Non- Corrigé
Uncorrected
International Court Cour internationale
of Justice de Justice
THEHAGUE LA HAYE
Pub1ic si tting
held on Monday 13 ûctober 1997, at 10 a.m., at the Peace Palace,
Vice-President Weeramantry, Acting President, presiding
in the case concerning Questions of Lnterpretation and Application of the
1971 Montreal Convention arising fram the Aerial Lncident at Lockerbie
(Libyan Arab J-riya v. United Kingùcnn)
Pre1hinaz-y Objections
Audience publique
tenue le lundi 13 octobre 1997, à 10 heures, au Palais de la Paix,
sous la présidence de M. Weeramantzy, vice-président,
faisant fonction de président
en 1 'affaire relati~ à des Questions d 'interprétation et d'application
de la ccznvention de Montréai de 1971 résultant de 1 'incident aérien de
Lockerbie (Jamahiriya arabe libyenne c. Royaume-Uni)
Ekceptions préliminaires
CoMPTF, RENDUPresent: Vice-PresidentWeerarnantry Acting President
President Schwebel
Judges Cda
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Parra-Aranguren
Kooijmans
Rezek
Judgesad hoc Sir RobertJennings
El-Kosheri
Registrar Valencia-OspinaPrésents : M. Weeramantry,vice-présidenf taisantfonctionde
président enl'affaire
M. Schwebel, présidentde la Cour
MM. Oda
Bedjaoili
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Korm
Vereshchetin
Parra-Aranguren
Kooijmans
Rezek,juges
Sir RobertJennings
M. El-Kosheri,jugesad hoc
M. Valencia-Ospinag reffierThe Govenrment of the Libyan Arab Jamahiriya is representeà by:
H. E. Mr. HamedAhrned Elhouderi, Ambassador S,ecretaryof the People's
Officeof the Great SocialisP teople'sLibyan Arab Jamahiriya to
the Netherlands,
as Agent;
Mr. MohamedA. Aljady,
Mr .AbdulhamidRaeid,
as Counsel;
Mr. AbdelrazegEl-Murtadi Suleiman,Professorof PublicInternational
Law, Facultyof Law,University of Benghazi,
Mr. Ian Brownlie,C.B.E., Q.C.,F.B.A.,ChicheleProfessor of Public
International Law,University of Oxford,
Mr. Jean Salmon, Professor of Law emeritus, Universitélibrede
Bruxelles,
Mr. Eric Suy, Professor of International Law,Catholic Universit oyf
Louvain (K.U. Leuven) ,
Mr. EricDavid,Professor of Law,Université librd ee Bruxelles,
as Counsel and Advoca te;
Mr. NicolasAngelet,Principal Assistant,Facultyof Law,Catholic
Universityof Louvain (K.U.Leuven),
Mrs. Barbara Delcourt, Assistant, Faculto yf Social,Political and
Econhc Sciences, Universitélibrede Bruxelles; ResearchFellow,
Centreof InternationaL law and Institute of EuropeanStudies,
Universitélibrede Bruxelles,
Mr. MohamedAwad,
Ihe Gaverirrmenof the ünited Kingdcan of GreatBritain and
BbrtherrnIreland is representeà by:
Sir FranklinBermanK.C.M.G.,
Q.C., LegalAdviserto the Foreign
and Commonwealth Office,
as Agent and Counsel;
The RightHonourable the Lord Hardie Q.C.,The LordAdvocate
for Scotland,Le Gowernement de la Jamahiriyaarabe libyenne sera représentépar :
S. Exc.M. HamedAhmedElhouderi, ambassadeur secrétaire du bureau
populairede la GramleJamahiriya arabe libyenne populais recialiste
aux Pays-Bas,
camne agent;
M. MohamedA. Aljady,
M. AbdulhamidRaied,
canne conseils;
M. AbdelrazegEl-Murtadi Suleiman, professeur de droitinternational
public à la faculté de droit d l'université de Benghazi,
M. Ian Brownlie,C.B.E.,Q.C., F.B.A., professeurde droitinternational
public,titulairede la chaireChichele à l'universitéd'Oxford,
M. Jean Salmon,professeur émérite d droit à l'Universitéde Bruxelles,
M. EricSuy,professeur de droit international à l'universitécatholique
de Louvain(K.U.Leuven),
M. EricDavid,professeur de droit à l'université librede Bruxelles,
canane consei 1s et avoc;ts
M. NicolasAngelet,premier assistan t la faculté de droitde
l'université catholiquede Louvain (K.U.Leuven),
Mme Barbara Delcourt,assistante à la facultédes sciencessociales,
politiqueset économiques de l'université librd ee Bruxelles,
collaboratrice scientifiq aueCentre de droit internationaelt
à l'Institut d'étudeseuropéennes de l'universi tibrede Bruxelles,
M. Mohamed Awad,
canne consei 11ers.
Le Gomement du Royaume-Uniseza représentépar :
Sir Franklin Berman,K.C.M.G., Q.C.,conseiller juridiqu deu Foreign
and CommonwealtO hffice,
cme agent et conseil;
le trèshonorableLord Hardie, Q.C.p ,rocureurgénéraldlEcosse,ProfessorChristopher Greenwood,Professorof International Law at
the LondonSchoolof Economics,
Mr. DanielBethlehem,
Mr. AnthonyAust C.M.G.,
as DeputyAgent;
Mr. PatrickLayden T.D.,
Mr. NormanMcFadyen ,
Ms SarahMoore,
Ms SusanHulton,
as Advisers.M. Christopher Greenwd, professeur de droit internationa àlla
LondonSchoolof Economics,
M. Daniel Bethlehem,
cme consei 1s;
M. AnthonyAust,C.M.G.,
cme agent adjoint ;
M. PatrickLayden,T.D.,
M. Norman McFadyen,
Mne SarahMoore,
Mme SusanHulton,
cme consei 11ers. -8-
The VICE-PRESIDENT, Acting President: Pleasebe seated. Thesitting is open. TheCourt
meetstoday, pursuantto Article 79,paragraph 4, of the Rules of Court, to hearthe oral statements
of the Parties on Preliminary Objections raised in two cases by the respondent: the
United Kingdom of Great Britain and Northern Ireland in the case conceming Questions of
Interpretation and Application ofthe 1971 Montreal Convention arisingfrom the Aerial Incident
ut Lockerbie (LibyanArab Jamahiriyav. UnitedKingdom), and the United States of America in
the case concerning Questions of InterpretationandApplication of the 1971Montreal Convention
arisingfrom theAerial IncidentutLockerbie(LibyanArabJamahiriya v. UnitedStatesofAmerica).
Although there are two separate proceedings, instituted bytwo separate applications, the
position ofthe applicant in each caseis theame. The same holds me of the applicant'sposition w
as respondent to the Preliminary Objections in each case, for its responses to the two sets of
PreliminaryObjectionsproceedonsubstantiallythesamebasis. Consequently,theCourtconsidered
it necessary to organize the course of the oral proceedings in this phase of the case inuch a
manner as to avoid unnecessary duplication of arguments. Such steps had already been taken
during the previous phase of these cases in the proceedings relating to the requests for interim
measures. Afier having consultedthe Govemments concerned,the Court has decidedto proceed
as follows: it will first hear oral argumentfromthe Unitedingdom on the objectionsit raisedin
the case of Libya v. UnitedKingdom, which was the first of these two cases to be entered in the
General List; it will then hear oral argument from the United States of America in the case of 1
Libya v. United States. Finally, it will hear the response from Libya tothese arguments in both
cases.
Article32 of the Rules of Court providesthat, if the President of the Court is a national of
one of the parties in a case, he shallnot exercisethe function of the presidency in respect of that
case. The President of the Court, Judge Schwebel,will therefore not be exercising the functions
of the presidency in the case between Libya and the United States of America. Thoughthe case
between Libya and the United Kingdom is not covered by this article, President Schwebelhas
thought it appropriate that he should not exercisethe functions of the presidency in that case as - 9 -
well. It falls to me, then, in my capacity as Vice-President of the Court, to exercisethe functions
of the presidency in both cases, in accordance with Article 13 of the Rules of Court.
TheRegistrar informedthe Partiesto thetwo cases, by letters dated23 November 1995,that,
in accordance with Article 24, paragraph 1, of the Statute of the Court, Judge Higgins had asked
to be excused from participation inbothcases, sinceprior to her election to the Court, shehad acted
as Counsel for the United Kingdom in the case of Libya v. United Kingdom. By a letter dated
5 March 1997,the DeputyAgent ofthe United Kingdom, referringto Articles 31ofthe Statuteand
37 of the Rules of Court, informed the Court of its intention to choose Sir Robert Jennings to sit
as judge ad hoc in the case of Libya v. United Kingdom, in accordance with Article 37,
paragraph 1, of the Rules of Court, which provides that if
"a Member of the Court having the nationality of one of the parties is or becornes unable to
sit inny phase of the case, that party shah thereupon become entitledto choose ajudge ad
hoc within a tirne-limit to be fixed by the Court".
In accordance with Article 35, paragraph 3, of the Rules of Court, a copy of that letter was
communicated by the Registrar to the Libyan Government, which was informedthat 7 April 1997
had been fixed as the time-limit within which Libya could submit such observations as it might
wish to make. No observation fromthe Libyan Government reached the Courtwithin the time-limit
thus fixed. By letters dated 30 May 1997,the Registrar informed Libya andthe United Kingdom,
as well as the United States of America, that the Court was prepared to accept fi-omthem, no later
than 30 June 1997,any observations they wished to make in respect of Article 31,paragraph 5, of
the Statute. That clause is worded as follows:
"Shouldthere be several parties in the same interest,they shall,for the purpose
of the preceding provisions [relating to the choice ofjudges ad hoc], be reckoned as
one party only. Any doubt upon this point shall be settled by the decision of the
Court."
Eachof the threeGovernments submittedobservationsto the Courtwithintheprescribedtime-limit.
By letters of 16 September 1997,the Registrar informed Libya and the United Kingdom, as well
as the United States, that the Court had, after deliberating on the question, found that the
appointment of the judge ad hoc by the United Kingdom was admissible inthis phase of the case; and that Sir Robert Jennings would therefore sit on the Bench for the present hearings in the case
of Libya v. UnitedKingdom,and would take part in the deliberation.
1come now to the pleasant duty of installing Sir Robert Jennings as a Judge ad hoc in the
case between Libya and the United Kingdom. There is clearly no need for any introduction of this
eminent personality,well known to the Court and to you all. Sir Robert, after a long and brilliant
career as an academic and as a highly regarded Counsel andadviser of various governments, was
a Memberof this Court from 1982to 1995,and was its distinguishedPresident from 1991to 1994.
We are both honoured and delighted to have him amongst us once more. Article 20 of the Statute
provides that every Member of the Court shall, before taking up his duties, make a solemn
declaration in opencourt that he will exercisehis powerspartiallyandconscientiously; pursuant W
to Article 31,paragraph 6,ofthe Statute,that provisionalsoappliestojudges adhoc. Furthermore,
Article 8, paragraph 3, of the Rules of Court specifies that judges ad hoc are to make the
declaration in relation to any case in which they are participating, "even if they have already done
so in a previous case". Accordingly, 1 now invite Sir Robert Jennings to make the solemn
declaration provided for by Article 20 of the Statute and 1ask you al1to rise.
Sir ROBERT JENNINGS:
"1solemnly declare that 1will perform my duties and exercise my powers as
judge honourably, faithfully, impartially and conscientiously."
The ACTING PRESIDENT: Thank you. Please be seated. 1place on record the solemn J
declarationmade by Sir Robert Jennings and declare him duly installedasjudge ad hoc in the case
concerning Questions ofInterpretation and Applicationof the 1971MontrealConventionarising
fiom theAerial Incidentut Lockerbie(LibyanArab Jamahiriya v. UnitedKingdom)(Preliminary
Objections). .-
1 would point out, moreover that, since the Court does not include upon the Bench ajudge
of Libyannationality, Libya has, in each ofthetwo cases, availed itselfof its rightArticle 31,
paragraph 2, of the Statute, to proceed to the choice of ajudge ad hoc; Judge El Kosheri, chosen - 11 -
to sit in this capacity in both cases, was duly installed in 1992, during the phase of these cases
devoted to the requests for the indication of provisionalmeasures.
The proceedings were initiated on 3 March 1992by the simultaneous filing in the Registry
of the Court of two separate applications by the Libyan Arab Jamahiriya, one against the
United Kingdom of Great Britain and Northern Ireland and the other against the
United States of America, regarding disputes which,according to the applications, relate to the
interpretation or application of the Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation, signed at Montreal on 23 September 1971. Both those applications refer
to the destruction, on 21 December 1988,over Lockerbie (Scotland), of Pan Am flight 103, and
to charges against two Libyan nationals, brought respectively bythe LordAdvocate of Scotland and
a United States Grand Jury in November 1991,according to which those two Libyan nationals,
inter alia, caused a bomb to be placed aboardthe aircraft, which bomb had exploded causing the
aeroplane to crash.
In each of its applications, Libyastatesthat the allegations contained inthe charge constitute
an offence under Article 1 of the 1971 Montreal Convention, that that Convention is the only
applicable convention in force between the Parties dealing with such offences and that the Parties
are bound to act in accordancewith that Convention in al1questions relating to Pan Am flight 103
andthe accused. Libya maintains that, whereas it has fully complied with al1its obligations under
the Montreal Convention - in particular by taking al1the necessary measures required bythe fact
that the accused were on itstemtory -, the United Kingdom and the United States have breached
and are continuing to breach their obligations - in particular by trying to prevent Libya from
establishing its legitimatejurisdiction overthematter, by puttingpressure on Libyato surrenderthe
accusedand by refusingto affordthe assistance requested bythe Libyanjudicial authorities in order
to enable them successfully to completethe criminal proceedings initiated bythem. At the end of
each of the applications, Libya requests the Court to adjudge and declare that the respondent
"is under a legal obligation immediatelyto cease and desist from such breaches and
from the use of any and al1force or threats against Libya, and from al1violations of
the sovereignty, territorial integrity and the political independence of Libya". Theapplicationsinvoke asthe basisforjurisdiction Article 14 (1)oftheMontreal Convention
which provides that:
"Any dispute between two or more Contracting States conceming the
interpretation or application of this Convention which cannot be settled through
negotiation, shall, at the request of one of them, be submittedto arbitration. If within
six months from the date of the request for arbitration, any one of those Parties are
unable to agree on the organization of the arbitration, any one of those Parties may
refer the dispute to the InternationalCourt of Justice by request in conformity with the
Statute of the Court."
On 3 March 1992,having filed its applications instituting proceedings, the Govemment of
the Libyan Arab Jamahiriya also submitted in each case a request for the indication of provisional
measures in accordance with Article 41 of the Statute of the Court. Those requests were, on the
one hand, for the prohibition of any action against Libya calculated to coerce Libya to surrender
the accused individuals, and, on the other, to ensure that no steps were taken that would prejudice
the rights of Libya with respect to legal proceedings pending before the Court. By Orders dated
14 April 1992, the Court, referring to resolution 748 (1992) adopted by the Security Council on
31 March 1992, found that the circumstances of the case were not such as to require the exercise
of its power, under Article 41 of the Statute, to indicate provisional measures.
By Orders of 19June 1992,the Courtfixed 20 December 1993asthetime-limitforthe filing
by Libya of a Memorial in each case, and 20 June 1995 as the time-limit for the filing by the
United Kingdom and the United States of America respectively of Counter-Memorials. The
Memorials were filed within the prescribed time-limits. Within the time-limits fixed for the filing
of Counter-Memorials,the United Kingdomandthe United Statesof America each filed Preliminary
Objections, on the jurisdiction of the Court and on the admissibility of the Application. The
procedure to be followed after preliminary objections have been filed is governed by Article 79,
paragraph 3, of the Rules of Court; under that provision, upon receipt by the Registry of a
preliminary objection, the proceedings are suspended and a special procedure has to be organized
to enable the Court to examine these objections. By Ordersof 22 September 1995,the Court fixed
22 December 1995 as the time-limit within which Libya could file written statements of its
observations and submissions on the Preliminary Objections raised respectively by the United - 13 -
Kingdom and the United States of America. Within the prescribed time-limits, Libya submitted
suchstatements, at the end of which it requested theCourt to reject the Preliminary Objections and
to proceed to the merits in each case.
By letterof 12 March 1992,the Registrarinformedthe Secretary-Generalof the International
CivilAviation Organisation(ICAO), in accordancewith Article 34,paragraph 3,ofthe Statute,that
the interpretation ofthe Montreal Convention was questioned in the two cases. By letter dated
19February 1996,the Registrar forwarded copiesof the written pleadings in accordance with that
provision and, referring to Article 69, paragraph 2, of the Rules of Court, specified that, if the
Organization wished to present written observations to the Court, at this stage, these should be
limited to questions of jurisdiction and admissibility. By letter dated 26 June 1996, the
Secretary-General of the Organization informed the Court that the Organization "had no
observationsto make forthe moment" but wishedto remain informedaboutthe progress of the two
cases, inorderto be able to determine whether itwould be appropriateto submitobservations later.
