Translation

Non-Corrigé Traduction
l Uncorrecteci I Translation

CR 97/20 (translation)
CR 97/20 (traduction)

Friday 17 October 1997
at 10 a.m.
Vendredi 17 octobre 1997
à 10 heures -2 -

Le VICE-PRESIDENT,faisant fonction de PRESIDENT : Veuillez vous asseoir. la Cour

reprend ses audiencesaujourd'hui pourentendreles exposésorauxde la Jamahiriyaarabe libyenne

dans la phase relative à la compétencedes instances introduitescontre les Etats-Unis d'Amérique

et le Royaume-Uni concernant les Questionsd'interprétation et d'applicationde la convention de +

Montréal de1971 résultantde l'incidentaériende Lockerbie (Jamahiriyaarabe libyennec. Etats

Unis-d'Amérique). Je donne maintenantla parole à l'agentde laJamahiriya arabe libyenne.

Mr.ELHOUDEFU:

1.01. Mr. President, Members of the Court, allow me first of al1to Sayhow honoured 1 am

to appear forthe first time before this prestigiousCourt as Agentfor the LibyanArab Jamahiriya.
*
This is not, however,the first time that Libya has appealedto the Court forjustice. There

isnoneed todayto emphasizethe difficultcircumstances,the majorpreoccupationsandthegrounds

which form the basis of the applicationmy country had the honourto submitto the Court in 1992

relatingto the dispute between itself andthe United Statesof Americaandthe United Kingdomon

the interpretation and application of the Montreal Convention.

1.02.1would also take advantageof this occasionto congratulatethe Judgeswho havebeen

calledto exercisethis highresponsibilitysinceOurlastappearancebeforethe Court. 1havealready

beenable to congratulateJudge Schwebelon his accessionto the presidency ofthe Court. 1thank

his predecessor, Judge Bedjaoui, for the great wisdom with which he exercisedhis functions,and

1alsogreet Vice-President Weeramantry,whoisactingasPresidentinthis case. Finally,1welcome 'jr

the presence in the Court of Sir Robert Jennings. It is an exceptional honourfor me to be able to

defend my country's case before a Court within which are gathered four Presidents and former

Presidents.
.
1.03.Mr. President, Members of the Court, it is with great regret that, in June 1995,Libya

heardof thePreliminaryObjectionsraised bytheUnitedStatesofAmericaandtheUnited Kingdom * 9

regardingthejurisdiction ofthe Courtandthe admissibilityof theLibyanApplication. Ourcounsel

.. n will explain to the Court why those Objections, of which Libyafails to see the well-foundedness
.,,- ,';
orthe legaljustification, must be set aside. 1shall not dwell onthis point whichwill be addressed -3-

by ProfessorsSalmon,David,Suyand Brownlie. 1willmerely Say,at this stage,that we hadhoped

that OurApplication would be understood as a constructive measure and, that there was nothing

unreasonable in the request that, by a decision, the Court remind each of their rights and

obligations. Unfortunately,we have come to realize that, for reasons which it is not appropriate

to rehearse here, the other Parties did not wish that to be so.

1.04. During the course of the statementswhich we have heard to date, allegations which

are particularly serious for my country have been madebefore this Court. 1 do not intendto set

them out here; Ourcounsel will respond to them briefly. 1 will simply Saysomething that a

numberof the Membersof the Court already know, which is that since the 1970s,my country has

supporteda greatnumber ofmovementsfornational liberation, someofthe representativesofwhich

aretodayHeads of State or of respected Governments such as PresidentNelson Mandela. At that

time, as far as the defendants were concerned, these movements or individuals were sometimes

describedas terrorists. Clearlywe do not regret the supportwhich we gave to peoples who were

struggling. At the same time, my country also participates in international effortsto fight against

blind terrorism which strikes innocent victims.

1.05.Libya considersthat it is inthe interestofthewholeofthe internationalcommunitythat

relations between Statesbe establishedaccordingto principals of lawand ofjustice. My country

has alwaysattachedthe greatestimportanceto the work of the Court in this area. It is certainthat

one of the merits of the work of the Court is to reduce the tensions and difficulties in spheres

which, although sensitive, nonetheless present aspects which,by their essence, are amenable to

judicial regulation.

1.06.Moreover,it is clearto the Courtthat the disputebetweenLibya andthe defendantshas

seriousconsequencesfor the lifeof a whole population andaffectsthe whole ofthe region. Libya

.,.. L'. has brought proceedings before your esteemed Courtin the desire to resolve a dispute which, by

its prolongation, causes enormous and unjustified sufferingto its people.

1.07. Mr.President,a constructiveresolutionin accordancewiththe legalprincipals inforce,

that iswhat my countryhopes for and, to that end, it has repeatedlymade proposalsand suggested

solutions,reconciling national law and the relevant rules of international law. My country has always trusted the role of al1the relevantregional organizationsand accepts, in al1sincerity,their

initiatives to resolvethe dispute. My country has expresseditself at the very highest level,by the
.

voiceof the GuideoftheRevolution,Colonel MoammarEl Qadhafi,inorderto request and require

that the truth be established as quickly as possible with regard to this tragedy, which has caused t

mental suffering to the families of the victims and to the Libyan people for far too long.

Unfortunately, al1thoseproposals andconstructiveinitiativeswere rejectedbythe defendantState.

Today,beforetheInternationalCourtofJustice,Libyaremainsfaithfulto itsinitialobjectives:

to obtain a judicial resolution to the dispute, based on the relevant rules of international law.

1.08.Mr.President, Libyahas repliedto the PreliminaryObjectionsraised bythe defendants

W
in its written statement. At this stage of the procedure and in order to assist the Court as best as

possible, our submissionswill be limitedto what is essential in accordancewith Article 60 of the

Rules of Court. For reasons of simplification, the United Kingdom and the United States of

Arnerica,althoughtheyare the Applicantsas regardsthe Objections,will hereafter be describedas

the defendants. Referenceswhich werenot mentionedin the statementsappear in the texts which

were transmitted to you.

1.09.The statements which counselfor Libya will have the honour to present during their

tum to speak, will attempt to pinpoint further the viewpoints and the positions of Libya on the

principalquestions inthe litigation. Withyour permission, Mr.President,we shouldliketo present

those positions today in the followingorder:

-. ,. /. - Professor A. El-Murtadi Suleimanshall explain to the Court the background to the dispute
d
and the fundamental reasons underlyingthe conduct of the defendantsvis-à-vis Libya;

-
Professor Jean Salmon will explainto the Court what isat stake fiom a legal point of view

in this case;

- Professor Eric David will showthat the Court has jurisdiction to hearthe present dispute; .

- Professors Eric Suy and Ian Brownlie willshowthat the Libyan Applicationis admissiblein

al1its parts.

1.10.Mr.President, Membersofthe Court,Libyawouldliketo reiteratethe confidenceithas

in the wisdom of the Court and in the Judgment that the Court will give, a judgment which, by -5-

clarifjing the state of international law on a particularly sensitive question will undoubtedly

contribute to peace and to the quality of the relations between States.

1thankyou,Mr.President,Membersof the Court,forthe kind attentionwith whichyou have

followedmy preliminarystatement. 1would ask you now to let ProfessorEl-Murtadiaddressyou.

Le VICE-PRESIDENT,faisant fonction de PRESIDENT : Je vousremercie infiniment. Je

donne la parole à M. El-Murtadi Suleiman.

Mr. EL-MURTADI SULEIMAN: Mr. President, Members of the Court,

The backgroundto the dkpuie

2.01. It is a great honourto addressthe Court again,this time as counselfor Libya. My task

isto set forththe historicaland political background ofthe dispute; that isto Say,the fundamental

reasons explaining the line of conduct towards Libya adopted by the United States and the

United Kingdom.

Mr.President,the PreliminaryObjectionsraisedbytheUnited Statesandthe UnitedKingdom

must be understoodin light of the particular relations between Libya andthese two States. Their
.- .:-7

attitude has been steadfastly intransigent, prolonging tension and delaying the establishment of

friendly relations based onmutual respect and sovereignequality.

Neither the time imparted to us nor the incidental nature of the proceedings allow us to

describe in detail the meanderings, contentionsand assertionswhich we have already refuted step

by step in thewrittenpleadings submittedto the Court. Nevertheless,Libyamust returnto certain

factual aspects, since both the United States and the United Kingdom continue to put forward at

length contentions which are not restricted to arguments in law, and which lead to a subjective,

biased depiction of Libya. This week, right here, Libya has been presented as a terrorist State

attempting to evade the application of the law.

2.02. Mr. President, firstly, 1shall endeavour to show that such a depiction, of fairly long

standing, far from being based on established facts, is dictated by subjective,particular interests,

interests which constitute thetrue grounds of the dispute and which explain its prolongation. Secondly,1shallendeavourto showthat observanceof the lawandthe willto settledisputes

peacefully have shaped and continue to shape al1 the Libyan initiatives; these initiatives are

designed to reach a fair solution to the dispute.

1. The True Groundsof the Dispute BetweenLibya and the Respondents

2.03. Mr.President, Membersof the Court, it is difficult to separateout the true groundsof

the dispute from the economic and geo-strategicinterests of the United States and of the United

Kingdom, interests which were indeed adversely affected as a result of the abolition of the

Monarchy in 1969.

In geo-strategicterms, Libyawas a key piece of thejigsaw inthe hegemonicpositionsofthe

United States and the United Kingdom. Thusboth States maintainedmilitarybases there untilthe I

--
- ': 5 In economic terms, Libya's will to consolidate its sovereignty removed the exorbitant
"'
advantages which the United States, the United Kingdom and their commercial companies had

enjoyed. Nor is Libyan activity within various international organizations, particularly OPEC,

unrelated to the hostility towards it by these two States.

Lastly, in political terms,Libya's supportfor national liberation movements, particularlythe

Palestinianpeople,andits attachrnentto theprinciplesof the new internationaleconomicorderand

to the groundswell of protest inthe Third World ingeneral, have again been interpretedas coming

into conflict with the interests of the United States and the United Kingdom.

2.04. Thus, Mr. President, well beforethe ernergenceof this dispute, Libya was rankedon

the list of "enemies"of the United States,on a similar footingto Cubaand Nicaragua. It hasbeen

the target of an unending carnpaign of destabilization and disinfonnation. The list of multiple

manoeuvres and calumnies is extremely long. i

Libya will not go through this list here,but will cite a few examplesto illustrate thestateof

relations with the Respondents. It will also give further details relating to certain British and

American allegations noted in this first round of oral arguments.

2.05. Mr.President,the Courthas thusheardthat Libya'sresponsibilityforthe murderofthe

British policewomanYvonne Fletcherin 1984infront oftheLibyan Embassyisan established fact. -7-

A document. broadcast by a British television channel challenged this contention, relying on

serious scientific and technical considerations which were subsequently endorsedby a no less

serious newspaperl. The shots which killed the policewomanare said not to have come from the

Libyan embassy,contrary to the official version.

2.06. After the bomb attacks on the airports of Vienna and Rome in 1985,the American

. . A
t -f AdministrationimplicatedtheLibyanStateandadopteda widerangeofsanctions. The declarations
d
of the Austrian Ministerof Justice, denying the existence of any evidence againstLibya, failed to

quench the American thirst for vengeance.

2.07. Subsequently,a displayof strength wasorganized in the Gulfof Sirte(another boneof

contention) in March 1986; the clash between the Libyan and the Arnerican naval forces left

56 people dead or missing on the Libyan side.

