Non-Corrigé
Uncorrecteci
InternationalCourt Cour internationale
of Justice de Justice
Public sitting
held on Tuesday 14 ûctobel- 1997, at 11.45 a.m., at the Peace Palace,
in the case concerning Questions of Interpretation and Application of the
1971 Montreal Con~~ogtion arising fram the Aerial Incident at Lockerbie
(Libyan Arab Jamabiriya v. United States of America)
Weliminary Objections
WRBATIM RECORD
Audience publique
tenue le mardi 14 octobxe 1997, à 11 h 45, au Palais de la Paix,
sous la présidence de M. Weeramantzy, vice-président
faisant fonction de président
en 1 'affaire relative à des Questicms d 'interprétation et d 'application
de la convention de Montréai de 1971 résultant de 1 'incident aérien de
Lockerbie (Jamahiriya arabe libyenne c. Etats-Mes d'Amérique)
Brceptions préliminaires
CaMPTE RENDUPresent: Vice-President WeeramantryA ,ctingPresident
President Schwebel
Judges Oda
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Korm
Vereshchetin
Parra-Aranguren
Kooijmam
Rezek
Judge ad hoc El-Kosheri
Registrar Valencia-OspinaPrésents : M. Weeramantryv,ice-président ,aisantfonction de
présidenten l'affaire
M. Schwebel,présidentde la Cour
MM. Oda
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Korm
Vereshchetin
Parra-Aranguren
Kooijmans
Rezek,juges
El-Kosheri jugead hoc
M. Valencia-Ospina greffierThe -t of the LibyanArab Jamahiriyais representedby:
H. E. Mr. HamedAhmedElhouderi, Ambassador,Secretary of the People's
Officeof theGreat Socialis People's LibyanArab Jamahiriyato
the Netherlands,
as Agent;
Mr.MohamedA. Aljady,
Mr.Abdulhamid Raeid,
as Counsel;
Mr. AbdelrazeEgl-Murtadi Suleiman,Professorof Public International
Law,Facultyof Law,University of Benghazi,
Mr. IanBrownlie, C.B.E., Q.C.,F.B.A.,Chichele Professorof Public
InternationaLlaw,University of Oxford,
Mr. JeanSalmon,Professor of Law emeritus, Universil tébrede
Bruxelles,
Mr. EricSuy,Frofessor of InternationaLlaw,CatholicUniversity of
Louvain (KU .Leuven),
Mr. EricDavid,Professor of Law,Universitélibrede Bruxelles,
as CounselandAdvocates;
Mr. NicolasAngelet,Principal AssistanF t,cultyof Law,Catholic
Universityof Louvain (K.U.Leuven),
Mrs.BarbaraDelcourt, Assistant,Facultyof Social,Political and
EconomicSciences, Université libre de Bruxelle Research Fellow,
Centreof International La and Instituteof European Studies,
Université libre d Bruxelles,
Mr. MohamedAwad,
as Advisers.
!Be Gbenmsnt of the UnitedStates ofAmerica is representedtiy:
Mr. DavidR. Andrews, LegalAdviser, U.S.Department of State,
as Agent;
Mr. MichaelJ. Matheson, PrincipalDeputyLegalAdviser, U.S.Department
of State,
as Co-Agent;Le Go~ement de la Jamahiriyaarabe libyennesera représenté par :
S. Exc.M. HamedAhrned Elhouderi, ambassadeur, secrétair bureau
populaire de la GrandeJamahiriya arabe libyenn populaire socialiste
aux Pays-Bas,
came agent;
M. Mohamed A. Aljady,
M. Abdulhamid Raied,
cm conseils;
M. Abdelrazeg El-MurtadiSuleiman, professeurd reoit international
public à la facultéde droitde l'Universitd ée Benghazi,
M. Ian Brownlie, C.B.E.,Q.C.,F.B.A., professeur dderoit international
public,titulaire de la chaireChichele à l'Universitdé'Mord,
M. JeanSalmon,professeur éméritede droit à l'universitléibrede
Bruxelles,
M. EricSuy,professeur dd eroitinternationa àl l'Universitcéatholique
de Louvain(K.U.Leuven) ,
M. EricDavid, professeurde droit à l'Universitléibre de Bruxelles,
cm conseilset avocats;
M. Nicolas Angelet,premierassistant à la facultéde droitde
l'Universitc éatholiquede Louvain(K.U.Leuven),
Mme BarbaraDelcourt, assistante à la facultédes sciences sociales,
politiques et économiquesde l'universitl éibrede Bruxelles,
collaboratrice scientifia quuCentrede droitinternationae lt
à l'Institut d'étudeseuropéennes d e'université libr de Bruxelles,
M. MohamedAwad,
carme conseillers.
Le Gouvernement desEtats-Ws d1Anaerique serreprésenté par :
M. DavidR. Andrews,conseiller juridique dudépartement dlEtat
des Etats-Unis,
camne agent;
M. MichaelJ. Matheson, conseiller juridiqa uejointprincipal du
département dlEtatdesEtats-Unis, - 6 -
Mr. John R. Crook,Assistant LegaA ldviser,U.S. Department ofState,
Mr. Sean D. Murphy,Counselorfor LegalAffairs,U.S. Embassy,The Hague,
Mr. OscarSchachter, Professorat the ColumbiaUniversitySchoolof Law,
Ms ElisabethZoller,Professorat the University of Paris II,
as Counseland Admcates;
Mr. JohnJ. Kim,Officeof the LegalAdviser,Departmentof State,
Mr. BrianMurtagh,U.S. Department of Justice,
as Counsel.M. JohnR. Crook,conseiller juridiqa uejoint du départeme dfEtat
des Etats-Unis,
M. SeanD. Murphy,conseiller charg des affairesjuridiquesà
l'ambassaddeesEtats-Unisaux Pays-Bas,
M. OscarSchachter,professeurà la faculté dedroitde l'université
de Columbia,
MmeElisabeth Zoller,professeurà l'universitdée ParisII,
cme conseilset avocats;
M. JohnJ. Kim,du bureaudu conseiller juridiquedu départemendlEtat
des Etats-Unis,
M. BrianMurtagh,du départementde la justicedesEtats-Unis,
cm conseils. **
-8-
The ACTINGPRESIDENT: Please be seated. The Court meetsnow to hearthe argumentsof
the United States of America. Mr.David Andrews.
Mr.ANDREWS: Mt-P.resident, Membersof the Court, may itplease the Court,
1.l. Mynarne is David Andrews. 1am the Legal Adviser of the Department of State of the
United States of America.1 appear before you for the first time this morning as Agent of the
United States.
1.2.No lawyercan fail to be movedby the honour and responsibilityof representinghiscountry
before this great Court. My responsibilityis particularly greathe importanceofthis case.
Thehumantragedyitrepresentsis horrendous-the murderby aterrorist bombof 270 innocentmen,
women, and children in the air and on the ground at Lockerbie, Scotland onember 1988.
People of some 20different nationalitieswere killed. Many of these people were on their way home
tofamilies forthe holidays. Their lives andthose of their families andfriends werebrought toan end
or changedforever.
1.3.However,this case is significantfor another, perhaps equallycompelling reason. It poses
a fundamental challenge to the authority of the United Nations Security Council in maintaining
internationalpeace and security. In the origins of the Pan Am 103murders, the Council identifieda
threat to peace andsecurity. It specified measures that Libya, the United States, and other countries
-
are obliged toke in response to that threat. Libya comes before this Court contendingthat actions
taken by the United Statesviolate its rights under the Montreal Convention,a treaty designed tobring
aircraft terrorists to justice. As we will show in the course of our presentations, Libya's claimsare
nothing morethan collateral attacks on the decisions taken by the Security Council in its efforts to
maintain international peaceand security. It is our view that the Courtdoes not havejurisdiction over
such attacks. This Court should declineto accept Libya's claimsin any event becausethe claims are
inadmissible,and have beenrendered moot andwithout practicalse by the decisions ofthe -9 -
Council. Even ifthe Court believes it shouldexercisejurisdiction, it shoulddismissthe Libyanclaims
in substance on the basis of the legal effect ofthe Council'sdecisions.
