International Courtof Justice
Case Conceming Questions of
InterpretationandApplicationof the
1971 Montreal ConventionArising from
the AerialIncident at Lockerbie
(LibyanArabJamahinya v.United Kingdom)
PreliminaryObjectionsof the
UnitedKingdom
JUNE, 1995 TABLEOFCONTENTS
INTRODUCTION ......................................................
.................
PART1 SUMMARYOFTHECASE.. ................... ............ 3
MT 2 THECONTEXTOF THE CASE ................................9................
I The Backgroundto theCase ..........................................................
Historyof the United Nationsçoncern withterrorism ............,.....9.
(1) The SecurityCouncil ..........................................0............
(2) The GeneralAssemblyand SpecializedAgencieç ..............11...
RecordofLibyaninvolvementinterrorism ..........................................
II TheFactsoftheCase. ......................................................
.........
The destruction ofPA 103and the criminal investigation.................
Sumrnaryof the facts disclosed by the criminalinvestigation ...........
CriminalProceedings in Scotland .....................................................
Diplornaticactionto obtain surrenderof theaccused ........................
The UnitedNationsresponse ...........................................................
Iil Conclusions .......................................................
41.................
N TheSubmissionof FactualMaterial to theCourt ................................
PART3 WRISDICTIONOF THE COURT .......................................
P The Basis for the Jurisdictioof the Court ..........................44...............
The only basis forthejurisdiction of the Courtis
(1) Article14(E) of the Montreal Convention ....................4......,
(2) Libya is requiredto identifythe disputebetween Itself
andtheUnited Kingdom ..............,............,.........45
(3) The Court'sjurisdictionislimited toclaimsregardingdisputes
fallingwithinArticle 14(1) ofthe Msntreal Convention. .......7 (1) Libya'sdefinition of the dispute in the Application and
theMernorial .................................................4......
(2) Analysisof theclaimsinthe LibyanMernorial ................5.3.....
(a) Libya'sclaim that the MontrealConvention is
applicable to these proceedings .......,................5 3
(b) Libya'sclaimthat it has çornpliedwith its obligations
under the MontrealConvention and is entitledto
exercise thej....................................................
Convention ... 5 3
Libya'sclaim that the United Kingdomisrequired
(c) to actin accordance with the Montreal Convention
and only the Convention ...............................4........
Cd) Libya'sclaim that the United Kingdomis in breach
of Articles5(2-3), 7, X(2)or 8(3)and 11 of the
Montreal Convention ..................................5..........
(e) Libya'sclairnthat the United Kingdom,by allegedly
issuingthreats offorce againstLibya, by "applying
pressure" to Libya and by deçlining to establisha
rnechanismfor the resolution of the dispute with
Libya is in breach of its obligations under the United
NationsCharter and generalinternational law .........60.
(f) Libya'sdaim thattheapplicationof sanctionsis
unfair and discriminatory andthatin respectof
Security Council resolutions 731, 748 and 883
the Security Council has actedunlawfully ..............63..
III Conclusions ..........................................................6......
PART 4 THESECmY COUNCILRESOLUTIONSARE
DETERMIMATIV O FANYDISPUTE OVERWHICH
THECOURTMIGHTHAVEWRISDTCXON ....................
1 The resolutionsrequire the surrender of the accused for
trialin Scotland or the UnitedStates .....................................................
Ii The SecurityCounçil'sdemandsforcornpliancewith the
requests for surrender are binding ...................................7.3
Iü The SecurityCouncilresolutions are determinative of any
dispute over which the Court might havejurisdiction .......................IV Discretions reserved to the SecuritCouncil alone ..................80........
(1) The SecurityCouncil aloneis entitledte determine under
Article39 of the Charter of the existenceofa threatto
international peace and security..............................................
(2) The Security Council aloneis entitled todecide what
measures should be adopted pursuant to an Article39
determination .....................................................
.........
(3) The Security Council nloneis entitIeto decide ifthe
terms of itsresolutions underChapter VI1hâve
beenmet .....................................................8...................
V The relationshipbetween the Court and the SecurityCouncil in
respectof decisionsof the SecurityCouncil .........................91.............
V1: Article 103and Security CounciTresolutions 748 and 883...............
CONCLUDLNG SUBMISSIONS ...........................................96...........................
LIST OF ANNEXES ....................................................
...................
BASICDOCUMENTS ..............................................7.....
.........
CHRONOLQGICAL L,ISTOFDOCUMENTS .......................99............ INTRODUCTION
On 20 December1993the Libyan ArabJarnahirira lodged itsMernonal in the
Case Concernin g uesdionsof Interpretation and Applicatio ofthe 1971
Montreal Convention arisin fum theAericrlIncident atLockerbie (Libyun
Arab Jamahiriya v.United Kingdom). The following is an outline of the
United Kingdom'sPreliminary Objections to the Court'sjurisdiction, andtthe
receivabilityofLibyancIairns,in this case.
1. The 'onIypossible basis of jurisdiction between the United Kingdom
and Libya isthat providedfor under Article14(1)of the Montreal Convention
for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,
1971 ("the MonrrealConvention"].Xibya contendsfor no alternative basis of
jurisdiction.It will be demonstrated, however, thatfthemost part theçlaims
made by Libya against the UnitedKingdom do not relate to mattersfalling
withinthejurisdictional provisions of Article 14(1).
2. In respect of certain other alleged rights undes the Montreal
Convention upon which Libya seeks a declaration from the Court, no legal
dispute exists between the United Kingdom and Libya.
3. In so far as there might remain any dispute between the United
Kingdom and Libya in respect of which Article 14(1) might provide for the
jurisdiction of the Court, United NatioSecurityCouncil resolutions 748 and
883 have determined the actions which Libya is required to take. These
resolutionsare binding upon al1Members of the UnitedNations by virtue of
Article 25 of the United Nations Charter and take precedence over other
treatyrights andobligationsby virtue of Article 103.
4. Libya's prirnary argumentis that theseresolutions do not, in fact,
impinge upon its rights under the MontrealConvention and do not require
Libya to surrender the accused, sothat the stepswhichthe United Kingdom
has taken to secure their surrender are contrary to Libya's Montreal
Convention rights. The United Kingdom will demonstrate that this is incorrect.
Libya argues in the alternative that the resolutions are inconsistent with its
974UNTS 177(Annex1).
1rights under the Montreal Convention. But even if thiswere so,no daim cm
lieagainstthe United Kingdom,the resolutionsbeinglegallydeteminative.
5.
Libya has sought to construct a legal dispute with the United
Kingdom. In reality the issues raised by ~ib~a are not in dispute between
Libya and the United Kingdom, but rather betyeen. Libya and the Securio
Council. As such they are not justiciable before the Court.
6. Accordingly, the United Kingdomrespectfullysubmits,in accordance
with Article 79 of theRules of theCourt, that: '
I
- theCourtlacksjurisdiction, eitherjbecause no dispute exists or
because the claims advanced by Libya do not fa11 for
consideration under Article 14(1) bf the Montreal Convention,
orboth, 1
- the effect of Security Council resolutions 748 and 883 is to
renderthe Libyan claims inadmissiple.
7. The United Kingdomreservesits rights with respect to anyother issue
ormatter which may arisearthis preliminary stagelor othenvise.
8. The grounds for the subrnission are set out in detail in Parts 3 and 4
below. The context of the case is setout in Part/2.Bart 1 consists of a brief
I
sumrnaryof thecase. I SUMMARYOF THE CASE
1.1
The destructionofflight PA103 over Lockerbiein Scotland happened
on 21 Decernber 1988.Within a weekit had been established thatthe aircraft
had been destroyed by plastic explosive. The act was condemned by the
members of the Security Council of theUnited Nations in a staternentissued
on 30 December 1988 by the President of the Co~ncil.~Following an initiative
by Czechuslovakia and the United Kingdom, on 14 June 1989 the Security
Council adopted resolution 1535~ calling upon al1 States to cooperate in
devisingand implementinp rneasures toprevent al1acts of terrorism, includjng
those involving plastic explosives.
12 The criminal investigation leading tu the issue of warrants lasted
almost three years. It has been one of the largest ever mounted. Tthas
produced corroborated evidence againsttwo Libyan nationals,Abdelbaset Ali
Mohmed AlMegrahiand Al Amin Khalifa mirnah, actingin furtherance of the
purposesof the Libyanintelligenceservices. On 13November 1991 a warrant4
waçissued by a Scottishcourt for their arrontcharges ofconspiracy,murder
and contravention of the AviatioSecurity Act 1982.
1.3 On 14 November 1991 copies of the charges and ~arrant,~ anda
detailedStatement of Fa~ts,~were transmittedtoLibya with a forma1dernand
for the surrender of the two accusedfor trial in Scotland. same day Libya
issueda pressreleasedenying anyknowledgeof the crime. A few days later it
was stated by Libya thata Libyan judge had been appointed toinquire into
the accusation^.^
1.4 No satisfactoryresponse tothe demandfor surrender having been
received from Libya, on 27 November 1991 the United Kingdom and the
United Statesjointly issued public declaration thaLibya must surrender the
rn Annex38.
Annex 40.
a Annex 17.
Ibid.
Annex 16.
SI23416(Annex4j.accused for trialandaccept responsibility for théactions of Libyan officiais;
disçlose al1it knows of the crime andallow fulllaccess to evidence; and pay
appropriate compen~ation.~The same day a sirnilardeclaralion was made by
France in respect of the sabotage of UTA 'flight 772,9 and the three
Governments issued ajoint statement requising Libya promptly to commit
itselto cease a11forms ofterrorisa~tivitieç,~~
1.5 In view of Libya's long record of involvement in terrorism, the
concern expressed about international terrorism over many years by the
SecurityCouncil and General Assemblyof the United Nations, and the failure
of Libya to make an effective reply to the dernands, the threeGovernments
caused details of the charges and the deknds to be circulated on
31December 1991 as documentsof theUnited Nations General Assembly and
Security Council.
1.6 Beginning on 2 January 1992 the ,three Governrnents made
demarches in the capitalsof al1other members ofthe SecurityCouncil, seeking
their support fora cal1by the Security Council for Libya to comply with the
demands. By 7 January the representatives of the three Governments had
discussed at the United Nations in New York w$h al1other rnembers of the
Security Council possible action by the Security Council. On 10January a
draft resolution, prepared after discussion between the five permanent
rnembers of the Security Council,was circulated infomally to al1members of
the Council.
1.7 The follawing day, in a letter te the Ihternational Civil Aviation
Organisation (ICAO),Libya invoked the Montreal Convention for the first
tirnel l I
1.8 On 14 January a revised draftresolution bas circulated infomally to
al1members of the Security Council. On 18 Januq Libya made a request that
the United Kingdom submit a dispute between itself and Libya for arbitration
under Article 14 of the Montreal Convention. l2 !
Annex7.
Annex 5.
Annex8.
l LibyanAnnex75.
l2 Annex9.1.9 Three days later, on 21 January 1992, the Security Council adopted
resolution 731. This condemned the destruction of flights PA 103 and
UTA 772; strongly deplored the façt that Libya had not yet responded
effectively to the requests of the three Governments to cooperate fully in
establishing responçibility forthe terrorisacts against the two flights; urged
Libya irnrnediately toprovide a full and effective response tothe requests,so
as to contribute rotheelirnination of international ten-orisrand requested the
Secretary-General of the United Nationsto seek the cooperation ofthe Libyan
Government to provide such a response.
1.10 At the timeof adoption of the res~lution,~~the United Kingdom made
clearits view that the Security Council was not dealing with a dispute under
the Montreal Convention, as Libya had suggested, but with the proper
reaction of the international community to the situation arising frorn Libya's
failure to respond effectively to the most serious accusations of State
involvement inacts of tenorism.
1.11 The Secretary -General appointed a representative to hold
consultations with Libya regarding implementation of the resolution. The
Secretary-General reported to the Security Council on 1 1 February 1992 and
3 Mxch 1992thatLibya had not yet complied with resolution 73 1.14
1.12 On 3 March 1992 Libya made itsApplication to the Court in the
present case.It asked the Court ru adjudge and declare:
"(a) that Libya has fully complied with al1of itçobligations
under the Montreal Convention;
(b) that the United Kingdom has breached, and is
continuing to breach, its legal obligations to Libya
under Articles 5(2),5(3) 7,8(2) and 11of the Montreal
Convention; and
(c) that the United Kingdom is under a legal obligation
immediately to cease and desist fsom such breaches
and from the use of any and al1force or threats against
Libya, including the threat of force against Libya, and
£rom al1 violations of the sovereignty, territorial
integrity,andthe political independence of Libya."
l3 Seeparagrap2.70below.
Annexes13and 14. I
1.13 On the same dayLibya filed a request td the Court for the indication
of provisional measures of protection. Libya claimed that the United Kingdom
was actively seeking to by-pass the provisions of the Montreal Convention
by threatening various actions, including seeking sanctions against Libya and
refusing to rule out the use of amed force tocombe1it, in contravention of the
Convention, to surrender the accused. Libya aske'dthe Court:
i
to enjoin the United Kingdom frorntaking any action
"(a)
against Libya calculated to coercelor compel Libya to
sumnder the accused individuals'to any jurisdiction
outside of Libya; and I
!
(b) to ensure that no steps were taken that would
prejudice in any way the rights ofiLibya with respect
to the legal proceedings that are tye subjectof Libya's
Application." l
The Courtheld oral hearings on the Libyan request on 24, 27 and 28 March
l
1.14 The Court had before it the detailed sdternent of Facts which had
been made available to Libya at the time the UnitqdKingdom firstçalled upon
Libya fosurrender the two accusedI5.Then,as nob, the United Kingdom was
scrupulous to avoid making any public statemeqt or disclosure of evidence
which might prejudice the chances of a fair trial ofthe two accused, the
objective of the United Kingdom throughout being toensure fhata fair trial
takesplace in Scotland or the United States. I
I
1.15 Meanwhile, diseussions had been held since ETMarch 1992among
the members of the Se~unty Councilregarding a d'raftfurther resolution which
would be sponsored by France, the United Kingkm and the United States.
This was adopted on 31March 1992,as resolutioni748.1a
I
1.16 In the resolution the Secunty Council delermined thatthe failure by
Libya to dernonstrate by concreteactions its renunciation of terrorism,md in
particular its continuedfailureto respond fuHyand effectively to the requests
in resolution 731, constituted a threat to intern4tional peace and security.
ActingunderChapter VI1 of the United Nations charter, the SecurityCouncil
decided that Libya rnustcornplywithoutany fuiher delay with the requests
l
15 Annex 16.Seeparagraph1.above.
l6 Annex3.of the three Governments; commit itself definitively tocease al1 foms of
terrorist action and assistance to terrorist grodbs; and, by concrete actions,
dernonstrate its renunciation of ternorismThe resolutionalso imposed various
econornic and other sanctions on Libyauntil itçomplied.
1.17 On 4 April 1992the Court invited the Parties to make observations on
the possible implications of resolution 748 for the proceedings before the
Court. In its observations Libya contended irateralia that:
- inasmuch as by deciding, in effect,thatLibya musi sumenderits
nationals to the United Kingdom, the Security CounciI
infringed or threatened to infringe the enjoyment and the
exercise of the rights conferred on Libya by the Montreal
Convention;
-
the United Kingdom should so açt as not to infringe those
rights, for example, by seeking a suspension of the relevant
part of resolution 748;
- the decision of the Security Council was contrary to
international law; and
-
the Security Council had employed its power to characterize
the situationfor purposesof Chapter VI1simply as a pretext to
avoid applyingthe Montreal Convention.
1.18 The Courtgave itsdecision on the Libyan request for provisional
rneasures on 14 April 1992.17It considered thatthe obligations of Libya and
the United Kingdom, underArticle 25 of the United Nations Charter, to carry
out the decisions of theSecurity Council prima facie extended to the decision
in resolution 748, and that,in accordance with Article103 of the Charter, the
obligations of the Parties in that respect prevailedovertheirobligationsunder
any other international agreement, including the Montreal Convention. It also
held that, whereas the Courtwaç not at that stagecalled upon to determine
definitively the legal effectof resolution748, whateverthe situation previous
to its adoption the rights clairnedby Libya under the Montreal Convention
could not now be regarded as appropriate for protection by the indication of
ICJReporls, 199p.3.
7provisional measures; and that an indication of; the rneasures requested by
Libya would be likely to impair the rights which appeared primafacie to be
enjoyed by the United Kingdom by viflue of resolution 748. The Court,by 11
votes tu 5, thus found that the circumstancesof the case were not such as to
require the exercise of itspower underArticle 41:ofthe Statute of the Court to
indicateprovisional rneasures. I
1.19 On 19lune 1992the Coun ordered ~ibya to lodge its Memorial by
20 Recember 1993and the United Kingdom toIbdge a Counter-Mernorial by
20 June 1995. The Libyan Memorial was duly lodged on 20 December 1993.
I
1.20 In the some 19 rnonths following the iadoption of resolution 748
Libya did not sursender the two accused for trial: notwithstanding continuing
efforts by the Secretary-General of the ~niied Nations to secure full
irnplernentationof the resolution. InsteadLibya sbught to distract attentionby
variousmeans,including proposais for a trial at The Hague before a "Scottish"
court. At the same time Libya continued to asseri (including in its Memorial)
that itwas not obliged to, and could not, extradite its own nationals, although
it hasalsoon occasion said that ithas not ruled out the possibility ofchanging
the law .18Colonel Qadhafi did, however, admit ~jb~a's pastinvolvernent with
a terrorist organisation, the Provisional IRA;and certaininformation aboutbat
involvementhassince been suppliedby Libya to the United Kingdom.
121 , In view of Libya's failure to comply Fullywith the demands of
resolution 748, on 11 Novernber 1993the ~ecuritj Council adopted resolution
883.19 The resolution extendedthe scope of the sanctions against Libya, but
expressedthe Security Council'sreadiness to revi4w the sanctions with a view
to suspending thern imrnediately if Libya ensdred the appearanceof the
accused for trial before the appropriate United 'Kingdom or United States
court. I
1.22 Since the adoption of resolution 883;, Libya has continued to
prevaricate. The sanctionsregime is reviewed by the Security Council every
120 days, but because Libyahas not compliedwith the requirements of the
SecuntyCouncilthe sanctionsrernain in force.20 !!
I
' TherelevantdocumentsarediscussedPart2below. !
l9 Annex4.
20 See, most recenttheReridenUaStatcmentof30March 1995;S/PRST/1995/14(Annex83). PART2
THECONTEXTOF THECASE
2.1 This Pari cunsistsof an account of:
- The background to the case
- the history of the United Nations concern with
terrorism;
- the record of Libyan involvementin terrorism;
- The factsof the case
- the destruction of flight PA 103 and the criminal
investigation;
- a summary of the facts discIosed by the criminal
investigation;
- criminalproceedingsin Scotland;
- the dipiornaticactionto obtain surrender of theaccused;
- the United Nations response.
1 TheBackgroundto the Case
Historyof theUnitedNationsconcernwith terrorism
2.2 The issue of terrorism haslong been a concern of the United Nations.
The history of its concern has been described by Judge Guillaume in his
lecturesat theHague Academyof InternationalLaw, Terrorisme etDroit21.
21 Recueidescours, Vol. 21989,pp.287416.(1) The SecurityCounçil
2.3 Ln1970, the Secunty Council adopted rksolution286 on the subject
of hijacking and other interference in international civil aviation.22 The
resolution expressedgrave concern atthe threat(o innocent civilian lives and
called on al1States to takeal1possible Legalsteps to prevent any interference
with international civil aviation. On 9 ~ctober!1985 the Security Council
issued a statement deploring the killing of Léon Klinghoffer during the
hijacking of theAchille Lauro, and condemninghijacking and other formsof
terr~risrn.~~Followingthe hijacking of an ~gyptian aircraftin Decernber 1985,
resolution 579 condemned al1 acts of hostage-taking and abduction. In the
same month the Secunty Council issued a stater$ent condemning the attacks
on Rome and Vienna air port^.^I^ncreasingconcein about temorism, especially
the spate of kidnappings in Beinit in 1985and 1q86,led the Security Council
to issue a furtherstatement on 28 January 1983 condemning in particular
l
hostage-taking.25 I
2.4 On 30 Decernber 1988 the President of the Security Council issued a
statement on behalf of the rnernbers of the couniil strongly condemning the
destruction of PA 103 and calling on al1States do assist in the apprehension
and prosecution of those responsible for die crirneIz6
2.5 The Lockerbie bombing also led the becurity Council to adopt
resolution 635 (1989), which condernned al1adts of unlawful interference
against the security of civil aviation and called 8n ail States to cooperate in
rneasures to prevent acts of terrorism, indudihg those involving plastic
explosives, and urged the InternationalCivil;Aviation Organisation to
intensify its work on devising an international lregirne for the rnarking of
plastic or sheet explosives for the purpose of/ dete~tion.~~As a result, a
Convention on the Markingof Plastic Explosivesfor the Purposeof Detection
was adopted at Montreal on 1March 1991.~~ l
I
22 Annex 24. l
23 S/1755 Annex31). I
24 SI17702(Annex32). 1
25 SI18641(Annex35). 1
26 SC15057(Annex 38). I
27 Annex40. By 28 Decembcr1988it haalrcadybeeneitablishthattheaircrahad probably
been destroyedbyplasticexplosseeparagraph2.3below.
28 30 ILM 726 (1991). l
l2.6 On 31 January 1992,ten days after theadoption of resolution 731,29
the President of the Security Council made a statement on behalf of the
rnembersof the Council at the conclusion of the meeting held at the level of
Heads of State and Government, in connection with the item entitled "The
responsibility of the Security Council in the maintenance of international
peace and security".The statement included the following passage:
"The rnernbers of the Council express their deep
concern over acts of international terrorism and
ernphasize the need for theinternational community to
deal effectively with al1suchact~."~O
2.7 This concern was reiterated on 29 July 1994 when the President of
the Security Council made a statement to the mediaon behalf of the Countsil
strongly condemning recentterrorist atracks in BuenosAires and London, and
stressing the need for "fulland effective measures to prevent, combat and
elirninateal1foms of terrorism, which affect the international community as a
~hole."~~
TheGenera1Assembly and SpecializedAgencies
(2)
2.8 Terrorism has also been a concern of the General Assembly and the
Specialized Agencies. In resolution 2551 (XXIV)3bf 1969 the General
Assembly expressed deep concern at hijacking of aircraftand urged full
support for the efforts othe International Civil Aviation Organization(ICAO)
in seeking rneaçuresto deal withit.
2.9 In resolution 2645 (XXV)33adoptedin 1970,the General Assembly
condemned, w ithout any exception whatsoever, a11 acts of aerial hijacking or
other interference with civil air travel,and repeacedits supportforthe efforts
of TCAO.
2.10 From an early stage the United Nations General Assembly was
conscious also of the problem of State involvement in acts of terrorism. The
Declaration on Principles of International Law concerning Friendly Relations
29 Seepamgraph2.58below.
39 SI23500(Annex49).
31 S/PRST/1994140(Annex76).
32 Annex21.
33 Annex23. I
and Cooperation among States in accordance w/th the Charter of the United
Nations (the Friendly Relations Declaration], adopted by the General
Assemblyof the United Nations on 24 October 1970,~~ dealt with the problem
of terrorisrn in the context of the principle of the von-useof force:
"Every State has the duty to refrain from organizing,
instigating, assistlng or participating in acts of civil
strife orterrorist acts inanother Sfateor acquiescing in
organized activities within its territory direçted
towards the commission of such'acts, when the acts
referred tu in the present paragraph involve a threat or
use of force."