2.08.The same scenariowas played out followingthe bomb in the La Belle discotheque in

Berlin on 5 April 1986. At the time the United States asserted that they had evidence of the

involvement of the LibyanState: that line of enquirywas not confirmedat the timeby the German

judicial authorities responsible for the investigation.

A trial will soonbe held inGennany. Someauthoritieshave expressed scepticism regarding

the proper conductof this trial in view of the lack of CO-operationon the part of the American

Administration, which refuses to provide the evidence in its possession of the alleged Libyan

involvemen?. It hasbeenstated inthe pressthat suchwithholding of informationmaybe explained

bythe factthat anumberofpeopleinWashington believethat the interceptedcommunicationswere

arnbiguousand do not provide conclusive evidence of the complicity of the Libyan State3.

Nevertheless the Court will recall that it was on the basis of the alleged evidence of the

involvement of Libya in this bomb attack that the United States, aided and abetted by the

United Kingdom, bombedTripoliandBenghazi. Mr. President, allowmeto remindthe Courtthat

'The Guardian, 9 April 1996, reproduced inAnnexII of the letter of 10 April addressedto the Presidentof the
Security Councibl y thePermanentRepresentativeof theLibyanArabJamahiriya S,f19961269,11 April1996.

lTheInternationalHeraIdTribune,24 May 1996.

3TheWashingtonPost, 24 May 1996. -8-

the military operation "El Dorado Canyon" launched in Aprii 1986 produced many civilian

- casualties although it was supposedto hit military targets. The operation was condemnedby the

General Assembly of the United Nations (resolution of 20 November 1986),the draft resolution

submittedtothe Security Councilremainingunadopted becauseofthe veto oftheUnited Statesand

. . .,. the United Kingdom.
_:3
2.09. The United States and the United Kingdomalso usedtheir right of vetowhen it came

to examining the validity of the American accusations conceming an alleged chemical weapons

factory at Rabta (east of Tripoli). Libya proposed to the United Nations that a site visit be

organized. TheAmericans,for theirpart, once againbrandishedthe threat ofmilitaryintervention.

2.10. Freshthreatsto use forceweremade inApril 1996. Thistime theUnited Statespointed *

the finger at a new factory at Tarhunah near Tripoli, claiming that it was designed to produce

chemical weapons; they even stated that they were prepared to use a nuclear bomb in order to

destroy the installations concemed, which are in fact designed forirrigation4. The Egyptian and

French authorities requested further informationfrom the American authorities before adopting a

position5. Once again, with no result .. . The lack of any tangible element thus led

President Mubarak to conclude that the whole story was a myth6.

2.11. Mr. President, Members of the Court, the Lockerbie case is merely a similar

intimidatorymanoeuvre. Therelevanceofthe filmsuppliedbyLibya,"TheMalteseDoubleCross",

was challenged by the Respondents, who stated that Coleman, questioned in this document, had
J
already admitted committingperjury. They were at pains to avoid saying that this admissionwas

extracted from Coleman, laid low by cancer, against his release on bail.

In any event, we are delightedto notethe statementby Lord Hardie that "anynew evidence

will be considered and any relevant line of enquiry suggested by such evidence will be pursued

4TheNew YorkTimes,24 May 1996.

'TheInternational Herald Tribu8, Apri1996.

6TheInternational Herald Tribu3,1May 1996. vigor~usly"~.In the past, however,we notethat any suchreadinessto pursueother linesof enquiry
- . A !I.
-. ' 'e
did not amount to much. Today, the German authorities alone have decided to reopen the

Lockerbie investigation in the light of newelements8.

2.12. TheAmericanreactionsfollowingthe destruction ofthe TWABoeinginJuly 1996also

deseme mention. Thefirst reaction, obviously, was once again to denounce "countriessuspected

of supportingterrorism", chief amongthem Libya! Even thoughthe cause of the explosion of the

TWA Boeing could have been anything, the American Administration clamoured for tighter

sanctions,particularlyagainstLibya. Theinvestigationhastaken severaldirections. Atthe present

time, the most fiequently suggested explanation for this terrible accident is a technical faultg.

Despitethese developments,the AmericanGovemmentredoubledits effortsto punish States

which trade with Libya, Iran and Cuba; it adopted the d'Arnato10 and Helms-BurtonActs which

have been widely challenged in the international community. A strategy which prompted a

journalist for Le Monde to conclude that terrorism had become "the excuse for a trade war"";

somethingwhich Libya never doubted.

2.13.TheGeneral Assemblyalsoaddressedthese shiftsawayfiomthe issue. Initsresolution

of 17 December 1996,it asked

"al1States, with the aim of enhancingthe efficient implementation ofrelevant legal

instruments,to intensifi, as and where appropriate, the exchange of information on
facts related to terrorism and, in so doing, to avoid thedisseminationof inaccurateor
unverij?edinformati~n;"'~

Libya can only applaud this stand and hope that it will inspire the future conduct of the

Respondents.

'Oral submissions of the UnitedKingdom: Monday, 13 October 1997,CR 97/16, p. 34.

'The GuardianWeekly,13July 1997.

'Newsweek,19May 1997.

'ODocumentsd'achralitéinternationale, No. 19, 1October 1996, pp. 778-782, see the European reaction of

21 August 1996, ibid., p. 782.

"Le Monde,30 July 1996.

12Resolution511210 of 17 December 1996,para.4 (emphasis added). -10-

Libyan Initiatives Aimed at Achieving the Settlement of the Disputes with the Two States

2.14.Mr. President, Members ofthe Court, under circumstances of extreme tension,with

Americanthreats to use force prompt to materialize, Libya has patientlyand fiequently made use

of the many means which international institutions make available to States for settling their

differences peacehlly. The letters, complaintsand other documents submitted by Libya to the

Security Council over the last 20 years, with the objective of normalizingrelationsand of settling

differences peacefully, bear witness to this. Such a settlementhas been systematicallyhampered

by the two States.

Libya has steadfastly put forward proposals which wouldenable tension to be defused and

justice to be done; it is supported in this by a growing number of States and international e

organizations. Conversely,the United Statesandthe United Kingdompersist inbrushingasideany

initiativewhatsoeverand vie with each otherin repeatingthat only "surrenderingthe suspects"will

be considered as a gesture of good will.

2.15. Yet, Mr. President, Libya has sparedno effort. Firstly, as set forth in its Memorial

lodged in 1992, it has taken al1appropriate steps to complete the investigation (arrest, custody,

appointment of an investigating magistrate, requests for international CO-operatione,tc.) and has

done so in compliance with Libyan law andthe Montreal Convention. None of these initiatives

have defused the conflict.

2.16. Libya has pursued its endeavours, proposing further solutions with the aim of 1

reconciling Libyan law, the rights of the suspectsto a fair trial, the relevant rules of international

law and the demandsof peace and internationalsecurity. Al1these proposals havebeen set forth

in Our written observations; let us take merely the most recent ones. In a letter dated

27 January 1996, Libya proposedthat neutral observers visit Libya in order to verify the tmth of

the threat that Libya was said to pose to internationalpeace and securityby its alleged supportfor

international terrorism; yet again it has demanded an independent inquiry into the exact

circumstances of the explosion of the Pan Am aircraft13.

13S/1996/73, 1 Januar996,p. 4. - 11 -

Libya has provided,to the satisfaction ofthe British authorities, informationon its former

relations with the IRAI4. In the enquiry into the explosion of UTA's DC 10, the French

investigating magistrate was received in Tripoli and giventhe information he sought,which, in

Libya'sview, complies with its obligations of CO-operation under the Montreal Conventionl5.

Lastly, far fiom refusingto have the suspectstried, Libya again reiterated in 1996one of its

proposals to have them tried at the Peace Palace by Scottishjudges under Scottish law16.

2.17. My country'sactionshavepromptedal1the regionalorganizationsconcernedto support

the Libyan proposals for escaping from the impasse in which the United States and the

United Kingdom had trapped it.

The League of Arab States, comprising22 Members, has echoedthe Libyan initiatives on

severaloccasions, asking three western States to respond favourablyl'.

The Organizationof the Islamic Conference,comprising52 States,also expressedsupport

for Libya18.

The OrganizationofAfricanUnity,comprising53member States,hasalsourgedthe Parties

involved, in several resolutions, to agree to have the suspects tried in a neutral countrylg.

TheNon-AlignedMovementrepresentingover halftheMembersoftheUnitedNations - or

113 States - has alsosupportedtheLibyan positions, urgingthatthe alternativesjointly submitted

by the OAU and the Arab League be taken into c~nsideration~~.

I4Thiseffort has been recognizedas a positive stepby the British Gov..,see Sl1996173,p. 3.

I5LeMonde, 6 July 1996, 20 September 1996; The InternationalHerald Tribune,21-22 September 1996.

I6Letterdated 10April 1996,Sl19961269,11Apnl 1996,p. 2.

"See resolution 5373of 27 March 1994,resolution 5431of 15 September 1994,resolution21 September 1995,
and meeting of the League andthe OAU on 11 April 1996,see Sl19961369,12 April 1996.

"24th meeting of Ministersof ForeignAffairs,Documentd'actualité internN,o. 5, 1 March 1996,pp. 199-200.

I933rdordinary session of the Conferenceof Heads of State and of Govemment,Harare, 2-4June 1997.

2012thMinisterial Conference of the NAM;Final Declaration, New Delhi, 4-8 April 1997,Documents d'actualité

internationale,NO.13, 1July 1997,p. 458. - 12-

These declarations also contain an appeal to the SecurityCouncil to lift the embargo which

weighsheavily on the Libyanpopulation,and expressconcem at the on-going threats to use force.

2.18. The position ofthe Vatican shouldalso be noted. TheHoly See resumed diplomatic

relations with Libya in Marchof this year, arguing that it hoped to help give a special boost to

internationaldialogue through the normalization of itsrelations with the Great Socialist People's

Libyan Arab Jarnahiriya2'.

- ,- fi 2.19. Mr.President, Members of the Court, to conclude this statement, it is apparent that:
.a L.'-'
-
firstly, the reactions of both States following the tragic explosion of the Boeing above

Lockerbie may be explainedby geopoliticaland ideologicalconsiderationswhich bearlittle

relation to thetrue facts; Libya andthe families of the victimsare stillwaiting forthe exact WP

circumstances of the tragedy to be explained. No one has ever had even a glimpse ofthe

alleged evidence held by the American investigation services in this case, as in others;

- secondly, the determination to destabilize Libya is prompting both States to disregardthe

procedures and rules applicable to the peaceful settlement of disputes.

Mr. President, Members of the Court, 1thank the Court for its patience in hearing me and

would ask you, Mr. President, to give the floor to Mr. Salmon.

Le VICE-PRESIDENT,faisant fonction de PRESIDENT :Merci, Monsieur Suleiman. Je

donne la parole à Monsieur Salmon.

Mr. SALMON:

Introductoryobservafionson the Iegalhues

3.1. Mr. President, Members ofthe Court, it is always an honour for counsel to be able to

addressthe Court; again 1owethis privilegeto the Libyan Government,whichis before youonce

more in the cases conceming the interpretation of the Montreal Convention.

In order to grasp the fundamentallegal issues at stake in these proceedings, it is important

to give a brief account of certain facts.

