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CASE CONCERNING QUESTIONS OF INTERPRETATION AND
1 APPLICTHE AERIAL INCIDENT AT LOCKERBIENTION ARISING FROM
l' (LIBYAN ARAB V.UNITED STATES OF AMERICA)
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COUNTER-MEMORIAL
1 SUBMITTED BY
THENITED STATES OF AMERICA
1 31 MARCH 1999
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1 TABLE OF CONTENTS
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INTRODUCTION AND OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1 PARTI THE FACTS ......................., . . . . . . . . . . 6
Chapter 1Recent Factual Developments Bearing on this Case . . . . . . . . . . . 6
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Section 1. The Proposed Scottish Trial in the 7etherlands . . . . . . . . . . . . . .
1 Section 2. Further Indications ofLibya's Suppo10 for Terrorism ..........
1 PART II THE MONTREAL CONVENTION DOES NOT SUPPORT
LIBYA'S CLAIMS ...........................17..........
Chapter IIntroduction To The Montreal Convention ..17...............
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Chapter IThe Montreal Regime Is Not Exclusive And Does Not
1 Limit The Right Of The United States To Seek Custody
OfThe Persons Accused OfBombing Pan Am 10324... :. .......
Chapter IThe United States Did Not Violate Article 7
1 Of The Montreal Convention ...............29.............
1 Section 1. The Convention Does NaState Holdingty to
an Alleged Offender ......................30...............
1 Section Other Provisions Identified by the Court Do Not
Alter the Meaning of Article 7 ...........36..................
1 Chapter IThe United States Has Not Vi11 ...........38...
Chapter VThe United States Did Not Unlawfully
1 'Set Aside' The Montreal Convention ......45...............
Chapter VLibya's Claims Under The Montreal Convention
1 Have Become Moot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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PART III THE SECURITY COUNCIL'S RESOLUTIONS · 1
PRECLUDE THE CLAIMS ADVANCED BY LIBYA .......50
Chapter IInconsistent With Its Claims In This Case ...52...............
Chapter IThe Resolutions Prevail Over Any Inconsistent 1
Claims Of Rights Under The Montreal Conventio57............
Section 1. The Council Can Require Actions Inconsistent With1Treaty
Provisions ..................................59...........
Section 2. The Power to Require Measures Inconsistent with Treaties
Necessarily Follows From Articlesd 25 of the 62arter ....
A The Importance of Article 103, 48 and 25 ..62.........1.....
B. Enforcement Measures Affect Rights Under T65aties .....
C. Article 41 Confirms the Security Council's Power to Act
Notwithstanding InconsistentRights
Under Treatie~..........................67..... 1
D. Libya's Claims that the Montreal Convention Prevails as
Lex Posterior or As a Lex Specialis Are 67availing ........
E. lndividual UN Members Do Not Have the Right to Choose1
Whether Or Not to Comply With Security Council
Resolutions ............................69..........
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Chapter IResolutions 748, 883 And 1192 Were Valid Exercises Of The
Security Council's Authority ................71.........1...
Secti1.The Council Followed Appropriate Procedure71................
A. Libya's Attack Upon the Voting Procedure .72...............
B. Libya's Unwarranted Demand for Exhaustion ofüther 1
Means of Settlement ....................74...........
C. LiJustification...........................76......o F1ctual
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Section 2. The Council Was Not Otherwise Precluded From Acting
1 In These Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1 A. ThSupposed Threat of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
B. The Securityil Is Not Precluded From Acting In Matters
1 Involvingminal Justice ..................78........
Section 3. The Security Had Ample Foundation for Its Decisions... 81
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Section 4. Libya's Claims Based on Article 2(7) of the Charter Must Fail ... 84
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PART IV THE COURT CANNOT SUBSTITUTE ITS
JUDGMENT FOR THE SECURITY COUNCIL'S ..........85
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Chapter 1 Introduction .................................85..........
Chapter IIThe Charter System ...........................87.........
Section The Role ofthe Court ......................87...........
A. There is No Charter Basis for Judicial Revi87 ................
B. Judicial Review Was Deliberately Excluded From the
C. The Court Does Not Have the Inherent Power to Review
the Security Council's Decisions . . . . 92. . . . . . . . . . . . . .....
