Internationa l ourt of Justice
Case Conceming Questions of
Interpretation and Application of the
1971 Montreal Convention Arising from
the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriyav.United Kingdom)
Rejoinder of the United Kingdom
AUGUST~2001 TABLE OF CONTENTS
Page
Part 1 The Present State of the Proceedings 1
Part2 Issues of Fact 8
A Developments since the 1998 Judgment (2.2-2.15) 8
1. The implementation of resolution 1192 (1998)
(2.2-2.9) 8
2. The trial andjudgment (2.10-2.15) 12
B Issues offact in contention (2.16-2.20) 14
Part3 The Scope of the Present Proceedings 18
A The effect ofthe 1998 Judgment (3.1-3.15) 18
1. The Libyan claim regarding al1egedthreats to
use force(3.2-3.10) 18
2. The dispute regarding the interpretation and
applicationof the Montreal Convention (3.11) 22
3. The effect of Security Council resolutions
748 (1992) and 883 (1993) (3.12-3.15) 22
B The Application is now without object (3.16-3.26) 24
1. The effect of recent developments on Libya's
Application (3.16-3.20) 24
2. Libya's attempt to refashion its daim (3.21-3.26) 26
Part4 The Interpretation and Application of the
Montreal Convention 30
A The significance of Libya being implicated in the
Lockerbie bombing (4.3-4.13) 31
B The issues of substance concerning the interpretation
and applicationof the Montreal Convention that still
divide theParties (4.14-4.43) 35 1. Article 7 (4.20-4.27) 41
2. Article 11(4.28-4.33) 43
3. The temporal dimension (4.34-4.43) 45
PartS The Interpretation and Effects of Resolutions 731(1992),
748 (1992), 883 (1993) and 1192 (1998) 50
A Interpretationfthe resolutions (5.2-5.21) 50
B The effects ofthe Security Council decisions (5.22-5.32)60
Part6 Libya's Allegations ofThreats to Use Force 64
Part7 Conclusions and Submissions 67
ü ' PART 1 ·
THE PRESENT STATE OF THE PROCEEDINGS
1.1 The present proceedings were commenced on 3 March 1992, when Libya filed its
Application with the Court. In view of the length of time which has elapsed and the
developments in the case since that date, it is useful to recall how Libya put its case then
and what relief it sought. Libya summarised its case as follows -
"III. The claims of Libya
In submitting this dispute to the Court. Libya daims as follows:
(a) The Montreal Convention is the only appropriate convention in force
between the Parties dealing with the offences listed in Article 1 [of the Montreal
Convention]. Consequently, the United Kingdom is bound to adhere to the
provisions of the Montreal Convention relating to the incident.
(b) Pursuant to Article 5 (2) of the Montreal Convention, Libya is entitled to
tak:e such measures as may be necessary to establish its jurisdiction over the
offences listed [in Article 1of the Montreal Convention] in cases where, as is the
situation here, the alleged offender is present in its territory and is not extradited
pursuant to Article 8 of the Convention. By its actions and threats against Libya,
the United Kingdom, in violation of Article 5 (2) of the Convention, is attempting
to preclude Libya from establishing its legitimate jurisdiction over the matter.
(c) Pursuant to Article 5 (3) of the Convention, Libya is entitled to exercise
criminal jurisdiction over the matter in accordance with its national law. By its
actions and threats, the United Kingdom is attempting to pŒclude Libya from
exercising that right in violation of the Convention.
(d) Under Article 7 of the Convention, Libya is obliged to subrnit the case to
its competent authorities for the purpose of prosecution - a step that Libya has
taken. By its efforts to force Libya to surrender the accused,.the United Kingdom
is attempting to prevent Libya from fulfilling its obligations in this respect in
violation ofthe Convention.
(e) Under Article 8 (2) ofthe Convention, extradition is made subject to the
laws of the State from which extradition is requested. Under Article 493 (A) of
the Libyan Code of Criminal Procedures, Libyan law prohibits the extradition of
its nationals. It follows therefore, that there is no basis in either Libyan law or
1 under the Montreal Convention for the extradition of the accused from the
territory of Libya, and the United Kingdom's efforts to the contrary constitute a
violation of this provision of the Montreal Convention.
(f) Under Article 11 (1) of the Convention, the United Kingdom is under an
obligation to afford Libya, as a Contracting State, with the greatest measure of
assistance in connection with criminal proceedings brought by Libya in respect of
the offences listed in Article 1. By failing to provide such assistance, the United
Kingdom has breached its obligations under the Montreal Convention.
(g) The United Kingdom is bound by its legal obligations under the Montreal
Convention, which obligations require it to act in accordance with the
Convention, and only in accordance with the Convention, with respect to the
matter involving flightPA 103 and the accused. Whereas Libya submits that it has
fully complied with its own obligations under the Convention, the United
Kingdom has breached, and is continuing to breach, those obligations."
1.2 Libya then requested the following relief-
"IV. Judgment requested
Accordingly, while reserving the right to supplement and amend this submission
as appropriate in the course of further proceedings, Libya requests the Court to
adjudge and declare as follows:
(a) that Libya has fully complied with ail ofits obligations under the Montreal
Convention;
(b) that the United Ki.ngdom has breached, and is continuing to breach, its
legal obligations to Libya onder Articles 5 (2},5 (3), 7, 8 (2) and 11 of the
Montreal Convention; and ·
(c) that the United Kingdom is under a legal obligation immediate!y to cease
and desist from such breaches and from the use of any and all force or threats
against Libya, includ.ingthe threatof force against Libya, and from ali violations
ofthe sovereignty, territorial integrity, and the political independence ofLibya."
1.3 These allegations were made in circumstances where the two men accused of the
destruction of Pan Am Flight 103 over Lockerbie on 21 December 1988 (Abdelbaset Ali
Mohmed Al Megrahi and Al Amin Khalifa Fhimah) were the subject of arrest warrants in
Scotland but were present in Libya, which refused to surrender them for trial. Libya
persisted in this refusai notwithstanding that the United Nations Security Council later
2 ---- ------------------ - ~ - - : - - - - - - - - - - - - - - --
.,.:~-~~.. • ·.:::.>;.r
1
adopted two resolutions, resolution 748 (1992) of 31 March 1992 and resolution 883
'
(1993) of 11 November 1993, which, inter alia, required Libya to surrender the two
accused. In its Memorial ofDecember 1993, Libya essentially maintained the clairns set
3
out in its Application.
1.4 The essence of Libya's daim, therefore, was that the United Kingdom was
comrnitting a continuing violation of the Montreal Convention for the Suppression of
4
Unlawful Acts against the Safety of Civil Aviation, 1971 (''theMontreal Convention")
and Libya was asking the Court to make a ruling on how th.e Convention was to be
applied with regard to the trial of the two accused. In responding to that daim, the
United Kingdorn was constrained by the need not to make any disclosure regarding the
evidence against the two accused which rnight prejudice the chances of their receiving a
fair trial in accordance with the requirements of the Security Council resolutions.
5
1.5 In its Judgment of 27 February 1998, the Court held that it bad jurisdiction in the
case to the extent that the proceedings fell within the scope of Article 14(1) of the
Montreal Convention. The Court joined to the merits a United Kingdom subrnission that
resolutions 748 (1992) and 883 (1993) bad rendered Libya's daims without object.
1.6 Since th.e Judgment of 27 February 1998, the factual framework of the
proceedings bas undergone a transformation. On 27 August 1998 th.e United Nations
United Kingdom Armex 3. (The United Kingdom Annexes deposited at the various stages of the
proceedings are numbered consecutîvely. Annexes 1to 84 appear in Volumes 1torn, whicb were
deposited wîth the United Kîngdom Preliminary Objections in June 1995; Annexes 85 to 121
appear in Volumes IV and V, wbicb were deposited wîtb the United Kingdom Counter-Memorial
in Marcb 1999; Annexes 122 to 125 appear in the Supplement to the Counter-Memorial, wbicb
was deposited in May 1999. Annexes 126 to 129 appear in Volume VI, wbicb accompanies the
present Rejoinder.)
2 United Kingdom Armex4.
3
Libyan Memorial, para. 8.1. One difference is tbat Libya now relies on Article 8(3) not Article
8(2) of the Montreal Convention.
4
UnitedKingdomAnnex 1.
Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom) (Preliminary
Objections), ICJ Reports 1998,p. 9 (bereinafter"Preliminary Objections Judgmenf').
3 6
Security Council adopted resolution 1192 (1998), which called upon the United
Kingdom and the Netherlands to take the necessary steps to enable a Scottish Court to sit
in the Netherlands to try the two accused and required that Libya ensure their appearance
before that Court.
1.7 The two accused were finally surrendered for trial on 5 April 1999 when they
were delivered to th.e Netherlands. The two accused waived their right to contest
extradition and were delivered into the custody of the Scottish Court. On 31 January
2001 the Scottish Court convicted Abdelbaset Ali Mohmed Al Megrahi of the murder of
the 259 people on board Pan Am Flight 103 and 11 residents of Lockerbie. The Court
7
acquitted Al Amin K.halifa Fhimah. At the time this Rejoinder was sent for printing,
Abdelbaset Ali Mohmed Al Megrahi's appeal against his conviction was pending before
8
the Scottish Criminal Appeal Court, which sits as part of the High Court of Justiciary.
1.8 In view of these developments, the United Kingdom is surprised that Libya
persists with this case. Since the two accused have now been tried by the Scottish Court
in accordance with the requirements of the Security Council and with the full agreement
of Libya, the proceedings are plainly without object (quite apart from the United
Kingdom's submission, set out in its Counter-Memorial, regarding the effects of
resolutions 748 (1992) and 883 (1993)). The reliefwhich Libya sought in its Application
and Memorial is now irrelevant.
1.9 Libya has, however, chosen to continue with the proceedings and has attempted in
its Reply to refashion its claim as one for past violations of the Montreal Convention
allegedly committed during a period which Libya does not adequately define but which
must have come to an end, at the latest, with the adoption of resolution 1192 (1998) on 27
August 1998. It also daims damages in respect ofthose violations. The damages daim
6
United Kingdom Annex 87.
The verdict of the court appears at Annex 128.
Although the Crinrinal Appeal Court and the trial court are both parts of the High Court of
Justiciary, they operate as entirely separate tribuntheappeal is not a retrial. Under the
Criminal Procedure (Scotland) Act 1995,section 106(3), the sole ground of appeal is that there bas
been a miscarriagef justice.
4 ;.-.
'~..
is entirely new. Although Libya included in its ,Application and Memorial what has
become the standard reservation of a right to "supplement and amend", it gave no hint in
its earlier pleadings of the possibility of a claim for damages. Nor does it now give any
indication of what it maintains are the losses in respect of which it daims damages. That
question, it seems, is to be reserved for yet another round of proceedings in a case which
has already lasted for nearly ten.years.
1.10 The arguments of the Parties have been fully set out in the written pleadings and
in the oral proceedings of 1992 and 1997. In responding to the Libyan Reply, the United
Kingdom will not repeat arguments already set out in its Preliminary Objections and
Counter-Memorial but, in accordance with Article 49(3) of the Rules of Court, will
concentrate upon bringing out the issues which still divide the Parties. While the effect
of developments since the Court gave its Judgment on the Preliminary Objections in 1998
has been to narrow the issues between the Parties, the United Kingdom notes, with regret,
that in its latest pleading Libya bas sought to introduce wholly new issues in an attempt to
broaden'thescope of the case.
1.11 The following questions of law appear now to be in issue between Libya and the
United Kingdom -
(1) the effect of the Court's 1998 Judgment in limiting the issues over which
the Court hasjurisdiction;
(2) whether events have rendered the Libyan Application without object and,
in this connection, whether Libya is entitled to refashion its claim and add
a claim for damages;
(3) the significance for the application of the Montreal Convention of the fact
that Libya was implicated in the destruction of Pan Am Flight 103;
(4) whether the United Kingdom violated Article 7 of the Montreal
Convention, read together with Articles 1, 5, 6 and 8(3), by taking the
matter to the Security Council and implementing the decisions of the
Council, or otherwise;
5 (5) whether the United Kingdom violated Article ll of the Montreal
Convention;
(6) the interpretation of Security Council resolutions 731 (1992), 748 (1992),
883 (1993) and 1192 (1998);
(7) the effect of those resolutions upon the rights and obligations of Libya and
the United Kingdom;
(8) whether the Court has jurisdiction in respect ofLibya's allegations that the
United Kingdom unlawfully threatened to use force against Libya and, if
so, whether there is any substance in those allegations;
(9) whether Libya is entitled to any part of the reliefwhich it now claims.
In addition, the Parties are divided in respect of a number of questions of fact.
1.12 The United Kingdom Rejoinder will deal with these issues in the following way-
Part 2 will review developments in the case since the filing of the United
Kingdom Counter-Memorial in March 1999 and will consider certain issues of
fact;
Part 3 will consider the effect of the Court's 1998 Judgment and wheth.er Libya
can now add an entirely new claim for damages;
Part 4 will consider the Montreal Convention issues which divide th.eParties;
Part 5 will examine the interpretation and effect of the Security Council
resolutions;
Part 6 will discuss Libya's allegations that the United Kingdom threatened to use
force;
9
United Kingdom Annex 2.
6 t·•'
Part 7will set out the United Kingdom's conclusions and submissions.
1.13 For reasons of its own, Libya has chosen to deposit a single Reply in respect both
of the present case and the parallel case between Libya and the United States of America.
The United Kingdom regrets this decision by Libya, since the two cases are separate and
Libya had filed separate Observations on the Preliminary Objections raised in them. The
use of a single pleading unnecessarily complicates matters as there are a number of issues
which arise on1yin respect of one or other of the two cases. The United Kingdom will
not address those parts of the Reply which are relevant only to Libya's case against the
United States of America. 10
10
For example, the United Kingdom will not discuss the allegations at paras. 1.42 to 1.45 of the
Reply which concem unilateral US measures against Libya.
7 PART2
ISSUES OF FACT
2.1 This Part of the Rejoinder will begin by considering the two major developments
smce the filing of the United K.ingdom Counter-Memorial - the implementation of
Security Council resolution 1192 (1998) and the trial and verdict which ensued. The
Rejoinder will then identify and briefly address the principal issues of fact which
continue to divide the Parties.
A: Developments since the 1998 Judgment
(1) The implementation of resolution 1192 (1998)
2.2 The circumstances which led to the adoption of Security Council resolution 1192
11 12
(1998) have already been discussed by the United Kingdom in its Counter-Memorial
and will not be repeated here. The account of the implementation of that resolution was,
however, incomplete, because it was not until a:fterthe Counter-Memorial was sent for
printing in March 1999 that Libya finally armounced that it would ensure the appearance
13
of the two accused before the Scottish Court sitting in the Netherlands. The United
K.ingdomdecided not to seek a further extension of the deadline for filing the Counter
Memoria1.14The timetable for printing the Counter-Memorial meant that it was possible,
15
therefore, only to add a brief paragraph noting the Libyan statement. The Counter
Memorial was, however, accompanied by a letter from the Agent of the United K.ingdom
li
United KingdomAnnex 87.
!2
United K.ingdomCounter-Memorial, Part 5.