It now falls to the Court to hear the Parties on the questions relating to its jurisdiction and
the admissibility of the Application in each of the two cases. As indicated earlier, the Court will
first hear the United Kingdom in the case of Libya v. UnitedKingdom.
Before giving the floor to the Agent of the United Kingdom, 1must announce that, having
ascertained the views of the Parties, the Court has decided, in accordance with Article 53,
paragraph 2,of the Rules of Court, that the Preliminary Objections of the United Kingdom andthe
United States of America, and the observations and submissions of Libya on them will be made
accessible to the public. Annexes will be made available to public at the same time with the
exception of Number 16 of the U.K. Annexes.
1now give the floor to Sir Franklin Berman, Agent of the United Kingdom of Great Britain
and Northern Ireland.
Sir Franklin BERMAN: Mr. Acting President, Members of the Court, may it please the
Court: 1.l. It is as always an honour to appear before you as Agent for the Govemment of the
United Kingdom of Great Britain and Northem Ireland. It is a pleasure also to appear in that
capacity so soon after the previous occasion, even though 1 may on this occasion occupy the
somewhat less comfortablepositionof representingthe Respondent,defendingan actionbefore the
Court. May 1 however take this first opportunity that comes my way to offer my persona1
congratulations andthose of my Govemmentto you andto Judge Schwebelon your recentelection
to the offices of Vice-President and President of the Court, and to expressatisfactionat your
own presence inthe Presidential chair for the present proceedings? Yourdeep groundingin public
international law,together with your legal roots in a systemthat combineselements of Roman law
and of the common law, and the factthat you have writtenon Islamic law, makes you particularly w
well qualified to preside with understanding over a case in which Scottish criminal law and
procedure, treaty lawand the law ofthe United Nations Charterare intermingled in so unusualand
challenging a way. 1must also express my own particular and very persona1satisfaction at the
retum to your Bench of that eminently distinguished and much admired past President,
Sir Robert Jennings - even if not seated in his accustomed place!
1.2. Mr.President,1describedOurpositionbeforetheCourtasthat ofRespondent,defending
an action brought against the United Kingdom by the Govemment of Libya, but of course we
appear today to present as you haveaid OurPreliminary Objections,inwhich we ask the Court to
dismiss the Libyan action at the preliminary stage; thus Ourposition combines that of Applicant
I
and Respondent. Our Preliminary Objections were filed in written form as required, and we shall
be referring the Court to them and to the Annexes as the oral argument proceeds. We intend
throughout the argument to refer to Ourwritten pleading as 'the United Kingdom's Preliminary
Objections' andto the Libyan commentsand observationson them as 'the Libyan Response'. To
spare the Court's time we propose alsonot to spell out in full the references to al1authorities or
documents we refer to or quote from, but insteadto includethem in the written texts we hand in
to the Registrar. May 1 now introduce to the Court Our legal team? - Lord Hardie, the
Lord Advocate, Professor Christopher Greenwood and Mr. Daniel Bethlehem as Counsel;
LUWCR97/16 - 15 -
Mr. Anthony Aust of the Foreign & Commonwealth Office as Deputy Agent; and
Mr. Patrick Layden of the LordAdvocate's Department,Mr.Norman McFadyen,the Deputy Crown
Agent, Ms Susan Hulton and Miss Sarah Moore, of the Foreign & Commonwealth Office, as
Advisers. 1shall explain to the Court in a moment how Ouroral argument will be divided up,but
before doing so must make a number of preliminary points.
1.3.Let me start by thanking you, Mr. President, andthe Court for the flexibility you have
shown inmaking arrangementsfor hearing togetherthese oral proceedingsand those inthe separate
case brought against the United States of America. Wehave made some sacrifices in accepting
them, but are convinced that the arrangements taken as a whole will operate for the convenience
of the Parties as well as of the Court, and will do Ourutrnost to present Ourcase concisely and to
conform to the agreed timetable. We are conscious in particular that what we have put before the
Court are preliminary issues, and will proceed accordingly,avoiding issues of substance thatcan,
and should, only be tried on the merits- if, of course, the case does proceed to a merits phase.
1.4. Our substantive Submissions are that the Court should adjudge and declare that:
it lacks jurisdiction over the claims brought against the United Kingdom by the Libyan Arab
Jamahiriya ancilorthe claims brought against the United Kingdom by the Libyan Arab Jamahiriya
are inadmissible. We askthe Court to dismiss accordinglythe proceedings instituted by the Libyan
Application.
1.5. The Court will observe that these Submissions are put forward both cumulatively and
in the alternative, and that therst goes to thejurisdiction of the Court under Article 36(1) of the
Statute,while the secondgoes to what might be called admissibility more broadly under Article 79
of the Rules. More precisely,the Objection to the Court'sjurisdiction is based uponthe fact that,
in Oursubmission, there is no substantive dispute in any recognized sense of the term between the
Parties relatingto the interpretation orto the application ofthereal Convention,that being the
treaty on which the Applicant seeks to found the jurisdiction of the Court. We will show:
that Libya has not been able to point to any conduct of the United Kingdom which can plausibly
be maintained is a violation ofthe Montreal Convention; andthat the conduct Libya complains of - 16-
is either not that of the United Kingdom at al1or is conduct for which the United Kingdom does
not cars, legalresponsibility. In short what theApplicant is seeking bythese proceedings is simply
not a Montreal Convention matter, but is a scarcelyveiled attempt to frustratethe exercise by the
Security Council of its responsibilities under the United Nations Charter. Some of the argument
was before the Court already in the 1992 proceedings on Libya's application for Provisional
Measures of Protection. If the Court upholds OurSubmission, itwill of course dismiss the Libyan
Application for want of jurisdiction.
1.6. We will also show however (and this is Oursecond Objection) that what Libya claims
to be the issue or issues in dispute between it and the United Kingdom are now regulated by
decisions of the SecurityCouncil, taken under Chapter VI1 of the Charter of the United Nations, u'
which are binding on both Parties and that (if there is any conflict between what the Resolutions
require and rights or obligations alleged toarise under the Montreal Convention)the Resolutions
have overridingeffect inaccordance with Article 103of the Charter. It follows, in Oursubmission,
that the relief which Libya seeks from the Court under the Montreal Convention is not open to it,
and that the Court should therefore exercise its power to declare the Libyan Application
inadmissible.
1.7. Webelieve,Mr.President,that both ofthese are Objectionsof an essentiallypreliminary
character, and we ask the Court for a decision on them under Article 79 of the Rules before any
further proceedings take place on the merits. 1 need Sayno more in this respect about the first
'crr
Objection relating to jurisdictions since it is self-evident why it is desirable that an Objection on
jurisdictional grounds should be disposed of as a preliminary issue. In Ourview, the same goes for
the second Objection which is based on broader admissibility grounds. 1would however add one
fûrther factor for the Court's consideration. In Ourview it is a factor of the greatest importance.
1.S. At the heart of the Libyan case lies the prosecution ofthe two Libyan citizenswho are
accused of the Lockerbie bombing. This by no means exhausts the issues we will ask the Court
to take into account, but it lies at the heart of Libya's case. It would seem that there is no issue
between the Parties that the accused must stand trial; the only issue is where. The requirement - 17-
that they stand trial is moreover an essential part of the Resolutions of the Security Council. It
musttherefore be incumbenton the Parties andonthe Court to conductthis casewith that objective
in mind and certainly not to create any obstaclethat may stand in its way. It is also clear that the
onlyway in which the evidence againstthe accused can be fülly tested and their guilt or innocence
established is in a criminal trial offering al1the necessary guarantees of fairness.
1.9. Against that background, we believe that the most carefül attention must be paid to the
relationship betweenthe proceedings inthis case andan eventual trial of the accused. It seems to
us self-evident that nothing must be done which wouldjeopardize a trial being held, and by the
sametoken that nothing must be donewhich wouldjeopardize the rights of the accusedwhen facing
trial. The Lord Advocate will have more to Sayabout this later on.
1.10. We cannot of course be certain at this stage how future stages of this case might
develop. 1would be remiss however if 1did not alert theCourt to the possibility that it might face
serious difficulty in trying the Libyan claims on their merits. The difficulty will arise if the
production of evidence that the Court felt it needed in order to try the issues fairly ran the risk of
prejudicing a criminal trial of the accused. This pointis of course a different one from the sheer
difficulty of dealing with complex factualandforensicevidenceunder the procedures ofthis Court,
towhichtheUnited Kingdom has alreadydrawnattentionin itsPreliminaryObjectionsthemselves'.
1may say that for present purposes we for Ourpart have found it possibleto cover the facts in
outline only, but we cannot be sure that that would still be so at a merits stage.We therefore feel
under an obligation to put these points before the Court now, inasmuch as they constitute in Our
submission a weighty reason why the Court shoulddetermine these Objections if at al1possible as
a preliminary question at a preliminary stage.
1.11. So much for background, Mr. President. As to substance the United Kingdom's
argument will be deployed as follows. The Lord Advocate willopen with the factual background
and the criminal investigation into the Lockerbie incident. He will explain the Scottish criminal
' Paragraphs 2.105-2.107
LUWCR97116 - 18 -
process and the safeguardsthat protect the inherent right of the accused to a fair trial, and he will
describe to the Court the special arrangements the Scottish authorities are prepared to make to
ensure that in this case the particular interest of the international community in the fairness of the
trial islly respected. Againstthat background and againstthe backgroundof Libya's established
record of encouragement, support and participation in internationalterrorism, he wildetail alsothe
efforts made by the United Kingdom to secure the presence of the accused fortrial and the reasons
why, when those efforts did not succeed, the Govemment of the United Kingdom referred the
resulting situation to the United Nations SecurityCouncil.
1.12. Thereafter Mr. Bethlehem will take the Court through the three directly relevant
Resolutions of the Security Council, but against the background of the Security Council's long \v'
history of concernwith internationalterrorism, notably terrorism directed against internationalcivil
aviation, because of the threat it poses to international peace and security, and against the
background also of the Security Council's prior interest in the Lockerbie incident itself. He will
draw the Court's attention to the very specific chronology of the stepstaken by Libya in relation
to the proceedings before the Security Council, and the great importance they have for a proper
understanding of the present case before the Court.
1.13. Professor Greenwood will then deal with the requirements of Article 14, paragraph
1,of the Montreal Convention on which Libya seeksto foundthejurisdiction ofthe Court. He will
show that Libya's Application fails to fulfil the requirements of that jurisdictional clause and that *
Libya has still five-and-a-half years after first suddenly invoking the Montreal Convention failed
either in its dealings with the United Kingdom or before the Court to show the existence of a
dispute under that Convention which is thus capable of falling within thejurisdictional clause.
1.14. Lord Hardie will then conclude the legal argument by showing what bearing the
requirements of the Security Council have on the issues Libya has brought before the Court; by
showing that the Security Council resolutions have overriding force for both Parties and thus
exclude the relief which Libya is seeking from the Court, and that the Court should accordingly
declare the Libyan Application inadmissibleirrespective of anyfindingastojurisdiction underthe -19-
MontrealConvention. He willdraw particular attention,again,tothe chronology of Libyanactions,
and to its importance for the questions facing the Court. And 1will then conclude with a short
summary and resuméof the United Kingdom's case.
1.15. May 1 however,Mr. President, elaborateonjust two aspectsofthe above? 1mentioned
that the Lord Advocate would be dealing, amongst other things, withthe factual background to the
dispute. It is for me, however, as Agent, to take up one aspect of the Libyan allegations against
the United Kingdom. In 1992,at the time of the hearings on the Libyan request for provisional
measures of protection, the air was thick with dire predictions that the United Kingdom was
threatening the imminent resort to force in pursuit of its objectivesover the Lockerbie affair. The
accusation wastotally without foundation then, andthe courseof events inthe five or soyears since
then has proved this beyond any doubt. And yet Ouropponents continue doggedly to trot it out:
in the Libyan Memorial in 1993 and yet again in the Libyan Response at the end of 1995.
Mr. President, to maintain the accusation without the slightest shred of proof or even probability
is nothing lessthan shameful. It ought now in al1conscience to be withdrawn, and 1cal1on Our
opponents to do so before the Court.
1.16. My final point, Mr. President, relates to the second Preliminary Objection, in which
we ask the Court to rule that the intervening resolutions of the SecurityCouncil have rendered the
Libyan claims without object in consequence of which the Court should dismiss them. The Lord
Advocatewill elaborate the legal argument tomorrow. But let me preface his treatment with some
introductory remarks. The United Kingdom is acutely consciousthat this head of its Preliminary
Objections leadsthe Court ont0 exceedingly delicate and important ground. The United Kingdom
does so soberly and in full consciousness of the significance of the issues involved. Our sole
motive is the proper operation of the system laid down in the United Nations Charter. The
United Kingdom is of coursedeeply attachedto the standingandjudicial prerogativesofthis Court,
and if 1may Sayso it regularly demonstrates that attachment by its deeds as well as in words; we
recognize that the particular function performed by the Court is a significant element in the
maintenance of international peace and security. The United Kingdom must be conscious at the -20 -
sametime of the special and particularburden which the Charter layson the SecurityCouncil for
the maintenance of internationalpeace and security,and of the responsibilitieswhich it itself bears
both as a Member of the United Nations and in particular as a Permanent Member of the
Security Council.
1.17. It is the Unitedingdom'sfirm belief that the roles of the Courtand of the Council
do not stand in opposition to one another,but complement one anotherin a comprehensivesystem
for the maintenance of internationalpeaceand security. We are confidentthereforethat thereis in
this case a proper interpretationof that Charter system which respects the functionsof bothCourt
and Council in relation to one another and in relation to the particular issues of international
terrorism andthe MontrealConvention. Sowhile we are aware ofthe controversyandhighdrama W
that has been createdin some legalcircles about the present proceedingsand aboutthe issueofthe
reviewability of decisionsof the Security Council,we do not ourselvesview matters in that light,
as if this were some battle betweenthe Titans in whichone or the other must emerge victor. We
are not even sure that anbstractgeneral issueof Courtversus Councilpresentsitself at al1in this
case. We do not, as the late Judge Lachs aptly put it, believe in a "blinkered parallelism of
functions" between the Counciland the Court, but in a ccfniitfulinteraction".
1.18. Mr. President, with yourleave 1will now ask Lord Hardie to address the Court.
The ACTING PRESIDENT: Thank you, Sir Franklin. 1 give the floor now to the
Lord Advocate, Lord Hardie. I
Lord HARDIE: Mr. President, Members of the Court,
Legal, Factual and PolicyIssues
2.1. It is a distinct honourfor me to appear before youtoday. The Government1represent
took office just five months ago. And they have publicly pledged support for this Court as an
institution and to the rule of law in the United Kingdom's international relations. Despite the
United Kingdom's long-standingattachmentto this Court and to its compulsoryjurisdiction,am
the first Lord Advocateto appear before you, although one ofmy predecessors Lord Rodgerof
LUWCR97116 - 21 -
Earlsfeny - appeared when he was Solicitor General for Scotland. As Lord Advocate, that is as
the senior Law Officer of the Crown in Scotland and a Minister of the Government of the
United Kingdom, 1will have something to Sayabout my constitutional functionsand about their
connectionwith the prosecutionof the two accused persons which liesat the heartof this case. But
1 appear before you today not in that specific capacity, but as counsel for the United Kingdom to
expound and explain OurPreliminary Objections.
2.2. The United Kingdom's caseis in essencevery simple. It starts fromthe fact that Libya
is seeking from the Court certain specific relief under the Montreal Convention. 1 have no
intention, however, of going into the nature of that relief, as that would be largelybe atter for
the merits - if the case were ever to reach that stage. 1intend, therefore, to limit my argument
to issuesof a preliminary character and will endeavour to avoid introducingextraneous material or
straying into the underlying issues of substance.
2.3. Mr. President, the 'UnitedKingdom's arguments are the following: $rst, when one
examines the matter there is no real dispute between the Applicant and the Respondent under the
MontrealConvention; andsecond,even ifthere were someresidualmatter indispute betweenthem
under the Convention, the point in issue is coveredby binding resolutions of theSecurity Council.
2.4. We shall concentrate Ourarguments before you today and tomorrow on those two
essential points. But first 1have to introduce some preliminary matters in orderto ensure that this
litigation is seen in its proper context. 1will keep this to the minimum and willnot stray intothe
merits. 1 am, however, obliged to Saysomething about the facts of the case and something about
the nature of criminal proceedings under the Scottish legal system.