Section 2. Thet Has Recognized That It Does Not Have
1 the Power of Judicial Review .................95.............
Section 3. The Role of the Security Council .......98.................
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Section The Indirect Review Libya Seeks Is Likewise101ecluded .......
1 Section 5. The Council Did Not Act Improperly in Adopting Resolutions
While Libya'sims Were Before the Court .......102........
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Section 6. Concluding Observations ................103............
PART V CONCLUSION AND SUBMISSION ....................104
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INTRODUCTIONANDOVERVIEW
1 1. Pursuant to the Court's orders of30 Marchand 17 December 1998, the United
1 States of America submits its Counter-Memorial in this case.
1 2. The United States had hoped that before this submission was to be filed with
the Court, Libya would have responded positively to an initiative by the United Kingdom
1 and the United States that sought to end the impasse over the trial of those accused of
1 destroying Pan Am 103. On 24 August 1998, the United Kingdom and the United States
proposed to the Secretary-General that the accused be tried in a special Scottish court
1 sitting in The Netherlands. The Security Council rapidly and unanimously endorsed this
1 initiative through Resolution 1192.d after this initiative was taken, Libya
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1 Memorial ExhThe joint letter of the Acting Pennanent Representatives of the United Kingdoms "Counter
and the United States to the Secretary-General proposing trial in a Scottish court in the Netherlands is
1 Counter-Memorial Exhibit 2.
As requested by the Court,eproduced documents the United States has submitted to the Court
previously. As necessary, this Counter-Memorial will refer to documents contained in the two volumes of
1 documents will be referred to as "1995 U.S. ExhibitJune 1995 with the U.S. Preliminary Objections. Such
1 2The full text of Resolution 1192 is at Counter-Memorial Exhibit 3. Resolution 1192 was adopted under
Chapter VII of the Charter. ln its operative paragraphs, the Council:
1 1. Demands once again that the Libyan Govemment immediately comply with above-mentioned
resolutions;
2. Welcomes the initiative for the trial of the two persans charged with the bombing of Pan Am
1 flight 103 ("the two accused") before a Scottish court sitting in the Netherlands, as contained in
the letter dated 24 August 1998 from the Acting Permanent Representatives of the United
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publicly stated its support for such a triaL However, as of this wr1ting, seven months
after the initiative was proposed, Libya bas not transferred the accused.
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3. Part I of this Counter-Memorial describes severa! relevant factual
developments occurring since Libya initiated these proceedings. The1Counter-Memorial
then examines three setsl issues in light of the Court's judgment o1 27 February
Kingdom of Great Britain and Northem Ireland and of the United1States of America ("the
cooperate in the implementation of the initiative;ess of the Govemment of the Netherlands to
3.CaUs upon the Govemment of the Netherlands and the Govemment of the United Kingdom to
take such steps as are necessary to implement the initiative, including the conclusion of
the terms of the intended Agreement between the two Govemments1 attached to the said letter ofon in
24 August 1998;
4. Decides that ali States shall coopera te to this end, and i1 particular that the Libyan Govemment
court described in paragraph 2, and that the Libyan Govemment shall ensure that any evidence orhe
witnesses in Libya are, upon the request of the court, prompt!y made available at the court in the
Netherlands for the purpose of the trial; 1
assist the Libyan Govemment with the physical arrangements for1the safe transfer of the two to
accused from Libya direct to the Netherlands;
6.Invites the Secretary-General to nominate international obse1vers to attend the trial;
7. Decides further that, on the arrivai in the Netherlands, the Government of
the Netherlands shall detain the two accused pending their transfer for the purpose of trial before
the court describedraph 2; 1
8. Reaffirms that the measures set forth in its resolutions 748 (1992) and 883 (1993) remain in
effect and binding on ali Member States, and in this context r1affirms the provisions of paragraph
16 of resolution 883 (1993), and decides that the aforementioned measures shall be suspended
immediately if the Secretary-General reports to the Council that the two accused have arrived in
for trial before an appropriate court in the United Kingdom or the United States, and that theeared
Libyan Govemment has satisfied the French judicial authorities with regard to the bombing of
UTA 772;
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appeared for tyin accordance with paragraph 8;nal measures if the two accused have not arrived or
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10. Decides to remain seized of the matter.