2.11 In 1972, following the attack by the terrorist organization Black
Septemberat the Munich OlyrnpicGames, the General Assembly, on the
initiativeof the Secretary-General of the United Nations, inscribed an item on
terrorisrn on its agenda. Under the item the General Assembly adopted that
year resolution 3034 (XXVII),'~ which recalled the Friendly Relations
Declaration and expressed deep concern over the increasing acts of violence
which endangered or took innocent human liveçlorjeopardized fundamental
freedoms. The resolution was followed in sucçeeding years by nine further
resolutions under the sameagenda
2.12 In an 1lth resolution under the same item, adopted without a vote on
9 December 1994, the General Assembly approved aDeclaration on Measures
to Elirninate International Ter~orisrn.~~ In the preamble to the Declaration, the
GeneralAssembly expressed its conviction:
"that the suppression of acts of internationaltenorism,
including those in which States are directly or
indirectly involved, is an essential element for the
maintenance of international peace and security".
2.13 Buring the years preceding the adoption of this Declaration a
continuing debate as to the causes of terrorisrn had been given prioricyover
the taking of further effective action bythe GeneralAssembIy. But dunng that
period ICA0 had been takingactive steps withii its own sphere to deal with
international terrorisrn.Under its auspices two conventions to deal with the
l
- -
34 Resolution2625(XXV)(Annex22).
,
36 Annex 25.
(19112/83)40161(9112185);2/19 (7/12/874-4/29(4112189;6/51(4112191).12/81}; 381130
37 îd491460(Annex81). 1
1threat posed by terrorism to the safety of civil aviation were adopted: the
Hague Convention on the Suppression of Unlawful Seizure of Aircraft of
19703g and the Montreal Convention on the Suppression of Unlawful Açts
against the Safety of Civil Aviation of 1971 .39In 1977 ICA0 adoptedAnnex
17 to the International Convention on Civil Aviation of 1944 prescribing the
International Standards and Recommended Practices for the safeguarding of
international civil aviation againstacts of unlawfulinterference.
2.14 Following the hijacking of the liner Achille Lauro in 1985,ihere was
adopted in 1988, under the auspices of the International Maritime
Organisation, the International Convention on the Suppression of Unlawful
Actç against the Safety of Maritime Navigation and a Protoçol on the
Suppression of Unlawful Acts against the Safety of Fixed Platforms Iocated on
the Continental Shelf.40
Record of Libyaninvolvementin terrorism
2.15 There is a rnarkedcontrast between Libya'sconduct and the standard
requiredby the United Nations. Since 1980, Libya has conducted, asçisted or
inçtigateda nurnber of terrorist incidentin variousc~untries.~~ On 8 February
1980 Libyan Revolutionary Cornmittees announced a campaign against
Libyan dissidents abroad. On 12 3une 1980,the day he was recognised by the
British Goveenmentas Head of the Libyan People's Bureau in London (Le.
Head af the Libyan diplornatic mission), Musa Rusa publicly voiced his
approval of a decfsion by Libyan revolutionary cornmittees to killtwa Libyan
dissidents, who were atthe time in the United Kingdom. The next day he was
told taleave. Three other Libyans had to be expelled forthe same reas~n.~~ In
1983 Musa Kusa became head of the "Mathaba" ("The International Centre
for Resistance to Imperialism, Zionism, Racism, Reaction and Fascism"). In
1990 he was appointed Deputy Foreign Minister. He is currently Head of the
ExternalSecurityand Intelligence Organisationof Libya (ES0).43
38 860UNTS 105.
39 Annex 1.
40 27 LM 672(1988).
4 1 Houseof CommonsDebates,24 April1986,cols 209-2(Annex 34).
42 Houseof CommonsDebates, 1May 1984col 209 (Annex29).
43 TheArabicnameof theorganisatiiAmnAl-Jamnhiriyawhichhasbeendescribed byJANA
(the LibyaNews Agencyas"the externalsecurityorganisa(Annex60). Iis sometimes
refemd toinEngIisasthe"JarnahirSecuritOrganisatio(JSO).2.16 In November 1980 two children of a ~i(yan dissidentwere poisoned
in Portsmouth in England. When four Libyan nationals were convicted and
irnprisoned for this crime, Libya expelled thrde British diplornats and an
attempt was made to burn downthe British~mba'es~ in Tripoli.44
I
2.17 On 17 April 1984 a woman police offiIer, Yvonne Fletcher, was
murdered in St James's Square inLondon, the burder being carriedout by
shots firedfrom the premises of the Libyan dip14maticmission.Libya refused
to cooperate in a criminalinvestigation, butas Q resultof their inquiries the
Metropolitan Police were of the view that the m:urderwas cornmitted by one
of twu people in the mission. Libya refused ito atlow the mission to be
searched and proposed that a Libyan cornmissidh of enquiryshould corne to
the United Kingdom, and that any Libyan who might be found to be
implicated should be put on trial in LibyIn vieh of the inadequate response
to this grave incident diplomatic relations were bioken off on 22 Ap1984.45
In 1991the United Kingdom Police ~e~endantsiTmst received a cheque for
f250,000 from theLibyanPolice Syndicate in clnnection withthe murder of
WPC Fletcher." The Tmst declined to acceptit.1
1
2.18 The conditions which the United ~idgdom would require to be
satisfied beforediplomatic relations could be resumedhave been putto Libya
severaltimes, andinclude: I
- acceptance ofresponsibility for th! actions ofLibyan officialr;
I
1
- an apology ;
i
- compensation to WC Fietcher'sGn1ily.4~
1
2.19 On 17 November 1984, theAssociated Pjressreported officia1Libyan
claims that they had assassinated Mr Abdel-HarnidBakoush, a Libyan
dissident and formerLibyanPrimeMinisterwho had lived iCairo since 1977,
following which the Egyptian authorities then produced MrBakoush, saying
44 HOUXof CornmnirDebates,1May1984,col 209(Anne29):
45 HOUS.of CornmonsDebates,25 April 1cols739-7$2(Annex27)and 1May 1984cols
195-208(Annex28). I
46 Annex42. I
47 Lenerof 1 April1992fmm the SecreofStatforFqreignand CommonwealthAffaito
Mr R Muir (Anne50). 1they had trickedthe Libyans into believing thattheir assassination team had
succeededin killing hi~n.~*
2.20 On 3 March 1986, the General Peoples Congress (the Libyan
parliament) called for the creatioof"suicide commandos", whose task would
be, inter dia, to "strikeAmericanand Zionist interests every~here".~~
2.21 On 19 September 1989 UTA flight 772 was sabotaged in flight
causingthe loss of 17 1 lives.The French judicialinquiry into the crime has
implicated severalLibyan national^.^^
...
2.22 There has been publicly expressed andactive support by Libya for
the Provisional IRA, a body responsible for repeated tesrorist attackin the
United Kingdom and elsewhere up untilAugust 1994. The practical support
given by Libya included supplying and shlpping arms and explosives for the
use of the Provisional IRA in theiractsof terrorism. In March 1973 the Irish
authorities boarded the Cypriot-registered coaster Claudiw ahich was found
ta be carrying a cargo of £ive tonsof arms and explosives. These had been
supplied by Libya and were destined for the Provisional IRA, a known
rnernberof which was on boardthe ves~el.~~In October 1987the ship Eksund
was intercepted by French customs officers in the Bay of Biscay carrying a
quantity of weapons and explosives supplied by Libya and destined forthe
Provisional IRA.52
2.23 On 17 June 1991, in a speech tothe Libyan parliament, Colonel
Qadhafi said thatthe causeof the IRA was just:
"wesupport ittemrism or no terr~risrn".~~
2.24 More recent Libyan actions have confirmed Libya's links with
terrorist groups during those years. Following the adoption of Security
Council resolution 748 in March 1992, the Libyan Peoples Cornmittee for
Foreign Liaison and InternationalCooperation (the Libyan Foreign Ministry)
issued on 14May 1992 a communiqué,the first point of which was that Libya
48 Annex30.
49 Annexes33and36.
50 St2330(Annex 5).
51 Houseof ComrnonsDebates,16AprîI1973,col43 (Annex26).
52 Houseof CommonsDebates13Novernber1987,col 5(Annex37).
53 Annex41. l
"severç relations with al1 groups and organisations
involvedin international terrorismof any kin~l".~~
I
2.25 The same daya letterfrom the Libyan ForeignMinister, Mr Bishari,
was transmitted to the Secretary-General of theUnited Nations.55The letter
repeatedthe tenns of thecommuniqué.In partic~lar,it said that Libya would
supplyinformation concerning its links with the Provisional IRA, including
detailsof financial assistance, provision ofweapbns, training of personnel and
contact points. It proposed a meeting between iqresentatives of the British
and Libyan Governments for this purpose. Such meetings were held in
Geneva and Cairo on 9 June 1992, 13 ~u~us$ 1992, 28 November 1992,
31July 1993, 24 August 1993 and 23 ~anuar~i1995. At the meetings the
Libyan representatives provideciinformation abdpt Libya'srelationships with
the Provisional IRA, but the information supplieddoesnot yet amountto a full
disclosure of the nature and extent of thatrelatioi~hip.~~
i
l 2.26 Mr Bishari'sletter of 14 May 1992 also Said that Libya no longer had
any link with the terrorists Abu Musa or Abu Nidal, the latter apparently
havingbeen pemitted to establish his headquarttrs in Libya in 1987. During
the summer of f992 Libya closed or dismantled rnanyof the campspreviously
used totrain terrori~ts.~~ I
I
On 2 April 1992 (two days after the adbption of Resolution 748)58
2.27
the Secretary-General of the United Nation4 protested to the Libyan
Permanent Representative about the attacks that /day against the Venezuelan
Embassy in Tripoli. Venezuela was at the time a member of the Secunty
Council and had voted for Resolution 748.59 The same day the President of
the Security Council made the following statemenl on behalf of the Council:
"The Secunty Council strongly cdndemns the violent
attacks on and destruction of the premises of the
Embassyof Venezuelain Tripoli tlat took place today.
The fact that these intolerable and extremely grave
events have ken directed noti only against the
Government of Venezuela but llso against and in
I
I
54 Annex55.
55 Annex56. I
56 House ofCommonsDebates, 18June1992 ,ols 1038-4[Annex 57)andI February1995col
1M2 (Annex80). I
57 Houseof CommonsDebates,20November1992,cols 432f3(Anriex61).
58 See paragraphs.78to2.82below.
59 UN PressReleasSGl192 5Annex51). I
i reactianto Security Çouncil resolution 748 (1992)
underlinesthe seriousnesç of the situation.
The Council demands rhat the Government of the
LibyanArab Jamahiriya takeal1necessary rneasures to
honour its international legal obligations to ensure the
security of the personnel and to protect the property
of the Embassy of Venezuela and of al1 other
diplornatiand consuIarpremises or personnel present
in the Libyan ArabJamahiriya,including those of the
United Nations and related organizations, from acts of
violenceand terrorism.
The Council further demands that the Libyan Arab
Jamahiriya pay to the Government of VenezueIa
imrnediate and full compensation for the damage
caused.
Any suggestion thatthose acts of violence were not
directecl against the Government of Venezuela but
against and in reaction to resolution 748 (1992) is
extremely serious and totallyunacceptable"60
Il TheFacts ofthe Case
The destruction ofPA 103andthe criminalinvestigation
2.28 On 21 December 1988a Boeing 747 aircraft of Pan AmesicanAirways
exploded in flight over the town of Lockerbie in southernScotland. The
aircraftcrashed, killing al1259 passengers andcrew and eleven residents of
Lockerbie. The victirns included nationals of twenty-one countrieinEurope,
theAmericas,AfricaandAsia.Nineteenof thevictims werechildren.
2.29 An internationainvestigationwas begun immediately and was based
at Lockerbie under the command of the Chief Constable of Dumfries and
Galloway Constabulary, the Scottish police force whose region includes
Lockerbie. They were assisted by police officers from a number of British
police forces, and worked inCO-operation with agents ofthe United States
Federal Bureau of Investigation.
2.30 Investigation of sudden and unexplained deaths in Scotland, whether
caused by a criminalact or otherwise, is the responsibilityof the Procurator
60 SlPV.3064 (Anne52).Libya acknowledgedits responsibilthe destruction ofthe
VenezuelaErnbassyandpaid compensationGovernmenofVenezuela.
17Fiscal, who is the public prosecutoracting witlin a particular geographical
district. The Procurator Fiscais the local representativof theLord Advocate,
who is the chief publicprosecutor forScotland. ihe Procurator Fiscal whose
district includesLockerbieis theProcurator ~iscaifor Dumfries.Inview of the
magnitude of the disaster at Lockerbie thethenPiocuratorFiscal established a
temporaryoffice in Lockerbie and remainecl basCd there until February 1992.
A description of Scottishcriminal procedureandinvestigative procedures so
far as is relevant to the Lockerbie case is contained in the Surnrnnry of
l
Scottislz Criminal Procedure in Murder Cases.61 1
I
I
2.31 The investigationof particular criminaloffences,decisions Whether to
prosecute and the conduct of prosecutions in ~cotland are wholly free from
any political control. The independence frod GoverIment of the Lord
Advocate in hisrole as public prosecutor has been long recognised. It was put
l
thus in 1928: I
"Inthis department of his office the Lord Advocate
exercises directly the executive authority of the
Sovereign,and he is not answerapleto, or bound to
take instructions from, any other Minister of the
Cr~wn."~~
1
In 1959the then PrimeMinistersaid inthe HouseOflomrnons:
1
"It is an established principle of ~overnment in this
country and a tradition long supported by a11political
parties, that the decision as to whether any citizen
should be prosecuted, or whethkrany prosecution
should be discontinued, shouldbe)a matter ....forthe
prosecuting authorities to decide on the rneritsof the
case withoutpolitical or other pressure.
l
It would be a most dangerousdeviation from this
sound principleif a prosecution yere to be instituted
or abandoned as a result of political pressure or
popular clamour. I
2.32 The Secretaryof Statefor Foreign and dornmonwealth Affairs("the
Foreign Secretary"), MrDouglas Hurd, said in tde House ofCommonson 1
February 1995 in responseto pointsmadedurin4 a debate by an opposition
1
Member ofParliament, hk Tm DalyelI: 1
62 Annex 18. !
63 Encyclopaediaofrhe LawsofScofland,1928Y,oparagrap483.
Houseof ComrnonsDebates, 14Fehary 1959,col 31(Anpex20).
I "1 must stress the total independence from
Government of the investigation of the Lord
Advocate in his responsibility for criminal
prosecutions. Neither he nor his predecessor would
have brooked any attempt to influence them in
exercising their independent judgment. It is not the
job of Ministers or the Foreign Office tu decide who
should be prosecuted for a crime. It isnot the job of
Ministers or the Foreign Office to pronounceopinions
as to who is guilty. There isno place in the matter for
diplornatic or politicaçonsiderations, and we have not
at any time allowed such considerations any place in
our actions.
Neither the Foreign Office nor any agency for which 1
am responsible has attempted to steer the Lockerbie
investigation or to shield any individual or state who
may have been responsible. There is no hidden
political influence behind the investigation, and there
has been no censorship by the Foreign Office. All
significant information relevant tu Lockerbie obtained
by the intelligence agencies - or anyone else, to rny
knawledge - isinvariably and as a matter of course
provided to ahose who are responsible for the
investigation. It is forhe prosecuting authorities and,
ultimately, we hope, for the courts, not the
Government, to weigh the evidence; so when the hon.
Gentleman asks whether 1 am at ease with that, or
whether I am satisfied with that, those are not
questions forme. It is not for me to weigh or ponder
the evidence or to allow those under rnycontrol to do
2.33 Wreckage from the aircraft was scattered over an area of 2190 square
kilometres. But by 28 December 1988 it had been established by scientifîc
examination of wreckage that the destruction of theaircrafthad been caused
by a detonating high explosive consistentwith the use of ahigh performance
plasticexplosive and that the disast wars,accordingly, the resuIof a crirninal
It was thereafter the responsibility of the Procurator Fiscal to direct
further investigation in order to establish morefully the circumstances of the
deaths andevidenceof criminal responsibility. It wasthe dutyof the police to
car~y out enquirieson his behalf and to report to him. It was the duty of the
Lord Advocate to determine whether a public inquiry under the Fatal
Accidents and Sudden Deaths lnquiry (Scotland) Act 1976 should be held
. .
64 Houseof ComrnonsDebates, 1Febmary1995,co1058-9(Annex80).
65 StatementoftheAir AccidentsInvestigaBranchof theDepartmentof Transportf the
UnitedKingdom(Annex39).pending the completion of the crirninal investigati~n~~and, in due course,
whetherthere was sufficient evidence to merit criminal proceedings againçt
named perçons. The Lockerbie disasterinvestigation, as one of particular
importance and complexity, proceeded subject to the general directionand
overallcontrol of the Lord Advocate.
2.34 The wide-ranging crirninalinvestigation spreadfar bey ond Lockerbie,
and indeed far beyond Scotland and the rest of the UnitedKingdom, to reach
70 countries. Judicial,prosecuting and investigating agencies from many
countries CO-operatedin an investigation which was of an unprecedented
scale.In the course of it over 4,000 items were retained for-examination or as
evidence. Investigative decisions were takenby the Chief Constable, the
ProcwratoF riscal andtheLordAdvocate,acting in the exercise of their duties
independently of any Government or other outside pressure,and subject to no
constraints other than cornpliancewith properlegalprocedures.
2.35 The conclusions of the investigation are contained in the annexed
Statement of Facts, which was before thisCourt during the hearing in Marçh
1992of the requestbyLibyaforthe indication of provisional rï~easureç.~T ~he
United Kingdom cannot properly make public furtherdetails of the evidence
while crirninal proceedings are pending, as to do so might prejudicethe fair
trialof the case before a judge and jury, which is the proper forum before
which crirninal evidence should be presented and tested. Because of the
prohibitionuntheCrownpubIishingevidence while a crirninaltrial is pending,
the then Lord Advocate, when announcing the charges against the two
accused on 14Novernber 1991,said thathe:
"cannot and wilI not comment on the evidence on
which these charges are ba~ed."~*
66 Such a publicinquiwas heldalDumfriesbetween 1October 1990and 13Febmary 1991,
presideoverbya seniorJudge,SheriffPrincipalJohnMoQC, who heardevidencoves55
daysandissuedaDeterminationof his finding18March1991.Theinquiry wasconcerned
withthecircumstanceofthedeathsannotwithcriminalresponsibiforthedeaths.
67 Annex 16(UnitedKingdom DocumentNo.2inthehearingofMach 1992).
68 Sl23307, at p.6 (Ann6).Seealso thstatementby theParliamentarUnder-Secretaryof
Statefor Scotland,LoJamesDouglas-Hamilton,HouseofCommonsDebates,13December
1994col4548 (Annex79) andtheSurnmarof ScottishCriminalProcedinMurderCases,
paragraph19(Annex18).Surnrnaryof thefactsdisclosedbythe criminalinvestigation
2.36 In the initial stages the investigators had no specific reason to
suppose Libyan cornplicity in the crime, nor hadthey any reason to suspect
that the suitcase which had contained the improvised explosive devi~e~~ had
been loaded onto an aireraft in Malta.Flight PA103 had cornrnenced at
Frankfurt am Main in Germany on a Boeing 727 passenger aircraft, from
which 49 passengers had transferred to the Boeing 747 aircraft at London
Heathrow airport, joining a further 194 passengers there. Baggage hadbeen
transferred from the Boeing 727 aircraft to the Boeing 747 nircraft at London
Heathrow. Other baggage had been transferred tothe Boeing 727 aircraft at
Frankfurt am Main and further baggage was transferred, in due course, from
other aircraftto the Boeing 747 aircraft at London Heathrow. The initial
investigation was naturally directed to the possibility of the baggage
containing the improvised explosive device having been loaded at London
Heathrow or Frankfurt am Main airposts. Careful scientific investigation
established the identity of the suitcase which had contained the improvised
explosive device and the location of the suitcase within a particular baggage
container. The location of the suitcase rneant that it could not have been
loaded onto an aircraft for the first time at London Heathrow or transferred
ont0 PA103 from another flight atthat airport, but could only have been
transferred directly from the Boeing 727 aircraft which came from Frankfurt
am Mainon the first leg of flight ~~103.~~
2.37 Careful investigation was made into the possibilities of the suitcase
having been loaded onto an aircraft for the first tiat Frankfurt amMain, or
having been transferred onto the Boeing 727 aircraft there from another
aircraft. Extensive investigation was carried out in the Federal Republicof
Germany and, in consequence of that investigation, in a number of other
countries.
2.38 Meanwhile, scientific examination of explosive-darni atgeséwas
successful in establishing that a number of items of clothing had been in the
suitçase containing the improvised explosive device. Those items and other
damaged contents of the suitcase were traced back to a particular shop in
-- --
69
The terrn "irnprovjsedexplosive devicusedto describa bomb whjch has not been
70 rnanufacturedor assemcomrnerçialor byanyestabIisordnancemanufacturer.
Statementof Facts,paragr3(Annex 16).Malta.71Investigation of thernovementof flights and baggage at Frankfurt am
Main indicated that a single piece of luggage had arrived ai that airporton
21 December 1988 from Air Malta Flight KM 180 and was thereafter
transferred to the Boeing 727 Airçtaft of flight PA103, where it appears to
have been carried as unaccompanied luggage. While no direct docurnentary
evidence has been produced from Malta to show that the suitcasewas loaded
there,72the evidence avaiIablefrom Frankfurt am Main, and the circumstances
as deçcribed in the Staternent of Facts, demonstrate that the suitcase
containing the improvised explosive device was loaded in Malta.73
2.39 It was the identification of the timing device which detonated the
improvised explosive device as having been one of a small number
manufactured and suppliedby the Swiss Company,MEBQ AG, for and to the
osder of Libyan intelligence officials whlch led to the investigators
establishing evidence of Libyan complicity inthe crime.74
2.40 The Statement of Facts describes the alleged invalvernent of
Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah with the
ExternalSecurity and Intelligence Organisation of Libya (ES0),75 and the
aIleged involvement of other ES0 officials (Izz Al Din Al Hinçhiri,Said
Mohammed Abdallah Rashid,Abdallah Senussi, Badri Hasan and Nasser Ali
Ashur) in procuring and testing timers rnanufactured by MEBO AG.76The
ES0 had at that time responsibility for açquiring intelligence concesning
Libyan narionalswhowere perceived to threatenthe regime, and also for the
conduct of terrorist operations. In October 1992the ES0 was incorporated
into the Justice and Public Security Se~retariat.~~
2.41 AbdaIlah Senussi was a member of the six-man cornmittee which
controlled the ES0 and was head of theInformationDirectorate ofthe ES0 in
1985, holding the titles of Director of Information and Head of Special
Operations,He had overall control of the Centre foStrategicStudies of which
Abdelbaset Ali Mohmed Al Megrahi was appointedDirector on 1 January
1987, and had control over or access to training camps. In October 1988
71 StatementofFacts,paragraE(Annex16).
72 LibyanMernoriaparagrap2.13.
73 Sralementof Facts,especiaHyparag4,10, 114and 21(Annex 16).
74 Ibid.especiallyparagr5pIo9,12to 1(Annex16).
75 Ibid .,ragrap8and IO(Annex 16);salsofootnote43above.
76 Ibid.,paragras,6and 12to15(Annex16).
77 Annex60.Senussiwas appointed Director of Operations Administration and remained ço
as at 21 Decernber1988.