"LeMonde, 12Mach 1997. 3.2. Thequestionwhich concernstheCourttodayiswhethertheMontrealConventionapplies

to the facts 1 shall now address and which 1 shall enlarge upon in their context of general

.. ' < international law.
., - .
3.3. The tragic destruction ofPan Am flight 103 took placeon 21December 1988. Some

three years later,on 14November 1991,an indictmentwas handed down by the Grand Jury ofthe

Districtof Columbiaandawarrant of anest wasgrantedto theProcuratorFiscal of Scotlandagainst

two Libyan nationals accused of havingplaced on board the aircraft an explosive device said to

have caused its destruction. These dramatic accusations were a source of consternation to the

Libyan Government.

The documents containing the charges were communicated to it four days later on

18 November 199 1,in the case of the United Kingdom,and on 20 November 1991 in the case of

the United States. On 18 November, in Tripoli, the Department of Justice took the first steps

towardscriminalproceedings. Themutualassistanceprocedurewasset inmotionwiththecountries

concerned. That shows the rapidity with which the Libyan Govemment took the accusation

seriously and put matters in hand. In the absence ofa mutual assistancetreaty between the States

involved, the Libyan request forjudicial assistance fell implicitly within the fiarnework of the

Montreal Convention.

Eight days later,however,on 27November 1991,withoutthe slightestregard for the request

made by the Libyan magistrate, the Govemments of the United States of America and the

United Kingdom published a joint declarationworded as follows:

"TheBritish and American Governmentstoday declare that the Governmentof
Libya must:

- surrender for trial al1those charged with the crime; and accept responsibility for the
actions of Libyan officiais:

- discloseal1itknows ofthis crime, includingthe namesof al1those responsible,andallow
full access to al1witnesses, documents andother material evidence, including al1the
remaining timers;

- pay appropriate compensation. - 14 -

We expect Libya to comply promptly and in full."'

. :> ,-*
. .II'. 3.4. No purpose is served, 1believe, by emphasizing thehighly 19th-century natureof the
- .-.
languageandthe dictatorialarrogancewhich such a presentation betrays. Yet, as we shall see,the

fom corresponds exactly with the substance. Moreover,this languagewas accompanied,on the

part of the two States, by scarcely veiled threats of force2. ProfessorBrownlie will have occasion

to comment fûrther on this point this afternoon.

What subsequently becarne characteristic of the behaviour of the two States was the

non-observanceof international law and at the same time the non-observanceof the rules relating

to the settiement of disputes. These are the two points 1should liketo deal with this morning.

1. Non-observance of international law

This non-observance is evident as regards boththe rules on the internationalresponsibility

of States and the mles relating to respect for human rights.

A. Violations ofthe rules on international responsibility

3.5. ThisCourt hasno need to be remindedof the elementaryrulesof the law of international

responsibility of States. As described in the International Law Commission'sclraft:

"Article 1

Every internationallywrongfulact of a Stateentailsthe internationalresponsibility of

that State"

and
'Yrticicl3e

There is an intemationally wrongfûl act of a State when:

(a) conduct consisting of an action or an omission is attributable to the State under
international law; and

that conduct constitutes a breach of an internationalobligation of the State."
(b)

Consequently, for Libya to be able to incur internationalresponsibility, it had to be proved

that there was a wrongful act and that the act was ascribableto that State.

--

'S123308.

2SeeLibyanMernorialof 20 December1993,para.2.8. -15-

For that purpose, the guilt of the Libyan nationals had first to be proved. Neither of those

conditionswas met in the present case,since the Respondentsconfined themselvesto accusations

and were naive or presumptuous enoughto askthat Libya shouldfurnish materialevidenceoftheir

allegations.

Onthe suppositionthat this proof - this proofof guil- had beenforthcoming,which was

not the case, proof would then have been needed that the acts of the persons accused were

attributable to the Libyan Government and, again according to the principles of the law of

internationalresponsibility,

(a) either that they were private individualsand Libya must be shown to have failed in a duty

of vigilance regarding terrorist activities deemed to have been within its knowledge and

which it might - in the circumstances - have prevented;

or that the acts were acts of agents of the Libyan Governmentor of persons who, although
(b)

not agents of that State, had in the present case acted on behalf of the Libyan State.

On this latter point,Mr.President, the Libyan Govemment actually made things easier for

the Respondents - while denying that the two accused persons had formed part of its

secret service- by undertaking, in a forma1 guarantee expressed on 27 February 1992, to

compensatethe victims if it was proved that Libyan nationals had participated in the crime.

Their guilt, however, and the responsibility of the Libyan Government which mighthave

ensuedfiom it, have not been provedby anyone. Thereare merelyaccusations,put forward indeed

with assurance,and with such a degreeof bluff asto securethe subsequentsupportof the Members

of the Security Council, but of a fiagility widely dwelton subsequentlyin the press, on television

and even in literature devoted entirely to this question. Othervery serious leads have been put

forward. The Libyan Government will not revert to this aspect of the matter, which it has

mentioned briefly in its pleadings in order of course to answer the Respondents'allegations.

It is nonethelessthe casethat inthe eyes of the RespondentsLibya is consideredresponsible

and is called upon to make reparation, before the conditions of any such responsibility are

established. Affirmation replaces demonstration. - 16-

B. Violafionsof the elementary rules of human rights relating to afair trial

3.6. Independently of the Libyan State, the Libyan nationals in question are also judged

before their time and sentenced in advance of trial, sincethe Libyan Stateis called upon to prove

and to redress their alleged misdeeds. What remains of the presumption of innocence in these

circumstances? And what fair trial can States capable of such action claim to offer the accused?

How can ajury whichfor years hasbeen bludgeonedwithofficial anti-Libyanideology hesitateto

presume these persons guilty, when sinister photographsof them are published and four million

dollars is offered to theerson who will go and find these nationals of a State punished by the

United Nations for their crimes?

Mr. President, Members ofthe Court, these circumstances showjust how derisory are the J

professions of faith and the litany of virtues and impartiality of the Scottish and the American

judges.

It would be a manifest violation of the right to a fair trial to surrender accused persons in

circumstancesof this kind. We know that in a similar situationIreland refüsedto extraditeto the

United KingdommembersoftheIrishRepublicanArmysimilarlyconvictedinadvancethroughthe

manipulation ofpublic opinion.

Article 3 of the Mode1 Treaty on Extradition adopted by the General Assembly of the

United Nations on 14 December 1990 (AlRes. 451116)provides likewise that:

"Extradition shall not be granted. . . Cff the person whose extradition is
requested ... would not receive the minimum guaranteesin criminalproceedings,as
contained in the International Covenant on Civil and Political Rights, Article

These actions show that the Respondent States areno more respectful of human rightsthan

they are of the rights of weak States.

At this stage of my statement it is perhaps appropriateto correct the mistaken construction

which may have been placed on the letter of 29 September 1993 addressed by .

Mr. Omar Mustafa Almuntasser, the Libyan Secretary for Foreign Liaison and International

Co-operation,to the Secretary-General of the United Nations3. In thatetter the Minister, in the - 17-

light of the assurances given by the United Kingdomauthoritiesand communicatedto him by the

Secretary-General, indicated his wish that the two suspects should agree to give themselves up

voluntarily and made it known that he urged them to do so. In additionto that, their lawyers had

to be convinced that the guarantees were adequate. As we know, they took the view that such

would be the case only if the trial were to take place, even beforeScottishjudges, but on neutral

territory, and preferably at the Peace Palace in The Hague. Thenceforththe LibyanGovernment

worked on that solution and on the other similar proposals to which ProfessorMurtadi drew

attention a short while ago, and which are conducive to ensuring a proper trial for the persons

concerned.

For the Libyan Govemmentit was thus a question of producing anadequateand reasonable

response, along the lines of the Security Council requests, that would reach beyond the issues

dividing Libya and the two Respondents.

That kind of solution had already been envisaged by Judge El-Kosheri in the dissenting

opinion which he appended to the Orders of the Court of 14 April 1992 on the requests for the

indication of provisional measures. The Respondents havebeen very happy to cite paragraph 64

of the opinion,in whichJudge El-Kosheri explainedthe reasonswhy in his view theLibyan courts

could not constitute an appropriateforum. They have not breatheda word about paragraphs 61to

63 of the sarneopinion, in whichJudge El-Kosheri showedthat the courts of the United Kingdom

and the United States could not claim to guaranteethe suspects a fair trial. Why? Here is a little

riddle to which the Court will doubtless find an easy answer.

II. Non-observance of theruleson the peacefulsettlementof disputes

3.7. Dothe Respondentsexhibit any greaterdegreeof respect for internationallaw in regard

to the procedure for settling this dispute?

On the contrary, we find a systematic intent to avoid judicial settlement.

3.8. (1) It is not disputed that there exists between the countries concerned a specific

convention,the Montreal Convention, whichis specially designedto deal with repressions of this

kind. ThatConventionhas remained - until now - the preferred legal instrumentfor combating aerial terrorism. Every year - and once more in resolution 5 11210of 17December 1996- the

General AssemblyoftheUnited Nationsrecommends al1Statesto envisagebecomingPartiesto the

Convention as a matter of urgency, and to adapt their national legislation in such a way as to

establish thejurisdiction of their courtsover the perpetrators ofterrorist acts and provideassistance

andsupport to other Statesforthese purposes. It is alsothe casethat, besides,no extraditiontreaty

exists between Libya and the Respondent States. Thenatural legal basis of any international

criminal CO-operationbetweenthose concemedisthereforeeitherthe Montreal Conventionor their

mutual consent based on the principle of the sovereignequality of States.

Libya's action is directly and totally in keeping with the provisions of the

Montreal Convention. r'

3.9. (2)The United Kingdomand the United States,on the otherhand, have fromthe outset

establisheda strategydesignedto setasidethe Montreal Convention. Theymake no secretof this4.

.. .\r- That strategy was apparent immediately, since the ultimatum was issued eight days after the
; L /

diplomatic transmissionto Libya of the domestic acts of procedure.

The text in question is indicative ofa state of mind. The Respondentsintend to secure the

"surrender" (what a nice word) of the alleged suspects, by intimidation and, if necessary, by

coercion. Thatis whatMr.Murphy modestlycallsa "diplomaticinitiativeu5.Had the Respondents

followed the only course opento them in the legal relationshipsexistingbetween themselves and

Libya, the Montreal Convention,they wouldhave hadto makea request for extradition in due and
i
proper form. Libya would then have been entitled to refuse that request, since the

Montreal Convention is govemed by the principle aut dedere aut judicare, and the persons

concerned are Libyan nationals.

The Respondents likewise intended to avoid anyform of judicial CO-operationwith Libya,

something which was nevertheless mandatory under the Convention. Moreover,recourse to that

4See,e.g., theoralstatementof Mr.Murphy,CR97/18,para.2.21.

'"A diplomaticinitiativefor thesurrefor trialof thesuspect, R97/18,para.2.22. - 19-

would have permitted notonlya scrutinyby Libyaofthe assertionsput forwardby the Respondents

but also collaboration in seeking the truth.

Whenthe diplomaticcommunication, thisintimidatory step accompaniedby scarcelyveiled

threats, proved hitless, the United Kingdom and the United States stepped up their pressure by

seeking a process of novation, transfonning their requests, which were indisputably contrary to

Libya'srights underthe Montreal Convention,intoa request emanatingfromthe Security Council.

3.10. Faced withthis body of threats, and sincethe differences of opinionon the application

of theMontreal Conventionwerenowpatentlyobvious,Libya, inan attempttoresolvethem,relied

on the arbitration clause stipulating that jurisdiction lay with the International Court of Justice.