1.4.Itis onthese groundsthat the United Statesfiled PreliminaryObjectionsto the Application
filed by the Govemmentof Libya. In the course of Ourpresentation,we will refer to decisionsof the
Court, exhibits inthe record, andother supportingmaterials. With the Court's indulgence,wewill not
read thecitations tothese materials, but they are includedin the texts whichwe have submittedto the
Registry.
1.5. 1 will not enter into an extended discussion of the facts leading to Ourpresencehere this
moming. Although the arguments made andpositions taken by the United States are distinct from
those taken by the United Kingdom, many of the underlying facts are the same.
These facts were well explained by the Lord Advocate yesterday moming. 1 endorse and
incorporateby referencethe substanceofthat factualpresentation. 1will stress,however,afewpoints.
1.6.The Lockerbie bombingwas notthe first time that agents or officiais of the Governmentof
Libya have been implicated in acts of internationalterrorism. The Lord Advocate yesterdayreferred
to Libya'srecurring involvement in such acts. Notably, these acts often have been accompaniedby
Libyan denials of responsibility. Recent events, however,cal1these denials into question.
1.7. Let us consider, first, the bombing of the La Belle discotheque in Berlin in 1986. In
November 1993, duringthe Security Councildeliberationsonresolution 883,the Libyan representative
proclaimedthat Libyahad nothingto do withthis bombingandthat it had been exonerated completely
of any responsibility. However, in February of this year, prosecutors in Germany announced the
indictmentsof five Libyan operativesfor their rolein that very bombing. The bomb, whichwas filled
with iron nails, killedthree and wounded over 200 people. The German authorities allege that this
bombingwas committedon direct ordersof the Libyan State intelligenceservice. The five defendants
are scheduled to go to trial next month. 'J.
- 10-
1.S. Second, let us consider the 1989bombingof UTA flight 772over Niger, whichkilled 171
people. Theplane explodedduring its flight fromBrazzaville,Congoto Ndjamena,Chad. In a letter
of 8 January 1992,fromthe Permanent RepresentativeofLibyato the UnitedNations addressedtothe
Secretary-General (US Exhibit 14), the Government of Libya categorically rejected allegations of
Libyan involvementin the bombings ofUTA 772and Pan Am 103. Yet, in May of this year, French
investigatingmagistrate Jean-LouisBrugierehandedoverthe resultsofhis investigationintotheUTA
bombing. He concludedthat there was compellingevidenceto recommendprosecution of six Libyan
intelligenceoperatives forthe attack. Six individualswere indicted,amongthem thebrother-in-lawof
Colonel Qadhafi and the former second in command of the Libyan Stateintelligence service. The
defendants will be tried in absentia next year.
1.9.Even now,in respect of the facts of this case, theamepatternseemsto be emerging. The
Libyans havetendered a videotapeof a British commercialtelevisionprogramme, the"MalteseDouble
Cross",whichsuggeststhatnon-Libyan actorsmayhavebeenresponsibleforthePan Am 103bombing.
Wehave seriousdoubts asto whether this film is admissibleevidenceandwe reserveOurrights inthis
regard. Nevertheless, it is telling that a key participant in that programme pleadedguilty to perjury
regarding these same matters last month in a federal court. He admittedgiving false statementswith
respectto the allegationshe made regarding the involvementof the USandother foreigngovernments
in the incident.
1.10. In short, the Courtis faced with an extraordinarysituation. TheApplicant State has along
history of using violence as an instrumentof policy and supporting those who use terror to advance
their political agendas. The Security Council has requiredthat Libya must cease terrorist action and
supportfor terrorist groups,and that Libya mustsurrenderthe personsaccusedfor trial to one of two
otherStatesthat are authorizedunder internationallawto conductsucha trial. Yetthe Applicant State
is asking this Court to decidethat Libya alone has the legal right to investigateand prosecute two of
its nationals charged in other States with blowing up an airliner and killing 270 people. - 11 -
1.11. The criminal charges brought against these two individuals were the result of an
international criminal investigationof extraordinary breadth and thoroughness. It took three years of
painstaking investigation to assemblethe evidence indicatingthat two Libyan intelligence operatives,
one a senior Libyan intelligence officia1and the other a former official of the Libyan Arab Airlines
station at Luqa Airport in Malta, should face criminal charges for the Pan Am 103 bombing. On
14November 1991, a US federal grandjury handed down an indictrnent, allegingthat the two Libyan
intelligence operatives caused the insertion of the suitcase containing the bomb into the international
aviation baggage system that led to the destruction of Pan Am 103. The US Government is prepared
to present and offer proof of these allegations in a fair and open trial in the United States, subject to
the full panoply of safeguardsapplicableto al1defendants, includingthe presumption of innocence, the
privilege against self-incrimination, and the right of cross-examination.
1.12.Ascounselforthe United Kingdom explained yesterday,the result of this investigation led
to action by the United Nations SecurityCouncil. On 21January 1992,the Council adopted resolution
731, followed on 31 March 1992, by resolution 748. In resolution 748, the Council, acting under its
ChapterVI1authority, decidedthat Libya "mustcommit itself definitivelyto cease al1foms of terrorist
action and support for terrorist groups". It directed Libya to turn over for prosecution in the United
Statesor Scotlandthe persons charged with blowing up Pan Am 103. The adoption of resolution 748
prompted a quick response in Libya. There were mob attacks in Tripoli on the Embassies of Security
Council Members that voted for resolution 748. The Embassies of Venezuela (then the President of
the Council) and of Russia were seriously darnaged.
1.13. Resolutions 731 and 748 were reaffirmed by the Council in resolution 883 on
11November 1993. These resolutions, read together, establish clear legal requirements that the
Govemment of Libya must meet in order to resolve the present situation. It has been several years
since those resolutions were adopted. Libya, however, has yet to comply with the Security Council
resolutions. 1.14. Libya'scase here is fùndamentallyan effort to undo the Council'sactions. In its written
responseto the UntiedStatesPreliminary Objection,the GovernmentofLibyadeniesboththe tmth and
the relevance of its past involvementin internationalterrorism. Instead, Libya seeksto portray itself
as an aggrieved, innocent,and law-abiding Statethat has beendeprived of its rightsntreal
Conventionand undergeneral internationallawby the actionsof the United Statesand of the Security
Council.
1.15.Forthereasonswe willdevelophere,the Court shouldsmissLibya's claims. Onthebasis
of Article 79 of theles of Court, the United States requests that the Court addressits Preliminary
Objections before anyfurther proceedingsin the case. Inthis connection,the United States maintains
1
al1previousargumentsadvancedin 1992not specificallyaddressedhere. Atthe sametime, we reserve
al1rights under the Statute and the Rules of Court, includingthe right to introducea counter-claim.
We raise four basic objections.
1.16. First, the Court does not have jurisdiction to entertain these claims. The Court only has
jurisdiction over a dispute involving "the interpretation or application"of the Montreal Convention.
Libya, however,does not raise any valid claim under the Montreal Convention. Even if Libya could
make such a claim, any such claims are supersededby the relevant decisionsof the Security Council
under Chapter VI1of the United Nations Charter, which impose differentobligations. Thus, Libya's
claimscan be seen for what they really ara challenge to the lawfulnessof the Council'sactions
-
under the Charter. That is not a dispute with the United States over the interpretationor application
of theMontreal Convention.