2.42 Hinshiri and Rashid were in 1985 members of the controlling
cornmitteeof the ESO,Hinshiri was headof CentralSecuaityAdministration in
the Directorate of General Security. In early 1986 an Operations
Administration was established withinthe ES0 with Rashid as its head. In
January 1987 Rashid was transferred to an electronics Company.In 1988
Hinshiri was transferred tothe General People's Cornmittee for Justice, In
March 1989 he was appointed Minister forJustice.Between October 1991
and November 1992he was Minister for Communications and Transport,and
resumed that post in January 1994.
CriminalProceedings in Scotland
2.43 Underthe law of Scotland, no person may be convicted of acrime on
the evidence of only one witness oron evidence from only one source. The
essential facts in any criminalcase must be proved by the prosecutor beyond
reaçonable doubt by corroborated evidence. The Lord Advocate was, by 13
Novembes 1991, satisfied on the basis of the reports otheProcurator Fiscal
and the Chief Constable that these wasa casewhich could be establiçhed by
corroborated evidence against two Libyans, AbdeIbaset Ali Mohmed Al
Megrahi and AI Amin KhalifaFhimah, acting infurtherance of the purposes of
theLibyan intelligence services,aspecifiedinthe Staternent of Facts.
2.44 The Lord Advocate came tu his conclusion that therwas sufficient
evidence only Onthe basis of a comprehensive investigation, independent of
any Governmentinfluence,and on the basis of available evidence. It was only
in consequence of themeticulous scientific examinatioof items of wreckage
and the contents of the aiscraft, themselves recovered by extensive and
painstaking searches over an enormous area,that the lines of investigation
opened up. The Lord Advocate has seen no evidence whieh would warrant
reconsideration of the charges which have been made, and remains of the
opinion thatthe evidence should properlybe testedbefore the criminalcourts
havingjurisdlctionin Scotland or the UniteStates.
2.45 The possible involvernent of nationalof a number of countries was
very closely investigated. Despite the unprecedented scale of theinvestigation, the available evidence does not supportcharges against the
nationals of any country besides Libya.
2.46 It was known thatthe two persons charged were not to be found in
United Kingdomjurisdiction, but they werebelleved to be resident in Libya.
Acçordingly, the Lord Advocateinstructed the Procurator Fiscal to apply to
the Sheriffat Dumfries, being the ludge having jurisdiction in such matters, to
granta warrant for the arrest of Abdelbaset Ali Mohmed Al Megrahi and Al
Amin Khalifa Fhimah on a charge of conspiracy, or alternatively murder, or
alternatively contravention of Section 2(1) and (5) of the Aviation Security
Act 1982,78 and thewarrant was grantedon 13November 1991 .79A statement
of the legal basis for theseoffences is anne~ed.~~
2.47 On 14 November 1991, the Lord Advocate announced publicly that
the warrant had been grantedand made the ternis of the charges kn~wn.~
Sirnultaneously, the Acting Attorney General of of the United States of
America announced the issue of warrants there against the sametwo accused,
folIowingthe handing down of anindictment by a GrandJury.
2.48 On the same day, copies of the Scottish charges and warrant, together
with the Statement of Facts, were supplied tciLibya through itsPermanent
Representative to the United Nations in New York, and through the Italiarr
Government, that Governmentbeing the one protecting British interests in the
absence of diplornaticrelations between the United Kingdom and Libya. The
covering note from the Foreign Secretary ïo the TtalianArnbassador saidthat
the handing over of the documents constituted the demand to Libya for
çurrenderofthe two accused. That demand was.reiteratedin the House of
Commonsby the Foreign Secretarythe same
2.49 The evidence obtained by the criminal investigation implicating
Libyan officials would have made a trialin Cibya out of the question even if
Libya were an alternative jurisdiction to S~otland.~~
Annex 19,atparagrap4.
79 Annex 17.
80 Annex 19.
81
Annex6, atpage3.
83 Ibid .1page7.
systerninviewofathe connectionsbetween members of that systernandLibyan intelligence
services(paragrap2.40 t2.42above)andCibya'pastrecordofallowing officials involved2.50 Libyahas been givenassurancesabout the fair trial of the accused in
Scotland,most particularlyin September 1993when Libya raised a numberof
questions regarding criminal proceduse in Scotland and sought assurances
that the accused would receive a fairtrialThose questionswere answered and
the assurances were given. Libya has confirmed that the assurances were
satisfactory.84
2.51 The Libyan Memorials5 cornplains that the United Kingdom has
always refusedto provide Libya with the slightest proof (la moindre preuve)
of the allegationsagainst thetwo accused. The Statement of Facts is howevet
a detailedsummary of the case-against the IWO accused andhaç been with
Libya since 14November 1991.
Diplornaticaction to obtainsurrenderof the accused
2.52 On 14 November 1991,the day the United Kingdommadeits dernand
that Libya surrender the two acc~sed,~~ the Permanent Mission of Libya to
the United Nations inNew York issued a press release unequivocally denying
any and al1association with and knowledge of theLockerbie incident.&'This
denial was repeated by Libya in a letter to thePresident of the Security
Council of 15 November 1991, which also criticisethe United Kingdom for
not contactingthe Libyanjudiciary to çeekclarification and verificationof the
accu~ations.~~ The denial was reiterated in a letterto the Secreta-General of
the United Nations of 17Novernber1991.89 En a letter of 20 November 1991 to
the Secretasy-Generalof the United Nations, the Libyan Foreign Minister said
that Libya had appointed a judge io inquire into theaccu~ations.~~
2.53 No satisfactory response having been received from Libya to the
demand for surrender of the two accused, on 27 November 1991 the
Governmentof the United Kingdom issued jointlywith the Government of the
United Statesa declxation stating that the Govemmentof Libya rnust:
interroritogo unpunishe(paragraps.15to2.27 above).
84 Se, paragraps.89 and 2.90below.
85 LibyanMernorialaragra2.13.
86 Paragrap2.48above.
87 LibyanAnnex12.
88 SI23221,(Annex43).
89 S123226,(Anne44).
90 S/23416(Annex47). "- surrender fortrialal1thosechargedwith thecrime;
and acçept responsibility for the actions of Libyan
oficials;
- disclose al1it knows of the crime, including the
nmes of al1thoseresponsible, andallowfor full access
tci al1 witnesses, documents and other material
evidence,includingal1therernainingtirners;
- pay appropriate compensation. "gl
The statement expreçsed the expectation that Libya would comply promptly
and in full. In response Libya reieased a press statement describing thejoint
statement as "yetanotherorchestrated crusade against Libya" and suggesting
thatthe facts be studiedby an impartial cornmitteeor by thisCourt.g2
2.54 As regards the demand for compensation, in a letterof 14 May 1992
to the Secretary-General of the United Nations, Libya undertook to pay
appropriate compensation if its responsibility weree~tablished.~~
2.55 With regard to the question of how the demands were compatible
with the presumption of innocence, the United Kingdom Permanent
Representative said in the Security CounciI, following the adoption of
resolution 731 on 21 January 1992,that:
"We are not assertingthe guilt of these men before
they are tried, but we do say that there is serious
evidence against them which they must face in
court.
At the oral hearing on the Libyan request for the indication of provisional
rneasureson 26 March 1992,Counsel for the UnitedKingdoms said:
"1pauseto observe thatit wns a recurring themeof the
speeches made on behalf of the Applicant thiç
morning that by asking for the accused tobe handed
over the United Kingdom was somehow violating the
principle that their innocence was to be presumed
unfil they hadbeen found guilty. It iç certainly true
that rnycolleague the Lord Advocate has sufficient
5123308(Annex7).
92 LibyanDocument 42.
94 SE3918 (Annex56).
95 SPV.3033 atp103,(Annex10).
Mr Rodger,theSolicitor-GeneralforScotnowtheLordAdvocate. evidence tu justifyccfirgingthese two men but ifthey
are handed over for trial in SEotlandtheir guiEt or
Innocence will be determined not by the Lord
Advocate, nor by the Government of the United
Kingdom, but by a jury of 15 ordinary men and
women .1'96
2.56 On 20 December1991France issued a communiquéwhich said that
the judicial inquiry into the attack on UTA fllght 772 on 19 September 1989
causing 171deaths had irnplicatedseveral Libyan nationals.The communiqué
caJled on Libya to produce al1material evidence in its possession;to facilitate
access to al1documents that might be useful in inquiring into theattack; and
to authorisethe responsible Libyan officialsth respondtoany request made
by the French examining rnagi~trate.~~
2.57 On 27 Novernber 1991 the threeGovernments also issved jointly a
declaration in which theyrequired Libya prornptly tocommit itself to ceaseal1
formçof terrorist activitie~.~~
2.58 During the two months following the original demand of
14 November 1991 for surrender of the two accused, no effective replywas
received from Libya. Libya had sent four letterto the Secretary-General of
the United Nations.99 These did not acknowledge that Libya had been
involvedin terrorism, noragreeto make the two accused available for trial,nor
agree to meet the other specific demands in the joint deelaration of
27 Novernber 1991.
2.59 The reaction of Libya to the results of the criminal investigation, and
to the dernands for surrender of the two accused, was seen by the United
Kingdorn in the context of Libya's record of involvement in terrorism.
Therefore, when Libya failed to respond appropriately to the demands made
upon it by the three Governments, the United Kingdom thought itright to
take the matter to the United Nations, particularlyin view of the frequently
expressed concern of the United Nations aboui terrorism and its effecton
international peace and security. The United Kingdorn, asthe Statein whose
territory the crime had beencommitted and whichhad cmied out the criminal
96 CR92M,p21.
97 923306 (Annex5).
98 S/23309 (Anne8).
99 923226 (Annex44);Si23346(Anne46); SE341(Annex47)and5123436(Annex48).2.63 On 8 January, in a letter to the Secretary-General of the United
Nations, the Libyan ~orei& Minister denied that the Security Council had
cornpetence under the Charter of theUnited Nations to deal with the matter,
and invoked Article 33 of the Charter.Io4
2.64 On 10 January,a draft resolution supportingthe demandsmade of
Libya by the three Governments, and prepared after discussion between the
five permanent members of theSecurityCouncil, was circulated informally In
New York toal1members ofthe Council.
2.65 The next day, 11January,Libyasent a letter to the International Civil
Aviation Organi~ation'~~mentioning the Montreal Convention for the first
time. An earlier Libyan communication toICA0 of 30 December 1991 had
made no mention of the Conventi~n.~~~
2.66 On 14 January, a revision of the draft resolution was circulated
informallyto al1membersof the SecurityCouncil.
2.67 On 18 January, while the draft resolution was still under
consideration, and shortly before the debate on it in the Security CounciZ,
Libya sent the United Kingdoma letterrequeçtingthata dispute be submitted
for arbitration under Articl14(1$ of the Montreal Convention.'O7
The UnitedNations response
2.68 Three days later, on 21 January 7992, the Security Council
unanimously adopted resolution 73 1'O8 in which itreaffirrned its earlier
resolutionson terroristthreatsto international aviation, and expresseitçdeep
concern:
"over the resultç of investigations, which irnplicate
officials ofthe Libyan Government and which are
contained in SecurityCouncildocuments",
104 SI23396(Annex46).
105 LibyanMemorial,paragraph2.LibyanAnnex75).
lo6 LibyanAnnex56.
107 SI23441(Annex9).
108 Annex2.and its determination to elirninate international terrorism. The operative
paragraphs condemned the destruction of PA 103and UTA 772, and strongly
deplored the fact that the Libyan Government had not yet responded
effectively to the requests of the three Governments in connection with the
legal procedures related to the attacks carried out against the two flights.Iog
The Security Council urged the Libyan Government to provide "a fulland
effective response" to the requests of the three Governments "so as to
contribute to the dimination of international terrorism". The Council also
requested the Secretary-General to seek the cooperation of the Libyan
Government to provide a full and effective response to those requests.
2.69 Speakingin the Security Council on 21 January 1992,following the
adoption of the resolution, the UnitedKingdom PermanentRepresentative, Sir
David Hannay, ernphasized that it was the clear indication of Eibyan
Government involvement in the crime which led the British Government,
together with those of France and the United States, to bring before the
CouncilLibya'sfailure to comply with the requests that the accused be made
available for trial in Scotland or in the United States and to cooperate witthe
Frenchjudicial authorities. l0It was this exceptional circurnstance of alleged
Libyan Government involvement which made it particularlyappropriate for
the Counciltuadopt a resolution urging Libya to cornplywith those requests.
2.70 The Libyan letter of 18 January 1992, containing a request for
arbitration under Article 14 of the Montreal Convention," l had been
circulated as a Security Council document and drawn to the attention of the
Security Council by the Libyan Permanent Representative. Sir David Hannay
said thatthisletter:
"...is not relevantto the issue before the Council. The
Council isnot, in the words of article 14 of the
Montseal Convention, dealing with a dispute between
two or more Contracting Parties concerning the
interpretation or application of the Montreal
Convention. What we are concerned with here is the
properreaction of the international community to the
situation arising from Libya's failure, thus far, to
109 A referenctothedernandof thethree Governmentsreferto iparagraphs2.52.56and
2.57above.
110 SPY.3033 ppI02-106 (Annex10).
111 Paragrap2.67above. respond effectively to the most serious accusations of
Stateinvolvementin actsof temrisrn."l l2
2.71. Speakingafterthe adoption of the resolution, the Representative of
the Russian Federation accepted explicitly that the demand for surrender of
thetwo accused for trial in Scotland or the United States was reasonable:
"Et is important, in accordance with universally
acknowledged legal norrns, that the judicial organçof
chose çountries to which the downed aircraft
belonged and over whose territory the crime was
comrnitted should be allowed to deal with this
2.72 The need fortheSecurityCouncil to takeaction todeal with a threat
ta international peace and security was recognised. The Representative of
Hungarysaid:
"The attacks on Pan Am and UTAaircraftare actsthat
obviously threateninternational peace and security.
As a result, we feel that it is entirely justified and
highly appropriate forthe SecurityCouncil, the United
Nationsbody entrusted withthe prirnary responsibility
for the maintenance of international peace and
security, toeonsider these terroristmanifestations.
Hungary believes that the question of eradicating
international terrorism has a legitimate place among
the concerns of the Security Council, which, on the
basis of its mandate under the Charter, is abliged to
follow closely any event that might endanger
international peace and security. In this connection
the CounciI is in duty bound to exercise vigilanceand
tu remain seized of specific acts of tersoriçm that
threaten or destroy innocent lives. For verbal
expressionsof faith are no longer enough; the tirnehas
corne for concrete actions."f14
The Representativeof Austria said:
112 Annex 10atp.104.
l3 Ibid.atp.88.
l4 Ibid.atpp.1-2.to provide a full and effective response, and that meanwhile the Security
Council wouldremain seized of thematter.
2.77 The three Governmentsaccordingly began discussions with other
rnernbersof the Security Council on 9 March 1992about measuresdirected to
ensuring cornpliance by Libya with resolution 731. On 17 March1992 the
three Governments cirçulatedinformally to theotherrnernbers of the Security
Council a draft of whatwas eventually to becorne resolution 748.
2.78 While the Courtheld oral hearings on Libya'srequest on 26, 27 and
28 March 1992, consultations among rnernbers of the Security Council
regarding the draftresolution continued. Theyresulted in theadoption by the
Security Council on 31 Mârch 1992of resulution 748'19by 10votes (Austria,
Belgium, Ecuador, France, Hungary, Sapan, Russian Federation, United
Kingdom, United States,Venezuela) to none. Five rnernbers abstained (Cape
Verde, China,India, Morocco,Zimbabwe).
2.79 In the preamble to the resolutionthe SecurityCouncil expressed its
deep concern thntLibya had not provideda full andeffective response to the
requests in resolution 731, and its convictiothatthe suppression of acts of
international terrorism, including those in which States are directly or
indirectly Involved, is essential for the maintenance of international peace and
security.Thepreamblerecalledthe staternent issued on 31 January 1992, on
the occasion of the meeting of the SecurityCouncil at the level of Heads of
Stateand G~vernrnent.~~ The preamblealso re-affirmedthat, in accordance
with the principle in Article 2, paragraph 4, of the Charter of the United
Nations,everyStatehasaduty torefrain from organising,instigating, assisting
or participating in terroriactsin another State or acquiescing in organised
activitieswithin its territordirected towards the commission of such acts,
when suchacts involve a threator use of force.
2.80 The preamble thenmade aforma1determinationthat the failureby
Libya to demonstrate by concrete action its renunciation of terrorism,and in
particular its continuefailureaorespond fulIyand effeçtively to thereqvests
in resolution731,çonstituted a threatto international peacand security. The
l9 Annex3.
20 Paragrap2.above.final paragraph of the preamble stated that the Council was acting under
ChapterVI1of the Charter of the United Nations.
2.81 Operative paragraph 1of theresolution decided that
"the Libyan Government must now çomply without
any further delay with paragraph 3 of resolution 731
(1992) regarding the requests in documents 923306,
Si23308and S123309".
These documents contained,respectively, theFrench communiqué callingon
Libya to cooperate with French justicewithregard to theattackon UTA flight
772; the joint declaration by the United Kingdom and the United States
demanding the surrender of the two accused of the sabotage of PA 103; and
the tripartitedeclaration calling on Libya to prove by concrete actions its
renunciation of terrorism.l l In operativeparagraph 2 the Council decided
that:
"the Libyan Government must commit itself
definitively tcease al1foms of terrorist action and al1
assistance to terrorist groups, and that it must
promptly , by concrete actions, demonstrate its
renunciationof terrorism."
2.82 The resolution thenprescribed a number of measures to be appliedby
al1Members of the United Nations tu Libya untilthe Security CounciIdecides
that Libya has complied with operative paragraphs 1 and2. The measureç
included a prohibition on fiights to and fromLibya; prohibitions on the export
of arms to Libya; reductions in the number and level of staffat Libyan
diplornaticmissions and conçularposts;anddenial of entry to, or expulsionof,
Libyan nationalswho have been denied entry, or expelledfrom,other States
becauseof their involvernent in terrorist activists.
2-83 Speaking after adoption of the resolution the United Kingdom
PermanentRepresentative said:
"One of Libya'ssuggestions in recent days has been
that cornpliance with the requests in resolution731
(1992) should await the outcome of the proceedings
instituted by Libya in the International Court of
Justice. As the United KingdomRepresentative stated
l2 Annexes5,7 an8andparagraphs.53,2.56 and2.57above.
34 to the Court,webelieve that Libya'sapplication, whlle
purporting to enjoin action by the United Kingdom
againçt Libya,iç in fact directeat intedering with the
exercise by the Security Council of its rightful
functions and prerogatives under the United Nations
Charter. We consider the Security Council is fully
entitledto concern itself with issuesof terrorism and
the rneasures needed to address acts of terrorism in
any particularcase or to prevent it in the future. Any
other view would undermine the prirnary
responsibility for the maintenance of international
peace and security conferred on the Council by
Article 24 of the Charter. It would thus seriously
weaken the Council's ability to maintain peace and
security in future circumstances which are unfoieseen
and unforeseeable." 122
2.84 On 21 April 1992 France informed the Secretary-General of the
United Nations that,accordingto the French judge investigating the sabotage
of UTA flight 772, the Libyan authorities were not cooperating with him, as
required by resolutions 731 and 748.123 The Libyan response was
uninf~miativel~~. On 2 Decernbes1993,the French Minister of Foreign Affairs
wrote to the Libyan Foreign Minister repeating the hope that Libya would
"'giveits entire cooperationto theFrench Judiciary in
fuIl respect of the relevant Security Council
resolutions" 125
2.85 In the 19 rnonths between the adoption of resolution 748 on
31 March 1992, and the adoptionof resolution 883 on 11 November 1993,
Libya sent numerous communications to the United Nations in which it
cEaimedtharit was complying with resolution 731, and that resolution 748
was therefore unjustified.126
2.86 Even though Libya maintained that its law prevented the two
accused being e~tradited,'~c ~ertain of the Libyan communications suggested
ISS SPV. 3063 arpp.6gand69(Annex Il).
Iz3 SI23828(Annex53).
'24 Si23891(Annex54).
n2 SS/268 (3nnex73).
126 See,eg,SR4SU9(Annex58);SI24428(Annex59);$124961 and S12496llAdd (.lnex63);
SI26139(Amex 6464);126313(Annex64);SI26500(Annex67);SI26523(Annex69)Si26629
(Annex7 ),
LibyanMemoria plaragrap2.7.TheUnitedfingdom haçnever soughtextraditionotwohe
accusedundetheMontreaConvention, utsurrenundergeneraiinternationallaw.alternativeways in which the two accused could be tried outside Libya,
psovidedthe trial was notheldin ScotlandortheUnitedStates-128
2.87 On 30 June1992Libya said itwouldnotobjeçtto theconduct of the
investigationand the triaithrougha seven-membercommitteeestablishedby
the Leagueof ArabStatesor throughthe UnitedNationsbefore a just and
impartialcourt to be agreedon.n9 On 8 December1992 Libya repeatedthis
proposal, adding that it had no objection to the two accused appearing
voluntarily before aBritishorUS court.130
2;88 On 17 August 1993, Libya acknowledged that itwas necessary for
the two accused to be broughtto trialandthat itwas prepared to discussthe
venuewherirthetrialmust be heldif itwere tobejustandfair.I3'
2.89 On 14 September1993, theSecretary-Generao l.f the UnitedNations
received a list of detailed questions raised by the Libyan Foreign Minister
about the procedurewhich would be followedin relation to a criminal trialof
the two accused in Scotlandor the United States.132 The Secretary-General
replied with answerç to the questions based on material provided by the
UnitedKingdomandtheUnitedStates.133
2.90 On 29 September1993 and 1 October 1993 Libya said that itwas
satisfiedby the replies to the questionsand was no longer opposed to the
accused going on trial and was "encouraging the two suspects to appear
Iz8 Libyahas not beenconsisteni in thisreAttheord hearingon theCibyanrequestforan
indicationof provisimeasures,thAgentforLibya. MiAl Fatatos,ated:
"TheLibyanGovemmenthasno!ruledoutthepossibilityof arnendingits natiawain
orderto remove the interna1obstacle createdby its prohibitionof extraditing its
nationals."(CR92p.20 (origina;p14and15(Translationprovidedby theRegistry)).
Furthemore,Libya,inaletterttheUnitedNationsSecretary-Generaolf 14May 1992,said
that:
"thecompetentauthoritinLibyahave notrejectedtheprincipleof surrendthetwo
individualsundersuspici(Si23918,Annex 56).
YetIna letteof1I September1993 totheSecretary-Genera, ibystatedthatit refusedto
çompelthe IWOaccused to "extraditethemçelvand thatintheabsenceof an extradition
agreementLibyawas unabletocompeIthemto do so (Sl26500,Annex67, p.9, paragrap8ç
and9).