3.11. In this respect the Court will be mindfil that the interesting exposition by

Mr. Bethlehem of the chronology of events has the merit of bringing intothe limelight the race

which took place between a developing country and its two super-Power opponents to secure

recognition for its rights through a process of peaceful settlement of disputes.

On this subjectwe ought to look briefly at an argument put forward by the Respondentson

a number of occasions: the delay shown by Libya in invoking the Montreal Convention, namely

on 11 January 19926,whereasthequestionhadbeenbroughttotheattentionofthe Security Council

as early as 16November 1991.

There are neverthelesssinsof omissionasregardscertain essentialaspectsof the chronology

put forward by the Respondents: the first State to submit the Lockerbie issue to the

Security CouncilwasneithertheUnited Kingdomnorthe United States,butLibya, ina letterdated

16November 1991'. It is interestingto note that in that letter, Libya, confrontedfor the first time

with the circulation two days earlier of charges against itself and its nationals, at once urged the

United Kingdom and the United States:

6Mr.D. Bethlehem, CR 97/16, p. 44, para. 3.18; and p. 53, para. 3.42;r Greenwood,ibid., pp. 66, 72, 76,
paras. 4.32, 4.47-4.49, 4.63; Mr. J.R. Crook, CR 97/18, p. 34, para. 3.11.

'UnitedNations, Doc. S123221,United Kingdom Preliminq ObjectiAnn.43. "«des'enremettre à la logiquede la loi, à la sagesseet à la raisonet de faire appel au
jugement des commissions d'enquêteinternationales impartiales ou de la Cour
internationalede Justice»*(les italiques sont de moi).

A letterrelatingto the Lockerbiedrarnawas alsotransmittedby Libyatothe Security Council

andthe United Nations General Assembly twodays later,on 20 November 1991 '. It wasnot until

20 December, one month later, that the Respondents and France laid documents on the matter

before the United Nations1'; these were circulated to the Security Council and the
- .,,i
-' L
General Assembly on 31 December.

The previous day, however, Libya had already written to ICA0 pointing out that the

accusations against it were "violations of al1the legal instruments which serve as a basis for

w"
activitiesrelating to civil aviation"". It was certainly 11days later, on 1 January 1992,that Libya

explicitly invoked the Montreal Convention for the first time. As we have already pointed out,

however,byimplicationthe requestof 18Novemberforjudicial CO-operation wasbasedexclusively

on that instrument of CO-operationbetweenthe States concerned.

That is the precise course of events,onewhich, as we can see, is at quite someremovefrom

what has been described as a "deliberate strategy to forestall further action by the

Security C~uncil"'~.On the contrary,a correctvision ofthe collaboration betweenthe Counciland

the Court was envisaged by Libya from the outset.

As regardsthetechnical pointof the allegeddelay in invokingthe MontrealConvention,and

in so far as this is necessary, Libya will merely observe that in the Militaïy and Paramilitary
I

Activities in and againstNicaragua case, in which the United States had waited far longer than

11days before invokinga Treaty of Friendship,Commerceand Navigationof 1956asthe basis of

the Court'sjurisdiction,the Court stated that "the fact that the 1956Treaty wasnot invoked in the

- - -- --

'Ibid.

'UnitedNations, Doc. Ai461660and 923226, ibid . ,n. 44.

"United Nations,Docs. Ai461825-828and Sl23306-23309,ibid., Anns. 5-8.

"Observations of Libya on the Preliminary Objections raisedby the UnitedKingdom,22 December 1995,p. 36.

I2Mr.J. R. Crook, CR 97/18,p. 34, para. 3.11. - 21 -

Application as a title ofjurisdiction does not in itself constitute a bar to reliance being placed on

it in the Mem~rial"'~.

- ..1.. 3.12. Withoutgiving Libya an opportunityto have this legal issue of the application of the
-: L'

Montreal Conventiondealt with accordingto the normal procedure,the Respondents went ahead

with a draft resolution which was adopted by the Security Council on 21 January 1992 as

resolution 731. Paragraph 3 of this resolution requested the Libyan authorities "to provide a full

and effective response" to the requests - in particular to those of the two States.

3.13. That was the situation when, on3 March 1992,Libya seisedthe Court with a view to

obtaining fiom it a decision on the rights which it believes it possesses and on the obligations

which, in its opinion, lie with the Respondents by virtue of the Montreal Convention.

In a separate Application on the same day, Libya filed a request to the Court for the

indication of provisionalmeasures.

In order to preventthe Court fiom ruling on the legal issues beforeit, the Respondentsthen

caused the Security Council - with the case already before the Court and subjudice, and its

decision not yet handed down .- to adopt resolution 748 of 30 March 1992.

The sequel is commonknowledge. Without making a determinationon its jurisdiction on

the principal issue,the Court,by itsOrdersdated 14April 1992,decidedthat it was unableto grant

theLibyanrequestsforthe indicationof provisionalmeasures (1 C.J Reports1992,p. 15,para. 43).

However, since Libya had no intention of giving way to the demands of the United States

and the United Kingdom, those two States succeeded in having the Security Council adopt

resolution 883 (1993) imposing sanctions on Libya.

It is nosecretto anyonethattheUnited Statesusesthe Councilasan instrumentof its foreign

policy whenever it can. As Fred Hiatt wrote in the WashingtonPost of 26 August 1996,

«Bushavaitreconnu,commel'afait Clinton,que lesNations Unies peuventêtre
un instrument utile à la diplomatie des Etats-Unis, a laquelle il procure un puissant
effet de levier, et qui ne peut en aucun cas être dirigé contrlees Etats-Unis, en raison
du droit de veto dont ils dispose»14

I3Judgmeno tf 26 November1984, I.C.J. Reports1984, p. 426, para.80.

I4PageA 13. 3.14. Mr. President, Members ofthe Court, al1this is surprising indeed. One wouldthink

oneselfon another planet - perhapsthe one where the much-vauntedinternationalorder is nicely

established? For here we have a State being made the victim of sanctions on the basis solely of

the assertion that it may - perhaps - have committeda wrongfulact. And so the non-surrender

of persons suspected by super-Powers becomesa threat to the peace!

3.15. Some consideration should be given in this respect to an opinionof 10August 1972

inwhich the Legal Office of the SwissFederalPoliticalDepartment expressedviews which, in my

opinion, are sensible in the extreme:

"2. The wrongful act must be duly evidenced. In the international practice
followed in the 19thcentury, it would happen that a State, which was generally a
major Power, reservedto itself the faculty of unilaterally characterizingas wrongful
the conduct of another State, which was generally a weaker Power. It would then
apply sanctions against that second State despite the latter's objections to the
characterizationof the act. This practice, whichevokesthe most unpleasant memories
of internationallife,no longercorrespondsto present needsin relationsamong States.
Sanctions are inconceivablein Ourtime without anobjectivemechanismenablingthe
violation of an internationalrule to be evidenced beforehand, withal1the necessary

safeguards. Moreover, the State which is accused of such a violation should have
every opportunity of explaining andjustifj4ng its conduct beforethe organ which is
required to hand down the decision." (ASDI, 1977,p. 237.)

The Legal Office of the Federal Political Departmentwent on to Say:

"3. Even ifthe negative conclusion resultingfromthe preceding paragraph were
not to be accepted, it would haveto be agreed in any event that, in accordancewith
the presentstate of thelaw,the applicationof sanctionsisunacceptablewhena dispute
settlementprocedureexistsbetweenthe Statecommittingthe allegedwrongful act and
the State which is the victim of it. In other words, the application of a sanctions

machineryagainstthird Stateswouldat al1eventsbe impossiblebetweenStateswhich
had subscribed to the judicial settlement clauses of The Hague and Montreal
Conventions or were bound by the optional clause in Article 36 ofthe Statute of the
International Court of Justice (RS 0.193.501), or again had concluded a bilateral
agreement for conciliation or arbitral or judicial settlement." (ASDI,1977,p. 237.)

- , .-- Earlier, in 1934, the Institute of International Law had said things of the same kind in
duri
connectionwith reprisals, and the InternationalLaw Commission adopteda similar position in its

Draft Article 48 on State Responsibility.

3.16. Once again we cannot fail to notice, on the part of the two major Powers,a disdain of

respect for the law and a propensity to impose their views by resorting to the primacy of power

relationships. We are thus faced with a double abuse of process: on the one hand the use of the

Security Council machinery for personal ends, so as to clothe the bilateral dispute in the guise of - 23 -

an allegedly internationaldispute, andon the otherthe attemptby this new method to setaside the

jurisdiction of the Court.

3.17. The first abuse of process consists in utilizing the Security Council machinery for

persona1ends, so asto clothethe bilateral disputeinthe guiseof an allegedly internationaldispute.

The novation is no more than apparent, however. The Membersof the Court, al1of whom

are experts in international affairs, know perfectly well that if the United States and the

United Kingdom consented to the proposals made to them by a number of regional international

organizations for an impartial international enquiryand a neutral internationaljudge, the dispute

would long since have been settled.

These two States contend that Libya, by opposing the Council, is opposing the will of the

internationalcommunity: take for example the statement of Mr.Gnehm- speakingon behalf of

the United States - before the United Nations General Assembly on 1 October 1996,or that of

Mr. Hollis the sarneday:

"Libya'srefusal to meet the requirements of the SecurityCouncil shows the
measure of its regard for the United Nations. Evasion of these requirements will not
bring a solution to the problem between Libya and the world of nations."
(Al51PV.17,p. 28.)

"This is not about a dispute between theLibyan Government anda number of
countries. It is about the need for the internationalcommunityto respond to acts of
internationalterrorism ..." (Ibid M,r. Hollis (United Kingdom).)

That Libya would oppose the United Nations? The internationalcommunity? Would that

notmean believingthattheseexpressionsexcludeal1those memberStateswhich havetakenLibya's

side? If so, it wouldmean believingthatthe ArabLeague15,the Organizationof Afiican States,the

IslamicConferenceandtheNon-AlignedC~untries'~ formedno part ofthe internationalcommunity.

Is this possibly the new international order in a fresh reincarnation?

"Decision5373of 27March 1954 of the Councilof the ArabLea(SI1994137of 31March 1994);decision5506

of21 Septernbe1995 of the Councilof the Lea(SI1995183of 4 Octobe1995).

'6Resolutiono27April1995(SI19951381of10 May 1995): "afair and impartialtrial of those accused,to be held in
aneutral country agreedupon by al1Parties". 3.18.Mx- .resident,Membersof the Court,everyoneknowsthatthe entire systemis blocked

by the obstinacy of two States - despitethe calls from the great majority of the countries which

make up the United Nations.

Must we draw attention to the three options suggested to the Securiiy Council by the

Conference of Heads of State of the Organization ofAfiican Unity at Harare in June 1997?

"In order to contribute to the search for a rapid and just solution to the

conflict .. .the Conferenceexpressesthewishthatthe Security Councilmayexamine
ways and means of solving the crisis rapidly and, to that end, submits to it the
followingproposalsadoptedjointly with the League of Arab States,and supportedby
the Non-Aligned Groupof Countries:

First option: To hold the trial of the two suspects in a third and
neutral country,to be designated by the Security Council.

Second option: To have the two suspects tried at the seat of the
International Court of Justice (ICJ) in The Hague, accordingto Scottish

law and by Scottishjudges.

Third option: To establish a Special Criminal Tribunal to try the
two suspects in The Hague, at the seat of the International Court of
Justice."