1.17.Second,evenassumingtheCourthadjurisdictionndertheMontrealConvention,theCourt
shoulddismissLibya'sclaims becausethey areinadmissible. Acceptanceoftheseclaimswouldrequire
the Court to overturnbinding decisionsofthe SecurityCouncilthat wereadoptedinthe exercise ofthe
Council's ChapterI1functions. We believe that the Council's decisions were plainlylawful andthat
the proper role for the Court must be to deny Libya's claims forrelief. - 13 -
1.18. Third, even if the Court had jurisdiction to consider these claims and considered them to
be admissible, the Court should declineto grant the relief requested by Libya because its claims have
been rendered moot by the Council'sresolutions. Under the Charter, the obligations created by the
Council's decisions under Chapter VI1 take precedence over inconsistent obligations that might
otherwise apply. Ruling on Libya'sclaims under the Montreal Convention therefore would have no
practical effect and serve no valid purpose, and Libya's claims therefore must be dismissed.
1.19.Fourth, shouldthe Court decidethat it has and shouldexercisejurisdiction, and that Libya's
claims are admissible, it should resolvethe case in substanceat this preliminary objections stage. The
Court should decide, as a preliminary matter, that the decisions of the Security Council preclude the
relief sought by Libya. This case can be disposed of on this basis; there is, therefore, nojustification
for further proceedings on Libya'sclaims under the Montreal Convention.
1.20.Mr.President, Membersof the Court, Ourpresentation will be as follows. First, Dr. Sean
Murphy will demonstrate that Libya cannot establish a basis for jurisdiction within the terms of the
Montreal Convention. He will refbte Libya'sunderlying assumptionthat the Montreal Convention is
the exclusive means for addressingacts of the aircraft sabotage. To the contrary,the Convention isjust
one piece of a large tapestry of laws and international instruments designed to create multiple
opportunities to bring accused terrorists to justice. The Montreal Convention, by its terms, does not
displace these other laws and instruments, nor does it eliminate the United States' right through
peaceful, diplomatic means to promote Libya's surrender for trial of these persons.
1.21.Dr. Murphy will also review the five treaty provisions cited by Libya. He will show that
these provisions are not germane to the present situation or are not in dispute. Libya in the past has
pointed inparticular to Article 11of the Convention. Dr. Murphywill showthat this provision creates
a general legal obligation, that the United States acted in a manner consistent with the provision, and
that the provision did not require the disclosure of further sensitive information to a Statewhose own
agents had been indicted for the crimes in question. - 14-
1.22.Next,Mr. JohnCrook,AssistantLegalAdviserforUnitedNationsAffairs,willdemonstrate
that even if Libya had alid claim under the Montreal Convention at one time, any such claim has
been superseded by the binding decisions of the Council.These decisions were taken under
Chapter VI1of the Charter in responseto Libya'ssupportfor terrorism and its suspected involvement
in the Pan Am 103murders. They were validlyadopted bya proper majorityof the Council and are
legally binding on the United States, Libya, andher Members of the UnitedNations under the
Charter. As such, they prevail over any allegedly inconsistent obligations under the Montreal
Convention. As1pointed outearlier,Libyaisreducedto a complaintthat theCouncil actedunlawfülly,
not a complaint over "the interpretationor application" of the Montreal Convention.
*
1.23.Mr.CrookwilldemonstratehowLibya'sclaimsforrelief arenot admissible.Libya'sclaims
are,on their face, inconsistentwith the relevant SecurityCouncil decisions. Therefore,the Courtcould
accept Libya's claims onlyif it is preparedto review and overturn the Council'sdecisions. The Court
cannot and shouldnotake this extraordinary step. The Council actedproperlywithin the scopeof its
Charter authorities in adopting the relevant resolutions. It was exercising functionsthat the Charter
gives to the Council and to the Council alonthat of determining that a threat to the peace has
occurredandwhat measuresshouldbe imposedto addressuchathreat. Its decisionsconcerning Libya
were well-founded, appropriate,and consistent with its actions in other situations.
1.24.ProfessorOscarSchachter,HamiltonFishProfessoremeritusatColumbiaUniversity School-
of Law, willthen examine the role of the Courtin this case. Professor Schachteriswell knownto the
Members of the Court from his lifetime of scholarship and dedicationto internationallaw. He will
arguethat the propernctionof this Court,when facedwith a challenge to Security Councildecisions
adoptedunderChapterVII, can onlybe to underscorethe authorityvested inthe Council to adoptsuch
decisions. This isnot an abdicationof the Court's specialjudicial role,but rathera recognitionof the
legaland political framework establishedby the United Nations Charter. Accordingly,he concludes, - 15 -
this Court should find Libya'sclaims to be inadmissible or in any event should decline to exercise
jurisdiction over them.
1.25.Next, Professor Elizabeth Zoller of the University of Paris II will elaborate further on the
reasons why Libya cannot establish the Court'sjurisdiction over its claims, and why those
claims are inadmissible. Shewill explorethe distinction between the Court's advisoryand contentious
jurisdiction, and showhowthe validity of SecurityCouncil action can only be addressed inthe context
of a proper request for an advisory proceeding, not, as here, by way of a contentious proceeding
between two States. The questions posed by Libya's claims involve fundamental ones regarding the
allocation of powers underthe UnitedNations Charter. As such, they cannot be viewed as "incidental"
to the Court's limited jurisdiction relating to the interpretation or application of the Montreal
Convention. In addition,ProfessorZoller will showhow Libya'sclaimsare inadmissiblebecauseLibya
lacks capacity to contest the validity of Council resolutions. Moreover, Libya cannot showthat it had
any legalright or interest infringedby the United States as the result ofthe Security Council's adoption
of those resolutions.
1.26.Mr.MichaelMatheson,the PrincipalDeputyLegal Adviserof the Departrnentof State,will
present Ourfinal argument. He will review the issues before the Court, and explain why the Court
should grant the United States Preliminary Objections now. He will show that the objections of the
United States are of a properly preliminarycharacter within the meaning of Article 79 of the Rules of
Court, so that the Court can and should rendera finaljudgment at this stage. He will showfurther that
the Court need not decide any disputed factual issues in order to uphold the United StatesPreliminary
Objections; that the controlling legal issues have been fully developed; and that there is accordingly
no need for the Court to subject itself and the Parties to further unnecessary proceedings.
1.27.1 will then return to the podium for some closing remarks. Mr. President, that concludes
my introduction. 1 thank the Court for its attention and ask it to invite Dr. Murphyto the podium to
begin Ourpresentation. Thank you.
The ACTING PRESIDENT: Thank you, MI-.Andrews. 1 now give the floor to
Dr. Sean Murphy.
Dr. Sean MURPHY:
TheMontreal Convention
Mr.President, Members of the Court, it is once again a great honour and pleasure to appear
before you.
2.1. In my presentation, 1will address whetherthe actions upon whichLibya's caseis basedfaIl
w
within the provisionsof the Montreal Conventionand whether, as a consequence,the disputeis one
whichthe Courthasjurisdictionrationemateriaetoentertain,pursuanttoArticle 14ofthatConvention.
1 will not addressthe relevance of the Security Councilto any obligationsthat may exist under the
Montreal Convention; my focus will be exclusivelyon the Convention itself.
2.2. LibyaallegesthattheUnited Stateshasviolatedfive provisionsofthe Montreal Convention:
As Mr. Matheson will discuss later in the
Articles 5, paras. 2 and 3, 7, 8, para. 3, and 11.
United States presentation, it is appropriate for the Court at this stage in the proceedingsto
whether there exists a disputebetween Libya and the United States concerning the interpretationor
application ofany of these provisions.
2.3.Mr. President, my presentationwill focuson two propositionsMy first proposition is that
Libya'sclaims are grounded on a flawed syllogisme. Libyaontendsthat the Montreal Conventionis
the exclusive means by which one State may pursue criminaljurisdiction over a suspect locatedin
another State, at least where the two States are parties to the Montreal Convention; Libya further
contendsthat the United Statesdid notpursue criminaljurisdiction with respectto the two suspectsin
the Lockerbie incident through resortto the MontrealConvention; ergo, Libya concludes that the
United States has violated Libya's rightsunder the Convention. (seeLibyanApplication, Part(a); - 17-
Libyan Memorial, para. 3.2;Libyan Observations and Submissionson the Preliminary Objections,
para. 2.12).
