Contracting State thereunder
could be overridden by a Chapter VITresolution of the Security Council, as the United States will discuss in Part
f\f. .
50
See, ~·Libyan Reply, para. 1.29. - 18-
51
Malta or an Arab country • Libya surely viewed its own proposais as consistent with its
obligations and alleged rights under the Montreal Convention, even though they deviated
from the "extradite or prosecute"language of Article 7. Similarly, the proposai of the United
States that Libya surrender the suspects for trial before a court of the United States or the
United K.ingdom was consistent with the Convention. Libya has cited increasingly vague
"implicit rights" for its proposition that the United States breached an obligation under the
Convention by engaging in conduct which, when engaged in by Libya, is claimed to have
been consistent with the Convention.
3.7 Libya attempts to distinguish its proposed solutions from that of the United States
and United Kingdom as respectful of"l'esprit de la convention de Montréal 52".·This
argument is without legal substance. The spirit ofthe Convention provides no legal basis for
concluding that Libya's proposai and ultimate acceptance of a solution outside the Montreal
Convention is consistent with its obligations while the proposai of such a solution by another
Contracting State to the Convention is a violation of the obligations ofthat State.
3.8 In any event, the solution advocated by the United States to try the accused in a
court of the United States or the United Kingdom was respectful of and entirely consistent
with ••tesprit de la convention de Montréal 5 ". Throughout the pendency ,of this matter, the
United States sought to ensure effective prosecution ofthe accused, a result which, in the
circumstances, would not be achieved by a trial in the courts ofLibya. The United States
pursued this solution through lawful means; the eventual resolution of the matter was
achieved by Libya's surrender of the accused in accordance with decisions of the Security
51 See Libyan Reply, para. 1.18 (citing United Nations Document S/23672, 3 March 1992).
52Libyan Reply, para. 1.26 ("the spirit of the Montreal Convention").
53
The United States will not detail again the background and objectives of the Montreal Convention, but
respectfully refers the Court to theted States Counter·Memorial, paras. 2.1·2.10. - 19-
Couneil. To suggest that the actions of the United States were not respectful of the spirit of
the Montreal Convention demonstrates a fundamental misunderstanding on the part of Libya
ofthe Convention and its basic purpose, which is not to provide any State with an exclusive
right to insiston a particular venue for prosecution, but to protect civil aviation by promoting
the effective prosecution ofterrorist acts. -20.
CHAPTERIII
THERE WAS NO VIOLATION OF ARTICLE 7 OF THE CONVENTION
1
3.9 The dispute identified by the Court conceming ''theinterpretation and application
of Article 7- read in conjunction with Article 1, Article 5, Article 6 and Article 8- of the
54
Montreal Conventîon " centers on Libya's allegations that it bad a .!i.s! !!der the
Convention to submit the matter for prosecution within Libya and that this right barred other
States from seeking the surrender of the suspects for prosecution in another State. In its latest
filing, Libya's alleged right bas become even more expansive; it argues that Article 7 confers
on it not only a defacto right to exercise criminal jurisdiction over the suspects, but also,
"implicitement, du droit de -choisirle lieu du procès 55". As the United States explained in its
56
Cotinter-Memorial and in previous arguments before the Court ,nothing in the Montreal
Convention confers upon Libya the rights that it claims.
3.10 Libya's Reply denied that the Court's judgment bad narrowed the scope of the
dispute to Article 7 and reasserted its arguments regarding Articles 5 and 8 of the
Convention. Libya's understanding of the Court'sjudgment is incorrect; even if it were
correct, however, neither Article 7 nor any of the other cited articles confers upon aState in
which suspects are located an entitlement either (1) to block diplomatie steps by other States
to seek custody of the suspects or (2) to insist on an exclusive right to prosecute them
domestically. Article 1 defines offences for purposes of the Convention; Article 5 obligates
Contracting States to take measures to establish jurisdiction over offences in certain
54Judgment of27 February 1998, para. 28.
ssLibyan Reply, para. 2.19 (''timplicitright to choose the venue ofprosecution").
56
See United States Counter-Memorial, paras. 2.1-2.51; see also Argument of Dr. Murphy before the Court,
Verbatim Record of Court Hearing on 14 October 1997, International Court of Justice, CR 97/18, pp. 16-31. -21 -
circumstances, thus contemplating that several States could prosecute suspected offenders,
but offering no priority; Article 6 imposes obligations on a Contracting State in whose
territory an alleged offender is found to take such offender into custody or otherwise ensure
his presence- it does not provide that State with any right to prohibit efforts by other States
to establish their ownjurisdiction; finally, Article 8 deals with extradition by defining
Convention offenses as extraditable offenses under existing extradition treaties and by
offering Contracting States the option oftreating the Convention as the legal basis for
extradition. None ofthese articles provides or even implies that aState holding an alleged
offender enjoys a dejure or defacto priority of jurisdiction, or that other States are precluded
from seeking to secure jurisdiction over alleged offenders through diplomatie means.
Section 1. The Convention Does Not Give aState Holding an Alleged Offender
the Exclusive Right to Choose the Venue ofProsecutioo
3.11 The United States demonstrated in its Counter-Memorial that Article 7 does not
grant Libya a right to choose between extradition and prosecution that excludes efforts by
other States to seek surrender of suspected terrorists through means outside the Convention.
We respectfu11yrefer the Court to the relevant portions of the United States Counter-
Memoria1 57, which were not rebutted by Libya. In its Reply, Libya sets forth a new and
expanded argument on Article 7, to the effect that Article 7 gives Libya not only an implicit
right to choose between extradition and prosecution to the exclusion of any other possibilî ty,
but also to choose any other prosecution arrangement that it may identif)r, and to block even
58
the initiation through diplomatie means of any other proposals • As the United States has
57See United States Counter-Memorial, paras. 2.18-2.34.
58See Libyan Reply, para. 2.19. -22-
already demonstrated 59,the Montreal Convention is not exclusive and does not preclude
States from seeking to obtain jurisdiction over alleged offenders through means outside of the
Convention. However, even ifit were exclusive, Libya's expanded theory ofrights would be
without foundation. Libya would still be obligated to extradite pursuantto proper extradition
proceedings or to submit the case to its competent authorities for the purpose of prosecution.
It would not have a right to require prosecution outside the scope of Article 7 or to prevent
other States from attempting to arrange for such prosecution through diplomatie means.
3.12 Libya's position here finds no support in the ordinary meaning of the relevant
provisions in their context or in the lightthe abject and purpose of the Convention. In fact,
such an interpretation would be inconsistent with the Convention's object and purpose of
ensuring effective prosecution ·ofsuspected terrorists, since it would allow any Contracting
State in the territory of which an alleged offender is present to take only minimal action to
prosecute, while blocking diplomatie activityby other States to bring about an effective trial
.in an objective forum. It is also at odds with the negotiating history of the Convention, which
clearly demonstrates a rejectionof efforts to establish a priority of jurisdiction and an
60
intention to expand opportunities forjurisdictiono~ euch crimes •
Section 2. No Actions Taken by the. United States Violated Article 7, Read in
Conjonction With Other Relevant Convention Articles
3.13 Even leaving aside the question of the precise meaning of Article 7, the United
Statesdid not take any actions that infringed any asserted Libyan rights. We note that Libya
generally fails to identify specifie United States actions that it beJieves were unlawful, reJying_
instead upon vague allegations that United States diplomatie activity violated the principle of
59
See United States Counter-Memorial, paras. 2.11-2.17.
60
For a discussion of the negotiating history of the Montreal Convention, see United States Counter-Memorial,
paras..3-2.10.r----
-23-
1
good faith application of treatiel • As shown in the Cotinter-Memorial, the general
diplomatie activity of the United States in no way violated Libyan rights under the Montreai
Convention 62• In addition, itis clear that, to the extent Libya complains about specifie United
States actions, such actions did not violateany obligation of the United States under the
Montreal Convention.
A. Refusing to Adopt Libya 'sProposais as ta Trial
3.14 Libya argues at length that the United States violated the Convention by
refusing to adopt Libya's proposais to hold the trial in a third country. However, the
Convention does not confer any right, upon a Party in the position of either Libya or the
United States, to insist upon trial in a third county. Nor does it confer upon any State the
right to insist that a proposai made outside the scope of the Convention be adopted. Indeed,
the United States recognized this fact and did not rely upon the Convention as establishing
the legal basis upon which Libya was obliged to surrender the accused. The eventual
adoption by the Security Council of a resolution that contains a provision similar to that
proposed earlier by Libya for a trial in the Netherlands does not reflect Libya's alleged legal
right under the Montreal Convention to insist upon that proposai, but rather reflects a
decision of the Security Council to address a threat to international peace and security
through means outside the Montreal Convention. The United States, of course, agreed with
the Security Council's action, although it was different from proposais it bad made earlier. .
61
Libya 's arguments in this regard appear, to an extent, to allege that the United States violated an obligation to
refrain from conduct depriving the Convention ofîts object and purpose. ThcOur tas no jurisdiction under
Article 14(1) of the Montreal Conventioto entertain this argument, or any other argument arîsing under
customary international law independentlyof the Montreal Convention,inthese proceedîngs. See Military and
Paramilitary Activitiesn and against Nicaragua (_Nicaraguav. United States), Merits, Judgment, I.C.J. Reports
1986, p. 14 at pàra. 271"(T]be Court does not consider that a compromissmy clause ... providing for
jurisdiction over disputes as to its interpretation or applicationena~uldhe Court to entertain a claim
alleging conduct depriving the treatyits object and purpose.").
62See United States Counter-Memorial, paras.2.1 1-2.34. .:24-
However, it often occurs that parties in the early stages of negotiations reject proposais
similar to those that are ultimately adopted and ultimately accept proposais similar to those
they have rejected earlier. If accepting a proposai at the end of a negotiation were to cause a
State to incur liability for not·accepting it sooner, States would be unwilling to accept
proposais similar to those presented at early negotiating stages. Such a principle of liability
would hinder effective negotiation and resolution of disputes and there is no support for it in
the Montreal Convention or anywhere else. Libya does not identify any such support in its
Reply.
B. Referra/ of Dispute to Security Council
3.15 Libya further asserts that the United States violated the Montreal Convention by
referring the dispute over Libyan involvement in terrorism to the Security Council.
According to Libya, this action was unlawful because of the underlying United States intent:
Chercher à éviterl'application de la convention en s'adressant au Conseil de sécurité
revenait à ne pas respecter la convention. Si, en soi, le recours au Conseil de sécurité
n'étaitévidemment pas illicite, ille devenait lorsque son objet consistait à éviter
l'applica63on de la convention conclue précisémentpour réglerla question soumise au
Conseil .