129 Si24209(Annex58).
130 5124961(Annex63).
512613 (Annex65).
32 S126500(Annex67).
33
The Secretary-Gencdlçreplyhnotbeenpublished.MaterialprovidedtotheSecretary-General
bytheUnitedKingdominSeptember1993is containedinAnnex68.before the Scottish courts".134 This was repeated in further Libyan
communications of 26 October 1993'35and 27 March 1995.236
2.91 Libya's assertions that it was complying with resolution 731'37were
baseless. None of the Libyan proposais for alternative trials met the
requirements of the Security CounciI resolutions. Znparticular, Libya did not
agree to surrenderthe two accused for trial in Scotlandor the United States.
2.92 On 27 November 1992, one year after France, the United Kingdom
and the United States had presented their original demands to Libya, their
three Governments issued a joint declaration and circulated it as a United
Nations document. The deelaration included the followingpassage:
"Onthisanniversary, the thee States stronglyreaffirrn
their single objective with respect to Libya: prompt,
çornplete and unequivocal cornpliance with the terrns
of United Nations Security Council resolutions 731
and 748.Justice for al1441 victirns ofthe Pan Am 103
and UTA 772 bombings, and international peace and
security, which is threatened by Libya's support of
temrism, requireno less.
Accordingly, the United States, France and the United
Kingdom are determined to intensify theirefforts, in
close cooperation with the United Nations Secretary-
General, to makethe sanctionsadopted by the United
Nations Security Council in March yet moreeffective.
They cal1 upon the Government of Libya toend its
defiance of the international community. "138
2.93 On 13 August 1993 the three Governments made a further joint
declaration,which wascirculated as a UN document. This pointed to the fact
that Libya had failed to comply with the demandsin resolution 731 and 748,
even rhough by then some 16 months had passed since the Security Council
had imposed sanctions on it.139
2.94 That Libya had not complied with the requirements laidupon it by
the resolutions has been recognised by the Security Council. Resolution 748
34 S/26523 (Annex69).
135 S125629(Annex71).
36 S/1995/226(Annex82).
137 Paragrap2-85above.
39 Ai47175 a8dSi24913(Annex62).
Al481314andSI26304(Annex 65).requires the sanctions against Libya to be reviewed every 120 days. Aftet
each of the(so farnine) reviewsthe President hasissued a statement on behalf
of the members of the Council that there was no agreement that the necessary
conditions existedfor modification of the sanctions140
2.95 On 11 November 1993 resolution 883 was adopted by Il votes
(Brazil, Cape Verde, France, Hungary, Japan, New Zealand, Russian
Federation, Spain, United Kingdom,United States, Venezuela) to none. Four
members abstained (China, Djibouti, Morocco, Pakistan). 41 The resolution
extended the seope of the sanctions on Libya, including a partialfreeze on
Libyan publicassets, and tightened existing measures.
2.96 The preamble to the resolution took note of letters to the Secretary-
General of 29 September and 1 October 1993 from the Libyan Foreign
Mini~ter,'~~ and his speech in the general debate ar the 48th Session of the
General A~sernbly~~ ~n which he had stated Libya's intention to "encourage"
thosecharged with the sabotageof Pan Am 103to appearfor trial in Scotland,
and its willingness tocooperate with the competent French authorities in the
case of the sabotage of UTA772.
2.97 In view of these statements, operativeparagraph16 of the resolution
expressesthe Security Council'sreadinessto review thesanctions with a view
to suspending them immediately if the Secretary-Generalreports to the
Council that
"the Libyan Government has ensured the appearance
of those charged with the bombing of PanAm 103 for
trial beforetheappropriate UnitedKingdom or United
States court"
withaview to liftinthem immediately
"when Libya complies fully with the requests and
decisionsin sesolutions 731 (1992)and 748 (1992)".
140 The most recent staterwasmade on30 March 1995(SJPRST/1995 114ex 83)The
other statement- 924424, S/24925,S125554, 926303, Si26861, SIPRSTII994118,
SIPRST/1994/41S/PRST/1994 -a6ein thesamtems andhavenot beenannexed.
141 Annex4.
142 5126523(Annex69).
143 Ai48PY20 (Annex70).No SUC~ report has been reçeived from the Secretary-General. The sanctions
remaininforce.
2.98 After adoption of reçolution 883,thePermanent Representativeof the
United Kingdom said:
"Theobjectives of the sponsors remain strictlylimited.
They areto secure justicefor the victims of Pan Am
103 and UTA 772 and to ensure thar such atrocities
do not happen again. Central to these objectives is
thatthe two men accused of the Lockerbie bombing
should stand trial in Scotland otheUnited States and
thatthe demands of French justice regarding theUTTA
casebe met.
My Prime Minister and Foreign Secretary have
repeatedly given assurances that if thtwo Lockerbie
suspects went toScotland they would receive a fair
trial, witthefull protection afforded by Scottish legal
procedures. 1 now reiterate those assurances. My
Ministers have alsomade itçlearthat we are pursuing
no hidden agenda. Our agenda is set out inSecurity
Council resolutions 731 (19921, 748 (1992) and the
present resolution- no more and no less."144
2.99 A statement issued by the Libyan Foreign Ministry on the day
resoiution 883 was adopted expressed its "displeasure" that the Security
Council had
"onceagain yielded to the pressures and manoeuvres
of theUnited Statesof America, the United Kingdom
and France"
andreferred againto the many initiatives and proposais made by Libya, and
repeated that Libya had no objection tothe two accused appearing before a
Scottishcourt and was prepased tourge themto do ~0.l~~
2.100 On 8 Deceniber 1993, Libya referred toa proposa1by Tunisia, made
afterconsultationwith it, that the two accused be interrogated and tried in
France; and referred againto an earlier proposalfora"Scottishtrial" in third
country or atthe seatof the International Couriof Justicat The Hague.146
44 SIPV13312p.45(Annex12).
145 SI26760(Annex72).
46 SI26859(Annex74).2.101 On 26 3uly 1994 Libya repeated this latter proposal, and an
alternative:if the accused were not triedin Libya they could be tried in
another Arab count~y~~~.
2.102 Addressing the General Assernbly of the United Nations on 7 October
1994, the Libyan Foreign Minister referred to earlier Libyan proposals, and
criticised France, the United Kingdom and the United States for (ashe put it)
pushing mandatory resolutions arbitarily through the Security Council even
though Libya had not threarened anybody and had never acted in a manner
thatjeopardised international peace and secarrityI4&.
2.103 On 5 August 1994, over two and a halfyears after the adoption of
resolutions 731 and 748, the Governrnents of France, the United Kingdom and
the United Statesissued another declaration calling once againon Libya to
fulfil its 0b1igations.l~~On 31 March 1995 the Governments issued a further
declaration.asfollows:
"France, the United Kingdom of Great Britain and
Northern Ireland and the United States of America
reaffirm their joint declaration of 5 August 1994
(SI1994f938)and their cornmondetemination to bring
tojustice thoseresponsible forthe bombings of flights
Pan Am 103and UTA772.
The three States regret that the Libyan Arab
Jamahiriyahas still notsatisfiedthe French judicial
authorities with respectcthe bombing of UTA 772.
They are committed to full and comprehensive
enforcement of the sanctions imposed onLibya.
They also reaffirm that the Libyan Arab Jamahiriya
must commit itself defînitivelyto ceasinga11fonns of
terrorist activity and all assistanto terrorisgroups
and demonstrate, by concrete actions, its renunciation
ofterrorism.
They reiteratethat, in accordance with the Security
Council resolutions, the Government of Libya must
ensure the appearance of the two Lockerbie suspects
in the United Kingdom or United States, wherethey
will receivea faistrial. ThethreeStatesreaffirm that
alternative proposals for trial in The Hague or
47 S/1994/90(Annex75).
'48 A1491PV23p, p.10-(Annex78).
49 S/1994/938(Annex77). elsewhere do not meet the Security Council
requirementsand are therefore unacceptable." lS0
III Conctusions
2.104 From the facts recorded in this Part, and tcourseof the proceedings
recoirntedin Part 1,one can draw the following conclusions:
-
The Security Council and General Asçembly of the United
Nations have for many years been concerned at the effect of
terrorism on the maintenance of international peace and
security, and resolutions 731, 748 and 883 are part of the
SecurityCauncil'saction againstinternational terrorism.
Libya bas alongrecord of involvementin terrorisrn.
- The charges of rnurder laidagainst two Libyan nationals were
the result of a lengthy and rneticulous independent criminal
investigation, which followed the normal procedures under
Sçottish law for the investigationof murder.
- The investigation produced evidence chat the two accused
caused the planting of an explosive device on flight PA103
and that they were officers of, and were acting on behalf, of
the Libyan intelligence services.
- Despite a detailed Statementof Facks being supplied to Libya
when the original demand for surrender of the two accused
was made, at no tirnehas Libyacooperated in any way with
the Scottish prosecutingauthoritieç,
- Libya invoked the Montreal Convention only in an attempt to
prevent adoption of resolution 731.
- Similarly,Libya made its Application to this Court, and its
requestfor an indication of provisionalmeasures, in an attempt
to restrain the United Kingdom and the United States from seeking a mandatoi-yresolution iq support of the demands of
the three Governments. l
- Despite the requirements of the SecurityCouncil in resolutions
748 and 883,Libya has given no indication that it is willing to
complywith them,and because of thisthe sanctions against it
remainin force following ninereviews. ,
- Libya has publicly expressed its satisfaction with Scuttish
criminal procedure.
-
Libya has been inconsistent in arguing that it isdebarred by its
law from extraditing its nationals, yet saying that it has not
ruled out changing its law or surrendering the two accused,
and wouldagree to the two accusèd being tried outside Libya,
but not in Scotland or the United States. At various times
Libyahas suggested:
- trialbefore a "Scottish" cou& at The Hague orin another
third country; ,
- trialbefore a specialiy consiituted international body:
I
- trial through the auspices of; the ArabLeague;
- trial at a placeto be agreed;
I
- trial ina thirdcountry;
- trialin an Arabcountry; I
I
1
- trialinFrance.
- Libya continues to defy the iniernational cornmunity, as
represented by the Security Council, and persists with the
presentproceedingsin orderto divert attention from its failure
to cornply with the mandatory resolutions of the Security
Council. 1
IIV The Submissionof FactualMaterialto theCourt
2.105 As has been shown, the factualcontext of this case is highly cornplex.
It follows £rom the largest crirninal investigation ever conducted by the
Scottish authoritiesextending over several countries. For thpurpose of these
Objections, it isnecessary only to describe these matters in outline. They
would, however, be directly pertinent tu any future consideration of the merits
in thjs case.Should the case proceed to the merits, it may be necessary for the
Court toaddress complex issues of fact in the context of how the Montreal
Convention should be interpreted and applied.
2.106 Any handling of the evidential material necessarilyinvolved at the
stage of oral argument and thereafter would, it is respectfully submitted, have
to be subjeçtto scrupuloussafeguards toavoid prejudicing a fair crirninaltrial
of the accused subsequently, which both parties to the present proceedings
have cornmitteclthemselves to ensuring.
2.107 The United Kingdom submits, however, that for the reasons of law
advanced in these pleadings,this case should be disposed of at the preliminary
phase, thus making it unnecessary tuproceed to the rnerits. l
PART 3 j
JURISDICTIONOFTHECOURT
1 The Basis for theJurisdictionloftheCourt
(1) Theonly basis for thejurisdiction of the Court isArticle 14(1) of
theMontrealConvention
3.1 The basis which Libya has advancedfor jhejurisdiction of the Court
in this case is Article14(1) of theMontrealconvention, whichprovidesthat:
"Anydispute between twa or more Cantracting States
concerning the interpretation or ;application of this
Convention which cannot be: settled through
negotiation, shall, at the request bf one ofthem, be
subrnitted to arbitration. Ifwithin six months fromthe
date of the requestfor arbitrationthe Partiesare unable
to agree on the organizationof thelarbitration,any one
of those Parties rnay refer the dispute to the
International Court of Justice by reiquestinconformity
with theStatute ofthe Court." I
3.2 Article 14(1) lays down a series of requirernents which mustbe met
before that provision can conferjurisdiction upon the Court:-
I
there must be a disputebetweenthe parties concerning the
(1)
interpretationor application of the~ontrealConvention;
I
I
(2) the dispute must be one which cann;ot be settledby negotiation;
I
(3) one of the parties must have req'uested that the dispute be
subrnitted to arbitraiion; and I
I
only ifthe partieshavebeen unableiwithinsixmonths from the
(4)
date of the request, to agree uponthe organization of the
arbitration may the dispute then le refersed, by either of the
parties,to theCourt. I5l !
I
I
I5l SeealsoLibyanMernorial, aeagrah.13. 133 At theprovisional measuresstage, the United Kingdomsubrnittedthat
Libya had not shown the neçessary prima facie jurisdictiu nhe1U52ited
Kingdom malntained that Libya had failed adequately to define a dispute
between itself and the United Kingdom concerning the interpretation os
application of the MontrealConvention; had not shown that any such dispute
çould not be settled by negotiation; and had not made a properrequest for
nrbitration. In addition, the United Kingdom pointedout that only six weeks,
rather than six months, had elapsedbetween the date of the letteof 18January
1992, which Libya claimed constituted its request for arbitration,l53and the
LibyanApplication to the Courton 3 Mach 1992,so that thetime requirement
set by Article 14(1)had not been met.
3.4 TheUnitedKingdon~doesnotwish,atthepresentstageofthe
proceedings, to contest thejurisdictioof the Court on al1of the samegrounds,
but rather to make a related, but fundamental, point about the Court's
jurisdiction. The only basis for jurisdiction advanced by Libya, and thus the
only basisfor jurisdiction which can exist in this case, is Artic14( 1)of the
Montreal Convention. That provision confers jurisdiction only in respect of
disputes concerning the interpretation or application of the Montreal
Convention. Libya must, therefore,show fîrst that there exists alegal dispute
between itself and theUnited Kingdom and, secondly, that that dispute fallsto
be resolved by reference to thejurisdiction provided in Article14(1].
(2) Libya is required to identify the dispute between itse1f and the
UnitedKingdom
3.5 Itis for Libya to identify the dispute be~weenitself and the United
Kingdom. The Inwand practice of judicial settlement require an applicant to
demonstrate tothe tribunal nutonly thatthepartiesare in disputebutalsowhat
constitutesthe dispute. This requirement içlogicallyderived,in the firsplace,
from the nature of the judicial function, which, as the Court has frequently
pointed out, makes ita pre-requisite of the receivabilitof adaim that there
should be a dispute, in the legal sense, between the parties (see, cg., the
Northerra Carnerclons caseYi% and the SeparateOpinion of Judge Sir Gerald
152
153 SeetheargumentofthSoliçitor-GeneraftorScot,Rn92/3,pp.33-40.
154 S(23414(Annex 9).
ICJReports, 1963,papp.33-34.Fi~maurice,~SSand the Nuclear Tests case156 , The requirement that an
applicantidentify anddefinethe disputewhich givesriseto its claimis derived
also £romthe need to satisfythe tems of thejurisdictional clausewhichfounds
the cornpetence of the tribunal in the particular case. In addition, the
requirement içnecessaryin order tojustify the relief which the applicant seeks
from the tribunal. A respondent cannot be expectkdto meet a case against it,
eitherat thejurisdiction stage or onthe rnerits, unlèsitknows what is the case
It has to meet.For a tribunal to hold otherwisewouldbe ta reverse the logical
sequence and impose upon the respondent the re'sponsibilityof çhowing the
non-existenceof a dispute.
3.6 As Libya accepts, 15~the mere fact that a Statesubmits an application
to theCourtdoes not, in itself, establishthe existenceof a dispute between that
State and the respondent. The presentCourtand its predecessor have made
clear that "whether there exists a dispute is a matter for objective
determination" (advisory opinion on the Applicability of the Obligation to
Aubitraieunder Section 21 ofthe United Nations aeadquarters Agreement of
26 June1947;15g see also the advisory opinion on,the Interpretation of Peace
Treaties 159and theMavrommatis Palestine Concessio case1* ).It is common
ground between the Parties that the classic definition of a dispute is that
contained in the Mavrommatis Palestine Concession sase, namely "a
disagreement on a point of law or fact, a coriflict of legal views or of
interests"lbl That definition plainly requires Libya to specifytheprecise point
of laworfact on which a disagreementis alleged toexist.
3.7 It is clear that many governments have differences of view or of
interests withone another without entering into a formal stateof disputein the
legal sense.Thus,as the Court held initsdecision,of21 December 1962in the
South West Afric aases,inapassagequotedin partin the Libyan Mern0rial,l6~
but whichit is usefulto set outin full: l
"In other words it is not sufficient for one party to a
contentious case to assertthata disputeexists with the
ICJReports, 1963at105.
ICJReports, 1974,p.2atp.260.
LibyaMernoria laragrap3.18.
ICJReports1988p.12atp.27.
ICJReports1950p.65alp.74.
PCIJReports,Senes No. 2atp.11.
QuotedinthLibyanMernoriaatparagraph.18.
LibyanMemorial, aragra3.18. other party.A mereassertion iç not sufficientto prove
the existence of a dispute anymore than a mere denial
ofthe existenceof a dispute proves its non-existence.
Nor is it adequate to showthat the interests of the two
parties to sucha caseare in conflict. It must be shown
that the claim of one partyis positively opposedby the
other."l63
There is therefore a critical distinction betweena general eonfliçt of interests
between the parties and a clearly defined claim which relates to the subject-
matter of the application and which is positivelyopposed. Only the latterwill
constitutea dispute.
3.8 The United Kingdom has had some difficulty indiscerning from the
Application and the Mernorial exactlywhat Libyaconsiders to be the dispute
between itself and the United Kingdom. As will be shown below, however,
none of the clairns advanced by Libya discloses the existence of a dispute- in
the legal sense of the term - which fallswithin the jurisdiction of theCourt
underArticle 14(1)ofthe Montreal Convention.
0) The Court'sjurisdiction is limited to claims regarding disputes
fallingwithinArticle14(1)of theMontreal Convention
3.9 Libya must identify the disputeandalso show that itconcerns the
interpretationor application of the Montreal Convention, for otherwise Article
14(1) will not confer jurisdiction. For that purpose, Libya must demonstrate
eitherthat the United Kingdom has acted unlawfully towards Libya in respect
of itsrightsand obligations under the MontrealConvention, or thatany alleged
difference between the two States as to the meaning of the Convention really
exists andis relevant to the preciselegd relationsbetween them.
3.10 Moreover, evenif such a dispute isshown toexist,the Court will have
jurisdiction only in respect of thatdispute and not in respect of any other
dispute or differencewhich, even should itarisefrom the same factç,wouldriot
itselfconceni the interpretationor applicationofthe Montreal Convention.The
Court hasmade cleas,in its twoOrdersin the CaseConcerningtheApplication
ofthe Convention on the Prevenrion and Planishmentofthe Crime of
Genocide,'@that where a clairnantState founds thejurisdiction ofthe Courtin
163 ICJReports,1962p.314atp.328.
164 ILJRepor?s,1993,pp.3and325.
47respect of a dispute on a provision in a rnultilateral convention the Court has
jurisdiction to grant relief only in respect of matters which corne within the
ternis ofthat provision. In its first Ordin thatcase, the Court held that, since
the only basis on which juridiction had been èstablished prima facie was
Article IX of the GenocideConvention,
"the Cou fi. .ught not to indicatk rneasures for the
protection of any disputed rights other than those
which mightultimatelyform the basis of ajudgment in
the exerciseof thatjurisdiction.165,
The Court, therefore, rejected requests for théindication of provisional
measures which, it held, were concerned exclusiveIy with the protection of
rights claimed by theapplicant State fallingoutsiGe the scopeof the Genocide
Convention. '" As Judge ad hoc Lauterpacht put ii, ihis SeparateOpinion on
the furtherreqwestsfor the indication ofprovisional measures:
"The Court can only act in a caselif the parties, both
applicant and respondent, have conferred jurisdiction
upon itby some voluntaryact of consent. ...Whatever
fom the consent maytake, the range of matters that
the Court can then deal with is lirniteto the matters
covered by that consent."167 1
In the present case, the only "voluntary act of consent" invoked by the
applicant is contained in Article 14(1) of the Montreal Convention. The
jurisdiction ofthe Court therefore extends only t~ thematters covered by that
provision and (subject only to what is said bèlow) does not include the
interpretationor application of other international:agreementsor of customary
international law. As the Permanent Court of International Justice çaid in the
Mavrommatis Palestine Concessions case,when rtfemng toa provision which
conferredjurisdiction inrespectof disputes relatingto "the interpretation or the
application of theprovisionsof the Mandate":
I
"Thedisputemaybe of any nature;ithe languageof the
articleIn this respect is as comprehensive as possible
..but in every case itmust relate EOthe interpretation
orapplication ofthe provisionsoftheMandate."
166 Ibid.,1993,p.3,atp.E9. I
167 Seeinparticular,the second order,ICJReports.199atp.344.
168 Ibid.993,p.325ap.412.
PCIJReports,SeriesA, No(1924)p.15. 1 3.11 There can therefore be nojurisdiction in respect of alleged violations
by the United Kingdom of Libya's rights under general international law,
including itsrightsunder the United Nations Charter.Nor does jurisdiction
exist regarding theaIlegedfailure of the United Kingdotoestablish a dispute
resolution mechanism. Neither allegationfalls within the scopeof Article 14of
the MontrealConvention.