Importance of the facts
2.5. 1start with the facts, both because they are essential to a proper understanding ofthe
issues before this Court and because of some strange assertions in the Libyan Response. Libya
complainsabout the very presence in OurPreliminary Objectionsof a sectiondealing with the facts
of the case. These are said to have nothing to do with the matters actually before the Court
(namely, the interpretation andapplication of the Montreal Convention), butto be an attempt by -22 -
us to distort the issues by use of rhetorical and ideological arguments, which Libya represents as
a "strategy of deceptionn'.
2.6. This is an extraordinary complaint to make. 1s Libya really saying that this
Court should be decidingthis case as ifit were some wholly abstract issue and in deliberate
disregard of its factual context? Law does not operate in a vacuum. It is to facts which
the law has to be applied. In the present case - even though we are only at the
Preliminary Objections stage - the Court needs to have a full understanding of the
relevant facts in order to appreciate the arguments of both sides and to see the case in its
proper context. For example,the submissions by Professor Greenwood onjurisdiction will
rely not only on analysis of legal texts and principles but on the conduct of Libya and the 1'
United Kingdom at the relevant times. Similarly, Libya claims that mandatory resolutions
of the Security Council are invalid. Although a surprising claim, it has to be answered.
For this purpose it is necessary not onlyto analyse the powers conferred on the Council
by the Charter, but also thepractice of the Council and, in particular, how it has responded
to the threat posed by terrorism to international peace and security.
2.7. 1am confident that the Court will see this case - like any other - as a case
embedded in its own peculiar facts, and will demand a proper appreciation of these facts;
but of course only so far as is necessary to dispose fairly of the preliminary issues before
it.
2.8. Therefore, 1will describe the crime and the criminai investigation. 1will then
explain the criminal process in Scotland and, in particular, the guarantees of a fair trial
afforded by the law of Scotland. 1will then, in conclusion, touch upon the record of
Libya's involvement in terrorism.
The crime
2.9. This case starts from and centres around a crime of massive proportions. On
21 December 1988, a Boeing 747 aircrafi of Pan American Ainvays exploded over the
small town of Lockerbie in Scotland, killing al1 259 passengers and crew and eleven - 23 -
residents of Lockerbie. Seventeen of the victims were babies or children under 16. This
was by far the worst terrorist incident which has ever affected my country. You can
imagine the impact which it made upon everyone in Scotland at the time. There can be
no doubt (nor is it contested) that the explosion was caused by a bomb which had been
introduced into one of the aircraft's luggage holds. There can be no doubt (nor, again, is
it contested) that that bomb was introduceddeliberately, with the intention of causing the
explosion. In other words, this was a majorterrorist outrage, one of the worst inthe entire
history of civil aviation. These are incontestable facts, which were to supply the essential
context to what followed, and which would have applied whoever the perpetrator or
perpetrators might have been, and whatever the purpose or motive might have been. But
there are other essential and incontestablefacts: the explosionhappened in British airspace,
the aircraft was American, and the innocent passengers, crew and local residents who
perished were of 21 nationalities. That gave the tragedy and the subsequent criminal
investigation an undeniably international dimension. As a major incident of international
terrorism, it was automatically transfonned fiom one of purely Scottish, or purely British,
concern into one of international concern.
2.10. 1notice, however, Mr. President,that the Libyan response takes offence at our
use of the word "international" to describe the investigation. Of course the Scottish
criminal investigation was "international" - necessarily so by reason of the international
elements of the crime. It therefore involved the CO-operationand assistance of various
official and judicial bodies in a number of countries. But it was not an investigation
designed to satisfy other Governrnents or the world cornmunity. Indeed, it was not
designed to "satisfj" the British Govemment either. It was an investigation designed, like
any other criminal investigation, to uncover evidence and to allow the prosecuting
authorities to decide on that basis- applying the normal rules and principles of al1cases
- whether there was sufficientevidencetojusti@ bringing forma1criminal charges. What
we have then is not some quixotic or optional intervention by British authorities, still less - 24 -
one dishonestly designed as a pretext for political pressure against Libya. Faced with a
terroristattack of this gravity, any responsible govemment is under a duty to ensure that
there is a serious, determined and complete criminal investigation, and at the same time to
meet the inevitable and natural demandon governrnentscollectivelythat they act resolutely
and decisively to meet the menace of international terrorism, especially that affecting
international civil aviation.
2.11. If we are agreed thus far, Mr. President, then it follows that the demand that
those believed to be responsible for such acts be found and brought to trial is both natural
and entirelyjustifiable. And that that demand is heard as loudly fiom amongst the wider
international community as it was - and is - fiom Scotland. For the British authorities .~r
to have been less determined and less persistent in pursuing the criminal investigation
would have been a breach of their duty towards the victims and their families of this
atrocity and at the same time an abdication of their international responsibilities. Any
responsible governrnent would have done the same. But let me make it plain to the Court
that the aims and intentions of the United Kingdom have throughout been simple and
straightfonvard so far as the Lockerbie disaster is concerned. Those aims are to identifj
those believed to be responsible for the outrage, and to ensure that they are brought
properly to trial; and, so far as international terrorism is concerned,to join resolutely with
other governments and internationalbodiesto ensurethat this menaceto internationalpeace
*(
and harmony is starnped out. 1make a distinction between the Lockerbie disaster as such
and the fight against international terrorism more broadly in order to bring home that the
criminal investigation was conducted in exactly the same way as any other investigation
into a serious crime in Scotland. Given that their case revolves entirely around the
question of the trial of the accused, it is beyond me to understand how the authors of the
Libyan response can maintain that the essentials of that criminal investigation and its
outcome have nothing to do with the issues before this Court. - 25 -
2.12. The details of the investigation are set out carefully in our Preliminary
Objections2. 1do not need to restate them now, though 1shall refer briefly to one or two of the
essential elements in developing my argument.
2.13. The scale of the investigation is demonstrated by the fact that the search area, over
which the wreckage and debris were strewn, extended to 2,190 square kilometres reaching across
to the east Coastof England. Within 15 hours of the crash 2,000 personnel from police, armed
forces, emergency services and other support agencies were dedicated to the disaster and its
aftermath. The ice-rink at Lockerbie had to be commandeered to serve as a temporary mortuary;
a huge shed at the Central Ammunition Depot at Longtown, Carlisle, some 20 miles from
Lockerbie, was taken over for the purpose of exarnining every aircraft part recovered, every single
item being laid out in an enormous jigsaw resulting in 80 per cent of the aircraft being pieced
together. A warehouse inLockerbiewas taken overto receiveand house itemsof property, luggage
and cargo, relate property to owners and identiS, items requiring further examination. It was only
after this painstaking process of gathering debris from the wreckage of houses and from open
country, and the careful sifting through of the enormous quantities of material, that 4,000 items
were retained for further examination or evidence.
2.14. Afier the week of the explosion, scientific evidence of the wreckage had established
that the aircraft had been destroyed by plastic explosive and that the disaster was, therefore, the
result of a criminal act. Thewide-ranging criminal investigation then spreadfar beyond Lockerbie,
and indeed far beyond Scotland and beyond the United Kingdom, to reach 70 different countries.
Judicial,prosecutingand investigatingagenciesfrommanycountries CO-operated inan investigation
which was of an unprecedented scale and my Government is grateful to those countries for that
cooperation.
2.15. The conclusions of the investigation were announced on 14 November 1991. An
outline of the Case against the accused is inOurPreliminary objections3. A fuller account of
the evidence against the accused was transmitted to the Libyan Governent that very sarne
day, together with a request for the surrender of the two accused to stand trial in Scotland. - 26 -
This Statement of Facts was placed before the Court at the Provisional Measures stage as
a confïdential document and has been presented to the Court in the United Kingdom
documents4. 1will explain later why it has not been published other that being presented
to the Court5on such a confidential basis.
Scottish Criminal Proceedings
2.16. Mr. President, the Libyan response lacks any understanding of the essential
nature of Scottish criminal procedure, but makes much out of its misunderstanding. Since
it is so important to the case, 1will turn to offer a condensed description of the Scottish
criminal legal process. Much of what 1am going to Saywill not be new to Members of
the Cou., especially to those accustomed to criminal procedure as it operates in
cornmon-law, adversarial system.
2.17. As the Court is aware, within the United Kingdom, Scotland has its own
distinctive legal system, and it is within thejurisdiction of that system that the Lockerbie
crime has to be dealt with. The distinctive nature of the Scottish system for the
investigation and prosecution of crime in Scotland is again described in the Preliminary
Objections6. In its historical origins the Scottish system combines elements drawn fi-om
the civil law and elements drawn fi-omthe cornmon law and those of you fiom civil law
jurisdictions will be familiar with what is now said about the role of an officia1called the
Procurator Fiscal.
2.18. In Scotland, the local Procurator Fiscal is the prosecutor. For hundreds of
years, he has been responsible for the investigationof al1sudden and suspiciousdeaths and
for the investigation and prosecution of al1crimes arising in his district. In Scotland,
therefore,the police are subjectto the directionofthe Procurator Fiscal in the investigation
of crime. The Procurator Fiscal is, in fact, encouragedto go to the scene of al1suspicious
deaths and must take charge of arrangements for the initial investigation, particularly
arrangements for autopsies and scientific examinations. In the case of sudden deaths, the
Fiscal normally concludes that investigation without a public hearing. In some cases, - 27 -
however, he is required by statute, or by the Lord Advocate, to arrange for the holding of
a Fatal Accident Inquiry. This is held in public before a judge.
2.19. As 1have said,the Lockerbie investigationwas treated in exactlythe same way
as any other case. The Procurator Fiscal was contacted immediatelythe incident occurred
and went to the scene. He made arrangements for the holding of autopsies and gave
directions to the police on the conduct of their investigations. As in any homicide, he was
required to make reports to the Lord Advocate. As in any case of this nature, he was
required to consider whetherthe holding of a Fatal Accident Inquirywasnecessary andyou
will be aware that one was in fact held in the later part of 1990 into the earlier part of
1991. By that time, the criminal investigationhad not yet reachedthe stagewhere criminal
charges could be brought against named individuals, but it was very active and it was
necessary formy predecessorto considerwhetherthe Fatal Accident Inquiry couldproperly
proceed at that time. It is important, where a criminal prosecution may be cornmenced,
that nothing is done at a Fatal Accident Inquiry which may prejudice a prosecution. The
Lord Advocate concluded,nonetheless, that there was a need to establishthe circurnstances
surrounding the deaths, and in particular to examine publicly any deficiencies in airport
security, provided the Inquirydid not exploreany issues relevantto criminalresponsibility.
And we tum briefly to the office of Lord Advocate.
Offlce of the Lord Advocate
The Lord Advocate is appointed by the Queen on the recommendation of the
Prime Minister. One of the functions of the Lord Advocate is to advise the Governrnent
on al1questionsof civil law. An entirelyseparate function is that of prosecuting al1crimes
in Scotland and investigating al1sudden deaths. He carries out this latter function through
the local Procurators Fiscal. The Lord Advocate and the Procurators Fiscal are entirely
independent in carrying out that function and are not subject to any form of political
direction or control. Political considerations play no part in the decision to prosecute - 28-
particular cases, nor in the selection of counsel to represent the Crown in any particular
issue.
2.21 Since one of the matters which the Fatal Accident Inquiry was properly able
to explore was the adequacy of airport security arrangements and the role of relevant
Government Departrnents in relation to those arrangements, the then Lord Advocate, who
was appointed by a Conservative Government, appointed me to as Crown Counsel at the
Fatal Accident Inquiry to present most of the evidence. At that time 1was in practice at
the Scottish Bar and was known to be of a different political persuasion from the
Government. That was an indication of the exercise by the then Lord Advocate of his
independence in appointing someone of a different persuasion, particularly when a W
Government Department might well be criticized on security matters.
2.22. As 1have said, the Fatal Accident Inquiry was not concerned with issues of
criminal responsibility and 1 was not, at that time, given any detailed briefing on the
criminal investigation, nor was 1entitled to. 1was, however, able to gain a considerable
insightinto the Lockerbiedisaster, its effect ontheornmunityand its effect on the country
at large.1shall never forgetthe grimdetail of the evidencewhichwas givento the Inquiry
over many months, and 1 shall always remember, and 1would like again to pay tribute to
the touching and dignified presence - and in some cases participation - of the relatives
of the victims at that Inquiry.
2.23. When 1 was appointed Lord Advocate in May of this year 1 had, therefore,
some familiarity with the details of the Lockerbie tragedy, but naturally 1 wanted to be
briefed fùlly about the criminal case. 1am the fourth successive holder of the office of
Lord Advocate to consider this case. My three predecessors had been appointed under
Conservativeadministrations and 1hold office under the new Labour Government. Each
of us, exercising our independent judgement and responsibility, has concluded that the
evidencejustifies the criminal chargeswhich have beenbrought, so that it can be tested in
proper proceedings in court. It was for us and for us alone to make that decision. Nor is -29 -
it true that other leads suggesting that the crime was committed by others were not
followed up. Those claims by Libya are based on little more than newspaper stories.
Each of my predecessors made it clear - as1have made it clear and 1 am prepared to
repeat today for the avoidance of any doubt - that any new evidence will be considered
and any relevant line of inquiry suggested by such evidence will be pursued vigorously.
The criminal charges
2.24. Although 1have stressedthat the case has been dealt with in the same way as
any other criminal case, it has, of course, been on a scale which was quite unprecedented
in Scotland and the investigation therefore involved more personnel and a greater
geographical area than in any other case before or since. Although, as 1 have already
indicated, there was considerable CO-operationand assistance given by the judicial,
prosecuting and investigating authoritiesof many othercountries, the investigation carried
out by the Procurator Fiscal, and the Chief Constable under his direction, was one which
was independent of any other investigation and those carrying it out were ultimately
accountable only to the Lord Advocate ofthe day. It was the Lord Advocate alone who
concluded, afier consultation with the Procurator Fiscal, and upon consideration of al1the
available evidence, that criminal charges should be brought in Scotland. There was, of
course, close CO-operationwith the relevant United States authorities in the investigation
of the case and the Court will be aware that the timing of the public statements was
coordinated with those made by the prosecuting authorities in the United States,following
the handing down of an indictment by a Grand Jury there. Nonetheless, the decisions to
institute criminal proceedings was taken independently by the authorities in each
jurisdiction following their own investigations and procedures.
2.25. Under Scottish criminal procedure, once he is satisfiedthat there is sufficient
evidenceto prosecute a serious case,the Fiscal presents a Petition to a localjudge (known
in Scotland asa Sheriff) setting out the criminal charges and applying for a warrantfor the
arrest of the accused. These charges outline the allegations against the accused. Libyacomplains in its Response that the charges in this case are expressed in the indicative
mood7. They are only thus expressed because this is the practice in bringing forward
charges; it does not mean that the accused are presumed to be guilty. Where the
Procurator Fiscalhas brought charges, as he has in this case,the police are not then entitled
to interview the accused about the charges, since they are not simply suspects wanted for
interview,but accused persons, who corneunder the protection of the Court as soon as they
are arrested.
2.26. The Court should be in no doubt about the nature of the criminal charges
which have been brought in this case. This is not, as is sometimes suggested, simply a
casewhere it is alleged that the accusedhappen to have been Libyan state employees. With d
the Court's permission, 1 will read briefly fiom the criminal petition which sets out the
charges which have been brought in Scotland. It is to be found inAnnex 17and it alleges
that the two accused
"did conspire together and with others to further the purposes of the Libyan
Intelligence Services by criminal means, narnely the commission of acts of
terrorism directed against nationals and the interests of other countries and in
particular the destruction of a civil passenger aircraft and murder of its
occupants".
2.27. It is important to bear in mind whatunderlies Libya's case beforethis Court
is Libya's claim to be entitled to try the case against the two accused itselfEven if it
were only a case of ailegations of terrorism having been brought against two Libyan w
officiais it would be unacceptable for Libya to try this case. But given the explicit
character of the charges whch have been brought, that is as charges of terrorism alleged
to have been carried out in furtherance of the purposes of the Libyan Intelligence Services,
how could justice conceivably be seen to be done by a trial in Libya? And if it is
accepted that Libya cannot, on the principle nemojudex debet esse inpropria sua causa,
provide a forum for the trial of the criminal case, the whole basis of its case before this
Court falls away. Professor Greenwood will address this critical question further in the
context of theMontreal Convention. - 31 -
Principle of a Fair Trial
2.28. Mr. President, Libya asserts that the United Kingdom is seeking to convince
the world of the guilt of the two accused by keeping the evidence carefully concealed and
making statements which presuppose guilt8. That assertion is again based on a
misunderstandingof the nature of the criminalprocess in Scotland. In common with many
other legal systems, in Scotland the evidence in the case cannot be made known publicly
by the prosecutor until the case is brought to trial. This is to ensure that thejury are not
influenced by what they have read or heard of the prosecution case. 1and my predecessors
have been only too conscious of our responsibility as prosecutors not to prejudice a fair
criminal trial by releasing the evidence.