Libya's argument fails in several respects.· First of ali, Libya recognizes that resort to the
Security Council, in and ofitself, is not unlawful. Indeed, the United States, as a member of
the United Nations and in common with ali other members of the United Nations, bas an
express right under Article 35 of the United Nations Charter to ..bring any dispute, or any
situation of the nature referred to in Article 34, to the attention of the Security Council or of
the General Assembly". Secondly, Libya's allegation that the United States appealed to the
63Libyan Reply, para. 2.10 ("Tryintoavoid application of the Convention by appealing to the Set:urity
Council was tantamount to not respecting the Convention. Even thougb, in and of itself, resorting to the
Security Council was obviously not unlawful, it became unlawful wben its purpose became avoiding application
of a convention concluded precisely to settle a matter submitted to the Couneil."). -25.:.
Security Council with the sole purpose of avoiding application of the Montreal Convention is
unfounded. The United States, the United Kingdom and France brought the matter ofLibyan
invoJvement in terrorism, as evidenced, inter alia,by the Lockerbie bombing, to the Security
Council, as they were entitled to do, because it concerned a threat to the maintenance of
international peace and security.
3.16 Throughout this dispute, the United States bas sought surrender of the accused
through lawful means outside the scope of, but not inconsistent with, the Convention.
Initially, the United States pursued this aim through diplomatie activity, communicating its
requests to Libya and awaiting a response. When Libya failed to respond positively to
requests by the United States and the United Kingdom, these States took the Jogical next step
for such a grave situation - bringing the situation to the attention of the Security Council. As
the United States noted in its Preliminary Objections, the Security Council bas a long hîstory
of condemning acts of international terrorism and oftaking action against such terrorism in
order to maintain international peace and security64.Finally, recent developments, in
particular the production of evidence at the criminal trial of Messrs. Al Megrahi and Fhimah
and the guilty verdict with respect to Mr. Al Megrahi, confirm that the United States bad a
strong basis for concluding that Libya's actions constituted a threat to international peace and
security sufficiently serious to warrant referral to the Security Council.
3.17 In its Reply, Libya stated, in response to the position of the United States that
Article 7 did not prevent it from submitting this matter to theecu~ toyuncil, that
"[l]'argument ne serait acceptable que s'il étaitdûment prouvéque laLibye avait été
64
See Prelîminary Objections Submitted by the United States of America, 20 June 1995 (hereinafter ''United
States Prelîrninaryections"), paras. 1.47-1.49. -26-
65
impliquée dans l'incident de Lockerbie ". It thus appears that Libya itselfrecognizes- that
appealing to the Security Council, in circumstances in which a State is implicated in the
terrorist bombing of a civilian aircraft, is fully consistent with the Montreal Convention. We
submit that, as the Security Council has.recognized and as the recent developments at the trial
of the accused have confirmed, there is ample basis for the view that Libya was implicated in
the destruction of Pan Am 103.
\
65
Libyan Reply, para. 2.21 ("The argument would be acceptable only ifit were duly proven that Libya bad been
involved in the incident at Lockerbie"). -27 '-
CHAPTERIV
THERE WAS NO VIOLATION OF ARTICLE 11 OF THE CONVENTION
3.18 The Court's Judgment of27 February 1998 also recognized that there existed a
dispute between the parties concerning the application and interpretation of Article 11 ofthe
Montreal Convention 66• As discussed at Part II, Chapter I, the Court need not decide Libya's
claim under Article 11 in light of the agreement to hold the criminal trial of the accused
before a Scottish court in the Netherlands. Notwithstanding that adjudication of the Article
11 claim would now be without abject, the United States maintains that it did not take any
actions that would have constituted a violation of Article 11.
3.19 Although the United States position was explained in detail in the Counter-
67
Memorial ,there are points that.merit further emphasis. Libya's claims under Article 11 are
based upon one letter of 27 November 1991.from Judge Ahmad Al-Tahir al-Zawi to the
68
foreman of the federal grand jury in the District of Columbia . This letter, written in Arabie,
requested access to "ali the documents and investigative reports related to this grievous
69
incident ". This letter cannat be seen as an effective request for judicial assistance between
Contracting States under the Montreal Convention. The foreman of a federal grand jury is
66
Judgment of27 February 1998, para. 32.
67See United States CounterwMemorial, paras. 2.35-2.47.
68
Letter dated 27 November 1991 addressed to the Foreman of the Grand Jury of the District of Columbia by
Judge Ahmad Al-Tahir al-Zawi. Exhibit 27 to United States Counter-Memorial. Subsequent to the letter of 27
November 1991, in mid-January 1992, Libya made reference to the letter and the request for assittance
contained in communications to ICAO, the Security Council, and in a 1ettersthen~Secr of ttary
Baker.
69Idem. -28-
70
not an employee or representative of the United States Govemment; he is a private citizen .
A1though Article 11 contains few specifies regarding procedures for requesting assistance in _
connection with criminal proceedings, it is clear that it speaks to assistance as between
Contracting States to the Montreal Convention and as such, a State requesting assistance
would be expected to addŒss its request to the competent authorities of the requested State,
not to a private citizen.
_3.20 Even assuming, arguendo, that Libya's "requesf' was effective, it would have
requ~r atedm,inimum, translation, transfer from the grand jury foreman to responsible
government officiais, and identification and review, in a case of this magnitude, of a buge
volume of information. However, on 21 January 1992, less than two months after
transmission ofthe Libyan letter, the Security Council adopted Resolution 731 in which it
expressed its deep concem "over the results of investigations, which implicate officiais ofthe
Libyan Government," and urged the Libyan Govemment "immediately to provide a full and
effective response" to the requests ofFrance, the United Kingdom and the United States,
including the requests that Libya tum over for trial ali those charged with the crime1. Once
the Security Counci1adopted Resolution 731, it would have been inappropriate for the United
States to proceed to comp1ywith Libya's request for assistance as though Resolution 731 did
not exist. The resolution made clear the Council's skepticism that Libya would be a proper
venue for the trial of the suspects and, in urging Libya to provide a full and effective response
to requests for a trial outside ofLibya, made the issue of the appropriate trial venue a subject
of international concem that could not properly be regarded as settled solely on the basis of
70
The role of the federal grand jury in United States criminal cases is explained in the 31 May 1995
memorandum of the United States Department of Justice that is Exhibit 6 to United States Preliminary
Objections.
71
Resolution 731, United Nations Security Council, 3033rdMeeting, 21 January 1992, Doc. S/RES/731. Exhibit
18 to United States Preliminary Objections. -29-
Libya's previous position in the matter. Moreover, Resolution 748, a Chapter VII measure,
was adopted on 31 March 1992, approximately four months after the Libyan letter was sent.'
This resolution, which required Libya to surrender for trial the two individuals accused in the
Lockerbie bombing, made clear that Libya was not the appropriate forum for the trial of the
suspects, and thus conclusively obviated Libya's request for assistance in any Libyan
investigation and prosecution.
3.21 Even leaving aside the issues raised by the misdirected letter and the intervening
resolutions of the Security Council, the actions ofthe United States with regard to the
provision of judicial assistance to Libya were both lawful and prudent. The second sentence
of Article 11(1)provides that "[t]he law of the State requested shall apply in ali cases". This
sentence clearly qualifies the general obligation under Article 11(1) to provide assistance and
it makes the provision of assistance subject to both the procedural and substantive law of the
Requested State. There is no support for Libya's contention that the second sentence of
Article 11(1), which explicitly makes applicable the law of the State requested, should be
read to refer only to procedures for responding to a request for assistance 72• Indeed, under
Libya's theory the second sentence of Article 11(1), and in parti.cular the word "law", would
be devoid ofmeaning, a result clearly not intended by the Contracting Parties 73• In this
particular instance, the evidentiary materials requested were materials .froma federal grand
jury and, as such, were subject to a law of the United States mandating the secrecy of grand.
jury proceedings, Rule 6(e) of the Federal Rules ofCriminal Procedures. Although Libya's
Reply attempts to dismiss the effect ofRule 6(e) on the case at issue, Rule 6(e) is indeed a
fondamental and important provision ofthe criminallaw of the United States, codifying long-
72See Libyan Reply, para. 2.40, -30-
standing common law pririciples integral to the United States criminal justice system 74.
Under Rule 6(e), the foreman of the federal grand jury was specifically prohibited from
releasing any of the requested materials to Libya. The secrecy mandate of Rule 6(e) is not
limited ·to grand jurors; it.also binds, inter alia, government attorneys and their authorized
assistants. Libya's aSsertions that the secrecy rule does not bind the United States
75
Government and does not apply to relations between one judicial body and another are
plainly incorrect onder United States law. While Rule 6(e) contains narrow exceptions from
its secrecy mandate, it does not pennit the sharing ofmaterials within its scope with foreign
76
governments or foreign officiais absent a discretionary court order • Rule 6(e) is the law of
the United States, the Requested State in this instance, and as such, it would apply to prevent
the disclosure of the materials that Libya requested.
3.22 The United States transmitted to Libya a-detailedindictment with respect to the
accused. In these circumstances, the United States acted consistently with its law to
safeguard the i~teg rfitteyeventual prosecution of the suspects in an objective forum. The
holding of the criminal trial in the Netherlands, pursuant to a decision of the Security Council
73
See United States Counter-Memorial, paras. 2.41-2.42, for a discussion of the negotiating history behind
Article 11.
74
See, ~·, Douglas Oil Company of California et al. v. Petrol Stops Nortbwest et al., 441 U.S. 211 at 218 ("We
consistent! y have recognized that the proper functioning of our grand jury system depends upon the secrecy of
grand jury proceedings. ").
75See Libyan Reply, para. 2.39.
76
Rule 6(e)(3)(C)(i) provides that disdosure ofrnatters occurring before the grand jury may be made ''whenso
directed by a court preliminarily to or in connection with a judicial proceeding". United States case law makes
clear that such a court order would only be considered winteraliathere is a particularized need for
specifie information. Douglas Oil Company of Califomia et al. v. Petrol Stops Northwest et al., 441 U.S. 211 at
222 ("Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to
avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for
continued secrecy, and that theirrequest is structured to cover only material so needed."). Libya's broad request
for ali the documents and investîgative reports that were before the grand jury, for the purposeng its
own investigation, would clearly not meet the standard for such an order. -31 -
and with the consent ofLibya, vindicates the United States' actions in carefully preserving
the evidence of the crime for use at triaL -32-
CHAPTERV
LIBYA'S ALLEGATION WITH RESPECT TO ALLEGED THREATS IS NOT
WITHIN THE JURISDICTION OF THE COURT, AND, IN ANY EVENT, THE
UNITED STATES DID NOT THREATEN THE USE OF FORCE
3.23 Libya's Reply expands upon its allegation that the United States violated the
77
Montreal Convention by making unlawful threats of force against Libya • The alleged
threats consist of certain statements by United States officiais to the media, made in response
to questions about possible United States action after evidence linked the Lockerbie bombing
78
to Libya. As set forth in the United States Counter-Memorial ,Libyan al1eg.ationsof United
States threats of force do not concem the interpretation or app1icationof the Montreal
Convention and consequently are not within the Court'sjurisdiction as detennined in its 1998
Judgment.