!J See UN Document S/1999/311, letter of 23 March 1999 from the Secretary-General to the
President of the Security Council attachîng a letter from the Secretary of the General People's
Commîttee of the People's Bureau for Foreign Liaison and International Co-operation of the
Libyan Govemment dated 19 March 1999: United KingdomAnnex 122.
[4
An extension from 31 December 1998 to 31 March 1999 bad already been granted by Judge Orla,
as Senior Judge, in December 1998.
15 United Kingdom Counter-Memorial, para. 5.16.
8explaining the circumstances and notifying the Court that the United Kingdom would file
a brief Supplement to the Counter-Memorial to inform the Court of developments in the
16
implementation of resolution 1192 (1998). The United Kingdom filed that Supplement
on 7 May 1999, confirming that the two accused bad been transferred into the custody of
the Scottish Court at Camp Zeist on 5 April1999. 17
2.3 The arrangements for a trial before the specially constituted Scottish Court in the
Netherlands were made under an Agreement between the Netherlands and the United
Kingdom 18 and United Kingdom delegated legislation. 19 That legislation provided for
the High Court of Justiciary to conduct a trial of the two accused in the Netherlands under
Scottish criminal law and procedure. Scottish law provides for an adversarial form of
trial in which the responsibility for calling witnesses and adducing other evidence rests
on the prosecution and defence counsel, not the court. The burden of proof is on the
prosecution, which is required to prove beyond reasonable doubt the ingredients of the
offence charged. No persan may be convicted on the evidence of only one witness or
evidence from only one source and essential facts must be established by corroborated
20
evidence, that is evidence from at least two independent sources. The United Kingdom
legislation provided that th.eScottish Court which would sit in the Netherlands would be
subject to and would apply all of the normal rules of Scottish criminallaw and criminal
procedure, 21the only difference from proceedings in Scotland itself being that the Court
16 Certain comments in the Libyan Reply (e.g. para. 1.35) suggest that Libya's counsel may not have
seen this letter. The Libyan letter 19 March 1999, note 13 above, was attached to the letter
from the Agent of the United Kingdom
17
United Kingdom Counter-Memorial Supplement, para. 5.
18
United Kingdom Aimex 90.
19 The Higb Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998,
Statutory Instrument 1998No. 2251: United KingdomAnnex 89.
20
Summary of Scottish Crirninal Procedure: United Kingdom Annex 126. See also the Summary of
Scottisb Criminal Procedure in Murder Cases: United Kingdom Annex 18.
21 United Kingdom Annex 89, Article 3.
9would sit as a bench of three judges without a jury, instead of the normal arrangement of
22
a singlejudge with ajury of fifteen.
2.4 These provisions were made against the background of a number of ether
developments in the case. First, in September 1993 Libya bad sent the United Nations
Secretary-General a list of questions relating to Scottish criminal procedure and
23
guarantees for the accused in a criminal trial. The United Kingdom supplied the
Secretary-General with detailed answers to those questions which formed the basis of his
24
reply to Libya. Libya responded by saying that it was satisfied by the replies to its
. 25
questtons.
2.5 Secondly, in 1997, at the invitation of the United Kingdom Government, the
Secretary-General appointed the former Chief Justice of Zimbabwe, Dr Dumbutshena,
and Professer Schermers, ofLeiden University, as United Nations representatives for the
purpose of a visit to Scotland to study the Scottish criminal justice system and report on
whether the accused would receive a fair trial in a Scottish court. Their conclusions were
as follows-
''Basedon the foregoing, we conclude that the accused would receive a fair trial
under the Scottishjudicial system. Their rights during the pre-trial, trial and post
trial proceedings would be protected in accordance with international standards.
The presence of United Nations and ether observers can be fully and easily
accornmodated. A trial by jury would not prejudice the accused's right to a free
trial. If, however, the accused could reasonably establish that their right to a free
trial would be prejudiced by a jury trial, we suggest that the idea of dispensi26
with thejury be pursued with the Govemment of the United Kingdom."
22 United Kingdom Annex 89, Article 5.
23
UN Doc. S/26500: United Kingdom Atu1ex67.
24
The material supplied by the United Kîngdom appears at United Kingdom Annex 68.
25 United Kingdom Annexes 69, 71 and 82.
26 UN Doc. S/1997/991, p.15: United KingdomAMex 85.
10 ,;,;-t·.
Libya received a copy of this report and its representative stated in the Security Council
on 20 March 1998 that the Libyan Govemment had no criticism of Scottish law or the
Scottish judiciary. 27
2.6 The accused arrived in the Netherlands on 5 April 1999 and were arrested by the
Dutch authorities. They waived their right to contest extradition and were extradited in
accordance with Netherlands law and transferred to the custody of Scottish police officers
at Camp Zeist on the sarne day. On 6 April 1999 the accused made their first appearance
in court before the Sheriff Principal of South Strathclyde, sitting at Camp Zeist, who
committed them for trial and remanded them in custody.
2.7 Under Scottish criminal procedure the trial would normally have commenced not
later than August 1999. 28 However, the defence sought further time to prepare their case
and the Scottish Court granted them two extensions to the ordinary time-limits. An
application by the prosecution for an extension oftime to prepare was denied.
2.8 The charges against the two accused were set out in the Indictment. In Scottish
criminal procedure, the Indictment is the document which sets out the charges for the
trial. It is prepared by the prosecution after the accused has been committed for trial by
the Sheriff and in the light of a confidential report to Crown Counsel on ali the
investigations which have been carried out by the Procurator Fiscal and the police.
Accordingly, the Indictment will normally be different from the Petition {on which the
arrest warrant is based), especially in the detailed specification of the charges. In the
present case, both the Petition and the Indictment alleged the same offences (murder,
conspiracy to murder, and offences against section 2 ofthe Aviation Security Act 1982)
27
UN Doc. S/PV.3864, p. 9: United Kingdom Am1ex 118.
2K Summary of Scottish Criminal Procedure: United Kingdom Annex 126.
11but the detailed specification of these charges in the Indictment differed from that in the
29
Petition. The trial commenced on 3 May 2000.
2.9 Paragraph 4 of Security Council resolution 1192 (1998) required ''thatthe Libyan
Govemment shall ensure that any evidence or witnesses in Libya are, upon the request of
the court, promptly made available at the court in the Netherlands for the purpose of
30
trial." On 8 July 1999 a Letter of Request addressed to the Libyan Govemment and
issued by the High Court, together with a translation into Arabie, was handed to the
Libyan Foreign Liaison Bureau in Tripoli. The Letter ofRequest sought the co-operation
of the Libyan authorities with regard to the production of certain evidence and requested
permission for Scottish police officers to visit Libya in connection with this evidence.
According to the Foreign Liaison Bureau, the Letter of Request and translation were
passed on to the Libyan judicial authorities on 29 July 1999. At the end of September
1999 the Libyan authorities gave pennission for Scottish police officers to visit Libya and
that visit took place between 18 October and 4 November 1999. On 10 February 2000
the Arabie text of a Protocol of execution of request, containing certain evidence, was
received by the Crown Office in Scotland. An official English translation was received
by the Crown Office on 24 March 2000.
(2) The trial andjudgment
2.10 The principal charge against each of the accused was that of murder of the 259
people on board Pan Am Flight 103 and eleven residents of Lockerbie. The Scottish
Court beard evidence from 230 witnesses over a period of 77 days. There were a further
29 The Petition appears as United Kingdom Annex 17. The Indictment, in its final form, appears as
United Kîngdom Annex 127. In accordance witb normal Scottish criminal procedure, the original
Indictment was amended during the trial when the Prosecution elected to withdraw those charges
other than murder (see below, para. 2.10, and Atulex 126, paraandagain at the conclusion of
the trial in ordto reflect the verdict of the Court. Since the chainethe Indictment do not
affect the matters presently under consideration, the United Kingdom bas attacbed only the
Indictment in its final form. The United Kingdom will, of course, provide copies of the earlier
versions of the Indictment should the Court wish.
30
United KîngdomAtulex 87.
12seven days of closing arguments from prosecution and defence counsel. The Court gave
its verdict on 31 January 2001.
2.11 The Court unanimously found the frrst_accused, Abdelbaset Ali Mohmed Al
Megrahi, guilty of murder. The second accused, Al Amin Khalifa Fhimah, was acquitted.
The Court set out the reasons for its verdict in an Opinion published on 31 January
2001. 31 The Indictment, as it stood following the verdict of the Court, stated that the first
accused was a member of the Libyan Intelligence Services ("the JSO'')- specifically, the
Head of Security of Libyan Arab Airlines and later the Director of the Centre for
Strategie Studies in Tripoli - that he had, while acting in concert with others, formed a
criminal purpose to destroy a civil passenger aircra:ft and murder those on board in
furtherance of the purposes of the Libyan Intelligence Services and that, in execution of
that plan, hehad murdered the 259 passengers and crew on board Pan Am Flight 103 and
11 persons on the ground. The Court found that the evidence demonstrated, beyond
reasonabie doubt, that these allegations were true.
2.12 It is not necessary, for present purposes, to discuss in detail the findings of the
Court (which are set out in full in the Opinion). It is sufficient simply to draw attention
to two passages, the first summarising the Court's conclusions on the evidence, the
second addressing the guilt of the first accused.
2.13 As regards the evidence before it, the Court held that-
'The clear inference which we draw from this evidence is that the
conception, planning and execution of the plot which led to the planting
of the explosive deviee was of Libyan origin. While no doubt
organisations such as the PFLP-GC and the PPSF were also engaged in
terrorist activities during the same period, we are satisfied that there was
no evidence from which we could infer that they were involved in this
particular act of terrorism, and the evidence relating to their activities
does not create a reasonable doubt in our minds about the Libyan origin
of this crime."32
]\ Rer Majesty's Advocate v. Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah,
Case No.l475/99: United K.ingdomAnnex 128 (which includes the Opinion and the transcript of
the verdict of the Court).
32 United KingdomAnnex 128, para. 82.
132.14 With regard to the first accused, the Court found that "he was a member of the
33
JSO, occupying posts of fairly high rank" and concluded that -
" having considered the whole evidence in the case, including the
uncertainties and qualifications, and the submissions of counsel, we are
satisfied that the evidence as to the purchase of clothing in Malta, the
presence of that clothing in the primary suitcase, the transmission of an
item of baggage from Malta to London, the identification of the first
accused (albeit not absolute), his movements under a false name at or
around the material time, and the ether background circumstances such
as his association with Mr Bollier and with members of the JSO or
Libyan military who purchased MST-13 timers, does fit together to form
a real and convincing pattern. There is nothing in the evidence which
leaves us with any reasonable doubt as to the guilt of the fust accused,
and accordingly we find him guilty of the remaining charge in the
Indictment as amended." 34
2.15 Mr Al Megrahi is appealing against his conviction. At the time of filing this
Rejoinder, no date had yet been fixed for the hearing of the appeal. The United Kingdom
will provide a copy of the decision on the appeal as soon as it is available, together with
any observations thereon which may be of assistance to the Court.
B: Issues offact in contention
2.16 The Libyan Reply makes a number of assertions of fact with which the United
Kingdom disagrees. Since nothing tums on many of these, the United Kingdom will not
take up the Court's time by replying to each of them. Two issues are, however, of sorne
signi:fi.canceand require brief comment.
2.17 First, the Reply states that the United Kingdom has falsely accused Libya of
complicity in the Lockerbie bombing without any evidence and before the question of
responsibility for the bombing had been determined at a trial. 35 Libya's approach is
33 United Kingdom Annex 128, para. 88.
34 United KingdomAnnex 128, para. 89.
35
Libyan Reply, paras. 1.37 et seq. and 2.11.
14based upon a misrepresentation of what the United Kingdom bas said. · The United
Kingdom bas made the point on several.occasions that the Montreal Convention does not
give a State the right to insist upon trying persons accused of a Convention offence when
that State is itself implicated in the offence. The use of the word "implicated" means that
there were good grounds on the evidence available to suspect the involvement of Libya.
Of its nature this is not an accusation which can, or should, fust be proved at trial; it is a
fact which is relevant to where a trial should take place. 36
2.18 That was understood by the Security Council. In the preamble to resolution 731
37
(1992), the Council expressed itself-
"Deeply concemed over the results of investigations, which implicate officiais of
the Libyan Government and which are contained in Security Council documents
that include requests addressed to the Libyan authorities by France, the United
Kingdom of Great Britain and Northem Ireland and the United States of America
in connection with the legal procedures related to the attacks carried out against
Pan American Flight 103 and Union de transports aériensflight 772."
The results of the investigations were clear in, for example, the Statement of Facts
38
produced by the Lord Advocate and given to Libya on 14 November 1991 and the
Petition of the Procurator Fiscal setting out the charges against the two accused, which
expressly charged them with having acted as agents of the Libyan. Governm.ent and in
9
order to further the purposes of the Libyan Intelligence Services? The details of the
evidence on which these accusations rested could not be made known before the trial of
the two accused for fear of prejudicing that trial. However, even on the material which
was made public before the trial, it is clear that there were good grounds for suspecting
that Libya bad been involved in the attack.
36 United Kingdom Counter-Memorial, paras. 3.104 to 3.121.
37 United Kingdom Annex 2.
38
Unîted Kingdom Armex 16.
39 United Kingdom Annex 17.
152.19 Although the appeal is still pending, the outcome of the trial confums those
concems and indicates the evidence on which they are based. The Court found, after a
lengthy trial and to a very high standard of proof, that -
(1) The conception, planning and execution of the plot to destroy Pan Am Flight
l03 and murder those on board was of Libyan origin;
(2) Abdelbaset Ali Mohmed Al Megrahi was a member of the Libyan Intelligence
Services occupying posts of fairly high rank; and
(3) Abdelbaset Ali Mohmed Al Megrahi was responsible for the destruction of
the aircraft and the deaths of270 people.
In the light of these findings, Libya's protestations that there was no basis for suggesting
that it might have been responsible for the Lockerbie bombing have a distinctly hollow
nng.
2.20 Secondly, the Reply accuses the United Kingdom of seeking to "demonise" Libya
by falsely accusing Libya of links with terrorist organisations and acts. Yet th.e
accusations made by the United Kingdom were based on what Libya's highest officiais
have themselves said. The record is plain. To take just one example: in its Preliminary
Objections, the United Kingdom quoted a statement by Colonel Gadhafi about Libyan
relations with the Provisional IRA in which he said, "we support it, terrorism or no
terrorism". 40 Libya subsequently admitted links with the Provisional IRA and other
groups engaged in terrorist activity which it claimed to have severed. 41 Libya does not
(and cannat) deny any of this record and is reduced instead to accusing the United
Kingdom of con:fusing terrorist organisations with national liberation movements when
40 United Kingdom Annex 41.
41
United Kingdom Armexes 55 and 63.
16 --. ·.-.
Libya had itself acknowledged that th.eorganisation in question bad engaged in terrorist
42
activities.
42
Similarly, Libya bas itself accepted general responsibility for the killing, in 1984, of WPC Yvonne
Fletcher (described in United Kingdom Preliminary Objections, para. 2.17): United Kingdom
Annex 129.