2.4. The syllogism is flawed becausethe major premise is wrong: the Montreal Conventionis
not the exclusivemeansby which one State maypursue criminaljurisdiction overa suspect locatedin
another State, even when the two States are parties to the Montreal Convention. The
Montreal Conventionwas intendedto increasethe opportunitiesfor bringing offenderstojustice, but
was not intendedtoforeclose other opportunitiesoutside the Convention. As such, pursuit of those
other opportunities by the United States cannot be said to violate any rights of Libya under the
Montreal Conventionand, concomitantly, cannot giverise to a dispute cognizantunder Article 14.
2.5. My second proposition is that, whether or not the Montreal Convention is the exclusive
source of law in this area,none of the provisions of the Montreal Convention identified by Libya
prohibit,expresslyorimplicitly,apartyfrompursuingthroughpeaceful,diplomaticmeansthe surrender
for trial ofanoffender(see Libyan Application,Part 1,pp. 4-5(the United States is "pressuringLibya
into surrendering the accused"); Libyan Memorial, para. 2.44 (the United States is pursuing
United Nations economic sanctions); Libyan Observations and Submissionson the Preliminary
Objections, paras. 2.1 and 2.25 (the United States is "calling"for the suspects to be handed over)).
Consequently, since none of the actions of the United States identified by Libya can reasonably be
regarded as potentiallyviolating theontreal Convention,there is no basis forthe Court'sjurisdiction
in this case.
2.6.1 will address each of these propositions in turn.
1. By Adopting the Montreal Convention, States Did Not Relinquish Their Right to Pursue
Prosecution of a Suspect Located in Another State Based on Their National Criminal
Jurisdiction
2.7. With respect to the first proposition, 1 think it fair to Say that the drafters of the
Montreal Conventionwouldhavebeenquite surprisedto leamthatthey hadcraftedtheexclusivemeans - 18-
by which one State may pursuecriminaljurisdiction with respectto a suspectlocatedin another State.
To explain why, 1think it is helpful to place in context the adoption ofthe Montreal Convention.
2.8. As is wellnown, global civil aviation expanded enormouslyin the decades followingthe
Second World War, growing from some 13.2 million passengers in 1945 to some 177 million
passengersin 1965. (Jin-Tai Choi,Aviation Terrorism:HistoricalSuwey, PerspectivesandResponses
2 (1994)). Unfortunately, terroristacts against civil aircraft grew as well, and consisted of hijacking,
sabotage,and attacks on airlinefacilitiesandpassengers. From 1945to 1990,thereoccurredmore than
2,200 sabotage bombings of civil aircraft (ibid, at p. 8).
2.9. How did States respond to these terrorist acts? Well, the first step was to increase
*
dramaticallythe level of securityproceduresat airports.he second step wasto pursue legal means
for bringing offenders to justice. The principal means for doing this was through nationalcriminal
laws,whereby a Statedeclaredjurisdiction overactsagainsttheState'scivilaircraftthat occurred either
in that State or abroad (see, e.g., A. Eva&s J. Murphy, Legal Aspects of InternationalTerrorism
(1978); A.I. Mendelsohn, "The Inflight Crime: The International and Domestic Picture under the
TokyoConvention", VirginiaLawReview509-63(1967); C.S.Thomas & M.J.Kirby,"TheConvention
forthe Suppressionof UnlawfulActsAgainstthe Safetyof Civil Aviation",22ICLQ 163,171(1973)).
Further, international law did not prohibit a State from seeking the surrenderof an offender located
abroad. Thus, when a criminalact occurred, a Statewould undertakenationalcourt proceedingsonce
the State had custody over the offender, which at times required the State to seek surrender of the
offender from another State.
2.10. Of course, Statescouldnot, in1instances,obtain custodyoftheoffenders. Consequently,
someStates negotiated bilateralagreementsandmemorandaof understanding soas to coordinatetheir
national processes with those of other States. These agreements took the form of mutual legal
assistance agreements, extradition agreements, or agreements dealing with specific problems of
international terrorism against aircraft (see,., U.S.-Cuba Memoranda of Understanding on the -19-
Prevention of Aerial and Maritime Hijacking, 15February 1973(discussed in Jin-Tai Choi, ibid.,at
p. 26)). Not surprisingly, States also soughtto addressthis problemthrough aariety of regionaland
global conventions, includingof course theMontreal Convention (see,e.g., the 1982Law of the Sea
Convention, AICONF.621122(1982) (Art. 105),the 1958Geneva Conventionon the High Seas,450
UNTS82 (Arts. 14-18),the 1963 TokyoConventionon Offences and Certain other Acts Committed
onBoardAircraft, 704WTS 219,the 1970HagueConventionforthe SuppressionofUnlawfulSeizure
of Aircraft 859 WTS 105, the 1988Protocol of the Montreal Convention for the Suppression of
Unlawful Acts of Violence at Airports Serving International Civil Aviation, 974 WTS 178, the
1977 European Convention onthe Suppressionof Terrorism, 1137 UNTS93, the 1979 International
ConventionAgainst theTakingofHostages, 1316 UNTS 178,and the 1991Conventiononthe Marking
of Plastic Explosives for theurpose of Detection).
2.11. Separate from these agreements and conventions, States raised theirconcems in various
international fora, which passed important resolutions seeking to harmonize State action for the
enhancementof the securityof civil aviation(see,.g.,Councilof Europe's 1979resolution 450onAir
Piracy; European Union'sEuropean Parliamentresolutionof 10 March 1988on Terrorist Attackson
Civil Aviation; resolution on Measures to Prevent International Terrorism, G.A. Res. 40161,
United Nations, General Assembly OfJial Records, 40th Session,Supplement No. 53, at 30,
United Nations Doc. Al40153(1985); and resolutions of the Assembly of the International Civil
Aviation Organization, reprintedin Omer Y. Elagab, ed., InternationalLaw DocumentsRelatingto
Terrorism, part II (1995)and in Yohah Alexander, ed., InternationalTerrorism:Politicaland Legal
Documents (1992)).
2.12. Thus, the Montreal Convention was drafted as a part of a broad mosaic of laws,
instruments, and fora - at the national, regional, and global lev-l that al1had the objective of
addressing acts of violence against civil aircraft. Although only a part of this mosaic, the
Montreal Convention is important in strengtheningthe effortsto bring offenders to justice. 2.13. How does it do this? Article 1of the Montreal Convention- like its sister Convention,
the 1970 HagueConventionon hijacking - describesa seriesofactsthatconstituteoffencesunderthe
Convention; these acts concem violence against civil aircraft and associated facilities.
2.14. Articles 3 and require each Stateto makethose offencespunishableunder their national
laws when thereis a connection to that State and, beyondthis, to establish its jurisdiction over
offences when anoffender is present in their territory and the ContractingState does not extraditethe
offender.
2.15. Article 6 of the Convention requires the State to take into custody allegedoffenders.
2.16. Article 7 obligates a Contracting State to submit the case of an allegednder to its
I
competent authorities for purposes of prosecution if it does not extradite him. This obligation is
frequently calledthe obligation to "prosecuteor extradite".
2.17. Articl8 requires Contracting Statesto includethe offences as "extraditableoffences" in
any extraditiontreaty existing with anotherContracting State or, for Statesthat extradite even in the
absenceof a treaty, to recognizethe offencesas extraditableoffences. Theseprovisionsconstitutethe
core of the Montreal Convention.