Although the SecurityCouncil declared its conviction "that those responsible for acts of

international terrorism must be brought to justice", a conviction which Libya for its partfully

. y, i
2 l-l shares, the Council has not - as Professor Suy will explain later - endorsed as it stands the

solution which the Respondents wish to impose. In particular, the Council has never had the

opportunityto express its opinion on the solution of an impartialinternationaltribunal, whichthe

Council itself is invited to appoint.

Thatwould be an appropriatecourse for ensuringthatjustice is done both to the memory of

the victims, which requires that light be shed on the subject, and the right of the accused to

impartialjustice. There isno reasonto thinkthat, were it not for the obstinacyoftheUnited States

and the United Kingdom,the other Members ofthe Security Council would opposethe solutions

proposed by the majority of the internationalcommunity.

But alas, althoughthe memory of the victims and the right of the accusedtojustice combine

the safeguardswhich internationallawrequires,the United Statesandthe United Kingdomplainly

demonstratethat they have no regard for them: one would think they wished to avoidthe risk of - 25 -

an independent external investigation and an impartial judgrnent that would undermine the

condemnations put forward on suspect grounds, fiom the outset, with the purely political aim of

destroying a régimewhich refuses to obey them.

3.19.The second abuse of process is representedby the attemptto employthis new method

to set aside the jurisdiction of the Court.

Within the period laid down for filing the Counter-Memorial on the merits, the

United Kingdom and the United States raised Preliminary Objections. This was a further

manoeuvre to prevent the Court fiom handing down a decision on the merits.

The intentionhere isto renderthejurisdictionalclauseofthe MontrealConventionvoid. The

claim is thatno disputeexiststhat is based onthe MontrealConvention. Professor David will reply

to these allegations shortly.

It is contendedthat Libya seeks to have the resolutionsof the Council annulled, something

which is absolutelyerroneous,asProfessor Suywill show. The Courtispresentedwiththis spectre:

- <-
.. . 5 that if it wereto considerthe merits of the Libyan Application,by sodoing it would clash withthe
*
Council; the fear being, in actual fact, that the Court - a principal organ of the

United Nations - would rememberthat the Security Council is also bound by international law,

that those resolutions are not necessarily incompatiblewith respect for the Montreal Convention;

or that the Court would find it necessaryto interpretthe Council'sdecisions in a way which does

not conflict with those sources of law.

Here is the proofthat the contentionof the Respondentsthatjustice should be done through

the surrender of the alleged suspects is a pretext, andthat the aim is to bolster up a discretionary

and arbitras, power based on a partisan use of Chapter VI1when one is the most powerful nation

in the world.

3.20. The last obstacle remains to be overcome: escapefrom anyjudicial control.

The question is, will internationaljustice agreetolendits authorityto the various denialsof

law 1 havejust mentioned or will it give a fiee rein to manoeuvres ofthis kind?

Libya, for its part, has shown on a number of occasionsthat it was prepared to put itself in

the Court'shands in regard to important questions of maritime or territorial delimitation. It has always complied with the Court'sdecisions,even whenthey wentagainst it, which isnot the case,

1believe, with everyone.

Todaythe gnat has the temerity to confront the eagle and the lion and bringthe case before

you.

In the final analysis,Mr. President, Members of the Court, if these proceedings between

Libya andthe two major Powers conceala conflict of institutions, itis not that ofLibyaagainstthe

Security Council but that of the United States and the United Kingdom against the Court.

1thank the Court for its kind attention. Professor David willbe at the Court'sdisposal, 1

would suppose after the break. Thankyou, Mr. President.

1
Le VICE-PRESIDENT,faisant fonction de PRESIDENT : Merci, MonsieurSalmon. Le
- .-%sr‘i
,Vu
moment me paraît convenupour notre pause du milieu de le matinée.

The Court adjournedfLom II .22 to 11.37 a.m.

Le VICE-PRESIDENT,faisant fonction de PRESIDENT :Veuillez vous asseoir. Je donne

maintenant la parole à M. David.

Mr. DAVID: Thank you, Mr. President.

Thejurisdiction of the Court

4.1. Mr. President,Members of the Court, itis always an honourto address theCourt. It is

also a great honour to have been chosen for the purpose by Libya, and it is a special honour to

defenda causewhere legalinterestsmerge withthe interestsof a people which,foroverfive years,

has been enduring a situation of distress, the extent of which is hard to imagine.

4.2. The task falling to me today is to show that the Court hasjurisdiction to deal with this

dispute in accordancewith Article 14,paragraph 1, of the Montreal Convention. Thispoint was

set out in Libya's1992Application institutingproceedingsand it was repeated inthe Memorial on

the merits filed in 1993. - 27 -

Preliminary Objections having been raised bythe Respondents in their Memorials filed on

20 June 1995,Libya replied thereto in its observations dated22 December 1995.

4.3. Libyaobservesthatthe legal reasoningof the objectionswas not fully echoed inthe oral

arguments of the Respondents. Libya will therefore merely respondto the arguments submitted

orally by the Respondents,without prejudice of course to the contentionsdeveloped in its written

observations.

. -?,-' 4.4. Mr. President, Members of the Court, one of the Respondents has spoken of the
..:i.. /
simplicity of the case' and this is a point on which Libya agrees, albeit not reaching the sarne

conclusions: on 21 December 1988 a United States civil aircrafi belonging to Pan Am was

destroyedin flight followinga bomb attack. Threeyears laterthe United Kingdomand the United

States officiallyaccused Libyaof responsibilityfor the bombing, and theycalled on it to surrender

two Libyan citizens presented as the alleged offenders.

Now Libya, the United States and the United Kingdom were and still are parties to the

MontrealConvention,whichorganizesthe CO-operation ofStatesinthe suppressionof unlafil acts

of violence againstthe safety of civil aviation. Since the Lockerbiebombingcorresponds exactly

to the offences covered by the Convention,the latter shouldapply to the British and UnitedStates

request for CO-operation.

4.5. It is therefore indeeda simple problem. Andyet what is simplefor anyone capable of

readingatext is not so for the United Statesandthe United Kingdom,which are unwillingto apply

the Montreal Convention for a medley of reasons that may be surnrnarized in four sets of

arguments, alleging that:

Primo: This dispute is not covered by the Montreal Convention.

Secundo: There is nothing to prevent the United States and the United Kingdom from seeking

to exercise their penal jurisdiction in regard to the accused on the basis of general

international law, and outside the Montreal Convention.

'~ordHardie,CR97/16, p. 21, para.2.2. - 28 -

Tertio: The submissionof the questionto the SecurityCouncilprecludes anydisputebetween

the parties based upon the application of the Montreal Convention.

Quarto: Even ifthe Court coulddeal with the dispute, it would in any case lackjurisdiction to

rule on questions unrelatedto the scope of the Montreal Convention.

4.6. Mr. President, Members ofthe Court, we shall see that none of these arguments stands

up to serious analysis. 1apologizeto the Court in advance for the time this rebuttal will take. 1

shall begin with the first set of arguments, namelythat the dispute is not covered by the Montreal

Convention.

1. This dispute is allegedly not covered by the Montreal Convention

4.7. Libya will not repeat what it hasalready written on the objectiveexistence ofa dispute J

between the Respondents and itself regarding the interpretation or application of the Montreal

Convention2. The existence of such a dispute results, as it is, from a mere account ofthe events

where we have first Libya calling for application of the Montreal Convention and then the

Respondentseluding that and filing objectionstojurisdiction in orderto foi1the application of the

Convention3. What we have then is a dispute, narnely,as the Court has said on severaloccasions

and recently in the East Timorcase,

"adisagreementon a point of lawor fact,a conflictof legal viewsor interestsbetween

the partiesw4.

4.8. Today, assumingthat the Court no longer contentsitself with a findingof a conflict of

legal views, the test of the Oil Platform? case, to which the Respondents have made copious W

reference6,obliges the Respondentto showthat the breachesof which it complainsare covered by

the provisionsof the treaty it invokes. We shall see that such isthe case: by usingmeansdesigned

*0bsewations and conclusions of Lib(22 December 1995)on the Preliminary Objectionsof the United Kingdom,
paras.2.6-2.11and of the United States, p2.5-2.10.

4EastTimor,Judgment,1.C.J Reports 1995, p99,para.22.

51.C.J.Reports 1996, Judgrnent12December 1996,PreliminaryObjection, par16.

6Professor C. Greenwood, CR97/16, pp.57 et seq., para4.5, 4.9-4.12, 4.34, 4et seq.;Mr. M.J. Matheson,
CR 97/19,pp. 50-51,paras6.19 and6.21. -,.'.d to prevent application of the MontrealConvention,the Respondents are necessarily led to violate
,- ., ..'
it.

4.9. Sincethe time allotted forLibya's pleadingsprecludesenteringintothe particularsof al1

relevant provisions of the MontrealConvention,we shall simplyobservethat at least five of them

are directly applicableto the Lockerbietragedy and to this case, namelyArticles 1,5, paragraph 2,

7, 8, paragraph 3, and 11,paragraph 1. 1 begin with Article 1:

(1) The case before the Court rests on imputing to Libyan nationals an "offence" having

consisted in placing, as Article 1of the Convention says,"unlawfullyand intentionally . . .

on an aircraft in service ... a device or substance which is likely to destroy that aircraft",

a device having indeed destroyedthat aircraft. We can therefore see that:

- this act is covered by Article 1 of the Convention;

- the Convention is specifically intended to deter such acts, as made clear in its third

preambular paragraph;

the Convention is in force and binding on al1parties.

The Convention,whichtheUnitedNations GeneralAssemblyhasconstantlyrepeated should

beratifiedbytheentire internationalcommunity7- towhichMr. Salmonalludedjust now - must

accordingly be applied, and the fact that the United States and the United Kingdom refrain fiom

invoking it does not of course mean that it does not apply. In the Advisory Opinion on

Applicabiliw of the Obligationto ArbitrateunderSection21 of the United Nations Headquarters

Agreementof 26 June 1947, the Court said that the fact of not invoking a treaty:

"tojustifi its conduct under international law does not prevent the opposing
attitudesofthepartiesfromgivingrise to a disputeconcerningthe interpretation

or application of the trea~."~

'See General Assembly resolutions on international terrorism, e.g. 40161 of 9 December 1985; 44/29 of
4 December 1989; 46/51 of 9 December 1991; 49/60 of9 December 1994; 511210 of 17 December 1996. These

resolutions were al1adopted by consensus.

'Advisory Opinion of26 April 1988,I.C.J. Report1988,p. 28,para.38. -30 -

In other words, the fact of not invokinga rule regarding a given situation does not prevent

that rule from goveming that situation if the latter comes under it objectively, which is the case

unless one is loath to cal1a spade a spade.

Let us go on to Article 5, paragraph 2, and Article 7.

Article 5, paragraph 2, of the Conventionobliges the State to establish itsjurisdiction over
(2)

any act referred to in Article 1 if the State declinesto extradite the alleged offender; and

Article 7 obliges the State to exercisethatjurisdiction if it declines to extraditethe alleged

offender. In other words thesetwo provisions,whentaken together, recognizethat the State

has a right, Mr. President and Members of the Court, to choose between extradition and

prosecution.

Admittedly,as ProfessorGreenwoodhas said9,the United Kingdomis not questioning

Libya's right to exercise that right. Asto Dr. Murphy,he is thinking only of the right of the

United States to prosecute, provided that Libya surrendersthe accused to it, and he fails to

see in what respectLibya could complainof a violationof itsrights". In short,everyonehas

rights and there would be nodispute onthat score. Libyacan see, however,that the realiîy

is quite different.