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1998.Part II demonstrates how the United States has not acted contrary to any
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obligation owed to Libya under the Montreal Convention. Part III demonstrates that, in
1 any case, the applicable legal rules here are not those of the Montreal Convention.
1 Instead, the rights and obligations of the parties are established by mandatory resolutions
adopted the Securityinthe exercise of its powers under Chapter VII of the
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UN Charter. Under the Charter, those rules prevail over any inconsistent claims by Libya
1 under the Montreal ConPart IV concludes by showing how the Security
Council's decisions were properly adopted by the Council and are not subject.to review
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and revision by this Court.
1 4. The Court's judgment of 27 February 1998 makes clear that the Court has
1 jurisdiction with respect to Libya's claims only insofar as they concem the interpretation
or applicatione Montreal Convention. In its Memorial, and elsewhere in its written
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and oral arguments, Libya has directed other claims against the United States, including
1 daims that the United States has wrongly threatened the use of force against Libya in
violation of the Charter. As such claims do not concem the interpretation or application
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of the Montreal Convention, they are not within the scope of the dispute over which the
1 Court found that it haAccordingly, this Counter-Memorial will not refute
them in detail.
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3Case Conceming_Questions of InterprJMontreal Convention Arisinghe 197
1 From the Aeriallncident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary
Objections, Judgment of 27 February 1998 (hereinafter, "Judgment of27 February 1998").
1 4Idem, para. 38.
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5. As set forth in the U.S. grand jury indictment, the United States believes that
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Abdel Basset Ali Al-Megrahi (hereinafterand Lamen Khalifa Fhimah
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(hereinafter "Lamen Fhimah"), both believed to be Libyan intelligence agents, were
responsible for the destruction of Pan Am 103. However, the guilt or innocence of the
persons accused of this crime is not an issue before the1Court. The Court can and should
decide the case before it without attempting to resolve this question.
6. The Security Council bas indicated that the courts of the United Kingdom or
the United States are to be responsible for ascertaining1the guilt or Î!lllocence of the
accused. Disclosure of the detailed evidence of this crime in these proceedings, prior to a
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criminal trial accused in a United Kingdom or United States court as provided by
the Security Council, could seriously compromise the integrity of that criminal trial and
the rights of the accused. Accordingly, it would be inappropriate for the United States to
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introduce such detailed evidence before this Court.
-7In any case, no determination of the guilt or innocence of the accused is
necessary As we will demonstrate, the United States bas 1ot violated any
obligations owed to Libya under the Montreal Convention, however the question of guilt
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or innocence may eventually be resolved. Moreover, mandatory decisions
Council preclude the daims asserted by Libya unThe the Montreal Convention.
Council had an ample and compelling predicate for its decision that Libya's conduct
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posed a threat to international peace and security -- a decision that is within the unique
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51995 U.S. Exhibit l.
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responsibilityThese points are fully supported by the existing record
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this case.
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PARTI
THEFACTS 1
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CHAPTERI
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RECENT FACTUAL DEVELOPMENTS BEARING ON THIS CASE
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1.1 In light of the Court's request that parties seek to limit the volume of their
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written submissions, this Part does not repeat at length factual materials the United
Statess already submitted to the Court. For a review of f1cts related to the destruction
of PAm 103, the subsequent massive criminal investigation and the criminal charges
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brought against Messrs. Abdel Basset and Lamened Kingdom and the
United·States,the Court is respectfully referred to the Annex of Factual Background at
Counter-Memorial1.Not surprisingly, Libya bas objected to1our previous
detailed discussion of the Ams103 and of the ensuing criminal
investigation and charges.hese matters cannet be disregarded, since they are
fundamentalhe actions of the United Kingdom, the United S1ates and the Security
Council.e facts show that there was a reasonable and suff1cient basis for believing
6 1
Annex to I.C.J. Press Communiqué,Doc. 98/14, 6 April1998.