3.24 The Court's 27 February 1998 Judgment found that it hadjurisdiction under
Article 14, paragraph 1, of the Montreal Convention to decide "on the lawfulness ofthe
actions criticized by Libya, in so far as those actions would be contrary to the provisions of
the Montreal Convention 79". Relying on this language, Libya alleges that the United States
threatened force against Libya in order to deprive it of the benefit of the jurisdictional
provisions of the Convention 80. It thus asserts that these alleged threats violated the
Convention and gave rise to liability on the part of the United States.
3.25 Libya's argument is :flawedin severa! respects. First, the Montreal Convention
does not address the issue of threats of force between States. Libya attempts to analogize the
77
See LibyanReply,paras.4.1-4.27.
78See United States Counter~M InroductoniaadlOverview, para. 4.
79Judgment of27 February 1998, para. 35.
80
Libyan Reply, para. 4.6.present situation to the issues before the Court in the cases ofFisheries Jurisdiction (United
Kingdom v. Iceland) and Fisheries Jurisdiction (Federal Republic of Germany v. lcelandt 1•
Libya's reliance on the Fisheries Jurisdiction cases to argue that its threat of force claims are
within the Court's jurisdiction under Article 14, paragraph 1 of the Montreal Convention is,
however, misplaced. In the Fisheries Jurisdiction cases, the parties bad expressly agreed that
either party could refer to the Court any dispute relating to an extension [by Iceland ofits
82
fishery jurisdiction ] • This language, which refers to a factual occurrence ànd permits
recourse to the Court for any dispute relating to this factual occurrence, is much broader than
the jurisdictional grant in Article 14, paragraph 1, of the Montreal Convention. Indeed,
Article 14, paragraph 1, refers not to any dispute related to an open-ended factual occurrence,
but only to disputes "conceming the interpretation or application of this Convention 83".
White "any dispute" relating to a factual occurrence seems broad enough to cover questions
of customary international law or the United Nations Charter, the jurisdictional grant in the
Convention's Article 14 is clearly limited to questions relating to the interpretation and
84
application of the Convention •
81
Fisheries Jurisdiction (United Kîngdom v. Jceland), Jurisdiction of the Court, Judgment, I.C.J. Reports 1973,
p. 3.; Fisheries Jurisdiction (Federal Republic of Gennany v. leeland), Jurisdiction of the Court, Judgment, I.C.J.
Reports 1973, p. 49; Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, LC.J. Reports 1974,
p. 3; Fisheries Jurisdiction (Federal Republicf Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p.
175.
82
Fisheries Jurisdiction (United Kingdom v: lceland), Jurisdiction ofthe Court, Judgment, I.C.J. Reports 1973,
p. 3 at para. 13; Fisheries Jurisdiction (Federal Republic Gennany v. lceland), Jurisdiction of the Court,
Judgment, I.C.J. Reports 1973, p. 49 at para. 14.
83
Indeed, if the jurisdictional grant of Article 14, paragraph 1 bad been structured to be similarly broad to the
compromissory clauses in the 1961 exchanges of notes, it could have given Parties the right to refer to the Court·
any dispute "concerning any acts of violence against the safety of civil aircraft". Such a broad jurisdictional
provision was clearly neither envisioned by the'arties to the Montreal Convention nor încorporated in its text.
M The Court's jurisdiction herein is limited to issues for which the Montreal Convention provides the
substantive law to be applied. Where the Court may resolve the legal issue putto it "without any interpretation
or applicationof the relevant Treat[y]", Appeal Relating to the Jurisdiction of the ICAO Council, Judgment,
I.C.J. Reports 1972, para. 28, the issue is outside itsjurisdiction given the scope of the compromissory clause -34-
3.26 Assuming, arguendo, that the Court'sjurisdiction were to extend to Libya's
threat of force claims, Libya's claims are nonetheless baseless because the United States did
not threaten the use of force at any time during the dispute at issue. Libya's aliegations of
United States threat efforce are founded solely upon five instances of public stat~me bynts
85
United States officiais to the effect that no options bad been ruled in or out . For example,
Libya claims that statements by State Department spokesman Richard Boucher, made during
a lengthy press briefing regarding the Pan Am 103 bombing on 14 November 1991, were
86
threats offorce • In that instance, the press asked what steps the United States could take to
ostracize Libya further, whether the United States was considering "attempting extradition
without the permission of the country involved", and whether there was going to be an
approach to the United Nations to take economie measures against Libya. Mr. Boucher
replied in each instance that the United States was considering its options and keeping ali of
them open. Mr. Boucher made no suggestion ofusing force against Libya; rather, his
statements demonstrate a repeated attempt to make clear to the press that no policy decision
bad been taken. The other four statements identified by Libya are similarly non-committal
responses to press questions, not affirmative messages directed toward Libya. Such
references 'to"keeping ali options open" are common in the public statements of United
States officiais; they in no way imply that a certain option is being pursued, but are a manner
of answering persistent press inquiries without revealing specifie details of ongoing policy
discussions. Significantly, Libyan officiais did not view these public statements to be threats
of force at the time they were made -- in late 1991, Libyan leader Qad.hafiexpressed to the
under which it is proceeding herein. Idem. The Montreal Convention does not provide the substantbee law to
applied with respect to Libya's assertions concerning alleged United States threats ofthe use of force.
85See Libyan Reply, paras. 4.18-4.27.
86
State Department Briefmg of 14November 1991, Annex to Libyan Memorial, Volume 1, Document Il. - 35"
press his view that the dispute over Libyan invoJvement in terrorism and the trial of the
Lockerbie bombing suspects would not escalate to force, a view that was echoed by a Libyan
87
foreign ministry official in early 1992 •
3.27 Although the question of threat of force, distinct from the use of force, bas not
88
been weil explored in intemationallaw ,scholarly opinion and the Court's jurisprudence
89
support the conclusion that the public statements at issue did not constitute a threat offorce .
ln 1992, Professor Brownlie defined the threat of force according to a monograph he had
written, as follows:
A threat of force consists in an express or implied promise by a govemment of a
resort to force conditional on non-acceptance of certain demands ofthat
governmenë 0•
The word ''promise" indicates a degree of certainty and determination that is clearly not met
by vague statements that no options have been ruled in or out.
3.28 The jurisprudence of this Court demonstrates that there is a substantial threshold
for finding threat of force: a threat requires sorne concrete action, beyond vague statements,
on the part ofthe threatening party. ln the Court's 1986 Merits decision in Case Conceming
87See Argument ofMr. Schwartz before the Court, Verbatim Record of Court Hearing on 27 March 1992,
International Court of Justice, CR 92/4, p. 56; See also Documents 4 and 5 submitted to the Court by the United
States during the 1992 Hearing.
88See Romana Sadurska, "Threats of Force", 82 American JoumaJ oflntemational Law 239 at pp. 239-241
{1988); Major Matthew A. Myers, Sr., "Deterrence and the Threat of Force Ban: Does the UN Charter Prohibit
Sorne Military Exercises?", 162 Military Law Review 132 at p. 141 (1999); and Hilaire McCoubrey and Nigel
D. White, International Law and Armed Conflict, p. 56 (1992).
89Much of the discussion ofthreats offorce bas occurred in the context of Article 2, paragraph 4 of the United
Nations Charter, which the Court found to be declara toryof customary international law in Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
I.C.J. Reports 1986, p. 14 at paras. 187-200. Although daims under the Charter or customary international law
are clearly not within the Court's jurisdiction in the present case, these sources are useful in illustrating the
absurdity of Libya'sdaims that the United States threatened force.
90
Argument of Professor Brownlie before the Coun, Verbatim Record of Court Hearing on 28 March 1992,
InternationalCourt of Justice, CR 92/5, p. 14 (citing to lan Brownlie, International Law and the Use of Force by
States, p. 364 (1963)). -36-
Milîta:ryand Paramilitary Activities in and Against Nicaragua, the Court examined, inter alia,
whether United States military maneuvers with Honduras on Honduran territory near the.
Nicaraguan border, coupled with a "war ofwords" between the United States and Nicaragua,
constituted a United States threat of force to Nicaragua' s territorial integrity. The Court held
that these circumstances did not constitute a breach on the part of the United States of the
principle forbidding recourse to the threat or use of force 91• lnasmuch as the military .
maneuvers and hostile rhetoric analyzed in the Nicaragua case did not rise to the levet of a
threat of force, evidently a vague statement, or even a series of vague statements, to the effect
'· .
that aUoptions are open, made in response to a question by ajoumalist, cannet constitute
92
such a threat .
3.29 It should further be noted that Libya, for close to a decade, failed to comply with
the demands of the United States. Rather than respond with force or with any escalation in
rhetoric, the United States continued to pursue through peaceful means an effective criminal
trial ofthe suspects. The United States, with the United Kingdom, addressed the terrorist
bombing of Pan Am 103 through diplomatie efforts and recourse to the Security Council, and
avoided the threat or use of force. In this context, the statements identified by Libya can
under no reasonable interpretation be construed as threats of the use of force.
91Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 14 at para. 227.
92
The Court also considered the issue in its Advisory Opinion on Nuclear Weapons, holding that "a signalled
intention to use forceif certain events occur" could, under certain circumstances, constitute a threat within
Article 2, paragraph 4 of the Charter. Legality of the Threat or Use ofNuclear Weapons, Advisory Opinion,
I.C.J. Reports 1996, p. 226 at para. 47. Again,it is clear that some affirmative signal ofintentto resort to force
isrequired to fmd a threat. United States statements did not contain such an afftrmative signal. ·
1 -37;.,
CHAPTERVI
LIBYA'S ATTEMPT TO RESERVE THE RIGHT TO BRING A NEW CLAIM
INVOLVING NEW SUBSTANTIVE ALLEGATIONS HAS NO LEGAL EFFECT ON
THESE PROCEEDINGS
Section 1. Libya Caonot Reserve the Right to Assert a New Claim at this Stage in
the Proceedings
3.30 In its Application, Libya made clear that it sought the cessation of certain
conduct by the respondents. Now Libya, in its Reply, suggestitmay make a
subsequent claim for compensation for damages, including, it appears, damages resulting
from new substantiveaims about the conduct of the United States. While its most recent
submissions do not go so far as to request compensation, Libya reserves a right to claim .