If we take a careful look at whatthe Respondents are doing, we can see that instead

of engaging in fair play with respect to the Montreal Convention by permitting Libya to

prosecutethe accused as the Conventionallows, they beginby ignoringthe Convention and,

as that placesthem outsidethe Convention,they requestthe SecurityCouncilto obligeLibya

to surrender the accused to them. In other words, they so act as to deprive Libya of the

-,..-. freedom of choice it enjoys under the Montreal Convention, as is the case for al1major

conventions in international criminal law. Now this freedom of choice is a right protected

by the Convention; the action of the Respondents ultimately violates this right and it is

therefore wrongto claim that Libya is left the right andthe powerto prosecutethe accused.

'~rofessorC Greenwood,CR 97/16,p. 71,para.4.44.

''!Dr.S.Murphy,CR 97/18,pp.25-26, para2.31. - 31 -

(3) 1go on to Article 8,paragraph3. Thisarticlestipulatesthat the offencecovered byArticle 1

is extraditable subject to the conditions providedby the law of the requested State. This

reference to the law of the requested Stateis of course essential; being also present in al1

modem instrumentsof internationalpenal law,this reference enables the requested State to

refuse an extraditioncontraryto its nationallaw. In this case, Libyan law, in common with

many Roman-Germanic systems, precludesthe extradition of nationals. Libya is therefore

entitled to refuse extradition of the two accused to the Respondents.

Professor Greenwood and Dr. Murphy seem to accept this argument; according to

them, the United Kingdom and the United States have never claimed that Article 8,

paragraph 3, obligedLibya to extraditethe suspects, and they therefore fail to see in what

respect the Respondents may have breachedthat provision".

Yet it is simple. Heretoo, by applyingto the SecurityCouncil to try to have it oblige

Libya to surrenderthe accusedto them, the Respondentsdeprive Libya of a right explicitly

recognized it by the Montreal Convention, in common with al1its sister conventions: the

right not to extradite a person when national law precludes this. The non-extradition of

nationals is a typical example of what is frequently provided for under national legislation.

By manoeuvringto get round this prohibition,by so acting as to oblige Libya to surrender

the accused to the Respondents,the latter are clearly in breach of the Convention.

. P/ (4) Let us now considerArticle 11. Article 11,paragraph 1, provides that States Parties shall
Y -I
afford one another the greatest measure of assistance, and on that legal basis Libya is

requesting the assistanceof the Respondents in order to conductthe criminalproceedingsit

has instituted againstthe accused. Yet by merely sendingLibya a copy of the statementof

the facts and of the arrest warrant, the Respondents are not fulfilling their obligation to

provide judicial assistance and CO-operation in criminal cases, for those documents contain

no evidence of which the Libyanjudiciary could make use.

"~rofessorC. Greenwood,CR 97/16, p. 71, para.4.46; Dr. S. Murphy,CR 97/18, p.26, para.2.33. - 32 -

We are then told that Libya did not invoke Article 11, paragraph 1, in its

correspondencewith the United Kingdom''. This is bothflippant and surprising. 1sthe aim

to suggest that this omission would prevent the Convention from applying and that the

judicial services in Scotlandwere ignorantof the law, albeit international? The standardof

Britishjuristsmakes this doubtful and, at al1events, it is not because a legal instrument is

not invoked that it does not apply, as already observed.

We are also told, fromthe United States sidethistime, that the requested State,onthe

verystrength of Article 11,paragraph 1injine (whichtheUnited Statesthen agreesto apply

for the sake of the cause), is not obliged to provide assistance that would contravene its

*
national law and, in particular, to disclose confidential inf~rmation'~.It must nevertheless

be observed that apparently the entire dossier is confidential since the United States has

supplied no information. Beyond the questions that such a general and absolute

confidentiality raises as to the soundness of the evidence, we shall merely observefor the

purposesof this exercisethat ithas not been demonstratedthat anyformofjudicial assistance

bytheUnited Statesto Libyawould inthis casehave violatedthe United Stateslawto which

Article 11, paragraph 1, refers.

4.10. Mr. President, Members of the Court, the foregoing points show that the Lockerbie

tragedy is well and tmly a situation covered by Article 1 of the Montreal Conventionand that the

manoeuvres of the Respondentsto refer the situation to the Security Council necessarilylead to
w
violationofthe rights that the Montreal Conventionconferson Libya. By applyingto the Security

Council to try to have it oblige Libya to adopt conduct different from that permitted under the

Convention, the Respondents are indeed conducting action incompatible with the aforesaid

provisionsof the Convention. Between the Respondents and Libya, there thus exists objectively

a dispute covered by Article 14, paragraph 1, of the Montreal Convention. By echoing mutatis

mutandis what the Court said in the Oil Platformscase, we could Saythis:

- --

"ProfessoC.GreenwoodC , R97/16,p. 72, para.4.50.

')Dr.S. MurphyCR 97/18,pp.29-30,paras2.41etseq. "[The 1971Convention] imposeson each of the Parties various obligationson

a variety of matters. Any actionby one of the Parties that is incompatiblewith those
obligations is unlawful, regardless of the means by which it is brought about."I4
(Emphasis added.)

The MontrealConventionlaysdown "noms applicableto this particular case"andthey very

exactly cover "the actions carried out" by the Respondents against Libya15.

4.11. There are thus many reasons for concluding that the Montreal Convention applies to

the Lockerbie tragedy and to some of its consequences. The refusal of the Respondentsto accept

this point of view andthe conversedesireof Libyaconstitutea disputethat the Courtmayentertain

on the basis of Article 14,paragraph 1,of the Convention.

*

-. . .. 4.12. We can now contemplatethe second set of argumentsof the Respondents: that there
w ---L+

would be nothing, and certainly not the Montreal Convention, to prevent them from seekingto

exercise criminaljurisdiction in regard to the accused on the basis of general international lawI6.

II. There would be nothing to prevent the United States and the United Kingdom from
seekingto exercise cnminal jurisdiction in regardto the accused on thebasisof general
international law

4.13. According to the United States and the United Kingdom, the Montreal Convention

would not prevent a State from calling for the surrender of a person outside the arrangements

provided for inthe MontrealConvention. Theargumentcomprisesthree points. First, Libya could

not complain of the fact of the Respondents submitting the Lockerbie tragedy to the Security

Council. Second, the Montreal Convention is claimed to lack a lexposterior and lex specialis

character in relation to the Charter. Third, it is in vain that Libya would invokeArticle 33 of the

Charter in this connection. Letus examine, if you will, each of these points.

First point:

I4I.C.J.Reports 1996,Judgment of 12December 1996,PreliminaryObjection,para 21.

I5Ibid.,para 36.

16ProfessorC. Greenwood,CR 97/16,pp. 61et seq.,paras.4.19-4.25and 4.31; Dr. S. Murphy,CR 97/18,pp.17et seq.,
paras.2.4 and 2.7-2.27. A. The alleged right of the Respondents to submit the Lockerbie tragedy to the Security
Council

4.14. Mr.President, Membersof the Court, it is true that the MontrealConvention does not

expresslyprohibit a StateParty fiom relying on an arrangementotherthan that provided for in the

Conventionfor requestinganother StatePartyto surrendera person suspectedof having committed

an act covered by the Convention. However, in order that this arrangement differing from that

provided for in ordinary criminal law maybe used to rule out what has been ruled, the consent of

the State entitled to avail itself of the rule common to theparties is required. You do not change

the rules of the game duringthe game withoutthe consentof al1players. Failing such consent,the

- ,...- requested State is perfectlyjustified inrejectingwhatis inderogationof general law; the requested
V !1-&\ J

State is entitled to secure recognition of its right to application of the arrangements specially

intended and accepted for the purpose.

This is particularly true in a case like this one wherethere is no obligation for a State to

surrendera person to another Stateoutsidean extraditiontreaty, andwhere the whole organization

of the MontrealConventionconfirmsthe pre-eminenceofthe sovereigntyofthe requested Statefor

purposes of grantingor refusing another Statethe extraditionof a personsoughtfor an act covered

by the Convention.

4.15. It is significantthat followingthe terroristattempt on the life of PresidentMubarakof

Egypt committed in Ethiopiaon 26 June 1995and the flightof those suspectedof the attackto the

Sudan, the Security Council, in its resolution of 30 January 1996, called upon the Sudanese w

Governmentto take the necessaryaction "toextraditeto Ethiopia ... the three suspects"sheltering

in the Sudan, "onthebasisof the 1964ExtraditionTreatybetween Ethiopia and the Sudan"". In

other words, the SecurityCouncil reasonablyappliedthe rules of the gameand referredthe parties

to the arrangements on which they had agreed in regardto extradition.

There is no reason why any other principle shouldapply in the present case.

"S/RES/1044 of 31 January1996, para.4 (a); Iikewise, S/RES/1054 of 26 April1996 and SRES11070 of
16August 1996 (emphasis added). -35 -

4.16. Libya and the Respondents agreed in tempore non suspect0 that the international

punishment of an attack against the safety of civil aviation would be submittedto a specific legal

régime. The occurrence of such an attack is the prerequisite for application of the Convention.

Oncethe act has been carriedout, each of the Statesconcemed is entitledto require theother State

to apply the arrangementsthat they have drawnup by treaty and accepted for this type of act.

Failing acceptance by Libya and the Respondents of arrangements for the surrender of

suspects other than those provided for in the Montreal Convention, the Respondents and Libya

remain bound by those of the Montreal Convention. The Conventiontherefore applies and, in

accordance with its Article 14,the Court hasjurisdiction to determine whether or not the Libyan

claims based on the application of the Conventionare well founded.

Second point:

B. The tex specialk and leuposterior characterof the Montreal Convention

4.17. Libya sees in the Montreal Conventiona lexposterior or a lex specialisin relation to

the Charter. The Respondentsquestionthis pointof view: asthey see it,the functionaland logical

primacy of the MontrealConventionoverthe Charterinthe eventof an attack onthe safetyof civil

aviation would not stand up to Article 103 of the CharterI8

4.18. Mr.President, Members of the Court, by asserting the lex specialis or lexposterior

character of the Montreal Convention,Libya is not trying to claimthat the SecurityCouncilcould

never substitute its action for that resulting fiom the application of an international convention.

Libya does not say that, but itconsidersthat action bythe SecurityCouncil must be consideredin

a certain orderingof internationalsociety, a societyin which each of the actors must play its role

and solely that assigned to it, a system too in which each instrument must fulfil the function

péculiarto it andthat functionalone. It is the stubbornrefusa1to admit ofthe respectiveroles and

. .,-
- I fùnctionsof al1concernedthat leadsthe Respondentsto seekto give actionby the Security Council
-
precedence over application of the Montreal Convention.

Is~rofessorC. Greenwood, CR 97/16, pp.64 and 65, paras.4.26-4.29; Mr. J.R. Crook, CR 97/19, pp. 10 and 11,
paras.3.27-3.32. -36 -

4.19. The role of the SecurityCouncil,in accordancewith Article 39 of the Charter, consists

in taking action in extreme cases of a threat to international peaceand security. The function of

theMontreal Convention,as has alreadybeensaid,isto organizethe suppression ofterrorist attacks

against international civil aviation.

Now itdoesnot sufice to Saythatan attackthreatensinternationalpeaceandsecurityforone

to be entitled to refer the matterto the SecurityCouncil,automaticallyremoving it fromthe noms

goveming it - the Montreal Convention- and divertingthe case from its "naturaljudge", here

the International Court of Justice.