2.29. Although it is not normal to make public any fürther information about the
evidence at that stage, in this case it was necessary to seek the CO-operationof the Libyan
Governent in making the accused available for trial. For that reason additional
information, summarizingthe case was set out in the Statementof Facts9. As 1said earlier,
this was delivered to the Libyan authorities along with a copy of the Petition containing
the charges'' as long ago as 14November 1991. It is because it reveals more information
than would be customary in criminal proceedings at this stage that the Statement of Facts
has not been published, but was placed before the Court on a confidential basis. The
Libyan Memorial cornplainsthat the United Kingdom has always refused to provide Libya
with the slightestproof of the allegations againstthe two accused. TheStatement of Facts
is a more detailed sumrnaryof the casethan would have been required for extradition from
many countries and has been with Libya for nearly six years. Libya can be in no doubt
whatsoever as to the basis of the charges. My position as prosecutor in this case is not
different from any other case where the accused have yet to be arrested. Charges - that
is allegations- have been brought on the basis of an assessment that there is a case to
answer. However, no prejudgment is made as to the guilt of the accused; they arepresumed innocent until proved guilty. Furthermore,the decision on the innocence or guilt
of the accused rests solely with a jury of 15 ordinary citizens selected at random.
2.30. My predecessors and 1have therefore carefullyavoidedmaking any statements
which presuppose guilt. Such constraint is fundamentalto the fairness of our system and
has been respected throughout by British Ministers and diplornatic representatives. Once
accused persons are arrested and brought before a court in Scotland they will, of course,
receive details of the witnesses, documents and other items of evidence to be used against
them. Indeed, in preparing for trial, they are entitled to have their lawyers pursue their
own enquiries, includingthe private interviewofwitnesses,in accordancewith our practice.
We do not - as the Libyan Response suggests - pay "purely verbal homage to the w
presumption of innocence"". We have been most careful to respect that presumption in
al1 that we Say and do. The Libyan suggestion that we are sheltering behind the
independence of the judiciary as a pretext for not adducing more evidenceI2 shows again
a serious misunderstanding of the basic principlesofthe Scottishlegal systemwhich shares
with many other legal systems the fundamental principle of a fair trial.
2.31. Before 1move on to other matters, it is necessary for me, therefore, to answer
certain criticisms made in the Libyan response with regard to the fairness of a trial in
Scotland.
2.32. Any suggestion that the accused will not receive a fair trial in Scotland is w
unfounded. 1have already referred to the independence of the Scottishprosecutors fiom
Government. Prosecutors in Scotland are under specific duties to act fairly. The
regulations for the Procurator Fiscal Service make it clear that a Procurator Fiscal must
never act unfairly, that he must disclose to the defence any information which supports the
defence, even though it may be damaging to the Crown case, and he must assist the
defence to enable the defence representatives to contact witnesses whether they are on the
Crown list or not. The prosecutor has a primary duty not of securing a conviction but
of assisting the Court and of trying to secure that justice is done. - 33 -
2.33. In addition, the Scottish courts provide strong protection for the fair trial of
accused persons, both when awaiting trial and during the trial. The courts will protect the
accused against interrogation or any unfair treatment; they will exclude evidence which
has been unfairly obtained and they will deal swiftly and firmly with any prejudicial
reporting by the media.
2.34. Mr. President, in September 1993 Libya raised a nurnber of questions about
Scottish criminal procedure and sought assurances that the accused would receive a fair
trialI3. These were answered and the necessaryassurances givenI4. Libya has confirmed
that these assurances were satisfacto~y'~. It is therefore curious that the Libyan response
casts doubt on the independence of Scottish courts. This is especially so given that, in
addition to having accepted our assurances about fair trial in Scotland, Libya has many
times itself proposed a Scottish trial, provided it is heldoutside Scotland.
2.35. 1give my persona1assuranceto this Court and to the international community
that the trial will be entirelyfair. Thatis an easy assurancefor me to give, becauseit is one
of my duties as Lord Advocate - as it is the duty of our independentjudiciary - to see
that every trial in Scotlandis fair. Butjustice must be seen to be done; and becauseof the
widespread international interest in this case we are willing to make special arrangements.
Early last month the United Kingdom Governrnent renewed to the United Nations
Secretary-General its offer for international observers to attend the trial and monitor the
proceedings in Scotland. The entire trial will, of course, as any other trial be held in
public, but 1can advise the Court that 1personally have been in touch with the Scottish
court authorities, who have stated that they are prepared to make special seating
arrangements available in court for observers fiom the United Nations or any other
reputable international organizations for them to view the proceedings; and they are also
prepared to make any necessary arrangements for simultaneous translation of the
proceedings. Observers would thus be able to satis@themselves as to the fairness of the
conduct of the proceedings and to report back to their respecitve organizations. -34 -
2.36. 1have gone Mer, Mr. President, and 1have contacted the Scottish prison
authorities. 1can confirm that, while the accused are in custody awaiting trial and during
the trial, they will be held in a special prison facility. If the accused so choose and it is
their choice they would be able to receive visits from international observers at any
reasonable time. That could be every day if the accused wish.
2.37. While the precise location of the trial and place of detention of the accused
cannot be determined until it is known that they are to be made available for trial, the
Scottish court and prison authorities have also advised me that arrangements can be made
for representatives of international organizations to view now or in near future the sort of
court and prison facilities which will be available.
Evidential safeguards
2.38. It is a distinctive feature of the law of Scotland that no person may be
convicted of a crime on the evidence of only one witness or on evidence from only one
source. The essential facts in any criminal case must be proved beyondreasonable doubt
by corroboratedevidence. The then Lord Advocate was, by November 1991,satisfied that
there was a case which could be establishedby corroboratedevidence againsttwo Libyans,
Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah, acting in furtherance
of the purposes of the Libyan intelligence services. He came to this conclusion only on
the basis of a comprehensive investigation, and on the basis of available evidence. 1am '*rr
of the fm view that that evidence must now be properly tested beforethe criminal courts.
2.39. As 1have already said, my predecessors were ready, as 1am,to consider and
evaluate any evidence which tends to show either that the case against the two accused is
unsound or that other parties were involved. Despite the many speculative accountswhich
have appeared in the media, neither the police, nor 1,nor my predecessors, have seen any
evidence which would warrant reconsideration of the charges which have been made. - 35 -
Conspiracy theories
2.40. Nevertheless, in its responseLibya seeksto cast doubt on the basis for the case
against the accused. It is of course al1too easyto speculate on the facts of a criminal case
before the trial where, for the reasons 1 have already explained, the evidence cannot be
made public. During the almost six years sincethe charges were laid there has been a host
of speculative comment in the media and by others about the case. A prime example is
the privately commissioned television film,the MalteseDoubleCross. We note that Libya
has tendered a videotape of it to the Court. It is not clear to us on what basis this has been
done. The film does not provide evidence of anymaterial fact and, in any event, is open
to question whether it is admissible. 1must therefore specifically reserve al1of the United
Kingdom's rights in this regard. 1 may nonetheless mention to the Court, since it is a
matter of public judicial record, that only last month one Lester Knox Coleman, who was
one of the principal participants in the film and upon whose account much of the theory
put fonvard in the film was based, pleaded guilty inthe United States of America to having
given false evidence in an affidavit sworn by him in connection with the major civil case
arising out of the Lockerbie incident. He has now judicially confessed that his story,
repeated in the television film, was false.
2.41. As a typical exarnpleof the dangerous and often scurrilous speculation which
has surrounded this case, it is wholly irrelevantto the issues before this Court, except as
an object lesson in the danger of speculation. Responsible prosecuting authorities do not
act on the basis of ill-infonned speculation; they act on the basis of facts, of evidence.
That isthe sole basis upon which 1and my predecessorsas Lord Advocatehave proceeded.
History of Libyan involvementin terrorism
2.42. As the Court is aware, there was no satisfactory response fiom Libya to the
charges and the demand for the surrender of the accused. Mr. President, the Court is
entitled to a word of expianation why the United Kingdom then took this state of affairs
to the Security Council. The truth is that Libya had a long history of vocal support andencouragement for international terrorism. This is well documented in our ObjectionsI6
Worse,Libya had shown itself willing to resort to violence in other countriesin pursuit of
its own ends, without regard to the sovereignty of those countries or the safety of their
inhabitants. The United Kingdom had itself been the victim of this behaviour.
2.43.Duringthe 1980sLibyamounted a well-publicized campaign ofviolenceagainst
Libyan dissidents abroad. In 1980Libyan revolutionary cornmitteesorderedthe killing of
two dissidents in the United Kingdom. One Musa Kusa, then the head of the Libyan
diplomatic mission in London, publicly voiced his approval of that decision. As a result,
the Government ordered him to leave. In 1990 Musa Kusa became
Deputy Foreign Minister, and he subsequentlybecame Head of the Extemal Security and r"
Intelligence Organizationof Libya.
2.44. In 1984a nurnberof people wereinjured and a policewoman, Yvonne Fletcher,
was killed by shots fired fiom the Libyan diplomatic mission in London. Libya refused
to co-operate in the criminal investigation of this most serious crime, and diplomatic
relations were broken off.
2.45. In 1986,the LibyanParliamentcalled forthe creationof "suicide commandos",
whose task would be, interalia, to "strike at Arnerican and Zionistinterests everywhere",
and in that year plastic explosives placed in the "La Belle" discotheque in Berlin killed
three people and injured over 200. This year the Berlin Public Prosecutor indicted five
people, four of whom are now in custody. The prosecutor alleges, on the basis of
evidence,that the accused - althoughnot Libyan nationals - cornmittedthe crime on the
orders of the Libyan State Intelligence Serviceand with the help of the Libyan diplomatic
mission in what was then the German Democratic Republic.
2.46. In 1989 USA flight 772 was sabotaged in flight causingthe loss of 171 lives.
The French judicial inquiry into the crime has implicated several Libyan nationals.
2.47. A telling example of Libya's attitude towards tenorism is Colonel Qadhafï's
reference in the Libyan Parliamentin 1991to the IRA where he said: - 37 -
"we support it, terrorism or no terrorism".
As the Courtwell knows, the IRA has committed nurnerous acts of terrorism inthe United
Kingdom and other parts of Europe. However, following the decision of the Security
Council in resolution 748 that Libya must "cease al1 forms of terrorist action and al1
assistance to terrorist groups" Libya informed the United Nations that it "severs relations
with al1 groups and organizations involved in international terrorism of any kind". In
particular, Libya offered to supply information to the British Govemment about its
assistance to the IRA'^. The Court will note the telling use of the word "severs" in the
statement; Libya made no effort to deny its involvement in international terrorism.
2.48. In light of Libya's track record of promotion of terrorism, is it therefore so
surprising in the circurnstances that when Libya made no satisfactory response to the
outcome of the criminal investigation into the Lockerbie incident, the United Kingdom
decided to refer the situation to the Security Council? The Security Council had, as
Mr. Bethlehem will show, long been concerned at terrorismof this kind, and had indeed
already expressed itselfon the Lockerbie incident. And ChapterVI of the United Nations
Charter is replete with indicationsthat it is the Security Council's business todeal with
situations whose continuation is likely to endangerthe maintenance of international peace
and security. 1would remind the Court that the Members of the United Nations are, in
terms of Article 37 of the Charter, expected to refer situations of this kind to the Council.
2.49. Mr. President, Membersofthe Court,1thank you for your attention. This may
be a convenientpoint at which to break, afterwhich Mr. Bethlehem will addressthe Court
on the issue of the Security Council's involvement. -38 -
The ACTING PRESIDENT: Thank you, Lord Hardie. The Court will adjoum for
fifteen minutes.
The Courtadjournedfiom 11.10 to 11.20 a.m.
The ACTING PRESIDENT: Please be seated. 1 give the floor now to
Mr. Bethlehem.
Mr. BETHLEHEM: Thank you, Mr. President, Members of the Court.
3.1. It is a great privilege and pleasure for me to appear before youthis moming and
an honour to do so representing my country.
3.2. Mr. President, the Lord Advocate has described the factual background to the
case- the investigation,the evidence, the cha-geas well as the essential features of
the Scottish criminal procedure, including the safeguards afforded to accusedpersons. He
also drew attention, albeit briefly, to Libya's long and well documented record of
involvement in intemationalterrorism, a factor which is material to an appreciation of the
United Kingdom's actions in bringing the matter before the Security Council and also to
the Security Council's response. It is my task now to describe the involvement of the-
Council - how it came about and the nature of its concems. In part1cwould like
to take you, Members of the Court, through the precise chronology of the Council's
consideration of the matter as, quite apart from its intrinsic importance, an appreciation of
the chronology alsoshedslight upon themotivation behindLibya'sapplicationto the Court. - 39 -
3.3. Throughout this case, Mr. President, right fiom its Request for Provisional
Measuresin March 1992,Libyahas cast itself in therole of injured partywhose attempts
to bring this matter before the Court the United Kingdomhas soughtto fi-ustrateby
Para. 1.2.
Paras.2.28to 2.51.
Paras. 2.36 to 2.42.
Ann. 16.
Para. 2.29, infia.
paragraphs 2:28 to 2.32 and Annex18
' Paragraph 1.5
Libyan Response, Paragraphs1.4, 1.8and 1.9
Annex 16 to the Preliminary Objections
'OAnnex 17 to the Preliminary Objections of theUnited Kingdom
" Paragraph 1.8
l2Paragraphs 1.6 and 1.7of the Libyan Response
l3Annex 67 to the Preliminary Objections of theUnited Kingdom
l4Annex 68
l5Annex 69
l6Paragraphs 2.15to 2.27
l7Preliminary Objections, Paragraphs 2.25 to2 26 and Annex 55resorting to the Security Council. An examination of the facts shows, however, that this
is the opposite of what actually happened. Thereality is that, far fromthe United Kingdom
resorting to the Security Council in an attempt to oust the jurisdiction of the Court or to
set aside the Montreal Convention, Libya's resort to the Court, and its invocation of the
Montreal Convention for that purpose, is a barely concealed attempt to subvert and to
circumscribe the Security Council's exercise of its responsibilities under the Charter.
3.4. Mr. President,this proposition is clearly illustrated by the chronology of events.
Let me sumrnarize the position to give you something of a map through my submissions.
The Members of the Security Council were actively consideringthe matter - the incident
atLockerbieand the allegationsofLibyan involvement - when Libyafirst madereference W
to the Montreal Convention. The Council had already acted, in the form of resolution 731,
when Libya initiated proceedings before this Court in reliance on the Convention. Indeed,
Libya initiated proceedings on thevery day on which the Secretary-Generalreportedto the
Council that Libya had not complied with the terms of resolution 731. The Council did
not suspend its consideration of the matter. On the contrary, it remained seized of the
issues and went on to adopt two fürther resolutions - resolution 748 and
resolution 883 - acting pursuant to its enforcement powers under Chapter VI1 of the
Charter. The Council remain seized of the matter to this day.
3.5. Mr. President, Members of the Court, those are the bare bones. Let me now
'w
flesh out each of these elements in a little bit more detail.
November-December1991
3.6. There was nosatisfactory response by Libya to the 14November 1991demand
for the surrender of the accused. As a result, the United Kingdom and the United States
issueda Joint Declaration on 27 November 1991. Members of the Court,you will find this
Joint Declaration at TAB 7 of the United Kingdom's Documents2. You should have both
A/47/827* and S/23308*, 31 December 1991.
LUKlCR97/ 16 - 41 -
a French and an English versionof the documents in front of you. It is in Volume 1of the
documents. In this Declaration,at TAB 7, over the page, on page 2, the United Kingdom
and the United States called upon Libya to surrender the accused for trial, to accept
responsibility for the actions of Libyaofficiais,to disclose al1it knew of the crime and
allow full access to the evidence, and to pay appropriate compensation. Mr. President, 1
will refer to this document a little bit later.
3.7. On the sarneday, Francejoined withthe United Kingdom and the United States
in a tripartite Declaration on terrorism which, in respect ofthe bombing of Pan Am flight
103and UTA flight 772, required that Libya comply withthe demands made of it by the
three States in respectof those incidents. The Declarationalso required that Libya commit
itself to cease al1forms of terrorist action3.
3.8. Mr. President, Members of the Court, given the circumstances, the
United Kingdom thought it right to take the matter to the United Nations. On
20 December 1991, therefore, it sent these Declarations, the Declarations 1 have just
referred to, and other related documents to the United Nations Secretary-General. On
31 December 1991, the documents were circulated as documents both of the
General Assembly and of the Security Council.