17 PART3
THE SCOPE OF THE PRESENT PROCEEDlNGS
A: The effect of the 1998 Judgment
3.1 The 1998 Judgment of this Court defined the scope of the issues over which the
Court has jurisdiction. The United Kingdom had thought that the effect of the 1998
43
Judgment was not in- contention between the Parties. It is now apparent from the
Libyan Rep1y that this is not the case. There are three significant differences between the
Parties over the effect ofthe Judgment.
(1) The Libyan claim regarding alleged threats to useforce
3.2 First, Libya has persisted with its claim against the United Kingdom for allegedly
threatening to use force contrary to the Charter of the United Nations and the principles
44
of customary internationallaw. Indeed, Libya now seeks to give this part of its claims
greater prominence. The Libyan Memorial described this claim in the following terms -
"le_Royaume-Uni est juridiquement tenu de respecter le droit de la Libye à ce que
cette convention ne soit pas écartéepar des moyens qui seraient au demeurant en
contradiction avec les principes de la Charte- des Nations Unies et du droit
international généralde caractère impératifqui prohibent 1'utilisation de la force
et la violation de la souveraineté,de l'intégrit45erritoriale, de l'égalitésouveraine
des Etats et de leur indépendance politique...
43 United Kingdom Counter-Memorial, paras. 1.17 to 1.21.
Reply, paras. 4.3 to 4.17.
4S Libyan Memorial, para. S.l(d). "The United Kingdom is under a legal obligation to respect
Libya's right not to have the [Montreal] Convention set aside by means which would in any case
be at variance witb the principles of the United Nations Candtwith the mandatory rules of
general international law prohibiting the use of force and the violation of the sovereignty,
territorial integrity, sovereign equality and political independences." (Translation by the
Court).
18 .''•
·''
3.3 In its 1998 Judgment, the Court held that Libya's claim regarding the alleged
actions of the United Kingdom came within the jurisdiction of the Court only "in so far as
46
those actions would be at variance with the provisions of the Montreal Convention."
It is clear, therefore, that allegations of violations of rules of international law other than
the provisions of the Montreal Convention are outside the jurisdiction of the Court.
3.4 Tl1atis confirmed by the Joint Declaration of Judges Guillaume and Fleischhauer.
After quoting paragraph 8.1(d) of the Libyan Memorial, they stated that-
"We recognize that there is a legal dispute between the Parties concerning this
point. That dispute, however, falls und er Article 14, paragraph 1, of the Montreal
Convention and therefore within the jurisdiction of the Court only if, and in so far
as, it concerns the interpretation and application of one or more of the provisions
of the Convention. The dispute does not fall under Article 14, paragraph 1, and
the jurisdiction of the Court if it concems the interpretation and application of
Article 2,paragraph 4, of the Charter of the United Nations." 47
Similarly, Judge Kooijmans, in his Separate Opinion, remarked that-
"The Court's jurisdiction in my view is confmed to the issues just mentioned
which are covered by the terms of Article 14, paragraph 1 of the Montreal
Convention, viz., the issues of applicability and compliance or non-compliance.
fu particular, the ways and means by whicb this non-compliance is practised and
the question whether these ways and means are at variance with the Charter of the
United Nations and with mandatory rules of general international law do not come
within the Court's jurisdiction as consensually agreed upon in Article 14,
48
paragraph 1, of the Convention."
3.5 As these passages from the opinions of three judges who voted in faveur of the
relevant part ofthe Court's Judgment indicate, the effect of the Court's ruling is clear -
the Court bas jurisdiction to determine wbether or not the United Kingdom bas violated
46
Preliminary Objections Judgment, /Cl Reports 1998, p.atpara. 36.
47 IC./ Reports 1998, p.atp. 50.
48 ICI Reports 1998, p. 9 at para. 8.
19the Montreal Convention; it does not have jurisdiction to determine whether or not the
United Kingdom has violated Article 2(4) of the Charter, or the general international law
regarding the use of force. Libya itself, however, describes the alleged threats to use force
as conduct which, if proved, would be "en contradiction avec les principes de la Charte
des Nations Unies et du droit international généralde caractère impératifqui prohibent
l'utilisation de la force" ("at variance with the principles of the United Nations Charter
and with the mandatory rules of general international law prohibiting the use of force") 49
but not with the Montreal Convention. This part of Libya's claim, therefore, falls outside
thejurisdiction of the Court. ·
3.6 In an attempt to circumvent the Court's ruling on this point, Libya now argues (in
spite of th.eclear language of its own Memorial) that its claim is solely for an alleged
50
violation of the Montreal Convention. Yet Libya does not point to any provision of the
Montreal Convention which could be described as regulating the threat or use of force
between States, a matter which is subject to quite distinct rules of international law
derived (as Libya correctly stated in its Memorial) from sources other than the Montreal
Convention.
3.7 fustead, Libya relies heavily on the decisions of the Court in the Fisheries
Jurisdiction cases 51 as authority for the proposition that "la jurisprudence de la Cour
montre que des actes constitutifs de recours à la force peuvent entrer dans le cadre d'une
demande baséesur une clause compromissoire" (''theCourt's case-law shows that acts
constituting the use of force may form the subject of an application based upon a
compromissory clause"). 52 The question, however, is not whether claims regarding the
threat or use of force can ever fall within the scope of a compromissory clause but
49
Libyan Memorial, para. 8(l)(d) (translation by the Court).
50 Libyan Reply, para. 4.6 et seq..
51
United Kingdom v. Iceland {Merits}, ICJ Reports 1974, p. 3 at p. 21; Federal Republic of
Germany v. Iceland (Merits), ICJ Reports 1974, p. 175 at p. 203.
sz Libyan Reply, para. 4.11 {unofficial translation by the United Kîngdom).
20 ..'
whether Libya's daim regarding threats to use force falls within the scope of this
jurisdictional clause, i.e. Article 14(1) of the Montreal Convention.
3.8 The jurisdictional provisions on which the United Kingdom and Gennany relied
in the Fisheries Jurisdiction cases were markedly different from Article 14(1) of the
Montreal Convention. The decisions therefore shed little if any light on the issue in the
present case. The jurisdiction of the Court in the Fisheries Jurisdiction cases was based
upon identical provisions in two Exchanges of Notes of 1961, which provided that,
should Iceland further extend its fisheries limits, the Court would have jurisdiction with
respect to "a dispute in relation to such extension." While that provision limited the
subject-matter over which the Court was granted jurisdiction, it did not specify the source
of the rights and obligations which might arise in such a dispute. By contrast, Article
14(1) of the Montreal Convention confers jurisdiction only in r~spe oft disputes
conceming a certain subject-matter and arising out of a specifie legal source, namely the
Convention itself.
3.9 Nor does the recent decision ofth.e Court in the LaGrand case suggest a different
3
conclusion. 5 The Court there held that Article I of the Optional Protocol to the Vienna
Convention on Consular Relations, 1963, conferred jurisdiction in respect of a daim
based on the concept of diplomatie protection, notwithstanding that diplomatie protection
is a concept of customary international law, not one derived directly from the Vienna
54
Convention. However, the substantive rule which Germany argued had been violated,
and in respect of which it brought its diplomatie protection claim, was contained in the
Vienna Convention. The present case is entirely different, as the Montreal Convention
contains no rules relating to the threat or use force.
3.10 It follows that Libya's allegations that the United Kingdom threatened to use
force cau be brought within the jurisdiction of the Court only in so far as they can be
shown to constitute violations of the Montreal Convention. The United Kingdom will, in
53
LaGrand case (Germany v. United States of America), judgment of27 June 2001.
54 LaGrand case, para. 42.
21any event, demonstrate in Part 6 of this Rejoinder that there is no substance in Libya's
daims that it threatened to use force against Libya.
(2) The dispute regarding the interpretation and application of the Montreal
Convention
3.11 Libya also maintains in its Reply that the 1998 Judgment "n'a pas réduitl'étendue
des questions soulevéesdans le mémoirelibyen" ("did not reduce the scope of the issues
raised in the Libyan Memorial''). 55 Libya again misunderstands the Court's decision. In
its Memorial, Libya claimed.that the United Kingdom was in violation of Articles 5(2),
5(3), 7, 8(3) 56 and 11 of the Convention. 57 The Court found that it bad jurisdiction over
a dispute in relation to the interpretation and application of Article 7 and a dispute in
relation to the interpretation and application of Article 11. 58 Paragraph 29 of the
Judgment makes clear that the Court considered that Article 7 bad to be "read in
conjunction with Articles 1, 5, 6 and 8" but that none of those Articles could form the
basis for a separate daim. In other words, in order to make good its case, Libya must
prove that the United K.ingdomis in violation of Article 7 or Article 11.
(3) The effect ofSecurity Councilresolutions 748 (1992)and 883 (1993)
3.12 Finally, Libya misrepresents the decision of the Court regarding the possible
effect of Security Council resolutions 748 (1992) and 883 (1993). In its Reply Libya
daims that the Court held that these resolutions were not retrospective and thus did not
affect the situation before 31 March 1992, the date on which resolution 748 (1992) was
ss Libyan Reply, para. 2.3 (unofficial translation by the United Kingdom).
The Application relies on Article 8(2). No explanation is given by Libya astoitaltered the
provision on which it relies.
57
Libyan Memorial, para. 8.l(c).
58 Preliminary Objections Judgment, ICJ Reports 1998, 9at paras29 and 33.
22 59
adopted. In fact, the Court's decision regarding the temporal effect of the resolutions
was significantly more limited than is claimed.
3.13 In rejecting the United Kingdom claim that the two resolutions meant that the
Court lacked jurisdiction and/or rendered the Libyan Application inadmissible, the Court
held that the questions of jurisdiction and the adrnissibility of an application have to be
determined as at the date on which the application is filed. If at that date the Court has
jurisdiction and the application is admissible; subsequent events will not deprive the
60
Court of that jurisdiction or render the application inadrnissible. Those were the only
rulings which the Court made regarding the possible temporal effect of the resolutions.
3.14 The Court specifically reserved to the merits phase any decision on whether
resolutions 748 (1992) and 883 (1993) rendered the Libyan claim without object. In this
regard, the Court recognised that "events subsequent to the filing of an application may
'render the application without object"'. 61 The Court set no temporal limit on the
potential effects of the resolutions on this point and thus left open the question whether
the resolutions rendered the entire application without object. The decision does not,
therefore, exclude the possibility that resolutions 748 (1992) and 883 (1993) render the
Libyan Application without abject even in so far as the Application relates to acts which
are said to have occurred before 31 March 1992.
3.15 Nor does the Court exclude the possibility that the two resolutions might afford a
substantive defence to Libya's claims even with regard to acts said to have occurred
before 31 March 1992. The Judgment is quite simply silent op.this point.
59
See, in particular, Libyan Reply, para. 1.4.
60 Preliminary Objections Judgment, ICJ Reports /998, p. 9 at paras. 38-39 and 44-45.
61 Preliminary Objections Judgment, ICJ Reports 1998, p. 9 at para. 46.
23 B: TheApplication is now without object
(1) The effect of recent developments on Libya'sApplication
3.16 The operative part of Libya's Application instituting proceedings requests the
Court to adjudge and declare "that the United Kingdom bas breached, and is continuing
to breach, its legal obligations to Libya" under varions stated provisions of the Montreal
Convention. 62 It is clear from the Libyan Reply that Libya no longer maintains the
allegation of a continuing breach of the Montreal Convention by the United K.ingdom-
stating, indeed, that "les actes illicites ont désormaiscessé"("the illegal acts have now
ended"). 63 The question that then arises is whether the dispute between the Parties of
which the Court was seised pursuant to the Libyan Application bas been denuded of all
practical substance. In ether words, in the light of the Camp Zeist arrangements and the
trial, bas the case, as defined by the Libyan Application, become one of abstract
adjudication of claims of only historieal significance ? If so, considerations of principle,
64
and the authorities on this issue, suggest that the Court, in the exercise of its inherent
judicial fonction, should decline to proceed to judgment on the matter.
3.17 In the United Kingdom's view, that is indeed the position. Reference to the
claims advanced by Libya, both in its Application instituting proceedings and in its
Memorial, make it plain that a judgment on the matters with which the Court is seised
would be entirely academie. At the core of the case is Libya's claim that, under Article 7
of the Montreal Convention, "Libya is obliged to submit the case to its competent
authorities for purposes of prosecution" and that "the United K.ingdom is attempting to
prevent Libya from fulfilling its obligations in this respect in violation of the
Convention". 65 Libya also daims that under Article 11(1) of the Montreal Convention,
62 Application, at p.l 0, Section IV, para. (b), quoted at para. 1.2, above.
63
Libyan Reply, at para. 1.30 (unofficial translation by the United Kingdom).
64
The Court recognized in its Preliminary Objections Judgment that "events subsequent to the filing
of an application may 'render the application without object"' (ICJ Reports 1998, p. 9 at para. 46).
6S Application, at.l 0, Sectiill,para. (d).
24"the United Kingdom is under an obligation to afford Libya ... the greatest measure of
assistance in connection with criminal proceedings brought by Libya in respect of the
66
offences". As with these principal claims, Libya's remaining claims are equally
focussed on securing a ruling from the Court on what Libya contends are itsrights and
the United Kingdom's obligations under the Montreal Convention in respect of the
Lockerbie accused.
3.18 Indeed, at the oral hearings on the United Kingdom's Preliminary Objections,
the Agent of Libya expresslystated that Libya's object in bringing the case was to obtain
from the Court a ruling which would remind the Parties of their respective rights and
obligations. In his opening speech, he told the Court that "nous avions espéréque notre
requêteserait comprise dans son sens constructif et qu'il n'y avait rien de déraisonnableà
demander que, par une décision,la Cour rappele à chacun ses droits et ses obligations." 67
3.19 It is plain, therefore, that the Camp Zeist arrangements and the transfer by Libya
of the accused into the custody of the Scottish authorities for purposes of trial render the
Libyan claims without abject. There is now no question:of Libya exercising jurisdiction
over the accused pursuant to Article 7 of the Montreal Convention. The claim that the
United Kingdom is obliged to afford Libya the greatest measure of assistance in respect
of such proceedings has also become entirely hypothetical. The same is true of the
remaining Libyan clairns.
3.20 In the Northern Cameroons case, the Court declined to proceed to judgment on
grounds that circumstances had arisen since the filing of the Application that rendered
68
any adjudication "devoid of purpose". In the Nuclear Tests cases, the Court observed
that "[i]t does not enter into the adjudicatory functions of the Court to deal with issues in
66 Application, atp.IO, Section III, para. (f).
67
"... [W]e bad hoped that our application would be understood as a constructive measure and that
there was nothing unreasonablen the request that, by a decision the Court remind each of their
rightsnd obligations" (CR 97/20, p. 9; para. 1.03 (Mr El-Houderi) (translation by the Court)).
68 Case conceming the Northern Cameroons (Cameroon v. United Kingdom), Preliminary
Objections,CJ Reports 1963,p. 15 at p. 38.
