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.'-'
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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?
"Decision5373 of27March 1954 of the Council of the Arab L(SI19941373of31 March 1994);decisio5506
of21 Septernbe1995 of the Council of the Le(SI1995183of 4 October1995).
'6Resolutiono27April1995(SI19951381of 10May 1995):"afair and impartialtrial of those accused,to be held in
a neutral country agreedupon byParties". 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 Powersconceala 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. 1 apologizeto 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 thatsuch isthe case: by usingmeansdesigned
*0bsewations and conclusions of Lib(22December 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, 99, para22.
51.C.J.Reports 1996, Judgrnent12December 1996, PreliminaryObjection, pa16.
6Professor C. Greenwood, CR97/16,pp. 57 et seq., par4.5, 4.9-4.12, 4.34, 4.et 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 tryto 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 fonvard 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.
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