3.9. The United Kingdom did not take the matter to the Security Council lightly
without first giving Libya an opportunity to address the issues bilaterally. It did so only
after carefùl deliberation, in the light of weighty evidence pointingto Libyan involvement
in the incident and in response to an unsatisfied demand for the surrenderof the accused.
Moreover, the United Kingdom considered that this was a matter appropriately brought to
theattention ofthe Security Councilasthe Council, andthe United Nations more generally,
had previously concerned itself with issues of international terrorism. In bringing the
Al46/828* and S/23309*, 31 December 1991;at Annex 8 of the United Kingdom's
Documents. - 42 -
matter to the attention of the Council, the United Kingdom was not therefore seeking to
take the Council outsideof its establishedfield of competence. Nor was it seekingto oust
the application of any other instrumentor mechanism. Indeed, Members of the Court, at
no stageup until this pointhad Libya invokedthe Montreal Conventionin its dealingswith
the United Kingdom or with anyone else.
The Security Council's Concern with InternationalTerrorism
3.10. Mr. President,it may beappropriateat this point for me to recall briefly some
aspects of the United Nations concernwith internationalterrorismsincethe competence of
the Security Councilin respectof suchquestionsis one ofthe mattersput in issueby Libya
in these proceedings.
3.11. The concernofthe United Nationswith internationalterrorism goesbackmany
decades and has been well documented by Judge Guillaume in his lectures at The Hague
Academy entitled Terrorismeet Droit. In respect of terrorism against civil aviation, the
firstnotable stepcame in 1970withthe adoptionby the Security Councilof resolution 286
which followed a spate of attacks against the civil aircraft of a nurnberof countries. By
that resolution, the Council called on States "to takeal1possible legal steps to prevent
Mer hijackings or any other interferencewith international civil air travelW4.
3.12. Resolution 286 was followed two years later, on 20 June 1972, by a
presidential statementwhich wasalso directedto the issue of attacks againstcivilaviation5.
The statement manifestly illustratesthe gravitywith whichMembers ofthe Councilviewed
such attacks.
3.13. In the period following the adoption of resolution 286 and the presidential
statementof June 1972,the Security Councilwas seizedof matters relatingto international
terrorism on many occasions. Between 1970 and 1987 the Council adopted various
resolutionsand issued statementscondemningterrorismin many forms,includinghijacking
SIRES1286(1970); at Annex 24 of the United Kingdom'sDocuments.
S110705,20 June 1972.
LUWCR97116 -43 -
and other interference with international civil aviation, the bombing of airports,
hostage-taking and kidnapping. The Council also acted on an ad hoc basis in relation to
specific acts of terrorism. Prominent examples of this action are documented in our
Preliminary Objections6.
3.14. Members ofthe Court, it was against this backgroundthat the Security Council
reacted to the destruction of Pan Am flight 103 over Lockerbie and it did so virtually
irnmediately,as soon as it had been established that the incident was not just some tragic
accident but a criminal act of the gravest kind. Acting on behalf of Members of the
Council, the President of the Council issued a statement on 30 December 1988 - nine
daysafterthe incident - condemningthe destruction ofthe flight and calling "onal1States
to assist in the apprehension and prosecution of those responsible for this criminal act"'.
3.15. This presidential statement was followed, on 14November 1989, by the
adoptionbythe SecurityCouncil,unanimously, ofresolution 635 whichcondemnedal1acts
of unlawfùl interference against the security of civil aviation and called on al1States to
CO-operatein measures to prevent acts of terrorism8. The resolution also urged the
International Civil AviationOrganizationto intensiQ its work on devising an international
régimefor the marking of plastic explosives for the purposes of detection. A Convention
on this subject was adopted at Montreal in March 1991.
December 1991 - January 1992
3.16. Members of the Court, having decided that the matter should be brought to the
attention of the SecurityCouncil,the United Kingdom consulted - quite properly, and as
is usual in the circumstances.- with other States closely affected, in this case with France
and with the United States. Consultations were also held with a wider group of States.
Paragraph 2.3.
SC15057,30 December 1988; at Annex 38 of the United Kingdom's Documents.
SRES1635 (1989); at Annex 40 of the United Kingdom'sDocuments.
LUWCR97116 - 44-
The fact that consultations between Members of the Council were being held would have
been widely known from as early as 4 January 1992'.
3.17. Following these consultations, on 10 January 1992,the three Govenunents
circulated to al1 the Members of the Council a draft of what was to become
Security Council resolution 731. The fact that a drafl resolution had been circulated and
was being considered by Members of the Council was widely known almost immediately
and, indeed, was commented upon in the international press from as early as
11 January 19921°.
3.18. Mr. President,the dayaJterthe draft resolution wasfirst circulatedto Members
of the Security Council for their consideration that is, on 11January 1992 - when the #
involvementof the Councilwas alreadyknown,Libya sent a letterto the InternationalCivil
Aviation Organization in which it mentioned the Montreal Convention for the first time.
In none of its earlier statements to the United Nations, to the International Civil Aviation
Organization, to the United Kingdom, had Libya referred to the Convention. Then, on
18 January, a week later, Libya sent a letter to the United Kingdom requesting that a
dispute be submittedfor arbitrationunderArticle 14,paragraph 1,of the Convention. This
took place at a time when the Members of the Security Council were already actively
engaged in discussion on the draftresolution. It was the first occasion on which Libya
referred to the Montreal Convention in its communications with the United Kingdom.
Resolution 731 was adopted three days later on 21 January 1992.
Resolution 731 (1992)
3.19. Mr. President, Membersof the Court, if you will allowme 1wouldlike to take
you through resolution 731 and the principal documentsto which it refers in some detail.
You will find the resolution at TAB 2 of the United Kingdom's documents.
See, for example, New York Times, Late Edition - Final, Saturday, 4 January 1992,
New York Times, Late Edition -Final, Saturday, 11 January 1992,p. 3.
LUWCR97116 - 45 -
3.20. As you will see if you go to the sixth preambular paragraph (which, in the
English version, is theast one at the bottom of the firstpage; samein the Frenchversion),
reference isthere madeto five documents submittedto the Council in connection withthe
legal procedures relatedto the attacks against Pan Am flight 103and UTAflight 772. Let
me, therefore, first of all, take you to the most important of these documents:
The first document, to be found at TAB 511of the United Kingdom materials,
concems the French judicial inquiry into the attack on the UTA aircraft of
19 September 1989. As you will see fiom the openingparagraphofthe communiqué
on page 2, the inquiry placed "heavypresumptions of guilt for this odious crime on
severalLibyan nationals". The communiqué then goes on to demandthat the Libyan
authorities CO-operatewith French justice by inter aIia producing al1 material
evidence and facilitating accessto documents and witnesses.
The second document is to be found at TAB 812. This the tripartite declarationby
France, the United Kingdom and the United States to which 1 referred earlier. In
paragraph three,ofthat tripartite declaration,whichis on page 3 ofthe document,the
declaration requires Libya to comply with the demands of the three Governments
relating to the judicial proceduresundenvay in respect of the bombings of Pan Am
flight 103andUTAflight 772. The Declarationalsorequires Libyato "commititself
concretely and definitivelyto cease al1fonns of terrorist action and al1assistance to
terrorist groups".
The third document is to be found at TAB 613. This contains two Statements of
14November 1991, the first by the then Lord Advocate announcing the charges
against the accused, that commences on page 3, the second by the then British
" Sl23306, 31 December 1991.
'*Sl23309, 31 December 1991.
l3Sl23307, 31 December 1991. - 46 -
Foreign Secretary setting out the essentials of the matter for Parliament, that
commences on page 7. It also contains the Declarations issued by the British and
American Governments of 27 November 1991. In its Arnerican form, this
Declarationis to be found inthe fourthdocument referred toin resolution 731which
is at TAB 714.
3.21. Members of the Court, the final document referred to in the resolution is the
indictment issued by the US District C~urt'~.
3.22. Membersof the Court, if 1may, againstthis background,let me take you back
to resolution 731 which is at TAB 2. As you will see in the preambular parts of the
resolution,the Council notes its concernwith acts of terrorismin general and acts directed
against civil aviation in particular, the firstwo prearnbular paragraphs, and goes on to
reaffirm resolutions286 of 1970and 635of 1989to which 1referred earlier, that isin the
preambular paragraphs 3 and 4. Thereafter, as you can see, the Council recalled the
presidential statement on the Lockerbie incident of 30 December 1988, in preambular
paragraph 5. As this illustrates, the Council saw the incident at Lockerbie and the
destructionof the UTA flight in the contextof its more generalconcern with international
terrorism. It also indicates that the particular situation with which the Council was
concernedwas not one on which it was focusingforthe first time. Rather,the Councilwas
reasserting its competence over a matter that had already come before it and about which
it had already expressed strong and considered views.
3.23. Members of the Court, turning to the operative parts of the resolution, letme
simply draw their terms to your attention:
paragraph 1 - in which the Council condemnsthe destruction of the Pan Am and
UTA flights;
l4Sl23308, 31 December 1991.
l5SI23317, 23 December 1991. paragraph 2 - in which the Council strongly deplores the fact that the Libyan
Govemment had not yet responded effectively to the French, British and American
"requeststo CO-operate"contained in the documents which we have just examined;
paragraph 3 - in which the Council urges Libya to provide a full and effective
response to the requests for CO-operation;
paragraph 4 - in which the Council requests the Secretary-Generalto seek Libya's
CO-operation;now 1shall have more to Sayabout this in just a moment;
paragraph 5 -in which the Council urges al1States to seek the CO-operationof the
Libyan Govemment to provide a full and effective response to the requests by the
United Kingdom, France and the United States; and finally
paragraph 6 -in which the Councildecides to remain seized of the matter
3.24. Mr. President, Members of the Court, the terms of the resolution are
unarnbiguous. The resolution was adopted unanimously. Libya was lefi in no doubt,
therefore, in nodoubt as to what was required of it by the Council.
3.25. Before 1leave resolution 731, Members of the Court, let me briefly give you
a flavour of the debate in the Council during the meeting at which resolution 731 was
adopted16by highlighting two contributionsby Members of the Council whichillustratethe
gravity with which this situation was regarded.
3.26. First, there is the statement by the representative of Hungary and 1quote:
"Theattacks on Pan Amand UTA aircrafiare actsthat obviouslythreaten
international peace and security. As a result, we feel that it is entirelyjustified
and highly appropriate for the Security Council, the United Nations body
entrusted with the primary responsibility for the maintenance of international
peace and security, to consider these terrorist manifestations.
Hungary believes that the question of eradicating international terrorism
has a legitimate place arnong the concems of the Security Council, which, on
l6SRV.3033, 21 January 1992; Annex 10 of the United Kingdom'sdocuments.
LUWCR97116 the basis of its mandate under the Charter, is obliged to follow closely any
event which might endanger international peace and security"."
3.27. Second, Mr. President, let me refer briefly to the statement made by the
representative of Venezuela in the sarne proceedings.
"The countries that sponsoredthis resolution . . worked with the group
of non-aligned countries represented in the Council and made the clear
declaration that this resolution is exceptional by its nature and cannot be
considered in any way as a precedent but is intended only for those cases in
which States are involved in acts of terrorism.
This is a matter where vagueness or equivocation cannotbe tolerated. It
is not enoughjust to issue a declarationsagainst terrorism.
Finally,1 should like to Saythat our decision-makingprocess took very
much into accountthe three-year investigationswhichwere carriedout by three
countries universally recognisedfor their respect forthe principles of law and
the independence of their judicial branches. The tribunals of those countries
have condernned no one and have confined themselves exclusively to
determining the existence of evidence that would justi@ impartial criminal
proceedings".18
3.28. As these statements illustrate, resolution731 was adopted unanimously, not
becausethe Members of the Council consideredthe matters addressedtherein to be simply
vague statementsof principle or intent which couldbe contained in some pious resolution
and then shunted intothe sidingsof history. On the contrary, the Membersof the Council
had before them information in support of the allegations levelled at the accused and
implicating Libya. They focused on the gravity of the incident and of the accusations.
They considered the question of the Security Council's competencein such matters. And,
they - the Council - decided that this was a matter in which it was appropriate for the
Council to act.
l7S/PV.3033,2 1 January 1992; Annex 10of the United Kingdom'sdocuments; at
D. 91-92.
SIPV.3033,21 January 1992; Annex 10 of the United Kingdom'sdocuments; at
p. 101. - 49 -
3.29. Mt-.President, before 1turn to the other resolutions, one further observation
concerningresolution 731 is required by way of an aside. In its Response, Libya contends
that resolution 731,together with resolutions 748 and 883 to which 1will refer shortly, are
invalid as the United Kingdom, the United States and France were not entitled to take part
in the voting on these resoluti~ns'~. In support of its contention, Libya relies on the
proviso to Article 27, paragraph 3 of the Charter. This provides that decisions of the
Security Council on non-proceduralmatters shall be made by the affirmative vote of nine
members, including the concurring votes of the permanent members, "provided that, in
decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall
abstain fiom voting".
3.30. 1will not dwell on Libya'scontention insofar as it relates to resolutions 748
and 883,both resolutions adoptedunder ChapterVI1of the Charter and, therefore, excluded
fiom the operation of the proviso to Article 27, paragraph 3. The position in respect of
such resolutions is clear. As regards resolution 731, the settled law, affirmed in the
Opinion of this Court in the Namibiacase, is that the proviso "requires for its application
the prior determination by the Security Council that a dispute exists and that certain
Members of the Council are involved as parties to such a disputew2'.
3.31. Members of the Court, there was no such determination. Nor was there any
suggestion fiom Members ofthe Council that a determinationof this nature was necessary.
Moreover, the agenda item. under which the matter came before the Council was
appropriate to a "situation",not to a "dispute". The matter did not, therefore, come within
the scope of the proviso to Article 27, paragraph 3. The proposition that resolution 731
is formally invalid, therefore, has no basis in either fact or in law. It must also be recalled
that resolution 731 was adopted unanimously, it did not depend for its adoption on the
affirmative vote of the three States against whom Libya now rails. Any suggestion,
l9Libyan Response, at paragraphs 4.43 -4.48.
20NamibiaAdvisory Opinion,1C.J Reports 1971,p. 17, at para. 26.
LUWCR97116therefore, that the outcome would have been differentif the United Kingdom, France and
the United States had abstained has no basis in reality.
The Secretary-General'sReport,Libya'sApplication totheCourt and Resolution748
(1992)
3.32. Mr. President, pursuant to paragraph 4 of resolution 731,the United Nations
Secretary-General,through his SpecialEnvoy, soughtLibya'sCO-operation to provide a full
and effective response tothe British, French andAmericanrequests as was requiredby the
resolution. The Council did not, therefore, proceed directlyto enforcementaction. Libya
was given every opportunity to respond. Unfortunately, it did not do so. Following an
initial report on 11February 199221t,he Secretary-Generalreported tothe SecurityCouncil
4
on 3 March 1992that his consultations with Libya about complying withthe terms of the
resolution had beenunsuc~essful~~.
3.33. On the very same day asthe Secretary-Generalreported to the Council, on
3 March 1992, on the very same day, Libya filed its Application in the present case and
its Requestfor Provisional Measures. Nevertheless, consultationsamongst Membersof the
Councilabout a furtherresolution to impose sanctionson Libya continued. These resulted
in the adoption by the Council, on 31 March 1992, ofresolution 748.
3.34 Members of the Court, you will find resolution 748 at TAB 3 of the United
Kingdom's Documents. The format in the French and the English versions is slightly
different but the resolution is the sarne. As you will see, resolution 748 opens with a d
statement by the Council noting its deep concern that Libya had still not provided a full
and effective response to the requests identified in Resolution 73; that is in prearnble
paragraph 3. The Council then goes on to affirm its concem with acts of intemational
terrorism including, in theixth preambular paragraph,which is at the bottom of the page
in the english version in the middle of the second column in the french text, the
21S123574,11 February 1992; Annex 13to the United Kingdom's documents.
22S123672,3 March 1992; Annex 14 to the United Kingdom's documents.
LUK/CR97/16 - 51 -
reaffirmationthat "every State hasthe duty to refiain fiom organizing, instigating,assisting
or participating in terrorist acts". Then, and this is, of course, critical, the Council goes on
to determine, with a clear reference back to the previous paragraph, that:
"the failure of the Libyan Govermnent to demonstrate by concrete actions its
renunciation of terrorism and in particular its continued failureto respond fully
and effectively to the requests in resolution 731 (1992) constitute a threat to
international peace and security".
3.35. The Council then goes on to affirm expressly that it is "Acting under
Chapter II of the Charter."