"réparationspour les faits illicites imputadéfen"u 93d. Itprrvides no particulars:
there is a statement neithere nature of the new reliefthat Libya may choose at sorne later
stage to seek nor of the nature of the injury·it has al1egedlysuffered.
3.31 Article 38(2) of the Rules of Court requires an Applicant to specify the precise
natureof its daim. Libya's claim, as specified in its Application, did not include a request
for compensation. In the Application, Libya sought ajudgment requiring the United States to
cease certain conduct. Lîbya has introduced this new reservation only in its Reply, and at the
stage when the remainder of the dispute bas been resolved. To allow this reservation related
to sorne possible future additional claim would be unfair and prejudicial to the United States;
it isjust such prejudice that Article 38(2) seeks to prevent.
3.32 Libya seeks to reserve the right to transform ifromone that sought a
judgment from theCourt to enjoin the United States from continuing its efforts to have Libya
tum the accused over to the courts of the United States or the United Kingdom for trial, to a
93
Libyan Reply, Conclusions, Part II ("compensation for the unlawful acts attributable to the Respondent"). -38-
vague and undefined claim, apparently for compensation. Such a compensation claim would
apparently be based, at least in part, on assertions requiring an examination offacts and
issues not previously raised by Libya. For example, Libya asserts in its Reply that years of
suffering of the Libyan people couId have been avoided if the United States had accepted
earlier Libya's proposais relating to trial ofthe accused and not supported the imposition of
sanctions on Libya by the Security Council 94• The Application, of course, made no reference
to sanctions imposed on Libya pursuant to Security Council action, because at the time of the
Application there were no sanctions. The Memorial, which post-dated the imposition of
sanctions, discussed the sanctions but did not indicate that Libya sought to hold the United
States responsible for the effects of sanctions, Now, in its Reply, Libya suggests that the
Montreal Convention could provide a basis for holding the United States responsible for
sanctions imposed by the Security Council Similarly, Libya alleges for the first time in its
Reply that the refusai of the United States to accept any one of the succession of proposais
relating to the trialof the accused made by Libya constitutes a violation of the Montreal
Convention. Neither ofthese allegations was made in Libya's Application or Memorial and
an analysis of each would require a detailed examination of facts and legal issues outside the
scope of the original dispute.
3.33 The Court previously has made clear that an Applicant cannat add a significant
additional claim to a case by means of its MemoriaL This was reviewed carefully by the
Court in itsjudgment on Australia's preliminary objection in Phosphate Lands in Nauru,
where the Court held inadmissible a claim Nauru first presented in its Memorial The Court
94
See Libyan Reply, para. 1.13. -39 ..
emphasized that the requirement that the claîms be presented by way of Application is not
optional or a mere technicality of pleading:
Article 40, paragraph 1, ofthe Statute of Court provides that the "subject ofthe
dispute" must be indicated in the Application; and Article 38, paragraph 2 of the
Rules of Court requires" the precise nature of the claim" to be specified in the
Application. These provisions are so essential from the point of view of legal
security and the good administration of justice that they were already, in substance,
part of the text of the Statute of the Permanent Court oflntemational Justice,
adopted in 1920 (Art. 40, first paragraph}, and of the text of the first Rules of that
Court, adopted in 1922 (Art. 35, second paragraph}, respectively 95•
3.34 If a new claim cannot be added in the Memorial, it surely cannot be added through
a "reservation of a right" appearing for the first time in the Reply. Professor Rosenne
explains that ''theCourt will not permit a dispute brought before it by application to be
transformed by amendments in the submissions into another dispute wbich is different in
96
character ".
3.35 Libya cites nq international law authority in support of its argument that it can add,
at the Reply stage, a reservation of a right to make a new claim in ongoing proceedings.
Libya attempts to circumvent the settled and sensible practice of the Court by noting that the
United States bas ack.nowledgedthat a violation of the Montreal Convention could give rise
to a claim for compensation 97. Such an acknowledgement, however, would have no bearing
on the question ofwhether Libya can seek to alter fundamentally the nature ofthese
proceedings in its final written pleading.
95
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports
1992, p. 240 at para. 69.
96Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996, Volume Ill, p. 1268 (3d ed.
1997)(citing, inter alia, Factory at Chorz6w, Merits, Judgment No. 13, 1928, P.CJ.J., Series A, No. 17, 25·29).
97
Libyan ~epl para.1.32. -40-
Section 2.. To Permit Libya to Reserve the Right to Make an Additional Claim at
this Stage Would be Cont~ar toySound Judicial Administration and the Practice of this
Court
3.36 As the Applicant, Libya has a responsibility to be clear and precise asto the
nature of its daims so that the Respondent can make an appropria te response. This
requirement is stated in Article 49 of the Rules of Court and reflects the needs of sound
judicial administration. Its application is confirmed by the Court's practice.
3.37 In the Fisheries Jurisdiction (Federal Republic ofGennany v. lceland) case, the
Court applied this principle in rejecting Gennany's request for a declaration that Iceland was
under a duty to make compensation to the Federal Republic of Germany in respect of
unlawful acts of interference with its fishing vessels 98• The Court noted that the Applicant
was asking for a declaration adjudicating, with definitive effect, that Iceland was under an
obligation to pay full compensation for the damage suffered by the Applicant as a
consequence oficeland's alleged unlawful acts 99.
3.38 The Court held:
The documents before the Court do not however contain in every case an
indication in concrete form of the damages for which compensation is required or
an estimation of the amount of those damages. Nor do they fumish evidence
conceming such amounts. ln order to award compensation the Court can only act
with reference to a concrete submission as to the existence and the amount of
each head of damage. . .. ltis possible to request a general declaration
·establishing the princip le that compensation is due, provided the claimant asks
the Court to receive evidence and to determine, in a subsequent phase of the same
proceedings, the amount of damage to be assessed. Moreover, white the
Applicant has reserved ali its rights "to claim compensation", it bas not requested
that these damages be proved and assessed in a subsequent phase of the present
100
proceedings .
98
Fîsheries Jurisdiction, (Federal Republic ofGermany v. lceland), Merits, Judgment, I.C.J. Reports 1974, p.
175 at paras. 71-76. ·
99 Idem, para. 74.
100
Idem, para. 76. - 41 -
3.39 The Court ruled that it was ''prevented from making an all-embracing finding of
liability which would cover matters asto which it bas only limited information and slender
evidence 10J.'.In this case, the Court is similarly presented with a situation in wbicb the
Applicant, Libya, bas sought to reserve its rights to add a further daim, but bas made no
request for a future proceeding. In fact, Libya bas provided the Court with far less argument
and evidence on which a possible daim for compensation could be based than bad Germany
in the Fisheries Jurisdiction case. Germany's evidence asto the nature and the extent of the
injury it suffered was incomplete; Libya's is non-existent.
3.40 The Fisheries Jurisdiction case provides the way _forwardfor the Court here.
Libya's Application defines the matter before the Court. That matter bas now been resolved.
To permit an Applicant to create a moving target through successive modifications ofits
daims would be at odds with sound judicia1 management. To permit an Applicant to change
the nature ofits daim, after the dispute presented in its Application bas been resolved, would
ill-serve the Court and the Parties appearing before it. As the Court stated in the Nuclear
Tests cases, "while judicial seUlementmay provide a path to international harmony in
circumstances of conflict, it is none the less true that the needless continuance of litigation is
an obstacle to such harmony 102".
3.41 The wisdom and, indeed, the necessity, ofrequiring that an Applicant specify
the precise nature ofits daim is dernonstrated in the instant case. Now, at the final stage of
the written proceedings, it is impossible for the United States to determine either the specifie
injury the Applicant daims to have suffered as a result ofUnited States actions in alleged
101Fisheries Jurisdiction, (Federal Republic ofGermany v.Iceland), Merits, Judgment, I.C.J. Reports 1974, p.
175 at para. 76.
102Nuclear Tests (Australia v. France), para. 58; Nuclear Tests (New Zealand v. France), para. 61. -42-
violation ofthe Montreal Convention or the specifie nature and extent ofthe reliefthat Libya
seeks.
3.42 The inappropriateness ofpermitting Libya to proceed as it proposes to dois
highlighted by the extent to which it would risk undem:Iining the finality ofthe Court's
treatment of preliminary questions dm:ingthe earlier phase of these proceedings. ln its
judgment at the preliminary objections phase of this case, the Court upheld Libya's
submission that "the critical date for the court's examination of the admissibility ofthe
103
application is the date on which itisfiled ". In order for the Court's consideration of
admissibility issues as ofthat date to be complete, however, the Application must accurately
reflect the essence of the Applicanfs case. Here, Libya would alter fundamentally the
judgment requested in its Application subsequent to the preliminary objections phase of the
proceedings.
3.43 There is a further point to be made in opposition to Libya's effort to alter its
claim at this late stage in the proceedings. Pursuant to the Rules of Court, a Respondent must
104
assert a counterclaim no later than the time ofits Counter-Memorial • In determining
whether to assert a counterclaim, a Respondent would wish to have before it a full
appreciation of the daims made by the Applicant. To permit an Applicant to alter the nature
ofits daim at a time when the Respondent would not bepermitted to file a counterclaim
would violate the principle of equal treatment of the Parties which underlies the Rules of
Court and the Court's practice.
10Judgment of27 February 1998, para. 42 (citingBorder and Transborder Armed Actions (Nicaragua v.
Honduras), Jurisdiction and Ad.missibility,Judgment, I.C.J. Reports 1988, p. 69 at para. 66)(îtalics added).
10Rules of International Court of Justice, Article 80. -43 _.
PART IV
THE OBLIGATION OF MEMBER STATES TO CARRY OUT-DECISIONS OF THE
SECURITY COUNCIL PREVAILS OVER THE OBLIGATIONS ALLEGED BY
LIBYA
4.1 Part II of this Rejoinder showed that Libya's claims should now be dismissed
because a decision on them by the Court would be without object, in light of the surrender
and trial ofthe accused pursuant to Security Council Resolution 1192. Part III showed that
Libya bas not demonstrated any violation ofthe Montreal Convention by the United States.
This Part will show that, in any event, the obligation ofMember States of the United Nations
to cany out decisions of the Security Council prevails over the obligations asserted by Libya
to arise under the Montreal Convention.