4.20. Letmeremind youthat the MontrealConventionwas concludedin 1971,some26 years

afierthe signing of the United Nations Charter. Hadthe drafters of the Charter really intended to d

entrustthe SecurityCouncilwith settlingany international incident,it is not very clearwhy States

wouldhave concludedthis conventionand so manyothertreatiesto regulatetheir relations. Hence

the system of the Montreal Convention mayquite naturally be regarded, in relation tothe system

ofthe United Nations Charter, as both a lexposterior and a lexspecialis; and hencefor questions

pertainingto the Convention it musta priori prevailover the systemsprovided for bythe Charter,

barring the application of Article 103 in cases to be specified by Professor Brownlie.

4.21. It is of interestto observethatthe examplescited by one of the Respondentsto dispute

the idea that a treaty like the Montreal Convention may be seen as a lexspecialis or a

lexposterior19,far from invalidating, actually bears out this contention. We were thus reminded
" , .ij w
that the Security Council had adopted resolutions replacing the law normally applicable without

takingaccountof the specialor posteriorcharacterofthat lawinrelationtothe Charter. References

were thus made to resolutions 670 (para. 3) and 757(para. 1l), which limitedair traffic without

taking account of the ChicagoConventionor other relevant instruments,but we were not told that

thoseresolutions concemedaerial embargomeasuresinthe Gulf Warand inthe Yugoslavconflict.

Resolution 820(paras. 12-30) limiting navigation on the Danube despite the existenceof a treaty

providing for fieedom of navigation on the river was mentioned, but not the fact that what was

19Professor.GreenwoodC, R97/16, p65,para.4.28. - 37 -

concerned,there too, was embargo measures in the Yugoslav conflict. Reference was also made

to the establishment of the International Criminal Tribunals despite the existence of the 1949

GenevaConventionswiththeir expressprovisionsonaut dedere,autjudicare, but itis immediately

apparentthat what was involved in one case was still the Yugoslav conflict and in the other what

has been termed, alas, the "third genocide ofthe century"!

In short, it is manifestlyclearthat incaseswherethe normallyapplicable lexspecialishas

indeed beenset aside, the prevailing situation waseither a classic one of a threat to international

peace and securityor one in which no problem of evidenceor charges arose, unlikethe Lockerbie

tragedy! In other words, while everyone knew what happened in the conflicts of Kuwait,

Yugoslaviaand Rwanda,the same is not true of the Lockerbietragedy, in which Libyaor some of

its nationals are blarned for conduct that is almost monthly contradicted by fresh revelations. In

situations of this kind, it is inappropriate tospeak of a threat to peace in respect of dubious

imputations, and it is important a priori to resolve these matters within the particular law

specificallyapplicable to the case.

1now come to the third point, concerningArticle 33 of the Charter.

C. The role of Article 33 of the Charter

4.22.Article 33 of the Charterconfirmsthe operationalprimacy ofthe MontrealConvention

overthe Charter. This is shown by the use ofthe words "first of all" inthat Article. As we know,

this Article lays down that, even if a dispute endangers internationalpeace and security,

"1. The Parties ... shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration,judicial settlement,resort to regional agenciesor
arrangements,or peaceful means of their own choice." (Emphasis added.)

4.23. This showsthat, even ifthe MontrealConventionis not the only instrumentapplicable

to this case, it is nevertheless ofefirst importance, andthe logical starting point must be totry

and exhaustthe possibilities before turning to the Security Council. This is an obligationwhich

results both from the letter and the spirit of Article 33 of the Charter and from the general

obligationto perform ingoodfaith any treaty in force(Vienna Conventionon the Lawof Treaties,

Art. 26 and Declaration on Principles of International Law concerning Friendly Relations and - 38 -

Cooperation among States in accordance with the Charter of the United Nations, 7th Principle,

Ames. 2625, 24 October 1970).

Only if the Convention is not correctly applied and if that failure to apply it threatens

international peace andsecurity canthe matterbe referredto the SecurityCouncil. Butthe exercise

and correctapplicationof internationallaw requirethat the relevant instruments,which Stateshave

taken the trouble to conclude, areJirst applied, before suggestingthat they are of no use. It runs

counter to al1legal logic to act as the Respondentsdo, immediately bringingthe matter beforethe

Security Council without using the Convention speciJicallyapplicable.

4.24. However,the United States argues that Article 33 does not apply here,since its scope

is,accordingto it,limitedto ChapterVI of the Charter,whereasthe contextis in factChapter VIIZ0. J

. . ,.
'- l< This nanow interpretation must be rejected first because it takes for granted what still has to be
- ,: v'
proved, and then because it does not tally either with the letter of the provision or with its spirit.

The American interpretation sets out from the assumption that this is indeed a situation

covered by Chapter VII, but although it is true thatthe SecurityCouncilfollowedtheRespondents

on this point, it will be demonstrated this afternoon by Professors Suy and Brownlie that this

authoritarian categorization is highly questionable with respect to the facts of the case.

If the letter, the text of Article 33 is now exarnined moreclosely, we see that it applies to

"anydispute,the continuanceof whichis likely to endangerthe maintenanceof internationalpeace

and security", Le.,a situationwhichmay fa11withinthe scopeof both ChapterVI and Chapter VII.
w

Article 33 is therefore a general introductoryclause,which it would be absurdto confine solelyto

Chapter VI.

In realiw, if weraisethetoneofthe discussiona little,Article 33hasthe appearanceofbeing

a development of Article 2, paragraph3, of the Charter on the obligation of Statesto settle their

disputes by peaceful means; its scope should therefore, more or less, coincide with that of

Article 2, paragraph 3. However,claiming that Article 33 is limitedto Chapter VI is like saying

''MI J. R. Crook, ICJ, CR97/19,p. 14,paras.3.45-3.48. - 39 -

that Article 2, paragraph 3, is limitedto Chapter 1of the Charterandno longerapplies outsidethat

Chapter. This is patently not the meaning which may reasonably be given to this clause.

4.25. However, Libyarecognizes that Article 33 should probablynot apply were Libya to

refuse to surrender its nationals for trial or were it to give them a mere parodyof a trial resulting

in an acquitta1or a token sentence even though their culpabilitywere established: in such a case,

. .?
-. ., : Libya would notbe applying the Montreal Convention in good faith2'.

Yet far from seeking to shirk any responsibilities it may have, Libya,as has already been

noted on various occasions, is multiplying its efforts to organize a proper trial for the accused, a

trial which could be monitored by the entire international community,but it is the Respondents

whichare obstructingtheLibyan court fromexercisingjurisdiction byrefusingal1CO-operation with

it.

Pending that, while Libya declares and maintains that it wishes to seriously apply the

Convention,there is no IegaIreason to doubt that undertaking'.

4.26. If the Respondentsconsiderthat the Conventionis ineffective,let themprove it. There

is little point in their harping on that Libya is involvedin the Lockerbiebombing; they merelyvie

with one another in repeating a well-knowntune, which proves nothing. And when Libya, on the

contrary,testifiesto its goodfaith byproposing,ina spiritofreconciliation,thatthe suspectsshould

be brought before the criminal courts of a neutral State or before an international criminal court,

it is highly significant that the only response of the United States and the United Kingdom is

contemptuoussilence, a silence which, al1things considered, is suspicious.

Thefactthatthe United Statesandthe United Kingdomturnedto the Security Councilisthus

notsufficientto setasidethe applicationofthe Montreal Convention,whichremainsaninescapable

obstacle, an obstacle which must be overcome 'Ifirstof all" .. .

"Cf. diss. op.of JudgeBedjaoui,Order of 14ApriI1992, I.C.J. Reports 1992,pp.37 and147.

12Cf.diss. op. of JudgeAjibola,ibid., pp. 86-87, 191. 4.27. Mr. President, Membersof the Court, having shownthat the Respondents couldnot

disregardthe provisionsof the Montreal Convention,wecan nowmove onto the third category of

argumentsput forward by the Respondents toblock thejurisdiction of the Court, namely,the fact

.-? that there is allegedlya disputenot betweenthem and Libya,but betweenthe Security Counciland
d..> L
Libya.

III .he submission of the matter to the Security Council allegedly excludes any dispute
between the Parties based on the application of the Montreal Convention

4.28. Accordingto the United Statesandthe United Kingdom,as this casewas submittedto

the Security Council, itfallswithinthe Council'sexclusivejurisdiction andexcludesanyapplication

of the Montreal Conventionz3

4.29. The objection raised is closelyn to the earlier ones, and as already noted, it is not

because the case was submitted to the Security Council that the Montreal Convention ceases to

~PP~Y
-
because the facts of the case fa11under the Convention,
-
because it has notbeen shownthat,withrespect tothosefacts,this Conventionhad noeffect,

and

- because it seems difficult to contend that there is a threat to peace when a

State- Libya - does no more than cal1 for internationallaw to be respected, Le., for a
-
convention tobe respected .. .

4.30. However, whatthe Respondentssuggest is that, sincethe case has been dealt with by

the Security Council, there is no longer a dispute between them and Libya, but between the

Security Council and Libya.

4.3 1. This is a classic objection, which the United Kingdom had already sought in vain to

raisein the case concemingNorthem Cameroons. At thetime, theCourtquicklyset itasidemerely

stating that it was not

23~rofesr . Greenwood,ICJ, C97/1p. 74paras4.55-4.59;ProfessorE. Zoller97/19,p. 32, para.5.1. "concemed with the question whether or not any dispute in relation to the same
subject-matterexisted betweenthe Republic of Cameroon and the United Nations or
the General Assembly. In the view of the Court it is sufficient to Saythat... the
opposing views of the Parties as to the interpretation and application of relevant
Articles of the Trusteeship Agreement, revealthe existence of a dispute in the sense
recognized by thejurisprudence of the Court ... betweenthe Republic of Cameroon
and the United Kingdom at the date of the Appli~ation."'~

In the present case, it would be even more artificial to contend that a dispute between the

Security CouncilandLibyahas beensubstitutedforthedisputebetweentheRespondentsandLibya.

Not only does one not exclude the other, but an objective analysis of the reality shows that the

dispute between the Respondents and Libya is the very condition of the dispute between the

Security Counciland Libya,supposingsucha disputeexisted. Moreover,Professor Suywill show

that there is no dispute between the SecurityCouncil and Libya.

4.32. That the seisin of the SecurityCouncil does not exclude the dispute between the

Respondents and Libya is self-evident. Not only did the dispute between the Respondents and

Libya develop before the Security Councilwas seised, but it continued after the Security Council

had adopted its resolutions 731, 748 (1992)and 883 (1993).

As we have pointed out, there is between the Parties "a conflict of legal viewsW2'i,n which

on the one hand the Respondents contend that the Montreal Convention does not apply and that

Libya must surrender the suspects to them, and on the other hand Libya considers that the

Convention applies and that, in accordance with it, Libyashould not surrenderthe suspectsto the

Respondents. Thus, there is indeed a conflict of legal views betweenthe Parties, Le.,a "dispute"

according to the definitionof this concept given by the Court.

4.33. Thisdisputedidnot disappearbyvirtue ofthe factthatthe Security Councilwas seised

by the Respondents. Onthe contras,, it continuedbecausethe Respondentscontinuedto rejectthe

application of theMontrealConvention, at the sametime requiringLibya to surrenderto them the
- --
suspects implicatedin the Lockerbie bombing,whereas Libya continuedto cal1for the application
-' d 4
of that Convention and,in accordancewith it, to claim its right to trythese persons itself, the right

14NortherCameroons,Judgmentof 2 December1963, I.C.J. Reports 1963,p. 27.