3.36. This determination, the extract that 1 have just quoted is, of course, a
determination under Article 39 of the Charter. Significantly, as these paragraphs make
clear, this determination identifies the threat to international peace and security not only
in Libya'sfailure to respond fully and effectively to the requests in resolution 731but also
in Libya'ssupport for international tenorism more generally. The Security Council was,
therefore, concerned with the broader picture, not simply with the allegations in respect of
the incident at Lockerbie.
3.37. Members of the Court, turning to the operative parts of the resolution, in
paragraph 1,as you will see,the Council decidesthat Libya mustnow "complywithout any
further delay with paragraph 3 of resolution 731 regarding the requests" of the three
Govemments. That requirementthus becarnea binding decisionof the Councilwith al1that
that entails. Moreover, in paragraph 2, the Council went on to decide further that Libya
must commit itself "definitively" to cease al1forms of terrorist action and assistance to
terrorists and demonstrate this by concrete action. Thereafter, in paragraphs 3 to 6, the
Council went on to impose various economic and other sanctions against Libya pending
its compliance with the terms of paragraphs 1 and 2, these provisions requiring that al1
States adopt the measures in question. In respect of these measures, the Council, in
paragraph 7 also called upon al1 States and international organisations to act strictly in
accordance with the provisions of the present resolution, notwithstanding, "the existence -52 -
of any rights or obligations conferred or imposed by any internationalagreement or any
contract ". As you will see in the succeedingparagraphs,the Council went onto establish
machinery for the monitoring and enforcement of sanctions. Finally, in paragraph 14 of
the resolution, the Council decided that it would remain seized of the matter. The
resolution was adopted by 10 votes in favour, none against and five abstentions.
3.38. Mr. President, on 14 April 1992the Court gave its Order on the Request for
Provisional Measures in which it held that the obligations of Libya and of the United
Kingdomunder Article 25 of the Charterto carryout the decisions of the Security Council
extendedprima facie to the decision contained in resolution 748. It held further that, in
accordance with Article 103, the obligations of the Parties in respect of the Charter and W
resolution 748 prevailed over their obligations under any other international agreement,
including the Montreal Convention. We are, of course, no longer at the provisional
measures stage, and the Court can examine these issues more closely, but we nevertheless
adopt this formulation by the Court. The question in these proceedings is thus whether
Libya is able to rebut the presumption that the obligationder Article 25 of the Charter
extendsto the canying out of the decision contained inresolution 748. In our view, Libya
cannot do so; but that is a matter that will be addressedby the Lord Advocate tomorrow
moming.
Resolution 883 (1993)
3.39. In the 20 months following the adoption of resolution 748, Libya sent
nurnerous communicationsto the United Nationsin which it claimed to be in compliance
with resolution 731 and that, accordingly, resolution48 was unjustified. The Security
Council disagreed. In view of Libya's failure tocomply with the terms of resolutions 748
and 731, the Security Council adopted resolution 883 on the 11th November 1983.
Members of the Court, this resolution is at TAB4 of the United Kingdoms'documents. 1
really just refer you very briefly to some of its essential provisions. In the second
preambular paragraph the Council refers expresslyto Libya's failure to comply with the - 53 -
terms of the earlier resolutions. The sixthpreambular paragraphthen goeson to determine
that Libya's continuedfailureto demonstrateits renunciationof terrorism and its failure to
respond fully and effectively to the requests and decisions in resolutions 731 and 748
"constitute athreat to international peace and security". Once again it goes on to affirm
that it is acting under Charter VI1of the Charter.
3.40. As you will see, the operative parts of the resolution require,in paragraph 1,
that Libya "complywithoutany Mer delay withresolutions731(1992)and 748 (1992)".
Thereafter,in paragraphs2 to 8, the resolutiongoes on to extendthe scope ofthe sanctions
imposed against Libya. In paragraph 12,the Council,as it had done in resolution 748,the
Council called uponal1States and the internationalorganizationsto act inaccordance with
the resolution notwithstanding "the existence of rights and obligations conferred or
imposed by any international agreement". In paragraph 16, the Council expresses its
readiness to review the sanctions with a view to suspendingthem and to lifi the sanctions
once Libya has complied fully with resolution 731 and 748. Libya has continued to
prevaricate.
3.41. The resolution was adopted by 11 votes in favour, no votes against and four
abstentions.
The Chronologyin Summary
3.42. Mr. President, Members of the Court, that is the involvement of the Security
Council and the sequence by which it unfolded. Thematter was brought to the attention
of the Members of the Council in late-December 1991. Informa1consultations arnongst
those Members took place in early January 1992. Following these consultations, a draft
resolution was circulatedto Members of the Councilon the 10January 1992. Thereafter,
on 11 January 1992,Libya referred,for the first time, to the Montreal Convention. It did
so, however, not in a communication with the United Kingdom, but in a communication
to the International Civil Aviation Organization. - 54 -
3.43. The first time Libya raised the matter with the United Kingdom was in a letter
of 18 January, at a time in which it would have been aware that the Security Council was
actively considering the matter. Three days later resolution 731 was adopted.
3.44. In accordance with this resolution, the Secretary-General sought Libya's co-
operation. On the 3 March 1992,he reported that his endeavours had been unsuccessful.
On the very day Libya lodged its Application to the Court in the present case. The
Council nevertheless remained seized of the matter and, on 31st March, acting under
Chapter VI, it went onto adopt resolution 748and subsequentlyresolution 883 on the sarne
date.
3.45. Mr. President,the chronologyspeaks for itself. Thereality is that Libya's resort 1
to this Court, and its invocation of the Montreal Convention for this purpose, was, and
continuesto be, anexercise designedto place obstacles in the way of the SecurityCouncil's
exercise of its responsibility under the Charter.
"Some Post Box, Some Bailiff'"
3.46. Members of the Court, let me close this part of the United Kingdom's
submissionsby addressing one last matter briefly - a matter on which you willhear more
fiom my learned fiiends in due course. Libya has contended that the Security Council, in
al1of this, was simplyacting as a "postbox" and "bailiff' for the United Kingdom, France
and the United States23 . 1 am tempted to retort, adopting the phrasing of a great 1
statesman: some post box, some bailiff. Behind this, however, is a serious point. The
Council is not some puny entity within the scheme of the United Nations. It is, like the
Court, one of the Organization's principal organs. Moreover,it is the organ charged with
primary responsibility for the maintenance of international peace and security and is
invested with considerable powers to so do. When it acts, it acts as the Security Council
of the United Nations, not as the agent for some or other State. Libya'scomrnents are a
23Libyan Response, at paragraph 2.11. - 55 -
grave imputation on the standing ofthose States which are, or have been, Members of the
Council and have acted, collectively, in its name.
3.47. It should also be noted that the composition of the Council has changed over
the years. It is extraordinary to suggestthat al1the succeeding newly elected Membersof
the Council have been content to regard themselves simplyas echo chambers for what went
before. 1 should also stress that no votes were cast against any of the three principal
resolutions with whichwe are hereconcerned. Libya's contentionthatthe Security Council
has merely acted as post box and bailiff can have no credibility whatsoever.
3.48. Mr. President, Members of the Court, 1thank you for your indulgence; that
completes my submissions to you this moming. With your leave, Professor Greenwood
will make our submissions on the question of jurisdiction.
The ACTING PRESIDENT: Thank you, Mr. Bethlehem. 1give the floor now to
Professor Greenwood.
Mr. GREENWOOD: Mr. President, Members ofthe Court, may it please the Court.
TheMontreal Convention
4.1. It is always a privilege for any intemational lawyerto appear before this Court
but Members of the Court will understand that it is a particular honour for me to appear
before you today on behalf of my country. In his opening remarks the Agent for the
United Kingdom explained that there were two distinct, yet related, limbs to the
Preliminary Objections of the United Kingdom. In my submissions this moming, 1shall
expound the first of those objections, that the Court lacksjurisdiction because there is no
dispute betweenthe United Kingdom and Libya whichfallswithin Article 14,paragraph 1,
of the Montreal Convention, the sole basis for jurisdiction which Libya has advanced.
4.2. The United Kingdom's submissionson the subject of jurisdiction have already
been set out at some length, and with citation of authority, in Part 3 of our Preliminary
Objections,while Libya's argument is containedin Chapter II of the Libyan Response. So -56 -
far as possible, therefore, Mr. President, 1 shall not burden the Court by repeating the
arguments whichhave already been expoundedin writing. Instead,1shallconcentrateupon
what the pleadings suggest are the main points of disagreement betweenthe Parties.
4.3. I should like to begin with a few brief observations about the basis on which
Libya seeks to found the jurisdiction of the Court. In the course of those remarks, 1shall
submit that Article 14,paragraph 1,provides a basis for jurisdiction only in respect of a
carefully defîned category of disputes and that it is for Libya to demonstrate that its
complaint against the United Kingdom falls within that category. We submit that Libya
has failed to do that.
4.4.1shall then turn, Mr. President, to the three main submissions which 1wish to #
put before you and which 1shall now summarize.
First, it is not enough for Libya to make a general assertion that it regards the
Montreal Convention as applicable and then to complain that the United Kingdom has
taken a different view. For there to be a justiciable dispute between Libya and the
United Kingdom regarding the application of the Convention (as opposed to an abstract
disagreement about its applicability), Libya must be able to point to conduct on the part
of the United Kingdom which could reasonably be regarded as capable of constituting a
violation of the Convention, either in the sense that the United Kingdom has done
something which the Convention, properly interpreted, prohibits it from doing or that the
*
United Kingdom has not done somethingwhich the Convention requires it to do.
Secondly,Mr. President,althoughLibyahas accusedtheUnited Kingdomofviolating
several specific provisions of the Montreal Convention, 1 shall submit that closer
examination shows that these are provisions which imposed uponthe United Kingdom no
obligation at all, or, at least, none which is relevant to the present case. These are not
provisions by which the conduct of the United Kingdom can be judged and there is
accordingly no dispute regarding their application. Finally, Libya's Response makes clear that it has misunderstood both the natureand
the significance for the Court's jurisdiction of the involvement of the Security Council, it
has also misunderstood the reliance which the United Kingdom places upon that
involvement.
Since it will be necessary for me to refer to several provisions of the
Montreal Convention inthe course of these submissions, Membersof the Court might find
it convenient to have the text of that agreement beforeem. It can be found at TAB 1of
the United Kingdom's first volume of annexes.
1. The Basis for the Jurisdiction of the Court advanced by the Applicant
4.5. Mr. President, with regard to my opening remarks about the basis for the
jurisdiction advanced by the Applicant, it is of course, axiomatic that in contentious
proceedingsthe Courthasjurisdiction only if the Applicantcan identifi some actby which
both the Applicant andthe Respondent have given avalid consent to thejurisdiction of the
Court. Even then if such an act is identified, the Court will have jurisdiction only in
respect of such claims as fa11within the scope of that act of consent. These two
propositions are of course elementary but they are alsofundamentalto the Court's system
of jurisdiction and had been reaErmed in its 1996 decisions in the Genocide and Oil
Platforms casesz4
4.6.Inthepresentcase,the only basisfor thejurisdictionoftheCourtwhichisadvancedby
Libyais Article14,paragraph1. Thatprovision isthussocentral to the matters beforheCourt
that1begthe Court'sleaveto quoteit in full. It States:
"Any disputebetween two or more Contracting States concerning the
interpretation or application of this Convention which cannot be settled
throughnegotiation,hall,at the requestof oneof them,be submitted toarbitration.
If,withinsixmonths fromthedate oftherequest for arbitration the Pareseunable
to agreeonthe organizationofthearbitration,anyoneofthosepartiesmayreferthe
24Caseconceming theApplication of the Conventionon thePrevention and Punishmentof
theCrimeof Genocide(Bosniaand Herzegovina v. Yugoslavia),Judgment of 1 1July 1996
and case conceming OilPlatforms (Islamic Republicof Iran v. UnitedStatesofAmerica),
Judgment of 12December 1996. dispute to the International Court of Justice by request in conformity with the Statute
of the Court."
The question, Mr. President, is whether this provision satisfiesthe requirement for an act of
consent and thus îumishes a basis for the jurisdiction of the Court in the present case. The
United Kingdom says that it does not, and cannot, do so.
4.7. The Montreal Convention has, of course, been in force for both Libya and the
United Kingdom at al1relevant times. There is thus no doubt of its general applicability. The
question remains, however, whether Article 14,paragraph 1, isapplicable rationemateriaeto the
claimsbrought by Libya. Theterms of that provision are quite specificin this regard. They confer
jurisdiction upon the Court only if there is a dispute regarding the interpretation or application of
I
the Montreal Convention and only in respect of such a dispute25.
4.8. That means that jurisdiction will not extend to claims that the Respondent has violated
obligations under general internationallaworothertreaties. TheCourtwill not permitanApplicant
to use a specific treaty provision of this kind as a vehicle to bring beforethe Court a dispute about
the application of other rules of intemational law.
4.9. That is not to Say that rules of international law or legal instruments existing
independently of the Montreal Convention have no bearing upon this case. Clearly if an applicant
complainsthata respondenthasviolatedtheprovisions of the Montreal Convention,that respondent
may rely upon other rules of international law which provide a defen~e*~.Similarly, in the
preliminary phase of a case, when the Court is enquiring whether it hasjurisdiction on the basis of w
a disputes clause in a multilateral treaty, it has the competence to declare that claims made in
relation to that treaty are inadmissibleause ofthe existence of anobligationexisting outside the
treaty.
25See, e.g., the decision of the Permanent Court in the case conceming Mavrommatis
PalestineConcessions,JudgmentNo. 2, 1924,P.C.I.J. Reports,SeriesA, No. 2, p. 11,and
the decisions of the Court in the recent Genocidecase, I.C.J. Reports 1992, p. 3 at p. 19,
325 at p. 344, and the Judgment of 11 July 1996 at paragraph 30.
&us, the decision of the Court in the OilPlatforms case clearly envisages that the law
on self-defence could be invoked on the merits.The Function of the Court at the Preliminary Objections Stage
4.10. Mr. President, before turning to Libya's submissionson whether there exists a dispute
regarding the application of theMontreal Convention, 1should liketo Saya few words about what
the Court has treated as the proper approach to a question of this kind.
4.11. The Court has made clear, in its recent decision in Oil Platforms that when, in the
exercise of its compétencede la compétence,it is called upon to determine whether there exists a
dispute regardingthe application of a treaty, it cannot confine itselfto generalitiesbut must actually
interpretthe treaty. The Court noted that the parties to that case differed "on the question whether
the dispute between the two States with respect to the lawfulness of the actions carried out by the
United States against the Iranian oil platforms is a dispute 'asto the interpretation or application'
of the Treaty of 1955",the Treaty on which Iran sought basejurisdiction, and the Court then held
that:
"In order to answer that question, the Court cannot limit itselfto noting that one
of the Parties maintains that such a dispute exists, and the other denies it. It must
ascertain whetherthe violations of theTreaty of 1955pleadedby Iran do or do not fa11
within the provisions of the Treaty and whether, as a consequence, the dispute is one
which the Court has jurisdiction ratione materiae to entertain pursuant to [the
compromissory clause in that Treaty]."*'
4.12. In approaching this task, the Court has accepted that it cannot work on an
impressionistic basis, it must conduct a detailed analysis of each provision of the
Montreal Convention which Libya claims has been violated by the United Kingdom. In the
language used by the Court in Oil Platforms, the question is whether the lawfulness of the
United Kingdom's conductiscapableof being evaluatedby referenceto each ofthose provision^^^.
Libya's argument that there is a dispute falling within Article 14, paragraph 1
4.13. Mr. President, it is for Libya, as the Applicant, to identi@the dispute which it claims
exists between itself and the UnitedKingdom and to demonstrate that that dispute falls within the
scope of Article 14, paragraph 1. It is, after ail, Libya which has invokedthejurisdiction of the
27Judgmentof 12 December 1996, par. 16.
28Judgmentof 12December 1996,para. 51 -60 -
Court and it is therefore Libya which must satis@ the Court that this is a case in which the
jurisdictional requirements of the Court are satisfied andthe conditionsexist for the exercise of the
judicial function. Similarly, Libya must show the United Kingdom what case we have to meet.
In OurPreliminary Objections we have shown that Libya has been far from consistent in the way
in which it has attempted to formulatethe dispute which it wishes to place before the Court. That
inconsistency is importantcause itbetraysthe difficulty which Libyahas hadthroughoutthis case
in seeking to formulate a dispute which can be shown to fa11within Art14.e
4.14.In that context, it may be tempting to reason that there are, in fact, two disputes: a
narrow, bilateral dispute over the Lockerbie incident and a broader dispute over support for
internationalterrorism more generally. If so, the argument runs, the Court would be right to apply
W
the Montreal Convention - andthe Montreal Convention alone- tothe narrowerdispute,while
accepting that a broader set ofes, includingthose of the United Nations Charter, are applicable
to the broader dispute.Such reasoning would seem to lie behind the puzzling, but oft repeated,
insistence of the Applicant that the Court shoulde that the Montreal Convention is the "only
instrument applying to the dispute".