4.2 The United States Counter-Memorial demonstrated in considerable detail that the
decisions of the Security Council bad, as a matter of substantive law, already precluded any
Libyan claims based on the Montreal Convention, and that the Court bad already recognized
this fact, on primafacie basis, in its 1992 Order on provisional measures.
4.3 Further, theCouncil's actions since the filing ofthe United States Counter-
Memorial confirm that its resolutions obligated Libya to surrender the two accused for trial in
the courtsofthe United Kingdom or the United States. Pursuant to Article 103 of the
Charter, the obligations ofMember States to cany out the decisions of the Security Council
take precedence over any arguably inconsistent obligations in the Montreal Convention.
They preclude the assertion that the United States acted illegally in pursuing the surrender of
the two accused as required by the Council - an assertion that is at the heart of the Libyan
case. -44-
4.4 In addition, the events that have occurred since the filîng ofthe United States
Counter-Memorial in 1999 show that the Council acted properly in this matter. These events
include the trialof the accused in accordance with terms agreed to by Lîbya and approved by
the Council and the presentation of a large body of evidence at that trial, which resulted in
Mr. Al Megrahi's conviction for crimes committed in his role as a senior officer of the
Libyan Intelligence Services. There is thus no doubt that the Council was justified in its
determination that Libya's conduct constituted a threat to international peace and security and
its insistence that the accused be surrendered for trial by the courts of the United Kingdom or
the United States.
4.5 These events also confirm that the decisions of the Council have effectively
resolved the dispute before the Court, leaving nothing further for the Court to do but to
dismiss Libya's complaint. The actions of the Council have disposed of ali questions
conceming the surrender and trial of the two accused, in a manner that bas fully respected the
interests of the parties to the dispute, the larger interests of the international community, and
the interests ofjustice. Libya's repeated condemnations of the actions of the Council have
been shown to be misguided, and its complaints to this Court about the actions of the United
States to secure those results have likewise been shown to be without justification.
4.6 This Part will begin by showing that Libya's assertions that the resolutions of the
Council did not require the surrender of the two accused are without merit. Next, it will show
that these resolutions create obligations on Member States that prevail as a matter of law over
any inconsistent obligations that may arise under the Montreal Convention. Further, it will
show that the Council's decisions are not subject to review or reversai by the Court. Finally,
it_willshow that, in any·event, Libya cannot hold the United States responsible for its resort
to the Cotincil or for the effects on Libya of the decisions of the Council. ~.- -·~-~~~ ---------~
----~---
-45.:.
CHAPTERI
THE DECISIONS OF THE SECURITY COUNCIL REQUIRED THE SURRENDER
OF THE TWO ACCUSED INDIVIDUALS
4.7 Libya continues, in its Reply, to argue that the decisions of the Security Council
are not inconsistent with its asserted right onder the Montreal Convention to refuse to
surrender the two accused individuals for trial by courts of the United Kingdom or the United
States. For this purpose, it continues to insist that the Security Council never required Libya
to'surrender the two accused for such a trial, but rather only required that Libya negotiate
with the United States and the United Kingdom about appropriate means for resolving the
question. The United States Counter-Memorial already addressed these arguments in
considerable detail, and that analysis fully rebuts these Libyan contentions.
Section 1. The Language of Resolutions 731,748 and 883 Clearly Shows that
Libya was Required to Surrender the Two Accused to United K.ingdom or United States
Autborities
4.8 Libya asserts that the Council's demand in ;Resolution 731 that Libya "provide a
full and effective response" to the requests of France, the United Kingdom and the United
States meant only that Libya must make its thoughts about those deroands known and make
counter-propos s,al WI "tha vtew to sett,mg t e matter y common agreement 10. A s exp ame d
106
at length in the United States Counter-Memorial ,this is plainly not the case.
4.9 By the time of the adoption of Resolution 748, Libya bad already made its views
known and advanced counter-proposals; yet the Council made clear that Libya had not
complied with its demand in Resolution 731 and insisted that Libya "must now comply
105
See Libyan Reply, paras. 3.3-3.17.
106See United States Counter-Memorial, paras. 3.5-3.13. -46-
without any further delay 107". Likewise, Resolution 883 took note ofvarious Libyan
statements making counter-proposals for the trial of the accused, but nonetheless directly
108
stated that Libya had not yet complied with Resolutions 731 and 748 • Resolution 883
made clear that the Council's requirement was to bring about the transfer of the accused for
trial in the courts of the United Kingdom or the United States, and expressly conditioned the
suspension of the sanctions imposed by Resolution 748 on Libya's ensuring the appearance
of the two accused for trial before such courts 109: lt is unlikely that the Council would have
imposed extensive sanctions against Libya and maintained them for many years if- as Libya
argues- it merely wanted Libya to offer its views and counter-proposals, which Libya did
with regularity from the very beginning.
4.10 lt is clear that Libya from the outset understood that the Council had required
that the two accused be surrendered for.trial by the United Kingdom or the United States.
The Court's Order of 14 April 1992 recorded the fact that Libya had argued to the Court that
Resolution 748 required it to surrender its nationals to the United Kingdom or the United
States, which it considered to be an infringement ofits rights 110• In its Reply, Libya says that
what it argued to the Court was only its first reading of the resolution, and that subsequent
rigorous analysis of the text and its preparatory work revealed that, in fact, the Couneil had
111
not meant what ali parties had understood it to mean at the time • It is difficult to give any
10Resolution 748, United Nations Security Council, 3063'dMeeting, 31 March 1992, United Nations Document
SIR.ESn48, para. 1. Exhibit 23 to United States Preliminary Objections. ·
108
Resolution 883, United Nations Security Council, 3312thMeeting, Il November 1993, United Nations
Document S/RES/883, paras. 2R<& i 6mpreamb. Exhibit 32 to United States Preliminary Objections.
10Idem, para. 16.
110
Questions of Interpretation and Application of the 1971 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, p. 114 (hereinafter "Order of 14 April 1992") at para. 38.
11Libyan Reply, para. 3.7. -47:.
credence to this expJanation. Rather, it is apparent that Libya, when faced with the Court's
primafacie acceptance ofthe preclusive effect ofthe Council's resolutions, hastened to
reverse its earlier admissionof the effect ofthese resolutions and looked for every possible
way- however weak- of misinterpreting the Council's clear intent.
4.11 Libya specifically argues that the inclusion in Resolution 748 of an express
demand that Libya "commit itself definitively to cease aUforms ofterrorist action and ali
assistance to terrorist groups" shows that it did nor~qui Lirbean compliance with the other
demands cited in the resolution 11• But this is hardly persuasive - the fact that the Council
chose separately to underline Libya's support for international terrorism and the overriding
need for such support to cease, in no way shows that the Council bad a permissive attitude
towards its other demands on Libya. On the contrary, the Council bad just imposed extensive
sanctions under Chapter VII to campel Libya to meet these other demands.
4.12 Libya furtherpoints out that one paragraph ofResolution 883 refers to the
requirement for Libya to "ensure the appearance ofthose charged", arguing that this indicates
113
that the Council only desired the voluntary surrender ofthe accused . But such an
interpretation is not sustainable, since a requirement to "ensure the appearance" of an accused
hardly implies that no surrender is required if the accused declines to appear. The passage in
question was obviously not so intended. The requirement that Libya ensure the appearance
of the accused for trial by the United Kingdom or the United States became tied to the
suspension of sanctions against Libya, making it clear that the requirement was a mandatory
one.
112Lîbyan Reply, para..3.6.
m Idem, para. 3.8. -48-
Section 2. The Council's Latest Resolution Confirms that its Earlier Resolutions
Required Libya to Surrender the Two Accused
4.13 Libya argues in its Reply that'Resolution 1192 of 27 August 1998 somehow
confinns Libya's current interpretation ofthe Council's previous decisions 114• On the
contrary, ~esolut 11i92nconfinns that the Council had always required the surrender of the
accused for trialby courts of the United Kingdom or the United States. Specifically,
paragraph 1 of the resolution begins with a reiteration of the Council's demand'that Libya
immedîately comply with its previous resolutions- a clear reaffirmation that Libya had not
yet complied, which is directly contrary to Libya's assertion that ît was simply required to·
state its views and make counter-proposals. Paragraph 4 of the resolution theo requires Libya
to ensure the appearance ofthe accused (again, not simply to encourage a voluntary
appearance) for trial before a Scottish court - a court of the United Kingdom. In other words, ·
the Council expressly did what Libya now insists the Council could not and did not intend to
do- namely, compel (if necessary) two of its nationals to appear before a United Kingdom
court. Finally, paragraph 8 reaffinns thatthe sanctions previously imposed would continue in
effect, and would only be suspended upon the appearance of the two accused for trial in a
court of the United Kingdorn or the United States.
4.14 Libya argues that all this is contradicted by the fact that the United Nations
Secretary-General, in connection with Resolution 1192, evidently gave Libya certain
assurances about the faimess of the proposed proceedings 115•But this could hardiy detract
.from the undeniable fact that Libya was required to surrender the two accused for trial in a
Scottish court. On the contrary, it confirms that the Secretary-General understood that it was
114See Libyan Reply, paras. 3.13-3.15.
115
See idem, para. 3.14. -49"
his duty, in response to Libyan questions, to facilitate such a trial by removing any
misconceptions about the faimess of Scottish procedures. In fact, the Secretary-General
understood quite weil that Libya was obligated to surrender the accused 116• There was no
leeway for Libya to try the two in its own courts or to insist that they be tried in the courts of
1
a third country or by an international tribunal.
Section 3. The Plain Meaning of the Language ofthe Council's Resolutions is
Confirmed by the Statements of Council Members
4.15 Libya asserts in its Reply that the United States bas provided nothing to support
its interpretation of the Council's resolutions ether than the fact of their adoption 117• On the
contrary, the United States Counter-Memorial cites at length the documents to which the
Council made reference in adopting those resolutions and the statements of Council members
confinning their understanding that Libya was required to surrender the two accused and did
118
not have the option of trying the accused in its own courts •
4.16 Libya argues that its current interpretation is supported by the fact that various
119
Council members favored the seUlement ofthe situation, if possible, by mutual agreement •
But this proves nothing- there is generally a desire to resolve such situations by agreement,
but where (as here) one party makes that impossible, the Council reserves the right to act by
requiring that steps be taken to resolve the situation and end the threat to the peace, even if ali
parties do not agree. The language of the Council's resolutions and the statements ofits
116
See Letter dated 5 April 1999 from the Secretary-General to the President of the Security Council, United
Nations Document S/1999/378, 5 Aprill999 (notîng that the arrivai of the two accused in the Netherlands for
the purpose of trial before the Scottish court sitting in the Netherlands was a requirement of Resolution 1192 for
suspension of sanctions). Rejoinder Exbibit 2.