2.18. Adoption oftheMontrealConvention wasby nomeans intendedto displacenational laws
and internationalinstruments thathave referred to. Rather, the Montreal Convention was intended
to deter criminal acts by expanding the opportunities for bringing to justice those who committed -
violent acts againstaircraft. It did this by ensuring,so far as possible,that Stateswould pass national
laws making such acts offences- evenwhen committedoutsidethe State'sterritorialjurisdictio-
andby preventing Statesfrom providing refuge tothe offender. While itcreatednew opportunitiesfor
prosecution of offenders, theontreal Conventiondid not diminish opportunities for States to seek
surrender for trial of offenders pursuantto their national legislation.
2.19. Theappropriatenessof regardingthe Montreal Conventionin this way is readily apparent
fiom the languageof the Convention itself. The presewation of these national laws wasan important - 21 -
element of the Montreal Convention, as can be seen in Article 5, paragraph 3, which clearly States:
"ThisConventiondoesnotexcludeanycriminaljurisdiction exercisedinaccordancewithnationallaw."
The proper interpretationof this provision is clear fiom the text, but it is also supportedby recourse
to its negotiating history. Article5, paragraph 3, was adopted without oppositionby the Montreal
Conference (1ICAO, International Conferenceon Air Law,Minutes and Documents,p. 163 (1971))
by simply using the same language that appears in Article 4, paragraph 3, of the 1970 Hague
Convention and in Article 3, paragraph 3, of the 1963Tokyo Convention. The negotiating histories
of the earlier Conventionsmake abundantly clear that the drafters intended to establishin the initial
paragraphs of this Article obligationson States to establishjurisdictionover theoffences set forth in
the relevant Conventions, but also intended - pursuant to this provision- not to exclude other
criminaljurisdiction exercised in accordance with national law (see, e.g., ICAO, Legal Committee,
SeventeenthSession,MinutesandDocumentsRelatingto the Subjectof UnlawfûlSeizureof Aircraft,
pp. 47-48 (1970) (comments of delegate of France, chairman of the drafting group, on the provision
that would become Hague ConventionArticle 4, paragraph 3)).
2.20. Further evidence that the Montreal Convention does not preempt national laws and
internationalinstruments,but supplements them,maybefoundinArticle 11. Paragraph 1ofArticle 11
calls for the applicationof national law when one State provides assistance to another in connection
with criminal proceedings. Paragraph2 makes clear that obligations under other international
instruments regarding provisionof legal assistance are not affected.
2.21. Turning now to the facts of the case before this Court, the United States has not, at any
time, sought the surrenderfor trial of thewo suspectsby invokingthe MontrealConvention. Rather,
the United Stateshas soughtto exerciseits own nationalcriminaljurisdiction withoutreferenceto the
Montreal Convention,as Article 5, paragraph 3, of the Convention makes clearit is permittedto do.
The United Stateshas criminaljurisdiction to prosecutethe two Libyans implicatedin the bombingofPan Am 103, based on the US nationality of the aircraft and on the US nationality of many of the
passengers andcrew. In the exercise of thatjurisdiction, the US is fully empoweredto seek custody
of these alleged offenders. The Montreal Convention,by its terms, expressly Statesthat such efforts
are not excluded.
2.22. Seen in this light, the core issue in this case does not concem Libya'srights under the
MontrealConvention; itconcemstherightoftheUnited Statesundergeneralprinciplesofinternational
law to pursue a diplomatic initiative for the surrenderfor trial of the suspects. Like anyother State,
the United States has sovereignrights to conductdiplomaticrelations, and, morespecifically,to seek
the surrender for trial of persons alleged to have committed certain crimes against US persons and
'(iI
aircraft.
2.23. The United States also has the right under the United NationsCharterto bring situations
which might lead to intemational friction to the attention of the Security Council and of the
General Assembly(United Nations Charter, Art.35, para. 1). Foryearsprior to andafterthe adoption
of the MontrealConvention,Stateshave referredto the United Nations situationsconcemingterrorism
against civil aviation, as well as intemational terrorism generally (see US Preliminary Objections,
Chap. III). In light of that history, it is simply untenablefor Libya to argue that membershipin the
Montreal Convention precludes referral of a situation of aviation terrorismto the United Nations,or
indeedto any other fora, simply because a suspecthas tumed up in another member State. Werethe
Court to accept this argument, it could have severe consequences forthe ability of States to refer
situationstothe United Nations concemingnotjust aviationterrorism,butother foms ofterrorism,war
crimes, human rights, and drug trafficking as well, since in al1of these areas there are treaties with
"prosecuteor extradite"provisions similar to that of the Montreal Convention(see, e.g., 1949Fourth
Geneva ConventionRelativetothe ProtectionofCivilianPersonsinTimeof War, 75 WTS 287; 1973
Convention on the Prevention and Punishmentof Crimes Against Intemationally Protected Persons, -23 -
IncludingDiplomaticAgents, 1035 WTS 167; 1979Conventionon thePhysicalProtectionofNuclear
Material, TL4SNo. 11080; 1984ConventionAgainstTortureand Other Cruel,Inhumanor Degrading
Treatmentor Punishment,General Assembly resolution39/46(Ann.),UnitedNations,GeneralAssembly
OfJicialRecords,39th Session,SupplementNo. 15,at 197,UnitedNations,Doc. Al39151(1985); 1988
Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime
Navigation, IMO Doc. SUA/CONF/15/Rev.l (1988); 1988UnitedNations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances).
2.24. Issuesregardingthe pursuit of such diplomatic initiativesdo not arise underthe Montreal
Convention, but rather under other noms of international law outside the scope of the Court's
jurisdiction in this case. Libya'swn efforts to find "compromisesolutions"confirms this point (see
Libyan Observations and Submissions on the Preliminary Objections, para. 2.8). Pursuit of these
solutions,whichare not contemplatedunderthetermsoftheMontrealConvention,underminesLibya's
contention that the Montreal Convention is the exclusive source of law in this area. Libya tries to
explain away its action as simply "applyingthe alternative obligation ofaut dedere autjudicare for
whichthe MontrealConventionprovides"(ibid.,para. 2.27).But,withrespect, itsimplydoesnotmake
sense to claim that the State in which the suspectshave turned up can engage in creative diplomatic
initiativesto bring abouta result other than that contemplatedin the Montreal Convention, while al1
other States have to remain silent.
2.25.The reality, Mr. President, isthat neitherLibya's so-called"compromise"solutions,northe
United States diplomatic initiative, were actionsenvisagedin the "prosecuteor extradite"mechanism
of the Montreal Convention, and yet neither were these actions unlawful, at least until the Security
Council acted as it did.They were simply diplomatic initiativesby the two States with no relevance
to theMontreal Convention. ,.
-24 -
2.26. The views of the judges during the interim measures phase ofthis case support the
argument 1am making. Severaljudges notedthat general internationallawpermitsa Stateto exercise
criminaljurisdiction over crimesdone by aliens abroad and,to that end,to seekthe surrenderfor trial
of the offender. This ability to seek surrender for trial is not affected by thenvention,
which simply imposes an obligationon Contracting Statesto surrenderfor trial or submit to national
prosecution alleged offenders who are in their territory.See case concerning Questions of
Interpretation and Application otfhe71 MontrealConventionArisingfrom theAerial Incidentat
Lockerbie (Libyav. United States of America),I.C.J. Reports 1992, p. 130, Order on Provisional
Measures, declaration of Judge Oda;joint declaration of Judges Evensen, Tarassov, Guillaume,and
*
Aguilar Mawdsley, pp. 136-137; seealso ibid.,p. 131,declarationof Judge Oda; United Stateseffort
to obtain surrenderdoes not relate to interpretation or applicationof the Montreal Convention.)