4.15.But, Mr. President, that cannot be right. In contentious proceedings, the Court is not
called upon to judge a "case" as if it were some abstract entity, existing in a vacuum. It has to
judge the rights and obligations of the parties, as they apply to alar disputeTo proceed
otherwise would lead to an absurdly barren result. Let us supposethat the Court were minded, in -
the present case, to consider the questions raised by Libya on the Montreal Convention without
regard to the effect of the Security Council resolutions. That might require the Court to proceed
to a hearing on the merits ofse questions. If, at that stage, and contras, to Oursubmissions, the
Court preferred the Libyan analysis of the Montreal Convention, the Court would presumably
pronouncejudgrnent on that basis in the full knowledgethat thejudgment would be an empty one.
It would be empty because it was neither applicable nor enforceable given the terms of prior
decisions of the Security Council which remained in force. We cannotbelievethat that is a proper
exercise of thejudicial function. And it finds no support in the jurisprudence of the Court itself. - 61 -
4.16. If we tum to the dispute as Libya has sought to formulate it, wecan see at the outset
that several ofthe claims advancedbyLibya manifestly do not comewithin theterms of Article 14.
That is the case, for example, with Libya's wholly unsubstantiated allegations that the
United Kingdom has threatened to use force, contrary to the provisions of the United Nations
Charter,and with itscomplaintsthat the imposition of sanctions bythe Security Councilwas unfair
and discriminatory. The first matter is plainly not a dispute regarding the interpretation or
application of theMontreal Convention. Thesecond is not only not about that Convention, it is
noteven a dispute between Libya andthe United Kingdom at al1but,rather, amatter between Libya
andthe Security Council. It is clear, therefore, that some of the claims made by Libya cannot, on
any analysis, fa11within the scope of the Court's jurisdiction under Article 14, paragraph 1.
4.17. The United Kingdom'sobjections, however, go deeper than that. Our submission is
that,properlyanalysed,the LibyanApplicationand subsequentpleadings failtodiscloseanydispute
- inthe legal senseof the term - between Libya andthe United Kingdom which falls within the
scope of Article 14, paragraph 1, of theMontreal Convention.
II. Libya's General Assertionthat the Montreal Conventionis Applicable is
not sufficientto establish Jurisdiction
4.18. 1turn now to the first of my three main submissions. Libya has asserted throughout
this case that theMontreal Convention isapplicable, that Libya has complied with its provisions
and that the United Kingdom has created a dispute with Libya by its refusal to apply the
Convention. Libya further contends that it is entitled to "have the Convention applied" and not to
have it "setside" bythe United Kingdom. Central to this argument is Libya's submissionthat the
Convention constitutes an exclusivemechanism, displacing eventheUnited Nations Charter,onthe
ground that the Montreal Convention is lex posterior and lex specialis vis-à-vis the Charte?9.
Mr. President, with great respectthese arguments are patently false.
4.19. The problem whichthe Convention,the Montreal Convention, was designedto address
wasthat someterrorists responsibleforattacks upon aircraftwere notbeing brought totrial because
29Libyan Response, paragraph 2.16 et seq.
LUWCR97116 - 62 -
of what were perceived to be gaps in the system of jurisdiction which already existed under the
rules of customary international law andthe network of extradition arrangements under existing
treaties. The purpose of the Convention was to remedy these deficiencies. It did not replace or
supplant the existing rules by which jurisdiction could be established. Nor did it supersede the
existing arrangements for extradition andthe surrender of suspects. The Montreal Convention was
designed to supplement the existing law, not to supplant it.
4.20. That design is apparent in several provisions of the Convention. For example, after
Article 5, paragraphs 1and 2 have laid down certaincircumstances in which a State is required to
take steps to establish its jurisdiction in respect of conduct falling within the scope of Article 1.
Article 5, paragraph 3, goes on to provide that "this Convention does not exclude any criminal J
jurisdiction exercised in accordance with national law". It is clear, therefore, that existing
provisionsestablishing jurisdiction were not affected. Indeed, boththe United Kingdomand Libya
assert jurisdiction over the two accused on the basis of provisions of national law whichexisted
before the Montreal Convention was adopted3'.
4.21. Likewise, Article 11of the Convention, on which Libya also relies, makes clear that
it is intendedto supplement,not supplant, othertreaties regardingmutual assistance incriminal law
matters. The second paragraph ofthat Article provides:
"The provisions ofthis Article shallnot affectobligations underany othertreaty,
bilateral or multilateral,.which governs or will govern, in whole or in part, mutual
assistance in criminal matters."
4.22. The provisions of Article 8, regarding extradition, are also clearly intended to
supplement existing extraditionarrangements. Article 8, paragraph 1,for example, takes effect by
building on existing extradition treaties, while Article 8, paragraph 3, builds on the existing
arrangementsmade by Stateswhichdo not makeextraditiondependent on the existence ofa treaty.
In many cases,a defendant could bedeliveredfrom one Stateto another to stand trial for anoffence
falling within the definition in Article 1 of the Montreal Convention, without reference to the
30 See, respectively, para.2.46 to the United Kingdom Preliminary Objections and Ann. 17 and
19; and para. 2.7 to the Libyan Memorial and Ann.cited therein.Convention. For example, if State A wanted to bring to trial a person suspected of such a crime
and that person had fledto State B, with which State A had anextraditiontreaty,there isno reason
why extradition could not be requested and granted simply under the terms of that treaty. Indeed,
to suggest that the States concerned would be acting contrary to the Montreal Convention by
behaving in this way would be absurd.
4.23. Nor is there anythïng in the Montreal Convention which precludes one State from
calling on anotherto surrender anaccusedperson fortrial outsidethe frameworkofthe Convention,
even where there are no bilateral extraditionarrangements. That is exactly what happened in the
present case. Having called upon Libya to surrender the two accused for trial in Scotland, the
United Kingdom was, of course, not entitled to take any steps to enforce that demand which were
contrary to the rules of international law, and it did not do so. But that does not mean that the
United Kingdom's originaldemandhad to be based upon a legal entitlementwith which Libya had
a corresponding legai duty to comply.
4.24. That point, Mr. President, was explained with great clarity in the joint declaration of
Judges Guillaume, Evensen, Tarassov and Aguilar Mawdsley in the 1992proceedings. Thejoint
declaration stated:
"Beforethe SecurityCouncilbecameinvolved inthe casethe legalsituationwas,
inOurview, clear. The United Kingdom andthe United Stateswere entitledto request
Libya to extradite the two Libyan nationals charged by the American and British
authorities with having contributed to the destruction of the aeroplane lost in the
Lockerbie incident. For this purpose they could take any action consistent with
international law. For its part, Libya was entitled to refuse such an extraditio.. ."31.
Mr. President, the United Kingdom has never contended that the Montreal Convention
required Libya to surrender the two accused for trial in the United Kingdom. Nor does the
Montreal Conventioneither requirethe United Kingdom to make sucha demandor preclude it from
doing so. As the joint declaration puts it, in general international law, "every State is at liberty to
request extradition and every State is free to refuse it'~~~.
31
I.C.J. Reports 1992, p. 24, para. 1.
32 I.C.J. Reports 1992, p. 24, para. 2.
LUWCR97116 - 64 -
4.25. Or, as Judge Oda recognized, in his declaration in the 1992 proceedings33,only if the
United Kingdom had soughtto enforce itsdemandbymeanswhichwere not only incompatiblewith
international law but also contrary to the provisions of theMontreal Convention, only then, would
there be the basis for a dispute between Libyaand the United Kingdom falling within the scope of
Article 14, paragraph 1. Yet what did the United Kingdom do? Having received no satisfactory
response from Libya, it referredthe mattertothe Security Council,together with the United States
and France. How could that possibly have been contraryto international law? As Mr. Bethlehem
has explained, the Security Council had long been concerned with issues of terrorism and had
already taken certain steps in connection with the Lockerbie incident itself. It undoubtedly
possessed the competence to deal with this issue.
4.26. Despite that fact, Libya objects that (and 1quote from the Court's translation of its
pleadings) "the system of the Montreal Convention is, in relation to the system of the
United Nations Charter, both a lexposterior and a lex~pecialis"~~A . ccording to Libya, the result
is that, as regards questions which come within the scope of the Montreal Convention, the
Convention must a priori take precedence over the system provided for in the Charter.
4.27. Mr. President,Members of the Court, this really cannot be the case. Libya's argument
wholly ignoresthe specialposition ofthe United Nations Charter inthe international legal order and
the al1important role which the Charter allocates to the Security Council in the maintenance of
international peace and security. Article 103of the Charter, by providing that the obligations of
a State arising under the Charter shall take priority over inconsistent obligations under al1other
international agreements, expressly creates a hierarchy of treaties and thus sets the Charter apart
from the application of the ordinary principles regarding treaties which are lexposterior or lex
specialis. The special position of the Charter in this respect is acknowledged in Article 30 of the
Vienna Convention on the Law of Treaties, which makes provision for priority between different
treaties but opens with the statement that itsprovisions are "subjectto Article 103of the Charter".
331C.J. Reports 1992, p. 19.
34Libyan Response, para. 2.16. - 65 -
The special status of the Charter has also been recognized in the jurisprudence of this Court35and
in the principalcommenta rie^^^.
4.28. The principle that the operation of the Charter and, in particular, the powers of the
Security Council to address a threat to international peace and security is not dependent upon other
international agreements, even if those agreements are lex specialis or lexposterior has been
demonstrated on numerousoccasions. The Council has taken decisions regarding air traffic which
havebeen appliednotwithstandingthe provisions of the Chicago Conventionandother international
agreements3'. It has taken measures regarding navigation which have prevailed over the special
régime onthe River Danube3'and it has created international tribunals withjurisdiction over grave
breaches of the Geneva Conventions, notwithstanding the express provisions on aut dedere, aut
judicare contained in those convention^^^.
4.29. Moreover, eventhe InternationalCivilAviationOrganization,underwhoseauspicesthe
Montreal Convention was concluded, is obliged, under the terms of the agreement by which it
becamea specializedagency, to render "suchassistancetothe Security Councilasthat Councilmay
request, including assistance in carrying out decisions for the maintenance or restoration of
international peace and se~urity"~~.
35 Case concerning Military and Paramilitary ActivitiesinandAgainstNicaragua,I.C.J.Reports
1984, paras 106-107; see also the 1992 Order in the present case.
36 See, e.g., Goodrich, Harnbro and Simmons, Charter of the UnitedNations(31dedition, 1969),
.614 et seq. and Simma (ed.:)TheCharter of the UnitedNations (1994), pp. 1116 et seq.
"See, e.g., resolution 670 (1990), para. 3 and resolution 757 (1992), para. 11.
38 Resolution 820 (1993), paras. 12to 30. See also the Final Report of the Sanctions Committee
established pursuant to resolution 724, United Nations Doc. S119961946,paras. 4 and 33-40.
39 Resolutions 827 (1993) establishing the International Criminal Tribunal for the Former
Yugoslavia and resolution955 (1994)establishing the International Tribunalfor Rwanda. See also
Geneva Convention 1, relative to the Treatment of Wounded and Sick Persons on Land, 1949,
75 UNTS31, Art. 49; Geneva Convention II relative to the Treatment of Wounded, Sick and
Shipwrecked Persons at Sea, 1949, 75 UNTS 85, Art. 50; Geneva Convention III relative to the
Treatment of Prisoners of War, 1949, 75 UNTS135, Art. 129; Geneva Convention IV relative to
the Treatment of Civilian Persons in Time of War, 1949, 75 UNTS287, Art. 146.
40 Article VI1 of the Agreementbetweenthe UnitedNationsand theInternationalCivil Aviation
Organization8 UNTS(1947) 3.15. - 66 -
4.30. Mr. President, 1do not draw this to the Court's attention forthe purpose of suggesting
that the International Civil Aviation Organization had particular responsibilities of relevance
in respect of the incident at Lockerbi1do so simply to highlight that it is well accepted, even
in the field of civil aviation, that the Security Council may have responsibilities in this area and
that, where itoes and those responsibilities result in the adoption of binding resolutions for the
maintenance or restoration of international peace and security, those decisions prevail.
4.31. As Mr. Bethlehem has explained, the Security Council was concemed with the
Lockerbie incident from theoutset. For the United Kingdom then to go to the Council and raise
the question of Libyan involvement in this and other acts of terrorism was therefore entirely
compatible with the obligations of the Unitedngdom under the Montreal Convention. That is 1
clear from the place which the Charter occupies in the system of international law. It is clear from
the place which the Securityouncil's responsibility for addressing threats to international peace
and security occupies within the system of the Charter. It is clear from the reaction of other
Members of the Security Council and other Parties to the Montreal Convention, with the
unsurprising exception of Libya itself. And it is clear from the text of the Convention itself, for
that text,ontains no provision which expressly or by implication seeks to restrict the right of a
Member of the United Nations to raise an issue of such importance with the Security Council.
4.32. The explosion which destroyed Pan Am flight 103 occurred in United Kingdom
territory. The right of the United Kingdom under international law to try those responsible for the
-
crime - a right which Libya has expressly accepted existed from the begin-inis not derived
from the Montreal Convention but stems fiom the long established rule of customary international
law that a State hasjurisdiction over crimes committed within its own territory. When the United
Kingdom made public the results of its investigation of the Lockerbie atrocity and called upon
Libya to surrender the accused to stand trial, it did not rely upon the Montreal Convention. It has
not done so at any subsequent stage.
4.33. But what is even more important,Mr. President, is that Libya itself made no reference
to the Convention until almost two months after the United Kingdom asked forthe surrender of the - 67 -
two accused. As Mr. Bethlehem hasshown, despite the fact that Libya now assures the Court that
the Montreal Convention isthe only international agreement relevant to the Lockerbie question,
Libya did not mention the Convention until it wrote, not to the United Kingdom but to ICAO, on
11 January 1992,the day after the United Kingdom, the United States and France circulated the
draft of what became resolution 731to the Members of the Security Council. The first time that
Libya raised the application of theontreal Convention with the United Kingdom was in its letter
of 18 January 1992, whichwas written at a time when Libya would have been well awarethat this
draft resolution was circulating.
4.34. Thefact that Libya nowassertsthat the Montreal Convention isneverthelessapplicable
is not sufficient to create a dispute between the two States regarding the application of the
Convention. In the OilPlatformscase, Iran maintained that the 1955 Treaty of Amity between
itself andthe United Stateswas applicableto the United Statesaction, the United Statesdenied that
the Treaty was applicable to the use of force. The two States evidently took differentviews about
the applicability of the Treaty. The decision of the Court shows, however, that this difference
between them was not, in itself, suficient to give rise to a dispute about the application of the
Treaty in respect of which the Court would have had jurisdiction. On the contrary, the Court
insisted that it had to ascertain whetherthe actions of the United States which Iran allegedwere
contrary to the Treaty did in facta11within the scope of its provisions4'. TheCourt looked, not
at the general assertions about the applicability of the Treaty, but at specific questions concerning
its application by the United States. That required the Court to ask whether the conduct of the
United States could constitutea violation of thereaîy. Only wherethe Court held thatthe United
States conduct was capable of amounting to such a violation did it find that it had jurisdiction.
Similarly, Mr. President, in the present case it isnecessary to consider whether the conduct of the
United Kingdom is capable of being assessed by reference to specific provisions of the Montreal
Convention in order to establish whether there is a dispute falling within Article 14, paragraph 1.
41Judgment of 12 December 1996, para. 16.
LUK/CR97/16 - 68 -
4.35. Nor can Libya establishthe existence of sucha dispute by its assertion that it has itself
compliedwith theMontreal Conventionandisthereforeentitled toexercisejurisdiction withrespect
to the two accused4'. There is no dispute, in the legal sense identified by the Permanent Court in
the Mavrommatiscase regarding Libya's claim to have complied with the Convention. It is Libya,
not the United Kingdom, which has brought this case and which is making accusations about
violations of thentreal Convention. An assertion bya State that it is acting in accordancewith
a treaty does not itself create a dispute between that State and another party regarding the
application of that treaty.