117
Libyan Reply, paras. 3.7 and 3.9.
118See United States Counter-Memorial, paras. 3.10-3.11.
119
See Libyan Reply, para. 3.4.--·-~--~------~--------------------------------
-50-
members mak:eclear that the Council fully intended to require Libya to take steps it had not
agreed to take and to impose sanctions on Libya to compel it to do so. -51 -
CHAPTERII
THE SECURITY COUNCIL'S RESOLUTIONS PRECLUDE THE RIGHTS
ASSERTED BY LIBYA UNDER THE MONTREAL CONVENTION
Section 1. Libya's Claims are ln consistent Witb tbe Council's Resolutions.
4.17 Libya's claims in this case are in direct conflict with the decisions of the
Security Council. Libya's asserted rights under the Montreal Convention to deny the
surrender of the accused and to trythem in its own courts (orto insist that they be tried in
sorne other forum) are plainly inconsistent with the Council's decisions that they be
surrendered for trial in the courtsf the United Kingdom or the United States. Likewise, the
asserted obligation of the United States under Article 7 of the Montreal Convention to avoid
taking steps aimed at the surrender of the two accused to the United Kingdom or the United
States is also contrary to the Council's decisions. Ali Member States, including Libya, the
United Kingdom and the United States, are obligated to accept and comply with such
decisions.
4.18 Further, since Libya could not, consistent with these resolutions, prosecute the
two accused, it follows that the resolutions superseded any right of Libya under paragraph 1
of Article 11 ofthe Convention to demand ..assistance in connection with criminal
proceedings brought" by Libya. Certainly Article 11 could not have contemplated that
parties to the Convention would be obligated to assist in criminal proceedings that were
precluded by binding decisions of the Security Council. In addition, the provision of
evidence to Libya - a State that the Security Council bad recognized was implicated in the
very crimes under investigation -- would have been inconsistent with the decisions of the
Council that by their terms sought the effective prosecution of the accused in the courts of
States other than Libya. ~52-
Section 2. The Council's Resolutions Take Precedence Over Libya's Claims
Under the Montreal Convention
4.19 Under Article 25 ofthe Charter, "[t]he Members ofthe United Nations agree to
accept and carry out the decisions of the Security Council in accordance with the present
Charter." Pursuant to Article 48 of the Charter, "[t]he action required to carry out the
decisions of the Security Council for the maintenance of international peace and security
shall be taken by all the Members of the United Nations or by sorne ofthem, as the Security
Council may determine." Decisions of the Council for the maintenance of international peace
and security include Resolutions 748 and 883. Under Article 103, "[i]n the event of a conflict
between the obligations of the ·Members of the United Nations under the present Charter and
their obligations under any other international agreement, their obligations under the present
Charter shall prevail." In fact, Libya now concedes in its Reply that, insofar as the Council
makes a binding decision under Chapter VII, there results an obligation under the Charter for
120
purposes of Article 103 • As aresult. even ifLibya's assertions concerning the Montreal
Convention were accepted, the Council's resolutions would take precedence over them.
4.20 The fact that Libya is asserting "rights" under the Montreal Convention - as "
opposed to ..obligations" - is immaterial to the application of Article 103 in this context. The
United States does not agree that the Convention provides the rights asserted by Libya. But ·
even if Libya were deemed to have such rights, they would correspond to obligations of the
United States, obligations that Libya, in its Application in these proceedings, has alleged that
the United States bas violated. Article 103 by its terms establishes the primacy of obligations
120Lîbyan Replypara.3.20.~----------~----- .----------------------------------------
-53-'
arising out of the Charter over those arising out of ether international agreements, and
121
accordingly is fully applicablehere •
4.21 This Court bas already recognized, on aprimafacie basis, that the obligations
imposed by the decisions of the Council in this case are ofthe type that are subject to Articles
25 and 103 and, therefore, would prevail over any obligations onder the Montreal Convention
with which they are in conflict. In its 14 April1992 Order, the Court denied Libya's request
for provisional measures on the basisof the binding decision taken by the Security Council in
Resolution 748. The Court decided: (1) that Libya and the United States were obliged to
122
carry out Resolution 748 ;(2) that this obligation prevailed over any inconsistent
123
obligations under the Montreal Convention ;(3) that, as a result, rights claimed by Libya
onder the Montreal Convention were not appropriate for protection by the indication of
124
provisional measures ;and (4) that suchprovi m eaiures wo ull impair rights enjoyed
by the United States onder Resolution 748 125.
4.22 The basis for these conclusions was further explained by various separate
opinions ofmembers ofthe Court. For example, Judge Oda stated that the Council appeared
to have been acting within its competence and that its decision cannet be summarily
126
reopened .Judges Evensen. Tarassov, Guillaume and Aguilar Mawdsley stated that the
121
In this context, it is of no legal signifie ance·whether one discusses the legal position of the parties in tenns of
"rights" or "obligatioSee,~-, Order of 14 April 1992, Dissenting Opinion of Judge Weeramantry, p. 177
("Lîbya is, prima facie, bound provisionof[) resolution [748] even if they should conflicrights the
Libya claims under the Montreal Convention") (italics added).
122
Order of14 April 1992, para. 42.
12Idem, para42.
12Idem, para. 43.
125
Idem, para. 44.
12Idem, Declaration of Acting President Oda, p. 129. \
-54-
Council "was acting, with a view to combating international terrorism, within the framework
ofChapter VII ofthe United Nations Charter" and that accordingly the Court was "fully
justified" in refraining from indicating provisional measures 127. Judge Shahabuddeen stated
that even "assuming Libya bas the rights which it daims, prima facie they could not be
128
enforced during the life of the resolution ".
4.23 In short, it is apparent the Court understood, in the context of the provisional
measures proceeding, that the Council, in Resolution 748, had required Libya to surrender the
two accused for trial by the United K.ingdomor the United States and that such a decision by
the Council onder Chapter VII would prevail.over any right Libya might arguably have under
the Montreal Convention to refuse such surrender.
Section 3. The Council's Resolutions Can and Do Supersede Inconsistent
International Law Obligations
4.24 The United States Counter-Memorial explained in considerable detail that the
Council can, in the exercise of its authority under Chapter VII, take actions that are
inconsistent with existing international law obligations ofthe parties to a dispute, including
those in treaties like the Montreal Convention. The Counter-Memorial pointed out that
Article 1(1) and ether provisions of the Charter distinguish between actions under Chapter
VI, which are to be carried out "in conformity with the principles ofjustice and international
129
law", and actions under Chapter VII, which are not subject to that qualification •
4.25 In its Reply, Libya seems to accept this point, but argues that it only applies to
certain decisions taken by the Council onder Chapter VII - which Libya caUs "mesures
127
Order of 14 April 1992, Joint Declaration of Judges Evensen, Tarassov, Guillaume and Aguilar Mawdsley, p.
137.
128Idem, Separate Opinion of Judge Shahabuddeen, p. 140.
129United States Counter-Memorial, paras. 3.19-3.26. -55-
coercitives"- and not to decisions in which the Council's actions have the effect of resolving
the merits of a dispute 130• No such distinction can be found in the Charter. Such a distinction
would be inconsistent with the practice of the Council in the exercise ofits Chapter VII
powers, and would very substantially impede the effective exercise ofthose powers in the
interests of international peace and security.
4.26 There is nothing in the Charter that precludes the Council from adopting
measures under Chapter VII that might affect underlying disputes between the States
involved in a situation that threatens the peace, and Libya points to none in its Reply. Article
41 is broad in scope, authorizing the Council to "decide what measures not involving the use
of anned force are to be employed to give effect toits decisions .... "The Article states that
these measures "may include" the interruption of economie and diplomatie relations, but
clearly does not limit the Council to the measures enumerated. Likewise, neither Article 25
nor Article 48 gives any indication of a limitation; each applies broadly to "decisions of the
Security Council" without any qualification conceming their effect on underlying disputes
between the parties to a dispute or Member States. No such limitation can be found in the
preparatory work of the Charter, notwithstanding Libya's vague but unsubstantiated
131
assertions to the contrary •
4.27 Further, the practice of the Council shows that no such limitaticmis, or could be,
observed by the Council without a severe impairment of its ability to maintain and restore the
peace, For example, in its decisions following the conclusion ofthe GulfWar, the Council
reaf:filmed that Iraq was liable for varions categories of damage resulting from lraq's
13Libyan Reply, para. 3.19 ("coercive measures").
131
See.United States Counter-Memorial, paras. 4.22-4.28. -56-
132
violation ofKuwait's sovereignty , even though this clearly bad a significant effect on
Iraq's legal position concerning its liability for such damage; and the Council required Iraq to
133
respect its demarcated boundary with Kuwait ,even though this clearly bad a significant
effect on Iraq's legal position on the location and validity ofthat boundary. During the
Bosnian conflict, the Council required the States of the region to surrender persoris indicted
by the International Criminai Tribunal for the Former Yugoshivia 134, even though this clearly
affected the legal position ofthe Federal Republic ofYugoslavia and others on the surrender
oftheir nationals for trial elsewhere. In the case of Kosovo, the Special Representative of the
Secretary General, acting under the authority of the Security Council, exercised the power to
135
amend existîng laws applicable in the territory and to adopt new ones , even though this
clearly affected the legal position of the Federal Republic ofYugoslavia conceming its
sovereignty and authority in Kosovo. Certainly there is no basis in the practice of the
Council for Libya's suggestion that the Council may not seek to resolve a dispute or a
\
situation under Chapter VII, or that in doing so it would be limited by any existing
international agreements or obligations.
4.28 If it were true, as Libya seems now to suggest, that States could challenge any
·decisions t:iken by the Council under Chapter VII on the grounds that they bad the effect of
deciding the merits of a dispute or imposing tenns of settlement, then the regime established
by the United Nations Charter for the maintenance of international peace and security would
132 51
See Resolution 687, United Nations Security Council, 2981 Meeting, 3 April1991, United Nations
Document SIRES/687, paras. 16-19. Exhibit 38 to United States Preliminary Objections.
133See idem, paras. 2-4.