2.27. In summary,Mr.President,the Montreal Convention represents one importantmeans for
combating violent actions against civil aircraft.not, however,the exclusive means. There are
other sources of law- national law, customary international law, and international instruments,
includingtheUnited NationsCharter thatplayacriticalroleinestablishingcriminaljurisdictionover
those who commit acts of terrorism againstcivil aircraft. Libya's theory,if correct, would preclude
resort to these other sources of law for addressing this problem, as well as preclude resort to
international fora where this problem is discussed, a result that is not only inconsistent with the
-
languageof the MontrealConvention,but, even worse,is inconsistentwith its fundamentalobjectand
purpose.
II. The Provisions of the Montreal ConventionDo Not Prohibit a State from Seeking the
Surrender for Trialof Offenders
2.28. Let me turn now to my second proposition. Whetheror not the Montreal Convention is
the exclusive source oflaw inthis area,the Conventiondoesnot containrulesthat addressthis matter, -25 -
in particular rules that prohibit the United States from pursuing the surrender for trial of offenders
through peaceful, diplomatic means. Allow meto discuss, inturn, the ordinarymeaning of each of the
Articles of the Montreal Conventionthat Libya claims has been violated by the United States, so as to
showthat they do not laydown any noms applicableto this particular case and cannottherefore form
the basis of the Court's jurisdiction" (case concerning Oil Platforms, Judgment on Preliminaiy
Objections, para. 36, 12December 1996).
Articles 5, paragraphs 2 and 3, 7 and 8, paragraph 3
2.29.Article 5paragraph 2. Article 5, paragraph 2, saysthat each Contracting Stateis obligated
totake such measures as may be necessaryto establish itsjurisdiction over specified offenceswhenever
the alleged offender is present in its territory. Thus, under this provision, the United Statesand Libya
are obligated to take steps to ensure that US courts and Libyan courts, respectively, havejurisdiction
over persons covered by the Conventionthat turn up in the United States or Libya. The United States
has taken such steps. Libya claims that it has taken such steps, at least in the context of this case
(Libyan Application, Part 1,pp. 2-3; Libyan Mernorial, paras. 2.7 and 6.38; Libyan Observations and
Submissions,para. 1.47). Thus, Libya has not pointed to any action by the United States that could
reasonably be regarded as potentially violating the ordinary meaning of Article 5, paragraph 2.
2.30. Article 5,paragraph 3. As we have seen Article 5, paragraph 3, says that the Convention
does not exclude any criminaljurisdiction exercised in accordancewith national law. This provision
doesnot impose anyobligation on States; itsimplymakes clearthat the Convention doesnot pre-empt
criminaljurisdiction that othenvise exists in Contracting States. Here,too, Libya has notpointed to any
action by the United States that could reasonably be regarded as potentially violating the ordinary
meaning of Article 5, paragraph 3.
2.31. Article 7. Article 7 of the Convention obligates a Contracting State to submit for
prosecution an alleged offender foundwithin itsterritory orto extradite him. Thus,underthis provision -26 -
the United Statesis obligated eitherto prosecute anoffenderfound inthe United Statesorto extradite
him. Obviously, the United States is fully prepared to prosecute the allegedLibyan offenders should
they be surrenderedto the United States for trial. Onceagain, Libya hasnot pointedto any action by
the United States that could reasonablybe regarded as potentially violating the ordinarymeaning of
Article 7.
2.32. Article8,paragraph 3. Let me state at the outsetthat Libya hasbeen rather inconsistent
in telling us whether its claim is based on paragraph 2 or paragraphthis Article. (See Libyan
Application, Parts III (e) and IV (5); Aerial Incident at Lockerbie,hearing on Provisional Measures,
CR9212at pp. 52 and 54; CR 9215at pp. 30 and 35; LibyanMemorial,para. 3.3 (referringto Art. 8,
I
para. 2); see alsoAerial IncidentutLockerbie(Libyav. UnitedStatesofAmerica),I.C.J.Reports 1992,
paras.4,6 and7,OrderonProvisionalMeasures,Court interpretationofArt. 8,para. 2; but see Libyan
Memorial,paras. 4.31and 8.1 (c); LibyanObservationsandSubmission,para. 2.16,referringtoArt.8,
para. 3.) Nevertheless, Libya apparentlyconcedingthat Article 8, paragraph 2, is not applicable in
this case (Libyan Memorial, para.4.21).
2.33.However,Article8,paragraph 3, isalso not applicableinthis case. Article 8,paragraph 3,
obligatescertain Contracting Statesto recognizethencesset forthinthe Conventionas extraditable
offences. Libya stressesthatit is not obligatedto extraditethespectsunderArticle 8,paragraph
3 (Libyan Memorial,para. 4.3l), but the United Stateshas not arguedthat Libya mustextradite these
-
suspectspursuant to Article 8 paragraph 3, or, for that matter, pursuantto any other provision of the
MontrealConvention. Onceagain, Libya hasnot pointedto any actionby the United Statesthat could
reasonably be regarded as potentially violating theordinarymeaning of this provision.
2.34. Mr.President, Libya cannot find any supportfor its position in the ordinary meaningof
these provisions. Consequently, Libya asks the Court to read into these provisions an implicit
obligation. That implicit obligation, accordingto Libya, is an obligationon al1Montreal Convention -27 -
parties to "recognize"that the Statein which a suspectturns up has an exclusiveright to chose whether
to prosecute or extraditethe suspect(Libyan Observations and Submissionson PreliminaryObjections,
para. 2.25). This obligation to "recognize"apparentlyincludesthe obligation to refrain from taking any
actions that promote the surrender of the suspect for trial abroad. Libya would have the Court find
within these provisions an implied obligation that would read something like:
"Contracting States shall not inform the Contracting State in which the alleged
offender is found regarding their views on where an offender should be prosecuted, and
shall notraise the matter in any internationalfora for consideration."
Yet no such obligation exists in the Montreal Convention and none can be read "between the lines".
2.35. Indeed if one were to tryto read "betweenthe lines", it seems quite clear from Articles 5,
paragraph 1,and 6,paragraph 1,ofthe Conventionthat,oncean offender isapprehended,other relevant
States who also havejurisdiction to prosecute theoffenderwill be informedthat he has been taken into
custody, and will make known their views about whether the offender should be surrendered to them
for trial. Thus, the structure of the Convention is to promote communications among Contracting
Parties regarding the apprehension of terrorists and regarding where those terrorists should be
prosecuted.
2.36. Why are those communications important? The "prosecute or extradite" formula was
designed to ensurethat oneof many possible fora would exerciseauthority to prosecute, but it does not
establish a priority for doing so (see Aerial Incident at Lockerbie, Provisional Measures hearing,CR
9214at pp. 60-61 (noting that efforts to create priority ofjurisdiction in both the Montreal and Hague
Conventions failed)). States are left to sort that out on their own. Libya itself has conceded that the
Montreal Convention doesnot establisha prioritizationofjurisdiction andthat Libya "cannotclaim any
priority or exclusivity whatsoever for the purposes of prosecution" (Aerial Incident at Lockerbie,
Provisional Measures hearing (CR 9215at p. 3); see also Libyan Memorial, para. 4.21)). 2.37.Libyamay not likethe factthatthe United Stateshasactivelyexpressedits viewson where
these suspectsshouldbe prosecuted, to the pointof addressingthe matter to the SecurityCouncil. But
this isnotunningafoulof anyobligation thatexists inthe MontrealConvention,anymorethanan arms
control treaty is violated when one contracting party urges another contracting party toreduce its
stockpiles below the ceiling set in the treaty.ontreal Convention clearlycontemplates the
surrenderof offendersas a perfectly valid alternative to prosecutionof the suspectsin the State where
they are first found. Consequently,suit of a diplomatic initiativethat promotessurrenderfor trial
does not fnistrate the objective of the Convention, particularly where there are implicationsthat the
State with custodyof theffender may be involved in the offence. *
2.38. In short,the only dispute betweenthe United Statesand Libya at issue here concems the
United States' right throughdiplomaticnsto promote Libya'ssurrender for trial of these persons,
a right that neither arisesnor is deniedby the Montreal Convention. As such,this right is not a
matter that entails the interpretation or application of the MontrealConvention, and therefore is not
properly beforethis Courtnder Article 14of the Montreal Convention.