3.12 With regard to Security Council resolutions 748 and 883, the position
is more cornplex.If thoseresolutions havecreated obligations for Libyawhich
prevail over any rights which Libya clairns to have under the Montreal
Convention, the United Kingdom, as therespondent in this case, must be able
to rely upon the inherent jurisdiction of the Court to establish thiç and to
detemine the legalconsequences.Where the Court hasjurisdiction to resolve a
dispute conceming theinterpretation or application of a trthatjurisdiction
must encompass the cornpetence todeclare inadmissible the claims made in
relation thereto because of an overriding normative obligation. The Court
therefore hasjurisdiction, as set out in 4aofthese Preliminary Objections,
tarule upon whether the effectof theSecurity Council resolutionsisthatthe
obligations which they impose have priorityover any rights or obligations
flowing from the Montreal Convention. Article 14(1) of the Montreal
Convention does not, however, confer jurisdiction otherwise to rule upon
questions of the applicationor proprietySecurityCouncil resolutions.
rn
3-13 It is therefonecessary to examine,first, what Libya contendsisthe
rn dispute and, secondl,whether Libya'sclaims constitutea dispute in the sense
m in which thatterniis used in the jurisprudence of Court, and whether that
dispute falls within the teof Article14(1)of the Montreal Convention.
m
JI TheDispute which LibyaclairnstoExist
(1) Libya's definition af the dispute in the Application and the
Mernoriai
3.14 Ptis not clear from the Applicatior the Mernorial in what way the
United Kingdomis alleged to be in breachofits obligations to Libya underthe
Montreal Convention; or, to put it another way, what the United Kingdom
shouId or shouId not have done under the Convention. According to the
Application,there is disputeregardingtwo issues: (1) whether the Montreal
Convention is applicableand (2)whether the UnitedKingdom isin violation ofthe duty of CO-operationlaid down in Article 11 of the Montreal Con~ention.~69
In the oral hearings before the Court at the provisional measuresphase, counsel
for Libya refined thedispute and stated itin these terms:
"Zn the present case, the dispute between the Parties
essentially coneerns Libya'sright, in application of the
Montreal Convention, to try the two suspects before
Libyan judges and, secondarily, the duty of the two
respondent governmentsto CO-operateunderthe terms
of that Convention." 170
1
and he continued:
"1 would add that this is the only genuine serious
dispute remainingbetween thePdies. "i7i
Subsequently,in his reply on Saturday 28 Mach 1992, counsel for Libya
statedthat:
"...essentially, thereare two qife specific disputes,
namely, detennining the cornpetentjudge on the one
hand and CO-operation with the L/byan judges on the
other." 172 ,
This definition of the dispute is repeated in the LiblyanMernoria1.173
3.15 To determine whetherthere is a dispute falling within Article 14(1)of
the Montreal Convention it is neçessary however, to go furtherand examine
what itis thatLibya allegesthe United Kingdom has done or has omitted to do
in violation of what Libya claims to be its rights under the Montreal
Convention. I
I
3.16 In Section III of the Application, Libya mhs the followingclaims:
I
thatthe MontrealConvention is théonly relevant conventionin
(a)
force between itself and the Unlted Kingdom and that the
UnitedKingdomis boundto adherk to its provisions;174
1
169 Application,ectioII. I
170 CR 9212,p.47;ProfessorSalmon(Lmslation providedbytheRegistry).
171 Ibid.,p.48.
172 CR 9215,p.25ProfessoSalmon(Translationprovidedbythe Registry).
173 LibyanMernorial,paragrap3.15. I
174 Application,Secti51(a). l
1 tbat the United Kingdom is violating Libya's rights, or
(b)
preventing iibya from fulfilling itsobligations, under Articles
5(2),5(3), 7 and8(2) of the Muntreal Convention;l75
(c) thar theUnited Kingdom iç in breachof itçduty of CO-operation
under Article 11 of theMontrealConvention; 176and
(d) thatthe United Kingdom is bound by its obligations underthe
Montreal Convention, which require itto act "in accordance
with the Convention and only in accordance with the
Convention" .177
3.17 The Libyan Application thenasksthe Court toadjudge and declare:-
"(a) that Libya has fully complied with al1of icsobligations
underthe MontrealConvention;
(b) that the United Kingdom has breached, and is
continuing to breach, its legal obligations to Libya
under Articles 5(2), 5131 ,, X(2) and El of the
Montreal Convention; and
(c) that the United Kingdom is under a legal obligation
immediately to cease and desist from such breaches
and from theuse of any and al1forceor threats against
Libya, including the threatof force against Libya, and
from al1 violations of the sovereignty, territorial
integfity and political independence ofLibya."178
3.18 In the submissionç contained in its Mernorial,Libya states its case in
somewhatdifferent temç, askingthe Court to adjudge and declare:-
"(a) que la convention de Montréal s'applique au présent
litige;
que la Libye a pleinement satisfait à toutes ses
(b) obligations au regard de la convention de Montréalet
est fondee à exercer la compétencepénaleprévuepar
cette convention;
175 Ibid.,Section(6)to (e).
176 Ibid .ctioii lfj.
177 Ibid .,ction$11(g).
178 Ibid.,Section IV. (6) The application. of sanctions to Libya is unfair and
discriminatory and, on Libya's second argument regarding
Security Council resolutions 731, 748 and 883, the Security
Councilhasactedunlawfully.
Whether,and if so to what extent, these claimsreveal a dispute which is within
the jurisdiction of the Courtunder Article 14(1) of the Montreal Convention
willnaw be considered.
III Analysisoftheclaimsin the LibyanMernorial
Libya's claim that the Montreal Conventionis applicable to these
(a)
proceedings
3.20 Libya'sfirst submission, that theMontrealConvention "s'applique au
présentlitige" (is applicable to the present proceedings)lgo involves circular
reasoning.The Courtcannot deterrninewhether or not ithasjurisdiction torule
upon thissubmission untjl it hasfirst decided what these proceedingsinvolve
and, in partiçular, what is the dispute with which these proceedings are
concernedand whether it falls withinthe scopeof Article 14(1)of the Montreal
Convention. That is why the United Kingdom subrnitsthat it is necessary to
anaIyse in detail each of the claims advanced by Libya in order better to
ascertain the nature of the dispute to which, as Libya claims, the Montreal
Convention isapplicable.
(b) Libya's claim that it has complied with its obligations under the
MontrealConvention andis entitledto exercise thejurisdiction provided
bythe Convention
3.21 Libya'ssecond requestis that the Court declare that it has cornplied
with itsobligations under the Montreal Convention and is entitled to exercise
the jurisdiction provided by that Con~ention.~8~ The United Kingdom notes
thatthe way in which this claim is framed suggeststhat Libya is asserting that
itis entitled to exercisejurîsdiction becausithascomplied with itsobligations
under the Montreal Convention, thus implying thathad it not complied with
those obligations, itwould have no such entitlement. Thereis, however, no
180
LibyanMernorial,paragra8.1(a).
181 Ibid .,ragmph8.1(b).dispute (in the sense set out in paragraph 3.8, above) before the Court
regarding the subrnission that Libya has complied with its Montseal
Convention obligations. It is Libya, not the United Kingdom, which has
brought this case before the Court and which ha; been making accusations of
breachesof the Montreal Convention. An assertionby a State that it is acting in
accordance with a treaty does not create a disputé regardingthe interpretation
or application ofthat treaty between that State and another party tothe treaty
unlessthatother partyhas, pnor to the seisinof the Court, made a daim under
the treaty that the firsState is acting unlawfully. On this parcof its claim,
therefore, Libya has failedto demonstrate the existence of a dispute between
itselfand theUnitedKingdomwhich falls within Article 14(1)of the Montreal
Convention. Insofar as the entitlementto exercisejurisdiction isadvanced by
Libya as a separate, substantive claim, the United Kingdom has atno stage
made anypronouncement regarding that clairn.EVenwere there a dispute over
a Libyan daim to be entitled to exercise jurisdictioin priority tootherStates,
which rnight be said toraise an issue within thjuiisdictionof the Court, it will
be demonstrated in Part 4 below, that any such entitlement would necessarily
be setaside bythe provisionsof Security Council ~esolu~ons748 and 833.
(c) Libya's claim that the United Kingdom isrequired ta act in
accordancewiththeMontrealConventionandonlythe Convention
3.22 Libya's claim that the United Kingdom is required to act in
accordance with the MontrealConvention and only in accordance with the
Convention182 cannot be determined by reference to the Convention alcine,
since it necessarily involvesthe consideration of other rules ofinternational
law.The critical part ofthis claim is the argument that it is only the Montreal
Convention whiçh prescribeshow the United Kingdom must act in its relations
with Libya. That argument, however, ignores SecurityCouncilresolutions 748
and 883, which,havingbeen adopted under chapierVI1of the United Nations
Charter, impose legal obligations upon al1Merqbers of the United Nations,
including Libya and the ,United Kingdom. The,relationship between those
obligations and the rights and obligations grking from the Montreal
Conventionturns on the effectsof Article103of!theCharter,the implications
of w hiçhare addressedin Part4 below,
182 Application,Sectio(g). I Libya's daim that the United Kingdom is in breach of Articles
(dl
562-3),7,8(2) or 8(3) and 11of theMontreal Convention
3.23 In Part III of its Memorial Libya maintains that the following
provisions of the Montreal Convention have been violated by the United
Kingdom:
(i) Article5(2),whicb req~ires each ContractingState tutake such
measures as may be necessaïy to "establish"ifjsurisdiction
over certainof the offencesmentioned in Article 1, in the case
wherethealleged offenderis present in ifsterrirov and it does
not exrradirehim purslaalzttoArticle 8. Libya maintains that
thisprovisionrequires it texercise itsjurisdiction in respectof
the two accused, and that other States have a duty to respect
Libya'sduty to exercise itçjurisdiction and notto hinder itin
thedischarge of that obligatio183
Article 5(3) w,hichprovides that the Copzventio~z"doas nor
(ii)
exclude any criminaljurisdiction exercisedin accordance with
narionallaw." The provision of the Libyan pend code on
which Libya bases its jurisdiction over the two accused was
alreadyin force when Libya became party to the Montreal
Convention184and Libya maintains that Article 5(3) confers
upon it a rightto exercisejurisdiction underthis provision of
the penalcode '.s
(iii) Article7, which requires thatifa ContractingState, on whose
territoryan alleged ofinder is foundd ,oes not extradite him,
then it must submitthecase to itscompetenr authoritiesfor the
purpose of prosecution. Libya maintains that this provision
gives it a rightuchoose between extradition and prosecution.
Itthen allegesthat the United Kingdom is violating thatright
by maintaining its dernand that Libya surrender the two
Lockerbie suspects and aIlegedly attempting to coerce Lib ya
intocomplying withthat dernand.1a
183 LibyanMernoid, paragras.5and4.6to4.2.
184 Ibid.,paragr2.7.
185
186 Ibidparagraph3.and44.3to4.43. (iv) Article 8 of the Convenrion, which denls with extradifion,
although Libyaseems uncertain whether itwishes to relyupon
1
Article812)orArticle 8(3) orbol. lS7Inits Application Libya
accused the United Kingdom of violating Article 8(2) by
allegedlyattemptingto coerce Libyainto extraditingthe two
accusedwhenLibyan law, as thelawof the "requestedState",
prohibitstheextradition byLibyaofits citizens. 188Counselfor
Libya duringthe oral hearings at the provisionalrneasures
phase also referred to Libya'sri'ghtsunder Article 8(2),189
although,rather confusingly, he also stated,at one point,that
Article 8(2) created "a discreti~nar~ right not applicable
here."I90References tu the dutyio observe Article 8(2) also
appearin theMemorial atparagraph3 s.3 and3.8. Laterin the
Memorial,however,Libyaadmits that Article 8(2) does not
apply to thepresentcase, because itconcerns only thoseStates
which make extradition conditional on the existence of an
extradition treaty, which Libya' does not."l Instead, the
Mernorial then makes anallegatio- that theUnitedKingdomis
violating its obligations towardsLibya under Article 8(3)
which,Libyamaintains,does notrequireLibya to extraditethe
suspectsinviolation ofLibyanlawl192
1
(v) Anicle II, which provides for n dbty of CO-operationbetween
StatesParty to the Coïave~ztioraT.heallegationthatthe United
Kingdomis in breach of Article 11,is based onthepremisethat
onceLibya hadcommenced a judibial investigationof irsown,
the UnitedKingdom was under an obligation to hand over to
lg7 Therelevantpartsof Article8readasfollows:
"2. If a Contracting Sehichmakes extraditioncabditiontheexistencofa treaty
receivesarequesforextraditionfromanotherContracStatewithwhichithasno
extraditiontreaitmay atitoptionconsidetdisConventioas thelegal basis for
extraditioinrespect of the offences. Extraditionshall be subjectto the other
conditionsprovidby thelawoftherequesteState.
3. ContractinStateswhichdo notrnakeextraditionconditionalon the existenceof a
treatyshallrecognizetheoffencesas extraOffencebetweenthemselvessubject
totheconditionsprovidedthelawof threques'iState."
188 Applicatio, ectioni(e)andSectionIV(b).
189 CR 9212,pp.57 and59;CR 9U5, p.36 (Professoalm mo (n)anslationprovidedby the
Regisiry).
190 Ibid.,p.56.
lgl LibyanMernorial,paragrap4.21.
192 Ibid.,paragra4.31andparagrap8.1(c). the Libyan authorities al1 the evidence in its possession
regarding the crime in the exercise of a duty to afford "the
greatestmeasureof assistance" under Article 1 1(1),193
(vi) Article6, whichrequiresa ConrractingState inwhose territory
an alleged offender isSound totake him into çustody and to
make apreliwiipzcarynquiry .At paragraph 3.6 of the Memorial,
Libya alleges that
"par leurs actions et leurs menaces, le
Royaume-Uni et les Etats-Unis, tentent
d'empêcher la Libye d'exercer les facultés qui
luiconfere cette disposition dela convention de
Montréal."
This allegation is not, however, repeated in the submissions
made byLibya.Nor does itfeature inthe Application. Article 6
is not, therefore, fu~ther considered in these Preliminary
Objections.
3.24 It is not always clear in what respect Libya maintains that there is a
dispute with the United Kingdomregardingthese articles of the Convention. In
the case of Article 8, for example, Libya's argumentreally amounrs only to a
contention that Article 8 does not impose a dutyon Libya to extradite its own
nationals.lg"here is no dispute between the United Kingdom and Libya on
thatpoint, since theUnited Kingdomhas not soughtextradition under Article 8
of the Convention in thepresent case. Libya'suncertaintyover whether to rely
on Article X(2) - which itnow concedes has nothingto do with the casebefore
the Court - or Article 8(3), is indicative of the difficulty which ithas in
formulating a dispute between itself and the United Kingdom regarding the
interpretation or application of this Article. In fact,neither Article 8(2) nor
Article 8(3)has any relevance to the case.
3.25
Norhas Libynsucceeded in formulating an identifiable dispute (in the
sense considered in paragraph 3.7 above) berween itself and the United
Kingdomregarding the interpretation orapplication of Articles 5(2),5(3$ or 7.
The United Kingdom has not, in the presentproceedings, accused Libyaof
193 LibyanMemorial,paragraphs3.9and 4.44 to 4.4The details of this alPegedto co-e
operatearsetoutatparagrap2.13above.
194 LibyanMemorial,paragrap4.31.failing to fulfil its obligaiions under these drovisions of the Montreal
Convention. Nor do these provisions impose8obligations on the United
Kingdom to act, or to refrain fsomacting, in anyparticular way with regard to
the two accused.
326 WhatLibya alleges, however, is thatby its general conduct the United
Kingdom has sought to frustrateLibya's exercis'eof its "rights" under these
provisions and isthusin breach of them. To see whether there is, in reality,a
dispute between the two States regarding the interpretation or application of
theseprovisions,it is necessary to examinethe nalureof thisallegntionin more
detail. I
3.27 As set out in Part 2 above, when the careful police investigation and
scientific analysis of the evidence which followèdthe destruction of Flight
PA103 implicated AbdelbasetAli Mohmed al Mqgrahi and Al Amin Khalifah
Fhirnah in the bornbing, the United Kingdomissued a statementcalling upon
Liby a to surrenderthern for trial. The United ~in~dorn has persistedin this
demand ever since November 1991. The United Kingdom has at ne point,
however, argued that Libya had an obligation to extradite the two accused
based on any of the specific provisions of the ~bntreai Convention towhich
Libya refers.Moreover, the makingof that demadd cannot, initself, constitute
a violation of any rights that Libya might pbssess undes the Montreal
Convention. Even if Libya had a "sight"under those provisions of the Montreal
Convention *to try the accused, the mere demadd for theirsumender to the
United Kingdom cannot affect that "right" and cannot, therefore, amount to a
breach of a conesponding "obligation" on the part of the United Kingdom.
None of the provisions of the Convention referrèd to by Libya expressly or
irnpliedly prohibits a State party frorn calling foi the sumnder of a suspect
outside the framework of the Convention. ,
I
3.28 In reality, as JudgeOda pointed out at the;provisional measuresphase,
theLibyancornplaint relates not to the requestitselfbutto the meansby which
the UnitedKingdom has soughtto reinforce that request.195Libya reguIarly
characterizes those means as "coercive" or as linvolving "threats"against
Libya.lsa In put, Libyals case here is based uponallegations that the United
Kingdomhas threatened to use forceagainst ~ib~a.Thejurisdictional aspects
.- --
195
196 ICJReports, 1992,p.1atp.1361 31.
See,cg.,LibyanMernoria, aragrap3.5,3.11 an8.1(d). of these allegations- allegations which are wholly without foundation - are
considered below.lg7 Leaving these aspects of Libya's allegations aside,
however, the only means which the United Kingdom has employed tc,reinforce
its dernands,other thanthe normal politicalactsof making representations and
attempting to persuade other States to lend their support to those
representations, were, first,joining other States in proposing to the Security
Council that itadopt under Chapter VI1 of the United Nations Charter a
tesolution (subsequently adopted as resolution 748) reguiring Libya to comply
with paragraph 3 of Security Council resotutian 731 regarding the requestsof
the United Kingdom and the United States refemedtu therein, and, secondly,
enforking against Libya the eeonomic sanctionswhich were then imposed by
the Security Council in resolution 748, and subsequently tightened by
resolution 883.
3.29 Sofaras the conduct of the UnitedKingdom in progosing action to the
Security Council is concerned, the action of an individual State (whether a
rnernberof the Security Council or not) in referring a situation tu the Council
OL makingproposaisfor action by the Council cannot be made a matterof
cornplaintto the Court.No prohibitionon bringinga matter before the Security
Council or on proposing a particular course of action by the Council cari be
foundin the Montreal Convention, norcan oneÈieimplied.
330 Once a situation has been duly referred to the Security Council, the
subsequent handling of theitem in the Council becomes the responsibility of
the Council itselas a collective body, and ceases to bthat ofthe members for
the rime being of the Council in their national capacities. This iç so
notwithstanding the factthat particular actions (e.g. draft resolutions) mabe
put fonvard on the initiative of individual rnembers of the Council, since a
proposal, once taken up, passes out of the hands of the originator(s) and
becomes a matter for collective decisionby the Council in theexercise of its
powers under the Charter. It follows that proçeedings in the Council and
'decisionstaken by the Council cannot give rise to a causeof action againstan
individual State, whatever may have been the role of that State in the
proceedings of the Council.
331 Nothing which the United Kingdom hns done with regard to the
enforcementof sanctions against Libya in accordancewith resolutions 748, andlatterly883, gives riseto a dispute between Libya and the United Ringdom
regarding the interpretation or application of the Montreal Convention. Ensofar
as there is a dispute at al1regardingthe applicatiof sanctions,it isa dispute
between Libya and the Security Council of the United Nations, which, of
course, is not, and cannot be, a party to thesieproceedings. The United
Kingdom cannot bear legalresponsibilltyfor the actions ofthe Council.
3.32 Libya's allegations that the United Kingdom has violated speçific
provisions of the MontrealConventiondo not disclosea dispute between Libya
and the United Kingdom which falls within the scope of Article 14(1)of the
Montreal Convention, excepr, perhaps, in the Case of Libya'sallegatians
regarding Article 11(1) of the Con~ention.~~gThe United Kingdom will,
however, contend, in Part 4 below, that, because of the effect of Security
Council resolutions 748 and 883, there isno issueregarding theapplicationof
Article11(1}which couldrequirea detemination un the merits. lW
(el Libya's claim that the United Kingdom, by allegedly issuing rn
threats of force against Libyn,by "appiyingpressure" to Libya and by rn
declining to establisha rnechanisrn for the resolution of the dispute with
m
Libya, isin breaehofitsobIigationsunderthe UnitedNationsCharter and
generalinternationallaw a
333 Libya also accuses the United ~in~dod of violaring Libya's rights
under the United Nations Charter and the rules éfgeneraI international law.
Suchan allegation is first made ithe ~~~lication,where Libya argues that
"the United Kingdom is under la legal obligation
irnrnediatelyto cease and desist from such breaches
and frorn the use ofany anda11force or threats against
Libya, including the threat of force against Libya, and
from al1 violations of the sovereignty, territorial
integrity andpolitical independence of Libya"2m
l
334 That allegations of breaches of rules of international law outsidethe
Montreal Convention fom an essentialpart of Eibyafscase is also clearfrom
the Mernorial. Thus, in that part of its Mernorial which is entitled
,
198 WiChrespect to Arti10jLibyamaintainsthait~nikedKingdomhasfailetaCO-operate
Iw widitheLibyanauthoritithe mannewhichit arguis requibythatprovision.
ShouIdthicaseproceetatrial thernerithoweverhe United Kingdomwildenyzhatit
hasvioIatedArticle1l(1) ofthe Convention
200 Applicatio,ecEioIV(c)."Considérations Générales"L , jbya sets out certain considerations which it
describes asforming "thebasis ofits application".LibyahereStatesthat:
"La Libye a saisi la principale juridiction pour les
conflits régis parle droit international public, en vue
de protiger ses droits comme membre d'une
communautédlEtatségauxen droit.
"LaLibye a fait l'objetde demandes,soutenuespar des
mesures de contraintes, gui pourraient impliquer la
livraison de ressortissants libyensen contravention des
règles pertinentes du droit international genéral
relatives l'extradition, des dispositions d'une
convention internationale multilatérale majeure, des
droits des deux accusés qui,comme tels, benéficient
des standards généralementacceptés en matière de
droitde l'homme,et des dispositions de la loi libyenne,
conformes à la convention de Montréal, qui ne
permettentpas l'extraditiondes naiiona~x.~'~~'
Although this passage refers to the Montreal Convention ("une convention
internationale multilatkrale majeuret')itis cleathat Libya'scornplaints range
far beyond that Convention and Libya expressly argues that its rights under
general internationallaw have been violated.202
335 The United Kingdom rejects any suggestion that it has used, or
threatened touse, force against Libya or that it has in any wayviolated Libya's
sovereignty, territorial integrity or political independence, or the principle of
the equalsovereigntyof States.When Libya first made this allegation on filing
its Application inMarch 1992,itmaintained thatthere wasanimminentdanger
that force would be used against it, and that it was because of that danger that
its request for the indication of provisional measurof protection satisfied the
requirement of urgency.In reality, however, there was neveranysubstance in
this allegation. It is revealing, therefore, that Libya persisted in these
allegations when it filed its MemorialinDecember 1993,eventhuugh itcould
not point to a single instance of the United Kingdom threatening, let alone
wsing,forceagainst Libya during the interveningtwenty-one rnonths, The tnith
is that the United Kingdom's actions during this period were lirnited to
diplornaticactivity in CO-operationwith other Statesand the Secretary-General
in orderto bnng about compliance with the Security Council resolutions and
enforcement ofthe sanctions which had been imposed by the Security Çouncil.
LibyanMemorial,paragra7.2.
202 SeealsoLibya nernoria,aragrap3.1. I
Libya'spersistence in its unfounded allegations regarding thethreat of force is
thus an indicationof its desperationin trying to @mulate a claimagainst the
UnitedKingdom.
336 The important point in the present stage of the proceedings, however,
is that the rights on whichLibyarelies in its allegations regardingthe threat of
force are derived, not from the Montreal Convention, but from general
international lawand, in particularf ,rorn the ~nitkd Nations Charter. The lack
of the necessas. connection between thisallegaiion and Article 14(1) of the
MontrealConventionwas disclosed by counsel fur Libya Inthe course of his
submissions during the oral hearings atthe provisional measuresphase, when
he accused theUnitedKingdomof
"abreach of the rules of irnperlive general law of
public international scope ...to *hich the Court may
spontaneously address itself yithin the general
frameworkofits mission."
The reality isthatthe Court has nojurisdiction in respect of these allegations,
because they fall whollyoutside the only basis forjilrisdiction which has been
advanced in the Libyan Applicationand Mernorial.