134
See Resolution 827, United Nations Security Council, 3217thMeeting, 25 May 1993, United Nations
Document SIRES/827. Exhibit 57 to United States Preliminary Objections. -57 ...
be eviscerated. Any State could then routinely refuse to carry out the Council's decisions,
claiming that they affected its position on sorne underlying dispute and were inconsistent
with existing requirements of international law and agreements. Article 103, pursuant to
· which the obligations oftwo Member States onder the Charter would prevail over their
obligations under another international agreement where they agreed on the nature of the
obligations arising onder such o.theragreement, would be deemed to have a different
application where the two States disagreed on the obligations arising under such other
agreement, a result that ïinds no support in the Charter. States could routinely question
decisions of the Council taken to maintain or restore international peace and security. The
important work done by the Council in crisis situations would be undermined and peace
threatened.
4.29 In any event, even ifLibya's assertions about the authority of the Council were
accepted, they would not have any application to the case currently before the Court. The
Council's decision that the two accused Libyan nationals be surrendered for trial by courts of
the United Kingdom or the United States did not determine the underlying question of the
interpretation of the Montreal Convention, but only directed that the guilt or innocence of the
accused be resolved in an impartial court of appropriate jurisdiction. The Council's authority
under Chapter VII certainly includes directing that matters which threaten the peace be
resolved in such a manner.
135
See UNMIK Regulation 1999/I on the Authority of the Interim Administration in Kosovo (25 July 1999), as
amended by UNMIK Regulation 1999/25 (12 December 1999) and UNMIK Regulation 2000/54 (27 September
2_000). -58-
CHAPTERIII
THE SECURITY COUNCIL'S EXERCISE OF ITS CHAPTER VII .FUNCTIONS 18
NOT SUBJECT TO REVIEW
4.30 In its Reply, Libya again asserts that, if the Council's resolutions did indeed
require Libya to surrender the accused for trial in the courts of the United Kingdom or the
United States, then these resolutions were beyond the authority of the Council and should be
disregarded by the Court. The United States Counter-Memorial demonstrated that the
Council bad the authority to impose such a requirement and that, in any event, the
responsibility for defining the extent of the authority of the Security Council under the
Charter is a matter left by the Charter for determination by the Council. Security Council
decisions under Chapter VU may rîot be reviewed or disregarded by any other body or any
State. Further, the events that have occurred since the filing ofthe United States Counter-
Memorial have dramatically confirmed that the Council was justified in its determination that
Libya's actions constituted a threat to the peace, in its demand that Libya surrender the
accused for trial, and in its imposition of sanctions to enforce its decisions.
Section 1. The Council Had the Authority to .Require the Surrender of the
Accused
4.31 Libya continues to maintain that the Council bad no authority under the Charter
to require Libya to surrender the accused for trial by courts of the United Kingdom or the
United States 136• Previously, Libya made a variety of arguments along these lines which
were answered in full in the Counter-Memorial 137• Libya's Reply no longer insists on sorne
of these arguments - for example, that the Council could not have found that Libyan actions
136See Libyan Reply, para. 3.18 ~~·
131
See United States Counter-Memoriàl, paras. 3.60-3.65. -59-
bad constituted a threat to the peace, or that the measures chosen by the Councîl bad no
relationship to the objective ofrestoring and maintaining international peace and security.
The United States will focus here only on the points made in the Libyan Reply.
4.32 The Counter-Mernorial demonstrated that the Council was in no way precluded
from requiring States to surrender individuals to international tribunals orto the courts of
another State, where this was judged necessary to resolve a threat to the peace, and that in
138
fact the Council bad done so on several occasions . In response, Libya atternpts in its Reply
to distinguish the present case from the other occasions in which such surrenders have been
required 139.
4.33 There is no valid basis for distinguishing these prior cases. First, Libya asserts
that these cases are different from the Lockerbie situation because the acts in question in
140
these other cases were offenses under internationallaw . But the legal basis for the
Council's action under Chapter VII in these other cases was not enforcement of international
law but the existence of a threat to or breach of the peace. Accordingly, if the trial by an
appropriate national or international court ofpersons who have cornrnitted offenses that
constitute threats to the peace is necessary, it does not matter whether those offenses are
violations of local law, international law or both. For example, the courts established
pursuant to decisions of the Security Council in Kosovo and East Timor do have the authority
141
to try crimes that are not necessarily offenses under intemationallaw ,precisely because the
138See United States Counter-Memorial, paras. 3.60-3.65.
139
See Libyan Reply, para. 3.21 ~~-
140See idem, para. 3.21.
141
See, ~-· UNMIK Regulation 1999/1 on the Authority of the Interim Administration in Kosovo (25 July
1999), as amended by UNMIK Regulation 1999/25 (12 December 1999) and UNMIK Regulation 2000/54 (27
September 2000); UNMIK Regulation 1999/24 on the Law Applicable in Kosovo (12December 1999), as -60-
maintenance of international peace and security in those territories requires the prompt and
effective prosecution of offenses against local law as weil as international law.
4.34 Similarly, Libya is incorrect in asserting that these ether cases are
distinguishable because they involved enforcement of an international obligation to prosecute
142
the persons in question . Again, the Counci1's authority under Chapter VII has its basis in
the maintenance and restoration of international peace and security, not in the enforcement of
international obligations. If the maintenance or restoration of international peace and security
requires the prosecution of offenses in appropriate national or international courts, it does not
matter whether such prosecution is otherwise required by international law or not. For
example, there was no requirement under international law that persons committing common ·
offenses in Kosovo and East Timor be apprehended, but the maintenance of international
peace and security required it. Prior to the creation of the international criminal tribunats by
the Council, there was obviously no requirement under international law to surrender persons
to those tribunats. Security Council Resolution 1269 (1999), which Libya cites in its Reply,
calls for the prosecution or extradition ofpersons who plan, finance or commit terrorist acts,
whether or not such prosecution or extradition is otherwise required in each case by
143
intemationallaw •
4.35 Libya further argues in its Reply that Resolution 1192 cannot be invoked to
counter this analysis, insisting that the Council in Resolution 1192 did not impose a new
obligation on Libya to surrender the accused, since Libya had already agreed in principle to
amended by UNMIK Regulation 2000/59 (27 October 2000); UNTAET Regulation 1999/1 on the Authority of
the Transitional Administratioin East Timor (27 November 1999).
142See Libyan Reply, paras. 3.21-3.22.
143Resolution 1269, United Nations Security Council, 4053roMeeting,19 October 1999, United Nations
Document S/RES/1269. -61 -
trial by a Scottish court in the Netherlands 14• But it is clear that paragraph 4 ofResolution ·
1192 did impose an obligation on Libya to surrender the accused, and it would not be a new
obligation only ifit is recognized that the Council's previous Chapter VII decisions bad
alrèady obligated Libya to surrender these individuals. Resolution 1192 did not rely on
Libya's good will or prior agreement in principle to the surrender, but provided that sanctions
would continue unless and until the two individuals actually appeared in the Netherlands for
trial.
4.36 In any event, the Council's decision to require Libya to surrender the two
accused fits even within the misconceived framework suggested by Libya. The two accused
were charged with comrnitting offenses that are recognized under the Montreal Convention.
That Convention recognizes that the State where the crime was committed and the State of
nationality of the victims have jurisdiction to prosecute offenses thereunder. The Council
neither invented the offense nor the courts before which the prosecution was to occur. The
trial mandated by the Council vindicated international law, as well as the maintenance of
international peace.
Section 2. Decisions of the Council onder Chapter VII May Not Be Reviewed or
Disregarded by Any Otber Autbority
4.37 The United States Counter-Memorial set out the position of the United States
that decisions under Chapter VII are reserved by the Charter exclusively to the Security
Council, and that neither the Counéil'sdetermination of a threat to the peace nor its
imposition of measures under Chapter VII can be reviewed or reversed by any other organ of
145
the United Nations • ln our view, that analysis provides a complete answer to Libya's
144
See Lîbyan Reply, para. 3.22.
145
United States Counter-Memorial, paras. 4.1-4.29. -62-
demand that the Court review the Councîl's decisions and declare them to be invalid or
inapplicable to Libya.
4.38 In particular, the Counter-Memorial demonstrated that the Court does not have
the authority to review the Council's determinations under Article 39 of the Charter, or ether
decisions taken under Chapter VII for the purpose of maintaining or restoring international
peace and security 146• As the Counter-Memorial pointed out, the Charter makes the Article
39 determination of the existence of any threat to or breach of the peace, or act of aggression,
and the related decisions under Articles 41 and 42, entirely the Council's responsi Tbheility~
Council must take these decisions based on its unique political appreciation of particular
situations and events, and may have to act at great speed and in the face of rapidly evolving
situations. Most important! y, the Council must be able to act authoritatively. Any assertion
by the Court of a right to review and reverse such a decision months or years later would
seriously undermine the authoritative character ofCouncil decisions and impair the ability of
the Council to act effectively and quickly.
4.39 Further, the Counter-Memorial demonstrated at sorne length that no power of
review by the Court of decisions of the Council was contèmplated by the framers of the
Charter, nor can such a power be implied from the judicial character of the Court's
147
functions .The Charter does not provide for jurisdiction of the Court to review and set
aside determinations ofthe Council; on the contrary, as shown in the Counter-Memorial, the
drafters ofthe Charter considered and deliberately rejected the possibility ofconferring such
powers on the Court 148.
146See United States Counter-Memoria1, paras. 4.22-4.28.
147See idem, paras. 4.4-4.21.
148
See idem, paras. 4.6-4.11. -63-
4.40 The Court bas consistently declined to assert any such power and has indeed
expressly disclaimed it. In its advisory opinion in the Certain Expenses of the United Nations
case, the Court noted that the Charter contained no provision for judicial determination of the
validity of the actions of United Nations political organs- with the exception of advisory
opinions given at the request ofthose organs; it further confirmed that, even in the context of
such an advisory opinion, the acts of the Council were presumed !lOtto be ultra vires 149•
4.41 In its Reply, Libya now attempts to establish such a review power by suggesting
that the Court should use its authority tointe~ pecisions of the Council in a manner that
essentially disregards any decisions that are inconsistent with the Court's view of
international law and the scope of the Council's authority 15. This, however, would be a
gross distortion ofthe Court's proper function ofinterpreting decisions ofthe Council,
amounting in effect to the creation of a right to review and annul decisions ofthe Council that
is nowhere provided for in the language or the general scheme of the Charter.
4.42 Of course, the Court from time to time finds it necessary to interpret decisions of
the Council for the purpose of giving them their proper effect. In doing so, the Court follows
the normal mies of international law - specifically, to apply the terms of the Council's
resolutions in accordance with their ordinary meaning, in light oftheir context and their
object and purpose. In performing this function, the Court naturally consults the Council's
practice and the record relatîng to the resolutions in question. However, this practice is
entirely different from what Libya suggests the Court should do here -- specifically, that
149See Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion,
I.C.J. Reports 1962, p. 151 at p. 168.