Article Il
2.39. Now in its pleadings, Libyastresses that the United States has violated Article 11 of the
Montreal Convention, which provides that "Contracting States shall afford one anotherthe greatest
-
measure of assistance in connection with criminal proceedings".
2.40. Libya has not pointed to any action (or inaction) that could reasonably be regarded as
potentially violating Article 11. To explain why, let me first note that the obligation expressed in
Article11 is very general in nature; the Parties are called uponto "afford" each other "the greatest
measureofassistance". UnlikeArticle 13ofthe Convention,whereit is clearthatthe ContractingState
is obligated to communicate specific types of information, Article 11 does not speci@ the type of
assistance that shall be afforded. - 29 -
2.41. Further, Article 11, paragraph 1, expressly says that the national law of the requested
State - in this case, that would be the law of the United States - applies when considering what
"measure of assistance" is to be granted. If you compare the original text of Article 11 that was
proposedbythe ICAOLegalCommitteetotheMontrealConference(ICAO,II International Conference
on Air Law, Montreal, September 1971(Documents), Doc. 9081-LCl170-2at 17(1973) ("Contracting
Statesshall, in accordancewiththe applicable law,afford oneanotherthegreatest measureofassistance
in connection with proceedings brought in respect of the offences in Article "))with the version that
you have before you today, it is clearthat the drafters purposefully ciarifiedthe language in Article 11
so as to explicitly cal1for the application of the national law of the requested State. As such, under
Article 11, a requested State need not provide assistance where doing so would conflict with the
requirementsof national laworwhere it would impair legalproceedingsunderway pursuant to national
law.
2.42. The language of Article 11may be contrasted with the much more detailed provisions that
appearin conventionswhere Statesare obligatedto provide specifictypesof legal assistance (e.g., 1970
Hague Convention on the Takingof Evidence Abroad in Civil or CommercialMatters, 847 WTS 231;
1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters, 658 WTS 163). When States intend to obligate themselves in this way, they
know how to do so. In the case of Article 11of the Montreal Convention, this was not done.
2.43. One might also contrast the language of Article 11 with the analogous provision in the
near-contemporaneous 1973 Convention on the Prevention and Punishment of Crimes Against
IntemationallyProtected Persons,Including DiplomaticAgents (1035 WS 167). In that Convention,
Article 9contains no reference to the applicationof national law and specifiesthat the legal assistance
shall include "the supply of al1evidence at their disposa1necessary for the proceedings". No such
language appears in Article 11 of the Montreal Convention. No such language should be inferred. 2.44.The United States has satisfied the general obligation imposed by Article 11.n
2 1November 1991,the United Statestransmittedto Libya throughthe authoritiesof the Govemment
of Belgium copiesof the grandjury indictment ofthewo Libyans. That indictment,which appears
at Exhibit 1 of the US Preliminary Objections, provides detailed information regarding the facts
underlyingthe charges againstthe two Libyanofficiais andthe US lawsthatthese actsviolated. Thus,
Libya is fully cognizant ofthe basic elements ofthe legal proceedingin the United States.
2.45.Article 11cannotbe viewedas obligatingthe United Statesto provide furtherinformation.
Indeed, Article 11 preserves the right of the United States,r US law, to refuse to disclose
additionaldetails regardingthe investigation,such as evidence derivedfrom confidentialsources. As
J
we have described in Ourwritten pleading (US Preliminary Objections,P1,Chap. 1, Sec2), US
law contains provisions protecting the confidentiality of our grand jury process, protecting the
prosecutor'sevidencein advanceof trial so as not to compromisethe case, and protecting US national
security.
2.46.As a practical matter, it is difficult to see how the Court can define specific forms of
additionalassistancethat mustbe providedderArticle 11. Forthe Courtto try to inject into Article
11specificity asto the levelof assistancethat isre-usuchastheprovision ofwitnessstatements
or other informationwould simplybe unworkable and couldinhibitCO-operationin an area that the
drafters of theontreal Convention deliberatelydid not seek to regulate. Different incidents of-
terrorism,involving differentinvestigationsarnongdifferentStates,thatoperateunderdifferentnational
laws and are party to different bilateral and multilaterall legal assistance agreements, will
necessarily lead to different results in the kinds of assistance one Contracting Statecan and should
provide to another.
2.47.As a final point,1note that Libya is not seekingto use Article 11as a means of obtaining
greater assistance from the United States in connection with criminal proceedings in Libya. Rather, -31 -
Libya wishes to use Article 11 to sustain the core submission set forth in its Application (p. 10,
para. (c))and its Memorial (para. 8.(d) ) ,ich ask the Court essentiallyto declare that the United
States is obligatedto "stand down" fiom further seeking the surrenderof the two alleged offenders.
As isthe case withthe other articles of thetrealConvention,Article 11cannot supportthe weight
of thatclaim.
Conclusion
2.48. In conclusion,even onthe factsof this caseas stated by Libya,there isno disputebetween
the Parties regarding the interpretationor applicationof the MontrealConvention. The United States
hasnot sought surrenderfor trial ofhesetwo offendersby invokingthe MontrealConvention; rather,
it hasdone so pursuantto both its sovereignrightto seek the exerciseof its criminaljurisdiction and
its rightnder the UnitedNations Charterto refer a matter to the Securiv Council, neither of which
has been precludedby the Montreal Convention.
2.49. Moreover,none of the provisionsof theMontrealConventioncited by Libya can possibly
supportLibya'sclaims. Withrespectto the provisions other than Article 11, none of these provisions
impose obligations on the United States relevantto this case. The generalobligation imposedon the
United Statesunder Article 11has manifestlybeen met,and, in any event,does not support the basic
claim that Libya is bringing in this case.
2.50. Foral1these reasons,the Court should find that it does not have jurisdiction to entertain
Libya'sclaims under Article 14of the Montreal Convention.
2.51. Mr.President, Membersof the Court,1thank you for your attention. 1ask that you now
cal1upon Mr. Crook to continue the United States presentation.
The ACTING PRESIDENT: Thank you, Dr. Murphy. 1now givethefloorto Mr. Crook.Please
let me know when you wish to break off your argument for the day. Mr. CROOK: 1 will Mr. President. 1 will be beginning a long presentation.l try to
complete my first point.hat should be very close to 1 o'clock. If it takes me a moment or two
longer, 1hope 1could have the indulgenceof the Court.
Mr. President, Membersof the Court.
3.1. It is a great honour formeto appear beforeyou on behalf ofthe United Statesof America.
3.2. Dr. Murphy has just shown how Libya does not have valid claims under the Montreal
Convention entitling it to relief from this Court. 1will now show how,even if the Conventionmight
be applied in this case, any claimsby Libyar it have been supplanted by binding resolutionsof
the Security Council adoptedder ChapterVI1of the Charter. As a result, this disputeis no longer
.J
a dispute regarding the MontrealConvention over which this Court hasjurisdiction. Moreover,even
ifthe Courthadjurisdiction,sebindingSecurityCouncilresolutionswouldprecludetherelief sought
by Libya. They would thus render Libya'srequests inadmissible.
3.3. Mypresentationwill havefour parts, of whichll try to complete the firstthis morning.
1 will first review the specific legal rules made applicable to this dispute by Security Council
resolutions, notably resolutions 748 and883. Second, 1will review how the rules created by those
resolutions are binding on Libya and al1other Members of the United Nations, in particular under
Articles25,48 and 103of the Charter. Third,1will answer Libya's claims thattheseresolutionswere
not validly adoptedand showhow they were proper exercise of powersthat the Charter vests sol-ly
in the Security Council. Fourth,1will showhow, even if the Court hadjurisdiction, and foundthese
claims to be admissible, the Court should nevertheless declineto uphold them, sincethey have been
rendered moot by the Council'sdecisions.1. SECURITYCOUNCILRESOLUTIONS748 AND 883 ESTABLISH SPECIFIC LEGAL
RULES BINDING ON LIBYA ANDTHE UNITEDSTATES.