337 The sameis trueof the Libyan argumentbat the United Kingdomhas
l
violatedanobligation regardingthe peaceful settlement of disputes.Although
this argument does not feature in the Application Qrthe subrnissions atthe end
l
of the Memorial, the Libyan Mernosial'contains ~peated suggestions that the
United Kingdom isin breach of itsobligations regarding peaceful settlement of
disputes.2" There appear tobe two separate strands to this allegation. Firsr,
Libya appears to be accusing the United KingYom of violating a general
obligation, derivedfrom Article 33 of the United Nations Charter, to settle
disputes by peaceful means.205 Secondly, ~ibya asserts that the United
Kingdom isin breach of an obligation,which ac40rding to Libya arises under
the tems of Security Council resolutions 731 and 748, to establish a dispute
203 CR 92j2,p.59:ProfessorSalmon(Translationpmvbyeke Registry).
204 LibymMernorialp, aragrap2.15 (quotiLibyanlettero18January 1992,Sn3441;Anne~
91,3.14,6.5,6.11-14,6.22,arid5.42.
205 See,e.gLibyanMernorial,paragraps.15and3.14. 1
205 See,e.gLibyanMernorial,aragrap6.35. I3.38 The United Kingdom denies that ithas violated its obligations
regarding peaceful çettlement of disputes, The Libyan allegations, however,
fa11outside thescope ofArticle 14(1)of the Montreal Convention. Ifthereisa
dispute regardingthe interpretation or application of the MontrealConvention,
there is a duty to settle that dispute peacefully. But Article 14 of the
Convention is a procedural provision which cornesinto play only once thereis
a dispute about the Montreal Convention. Any wider obligation to settle
disputesby peaceful means cornesnot from theMontreal Convention but fsom
Articles2(3)and 33of the UnitedNations Charter.
339 The more specific Libyan allegation is that Security Council
resolutions 731 and 748 requirsd the United Kingdom to establish a dispute
resolution mechanism, which Libya alleges the United Kingdom has failed to
do. The Libyan argument is based on paragraphs3 and 4 ofresolution 731and
paragraph 1 of resolution 748, together with that sesalution's referenceto
resolution731. The United Kingdom denies that it is breach of any of its
obligations under these resolutions. Once againhowever, if there is a dispute
(inthe legal sense of that tem) between the United Kingdomand Libya on this
point, itis a dispute concerning the interpretation and application of the
Security Council resolutions and not about the Montreal Convention, and does
not, therefore, corne within tCourt's jurisdiction underArticle14(1) of the
Montreal Convention.
(f) Libya's daim thaitthe application of sanctions is unfair and
discriminatoryandthat in respect of SecurityCouncilresolutions 731,748
and883 theSecurityCouncilhas acted unlawfully
3.40 Finally, Libyamakes a number of claims regarding the conduct of the
SecurityCouncil, with particular regard to the adoption of resolution1,748
and 883. These allegations are summarizedin the following passage from the
section oftheMernorial entitled "ConsidérationsGénérales":
"Letraitement grossièrement inégalréserve àla Libye
sousla pression des Etats-Uniet du Royaume-Unipar
le Conseil de sécuritéresulte d'une démarche qui
présume la responsabilité d'un Etat basée sur de
simplesaffirmationsdes Etats défendeurs.Il s'agitnon
seulement d'undén iejustice,maisaussi d'une mesure
manifestement discriminatoire. Icon condamne et on
sanctionne sans preuve un Etat, alors qu'ailleurs on s'abstientde condamner etde sanctionner bien que les
preuvessoient patentes."207 I
This theme is echoed in several other places in:the Mernorial, where Libya
accuses the United Kingdom of rnisusingpwbr through the institutional
pressureofthe United Nations Security Council208and cornplains of the effects
of the sanctions irnposedby Security Council resolutions748 and 883.209
3A1 With regard to the effect of the ~ecurity Council resolutions, Libya
raises two alternative arguments. Libya'sfirstargument is that resolutions 731,
748 and 883, properlyinterpreted, do notpurport to require Libya to surrender
the two accused for trial in Scotland or the United States and do not require
Libya to give up its rights under the Montreal Conlvention.2i0According to this
argument, Libya is requiredonly to agree with the United Kingdom and the
United States onthe establishment of a rnechanismwhich will makeit possible
to try the accused. Libya rnaintains that it has complied with al1 the
requirernents of the resolutions which are capable of affecting the outcome of
the present proceedings ;and that the imposition and maintenance of sanctions
is unfair anddiscriminatory. On this argument, hbwever, if there is a dispute
then ,
!
(a) it isa dispute regardingthe interpretation and application of
SecurityCouncil resolutions 731,748 and 883, not a dispute
regardingthe interpretation or dPp1ication of the Montreal
Convention; arid I
(b) itis a dispute between Eibya md'the Security Council or the
United Nations, and not between Ei1yaand anygiven rnember
of the Security Council.
3.42 In the alternative, Libya maintains dat if, contrary to its first
argument,Security Council resoIutions 731, 748 and 883 are interpreted as
requiring Libyato surrender the two accused for thal in Scotland or the United
States, then those resolutions are contrary to the Montreal Convention, the
UnitedNations Charter and fundamental principles of general international law
207 LibyanMernorial,paragra7.4.
208 Ibid .aragrap3.11.
209 Ibid.,paragra2.39.
210
Ibid.,PartFour,Chapteand II.and are therefore ultra viresthe Council and not opposable to Libyn.Z1lThe
implications of thisargumentfor the receivability of thiscase are considered in
detailin Part4 below.
3.43 Although the Court necessarily has to consider resolutions 748 and
883intheseproceedingsas part of the compétence de la compétence,that does
ROI alter thefactthat Article14(1) of theMontreal Convention remains thesole
basis for thejurisdiction of the Court.Itfollows that the Court has jurisdiction
to consider and apply these resolutions only in so faras they are capable of
having legal effects upon a disputeregarding the interpretation or application
of the Montreal Convention. The question is not whether the Court has
jurisdiction in absrracto to review Security Council resolutions, but whether,
and, if so, to what extent,ithas cornpetence to review these resolutions in the
context of proceedings in which jurisdiction is basedexcluslvely upon Article
14(1) of the Montreal Convention - which confersjurisdiction only in respect
of disputes concerning the interpretation and application of the Montreal
Convention.
3.44 On that basis, it is subrnitted that the Court has nojurisdiction under
Article 14(1) of the Montreal Convention to determine whether the Security
Council resolutions were "fair" or whether, as Libya has alleged, Libya was
treated more harshly by the Security Council thanother States in comparable
situations.212Irrespectiveof whetherit would everbe appropriate for the Court
to determine such a question, such a question goes far beyond a dispute
regarding the interpretation or application of the MontrealConvention, and
would require the Court to rule upon the relative merits of the Council's
handling of a wide range of different situations which the Council has
determined constitute a theat to internationalpeaceand security.
3.45 Nor, for difkrent reasons whieh are explained in Part 4 below, does
the Courthavejurisdiction in thepresent case to determine whether resolutions
748 and 883 showld have been adopted under Chapter VI1 of the United
Nations Charter. 213
211 Ibid.,PartFour,ChaptsIiand IV.
212 Ibid.,paragra7.4.
213 Seeparagraph4.30104.42 below;c.f.LibyanMernor,aragraphs6.10etseq LQ Conciusions 1
1
I
346 Accordingly, the United Kingdom submits thatthe only matter in
respect of which there might possibly have been jurisdiction under Article
14(1) of the Montreal Convention, is that relatjngto the interpretation and
application of Article 1 l(1) of that Convention. However, for the reasons set
out in Part 4below, the rights and obligations ofthe Parties are determined by
therelevantSecurity Councilresolutions.If there lisanycenflict between those
decisions of the SecurityCouncil and the rights and obligations underArticle
1 l(1) of the Montreal Convention, the decisiQns of the Security Council
prevail. I PART 4
'M
Tm SECURITYCOUNCII,RESOLUTIONSARE DETERMINATlVE
OFANY DISPUTEOVERWHICH THE COURTMIGHTHAVE
rn JURISDIC'IZON
4.1 In Part 3the UnitedKingdomhas identified the subject matter of any
dispute in respectof which jurisdiction might conceivably exist under Article
14(1) of theMontreal Convention.
4.2 In this Part the United Kingdom will show that the Security Council
has adopted resolutions which are determinative of the matters contained
therein, which are binding onal1Members of the United Nations under Article
25 of the United Nations Charter, and which have priority over any
conflicting rightsor obligations of Libya or the United Kingdom under the
Montreal Convention.
4.3 Libyain its Mernorialseeksto minimizethe legalrelevanceof Security
Council resolutions 731, 748 and 883;214indeed, large partsof its argument
are really a cornplaint against the Security Council for adopting the
resolutions. Libya seeksto avoid the legal conseguences of the resolutions by
denying that they generate legal obligations; by denying that they require
Libya to surrender the two accused fortrial in Scotland or the United States;
and by contending that if they do so require, they should be found by this
Court to be unlawful.
4.4 The cornparisonof the resolutions with the provisionsof the Montreal
Convention may need to be addressed by the Court should this case proceed
tothe me rit^.^'^
l4 Annexes2,3and4 reçpectively.
215
1992 that was"notat thistagecalleupontodetermine definitively the legal effect of
SecuritCouncilresoluti748 (1992)" ICJ Repor1992p.3 atp.15(paragraph40To
interpretthe resolisi,f course, ajudicial taskentirelydifferent£whetheraing
threat to internationalandsecunty existed or whetherequirements madbythe
Councilwere approprior whetherthe Councilrightoregard theasnot havingbeen
met byLibya.4.5 But in order to show that the ~ecurit$ Council resolutions do, by
virtueof theircontent and the operation of Articles 25 and 103,have priority
over any rights or obligations under the ~ontrkal Convention in respect of
which Libya might daim the Court has jurisdiction, iris necessary now tu
examine the resolutions and their legal consequences. It will be dernonstrated
that even were there to be any disputeover which the Court had jurisdiction
under Article 14 of the Montreal Convention, lit could not and should not
exercisejurisdiction in the particularcircumstances. The claim of Libya is thus
inadmissible. I
4.6 It iforthese purposes,to demonstrate inadmissibility,that the United
Kingdom now shows whatis required by the resblutions. theirbinding nature,
their lawfulneçs, and the legal consequences for r1ceivability that flow from
Articles25 and103.
1 The resolutions require the surrendeaof the accused for trial in
Scotlandor the United States
4.7 In its Mernorial Libya contends that the fesolutions do not require the
surrender of the accused,because:
.Iissaid that resolution 731 mals reference to "theCharter
(i)
of the United Nations and relevant principles of
international law': and fhus precludes s~rsender.~ I6It is
I
apparent thatthis response begs tlhequestion. It is exactly by
reference to the normal principles of jurisdiction that the
criminal proceedings are appropriately to be brought in
Scotland or the United States. ~hd there isnothing a priori
contrary to international law iin the Secusity Council
supporting a request that a perdon be surrendered for that
gurpo~e.~~~ I
(ii) It issaid that surrender was notlintended by the resolutions
"inasmuch as a fair trial cannot be guarunteed" in
2115 LibyanMernorial,paragra6.10.
217
QuestionsreIatitothe internationalofextraditiofnational(adifferent, butproxirnate,
pargumenonathis poiwasbeforetheCourlin thphaseqf thcaseconcernintherequestfor
the indicationof provismeasures. Sc~tland.~~~ Not only is a fair trial ensured within the Scottish
legal ~ystern,~" 90th generally and in respect of the
accu~ed;~~~but the Security Councill simply did not share
Libya'sview. That follows from the reiterated requirement,
through al1 of the resolutions, that Libya respond fully and
effectively to the requests made by the United Kingdom
contained in S/23309.22 l
(i) Itis said that because the requests are "to couperate fully in
establishing responsibility" and this "obviously does not
mean surrendering the suspects fo'the ~nited' States or the
United ~in~dorn".~~H ~owever, the guilt or otherwise of the
accused willbe established by a fair trial in Scotland; and the
broader responsibility for theis acts is also to be accepted,
which equally requires the cooperation of Libya. Libya'sduty
to couperate In establishing responsibility in no way requires
one to read the resolutions as having eliminated the
requirement tosurrender for trial the accused, so that thguilt
or othenvise may be determined in a court of law,
(iv) If issaid that as Libya was required to give "a full and
eflective response", whiçh "is not the same as saying that
Libya must "complywith those request~':~~ "...the Councilis
allowing Libya to offer çounter pr~~osals".~~ ~ n thismatter
the argument is entirely artificial,since a "full and effective
response" to the requests of the United Kingdom clearly
requires surrender of the accused - and more besides. The
responsewas tocover al1the elements("full"),and it was to be
unequivocal; it was to allow for trial, and to guaranree a
renunciation of terrorisrn ("effective"). Moreover, as will be
shown belo~,~~~ it waç exactly the failure of Libya to
surrender the accused, and its prevarication with "counter
LibyanMernoria,aragrap6.10(translation bytheUnitedKingdom).
Libyaitselfhasaccepthissee SPV.3 32, p.14 (Annex12)aS/26523[Annex69).
Seeparagraphs2.30to 2.andparagrap2.43above.
Annex8.
LibyanMemorial,paragraph61(translatby thUnitedKingdom).
Ibid.,paragraph5.12(translationbythe UnitedKingdom).
Ibidparagraph6.12(translatitheUnitedKingdom).
Paragraph4.48to4.53. proposals",that caused the SecurityCouncilto determinethat
Libya'scontinuedfailure torespondfully andeffectively to the
requests of the United Kingdom constituted a threat to
internationalpeace andsecurity,:and that it was necessary to
adoptrneasures.
(v) Ir issaid that because the Secrbtaoy-General was asked to
assistiraseekivlgthe cooperafiovlof Libya in providing rhe
full and effeeriveresponse to ~h;erequests, that also means
thatLibya does not have to comply with the requests but has
"room fo manoeuvre":
"En assumant cettetâche, le Secrétairegénéral
des Nations Unies a lui-rnême interprétéla
résolution 731 comme laissant une margede
manouevre par rapportaux demandes anglo-
americaines et frangaises. Dans sa lettrdu 23
janvier 1992 au CoIonel Kadhafi,le Sécretaire
général d et effet
"Co I.took the initiativfor sendinga special
envoy ... to discuss several points and
presenting certain ideas 'aswell as kplowirtg
your views and proposals regarding the
mariner 02f irnplemenfing the said
Resoluti~n."~
The United Kingdom merely +serves that the Secretary
GeneraI was given a role within, and not beyond, the
requirements of the resolutions, and has in his various
reports227clearly interpretedhistale as providing a modality
for the cornpliance by Libyawith the requestsof the United
Kingdom forthesurrender of theàccused. He has never atany
stage engaged in negotiations for other purposes or in
"counter proposals".
(vi) Itisscsidthar resollati~n731 "dissociatesthe dernandsof the
Securi~ Corrncilfrom the US-$ritish requests': because ir
did mot repeat them in terms. 'This isf~rther said to be
supported by the facrthat rekolution 748, in operative
226 LibyanMernorial,paragraph6.14(ernphthMernohal).
227 Si2357 4f11 Eebruary1992(Annex 131,SI23672of3 March (Annex 14and SI23992
of22May 1992(Annex15). paragraph 2, specified in terrns the requirernent that Libya
must cease al1 terrorist activity and support for terrorist
groups, but chose not to speczfy inferms the requirernenbof
surrender ofthe accusad. In the argument of Libya this
"implies" dissociationbetweenthe demands of the Council and
the requests cited as a referen~e.~~~This argument is totally
without ment. Al1the resolutionscontain clearly repeated calls
for compliançewith the requests of the United Kingdom, the
United States and France in theis totality. This was expressed
in resolution 731 in operative paragraph 3, where the term
"thosemrequests"refers tO al1the elements, including of course
the surrender of the accused. In resolution 748 the matter is
made clear in operative paragraph 1, with itç reference tu
operative paragraph 3 of resolution 731 and "the requests" -
not some of them - contained in documents S123306, 923308
and S/23309.229 And in resolution 883 the reference to "the
requests" in the seventh preambular paragraph, and to
cornpliance with resolutions 731 and 748 in operative
paragraph 1, also make clear that the Secusity Council was
fully committed to, and demanding, the surrender of the
accused.
4.8 The content of the resolutions, and its relevance for the adrnissibility
of Libya'sclaims, is apparent. The resolutions followed upon the scientific
investigation implicating the accused; a demand by the United Kingdom for
their surrender for t.ria1;20he issue of the joint declaration of 27 November
1991with the United Statesrequiring, inter alia,the surrender of those charge$
with the crime;231the issue of ajoint declaration of the samedate with France
and the United States requiring Libya to commit itself 10 cease al1forms of
terrorist a~tivjty;*~~and the communication of the matter to the Security
Council on 31 Decernber 1991.233 The resolutions reflect these elements in
theirtems.
22X LibyanMernorial,paragra6.23.
229 Annexeç5,7and8.
230 Annex6.
231 Annex7,
232 Annex8.
233 Seeabove,paragraphs2.5to2.103.4.9 Resolution731 reçalled that on 30 Decernber1988 the President of
the Secunty Council had called on al1States to vsist in the apprehensionand
prosecution of those responsible for the destruction of flight PA103. The
resolution found that the investigation implicated officiais of the Libyan
government; and it referred in that eontext to, inter *ia,the requests
addressed tcithe Government of Libya by the United Kingdom contained in
323309. And, in operativeparagraph 2 itstronglydeplored that the Libyan
Government ,
"had not yet responded effectfvely to the above
sequests to cooperate full$ in establishing
responsibility.
I
"The above requests" clearly required that responsibility be established
through surrender to criminal prosecution in Sdotland or the United States;
and through cooperation generally. Operativepqagraph3 urged Libya
"immediately to provide a full anl effective response
to those requests". I
4.10 Resolution 748, in operative paragraphl 1, decided that Libya must
comply without further delay "with paragraph if3resolution 731 (1992)
regardingthe requests contained in documents 1SJ23306,~S ~/23308235and
923309 ".236These requests manifestly included?'as their central elernent, the
,
surrender of the accused for trial. 1
4.11 Resolution 883, in operative paragraph 1:
"demands once again that the qibyan Government
comply without any further delay with resolutions 73 1
(1992)and 748 (1992)". I
These resolutions, as has beenshown,requirecornpliancewith the requests of
the the United Kingdom contained in S123309,which includethe request for
surrender for trial of the accused. That the resolutionsrequiretheir surrender
for triais furtherdemonstrated byoperativeparagraph16 of resolution 883, in
which the Council:
234 Annex5.
235 Annex 7.
236 Annex 8. "Expresses its readiness to review the measures set
forth above and in resolution 748 (1992) with a view
to suspending them irnmediately if the Secretary-
General reports to the Council that the Libyan
Government has 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 has satisfied the French judicial
authorities with respect tu the bornbing of UTA 772,
and with a view to lifting them immediately when
Libya complies fully with the requests and decisions in
resolutions 731 (1992) and 748 (1992) ..."
4.12 The wording of these resolutions, theinterna1 cross-referencing, and
indeed the vesy necessity for a series of resolutions to be passedal1testifyto
the fact that they required, and were understood by al1 to require, the
surrender of the accused. Further, they were understood in this sense by
Libya, At no tirne did it suggest either to the Security C~uncil~~~or the
Secretary General that it understood the resolutions in the sense now
advanced in its Mernorial. And its observations to the Court during the
provisional measures stage concerning the impact of sesolution 748 âlso
confirm that it understood the resolution to require the surrender of the
a~cused."~ This is further confirmed by Libya's various proposals for
surrenderof the accused fortrial outçide Lib~a.~~~
M The Security Council'sdemandsfor cornpliance withthe sequests
for surrenderare binding
4.13 Whatever the precise legal effect of resolution 731, itis absolutely
cIear thatresolutions 748 and 883 are binding resolutions. They give rise to
obligations of Member Statesof the United Nations by virtue of Article 25,
and by virtue ofArticle 103 they prevail over obligations under any other
international agreement. Resolution 748 detemined that
"the failureby the Libyan Governmentto demonstrate
by çoncrete actions itçrenunciation of temrism and in
particular its continuedfailure to tespond fully and
effectively to the requests in resolution 731 (1992)
237
To the contrarseethe staternofrhePermanentRepresentativeof LibyatheSecurity
238 CouncildebatewhichprecededtheadoptofResolution883:SlPV.3312,p.24 (Annex12).
Observationsof Libya ontherequestforinterirnmeasuresof pwitregardto Secunty
239 Councilresolution748(7 April1992),parah.Alsoseepatagritph2sand2.86above,
Seethesurnrnnrof theproposalsinparag2.194. constitute a threat to international peaee and
security."
The Council's decision in operative paragraph 1 Ofthat resolution, that Libya
must cornply with the requests of the three ~ov-rnents, was stated in tems
to have been taken underChapter VI1 ofthe Charter.
4.14 Resolution 883 reiterated this, adding to :theelernents that constituted
the threat to international peace and security. ~heCouncil now found a threat
to internationaleaceand security by virtue ofthe failure to respond fully and
effeçtively both to the requests of, the Governpents and to the decisions
relating thereto contained in resolutions 731 and,748. Again, the demand for
cornpliance contained in operative paragraph'1 of resolution 883 was
expressed as being made under Chapter VII. To impose rneasures binding on
all Members of the United Nations under Chapter VI1 in support of demandç
on Libya which were not themselves binding, would have been futile and
illogicd.
m The SecurityCouncilresolutionsare determinativeof any dispute
over which the Court might have jurisdiction
4.15 The United Kingdom reiterates the views it expressed in oral
subrnissions at the interim measures phase of this case - namely, that the
United Nations institutional system envisages the different organs working
alongside each other mutually to reinforce the attainment ofthe purposes and
objectives ofthe United Nations. There is notwithi-inhe Charter a hierarchical
relationship between the principal organs. ,But coherence, political
effectivenessandlegality are al1provideclfor th&h the diverse allocation of
cornpetences among the various organs, and, concomitantly, through
"limitations ontheir activiti...rationemateriae l.240
4.16 To say thatthe Courtdeals only with leial matters, and the Secunty
Council only with political matters, to oversir&lify. As the Cour tself has
said many times, judicial decision-making necessarily has a political impact.
Andthe fact thatthere isa political dimensionto acase does not constrainthe
Court from adjudicating or giving an advisory opinion, so long as there is a
legal question for the Court to answer (United States Diplomatie andCoriisularStaff in ~ehran;~~] Military and Paramilitary Activities in and
Against Nicaragua (~urisdiction);~~~ Conditioo nfsAdmission ofa State to
Membarship in the United Nati~ns;'~"errain Expenses ofthe United
~ations;~" Interpretation of the Agreement of25 March 1951 between the
WHOand Egy~t).~~ ~he Security Council has, over the yenrs,in the exercise
of its prirnaryresponsibility for the maintenance of international peace and
security, made determinations of relevance to the legal sphere. It has
determined whether maritime rights of visit and search are available when an
armisticeis in place (Security Council resolution 95 (1951)).It has pronounced
upon the illegalityof military invasions, such as Iraq'sinvasion of Kuwait
(Security Council resolutions 660 (1990) and 662 (199l)), and military
occupations, including Israel'soccupation of Arab territories (see.g.,Security
Council resolutions 252 (1968), 298 (1971) and 478 (1980) on the status of
Jerusalem and 497 (1981) on the status of the Golan Heights). The resolutions
of the Security Council are fullof examples of references to the requirements
of international law. This is because,in the exerciseof its cornpetenceratione
materiae, the Security Council must interpret facts to see if there have been
threats to international peace and security or violations of the Charter. These
tasks necessarily often entai1 appreciations of the substance of international
law - international law being invoked by one party to support its entitlement
to act, and by the other party to decry the action concerned. The Security
Council has totake a view. Each organ has itsown cornpetences, but in tems
of subject matter they arenot hermetically sealedor absolutely rigidThisis no
more than is to be expected, because the cornpetences of international
organisations are not divided up by reference to legislative, executive and
judicial powers. Thus the principleof separationof powers cannot be fully
applied. As Judge Lachs put itin his separate opinion in the Provisional
Measuresphase of thiscase:
"The frarners of the Charter, in providing for the
existence of several main organs, did not effect a
complete separation of powers, nor indeed is one to
suppose that such was theiraim."246
24 ICJReports, 1980,patpp.19-29.
242 ICJReports,1984p.392atp.435.
243 ICJReports,1947-48p.57atp.61.
244 lCJ Reporrs,196p.151atp.155.