150
See Libyan Reply, para. 3.29 ~~· -64-
instead ofinterpreting or applying the Council's resolutions the Court may review and adjust
the Council's decisions to better conform them to the Court's view of the Charter.
4.43 Libya cites no credible authority for its suggestion that the Court should
selectively interpret the Council's decisions in this manner. It notes that the Court's case law
confers a presumption that the Council's decisions are consistent with the Charterl51, but this
in no way supports the proposition for which Libya cites it. Libya appears, in effect, to
endorse the power of annulment of Council decisions through the guise of selective
interpretation.
4.44 At the very least, the Charter clearly gives to the Security Council- and only the
Council - the functions of determining the existence of a threat to or breach of the peace, or
act of aggression, and deciding what measures are to be taken in consequence. As Judge
Weeramantry stated at the provisional measures phase of this case:
... once we enter the sphere of Chapter VII, the matter takes on a different
complexion, for the determination un der Article 39 of the existence of any threat to
the peace, breach of the peace or act of aggression, is one entirely within the
discretion of the Council. It would appear that the Council and no other is the judge
of the existence of the state of affairs which brings Chapter VII into operation. That
decision is taken by the Security Council in its ownjudgment and in the exercise of
the full discretion given to it by Article 39. Once taken, the door is opened to the
various decisions the Council may make under that Chapter.
Thus, any matter which is the subject of a valid Security Council decision under
Chapter VII doesnot appear, prima facie, to be one with which the Court can properly
deal 152•
If the Coune ilbas determined that there is a threat to or breach of the peace, or act of
aggression, and has selected certain measures to deal with that situation- in this case,
including a direction to Libya to surrender the accused for trial in the courts of the United
151
See Libyan Reply, para.·3.30.
152
Order of 14 Aprill992, Dissenting Opinion of Judge Weeramantry, p. 176. -65-
-Kingdom or the United States - the Charter does not leave it to the Court to reach a different
result.
4.45 In its Reply, Libya asserts that the United States bas not responded to Libya's
assertion that the exercise of the judicial function requires, when appropriate, that the Court
refuse to implement a Security Council decision that would be contrary to the United Nations
153
Charter . On the contrary, the United States Counter-Memorial addresses this assertion at
considerable length, and demonstrates that no such function is given to the Court under the
154
Charter with respect to decisions of the Council under Chapter VII •
155
4.46 The only citation to the contrary offered by Libya in its Reply is a reference to
156
the Court's Advisory Opinion regarding Namibia • That citation is unpersuasive. In that
case, the Security Council requested an advisory opinion from the Court on the points at
issue. To answer the questions posed by the Council, the Court bad to address certain
objections that bad been raised asto the consistency with the Charter of the Council's
resolutions on Namibia. The Court addressed those questions in that specifie context, white
reaffirming that it bad no general power of judicial review over the decisions of United
Nations organs 157• Thus the Court's review of the legality ofCouncil decisions in the
Namibia case was deliberately and expressly undertaken solely because the questions arose
pursuant to a Council request for an Advisory Opinion, and bas no relevance in this case,
153Libyan Reply, para. 3.32.
154
See United States Counter-Memorial, paras. 4.4-4.29.
155Libyan Reply, para. 3.32.
156
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, l.C.J. Reports 1971, p. 16.
157See United States Counter-Memorial, para. 4.20 (discussing the Namîbia case). -66-
where the Council has detennined for itselfthe scope of its authority and adopted resolutions
tocarry out its responsibilities for maintaining international peace and security. -67-
CHAPTERIV
THE UNITED STATES CANNOT BE HELD RESPONSIBLE FOR RESORT TO
THE SECURJTY COUNCIL OR THE EFFECTS OF THE COUNCIL 'S DECISIONS
Section 1. The United States Had the Right to Ask the Council to Take the
Decisions in Question
4.47 In its Reply, Libya asserts that eventhough resorting to the Security Council is
not b~ itselfunlawful, it became unlawful when the purpose of doing so was to avoid the
158
appliçation of the Montreal Convention • As indicated previously, the United States does
not accept that the resort of the United Kingdom, the United States and France to the Council
was in any way inconsistent with the Convention, or that the action taken by the Council was
in any way inconsistent with rights and obligations of the parties to the Convention.
4.48 In any event, it is, in fact, common for Member States to seek action by the
Security Council under Chapter VII that may be inconsistent with their obligations under
other international agreements. As explained in detail in the United States Counter-
159
Memorial ,this happens almost every time Member States seek action by the Council to
impose economie sanctions, which may involve violations of international agreements
goveming trade, investment, air traffic and similar aspects of economie activity. If Libya's
argument were correct, then the many Member States that sought economie sanctions against
South Africa, Iraq and the Socialist Federal Republic ofYugoslavia may have been acting
unlawfully. Since the Council bas the authority under Chapter VII to create obligations on
Member States that prevail over their obligations under ether agreements where necessary to
158Libyan Reply, para. 2.10.
159
See United States Counter-Memorial, paras. 3.32-3.33. -68-
restore and maintain the peace, it cannot be unlawful for Member States to propose that the
Council do so.
4.49 In its Reply, Libya also alludes toits previous arguments that the Montreal
Convention operates as a lex specialis and an eJecta via with respect to obligations under the
United Nations Charter 160• The United States Counter-Memorial showed that these
arguments are plainly inconsistent with the Council's authority under Chapter VII and with
161
Article 103 of the Charter • ln essence, these arguments are just another way of asserting
that the Council cannot adopt measures that are inconsistent with previous treaty
commitments, which is clearly not the case.
4.50 In a more fundamental sense, it cannot be the case that a Member State violates
international law by resorting to the Council, whatever its proposais may be or its purposes in
mak.ingthose proposais. As noted above, resort to the Council is a fundamental right under
the Charter 162• Holding any State liable for proposing action by the Council would have a
dangerous chilling effect on the access of States to the Council, which is fundamental to the
maintenance of international peace and security.
Section 2. The United. States Cannot be Held Responsible for the Decisions of the
Council
4.51 The underlying basis for Libya's arguments in its Reply is the asserted illegality
of action by the Council to require the surrender of the two accused for trial by the courts of
. the United Kingdom or the United States. The only hypothetical injuries that might
lW ·
Lîbyan Reply, para. 2.10.
16See United States Counter-Memorial, paras. 3.35-3.40.
16Article 35 of the United·Nations Charter provides that: "Any Member of the United Nations may brinany
dispute, or any situation of the nature refened to in Article 34, to the attention of the Security Council .... " -69-
conceivably be alleged in this case are economic"losses allegedly suffered as a result of the
sanctions imposed by the Security Council under Chapter VIL
4.52 This cannot form the basis for ajudgment against the United States. No
Member State can be held responsible for decisions of the Council or for the consequences of
such decisions. Article 24 of the Charter provides:
In order to ensure prompt and effective action by the United Nations, its Members
confer on the Security Council primary responsibility for the maintenance of
international peace and security, and agree that in carrying out its duties under this
responsibility the Security Council acts on their behalf
Accordingly, a decision of the Council is an action on behalf of ali United Nations Members.
4.53 Decisions ofthe Council can only be taken with the affirmative vote ofnine
Members and in the absence ofthe negative vote of any Permanent Member. In fact, many
Council Mernbers voted in favor ofthe Council's decisions at issue in this case 163. These
decisions were not- and could not have been- dictated by the United States or any other
Mernber State.
4.54 As a result, a complaint about the effects of the observance of the Council's
sanctions cannot be brought against the United States or any other Mernber State. It is a
complaint against the Council and the Organization itself- neither ofwhich are party to this
164
case and neither ofwhich may be challenged before this Court for such decisions . Libya's
attempt to raise such a complaint in this proceeding is manifestly improper.
163The following Council Members voted for Resolution 731, 748 or 883: Austria, Belgiurn. Brazil, Cape
Verde, China, Ecuador, France, Hungary, India, Japan, Morocco, New Zealand, Russian Federation,in,
United Kingdom, United States, Venezuela and Zimbabwe.
164
Cf. "The Legal Consequences for Member States of the Non-fulfilment by International Organizations of
their Obligations toward Third Parties", 66-11,Annuadeel'Institut de Droit international, p. 444 (1995). -70-
PART V
RESERVATIONS AND SUBMISSIONS
Accordingly, while reserving the right of the United States of America to initiate
separate proceedings against the Libyan Arab Jamahiriya for breach of its obligations to the
United States under the Montreal Convention or otherwise, and reserving the right to submit
a further written statement should the pending Appealegrahi so require, the
United States asks the Court to adjudge and declare:
(1) Thaiis not requirea~judi nateemerits of the claims submitted by the
Great Socialist People's Libyan Arab Jamahiriya in its Application92; or,
(2) In the alternative, alsubmissions to the contrary, that the daims ofthe
Great Socialist People's Libyan Arab Jam8.hiriya are dismissed.
WilliamH.Taft, IV7Fl 2
Agent of the United States of
America -------
EXHIBITS TO THE REJOINDER OF THE
UNITED STATES OF AMERICA
Exhibit 1. Letter dated 19 March 1999 from the Secretary-General to the President of
the Security Council, transmitting a letter'of 19 March 1999 from the Secretary of
the General People's Committee for Foreign Liaison and International
_Cooperationof the Libyan Arab Jamahiriya to the Secretary-General, United
Na tons Document S/1999/311, 23 March 1999.
Exhibit 2. Letter dated 5 April1999 from the Secretary-General to the President of the
Security Council, United Nations Document S/1999/378, 5 April1999.
Exhibit 3... Report of Secretary-General on Arrivai in Netherlands of Two Persans
Charged with Pan Am 103 Bombings Welcomed by Security Council," Security
Council Press Release, United Nations Document SC/6662, 5 April 1999.
Exhibit 4. Statement by the President of the Security Council, United Nations Document
S/PRST/1999/10, 8 April1999.
Exhibit 5. Opinion of the Court in causa Her Majesty's Advocate v. Abdelbaset Ali
Mohmed Al Megrahi and Al Amin Khalifa Fhimah, Case number 1475/99,
delivéredon 31 January 2001.
Exhibit 6. Final Amended Indictment in the Case ofHer Majesty's Advocate v.
Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah, indicating
deJetions made by the High Court of Justiciary at Camp Zeist in returning its
Verdict on 31 January 2001. Obtained by the United States of America from the
United K.ingdomCrown Office and Procurator Fiscal Service.
Duplique des Etats-Unis d'Amérique