25 69
abstracto". While the circumstances of these cases are not exactly identical with those
of the present case, the proposition that it is not within the adjudicatory function of the
Court to render what in effect would be an.advisory opinion in the course of contentious
proceedings is nevertheless compelling. Indeed, the present case calls out for the
application of that principle to a greater extent than did the Nuclear Tests cases. In the
Nuclear Tests cases, the Court held that the applications by Australia and New Zealand
bad become moot because France bad given an undertaking not to conduct further
atmospheric nuclear tests. In the present case, it is events which have already occurred,
namely the conclusion of the Camp Zeist arrangements and, as Libya bas put it, "the
voluntary appearance of the suspects before a Scottish court in the Netherlands", which
render further proceedings on the Libyan Application without abject, rather than any
70
undertaking as to future conduct. That such events would render the Libyan
Application without abject was recognized as early as 1992 by Judge ad hoc El-Kosheri,
who said that -
"In a nutshell, once a forced surrender takes place, the present case related to the
interpretation and application of the Montreal Convention will become
71
meaningless, since there will be no more legal issue to be adjudicated." ·
That is, of course, equally true of a voluntary surrender.
(2) Libya'sattempt to refashion its claim
3.21 Recognising that the developments since the 1998 Judgment make it difficult to
resist the conclusion that the Application is now without abject, Libya bas sought in the
Reply to refashion its daim. Prier to the filing of the Libyan Reply, Libya bad made no
mention of a claim for damages. On the contrary, its pleadings, bath written and oral,
69 Nuclear Tests (Australia v. France), !Cl Reports 1974, p. 253 at p. 271, para. 59; Nuclear Tests
(New Zealand v. France), ICI Reports 1974, p. 457 at p. 477, para. 61.
70
Libyan Reply, at para. 1.15.
71
Case conceming Questions of Interpretation and Application of the 1971 Montreal Convention
arisingfrom the Aerial Incident at Lockerbie (Libyanited Kingdom) (Provisional Measures),
ICI Reports 1992, p. 3 (hereina:fter "Provisional Measures Order"); dissenting Opinion of Judge
ad hoc El-Kosheri at p. 110, para. 56.
26 72
suggested that the abject ofits Application was far removed from such a claim. -Now,
however, the Court is told that it is becauseof the need to found a subsequent daim for
damages that establislunent by the Court of Libya's rights and the United Kingdom's
alleged violations of the Convention is necessary. Moreover, Libya assures the Court
that it is this factor which distinguishes the present case from therthern Cameroons 73
and Nuclear Tests 74cases -
''Uneconstatation par la Cour des droits de la Libye et des violations corrélatives
de la convention de Montréal par les défendeurs est nécessaire pour fonder une
réclamation ultérieure en réparation. C'est ce qui distingue la trésente espèce des
affaires duCa~er sopuentrional et desEssais nucléaires." 5
3.22 Libya is not entitled, at this late stage of the proceedings, to add an entirely new
claim. As the Court hasrecently stated -
"Paragraph 1 of Article 40 of the Statute of the Court requires moreover that the
'subjectofthe dispute' be indicated in the Application; and, for its part, paragraph
2 of Article 38 of the Rules of Court requires 'the precise nature of the claim' to
be specified in the Application. In a number of instances in the past the Court has
had occasion to refer to these provisions. It has characterized them as 'essential
from the point of view of legal security and the good administration of justice'
and, on this basis, has held inadmissible new claims, fonnulated during th.ecourse
of proceedings, which, if they had been entertained, would have transfonned the
subject of the dispute originally brought before it under th.e terms of th.e
Application (Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, LC.J. Reports 1992, pp. 266-267; see also
Prince von Pless Administration, Order of 4 February 1933, P.C.LJ., Series AIB,
No. 52, p. 14 and SociétéCommerciale de Belgique, Judgment, 1939, P.C.LJ.,
76
Series A/B, No. 78,p. 173)."
72 See, e.g., the statement by the Libyan Agent at the 1997 hearings: para. 3.18, above.
ICI Reports 1963, p. 15 at pp. 37-8.
14
ICI Reports 1974, p. 253 at pp. 269-272 (Australia v. France) and p. 457 at pp. 475-77 (New
Zealandv. France).
7'l "Establishment by the Court of Libya's rights and the corresponding violations the Montreal
Convention by the Respondents needed in order to found a subsequent daim for damages. This
is what distinguishes the present case from the Northern Cameroons and Nuclear Tests cases"
(Libyan Reply, para. 1.31; unofficial translation by the United K.ingdom).
76 Fisheries Jurisdiction (Spain v. Canada), ICJReports 1998, p. 432 at para. 29.
27 3.23 The decisions there cited concemed attempts to introduce new daims in the
Memorial of the Applicant State. The principle applies with even greater force to an
attempt to introduce a new daim in the Reply. The Memorial is supposed to constitute a
comprehensive statement of the claim. The purpose of the Reply and the Rejoinder,
which are in any event not automatic pleadings but ones which require the authori.sation
of the Court, is to bring out the issues that still divide the Parties, not to introduce new
77
issues between them. Moreover, if an Applicant were permitted to introduce a new
claim a:fterthe filing of it.sMemorial, there would be a fundamental departure from the
principle of equality of arms·,because the Rules of Court require a Respondent to lodge
78
any counter-claim when it deposits it.s Counter-Memorial.
3.24 A claim for damages in respect of alleged past violations of the Montreal
Convention is radically different from a daim for declaratory relief in respect ofwhat are
said to be continuing violations of the Convention; and obtaining reparation is a wholly
different purpose for the proceedings from that hitherto advanced. While Libya cannot
have been expected to foresee ali of the developments in the case, if it bas indeed
79
suffered "dommages matérielset moraux," theo they are not something novel which
has only occurred in the period since 1993 and there is no reason why Libya could not
have claimed reparation in its Application or, at the latest, in its Memorial. Libya cannot
now be allowed to add a claim for damages after the deadline for filing a counter-claim
bas passed and seven years after it filed its Memorial.
3.25 Two further considerations are relevant here. First, Libya gives no indication
whatever of what are the damages which it daims to have sriffered. The bald assertion,
in paragraph 1.30ofthe Reply, that there bas been such damage is nowhere supported by
any evidence asto its nature, cause or extent. Quite simply, the United Kingdom is given
no idea of the daim that it might have to meet. The claim could not relate to the effect of
the sanctions imposed by resolutions 748 (1992) and 883 (1993), becau.se any damage
n
Rules of Court, Article 49(3).
78
Rules of Court, Article 80(2).
79 Libyan Reply, para. 1.30.
28caused by sanctions imposed by the United Natipns Security Council could not be the
responsibility of a single Member State. Libya bas nowhere referred to any ether
damages which it might have sustained.
3.26 Secondly, Libya appears to have added this last minute claim for reparation in
arder to give the proceedings a raison d'être. Libya recognizes, at paragraphs 1.30 to
1.31 ofits Reply, that developments since the 1998 Judgment of the Court have removed
the original purpose of the proceedings. In an attempt to stave off a decision, based on
the principle identified inNorthern Cameroons and Nuc/ear Tests, that the proceedings
are now without abject, Libya seeks to add this new claim for damages in order to
breathe life back into them. Libya's Reply adroits, in effect, that without the claim for
damages which it seeks to add the case would not be distinguishable from Northern
Cameroons and Nuclear Tests and would therefore have to be dismissed. That is ail the
more reason for the Court to rule the atternpt to add the new claim inadmissible. It would
be contrary to principle, to authority and to the orderly management of the Court's docket
for a litigant to be allowed to use the Reply to refashion its claim so as to rescue it from
the effects of a clearly established rule oflaw.
29 PART4
THE INTERPRETATION AND APPLICATION OF
THE MONTREAL CONVENTION
4.1 On 27 August 1998, the United Nations Security Council adopted resolution 1192
(1998) calling·upon the United Kingdom.and the Netherlands to tak:esuch steps as are
necessary to implement an initiative put before it "for the trial of the two persans charged
with the bombing of Parn Am flight 103 ('the two accused') before a Scottish Court
sitting in the Netherlands".80 Pursuant to the terrns of this resolution, the United
Kingdom and the Netherlands concluded the arrangements necessary for such a trial at
Camp Zeist inthe Netherlands.
4.2 In its Reply, Libya contends that the transfer of the two accused for trial before
the Scottish Court at Camp Zeist "apparaissant comme une manière d'appliquer la
convention de Montréal"("appears to be a way of applying the Montreal Convention")
insofar as itwas ''une interpretation raisonnable de la convention afin d'assurer la
comparution des suspects devant un tribunal pénal"("a reasonable interpretation of the
Convention in order to ensure that the suspects appear before a crirninal court").1 The
United Kingdom takes a different view. The arrangements concluded between the United
Kingdom and the Netherlands for the establishment of the Scottish Court at Camp Zeist,
and the subsequent trial of the two accused pursuant to these arrangements, must be seen
in the context of Security Council resolution 1192 (1998). While not inconsistent with
the terms of the Montreal Convention, the Camp Zeist arrangements established a sui
generis mechanisrn in fulfilment of the decision of the Security Council, rather than in
implementation of a specifie provisio11of the Montreal Convention. The difference in the
appreciation of the Parties on this point is not, however, material for purposes of the
interpretation and applicationf the substantive provisions of the Convention.
80
United Kingdom Allllex 87, at paragraphs 2 and 3.
81 Libyan Reply, paras. 2.2 and 1.29 respectively (unofficial translation by the United Kingdom).
30 ----------------------
A: The Significance of Libya being Implicated in the Lockerbie Bombing
4.3 It has been the United Kingdom's position throughout that the fact that Libya was
implicated in the Lockerbie bombing has consequences for the application of the
Montreal Convention. That was the case even before the decision of the Scottish Court in
the criminal trial. The outcome of the trial confinns that position. Whatever the outcome
of the appeal in the criminal case, and whatever nuance of interpretation Libya may be
able to bring to bear on the allegation of its complicity in the bombing, the unanimous
findings of a panel of three senior judges in the course of a criminal trial with a high
threshold of proof confirms that the United Kingdom was acting neither capriciously nor
in bad faith in referring the matter of the bombing to the United Nations Security
Council, and in refusing to accept Libya's claim to be an.appropriate forum for the trial
ofthe two accused.
4.4 White disputing the existence of such evidence; Libya, in its Reply, implicitly
acknowledges that if there were evidence of Libyan complicity in the bombing of Pan
Am Flight 103, that would support bath the United Kingdom's interpretation of the
Montreal Convention and its reference of the matter to the United Nations Security
Council. Thus, dismissing peremptorily the United Kingdom's argument that Libya, as a
State implicated in a Convention offence, cannet rely on the Montreal Convention to
found rights under Articles 7 and 11 of that Convention, Libya observed as follows -
"... cet argument ne mérite pas de réponse très longue dès lors qu'il n'est
nullement démontréque la Libye est en quoi que ce soit impliquée dans la
tragédie de Lockerbie. Le Royaume-Uni reconnaît d'ailleurs ce fait mais n'en
poursuit pas moins une démonstration qui ne tient que si l'on accepte pour
prémisse que la Libye est à 1'origine de 1'incident de Lockerbie ... " 82
82
".... this argument does not merit a very long response since ît bas by no means been demonstrated
that Lîbya îs in any way implicated in the Lockerbie tragedy. The United Kingdom acknowledges
this fact, moreover, but nonetheless seeks to demonstrate it in a way which holds goodone
accepts as the initial premise that Libya was behind the Lockerbie incidentLibyan Reply,
para. 2.11 (unofficial translationhe United Kingdom; emphasis added).
314.5 Thls statement effectively concedes that, if it could be shawn that Libya was
implicated in the Lockerbie bombing, the Montreal Convention could not be construed so
as to found the rights that Libya claims under the Convention.
4.6 Libya makes a similar concession in respect of the United Kingdom's argument
on Article 7 of the Montreal Convention that, even if Article 7 is capable of conferring a
right as claimed by Libya, Libya, as a State which is implicated in the very offence which
is in issue, cannat possess such a right. 83 Addressing this contention, Libya observes as
follows-
"L'argument est identique à celui déjà évoquéplus haut, à savoir que rien
n'empêcheraitles Etats parties à la convention de Montréalde s'efforcer d'arrêter
les auteurs de faits viséspar celle-ci en se fondant sur un autre instrument que la
convention (supra § 2.8). La réponseà cet argument se trouve ici aussi dans les
principes de l'application de bonne foi des traités,de l'interdiction de l'abus de
droit, de la lex specialis et de l'electa una via (supra §§ 2.9/10). L'argument ne
serait acceptable que s 'il étaitdûment prouvé que la Libye avait étéimpliquée
dans 1'incident de Lockerbie, p84uve qui, faut-il le répéterencore et encore, n 'a
toujours pas été rapportée."
4.7 Here too, Libya appears to accept that, in so far as Libyan complicity in the
bombing can be shawn, the United Kingdom's interpretation of Article 7 of the Montreal
Convention would have substance.
4.8 Libya also acknowledges the force of this United Kingdom argument in respect of
the interpretation and application of Article 11 of the Montreal Convention. Addressing
the United Kingdom's argument that, given the allegation of Libyan involvement in the
acts in question and the commencement of criminal proceedings against the two accused
83
United Kingdom Counter-Memorial, para. 3.51.
"The argument is the same as that already set out above, namely that there îs nothîng to bar States
partiesto the Montreal Convention from seeking to arrest offenders under the Convention on the
basis of an instrument other than the Convention (paragraph 2.8 above). The response to that
argument îs also to be founin the principles of the performance of treaties in good faith and the
prohibition on the unfair use of the law, of lex specialis and of eJecta una via (paragraphs 2.9/10
above). The argument would only be acceptable ifit were duly proved that Libya had been
implicated in the Lockerbie incident, proof which, it must be said again and again, has not been
provided." Libyan Reply, para. 2.21 (unofficial translation by the United Kingdom; emphasis
added).
32 ..
85
in Scotland, the United Kingdom was entitled to refuse assistance to Libya, Libya
observes as follows-
"Ce type d'argument est fondé sur la présomption récurrente que la Libye est
responsible de 1'incident de Lockerbie. Sans rreuve, l'argument n'est qu'un
8
slogan sans valeur juridique (cf supra § 2.11)."
4.9 As these statements by Libya demonstrate, there is a compelling logic to the
argument that the Montreal Convention cannat be relied upon by a State implicated in a
Convention offence to found a right to try the accused in its own courts and to require the
greatest measure of assistance from other States in doing so. As the United Kingdom
observed.in its Counter-Memorial, for the Court to hold that, in the circumstances of this
case, the Montreal Convention confers upon Libya the right to insist on a trial of the two
accused in its own courts, would be to create a loophole in the Convention of the greatest
magnitude. 87 This assessment applies equally in respect of Libya's claim to the greatest
measure of assistance from the United Kingdom in respect of such criminal proceedings.
4.10 Libya's sole argument in respect ofthese contentions is that Libyan complicity in
the Lockerbie bombing had not been proved. Beyond this, the substance of the United
Kingdom's arguments is not addressed. White the trial of the two accused did not
directly address the question of Libyan responsibility for the bombing as a matter of
international law, and without prejudice to the outcome of Mr Al Megrahi's appeal
against conviction, the findings of the Scottish Court confirm, at the very !east, that there
were good grounds for the United Kingdom to suspect that Libya was involved in the
bombing. Moreover, in its Application instituting proceedings, Libya requested the Court
to adjudge and declare inter alia that it bad fully complied with its obligations under the
85
United Kingdom Counter-Memorial, para. 3.85.
"An argument of this type is based on the recurring presumption that Libya is responsible for the
Lockerbie incident Without proof, the argument is just a slogan without any legal value (see
paragraph 2.11above)." Libyan Reply, para. 2.37 (unofficial translation by the United Kingdom).