245 ICJReporrs,1980,p.7atp.81.
246
ICJReports, 1992,patp.26.4.17 There are no provisions in the Charter fdr States towhomresolutions
of the Security Counçil are addressed to seekjudicial review. It is clear £rom
the travaux préparatoires thatthis possibility $as deliberately rejected. The
teasons are instructive. The Soviet Union believedthat it would weaken the
Security Council too rnu~h.~~T ~he United Statespointed tothe obligation of
the Council to secure only the objectives of the'Charter.24gFrance believed
that such a review would unacceptably disperse the responsibilities allocated
under the Charter.249 And the United Kingdoni emphasised that the delays
this would entail would operate sothe advantage o,faggressor State~.~~O
4.18 A later proposal, fur a ComrnitteeonLegal Problems to be established
as an interpretative organ for certain parts of the Charter, was also rejected.
The clear view was that the Charter requirements themselves, the ability othe
major organs to request advisory opinions, and;the entitlementof States to
resolve their disputes before the Court, provided sufficient guarantees of
protection of sovereign rights by reference to international la^.^^] Itis thus
clear that, in contentious litigation,judicial scrutiGyafresolution can only be
incidental to the detemination of theissue tobe ~solved.
4.19 By contrast, in an advisory opinion a:resolution rnay necessarily
assume a more central place in the Court's scrbtiny. Certain organs of the
United Nations or specialized agencies rnay, through a request for an advisory
opinion, themselves seek advice as to what courie of action they pay legally
take inthe execution of their tasks. Thirnay ent+l thescrutiny of aresolution
or resolutions already adoptedas a necessarycomponent element En providing
such legal advice. The Expense sase and theNayibia Case affordexamples.
4.20 Not a11 domertic systems have develobed the practice of judicial
review. There are a variety of institutional rnechanisrns for guaranteeing the
ruleof law. Butin anyevent, analogies withdomesticpractice areinapposite.
The relationship between the Security ~ounCil and the Court is to be
determined by reference to the Charter, and n{t by analogy with selected
domestic law systems. The Security Council h;ts the primary responsibility
247 UnitedNations ConferenconInternationalOrganizatDocuments (UNCIO}Vo1.12,Doc. O
433 (IIY2J15).47at 13.49. 1
248 Ibid.
249 Ibid,at..50.
250 UNCIOVo1.12,Doc. 498(IIWU19), .6atpp.65-66. '
25 UNCIO, Vo1.13 Doc.843 (IVN37). p.64andDoî.933;(1~12142(2),p.70910.
!under theCharter for the maintenance of international peace and secunty; it is
not merely exercising the equivalent of executive discretion.
4.21 Nothing inChapter XIV of theChartersuggestsa generalizedpower
of the Court to review decisions of political organs. Nor is çuch a power
mentioned in the Statuteof the Court. And therehas, of course, neverbeen a
generalpower of judicial review whereby the Court, of itsown volition or at
the instigation of an addressee of a Security CounciI resolution, has decided
either to "quash" a resolution or to remit itfor revision. Neither the United
States mode1 of judicial review (Marbury v. M~disop2~~),nor the United
Kingdom mode1 of judicial review (Associated Provincial Picturk Houses
Lirnited v. Wednesbury Corp~ration~~~],has been followed under the
Charter.254
4.22 The question thathere arises iswhether that judicial review function
can nonetheless be engaged in by the Court througha State to whom a
resolution is addressed bringing an action against certain members of the
Security Council who promoted that resolution. It is not clear whether the
memberç who initiated discussion of the resolution relevant to this case are
said to have acted unlawfully; or whetherthey, and others in the Security
Council (thoughno action is broughtagainst fhem) are said to have acted
unlawfully by voting forthe resolution. But,in any event,the suggestion by
Libya is thatthese questions are to be answered by having the fairness and
necessity of theresolution judicially reviewed.
4.23 The United Kingdom does not take the view that becaus ecertain
mntter has been before the Security Council, and resolutions have been
adopted thereon, the Court has no interest or role. That would reflect the
"hermetically sealed"view of allocation of cornpetences, and thejurisprudence
of the Court clearly rejectsthat view: United States Diplornatic and Consular
Staff in Tehrt~n;~~ M~ilidary and Paramilitary Acriviries in and against
Nicaragua (Nicaragua v, United States of America) Provisional
252 5 US(1 Cranch)137(1803).
2" 31194811KI3223.
254 Marbury v.Madison holdsthatthe courlackthe powertoenforcea lathatviolatesthe
Constitution;andthitis forthecou-tandultimatelytheSupreCourt- todeteminethe
constitutionaofayIaw. The Wednesburycase holdsanaexecutivedecisiorexerciseof
discretimay bechallengedonthegroundthatit wso unmasonablethatnoreasonableman
couldhavemadethesamedecisionorexercisedthesamediscretion.
2s ICJRepom, 1980, p.atp.21-22, paagrap40.~easures;~'~ Jurisdiction and ~dmissibility.~~~See also Case Concerning
Questions of Znferpretation and ~~~lication of the 1971 Montreal
Convention Arising from the Aerial Incident1 ut Lockerbie, PP-clvisional
Measures, Order of 14 April 1992, Separate Opinion of Judge
l
Shahabuddeen. 25s
4.24 The Court has itself,in terms, deçlined the suggestion that it holds
generalised powers of judicial review. In the, Expenses Case the Court
observed that:
"In the legal system of States,there is often some
procedure for determining the 'validity of even a
legislative or governmental act, but no analogous
procedureis to be found in the stiucture of the United
Nations. Proposais made during, the drafting of the
Charter to place the ultirnate authority to interpretthe
Charter in the International Court of Justice were not
accepted..," (Certain Expenses ofthe United Nations
(Article 17, paragrcsph2 of the Cb~i-ter).~~~
Andin the MamibiaCase the Court observed: ,
"Undoubtedly, the Court does not possess powers of
judicial review or appealin respect of the decisions
taken by the United Nations organs ~oncerned."~~"
4.25 The key elements maybe summarisedthu'ç:
(1) the relationship between the maIn organs of the United
Nations is nothierarchicd;
the functions are characterized by a delimitation ratione
(2)
materiae;
(3) at the same tirne, there is a certain functional overlapping of
cornpetences. l
256 ICJReports, l984,p.169atpphl85-186. I
2s7 ICJ Reports, 198p.392atpp.4334.
258 ICJRepom, 1992,p.3 atp.29.
25 ICJReports,1962,p.151atp.168.
260 ICJReports,1971p.16atp.45.
!These legal and institutional realitiesweretrençhantly summarized by Judge
Lachs inhis Separate Opinion in the present case when he stated:
"One rnay therefore legitimately suppose that the
intention of the founders was not to encourage a
blinkered parallelism of functions but a fruitful
interaction."261
4.26 The searçh must therefore be to identify a relationshipbetween the
Court and Security Council that reflects, on the one hand, an absence of
generalizedjudicial review, and,on the other hand,the need for a "fruitful
interaction" in civerlappingcornpetences. The.United Kingdom believes that
both some past practice of the Court in other cases, andthe dicta of certain
judges in the earlierphase of the present case, are to be understoodin this
light. Judge Shahabuddeen asked whether, in relation to the operation of
Article 103
"there are any limitations on the power of the Council
to characterize asituationas onejustifying the making
of a decision entailing such çonsequences. Are there
any limits to the Council's power of appreciation? In
the equilibrium of forcesunderpinning the structure of
the UnitedNations within the evolving international
order,is there anyconceivable point beyond which a
legal issue rnayproperlyarise as to the cornpetence of
the Security Council to produce such overriding
results? Ifthereareany limits,what arethose limits and
what body, if other than the Security Council, is
competent to say what those limits are?"262
4.27. The United Kingdom believes the answers to these questions to liein
following the injunction of ludge Lachs in the earlierphase of the present
case that
"the two main organs with specific powersof binding
decision act in harmony - though not, of course, in
concert - and that each should perforrn its functions
witb respect to a situation or dispute, different aspects
of which appear on the agenda of each, without
prejudicing the exercise ofthe othertspowers. "263
261
Orderof14 ApriI1992,ICJReports. 1992,atp.26.
262 Ibid.atp.32.
263 Ibid .,p.27.4.28 The starting point must therefore be to ihntify what is essentialto the
exercise of the powers of the Court; and what is bssential to the powers of the
Security Council. The Court is the principal jbdicial organ of the United
Nations (Article 92). Ir is for the Courto concerhitself with issues of legality
in relation to SecurityCouncil resolutions, insofar as those are gemme to the
disposa1of litigation brought before it. But itiy for the Seçurity Council to
exercise the political judgments allocated to itunder the Charter. This Zeads
inescapably to the conclusion that the Court is Concernedwith constitutional
legality (thatis,compliance with the Charterrequirements of forma1validity),
and the Security Council with the exercise of political judgment. When
scrutinizing resolutions the Court wlll eschew al1rnatters relating to political
judgment. I
4.29 The Court iç also an autonomous judidial organ with the function,
underArticle 38 of the Statute, of applying international Zawto those disputes
between states which are brought before it. ~dt the legality of actions by
other United Nationsorgans cannotbe assessed ibyreliance on Article 38 of
the Statute,but rather by an appreciationof the,law of the Charter. And the
Charter itself envisages,in Article103,that the proper exercise of cornpetences
by the SecurityCouncil under Chapter VI1 and Article 25 may lead to a clash
with other rights and obligations of Mernbers.Libya has not at this stage
established the rîghtsit claims under the Montreal Convention - that would
be for the rnerits, if thatstage is ever reached.But even were those rights
established, the obligations under the Charter prevail. Accordingly, it can
never be the case that the Security Council hrisacted unlawfully sirnply
because it has passed a resolutionthe effect of which may be ta impinge on
rights a Mernberalleges it h~lds.~~The illegaliti which is relevant to the role
of the Court as the principal judicial organ of the United Nations relates to
fundamental illegalitieof procedure and fom underthe Charter.z65
R7 Discretions reserved tothe SecurityCduneilaione
4,30 The Security Council is given prirnary responsibility for the
maintenance of international peaceand security (Article 24(1$). Paragraph I of
Article24 also provides that in carrying out its ~responsibilitiethe Security
Councilacts on behalf of the membership of the United Nations - thatis to
,
264 cf. LibyanMernoria,aragraphs.76-6.82.
265 Seefurtherklow,paragraphs4.54104.61.Say,not just on behalf of the Security Council mernbers.The composition of
the Security Council, under Article 23 of the Charter, is arrived at in such a
way as to ensure thatthe organis representativeof the UN membership as a
whole. The presence onthe SecurityCouncil of non-permanent members, who
are entirelycapable of voting negatively or abstainingif they choose, and by
such rneans preventing the adoption of a resolution by the majority specified
in Artide 27(3), provides a furtherlirikta the membership as a whole. The
permanent mernbers cannot impose a resolution; they can only "veto" a
resolution that would otherwise be adupted. That is the essential rnechanism,
not only when the Security Council permanent mernbers are in political
conflict(as was often the case during the CoId War),but also when they agree
(as was envisaged in the Charter and as has more recently been the case). The
fact thatSecurity Councilmernbers are more frequently today in agreement,
neither removes the provision in Article 24(1) that the Counçil operates on
behalf of the membership of the UN, nordues it invite the Court to replacethe
discretionexercised by the Council with its own perceptions,
4.31 The essential cornpetencesrelating to internationalpeace and security
ieserved to the Security Council andrelevant tothis case are the following:
to determine the existence of any threat tothe peace, breach of
i)
thepeace,or act of aggresçion;
ii) to select themeasures appropriate for responding to situations
that may disturb relations between States or potentially
threaten international peace and security;
iü) to decide if the demands it has put in a resolutionhave in fact
been met and,by virtue of Article41, todecide what measures
not involving the use of armed force areto be employed to
give effect to itdecisions.
4.32 Each of these essential cornpetences witl now be examinedin relation
to the facts of this case.judgement. It couldnot be ajudiçial act,as there areno legal criteriaby which
the existence of a "threatto the peace" isto bejudicially determined,or the
Security Council's own assessment thereof could be found to be legally
incorrect. The Court is indeed the "guardian of legality" - but the
determination of a threat to internationalpeace and security is not a matter of
law but of political.appreciation. Not unly is there no yardstick for appropriate
review on grounds of legality; but review by the Court wouId itself
necessarily be an alternative act of political appreciation.
4.36 Challenges by Members to an Article 39 determination by the
Security Council have not been accepted, because it is the Security Council
that isgiven thesole competence to make the assessment. The decision that it
makes is then immediately effective and is not open to challenge by any
Member. Exactly because, as Judge Weeramantry pointed out, an Article 39
finding is the condition precedent to action to maintain and restore
international peace, the Security Council's intended role underChapter VI1
would be rendered impossible if the Article 39 determination could itself be
the subject matter of litigation brought by one party to a disputebefore the
Security Council against another. The intention of Chapter VI1 would be
blocked. Moreover, the Security CounciI would be unable tofulfilitsprimary
responsibiiity for the maintenance of international peace and security, as
conferred on it by Article24(1).
4.37 Further, if the matter simply came before the Court for review as an
incidental factor in an interstate perhapsmonths or yearsafter the
adoption of the resolution, any review of an Article 39 detemination would
be incompatible with the conceptof stability andfinality inthe UN legalorder.
Mernbers have to be able to rely on Article 39 determinations that have been
the basis of UN resolutions binding on the membership,and which have
provided the legal ground for variouskinds of subsequentaction.
4.38 Determinations made by the Security Council underArticle 39 do not
become subject toreview because ofthe allegation thatthe determination was
only made in orderthat certain action could then be taken: cf. Libya in its
Mernorialat paragraphs 6.1124.12 1.Several observationsmaybe made.First,
2a7
Inthepresentcase, of couthematterinot"incidend"toaninter-stdispute-iis central
UnitedKingdomrinahvarietyoways,placestheallegedunlawfulnessothesesolutiwande
absenceofa"realkat tointernatioleaceandsecuritasthecentrepieceofits complaints.Council was seeking a necessary basis to sustain a decision to order action
under Chapter VII.Whatever the perceptions, these findings are not subject to
review by the Court. Lockerbie is surely an a fortiori case, because the
Security Council had for many years been conçerned with terrorisrn, and had
long viewed its manifestations as a threat to international peace and secusity.
4.41 The Court has clearly indicated that it isnot prepared to go behind
decisions of United Nations organsacting withintheircompetence:
"Whatever the motivation of the General Assembly in
reaching the conclusions contained in those
'paragraphs, whether or not it 'was acting wholly on
the political plane and without the Court finding it
necessary toconsider here whether or not the General
Asçembly based itsdecision on a correct interpretation
of the Trusteeship Agreement,there is no doubt ..that .
the resolution had definitive legal effect." (Noïrhern
CameroonsCase).273
"ltmust be assurned thatthe General Assembly was
mindful of the general interest when, acting within its
competence, it decided on the termination of the
Trust."274
4.42 Thereare Article 39 determinations in resolutions 748 and 883. These
reflected the Security CounciI1sview thatLibya'sfailure in concrete terms to
renounce terrorism does, in the light of al1the relevant history, constitute a
continuing threat to international peace and security. It is within the full
discretion of the Security Council to decide that a failure to respond tu
demands in a resolution which is not adoptedunder ChapterVI1 (such as
Security Council resolution 731) can constitute çuch a threat. This is not to
suggest that every failureto respond to a cal1fromthe Security Council will
necessarily merit a determination under Article 39 - it is for the Security
Council to decide in the light of al1 the circumstances and information at its
disposal.
273 ICJReports, 1963p.15atp.32.
274 Ibid.p.36. l
(2) The Seçurity Council alone is entitled to deeide what rneasures
shouldbe adoptedpursuantto an Article 39 determination
4.43 That the entitlementto decideupon measuresis a necessarycorollary
of the right to determine the existence of a threat to international peace and
security, was acknowledged by ad hoc Judge Lauterpacht in the Application
of the Genocide Convention, Further ~e~uests for rhe Indication of
Provisional Measures Case. Be there said that ahy power ofjudiciai scrutiny
by the Court
"...doeç not embrace any right of the Court to
substitute its discretion for that of the Security
Councilin detemining the existence of a threat tothe
peace, a breachof the peace or an Iacof aggresçion, or
the political ste s to be taken'following such a
determination. ~QT? I
4.44 The political steps decided upon by the SecurityCouncil in resolution
748 were those enumerated in paragraphs 4 to 7. It hasdecided, in accordance
with Article 41 of theCharter, upon measures ndt involving the use of armed
force to give effectto its decisions. They çover aviation sanctions, prohibition
on arms and related training, and reductibn of Libyan diplornatic
representation. Resolution 883 deçidedupon the steps in paragraphs 3 to 7,
clirectedat the freezing of certain funds,and furth1r aviation sanctions.
4.45 Libya devotes several pages of its ~eborial to asserting that the
measures adopted were "contrary to the principles ofjustice and internationat
without ever saying why. In any event, it is clearly for the Secunty
Council to decide what measures it thinksapproqriate. That is exactly whatis
providedfor in Article 41 of the Charter. The masures seleçted were, in fact,
restrained and carefully fashioned. But in any event rneasures adopted within
the political discretion of the Security Council @Iy not be reviewed by the
Court or replaced by measures of its awn selection, and thus cannot formthe
subject matter of any dispute before theCourt. I
4.46 As has been explained abo~e,~~t~ he Security Council was faced with
three sets of factors. The first was a longstanding concern with international
Iss 1
276 ICJReports. 1993,p.32alp.439.
Libyan Mernoria, aragraphs.7to6.79. i
277 Paragraphs.2to2.67. terrorism, which had already been the subjectof variousre~olutionç.~~~ The
second was the results of the painstaking scientific analysis and police
investigations after the destruction oflight PA103 on 21 December 1988.
These produced evidence that Abdelbaset Ali Mohmed Al Megrahi and Al
Amin Khalifa miimah caused the placing of the explosive device on Pan Am
103, and that they were officers of and acting on behalf of the Libyan
intelligence services. And, finallthe Security Council was made aware that
the United Kingdom, alongwith the United States, had asked for the surrender
of the accused for trialin Scotlnnor theUnited States.When itwas ciear that
no satisfactory cooperation was fosthcoming, the United Kingdom and the
United States içsued a declaration containing specifîcdern~inds,~t th same
time a similardeclarationwas made by Francein respect of the bombing of the
UTA Flight 772.2g0 Al1 three Governments issued a further statement
simultaneously, in which they required that Libya promptly commit itself to
cease al1 forms of terrorist acti~ity.~~' No adequate response being
forthcoming, the United Kingdom, France and the United States took the
matter tothe United Nations.
4.47 Itis within the discretion oftheSecurity Council todecide that this
convergence of events represented a rnntter properlyto be placed upon its
agenda. It is further wlthinthe appreciation of the Security Councto decide
that the eombating of international terrorism requireboth a renunciation of
terrorism by Libya, and cooperation in bringing the accused totrial in either
Scotlandor in the United States. Article 24(1) makes clear that the Security
Council was given specifiç power and discretions underChapters VI and VI1
which it could exercise. It was in the exercise of these discretionary
cornpetencesthat the SecurityCouncil didnot acceptthe argument thateither
Libyan involvement in terrorism generally, or the PA103 outrage specifically,
could be handled as ifitwere a question of legarightsand obligations under
the Montreal Convention. Notwithstanding Libya's claims to the c~ntrary,~~~
the Security Council was perfectly entitle- and subject to no review in this
entitlement - to classifythe problem as one relating te the maintenance of
internationalpeace and securityand thus requiring certain responses, rather
than toclassifythe problem as one ofprotectingalleged legal rights of Libya.
w 278
Seeparagraph2.to2.7above.
a 279 Amex7.
280 Annex5.
rn 281 Annex8.
282 LibyanMernorial,paragr6.108to6.136.
rn 87Hungary stated:
"..we are compelled to note that, although over two
months have passed since the adoption of Security
Council resolution 731 (1992), Libya has yet to
comply with its provisions. This is al1 the more
regrettable since the United Nations Secretary-
General, the League of Arab States and other
countries have spnred no effort to promote and
facilitate the implementation of that resolution.Al1 of
this castsdoubt on the value of statements expressing
readiness to cooperate with the Security Council ..
Bearing in mind the vital significance af the subjeçt
beforeus today ...Hungary has felt and continues to
feeE that the Security Council must take further
measures to ensure cornpliance with its own
resolutions."287
Austriastated:
"Terrorism is a most dangerous threat to international
peace and security.That is why it is appropriatefor
the SecurityCouncil to deal firmlywith thematter ...
[The sanctions under resolution 7483 are not
punishment; they are introduced in order to make a
certainmember of the internationalcommunitycomply
with itsobligations under the Charter of the United
~ations.
The RussianFederation stated:
"..international terrorism ...poses an overt threat to
our common security ...
...the Russian Federation, together with many other
States, has been trying for two months now to
convince the Libyan authorities to heed the will ofthe
international community. Unfortunately, these efforts,
including the good offices of theSecretary-General of
the United Nations, have not produced the desired
re~ults.''~~~
..
287 Ibidp.76.
2Xg Ibid., pp.77-78.
289 Ibid., pp.79-80.Belgium noted that even the new resolution hadlbeen subject to a two week
delay, inthe hope of securing a Libyanrespon~e.~~V ~enezuela made
"onemore appeal to the Governnient ofLibya ...that
Libya fulfil the provisions of resolution 731 (1992)
before the 15April1992deadline provided for in this
latest resol~tion".~~~
4.51 No state, including any of thase abstaining, supported Libya's
contention, which itnow deploys before the CO&, that it had complied with
Resolution731. I
4.52 TnReçulution 883 eleven states now ~0ted in favour (Cape Verde
having moved from an abstention), none against, and four states (China,
Djibouti, Morocco and Pakistan) abstained. By thattirnesorne twenty months
hnd elapsed since the Security Council issued its requests in resolution 731.
The French Representative feltobliged to observé thar
"the Libyan Governrnent has sought Iiterally tu take
advantage of our Council ...Libya may still hope to
have it believed that it is prepared to do what the
Security Council ex ects of it,ibut no one can be
dupedany longer. "29f
Spainand Brazil clearly thought the requirements yet had to be met. Hungary
spokeof "delaying tactics andunkeptpromises and the growing gapbetween
verbal statements and concrete China, while still placing its hope
on a "certain flexibility" on the Libyan part, did not suggest that the
requirements of the earlier resolutions had beenmet. Pakistan, explaining its
abstention, said that "we have not lost hope and feel thatthese endeavours
shouEdcontinue".294It did not contend thatthe new resolution should not be
passed because Libya had met the Security Council's demands. Nos did
Djibouti.