=East Timor(Portugalv. Australia),Judgmentof 30 June 1995, I.C.J. Reports1995, p. 99, para.22. - 42 -

not to surrenderthem to the Respondentsand the right to obtainthe widest possiblemutual legal

assistance, without prejudice,naturally,to any othersolution agreedbetweenthe Respondents and

Libya for the trail of the accused.

4.34. In reality, if there were a dispute between the Security Counciland Libya - quod

non - the result of the dispute betweenthe Respondents and Libya, or to put it another way,the

dispute between the Respondents and Libya would be the conditionof the dispute between the

Security Council and Libya.

In fact, the Lockerbie disaster, Libya's desire to try the suspects or to achieve a solution

protectingtheir rights, theesirenot to surrenderthemto the Respondents,andto obtainthe widest

possible mutual legal assistance, conversely the desire of the Respondentsto obtain the "handing 'cirr

over" of the suspects and to try them themselves are al1 matters specifically regulated by the

Montreal Convention and consequently falling within the ambit of the Convention.

It is because, onthe one hand, Libya wishes toapply this Conventionto the Anglo-American

request for the "surrender" of the suspects and, on the other hand, the Respondents reject the

application of the Convention, that there is objectively a dispute regarding its application.The

dispute would not exist if either Libya agreed to simply surrenderthe suspectsto the Respondents

without reference to any particular convention, or the Respondents agreedto faithfully apply the

Montreal Convention and no longer to cal1for the "surrender"of the suspects.

As Libya refused to accept the unlawful orders of the Respondents,they decidedto utilize
J
the institutional strengthof the Security Council. Hence, itis indeedthe antagonisticintentionsof

the two Parties regarding the application or non-application of the Montreal Convention which

condition what the Respondents refer to as the dispute betweenthe SecurityCouncil and Libya.

4.35. However, no such dispute exists. It will be recalledthat this matter was includedon

the agenda of the Security Council following letters addressed to the UnitedNations

Secretary-General,notably by the United Kingdom and the United States, letters which requested
- 2 -J
1 Libya to surrenderthe two accusedto them26;However,the SecurityCouncilhas neverdealt with

the question as though it were a matter of a dispute between itself and Libya.

Moreover,a mere glance atthe seisin and resolutions ofthe Security Council showsthat the

Council is dealing with a disputebetweentheRespondentsandLibya and that the alleged dispute

between the Security Council and Libya - Le., more precisely the treatment of the

Lockerbie question by the Security Council - is not a consequence of the dispute between the

Respondents and Libya; the Security Council will obviously no longer concern itself with the

Lockerbiequestion once the dispute betweenthe Respondentsand Libya is resolved. Indeed, it is

hard to imagine that the Security Council might continueto deal with the question if either the

Respondentsagree to applythe MontrealConvention,or Libya agrees to surrenderthe suspects to

The dispute betweenthe United Kingdomand the United States on the one hand and Libya

on the other thus retains complete legal autonomy and the Court may deal with it separately, as

it has already acknowledged in the past for other cases2*

4.36. Admittedly, the United States and the United Kingdom imply that even if there is an

independentdispute between themand Libya - which is the case - it would bepointless for the

Courtto resolve it with respectto the merits in viewof Securiv Council resolutions 748 and 883,

in conjunction withthe effects of Articles 25 and 103of the Charter. 1 shall not coverthis point,

which will be dealt with shortly by Professors Suy andBrownlie.

- 4.37. Mr.President, Members of the Court, there clearly was a dispute between the

Respondentsand Libya regardingthe applicationof the Montreal Conventionbefore the adoption

of resolution 748 - a fact which, moreover,the Respondentsdo not appear to dispute. The fact

26UnitedNations,Docs. S/23307,22December1991,S/23308,31December1991; Memorialof Libya (MeritsA ),nns.45

and 46; see determinationof the SecurityCouncii'sagendaat its 3033rdMeeting, 21 January1992, SPV.3033,
provisional,Memorialof Libya (Merits, nn.83, p. 3.

27Questionsof Interpretationand Application of 1971 Montreal Convention arisingfrorn the Aerial Incident ut
Lockerbie (Libyan Arab Jarnahiriyuv. UnitedKingdom), ProvisionalMeasures, Order o14 April1992, diss. op.

Bedjaoui,I.C.J.Reports1992,pp.34 and 144,para.4.

"Northern Carneroons,Judgrnentof 2 December 1963, I.C.J. Report1963, p. 27; UnitedStates Diplornatic and
ConsularStaffin Tehran,Judgrnentof 24 May 1980,I.C.J. Repor1980, p. 20, para.37. -44 -

that the Respondentsbrought thematter beforethe Security Councilpatentlydidnot transformthis

disputeinto a disputebetweenthe SecurityCounciland Libya. Unless,that is, one consideredthat

the Security Councilwere now surrogate to the rights and obligations - of the United Statesand
-
the United Kingdom - whichwould certainlycome as somethingof a surpriseto the international

community ...

But to be serious, it is clear that the dispute between the Respondents and Libya has not

disappeared and that the Court is still competentto deal with it, in accordance withArticle 14of

the Convention.

4.38. Mr.President, Members of the Court, we now come to the fourth group of the

Respondents'arguments on the Court's lack of jurisdiction to entertain some of Libya'sclaims

because, in their view, they are in any event too remote fiom the Montreal Convention.

IV. According to the Respondents, even if the Court were able to entertain the dispute,it
would in any case lack Jurisdictionto Rule on Matterswhich,in their view,are Unrelated
to the Scope of the Montreal Conventiont9

4.39. Theseargumentsconcernthe Libyanclaims inthe act institutingproceedings andrelate

to boththe sanctionsimposedon Libya bythe Respondents (A), and whetherthe SecurityCouncil

resolutions can be invoked against Libya (B).

Let us consider these two Libyan claims separately.

A. According to the first claim, the Court may consider the sanctionsimposedon Libya by
the Respondents

4.40. The Respondents dwelt very little on this point in their oral pleadingsand Libya can

. ---:- therefore be brief. In any case, Libya notes with satisfaction the statements of the Agent of the
". ij .
United Kingdom suggestingthat the United Kingdom never wished to use force against Libya to

29~rofessorGreenwood,CR 97116, p.61,para 4.16. - 45 -

achieve a solution of this case3'. However,the United States did not make such a statement, and

with good reason, as Professor El-Murtadi was saying a moment ago.

4.41. Regarding the jurisdiction of the Court to entertain this type of fact, one need only

observe that the Montreal Convention cannot be dissociated from general international law, and

particularlyfiom the international law of treaties.

The principle of the prohibition of force set out, inter alia, in Article 52 of the 1969Vienna

Convention on the Law of Treaties concerningthe conclusion of treaties, and thereforeforce with

respect to the conclusion oftreaties, applies equallyto theirperformance. If, as Article 26 of this

Convention stipulates, "[elvery treaty in force is binding upon the parties to it and must be

performed by them in good faith", this provision - Article 26 - is afortiori violated when a

Statepartyto a conventionresortsto threatsin orderto forcethe othercontractingpartyto renounce

its rights under that Convention.

This is exactly what the United States did when, on a number of occasions, it let it be

understood "thatno optionwas ruled out" in orderto force Libya to surrenderthe suspectsto them

despite the rights accordedto Libya under the Montreal Convention.

An evaluation of the legality of these measures therefore forms an inextricable partof the

dispute on the Montreal Convention, and as such, the Court is wholly competent to entertain it.

B. According to the second Libyan claim: the Court may entertainthe Libyan cornplaints
regarding the inopposabilityof the Security Council's resolutions

4.42. According to the Respondents, the Court lacks jurisdiction to rule on whether the

SecurityCouncil resolutionscan be invoked againstLibya, itsjurisdiction being allegedly limited

solelytothe interpretationofthe MontrealConvention,and becausethatdoes notcoverthequestion

...r-.
- ,4,LI of whether the Security Council resolutions can be invoked against it.

4.43. This argument, Mr.President, Membersof the Court, obscures the fact that it is the

United States and the United Kingdom which invoke their own interpretation of the

above-mentionedresolutionsinordernotto applytheMontrealConvention. Theseresolutionshave

the appearanceof a groundfor excludingthe MontrealConvention; if so, they therefore form part

30SirFranklinBerman,ibid p.,19,para.1.15. - 46 -

of the dispute on the application of the Montreal Convention. If, forxample,the United States

andthe United Kingdominvokedhardship,forcemajeure,acountermeasureorthe stateofnecessity

in order not to apply the Convention,the dispute would relate to these exceptions and the Court

wouldbe competentto entertainthem onthe basisof itsjurisdictionto settleanydisputeconcerning

the application of the Convention, whereas the Montreal Convention, however, refersneither to

distress, nor to force majeure, nor to countermeasure norto the state of necessity.

The Courttherefore hasjurisdiction, here too,torule onwhether,inthe circumstancesof the

case, it is correct that the resolutions invoked the Respondentscan be set against Libya.

1
4.44. Mr.President, Membersof the Court, as we now reachthe end of Ourargumenton the

jurisdiction of the Court, we note thatnone of the exceptionsraised by the United States and the

United Kingdom seriously pre-emptsthe Court fromdealing with the merits of the dispute on the

application of the Montreal Convention. Our observations may be summarizedas follows:

- the problems of surrendering and trying the accused in essence fa11within the Montreal

Convention and, consequently,the Court hasjurisdiction to deal with them, unless it looks, in

the Convention,for restrictions andexceptionswhich do not stemfiom the text, fiom its spirit,

or from the travauxpréparatoires;

- the right alleged by the United States and the United Kingdomto bring the matter before the
W
Security Council does not set aside the application of the Convention;

- the fact that the Security Council dealt with the matter does not transformthe present dispute

between the Applicants and Libya into an alleged dispute between the Security Council and

Libya;

- lastly therefore, the Court's jurisdiction to settle a dispute on the basis of the Montreal

Convention aIso authorizes it to regulate matters intimatelyconnectedtherewith, in particular

those relatingtothe threatsto useforcemadeby the Respondents,aswell asmattersconcerning

the in-opposability to Libya of the Security Council resolutions. - 47 -

4.45. In conclusion,there is nothinginthe presentcasethat makesit possibleto set asidethe

application of the Montreal Convention. It is neither because the United States and the

United Kingdomrefrainfrominvokingthe Convention,nor evenbecausethe Security Councilacts

as though that Convention did not exist that the Convention ceases to exist and to produce its

effects.

Mr. President, Members of the Court, the Respondents- though quite unconsciously-

indulge in the sarne humour as my illustrious compatriot,the painter René Magritte, whoentitles

one of hispictures representinga pipe: "This is not a pipe". This is Magritte'sway of sayingthat

men refuseto see the reality of their eyes. However,a child who looksat the painting knowsfull

well that it is a pipe which is represented on the canvas. Similarly, every lawyer of good faith

knows that the Lockerbie disaster is the very type of fact for which the Montreal Conventionwas

concluded.

4.46. MI- .resident, Membersofthe Court, letme thank you for your patience and attention.

LeVICE-PRESIDENT,faisantfonctiondePRESIDENT :Jevousremercie,MonsieurDavid.

Nous reprendrons cet après-midi à 15 heures.

L'audienceest levée à 12 h 45.