87 United Kingdom Counter-Memorial, para. 3.106.
33 88
Montreal Convention. Libya expanded upon this request in its Memorial, asking the
Court to adjudge and declare-
"que la Libye a pleinement satisfait à toutes ses obligations au regard de la
convention de Montréalet est fondéeà exercer la compétencepénaleprévuepar
cette convention." 89
4.11 The formulation of this submission has changed in Libya's Reply. Libya now
requests the Court to adjudge and declare simply that "la Libye a pleinment rempli ses
obligations au regard de la conventionde Montréal". 90
4.12 As the United Kingdom observed in its Counter-Memorial, this case is not about
Libya's claim to rights in the abstract. 91 Itis a contentions case brought by Libya against
the United Kingdom alleging a breach of the Montreal Convention by the United
Kingdom. It is not a case initiated by the United Kingdom against Libya concerning
allegations of violation of the Montreal Convention by Libya. It would not therefore be
appropriate for the Court to declare in sorne generalised form that Libya has complied
fully with all of its obligations under the Convention. Nor, it may be added, would the
Court be in a position to come to such a conclusion on the basis of the material presented
as part of the record in this case.
4.13 This appreciation is particularly important in the light of the finding of the
Scottish Court that the first accused, Mr Al Megrahi, convicted of murder on account of
the bombing, was a member of the Libyan Jamahiriya Security Organisation ("JSO'),
occupying posts of fairly high rank.. 92 As the United Kingd<:>m observed in its Counter-
88 Application, 3 March 1992, p.IO, Section IV.
89 "... that Libya has fully complied with ali of its obligations under the Montreal Convention and is
justified in exercisingiminal jurisdiction provided for by that ConventioLibyan Memorial,
para. 8.1(b) (translation by the Court).
90
".... that Libya bas fully complied with its obligations under the Montreal ConventLibyan:
Reply, Submissions, para. I(d) (unofficial translation by theKingdom).
91 United Kingdom Counter-Memorial, para. 3.4.
92 Her Majesty's Advocate v. Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah,
Case No.l475/99, Opinion.of the Court, 31 January 2001, para. 88: United KingdomAnnex 128.
34 ., ; ;..'·.··'.'
Memorial, the principal objective o~ the Montreal.Convention is to prevent and deter
unlawful attacks against civil aviation. 93 The scope of the Convention is broadly cast,
both ratione personae and ratione materiae. Contracting States are enjoined to take all
practicable measures for the purpose of preventing the offences mentioned in Article 1 of
the Convention. Implicit in the obligation to prevent the offences mentioned in Article 1,
as weil a'iin the text and scheme of the Convention more generally, is an obligation not
to commit the offences in question. While the present case is not about Libya's
responsibility under the Montreal Convention for the acts of its high ranking security
official, it is certainly.not a case in which sorne generalised declaration by the Court of
Libyan compliance with ali of its obligations under the Montreal Convention would be
appropriate.
B: The Issues of Substance concerning the Interpretation and Application of the
Montreal Convention that still Divide the Parties
4.14 Turning to the issues of substance concerning the interpretation and application of
the Montreal Convention that still divide the Parties, it may assist the Court to set out in
summary fonn the essence of the position of the Parties for purposes of detennining
where the differences between them lie.
4.15 As the United Kingdom noted in its Counter-Memoria1, 94 the Court held, in its
Preliminary Objections Judgment of 27 February 1998, that it had jurisdiction in respect
of the fo1lowingdisputes between the Parties:
(a) the applicability of the Montreal Convention between the Parties in the
95
circumstances of the present case;
(b) the interpretation and application of Article 7 of the Montreal Convention,
read in conjunction with Articles 1, 5, 6 and 8 of the Convention; 96
93
United Kingdom Counter-Memorial, paras. 3.12 and 3.25 to 3.33.
94 United Kingdom Counter-Memorial, para. 1.17.
9S Prelininary Objections Judgment, ICJ Reports 1998, p. 9 at para. 25.
96
Preliminary Objections Judgment, ICJ Reports 1998, p. 9 at para. 29.
35 (c) the interpretation and application of Article 11 of the Montreal
Convention· and7
'
(d) the question of whether the actions of the United Kingdom criticised by
Libya are at variance with the provisions of the Montreal Convention. 98
4.16 Insofar as the last of these elements concerns the Libyan allegation against the
United Kingdom of the threat of force, it is addressed separately below. That apart,
within the scheme of these heads of jurisdiction, the United Kingdom's position can be
summarised as follows:
(a) the Montreal Convention is applicable in circumstances in which a
Contracting State is implicated in the commission of an act to which Article 1 of
the Convention refers. The Montreal Convention is therefore applicable in the
circumstances of the present case; 99
(b) the Montreal Convention is, however, only one part of the wider panoply
of international law that may be applicable to incidents that come within the scope
of the Convention. Other international agreements and rules of customary
international law may also be relevant. Within this scheme, the United Nations
100
Charter occupies a position of special importance;
(c) while the Montreal Convention is applicable in circumstances in which a
Contracting State is implicated in the commission of a Convention offence, a
State so implicated cannet rely on the Convention in order to found a right to try
those accused of comrnitting the offence in its own courts orto require that ether
97 Preliminary Objections Judgment, /CJ Reports, 9.at para. 33.
98 Preliminary Objections Judgment,/CJ Reports, p. 9 at para. 36.
99
United Kingdom Counter-Memorial, para. 3 .1.
100 United Kingdom Counter-Memorial, para. 3.44.
36 '.;~
Contracting States afford it the greatest measure of assistance in respect of such a
. 101
propose pdosecution;
(d) separately, and in the alternative, Article 7 of the Montreal Convention
does not confer a right upon a State having custody of the accused to submit the
case to its ~wn competent authorities for the purposes of prosecution; it imposes
an obligation upon itto do so in circumstances in which it does not extradite the
accused; 102
(e) even if, howèver, Article 7 did create a right upon which Libya was
entitled to rely, none of the actions of the United Kingdom of which Libya
cornplains constitutes a breach of any obligation of the United Kingdom under the
103
Convention;
(f) in respect of Article 11 of the Montreal Convention, even if this did create
a right upon which Libya was entitled to rely, it would only have given rise to an
obligation on the part of the United Kingdom once it was clear that jurisdiction
was properly to be exercised by Libya. In other words, Article 11 is not a self
standing obligation that operates in the abstract simply requiring a State to band
over its docket on a case notwithstanding a dispute as to the exercise of
jurisdiction in the case in question; 104
(g) in any event, paragraph 2 of Article 11 permitted the United Kingdom to
refuse assistance to Libya in this case given the allegation of Libyan involvement
in the acts in question and the fact that criminal proceedings had already been
105
initiated against the two accused in Scotland.
101
United Kingdom Counter-Memorial, paras. 3.2, 3.9,3.51, 3.85, 3.104-3.121.
102 United Kingdom Counter-Memorial, paras. 3.49- 3.50.
!03 United Kingdom Counter-Memorial, paras. 3.52- 3.61.
104
United Kingdom Counter-Memorial, paras. 3.84, 3.86- 3.91.
lOS United Kingdom Counter-Memorial, paras. 3.85, 3.92-3.103.
374.17 In respect of these contentions of the United Kingdom, Libya's position can be
summarised as follows -
(a) there is no dispute between the Parties that the Montreal Convention
applies in circumstances in which a Contracting State is implicated in the
commission of a Convention offence. The Parties agree, therefore, that the
Montreal Convention is applicable in the circumstances of the present case;
(b) Libya, however, disputes that the Montreal Convention is part of the
broader framework of international law which may be applicable to incidents that
come within the scope of the Convention. In Libya's view, the Montreal
Convention is both lex specialis and an electa via in respect of offences coming
within its scope and it should be applied as such in good faith to the exclusion of
the United Nations Charter and appeal to the Security Council. 106
Libya's position on this matter appears, however, to be subject to an important
caveat insofar as it seems to concede that reliance on the United Nations Charter
would not be an abuse of right where there was good reason for doing so. This is
apparent from Libya's assessment that "[l]a convention [de Montréal)
apparaissant alors tant comme une lex specialis que comme une eJecta via par
rapport à la Charte des N.U. qu'invoquent les défendeurs, ceux-ci commettaient
un abus de droit en 'court-circuitant' l'application normale de la convention sans
raison décisive." 107 This statement of course invites the response that the United
Kingdom referred the matter to the Security Council with very good reason. It
was in possession of evidence which gave good grounds for suspecting that Libya
was involved in the bombing ofPan Am Flight 103;
\06
Libyan Reply, para. 2.1O.
107 "As the [Montreal] Convention appeared to be botlex specialiand anelecta viain relation to
the United Nations Charter relied on by the Respondents, the latter were guilty of unfair use of the
law by 'short-circuiting' normal application of the Conventwithout good reason." Libyan
Reply, para.2.10 (unofficial translation by the. United Kingdom; empbasis added).
38 (c) as regards the United Kin.dom's contel).tionth.t, as Libya was implicated
in the bombing, it was not entitled to rely on the Montreal Convention in order to
found a right to try the accused in its own courts, nor to require United Kingdom
assistance in respect of such a proposed prosecution, Libya rejects th.e point
108
peremptorily without any substantive analysis. The reason for this approach is,
109
however, revealing since, as has already been noted, Libya appears not to
dispute the basic proposition of law but only that "il n'est nullement démontréque
la Libye est en quoi que ce soit impliquéedans la tragédiede Lockerbie." 110
However, the proposition that Libya could not rely on the Convention would, it
appears from Libya's Reply, hold good if one "accepte pour prémisse que la
Libye est à l'origine de l'incident de Lockerbie". 111 This acknowledgement is
repeated subsequently, notably in response to the proposition that Article 7 of the
Montreal Convention did not preclude reference of the matter to the Security
Council, where Libya stated "[!]'argument ne serait acceptable que s'il était
112
dfunentprouvéque la Libye avait été impliquéedans l'incident de Lockerbie".
Needless to say, the United Kingdom contends that, from the outset (namely, 13
November 1991 when the Statement of Facts and the Petition charging the two
113
accused with the Lockerbie bombing were issued ) there were good grounds to
suspect Libya of complicity in the bombing. The findings of the Scottish Court
highlighted above in respect·ofthe conviction of the frrst accused confrrm this;
108 Libyan Reply, para. 2.11.
109 See para. 4.5, above.
110
"... it bas by no means been demonstrated that Libya is in any way implicated in the Lockerbie
tragedy." Libyan Reply, para. 2.11 (unofficial translation by the United Kingdom).
!11 "... accepts as the initial premise that Libya was behind the Lockerbie incident''. Libyan Reply,
para. 2.11 (unofficial translation by the United Kingdom).
112
"(t]he argument would only be acceptable if it were duly proved that Libya bad been implicated in
the Lockerbie incident". Libyan Reply, para. 2.21 (unofficial translation by the United Kingdom).
113 United Kingdom Annexes 16 and 17 respectively.
39 (d) as regards the United Kingdom•s contention that Article 7 of the Montreal
Convention does not confer a right upon a State to prosecute the accused but
rather imposes upon it an obligation to do so in circurnstances in which it does not
extradite the accused, Libya broadly repeats its earlier arguments contending inter
alia that Article 7 ernbodies a right that Libya should not be hindered in the
per.fimance o ltf uty; 114
(e) Libya further contends, although without detailed elaboration in its Reply,
that the actions of the United Kingdom violated what Libya asserts is its right
under Article 7; 115
(f) as regards the United Kingdom's contention that Article 11 of the
Montreal Convention could onlyhave given rise to an obligation on the part of the
United Kingdom once it was clear that jurisdiction was properly to be exercised
by Libya, Libya rejects the argument, although in doing soit mischaracterises the
argument in a way that suggests that the relevant point was not fully
understood· 116
'
(g) firially, as regards the United Kingdom's reliance on Article 11(2) and the
relevant Scottish law to permit it to refuse _assistanceto Libya in this case, Libya
rejects the argument on the ground that the obligation in Article 11(1) should be
117
performed in good faith. Libya appears, however, to acknowledge that proof of
118
complicity in the bombing would materially alter this appreciation.
4.18 As this summary of the position of the Parties shows, but for one element, there is
a wide and seerningly unbridgeable gulf between them. The one element of possible
agreement between the Parties appears to be that evidence of the involvement of a
114 Libyan Reply, para. 2.18.
IlS Libyan Reply, para. 2.18.
ll6
Lîbyan Reply, paras. 2.31 - 2.32.
117
Libyan Reply, paras. 2.37- 2.40.
IlS Lîbyan Reply, para. 2.37.
40Contracti:ngState in the commission of a Convention offence would preclude that State
from relying on the Convention to found a right to trythe accused before itsown courts
and require the assistance of other States in doing so. As, however, Libya has failed to
engage fully on this point, contending simply that no such evidence bas been provided,
the United Kingdom assumes that, notwithstanding the findings of the Scottish Court, it
is highly unlikely that what appears to be agreement on the principle in the abstract will
translate into real agreement in the circumstances of this case.
4.19 Of the various elements that still divide the Parties, Libya's allegations against the
United Kingdom in respect of Articles 7 and 11 of the Montreal Convention warrant
further brief comment.
(1) The allegation that the United Kingdom vio/ated Libya 's rights under Article 7
of the Montreal Convention
4.20 The allegation that the United Kingdom has violated Libya's right under Article 7
of the Montreal Convention hinges fundamentally on an appreciation that Article 7 does
indeed embody a right on which Libya is entitled to rely. Responding to the arguments in
the United Kingdom's Counter-Memorial, Libya maintains, fust, that in conferring on
States a choice of whether to extradite or prosecute, Article 7 in fact confers on States a
right to choose between the two obligations. Secondly, Libya maintains that the
obligation to prosecute in circumstances in which it chose not to extradite carried with it
a right not to be hindered in the performance of that obligation. Thirdly, Libya contends
that, read together with Article 8(3) of the Convention, which provides that ex~adition
shall be subject to the conditions provided for by the law of the requested State, Article 7
confers upon States the right to act within the limits of their domestic law.19
4.21 To the extent that Article 7 does establish a right on which Libya is entitled to
rely, Libya contends that the United Kingdom is in violation of that right insofar as, by
seeking to oblige Libya to extradite the suspects, it deprived Libya of the choice inherent
1!9
Libyan Reply, para. 2.18.
41 120
in the right. Libya furt:hercontends that, in referring the matter to the United Nations
Security Council, the United Kingdom acted in violation of the princip le of good faith in
121
the performance of treaties and the prohibition on abuse of right.
4.22 These issues can be addressed briefly. First, the United Kingdom maintains that,
even assuming that Article 7 establishes a right as claimed Libya, Libya is not entitled
to relyon the right as claimed, since there is, and bas been from the outset, evidence of
Libyan involvement in the Lockerbie bombing. A finding by the Court that Libya was
indeed entitled to relyn Article 7 to insist on trying the accused in its own courts would
fundamentally undermine the abject and purpose of the Montreal Convention. As bas
been observed, there is well-founded evidence of Libyan involvement in the offence.
There can be no basis in the Montreal Convention for a State implicated in the
commission of a Convention offence to rely on the Convention for the very purpose of
defeati.ngthe abject and purpose of the Convention.