4.53 Not one single rnernber of the Security ~ouncil, the composition of
which altered between the adoption of resolutions748 and 883, and in which
the representatives of the non-permanentmembers were fully involved,
290 Ibid., p.82.
291 SfFY.3063,p.84(Annex11).
2g2 SffV.3312, p.43(Annex12).
293 fbid., p.59.
Ig4 Ibid.,pp.53and64.itseSEas to the nature or limits of its competenqe,in which case that organ
rnight request an advisory opinion. The Couit has shown that a strong
presumption of legality operates. In itOpinioo nn Certain Expenseo sfthe
United Nations (Article 17,paragraph 2 of the ~harter)~~~ it made reference
to whether the disputed actions of the Security Council and the General
Assembly in regard tothe establishment of ONUC and UNEF might have
"been initiated or carried out in a manner not in
conformity with the division of functions among the
several organs which the Charter prescribes.. .[iJf the
action was taken by the wrongi organ, [if3it was
irregularas a matter ofthat interna1structure,"
4.58 ~he Court referred to a tlpresurnption tbatsuch action is not ultra
vires the Organizationtl and was careful to saythat, even had a UN organ
acted ultm vires, the United Nations might stilbe bound to third parties.29It
is strikingthat the Court thoughr the matter of ultra vires was to be tested,
not by making its own judgement as tohow the iroblems of Congo and Suez
should have been addressed by the Security Council and the General
Assembly, but by exarniningwhether decisions, had been made within the
cornpetence of the relevantUN organ~.~~~
4.59 It is not so obvious how an issue of competence ratione materiae
could legitimately aise in contentious proceedings between Members of the
United Nations, but in any event, no issue ofcompetence ratione materiae
aises in this case. Both the Security Council andi the GeneralAssembly may
properly debate and pass resolutions on issues relating to international
terrorism and both have done so on many And a decision that
certain matters relateci to international terrorism constitute a threat to
international peace and security, and require njeasures to be taken under
ChapterVI1of the Charter, is for the Secunty Council alone. Nor is it thecase,
for reasons thathave been exarninedabo~e,~~' that, because Libya claimed
!
297 ICJReports, 1962,atp.168.
298 Ibid.p168.
299 Ibid.p.168.
300 Seeparagraph2.2to2.14,above
30 Paragraphs.15and4.29.that there was a legal dimension to the matter, itcould be discussed by the
Courtalone.No issueariseshe~-e.~O~
4.60 To respect abinding decision of the Security Council as part of its
vocation of applying international law, the Court may need to satisfy itself
that that decision has been adopted by the required voting majorities. The
Court has already in theNamibia case303addressed arguments of a State that
a particular voting practice of the Security Council was unlawful, thus
rendering invalid resolutions adopted thereby, The Court there affirmedthe
Security Council's longstanding psactice that abstention constituted a
"concurring vote" for the purposes of Article27(3). It iof interest thaccertain
judges in the Expenses case ernphasised that cornpliance with the voting
rnajority was an important element ofthe strong presumptionof validitythat
operates in respect of United Nations resolutions: see, for example, the
comrnentsof Judge Sir Gerald Fitzrna~rice.~~ This was also the view of Judge
Morelli, who observed that the legal status of a resolution was not open to
challenge unless it failed tosatisfyan essential requirement - that is, unlesit
manifested an essential defect, such as being based on an insufficient voting
rnaj~rity.~~~He indeed went so faras to say that whether the "reasons" on
which a resolution was based were "correct or not", "[ilt must be supposed
that the Charter confers finality on the Assembly's resolu~ion".~~~ Any
principle of finality operating in favour of an Asçembly resolution that
complies with formal validity, a fortior miust apply to Security Council
resolutions adopted under Chapters VI and VII.
4.61 But, even ifconsiderations relaring to sufficiency of voting rnajorities
could arise, hey do not do so in this case. Security Council resolutions731,
748 and 884 were ail adopted by the appropriate majosities. The United
Kingdomsubmits thatnone of the circumstances In which the Court rnightbe
called upon to assesswhether it indeed has beforeit a "binding decision" of
the Security Council aise in thiç case. Security Council resolutions 748 and
883 are binding decisions of the Security Council, which thereforefa11to be
302 IntheSecuntyCouncildebatethe LibyanrepresentativeithatArtic36(3)oftheCharter
meantthatonlytheCourtcoulddeal withthesematte"theSecurityCouncilis a fothat
isnotcompetentto considethe question""thisis a purelylegal question"; SIPV.3033,
pp.14-15(Annex1j.
303 ICJRepons, 1971,p.3 atparagraphs.23-26.
304 ICJ Reports1962p.151at pp.204-5.
305 Ibid., p.223.
306 Ibid., p.224. l
respected by the Court as part of its judicial funetion of appIying international
law withinthe United Nations. ,
VI Article 103 and SecurityCouneil~eso~utions748 and 883
I
4.62 In its Orderof 14 April 1992, in response to Libya's request for the
indication of provisional measures the Courtreferred to the fact that both
Libya and the United Kingdom are obliged to accept and carry out the
deeisions of the Security Council in accordance dith Article 25 of theCharter;
that prima facie this obligation extends to the;decision in resolution 748
(1992); and that by virtue of Article IO3 the obligations of the parties
prevailed over their obligations under any other international agreement,
including the Montreal Convention.307 I
4.63 The Court thus affirrnedthat Article IO3(whoseFrench text speaks of
"obligations ...en vertu de la présente charte") provides not only that
obligations derived directly from provisions of the Charter prevail over other
obligations, but also that those decisions of the iSecurityCouncil which are
binding under Article 25 of the Charter :have that effect. Judge
Shahabuddeen, who took the view at the interiin measures phase that "the
validity" of resolution 748 (1992) was to be piesurned, çoncluded that by
virtue of Article 103 of the Charter, "that odligation prevails over any
conflicting treaty obligation whiç h Libya may ihave" .30gJudges Bedjaoui,
Weeramantryand Ajibola,while dissenting on the Court's refusal toindicate
provisional measures,emphasised the importance1of Article103 in relation to
decisions adopted under Article25. Judge Bedjaoui agreedwith the majoriiy
that resolution748 at thatphase "benefits from ajpresumption of ~alidity".~~~
He concluded rhat while Article 103 would accordingly deprive any
provisional measures of uçeful effect, such orders!could nonetheless be given.
JudgeWeeramantryexpressly agreed with the majoritythat at that phase
"resolution 748 (1992) must be treated as binding on
Libya as an al1countries in terms of Article 25 of the
United Nations Charter and that, lin terms of Article
103, the obligations it lays down prevail over the
obligations flowing from any bther international
agreement. In specificterms, this meansthat Libya is,
307 JCJReparts, 1992,p.ap.15.
30g Ibid., p.28.
308 Ibid.,p.46. prima facie, bound by the provisions of that
resolution even ifthey should conflict with the rights
Libya claims under theMontreal Convention" .310
Judge Ajibolatook essentially the sarne vie^.^]Where al1three departed frorn
the rnajority view was in believing thatprovisional rneasures proprio motu
çould be issued which would not conflict with resolution 748 (19921,or with
theoperationof Article103.
4.64 Thus al1members of the Court were of the view, when dealing with
the requestforthe indication of provisional measures, that Article 103 would
operate to ensure that the obligations arising under resolution 748 would
prevail over any other obligations and rightç held by parties under the
Montreal Convention.
4.65 Since thattirne,resolution 748 has been followed by resolution 883,
and the appropriateness of the indicatingof interim measures isno longerin
issue. The United Kingdom has shown that these resolutions were both
exercises of discretion within the sole cornpetence of the Security Council,
and adoptedinfra vires and by the requiredvoting rnajority.Açcordingly,
they are valid decisions bindinp upon Libya (and al1United Nations Members)
under Article 25 ofthe Charter; and Article103 has its normal consequence in
relation thereto.
4.66 Itnecessarily follows thateven if Libya had therights and obligations
itclairnsunderthe Montreal Convention (which the United Kingdomdoesnot
accept), the resolutions would have determinative effect and prevail over
otherconflictingobligations. No issue on themerits regardingthe Montreal
Convention can thesefore arisefor the consideration of the Court, and Libya'ç
claims in relation theretoare inadmissible.Forthe reasons advanced, the UniteKingdom requeststhe Court toadjudge
and declarethat:
it lacks Surisdictover theclaims brought againstheUnited
Kingdom bythe LibyanArabJarnahiriya
the claimsbroughtagainst the United Kingdom bythe Libyan
ArabJarnahiriyaareinadmissible'
FranklinD Berman
b ge n ttheUnited Kingdom
ofGreatBritain
andNorthernIreland LIST OF ANNEXES
Volume I ofthe annexes contâins a setofbasic documents. Documents in
Volumes IIand II1areset out in chsonologi oralr.Where material has been
circuIateas a United Nations document, thedatecitedisthat of the United
Nationsdocument itself.
BASICDOCUMENTS
Annex Title andReference
Number
Convention
1 Convention fortheSuppression of UnYawfu l ctsagainst the
Safetyof CiviliaAircsaftMontreal, 23 September 1971(the
Montreal Convention), 974 United Nations Treaty Series
177.
UN Security Council Resolutions
2 Security Council Document SIRES1731(1992), 21 January
1992:Security Councilresolution 71(1992).
3 Security Council Document SIRE3748 (19921, 31 March
1992:Security Council resoluti7448(1992).
4 SecurityCouncilDocumentS/RES/883 (19931, 11November
1993: Secuniy Councilresolution 883(1993).
LettersCirculatedas UN Documents
5 General AssernblyDocument N46E825 and Security Council
Document S123306, 31 December 1991: Letter from the
French Permanent Representative to the United Nations
Seeretary-General.
6 GeneraZAssemblyDocument A1461826and SecurityCouncil
Document S123307, 31 December 1991: Letter from the
United Kingdom Permanent Representative to the United
Nations Secretary-General.
7
General AssernblyDocument AJ461827and Security Council
Document S/23308, 31 Deçember 1991: Letter from the
United States Permanent Representative to the United
NationsSecretary-General.
8 GeneralAssemblyDocument AJ461828and SeçurityCounciI
Document S123309, 3 1 December 1991 :Letter from the
Permanent Representa~ivesof France, the United Kingdom
and the United States to the United Nations Secretary-
General. Annex Title andReference
Number
9 Secuity Council Document ~12$-41, 18January 1992:Letter
from the Libyan PermanentRepresentative to the President
of the Security Council. I
UN Security coineil Debates
Security Council Document ~j~v.3033, 21 January 1992:
Provisional Verbatim record of;the 3,033rd meeting of the
SecurityCouncil. I
Security Council Document ~kv.3063, 31 March 1992:
Provisional Verbatim record of;the 3,063rd meeting of the
Security Council.
SecurityCouncil Document SPY.33 12, 11 November 1993:
Provisional Verbatim record ofithe 3,312th meeting of the
SecurityCouncil. l
Reportsofthe UN SI cretary-General
Security Couneil Document S123574, 11 February 1992:
Report by the Secretary-Generalpursuant to paragraph 4 of
SecurityCouncil resolution731(1992).
I
Security Council Document S123672, 3 March 1992:Further
report by the Secretary-General,pursuant to paragraph 4 of
SecurityCouncil resolution 71 (1992).
,
Secunty Council Document ~12'39922 , 2 May 1992:Report
of the Secretary-Generalpursuant toparagraph 8 of Security
Council resolution 748 (1992).
1
Scottish criminil Proceedings
Statement of Factsby the Lord iAdvocate of Scotlandin the
case of Abdelbaset Ali Mohrneid Al Megrahiand AI Amin
KhalifaFhirnah,Edinburgh1 ,3 ~bvember 1991.
Petition of the Procurator ~iscalof Dumfries and Galloway
chargingAbdelbaset Ali Mohmed Al Megrahi andAl Amin
KhalifaFhimah,13November1991.
Surnrnary of Scottish CriminalProcedure in MurderCases,
May 1995.
Statement of Legal Provision concerning Offences under
ScotsLaw, May 1995. CHRONOLOGICA LISTOFDOCUMENTS
(Documentsinçludedin VolurnI aremarked with anasterisk)
Annex Titland Reference
Number
1959
20 House of CommonsDebates, 16February 1959, colrimns31
to34.
21 GeneralAssemblyDocumentA/RES/2551(XXIV),6 January
1970:GerieralAssemblyresolution21(XXIV).
22 General Assem bly Document A/RES/2625 (XXV),
4November1970:GeneralAssembly resolution2625(XXV),
23 General Assembly Document ARES12645 (XXV),
30 November 1970: General Assembly Resolution 2645
m.
24 Security CouncilDocument S/RES/286(1970), 9 September
1970:SecuritCouncilresolution 286 (1970).
l* Conventionfor the Suppression of Unlawful Acts athenst
Safetyof CivilianAircraft,MontrealSeptember1971(the
Montreal Convention), 974 UniteNations Treaty Series
177.
25 General Assembly Document AIRES13034 (XXVII),
11January1973:GeneralAssemblyresolution3034 (XXVII),
26 HouseofComrnonsDelates, 16April1973,columns 43 and
44. Annex Titleand ~kference
Number
1984
Houseof CommonsDebates, 25 April 1984, columns 739 to
752.
House of CornrnonsDebates, 1:May 1984, columns 195 to
208. I
House of Commons Debates, 1iMay 1984, columns 209 to
225.
AssociatedPress report,17November 1984.
Security Council Document St15'554,9 October 1985: Note
bythe President ofthe SecurityCouncil.
l
Security Council Document S/;17702,27 December 1985:
Note by the President of the SecurityCouncil.
1986
Le Monde newspaperarticle, 5 Match 1986.
Houseof CommonsDebates, 24 April1986,columns 209 to
211. ,
Security Council Document S11864 1, 28 January 1987:Note
by thePresidentof theSecurityêouncil.
Keesing'sRecordofWorld Evenfs,VolumeXXXIII(1987),p.
35218, June 1987. I
House of Cornrnons Debates, 1i8November 1987, column
595. l Annex Title andReference
Number
38 United Nations Press Release SC15057,30 December 1988:
Statement made on behalfof Security CounciI members by
the Presidentof the SecurityCouncil.
39 Statement from the Air Accidents Investigation Branch,
United KingdomDepartmentof Transport.
Security Council Document S/RES/635, 14 June 1989:
SecurityCouncil resolution 635 (1989).
Associated Pressreport, 17June 1991.
Statementof theTrustees of the Police Dependants'Trust, 18
October 1991.
Statement ofFacts by the Lord Advocate of Scotland in the
case of AbdelbasetAli Mohmed Al Megrahi and Al Amin
KhalifaFhimah,Edinburgh,13November 1991.
Petition of the Procurator Fiscal of Dumfries and Galloway
chargingAbdelbaset Ali Mohmed AI Megrahiand Al Amin
KhalifaFhimah, 13November199 1.
SecurityCouncil Document S12322 1, 16 November 1991 :
Letter from the Libyan Permanent Representative to the
UnitedNationsSecretq-General.
General Assembly Document Al461660and SecurityCouncil
Document S123226, 20 November 1991: Letter from the
Libyan Permanent Representative to the United Nations
Secretary-General.
GeneraJAssembl yDocument A1461825 and Security Council
Document 923306, 31 December 1991: Letter frorn the
French Permanent Representative to the United Nations
Secretary-General.
General Assembly DocumentA1461826and SecurityCouncil
Document S/23307, 31 December 1991: Letter from the
United KingdomPermanent Representative to the United
NationsSecretary-General. l
Annex TitleandReference
Number
7" General AssemblyDocumentA/46/827and Security Council
Document Sl23308, 31 Decekber 1991: Letter from the
United States Permanent Representative to the United
Nations Secretary-General.
General Assembly Document4461828 and SecurityCouncil
Document 5123309, 31 Decehber 1991: Letter from the
Permanent Representatives of France, the United Kingdom
and the United States to the United Nations Secretary-
Ceneral. 1
I
General Assembly Document d46/840, 9 January 1992 and
A14618401Cor1 r.,12January 1992: Letter from the Libyan
Permanent Representative to the United Nations Secretary-
Generd, I
GeneralAssemblyDocument Ah841 and SecurityCouncil
Document 5123396, 9 January 1992: Letter from Libyan
Permanent Representative to th'eUnited Nations Secretary-
GeneraI. !
GeneraE Assembly DocumentN461844andSecurity Council
DocumentSl23416,13January 1992:Letterfromthe Libyan
Permanent Representativeto th?United Nations Secretary-
General.
Security Council Document S123436, 17 January 1992:
Letter £rom the Libyan Permanent Representative to the
UnitedNations Secretary-General.
Secunty CouncilDocumentY23441, 18January 1992:Letter
from the Libyan Permanent Representative tu the President
of the SecurityCouncil.
I
Security Council Document SA ES/ ^^(19921, 2 1 January
1992:SecurityCouncilresolution7I1(1992).
Security Council Document SIPV.3033, 21 January 1992:
Provisional Verbatim record of,the 3,033rd meeting of the
SecurityCouncil. I
SecurityCouncilDocumentS12?5003 ,1January 1992: Note
by the Presidenrofthe SecurityCouncil.
! Annex TitIeand Reference
Number
1992 (continued)
Security Council Document S/23574, 1 1 February 1992:
Report by the Secretary-General pursuant to paragraph 4 of
Security Council resolution731(1992).
SecurityCouncilDocument 5123672, 3 March 1992: Further
report by the Secretary-General pursuant toparagraph 4 of
SecurityCouncilresolution731(1992).
Security Council Document SIRES1748 (19921, 31 March
1992: SecurityCouncil resolution 748 (992 j.
Security Council Document SIPV.306 3, 3 1 March 1992:
Provisional Verbatim record of the 3,063rd meeting of the
SecurityCouncil.
Letter from the Secretary of State for Foreign and
CommonwealthAffairs teMrRobert Muir, 1ApriE1992.
UnitedNations Press Release SG11925 , April1992.
Security Council Document SIPV.3064, 2 April 1992:
Provisional Verbatirn record of the 3,064th meeting of the
SecurityCouncil.
Security Council Document S123828,22 April 1992:Letter
from the French Permanent Representative to the United
Nations Secretary-GeneraZ.
Security Council Document S123891, 8 May 1992: Letter
from the Libyan Permanent Representative to the United
Nations Secretary-General.
SecurityCouncil Document S123917, 14 May 1992: Letter
from the Libyan Permanent Representative to the United
NationsSecretary-General.
Security Council Document SI23918, 14 May 1992: Letter
from the Libyan Permanent Representative tu the United
Nations Secretary-General.
Security Council Document S/23992, 22 May 1992: Report
of theSecretary-Generalpursuant to paragraph 8 of Secunty
Council resolution748 (1992).
Houseof Commonç Debates,18June1992,columns 1038 to
1040. Annex Title and ~kierence
Number
1992 (continued)
Security Council Document S/24209, 30 Juns1992: Letter
from the Libyan Permanent Representative to the United
NationsSecretary-Genesal.
SecurityCouncil Document S124428, 14 August 1992:Letter
from the Libyan Permanent Representative to the United
NationsSecretary-General.
JANA (Libya News Agency) press report, 21 October 1992
(English translation).
House of GommonsDebates, 20 November 1992, columns
432 and 433.
General AssemblyDocument A/47/758 and Security Council
Document 9249 13, 7 December P992: Letter from the
Permanent Representatives of France, the United Kingdom
and the United States to the United Nations Secretary-
General.
Security Council Document 92496 1,16December 1992and
Security Council Document SI2496 11Add1., 18 December
1992: Letter frorn the Libyan Permanent Representative to
United NationsSecretary-General.
Security Council Document SI261 39, 23 July 1993: Letter
from the Libyan Permanent Rkpresentative to the United
Nations Secretary-General.
General AssernblyDocument &8/3 14and SecurityCouncil
Document Sl26304, 13 August 1993: Letter from the
Permanent Representatives of France, the United Kingdom
and the United States to the lnited Nations Secretary-
General. l
Security Council Document S/26313, 17August 1993:Letter
from the Libyan Permanent Representative tothe United
NationsSecretasy-General.
Security Council Document 5126500,28 September 1993:
Letter from the Libyan Permanent Representative to the
UnitedNations Secretary-Generâl. Annex Title and Referençe
Number
1993 (continued)
MaterialonScottish CriminalTrial ProcedureProvided by the
United Kingdom to the United Nations Secretary-General,
Septernber1993.
Security Council DocumentS126523,1 October 1993: Letter
from the Libyan Permanent Representative tothe United
NationsSecretary-General.
General AssernblyDocument AJ48PV.20, 26 October 1993:
General Assernbly 48th Session, 20th Plenary Meeting,
Thursday 7 October 1993 pp.4 to 10.
Security Council Document S126629, 26 October 1993:
Letter from the Libyan Permanent Representative to the
United Nations Secretary-General.
SecurityCouncil Document SlRES1883 (1993), 11November
1993:Security Council resolution 883 (1993).
Security Council Document SIPV.3312, 12 November 1993:
Provisional verbatim record of the 3312th meeting of the
Security Council.
Security Council Document S126760,17 November 1993:
Letter frorn the Libyan Permanent Representative to the
United Nations Secretary-General.
Security Council Document S126837, 3 December 1993:
Letter from the French Permanent Representative to the
UnitedNations Secretary-General.
SecurityCouncil Document SI26859,10 ûecernber 1993:
Letterfrom the Chargéd'affaio rfehe Libyan Permanent
Missionto the United NationsSecretary-General.
Security Council Document S1199419002 ,9 July 1994: Letter
frorn the United Nations SecretaryEeneral to the Security
Council President.
SecurityCouncil Declaration S/PRST/l994/40,29 July 1994.
General AssemblyDocument A/49/299and Security Council
Document 511994/238, 9 August 1994: Letter from
Representatives of France, the United Kingdom and the
United Statestothe UnitedNations Secretary-General. Annex Titleand Réference
Number
GeneralAssernblyDocument~ik9~v.23: GeneralAssembly
49th Session,23rd Meeting, 7 OÇtober 1994pp.9to 15.
I
House of ComrnonsDebates, 13JDecember1994, columns40
to 48. I
House of Cornmois Debates, 1 Eebruary1995,columns 1056
to 1064. 1
I
General Assembly Document A/REs/~~/~o, 17 February
1995:General AssembIyResolution49/60.
Security Council Document Sb1995J226, 27 March 1995:
Letter f~om the Libyan Permanent Iepresentative to the
UnitedNationsSecretaryGeneral.
Security Council Document S~PRST11995114, 30 March
1995:Note by the Presidentof the SecurityCouncil.
GeneralAssernblyDocument ~/k0/128 and Security Council
Document SJ1995f247, 30 March 1995: Letter from the
Permanent Representatives of France, the United Kingdom
and the United States to the United Nations Secretary-
Genera l l
Sumrnaryof Scottish Criminal procedure in Murder Cases,
May 1995. I
i
Staternent of Legal Provisions Concerning Offences under
Scots Law, May1995. I
l
Preliminary Objections of the United Kingdom