3.4. Inthis first part of my argument,1will review the specificobligationsthat apply in this case
as a result of actionsaken by the SecurityCouncil. 1will begin by recalling some of the procedural
history leading to the Council's actions.
3.5. Yesterday, Mr. Bethlehem of the British team discussed the events leading to the Security
Council'sseveral resolutions related to the bombing of Pan Am 103. 1 will not repeat that. 1will note
only a few key points.
3.6.TheCouncil'sfirstresolutionaddressingthechargesof Libya'sinvolvementinthe destruction
of Pan Am 103 was resolution 731, which was adopted unanimousZy by the Council on 21 January
1992 (US Exhibit 18; the Security Council debate is US Exhibit 19). In that resolution, al1fifteen
members of the Councilexpressedthemselves "deeplyconcemedover the results of the investigations,
which implicate officiaisof the Libyan Govemment" in the bombings of Pan Am 103and UTA 772.
The Council deplored "the fact that the Libyan Governmenthas not yet responded effectively" to the
French,Britishand United StatesGovemments'requestsforitscooperationinestablishingresponsibility
for those bombings. It urged Libya to respond fully to specificrequests from those three Govemments
contained in several Security Council documents. 1will briefly review the three key documents.
3.7. The first,Doc. Sl23308, US Exhibit 9), is the Declaration of the British and United States
Govemments issued soon after the Scottish and United States criminal charges were announced in
November 1991. The two Govemments called for Libyato surrenderfor trial the persons charged with
destroying Pan Am 103,to accept responsibility for their actions, to provide full disclosure, and to pay
appropriate compensation.
3.8. The second document (Doc. S/23306, US Exhibit 10) was a communiqué from the
Presidencyofthe French Republicand theFrench Ministryof ForeignAffairs. It demandedthat Libya - 34 -
produce evidenceandotherwiseco-operateinFrance's investigation of the bombing oUf TAflight772, .
which killed 171 peopleon 19 September 1989.
3.9.Thethird document(Doc.S123309,USExhibit 11)isatripartiteFrench/British/ünited States
declarationof27November 1991. In it,the three Governments"requirethat Libya complywith al1...
[their]demands,and, inaddition,that Libya commititself concretelyanddefinitivelyto ceaseal1forms
of terrorist action and1assistance to terrorist groups".
3.10. Through resolution73 1,the Security Council unanimouslyagreed upon these three calls
for specific actions by the Govemment of Libya as the proper criteria for assessing Libya'sfurther
conduct in relation to the fatal bombings of Pan Am 103 and UTA 772.
The Chronology Leading to Further Council Action
3.11. Mr.President, yesterday,Mr. Bethlehem also described the course of events in the first
three months of 1992. He showed how Libya'sbelated invocation ofthe Montreal Convention,and
its subsequentApplicationto this Court,were part of deliberatestrategyto forestallfurtheractionby
the Security Council. 1will not repeat that discussion, b1do ask that the Court bear in mind the
sequence of events that was describedthere.
3.12. Resolution731was adopted on 21 January 1992. It was clear then that the Council saw
the possibilityofurtheractionifLibyadidnotrespondappropriatelytotheresolution(e.g.,SRV.3033,
w
21 January 1992,p. 81, USExhibit 19). Libyadid not respond in a fashionsatisfactoryto the Council.
The first report of the Secretary-Generalto the Council on 11brua~ did not showthat Libya was
prepared to comply with resolution 731 (US Exhibit 20). On 3 March 1992,the Secretary-General
made a second report tothe Council, indicatingthat as of that date, resolution731 "hasnot yet been
complied with" (US Exhibit 21).
3.13. On the very same day, Libya filed its Application in this Court. Libya's subsequent
arguments made clear that the objective was to have this Court bar the United States and the -35 -
United Kingdom from exercising their rights to seek any further action by the SecurityCouncil (e.g.,
CR 9215,28 March 1992, at p. 52 [original] and 45 [translationfi.
3.14. Al1the while, however, Members of the Security Council were continuing to discuss and
negotiate concerning possible further actions with respect to Libya. The international press reported on
17 Marchthat France,the United KingdomandtheUnited Stateswerecirculatinga draftofaresolution
that, following negotiations,would become resolution 748. During the proceedings here in this Court
on 26, 27 and 28 March, both sides recognized that imminent action by the Security Council was
possible (case concerning QuestionsofInterpretationandApplication ofthe1971MontrealConvention
Arising Porn the AeriaIIncidentut Lockrbie, Order of 14 ApriI 1992, 1C.J Reports 1992, p. 124,
para. 32). Thus, resolution 748 was not a sudden or unexpected action taken because of the pending
proceedings in this Court. It was instead the conclusion of a process of discussion, negotiation,debate
and ultimately, action by the Security Council in pursuit of its responsibilities.
3.15. The Security Council of course recognized that Libya was seekingprovisionalmeasures to
preclude the United States andthe United Kingdomfrom seekingaction bythe Council atthe verytime
that the Council was considering measures against Libya. The Security Council decided that it was
nevertheless necessary for it to act. The President of the Council, the Representative of Venezuela,
described the situation clearly:
'[Bloth the Council and the International Court of Justice are independent of each
other ... [Elachofthese organs inthe UnitedNations systemmustexercise itsjurisdiction
autonomously . . [Tlhe absence of a simultaneous decision cannot inhibit the actions
which the one or the other may take, and . ..their actions do not imply a disregard for
their respective responsibilities." (SPV. 3063, 31 March 1992, p. 84, US Exhibit 22.)
The Role of Individual Council Members
3.16. Mr.President,resolution 748establishesthe legal rulesthat must be applied inthis dispute.
It was adopted by ten votes, with no negative votes and five abstentions. Austria, Belgium, Ecuador,
France, Hungary, Japan, Russia, the United Kingdom, the United States and Venezuela voted for theresolution.
3.17. Libya consistently ignoresor dismissesthe role and responsibilityof the many Members
of the Security Councilwho, togetherwith theUnited States,joined to addresstheLockerbie andUTA
bombings. This is incorrect, both factually and legally. The United States did not andcould notact
alone in adopting anyof these resolutions.Thesemeasures were adopted bythe Councilonly because
a number of conscientious States, each one bearing significant responsibilities as a Member of the
SecurityCouncil, concludedthat they werenecessaryand appropriate. Libya'syargumentsare
a distortion. They are also a slightto the many States that worked together and to common
in the Council.
A Chapter VI1 Resolution.
3.18.Inadoptingresolution 748,theCouncilclearlywasexercisingitspowersunderChapter VII.
It stated so explicitly. It found explicitly that Libya'sfailure "to demonstrateby concrete actions its
renunciationof terrorism and in particular its continued failureto respond hlly and effectivelyto the
requests in resolution ... constitute a threat to internationalpeace and seThe relevant
operative paragraphs begin with the verb "decides". It is clear that resolution 748 exercises the
Council'smandatory authorityder Chapter VI1of the Charter.
Mr.President, 1have not quite completedmy first point,but 1think this might bean opportune
-
time to break. 1 look forward to coming back tomorrowmorningto continue the discussionto show
why these resolutions impose binding obligationsthat are applicable in these proceedings.
The ACTING PRESIDENT: Thank you, Mr. Crook. The Court will now adjourn until
10o'clock tomorrow morning.
The Court rose a1.05p.m.
Public sitting held on Tuesday 14 October 1997, at 11.45 a.m., at the Peace Palace, Vice-President Weeramantry, Acting President, presiding