4.23 Secondly, even assuming that Article 7 establishes a right as claimed by Libya on
which Libya is entitled to rely, the United Kingdom maintains that it bas done nothing
which can be characterised as a violation ofthat right. This issue is addressed in detail in
122
the United Kingdom's Counter~M and needs ioafurther repetition at this point.
Rhetoric apart, Libya bas failed to show that any action by the United Kingdom amounts
to a violationof any obligation of the United Kingdom under the Montreal Convention.
4.24 Thirdly, on the question of the submission of the matter to the Security Council,
as bas already been observed, the United Kingdom contends that the Montreal
Convention is part of the framework of international law that may be applicable to all
incidents that come within its scope. It does not, and cannat, oust the Charter of the
United Nations, or create sorne closed circuit of law, exclusively relevant to acts that
come within the scope of the Convention. The notion that the Montreal Convention (and,
!20 LibyanReply,para. 2.18.
121 LibyanReply,para. 2.21.
122
United Kingdom Counter-Memorial, pa3.52- 3.61.
42by implication, all of the other numerous bilateral and multilateral treaties on various
aspects of international life) constitutes lex specialis which therefore prevails over the
United Nations Charter is contrary to the scheme of the Charter, the primacy which it
gives to the maintenance of international peace and security and the express terms of
Article 103. That notion is also contrary to legal principle (and common sense), for its
effect would be to allow any two or more States to neutralise the Security Council simply
by concluding a treaty of a specialised character between themselves.
4.25 Nor can the act of t~g to the Security Council a situation which threatens
international peace and security possibly constitute a violation of any multilateral treaty.
Indeed, Libya itself appears to recognise this insofar as it seems to concede that reliance
123
on the United Nations Charter may be warranted if there is good reason.
4.26 There is ample evidence of Libyan. complicity in the bombing for the United
K.ingdomto have referred the matter to the Security Council. There is nothing to support
the Libyan claim that the United K.ingdomacted either in bad faith or abused its right as a
Member of the United Nations when it referred the matter to the Security Council.
4.27 Fourthly, the United K.ingdom maintains its contention that Article 7 cannet be
read as conferring the right as claimed by Libya. This matter is addressed fully in the
United K.ingdom'sCounter-Memorial and needs no further comment here. 124
(2) The allegation that the United Kingdom violated Libya 'srights under Article 11
of the Montreal Convention
4.28 The allegation that the United Kingdom violated Libya's rights under Article 11
of the Montreal Convention by failing to afford Libya the greatest measure of assistance
in connection with its proposai to try the accused in Libya was addressed in detail in the
United Kingdom's Counter-Memorial. 125 The arguments need not be rehearsed here. A
number ofbrief observations are, however, warranted.
123
Libyan Reply, para. 2.10.
124
United K.ingdom Counter-Memorial,paras. 3.49- 3.50.
12S United Kingdom Counter-Memorial, paras. 3.62-3.103.
434.29 First, as with Libya's daim under Article 7, the United Kingdom contends that,
given the evidence painting to Libyan complicity in th.ebombing, Libya cannot rely on
Article 11 to found a right to assistance from the United Kingdom in respect of its
proposai to try the accused before its own courts. In the circumstances, a trial of the
purpose of the Convention. Article
accused in Libya would have defeated the object and
11 cannot be relied upon by Libya to compel the United Kingdom to assist in this
endeavour.
4.30 Secondly, the evidence painting to Libyan complicity in the bombing provided
good grounds for the United Kingdom to refuse assistance to Libya in this case,
consistently with the terms of paragraph 2 of Article 11, on the basis of the relevant
Scottish law on the question of judicial assistance. As was shown in the United
Kingdom' s Counter-Memorial, 126the relevant principles permit the Scottish authorities to
refuse assistance inter alia on political, security or national interest grounds. As was
further noted in the Counter-Memorial, 127where, in accordance with these guidelines,
and on the basis of enquiries carried out on his behalf, the Lord Advocate bas reason to
suspect that the requesting State is itself implicated in the crime in question, he would be
failing in his duty to uphold the law if he were to diselose to the authorities of that State
materia1 which would otherwise be con:fidential to the Public Prosecutor. To the extent
that the crime in question involved a terrorist act of significant magnitude, with good
grounds for suspecting State complicity, security considerations will also be material.
4.31 Libya, in its Reply, fails to address this point in any meaningful way, asserting
simply that the United Kingdom's contention "est fondé sur la présomption récurrente
que la Libye est responsible de l'incident de Lockerbie." 128 That, indeed, was th.ethrust
of the evidence. The weight of this evidence is now con:firmed by the findings of the,
Scottish Court. This is not a point that Libya can simply brush aside without any
argument of substance.
126
United Kingdom Counter-Memorial, paras. 3.92 to 3.103.
127
United Kingdom Counter-Memorial, para. 3.102
128
"... is based on the recurring presomption that Libya is responsible for the Lockerbie incident"
Libyan Reply, para. 2.37 (unofficial translation by the United Kingdom).
444.32 Thirdly, Libya appears to have misunderstood the argument that Article 11 could
only have given rise to an obligation on the part of the United K.ingdom once it was clear
that jurisdiction was properly to be exercised by Libya. In its Reply, Libya asserts that
this reasoning~
"revient à dire que la reconnaissance de la violation d'une règle est toujours
subordonnéeà une première phase procédurale où le juge devrait se prononcer sur
l'applicabilité de la règle avant de pouvoir ouvrir une seconde phase où il se
129
prononcerait sur son éventuelleviolation."
This is not, however, the Uriited Kingdom's case. The argument is plain enough. It is
that, in circumstances in which there is a dispute as to the exercise of jurisdi~tgiven
that the Montreal Convention provides no basis for reconciling competing daims to
jurisdiction~Artic 11 will only operate when the issue of the exercise of jurisdiction is
resolved.
4.33 In the present case, assuming for these purposes that Libya was entitled to
exercise jurisdiction, both Libya and the United K.ingdom could validly claim
jurisdiction.In such circumstances, Article 11 cannet be read as requiring the greatest
measure of assistance until such time as the issue of which State was to exercise
jurisdiction was resolved.
(3) The temporal dimension of Libya 'sclaims under the Montreal Convention
4.34 Distinct from, and in the alternative to, the preceding arguments which go to the
interpretation of Articles 7 and 11 of the Montreal Convention, a further aspect of
Libya's daims under the Montreal Convention warrants comment. Addressing resolution
748 (1992) of 31 March 1992, and the subsequent decisions of the Security Conncil
\29 "... amounts to saying that recognition of the violation of a rule is always contingent on an initial
procedural phase, in which the cmustrule on the applicability of a rule before initiating a
second phase in which it rules on its possible violation." Libyan Reply, para. 2.32 (unofficial
translation by the United Kingdom).
45adopted under Chapter VII of the Charter, Libya contends that, whatever the effect of
130
these decisions, they cannet have retrospective effect. Thus, Libya argues-
"[m]êmesi [résolution748 (1992)] possèdeles effets juridiques que prétendent
les défendeurs,elle ne peut affecter la recevabilitédes réclamationslibyennes
durant la périodequi s'étend3 au 31 mars 1992." 131
Libya goes on to contend that the pre- and post-31 March 1992 time-frame is significant
as-
"- avant le 31 mars 1992, la violation de la convention de Montréal par les
défendeursengage leur responsibilité indépendamment de la portéeet des effets
des résolutions du Conseil de sécurité;
après le 31 mars 1992, la violation de la convention de la Montréalpar les
défendeurscontinue d'engager leur responsabilité,au vu de la portéeet des effts
qu'il convient d'attribuer auxrésolutionsdu Conseil de sécurité." 132
4.35 The inference apparentlyto be drawn from this analysis - which is not developed
elsewhere in Libya's pleadings conceming the Montreal Convention - is that, even if
Libya's claims fail in respect of the period following th.e adoption of resolution 748
(1992) on 31 March 1992, in consequence ofthat resolution, the claims subsist in respect
of the period prier to this date.
4.36 The interpretation and effect of the various resolutions of the Security Council on
obligations arising under th.eMontreal Convention are addressed in Part 5 below. It is,
however, convenient to make one or two observations at this point concerning the
\30 Libyan Reply, paras. 0.2 and 1.4.
131 "Even if [resolution 748 (1992)] does have the legal effects which the Respondents claim, it
cannot affect the admîssibility of the Libyan daims during the period 3 to 31 March 1992."
Libyan Reply, para. 1.6 (unofficial translation by the United K.ingdom).
132
"- before 31 March 1992 violation of the Montreal Convention by the Respondents renders them
responsiblei"espectiveof the scope and effects of the Security Council resolutions;
- after31 March 1992, violation of the Montreal Convention by the Respondents continues to
render them responsible,in view of the scope and effects which should be attributed to the
Security Council resolutions."Libyan Reply, para. 1.14 (unofficial translationy the United
Kingdom).
46temporal dimension of Libya's claims insofar as this is relevant to the application of
Articles 7 and 11 ofthe Montreal Convention.
4.37 Distinct from any argument going to the interpretation of Articles 7 and 11 of the
Montreal Convention, a consideration of whether the United Kingdom violated Libya's
rights under the Convention cannet ignore developments in the Security Council. This is
as relevant to the period prior to 31 March 1992 as it is to the period subsequent to that
date.
4.38 Following the publication of the charges against the two accused on 14 November
1991, and in the absence of any satisfactory response from Libya to the requests for their
surrender, the United Kingdom and the United States raised the matter in the Security
Council. By 7 January 1992, the possibility of action by the Council had been discussed
informally with the representatives of all the members of the Council. A draft resolution,
prepared afl:erdiscussion between the five permanent members of the Council, calling on
Libya to provide a full and effective response inter alia to the requests for the surrender
of the accused, was circulated informally to all members of the Council on 10 January
1992. 133
4.39 On 11 January 1992, in correspondence with the International Civil Aviation
Organisation, Libya fust made reference to the Montreal Convention. 134
4.40 On 21 January 1992, the Security Council unanimously adopted resolution 731
(1992). In paragraph 2 of that resolution, the Council strongly deplored the fact that
Libya had not responded effectively to the requests by the United Kingdom, the United
States and France to co-operate fully in establishing responsibility for the terrorist acts
against Pan Am Flight 103 and UTA Flight 772. In paragraph 3, the Council "urge[d]
133
United Kingdom Counter-Memorial, para. 4.15.
!34
United Kingdom Counter-Memorial, para. 4.16.
47the Libyan Government immediately to provide a full and effective response to those
requests so as to contribute to the elimination of international terrorism". 135
4.41 While resolution 731 (1992) was not binding under the Charter, it was not without
legal effect. Pursuant to paragraph 4 of the resolution, the United Nations Secretary
General undertook consultations with the Libyan authorities. Paragraph 5 of the
resolution urged ali States to encourage Libya to respond effectively to the requests for
co-operation in establishing responsibility inter a/ia for the bombing of Pan Am Flight
103. White Libya was not at this point under a binding obligation to band over the two
accused for trial, the terms of resolution 731 (1992), and of the underlying documents to
which it referred, left no doubt that a trial of the two accused in Libya was not
acceptable. 136
4.42 While not binding, the terms of resolution 731 (1992) are material to a
consideration of the legality of the actions of the United Kingdom from this point. It
cannot be a violation of Article 7 of the Montreal Convention to seek to persuade Libya
to do what the Security Council bad called upon Libya to do, particularly as the Council
had explicitly urged ali States to enjoin Libya to respond fully and effectively to the
requests for the surrender of the accused. Nor can itbe a violation of Article 11 of the
Convention for the United Kingdom to decline to supply evidence to Libya for purposes
of a trial there when the Couneil bad indicated that the trial should take place elsewhere.
The fact that Libya was engaged in talks with the representative of the United Nations
Secretary-General between the dates of the adoption of resolution 731 (1992), on 21
January 1992, and of resolution 748 (1992), on 31 March 1992, and that those talks
turned on the possibility of a trial outside Libya, reinforces the conclusion that there can
have been no breach of Article 11 of the Montreal Convention.
135 United Kingdom Counter-Memorial, para. 4.17.
136 This element is developed further in the United Kingdom's Counter-Memorial, 4.37- 4.41.
484.43 Inthe light of this assessment, the United Kingdom contends that Libya's attempt
to finesse its claims under the Montreal Convention by distinguishing between the
periods before and a:fter the adoption of resolution 748 (1992) cannat have the
consequences that Libya claims. Resolution 731 (1992) endorsed the request for the
surrender of the accused for trial before a Scottish or United States court. It expressed
deep concem aver the results of the criminal investigation which had implicated officiais
of the Libyan Goven:unent. Itimplicitly ruled out a trial of the accused in Libya. Given
the doubt as to the application of Articles 7 and 11 of the Montreal Convention in the
circumstances of the present case, action by the United Kingdom consistent with the
tenns of resolution 731 (1992) cannat amount to a violation of these provisions.
49 PARTS
THE INTERPRETATION AND EFFECTS OF
SECURITY COUNCIL RESOLUTIONS
731 (1992), 748 (1992), 883 (1993) ANI) 1192 (1998)
5.1 With regard to the interpretation and effects of the Security Council resolutions,
the Libyan Reply largely repeats the arguments already made by Libya to which the
United Kingdom bas responded in detail in Part 4 of the Counter-Memorial. It is clear
that the United Kingdom and Libya remain divided over the interpretation of the
resolutions, as weil as their effects. The only new material advanced by Libya is its
attempt to reconcile the text of resolution 1192 (1998) with the convoluted interpretation
it bas already offered of the earlier Security Council resolutions.
A: Interpretation of the resolutions
137 138
5.2 Libya repeats its argument that resolutions 731 (1992), 748 (1992) and 883
139
(1993) did not require it to surrender the two accused for trial before a United
Kingdom or United States court but merely to offer a variety ofmeans by which the tWo
accused could be brought to trial somewhere. On this basis, Libya maintains that it had
complied with the requirements of the resolutions long before the adoption of resolution
1192 (1998). 140The United K.ingdomhas addressed this issue in paragraphs 4.9 to 4.61 of
its Counter-Memorial and reaffirms what it said on that occasion. Libya makes little
reference to the arguments there advanced.
137
United Kingdom Annex 2.
138 United Kingdom Atmex 3.
139
United Kingdom Atmex 4.
140
United K.ingdomAtmex 87.
505.3 Setting to one side, for the present, the effect of resolution 1192 (1998) (which is
considered at paragraphs 5.13 to 5.15, below), the Libyan interpretation of the resolutions
faces, and fails to overcome, numerous problems.
5.4 First, Libya's interpretation cannat be reconciled with the text of the resolutions.
In particular, Libya offers no adequate explanation of how its interpretation can be
reconciled with paragraph 16 of resolution 883 (1993). Inits Reply, Libya quotes only
an extract from that paragraph. The full text provided that the Security Council -
"Expresses its readimiss to review the measures set forth above and in resolution
748 (1992) with a view to suspending them immediately if the Secretary-General
reportsto the Council that the Libyan Government bas ensured the appearance of
those charged with the bombing of Pan Am 103 for trial before the appropriate
United Kingdom or United States court and bas satisfied the French judicial
authorities with respect to the bombingof UTA 772, and with a view to lifting
them irnmediately when Libya complies fully with the requests and decisions in
resolutions 731 (1992) and 748 (1992); and reguests the Secretary-General, within
90 days of each suspension, to report to the Council on Libya's compliance with
the remaining provisions of its resolutions 731 (1992) and 748 (1992) and, in the
case of non-compliance, expresses its resolve to terminate immediately ·the
suspension of thesemeasures."