4.36. Nor, is there any substance atin Libya's argument that there is a dispute falling
within Article 14, paragraph 1, merely because Libya suggested in January 1992 that the W
International Court should be asked to give a ruling on the application of the Convention and the
United Kingdom did not accede to that suggestion. Such an argument is completely circular. It
amounts to saying that, for theurposes of Article 14, paragraph 1, a dispute regarding the
application of thentreal Convention comes into existence simplybecause one party invokesthe
settlement of disputes provisions in that Treaty. The dispute to which Article 14, paragraph
refers cannot be a dispute about whether or not to apply that provision itself. It must refer to a
dispute regarding the interpretation or application of some other provision of the Convention. To
hold otherwise, Mr. President, would meanthat a disputeregardingthe interpretation or application
of amultilateral treaty existedmerely becauseone of theparties saidso. TheCourt's jurisprudenc-
on this subject, fiom Mavrommatisin the days of the Permanent Court to Oil Platformslast year,
makes clear that such an approach to disputesprovisions in multilateral treaties cannot be accepted.
III. The Specific Provisions relied upon by Libya
4.37. Mr.President, with your permission 1shallturn now to my second point, that Libya
has failed to show that the United Kingdom has done anything which was prohibited by specific
--
42 Memorial, para. 8 (1(6).
LUWCR97116 - 69 -
provisions of the Montreal Convention or that it has abstained from doing anything which the
Convention requires it to do.
4.38. In this context, Libya now invokes five provisions of the Convention: Article 5,
paragraphs 2 and 3, Article 7, Article 8, paragraph 3 and Article 11,paragraph 1. In keeping with
the decision of the Court in the Oil Platforms case, to which 1have already referred, the question
at this stage of the proceedings when the Court has to determine whether or not it hasjurisdiction
is: are any of these provisions by which the lawfulness of the United Kingdom's actions in the
present case can be mea~ured~~?
4.39. If we begin, Mr. President, with Article 5, paragraph 2, that provides:
"Each ContractingStateshall likewise take such measures as may be necessary
to establish itsjurisdiction over the offences mentioned in Article 1, paragraph 1 (a),
(b) and (c), and in Article 1, paragraph 2, in so far as that paragraph relates to those
offences, in the case where the alleged offender is present in its territory and it does
not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1
of this Article."
That provision requires each party to the Convention to "establish" its jurisdiction over
offences covered by the Convention in certain circumstances. The natural meaning of the phrase
"establish itsjurisdiction" is that the State concerned should take whatever measures are necessary
within its own legal system to ensure that its courts havejurisdiction to deal with an offender who
isbrought before them inthe circumstances described inthe provision. It does not require the State
to try an alleged offender, only to put in place the mechanism which would enable it to do so.
4.40. That interpretation of Article 5, paragraph 2, is reinforced by a reading of the other
provisions of the Convention. Paragraph 1of Article 5also requires at least three different States
to "establish"theirjurisdiction over the offences covered by the Convention. Mr. President, if, as
Libya suggests, the dutyto "establish"jurisdiction isto be read as a duty to "exercise"jurisdiction,
then that dutywould be imposedsimultaneouslyuponseveral different States. It surelycannothave
been the intention of the Parties that al1 of those States should simultaneously prosecute the
43 Judgment of 12 December 1996, para. 51.
LUK/CR97/16offender. But it is perfectly reasonableto Saythat al1of them must ensure that their law is such
that they could exercise jurisdiction should the occasion arise.
4.41. Furthemore, Article7 of the Convention requires a State which does not extradite an
allegedoffender "to submitthe caseto its competent authoritiesforthe purposeof prosecution" and 1
then provides that those authorities "shall take their decision in the same manner as in the case of
any ordinary offence of a serious nature under the law of that State". That provision would be
redundant if the requirement in Article 5, paragraph 2, to "establish"jurisdiction is interpreted, as
Libya suggests, as a duty to "exercise"jurisdiction.over, Article 7 clearly leaves open the
possibility that the competent authorities of a State, acting in the manner required by the second
sentence of Article 7, might decide not to prosecute in a particular case. How can the existencW of
such a possibility be reconciled with the notion of a duty to exercisejurisdiction under Article 5,
paragraph 2. The logical conclusion is that Article 5, paragraph 2, is concerned with the creation
of jurisdiction and Articleith the exercise of thatjurisdiction.
4.42. Once it is realized that Article 5, paragraph 2, refers to the creation, not the exercise
ofjurisdiction, it becomesclearthatthis provision has norelevance here. TheUnitedom has
never suggested that Libya has not established itsjurisdiction as required and the United Kingdom
has itself done nothi-g indeed could do nothing - to impede the creation of such jurisdiction
as a matter of Libyan law. Moreover, even if, as Libya maintains, Article 5, paragraph 2, should
be interpretedasrequiring the exerciseofjurisdiction, itwould imposeobligationsonly upon Libya,
-
not upon the United Kingdom or other States.
4.43. A similar argumentapplies to Article 5,paragraph3. This is a savingprovision. 1have
already referred to itIt is designed to make clear that nothing in the Convention operates to
restrict the exercise of existing criminaljurisdiction under national law. Such a provision does not
impose obligations upon any State.
4.44. The next provision to which Libya refers is Article 1.have already explained,
Mr. President, that provision requires a State in whose territory an alleged offender is found to
submit the case to its competent authorities for thee of prosecution if it does not extradite -71 -
the alleged offender. Libya says it has done so and the United Kingdom does not contest this.
Where, then, is the basis for the existence of any dispute under this Article? Article 7 does not
impose obligations on States other than the State in which the alleged offender is found. So, if
Libya has any complaint about the Scottish criminal charges being brought, it cannotbe under
Article 7. Likewise for the United Kingdom's request for surrender of the two accused, and its
resort to the Security Council in support of that request. There is no dispute regarding the
application of that Article which would give rise to jurisdiction under Article 14, paragraph 1.
4.45. Then there is Article 8, paragraph 3, uponwhich Libya now relies. Members of the
Court will recall that that provides:
"Contracting States which do not makeextradition conditional on the existence
of a treaty shall recognize the offences as extraditable offences between themselves
subject to the conditions provided by the law of the requested State".
In its Response, Libya describes this provision as constituting "thebasisof Libya's refusal
to hand the suspectsover to the UnitedKingd~m"~~.Members of the Courtmay find that language
surprising in view of the fact that Libya did not mention Article 8, paragraph 3, either in its
Application to the Court or in the 1992hearings,by which time it had already decided not to hand
over the two suspects and had presumably given the basisfor that refusa1some thought.
4.46. ButArticle 8,paragraph 3, takes Libya nofurther. It is clear that that provision means
that the Montreal Convention requires a State which does not make extradition dependent uponthe
existence of an extradition treaty to treat offences falling within the Convention as extraditable
offences. Itdoesnot, however, requirea Stateto extraditeanalleged offender in circumstancesthat
wouldbe contraryto the domestic lawof that State. The United Kingdomhas never suggestedthat
Article 8, paragraph 3, does place Libya under an obligation to extradite the two suspects. The
provision does not impose any obligations upon theUnited Kingdom. Again, there cannot be a
dispute between the United Kingdom and Libya regardingthe application of this Article.
" Libyan Response, para. 2.26.
t17/LUWCR97/16/moc -72 -
4.47. Since Libya has now made clear that it no longer wishes to rely upon Article 8,
paragraph 2, which it referred to in its Application, and in 1992, the United Kingdom will not
address the Court upon that provision. .
4.48. That leaves Article 11, paragraph 1,
"Contracting States shall afford one another the greatest measure of assistance
in connection with criminal proceedings brought in respect of the offences. The law
of the State requested shall apply inal1cases."
In its Observations, Libya makes much of the United Kingdom's comment on Article 11,
paragraph 1, in paragraph 3.32 of Our Preliminary Objections. Libya treats this comment as a
concessionthat a dispute exists between the parties regarding the application of that provision. In
truth, however, this so-called "concession" is not what Libya seeks to suggest.
4.49. The basis forLibya's claim regardingArticle 11,paragraph 1,appears to be that letters
of enquiry were sent by Libya to the Attorney-General for England and Wales on 27 November
1991 and the Lord Chancellor on the 14 January 1992 requesting the provision of information
relating to the charges against the accused. Neither of those letters made any reference to the
Montreal Convention. The United Kingdom hadalready provided Libyawith copiesofthe Scottish
charges, the warrant for the arrest of the accused and the Statement of Facts prepared by the Lord
Advocate, and it declined to provide Libya with more information.
4.50. Inconsideringwhether the conduct ofthe United Kingdomin this regard might violate
Article 11,a number of points need to be borne in mind. First, at thetime that these requests were
*
made, Libya had not itself invoked the Montreal Convention in any of its correspondencewith the
United Kingdom. Nor had the United Kingdom relied upon that Convention. Forthe failure of the
United Kingdom to supply further information to Libya to constitute a violation of Article 11,the
Convention must at least have been invoked by one of the States concemed.
4.51.Secondly,there were goodreasonswhy Libya was not regardedas anappropriate forum
but Scotlandwas. As the Lord Advocate has explained,the two accusedwere chargedwith having
committed offences as members of the Libyan Intelligence Service and in furtherance of the
objectives of that service. - 73 -
4.52. Moreover,oncethe SecurityCouncil adoptedresolution 731,a matter of onlythree days
after the second letter to which 1havejust referred, there was a unanimous expression of view by
the SecurityCouncil,which the United Kingdom could not ignore,to the effect that Libya was not
an appropriate forum in which to try the two accused. The adoption of resolution 731 was
followed by a series of contacts between the Secretary-General's Special Representative and the
Governmentof Libya. These contacts were markedby a variety of, often contradictory,proposais
emanating from Libya, most of which involved suggestionsfor a trial to take place outside Libya.
This period culminated with the adoption of resolution 748. The United Kingdom submits that its
conduct during this period cannot be regarded as a violation of Article 11, paragraph 1.
4.53. Finally, Mr. President, once Security Council resolution 748 was adopted on
31 March 1992, Libya came under a binding obligation to surrender the accused for trial, an
obligation with which it has still not complied, five and a half yearslater. Once that obligation
came into being, there was no question of a trialtaking place in Libya and any obligation which
the United Kingdom might have had to provide evidence to Libya was clearly superseded by the
provisions of the resolution.
4.54. Article 11, paragraph 1, differs from the other provisions on which Libya has relied,
in that itoes impose obligations upon other States. It is thus capable, in the abstract, of giving
rise to a dispute between Libya and the United Kingdom in a way that the other provisions on
which Libya relies are not. However, once Article 11, paragraph 1, is subjected to a thorough
analysis against the background of the facts of this case, itcan be seen that there is no dispute
between Libya and the United Kingdom here either.
The ACTING PRESIDENT: Do you think you might resume tomorrow ? Whatever suits
you.
SirFranklin BERMAN:Mr.President,Mr. Greenwood'spresentationwill takefiveminutes
longer.
The ACTING PRESIDENT: Certainly. Thank you very much. Mr. GREENWOOD: Thank you, Mr. President. 1am conscious of the passage of time.
IV. Libya Has Misunderstood the Significance of the Securiîy Council's Involvement
4.55. My third point is that Libya's arguments on the issue ofjurisdiction show that Libya
has misunderstoodthe nature and significance of the SecurityCouncil's involvement.This point is
obviously closely linked to the United Kingdom's argument on the effect of the Security Council
resolutionsand will be dealt with in greateretail tomorrow. For the moment, 1just wish to make
two short points.
4.56.First, the UnitedKingdom isnot contendingthat the Montreal Conventionwasrendered
inapplicable because the United Kingdom tookthe questionof Libyan supportfor terrorism andthe
Lockerbieatrocity to the SecurityCouncil. TheUnited Kingdom does notargue, as Libya suggests, d
that the act of seising the Security Council "institutionalized"the dispute. The United Kingdom
maintains that there has never been any dispute between itself and Libya regarding the application
of the Montreal Convention. What we do Sayis that once the Security Council took action, the
legal terrain changed, as the Court recognized in its Order of 14April 1992. By virtue of Article
103of the Charter, the obligations ofal1Members under the Charter prevail over their obligations
under other international agreements, including the Montreal Convention. It follows that, in
assessing whether a particular course of conduct is capable of amounting to a violation of the
Convention, it is impossible not to take account of the overriding obligations created by the
resolutions.
4.57. Secondly,the United Kingdom maintains that in so far as Libya's complaintis that the
sanctions imposed upon it are unfair or unlawful and that the United Kingdom has enforced
sanctions against Libya, this complaint is not capable of coming within the scope of Article 14,
paragraph 1, of the Montreal Convention.
4.58. Once a situationhas beenduly referredtothe Security Council,the subsequenthandling
of that item inthe Council becomesthe responsibility of the Council itself as a collectivebody, and
ceases to be that of the members for the time being in their national capacities. This is so
notwithstandingthe fact that particular actionsuch as draft resolutions may be put forward on the - 75 -
initiative of individual members of the Council, since a proposal, once taken up, passes out of the
hands of the originator and becomes a matter for collective decision by the Council in the exercise
of its powers under the Charter. It follows that proceedings in the Council and decisionstaken by
the Council cannot give rise to a cause of action against an individual State, whatever may have
been the role of that State in the proceedings of the Council. If Libya has a dispute with anyone
regarding the adoption and application of measures by the Council, that dispute is with the
Security Council itself.
4.59. Nothing which the United Kingdom has done with regard to the enforcement of
sanctions against Libya, gives rise to a dispute between Libya and the United Kingdom regarding
the interpretation or application of theontreal Convention. In so far as there is a dispute at al1
regarding the application of sanctions, Mr. President, it is a dispute between Libya and the
Security Council, which of course, is not, and cannot, be a party to these proceedings. The
United Kingdom cannot bear legal responsibility for the actions of the Council.
4.60. Mr. President, once you cut away the undergrowth, you see that the entire Libyan case
rests upon the propositionthat Libya is endowedwith an indefeasible rightto try these accused, to
the exclusion of trial in another State. Without that proposition, Libya's entire case falls to the
ground. But the Court will find no support for such a proposition in the provisions of the
Montreal Convention. That no doubt explains why, five and a half years after lodging the
Application, Libya is stilltruggling to demonstrateto the Court (let alone to us as the Respondent)
exactly what - under the Convention - the Parties are meant to be in dispute about.
4.61. Let me simplyrepeat a brief passage from the dissenting opinion of Judge El-Kosheri
at the Provisional Measures phase:
"inview ofthe factthat the two Libyan suspectswere or are still working forthe government
of their country, and that their trial could eventuallyad to the emergence of a subsequent
case of State international responsibility against Libya, 1 feel that this factual situation
constitutes sufficient grounds to doubt that the interests of both the United States and the
United Kingdom inensuring a fairtrial couldbe adequately safeguardedincasethetrial were
conducted in Libya. Whatever may be the merits of the Libyanjudicial system under normal
circumstances, the need for an even-handed andjust solution leadsmeto consider, withinthe special circumstances of the present case,that the Libyan courtscould not be the appropriate
forum. This conclusion derives logically and necessarily from the fundamental legal
principles deeply rooted inthe legaltraditions of the major systems, particularlyIslamic law
.. .according to which nemo debet essejudex in propria sua ca~sa."~' J
4.62. That is a view with which many may find it difficult to disagree. 1observe only that
-
neither that view, nor the reasoning behind it,erives from the Montreal Convention.
4.63. In conclusion, Mr. President, the United Kingdom submits that Libya has failed to
demonstrate the existence of a dispute between itself and the United Kingdom within the scope of
Article 14. Throughout its pleadings, Libya has asserted that the Montreal Convention is the only
treaty applicable to this aspect ofs relations with the United Kingdom,that it occupies a position
so central that even the United Nations Charter itself must take a secondary place. Yet Libya itself
UW
made not a single mention of the Convention until action by the Security Council was imminent
and even now, five and a half years after it first applied to this Court, it is no nearer to formulating
a dispute which truly falls within the scope of Article 14. Libya's generalassertions that the
Convention is applicable do not create such a dispute. Nor has Libya been able to point to a
provisionof the Convention whichmight have beenviolated bythe conductofthe United Kingdom.
4.64. Moreover, Libya's arguments are fundamentally flawed in that they completely fail to
understand the significance of the Security Council's actions in this matter. Tomorrow,
Mr. President, the Lord Advocate will demonstrate that in resolutions 748 and 883 the
Security Council took decisions which created binding legal obligations for Libya and for the
14
United Kingdom and that, in accordance with Article 103 of the United Nations Charter, the
obligationwhich arisesunder Article 25to complywiththose decisionsofthe Counciltakes priority
over any rights or obligations which Libya might possess by virtue of the Montreal Convention.
Until then, Mr. President, that concludes the submissions of the United Kingdom.
45
ICJ Reports, 1992, p. 112.
t17/LUK/CR97/16/moc - 77 -
TheACTING PRESIDENT: Thank you very much, Professor Greenwood. The Courtstands
adjoumed until 10 o'clock tomorrowmoming.
The Court rose at 1.12p.m.
Public sitting held on Monday 13 October 1997, at 10 a.m., at the Peace Palace, Vice-President Weeramantry, Acting President, presiding