5.5 As the United Kingdom explained in its Counter-Memorial, 141this paragraph
makes clear what the Council considered Libya had to do to comply with the decisions of
the Council. Inparticular, contrary to what Libya bas argued, the reference back to the
"requests ... in resolution 731 (1992)" demonstrates that the Security Council required
Libya to comply with those requests and that its compliance was a condition of
suspending or lifting the sanctions against Libya.
5.6 In its Reply, Libya seeks to explain paragraph 16 away by repeating its earlier
argument that the paragraph merely provides that certain actions on the part of Libya
would lead to the automatic lifting of sanctions, but that it did not exclude the possibility
of sanctions being lifted in other circumst~ 142 Icefast. paragraph 16 does not
mention the possibility of sanctions automatically being lifted in any circumstances.
141
United Kingdom Counter-Memorial, paras. 4.52 to 4.54.
142
Libyan Reply, para. 3.8.
51What it says is that ifLibya ensured the appearance of the two accused for trial before the
appropriate United Kingdom or United States court and took certain other steps, the
Council would review the measures. The indication is plain that the Council was ready to
review the measures only ifLibya took the steps specified in paragraph 16 and, which is
more significant, that the decisions of the Council required Libya to take aU of these·
steps.
5.7 Nor is there any force in Libya's argument 143that the reference, in paragraph 16
of resolution 883 (1993), to Libya having "ensured the appearance" of the accused
showed that Libya was not required to surrender them. This argument is th.eworst kind
of semantics. The voluntary appearance of the two accused before the appropriate
United Kingdom or United States court would obviously have satisfied the Council's
requirement that they stand trial there. That bad been clear throughout. What is
important for present purposes, however, is that if the two accused did not choose to
appear voluntarily, the Council required Libya to surrender them.
5.8 Secondly, Libya's interpretation of the resolutions is incompatible with that of
sorne fifty States which were members of the Council between 1992 and 1998. While
Libya maintains that it bad complied with the decisions of the Council, those States
evidently thought otherwise, for the periodic sanctions reviews brought no initiative from
any member of the Council to lift sanctions on the ground that Libya bad already
complied.
5.9 Thirdly, Libya's interpretation of resolution 748 (1992) is not the interpretation
144
which it placed on that resolution at the time. As pointed out in the Counter-Memorial,
145
Libya then attacked the resolution, both in the Council and in its submissions to the
143 Libyan Reply, para. 3.8.
144
United Kingdom Counter-Memorial, paras. 4.58 to 4.60.
145 See the Libyan representative's speech to the Security Council, United Kingdom Annex 11, pp.
19-22.
52 .....
146
Court on the ground that the Security Council was requiring it to do exactly what it
now claims the resolution manifestly did not require. In its Reply, Libya seeks to explain
this embarrassing fact away by saying that -
"La première lecture que la Libye a pu faire de la résolution 748 ne peut, à elle
seule, en déterminer la portée. C'est seulement l'analyse rigoreuse du texte, des
travaux préparatoires, etc., à laquelle a procédéensuite la Libye qui permet de
déterminercette portée." 147
This explanation is wholly unconvincing. Libya's rigorous analysis of the text and
travaux préparatoires of resolution 748 (1992), which was adopted on 31 March 1992,
did not prevent its representative from criticising what became resolution 883 (1993) in
the Security Council debate on 11 November 1993. fu the course of his speech the
Libyan representative made no mention of Libya's ingenions interpretation of resolution
748 (1992) even though this would have been an obvions occasion to mention it and even
though Libya, having had over a year and a half to study resolution 748 (1992), must
148
have developed this interpretation by then.
5.10 Finally, the passages in the Security Council debates which Libya quetes (more
than a little selective!y) do not support the interpretation which it now advances of those
resolutions. 149 For example, Libya quetes part of the statement made by Brazil at the
time of adoption of resolution 883 (1993) but there is no hint .inthe passage quoted that
Brazil shared Libya's interpretation of the resolution for which it had just voted. On the
contrary, Brazil (in a part of its statement which Libya did not quote) referred to the
situation Wlder consideration as exceptional and as justifying exceptional measures and
said that-
146
Letter of 7 April 1992 to the Court, responding to the invitation of the Court to make submîssions
regarding the effect ofresolution 748 (1992).
147 Libyan Reply, para. 3.7 (unofficial translationhe United Kingdom).
148 United Kingdom Annex 12, especially p. 23 et seq.. See also the statement at United Kingdom
Annex 72, quoted in United Kingdom Counter·Memorial, para. 4.34.
149
Libyan Reply, para. 3.9.
53 " the imposition of sanctions must always be linked to the performance of
limited, concrete and very specifie acts that are mandatory by decisions of the
Security Council. Such acts must be specifically set out by the Council so that the
State on which sanctions are imposed may be able to know in advance, and
beyond all doubt, that the sanctions will be lifted as soon as those specifie
requirements are met. This was the view we expressed, in connection with
operative paragraph 16 of the resolution, in the consultations undertaken by the
sponsors, and it is the view we shall take when it cornes to the practical
application ofthat paragraph." 150
The reference to paragraph 16 as laying down the specifie requirements which Libya had
to meet shows that Brazil clearly understood the resolution as requiring that Libya (inter
alia) ensure the appearance of the two accused before the appropriate United Kingdom or
United States court and comply in full with the requests in resolution 731 (1992).
Brazil's statement not only lends no support to Libya's interpretation of resolution 883
(1993), it contradicts it.
5.11 Similarly, the statements of the other Security Council members who spoke in the
debate contradict the Libyan interpretation of resolution 883 (1993). Thus, France said
that-
"It is almost 20 months since the Security Council requested, in resolutions 731
(1992) and 748 (1992) that [Libya] ... band over the two suspects in the attack on
Pan Am 103... " 151
Spain stated -
"...the Libyan authorities must comp1y with the provisions of paragraph 16 of
resolution 883 (1993), just adopted, and in particular must do everything
necessary to ensure that the two persans charged with the bombing of Pan Am
flight 103 do indeed appear before the Scottish courts ... " 152
Venezuela commented that it -
"was heartened when, as noted in the seventh preambular paragraph of resolution
883 (1993), the Govemment of Libya stated its intention to encourage those
charged with the bombing of Pan Am flight 103 to appear for trial and its
150 United Kingdom Annex 12, pp. 49-50.
151 Ibid., p. 42.
152 Ibid., p. 58.
54 ,,
willingness to cooperate with the French authorities in elucidating the case of the
bombing of UTA flight 772.
'1Jnfortunately, those charged did not appear. This fact, together with the lack of
a full and effective response to the requests and decisions contained in Security
Council resolutions 731 (1992) and 748 (1992), bas led the Council to adopt
today's resolution, which provides for new and more drastic measures. The
purpose of these measures is to demonstrate the international community's firm
resolve to punish those guilty of committing acts ofterrorism." 153
5.12 11:is also noticeable that in the debate on resolution 883 (1993) there is not a
single suggestion by a Security Council member that Libya had already complied with
the requirements of the earlier resolutions. On the contrary, several States made express
reference to Libya's failure to comply with those resolutions. 154 Not a single State said
that it considered that Libya was not required to surrender the two accused for trial before
a United Kingdorn or United States court.
5.13 As the United Kingdom explained in Part 5 of its Counter-Memorial, resolution
1192 (1998) 155 confirms the United Kingdom's interpretation of the earlier Security
Council:resolutions. 156 Libya's response to the analysis there set out is to suggest that the
fact that the Council, in paragraph 1 of resolution 1192, demanded that Libya comply
with resolutions 731 (1992), 748 (1992) and 883 (1993), demonstrated that those
resolutions did not require Libya to surrender the two accused for trial before a United
Kingdom or United States court. Libya purports to find sorne support for this
interpretation in statements made to the Security Council by the representatives of the
153
Ibid., pp. 61-62.
!54 See, e.g., the statementsy France (p. 43), referring to the "evident bad faith of the Libyan
authorities" and the way in which they bad been "systematically evasive"; Spain (p. 56), stating
that "Libya bas not fully complied with the demands set forth in Security Council resolutions 731
(1992) and 748 (1992)"; Hungary (pp. 59-60) which stated that the reason for the adoption of
Resolution 883 (1993) was "Libya's failure, despite persistent efforts by the Secretary-General,
the countries membersof the Arab League, and other States concemed, to comply with resolutions
731 (1992) and 748 (1992)"; and Japan (p. 63), which stated that "Libya bas failed to comply with
the Security Council's requirements and bas continuously tried to avoid its international
obligations through equivocation and delay""
!SS United Kingdom Annex 87.
!56 United Kingdom Counter-Memorial, paras. 5.9 ta 5.13.
55United States of America and Portugal that the provisions of resolution 1192 were based
157
on the earlier decisions of the Counci1.
5.14 Neither the text nor the travaux préparatoires of resolution 1192 (1998) support
the Libyan interpretation. It is absolutely correct that resolution 1192 was based upon the
earlier decisions of the Council. It did, however, modify those decisions by calling upon
the United Kingdom and the Netherlands to make provision for the establishment of a
tribunal which would not otherwise have existed, namely the Scottish Court sitting in the
Netherlands without a jury, and placed. Libya under an obligation to ensure the
appearance of the accused before that court. Paragraph 8 of resolution 1192, which
provided that the Council -
"Reaffirms that the measures set forth in its resolutions 748 (1992) and 883
(1993) remain in effect and binding on ali Member States, and. in this context
reaffrrms the provisions of paragraph 16 of resolution 883 (1993), and decides
that the aforementioned measures shall be suspended immediately if the
Secretary-General reports to the Council that the two accused have arrived in the
Netherlands for the purpose of trial before the court described in paragraph 2 or
have appeared for trial before an appropriate court in the United Kingdom or the
United States ..." 158
makes clear that the Council considered that its earlier resolutions required. Libya to
surrender the two accused for trial before a United Kingdom or United States court.
5.15 What Libya wholly fails to address in its cornments on resolution 1192 (1998) is
the fact that this unanimous decision of the Council expressly and unequivocally finds
that Libya bad not complied with the decisions of the Council up to that point. The
demand in paragraph 1 of the resolution and the warning, in paragraph 9, that further
measures might be taken if Libya persisted in its non-compliance cannot be reconciled
with Libya's interpretation of resolution 1192.
5.16 Libya also seeks, in paragraphs 3.29 to 3.32 of its Reply, to bolster its case
regarding the interpretation of the four Security Council resolutions by arguing that the
!57 Libyan Reply, para. 3.13.
!58
United Kingdom Annex 87 (emphasis added).
56 .· . Î
Court must interpret the resolutions in such a way as to comply with the principles of the
United Nations Charter. Libya argues that the resolutions cannet be interpreted as
requiring it to surrender the two accused for trial because the Councillacks the power to
impose such a requirement. As bas already been seen, Libya is advancing an
interpretation of the resolutions which cannet be reconciled with their wording, the
history of their adoption or the interpretation placed upon them by ether States and the
subsequent actions of the Security Council. In reality, its invitation to the Court to adopt
Libya's "reading" of those resolutions by relying on the principles of the United Nations
Charter is an argument that the Council bas a general power of judicial review of the
validity of resolutions of the Security Council, not an argument of interpretation at all.
The United Kingdom bas already shawn that no such power exists and will not repeat its
159
arguments bere.
5.17 In any event, this Libyan argument is based upon a false premise. Libya's case
here rests upon the assumption that the Council lacks the power, when acting under
Chapter VII of the Charter, to require a State to act in a way which departs from that
State's rights under customary international law or treaty. That is not the case.
5.18 As the United Kingdom bas demonstrated in its Counter-Memorial, 1° Chapter
VII of the Charter gives the Security Council bread powers to adopt the measures which
it considers necessary to address a threat to the peace, breach of the peace or act of
aggression. Those measures may require States to tak:eactions which would normally be
contrary to their rights or obligations under ether international agreements. Provision for
the priorityof Charter obligations is made in Article 103 of the Charter. Moreover, the
.Council bas on severa! occasions imposed requirements which prevail over rights and
obligations under ether treaties. For example, resolution 820 (1993) expressly provided
that the obligationof the Danube States to give effect to the various Council decisions on
\59
United Kingdom Counter-Memorial, paras. 4.97 to 4.173.
!60
Paras. 4.202to4.220.
57the former Yugoslavia prevailed over other international agreements on Danube
navigation. 161
·s.t9 In deterrnining the scope of the powers of the Security Council acting under
Chapter VII of the Charter, it is important to have regard to the practice of the Council in
162
the use of its powers. As the United Kingdom has pointed out, the Council has
adopted a number of resolutions specifying the place of trial for persans accused of
offences listed in international conventions, notwithstanding the provisions of those
conventions regarding the principle aut dedere aut judicare. Thus, the United Kingdom
referred to the resolutions creating the International Criminal Tribunals for Former
163 164
Yugoslavia and Rwanda, which require States to hand over for trial before those
tribunals persons accused of offences under, e.g., the Genocide Convention and the 1949
Geneva Conventions. Libya seeks to explai.nthese resolutions away by saying that they
refer to the prosecution before international tribunals of offences under international
law.165 While that is, of course, true, it is not the point. Like the Montreal Convention,
the 1949 Geneva Conventions each contain provisions requiring a State either to try
persans found on its territory who are accused of grave breaches ofthose Conventions or,
if that State prefers, to hand such persans for trial to another State. 166 On Libya's
analysis of the corresponding provisions of the Montreal Convention, the State in whose
territory such suspects are found bas the right to choose between trial and extradition.
161 Resolution 820 (1993), para. 17.
162 6
United Kingdom Counter Memorial, paras. 4.202 to 4.220.
163
Resolution 827 {1993).
\64 Resolution 955 (1994).
165
Reply, para. 3.21.
166
For example, Article 146(2) of the Fourth Geneva Convention relattoethe Protection of Civilian
Persons inTime ofWar (75 UNTS (1950) 287) provides that-
"Each High Contracting Party shall be under the obligatito search for persons alleged
to have committed, orto have ordered the commission of, such grave breaches, and shaH
bring such persons, regardless of their nationality, before its own coumay.also, if it
prefers, and in accordance with the provisions of its own legislation, band such persons
over for trial to another High Contracting Party concemed, provided such High
Contracting Partyhas made out aprimafacie case."
58,---------
.... .-
._,..
Yet resolution 827 (1993), for example, overrides that choice and requires each State to
surrender suspects for trial before the International Criminal Tribunal, irrespective of the
provisions ofthat State's own legislation. The fact that the trial will take place before an
international tribunal, not a national court of another State, and the offence charged is an
international crime 167 does not alter the fact that the Security Council bas required a
State to do something (surrender an accused for trial) when the Convention pennitted it to
deal with the matter in a different way (by trying the accused itself). If Libya's analysis
of the powers of the Council in the present case were correct, the Council had no power
to tak:ethis action in the case of the two international criminal tribunats.
5.20 Moreover, the Council bas required States to surrender persons for trial in another
country notwithstanding the provisions of an international agreement. Libya itself
168
refers to resolution 1267 (1999) on the attacks on United States embassies in Nairobi
and Dar-es-Salaam. In that resolution, as Libya accepts, the Security Council-
"Demands that the Taliban tum over Usama bin Laden without further delay to
appropriate authorities in a country where he bas been indicted, orto appropriate
authorities in a country where he will be returned to such a country, or to
appropriate authorities in a country where he will be arrested and effectively
169
brought to justice."
Libya attempts to read this resolution as including, as one possible course which might be
taken, the trial of Usama bin Laden in Afghanistan itself. Yet the text of the paragraph
quoted cJearly envisages his surrender to another country, not his trial in Afghanistan.
5.21 Once it is realised that the powers of the Security Council are not limited in the
way suggested by Libya- and the consequences, if they are so limited, would include the
invalidity of the resolutions creating the two international criminal tribunats - then it is
apparent that Libya's last argument regarding the meaning of resolutions 731 (1992), 748
(1992), 883 (1993) and 1192 (1998) must be dismissed, quite apart from the other reasons
for its rejection.
167
Tbat description could also be applied to violations of the Montreal Convention.
158 Reply, para. 3.25.
169
Resolution 1267 (1999), para. 2.
59 B: The effects ofthe Security Council decisions
5.22 The United Kingdom considers that it is clearly established, and not seriously
contested by Libya, that a valid decision of the Security Council, adopted under Chapter
VITofthe United Nations Charter, imposes legal obligations which bind those States to
whom it is addressed. Moreover, the effect of Article 103 of the Charter is that the
obligation to comply with that decision prevails over conflicting obligations arising under
170
any other international agreement. Libya's argument that the Montreal Convention
must take priority over the Charter on the ground that it is lex specialis and lex posterior
is incompatible with the clear language of Article 103 as weil as the overall structure of
the Charter.
5.23 Once it is accepted, therefore, that resolutions 748 (1992), 883 (1993) and 1192
(1998) are valid and binding decisions of the Security Council, it is manifest that the
obligation to comply with them prevails over the obligations of both Libya and the
United Kingdom under the Montreal Convention in the event of a con:flict.
5.24 Libya has argued 171 that, if the resolutions require Libya to surrender the accused
for trial, they are contrary to the United Nations Charter and that the Court can declare
them invalid. The United Kingdom has replied to that argument in detail in paragraphs
4.62 to 4.221 of its Counter-Memorial. Libya has not raised these issues again in any
detail in its Reply and the United Kingdom will not, therefore, repeat the arguments
which it has already put before the Court but will confine itself to reaffirming those
·arguments and responding to the new points raised by the Libyan Reply.
5.25 First, Libya seeks to develop an argument that the powers of the Council under
Chapter VII of the Charter cannat be used to settle a dispute which can be settled under
Chapter VI. 172 This argument misses the point that Chapter VII is the comerstone of the
170
Provisional Measures Order,JCJReports 1992, p. 3 at para. 39.
l7l
Libyan Memorial, paras. 6.44 et seq.
172 Libyan Reply, para. 3.19. This section the Reply is principally addressed to the United States
of America, so the United Kingdom will not deal witin detail.
60 l~·.'1
entire structure of collective security in the Charter. It gives the Council a wide power to
talee whatever measures the Council considers necessary for the maintenance and
restoration of international peace and security. Chapter VI does not limit the powers of
the Collllcil under Chapter VII and the scope of Chapter VII is not defined by reference to
what is included or excluded from the scope of Chapter VI. Again, the practice of the
Security ColUlcilover a considerable period oftime is instructive in this regard.
5.26 In exercising its powers under Chapter VII, the Council bas frequently taken
decisions which require a State to take particular actions in respect of matters over which
it is in dispute with another State or States. For example, Security Council resolution 687
(1991), adopted in the aftermath of the Gulf conflict, determined that the boundary
between Iraq and Kuwait was that set out in an agreement of 1963 between those States
and required them to respect that boundary, notwithstanding that this issue was the
subject of a dispute between the two States. 173 Resolution 687 also reaffirmed that Iraq
'wasliable to pay compensation to those who bad suffered loss as a direct result of Iraq's
invasion of Kuwait and established a mechanism (the United Nations Compensation
174
Commission) by which that liability was to be discharged. Similarly, the varions
resolutions on the situation in the former Yugoslavia required the States of the region to
respect the independence of each of the States which bad emerged from the former
Yugoslavia within the boundaries which bad existed prier to the dissolution of the
Socialist Federal Republic of Yugoslavia ("SFRY"), notwithstanding the disputes
between those States. The Council also took decisions regarding questions of succession
to the former SFRY, a matter which was the subject of several disputes between those
175
States.
5.27 The possibility that the disputes in question might have been capable of settlement
under Chapter VI did not preclude the Council from taking measures in respect of them
under Chapter VII when it considered that to do so was necessary in order to deal with a
173
Resolution 687 (1991), para. 16.
174 DJid.para.16.
175 For example, resolutions 757 (1992) and 777 (1992).
61threat to peace and security. To hold otherwise would seriously handicap the Council in
the discharge of its primary responsibility for the maintenance of international peace and
security.
5.28 Secondly, as explained above, Libya misunderstands the United K.ingdom's
reference to the resolutions of the Security Council establishing the International
176
Criminal Tribunats for Former Yugoslavia and Rwanda. The United Kingdom referred
177
to those resolutions in its Counter-Memorial for the purpose of demonstrating that the
Security Council has on several occasions imposed a requirement that persans accused of
particular crimes should be tried before a particular tribunal, even though there are in
place multilateral agreements which make different provision for bringing suspects to
trial.
5.29 Thirdly, Libya fails to appreciate the significance of the various resolutions of the
Security Council and the General Assembly regarding terrorism which it discusses in
paragraphs 3.25 to 3.28 of the Reply. Those resolutions establish both that terrorism is
widely regarded as a threat to international peace and security and that Libya's allegation
that it was singled out for special treatment is untrue. Sorne of these resolutions and, in
particular, resolution 1267 (1999} which required the Taliban regime in Afghanistan to
surrender Usama bin Laden for trial, again show that the Council has imposed
requirements relating to criminal trial notwithstanding the provisions of other
international agreements. As explained above, the suggestion by Libya that the Taliban
could cornply with resolution 1267 by prosecuting Usama bin Laden in Afghanistan is
fanciful and cannat be reconciled with the text of the resolution.
5.30 Finally, the Libyan Reply contains a brief section repeating Libya's earlier
arguments regarding the powers of the Court with regard to resolutions of the Council. 178
This does not add anything to the arguments in the Libyan Memorial and the United
176
Libyan Reply, para. 3.21.
tn United Kingdom Counter-Memorial, paras. 4.203 to 4.220.
178 Libyan Reply, paras. 3.29 to 3.32.
62Kingdom will merely recall its extensive treatment of this Issue m the Counter
179
Memorial.
5.31 In summary, the United Kingdom submits that the meaning of the Security
Council resolutions is clear, notwithstanding Libya's ingenuity in trying to create an
interpretation which it admits did not occur to its govenunent at the time those
resolutions were adopted. The only natural interpretation of the resolutions and the only
one for which there is any support in the practice of the Security Council or the
statements of its members is that th.eCouncil required Libya, inter alia, to ensure that the
two accused appeared for trial before a United Kingdorn or United States court.
5.32 The effect of the resolutions on the present proceedings is also clear. The
requirement that Libya cornply with the decisions of the Coune ilprevails over any rights
or obligations which it might otherwise have had under the Montreal Convention and
thus renders the present proceedings without abject.
179
United Kingdom Counter-Memorial, paras. 4.100 to 4.173.
63 PART6
LIBYA'S ALLEGATIONS OF THREATS TO USE FORCE
6.1 Libya has made allegations that the United Kingdom threatened to use force
against it during 1991 and 1992 on previous occasions. 180 Those allegations have always
been wholly unfounded and always seerned to be rhetoric which was peripheral to the
Libyan case. Consequently, at the oral hearings before the Court in 1997, the United
Kingdom gave Libya the opportunity to withdraw those allegations. 181 Libya chose not
to do so but repeated its allegations and has done so again in Chapter IV of its Reply.
The United Kingdorn regrets that Libya has chosen to make these baseless and highly
offensive allegations but, Libya having done so, the United Kingdorn considers that it
must respond, although, for the reasons given in Part 3 of this Rejoinder, the United
Kingdorn considers that these allegations fall outside the jurisdiction of the Court in the
present case. Fortunately, that response can be brief, because the Libyan case on this
point is rnanifestlyunfounded.
6.2 First, it is necessary to consider what conduct rnight constitute a threat to use
182
force. Although the concept of a threat is not defined ininternational law, Brownlie's
description of it as "an express or implied promise by a government of a resort to force
183
conditional on acceptance or non-acceptance of certain demands of that govemrnent"
is widely accepted. Secondly, it must be realised that an.allegation that a State has
!80
Application; Libyan Memorial, paras. 7.1 to 7.5.
181 CR 97/21, pp. 514.
182 The Court's Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons states that
wbether or not "a signalled intention to use ifcertain events occur" constitutes a threat under
Article 2(4)f the Charter depends upon various factors, ICJ Reports 1996, p. 225 at p. 246, para.
47.
183
International Law and the Use of Force by States (1963), p. 364.
64 '•."'
threatened to use force in breach of its international obligations is one of the utmost
gravitywhich bas to be based upon solid evidence. 1M
6.3 The material on which Libya relies cornes nowhere near the levet of solid
evidence of the existence of a promise - express or implied - on the part of the United
K.ingdomGovemment to use force against Libya. Much of the material quoted by Libya
consists of press reports which do not even purport to report statements from the United
K.ingdomGovemment. For example, two brief reports by economie correspondents that
"fears of military action in the Gulf, or against Libya, drave investors into the dollar, the
traditional safe haven", 185 have no evidentialvalue whatever. Speculation about what the
motives of investors might have been does not even begin to constitute evidence that a
govemment bas done anything, let alone something as serious as threatening the use of
force.
6.4 The only evidence of United Kingdom Govemment statements or actions which
Libya bas put before the Court consists of two statements. The first is an answer by a
British minister to a Parliamentary question,in which the minister stated-
"1 have never made any reference to the use of force. 1 have said here and
elsewhere that we seek to persuade the Govemment of Libya to comply with our
request that the two people should be brought to trial before the courts either of
Scotland or the United States. We hope that we shaH secure a United Nations
resolution underpinning that request. We hope the Govemment of Libya will
comply. Clearly, if they do not, we shaHhave to consider our next s186. I've not
suggested force. 1have ruled nothingin and 1rule nothing out."
This statement does not even begin to amount to "an express or implied promise ...of a
resort to force." It expressly excludes any reference to force at the time. The last
sentence, on which Libya relies for its entire argument, does no more than state that, if
184 Thus, in the Case concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v.United States of America)JCJ Reports 1986,p. 14, the Court held that reports of
United States military exercises near the Honduras-Nicaragua border were not sufftosustain
allegations by Nicaragua of a threat to use force.
lS'i Libyan Reply, para. 4.24.
186
Libyan Memorial, Annex 80.
65Libya did not comply with the request for surrender of the two accused, the Govemment
would consider what to do next and theo contains the scarcely surprising statement that
nothing had been ruled out at that time. The second is a statement attributed in a press
187
report to a Foreign and Commonwealth Office official, that "nothing would be being
ruled out [sic]". This statement also made no mention of force and adds nothing to the
statement by the minister.
6.5 On that slenderest of foundations Libya rests its entire argument regarding the
United Kingdom's alleged threats of force to Libya. There is nothing else; no suggestion
of military preparations or exercises (of the kind found insufficient to constitute a threat
in the Nicaragua case), of direct statements to Libya, or warnings to third countries to
avoid Libyan territory.
6.6 The United Kingdom at no time during the long history of the Lockerbie tragedy
threatened, or even contemplated the threat of, force against Libya and it is a matter of
record that no military action was taken despite Libya's prolonged refusai to comply with
the United Kingdom's requests and the requirements of the Security Council. Libya's
arguments to the contrary are wholly unfounded.
!87 Libyan Memorial, Annex 97.
66 Part7
CONCLUSIONS AND SUBMISSIONS
7.1 The position of the United K.ingdomwith regard to the issues between the Parties
may therefore be summarised as follows-
(1) the jurisdiction of the Court in the present case is confined to a dispute
between the Parties regarding whether or not the United Kingdom has
violated its obligations towards Libya under Articles 7 and/or 11 of the
Montreal Convention. It does not extend to allegations by Libya of
188
violations of other rules of international law;
(2) Events have rendered Libya's Application without object. Libya is not
entitled to refashion its clairn and, in particular, is not entitled to add a
claim for damages at this late stage;189
(3) Libya does not have the rights which she claims under the Montreal
190
Convention;
(4) The United Kingdom is not violating, and has not violated, its obligations
towards Libya under Article 7 of the Montreal Convention; 191
(5) The United Kingdom is not violating, and bas not violated, its obligations
towards Libya under Article 11ofthe Montreal Convention; 192
188 United Kingdom Counter-Memorial, paras1.17~1 .2j1;der, paras. 3.2-3.11.
189
United Kingdom Counter.:Memorial, paras 4.222 and 5.1-5.16; Supplement to United Kingdom
Counter-Memorial; Rejoinder, paras. 3.12-3.26.
\90 United Kingdom Counter-Memorial, paras. 3.1-3.123; Rejoinder, paras. 4.1-4.43.
191 United IGngdom Counter-Memorial, paras. 3.47-3.61 and 3.122-3.123; Rejoinder, paras. 4.20-
4.27.
192
United Kingdom Counter-Memorial, paras. 3.62-3.103 and 3.122-3.123; Rejoînder, paras. 4.28-
4.33.
67 (6) Security Council resolutions 731 (1992), 748 (1992), 883 (1993) and 1192
(1998) do not bear the interpretation suggested by Libya in its Memorial
193
and Reply;
(7) Those resolutions imposed legally binding obligations upon both Libya
and the United Kingdom which prevail over any obligations which might
have existed under the Montreal Convention. The United Kingdom has
acted throughout in accordance with the decisions of the Security
Council· 194
'
(8) The Court has no jurisdiction in respect of Libya's allegations regarding
the threat of force. fu any event, those allegations are wholly
unfounded· 195
'
(9) Consequently, Libya is not entitled to any part of the relief which it now
daims.
7.2 Accordingly, the United Kingdom respectfully requests the Court ~
(1) to rule that the Libyan Application bas been rendered without object;
alternative! y
(2) to dismiss the daims of the Libyan Arab Jamahiriya.
1 August 2001 Michael C Wood
Agent of the United Kingdom of
Great Britain and Northem Ireland
193 United Kingdom Counter-Memorial, paras. 4.9-4.61 and 5.1-5.16; Rejoinder, paras. 5.2-5.21.
194 United Kingdom Counter-Memorial, paras. 4.62-4.96 and 5.1-5.16; Rejoinder, paras. 5.22-5.32.
l9S
United Kingdom Counter-Memorial, para. 1.19; Rejoinder, paras. 3.2-3.11 and 6.1-6.6.
68
Rejoinder of the United Kingdom