7Observations and Submissions of the Great Socialist Peop1es Libyan Arab Jamahiriya on the Preliminary
Objections Raised by the United States (hereinafter, "Libyan Observations and Submissions"), para. l.l.
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that the Govenunent of Libya is implicated in the destruction of Pan Am 103. The
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following discussion addresses several more recent factual developments relevant to this
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case.
Section 1. The Proposed Scottish Trial in the Netherlands
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1.2 The United Kingdom and the United States on 24 August 1998 proposed that
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a Scottish Court be constituted to sit in the Netherlands to conduct the trial of the two
persons accusedestroying Pan AThe letter of the Acting Permanent
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Representatives of the United Kingdom and of the United States to the Secretary-General
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presenting this initiative is Counter-Memorial Exhibit 2. This initiative was endorsed.on
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26 August by the Security Council in Security Council Resolution 1192, a Chapter VII
resolution adopted by a unanimous vote of aliIn paragraph 4il members.
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of Resolution 1192, the Council decided:
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that ail States shall cooperate [to implement the initiative for a Scottish trial in the
appearancehe Netherlands of the two accused for the purpose of trial by the court
1 describedin 2 ....aph
1 1.3 As will be discussed more fully, Resolution 1192 reflects the Security
Council's finn and unanimousthat Libya's support foritsrrorism,
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implication in the destruction of Pan Am 103 and its long-standing failure to comply with
1 the Council's previous resolutions, constitute a threat to international peace and security.
The resolution also reiterates the Security Council's binding legal requirement that Libya
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turn thè defendants over for trial, underscoring that the Council has not (as Libya has
1 argued here) simply invited negotiations or counter-proposals.
1 8Counter-Malxh3.it
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1.4 This initiative also is consistent with the calls of the Organization of African
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Unity,he Non-Aligned Movemethe League of Arab Stand the Islamic
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Conference and of ether states and organizations which encouraged such a triaL
1.5 Libya too bas repeatedly endorsed a trial by Scottish judges applying Scottish
law in a venue outside of Scotland or the United States. In its filings in this case, Libya
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suggested trying the suspects in such a venue "without opposition to the trial being
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conducted by a Scottish Court applyinWritingto the Secretary-General
in July 1994, thetary of the General People's Committee for Foreign 1iaison and
International Cooperation, H.E. Omar Mustafa Muntasser, said that Libya "can in
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principle accept the holdingial outside Libyan territory" and that this could be
done throughe holding of the trial at the seat of the International Court of Justice at
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9Letters .dated 26 June 1997 from the Permanent ObseJVersof the League of Arab States and the OAU to
the President ofthe Security Council, Doc. S/1997/497, 27 June 1997; and 9 July 1997 from the Permanent
Representative of Zimbabwe to the President of the Security Council, Doc. S/1997/529, 9 July 1997.
Counter-Memorial Exhibit 4. 1
10Final document of the Twelfth Ministerial Conference of the Movement of Non-Aligned Countries,
pages 52-53, Doc. A/511912- S/1997/406, 12 July 1997. Counter-Memori1l Exhibit 5.
lLetters dated 31 March 1994, 4 October 1995 and 3 April 1997 from the Permanent Representative of
the Libyan Arab Jamahiriya to the President of the Security Council,1Docs. 511994/373, 31 March 1994;
of Arab States. Counter-Memorial Exhibit 6.3 Aprill997, transmitting relevant resolutions ofthe League
1Letter dated 15 January 1997 from the Permanent Representative of the Libyan Arab Jamahiriya to the
Presidentthe Security Council, Doc. Sll997/35, 15 January 1997. (Transmitting Resolution 14/24-P
adopted by the Islamic Confe.renceof Foreign Ministers). Counter-Mem1ria\ Exhibit 7.
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ObseJVations and Submissions, p. 1 ("Based on a recent proposai of the Council of the League of Arab
States, Libya had accepted the idea of trying the two suspects by Scottishjudges, under Scottish law, at the
Seat of the International Court of Justice.").
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The Hague by a Scottish court applyiSecretary Muntasser confirmed this
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position in his 20 March 1998 statement to the Security Council, expressing approval of
1 the proposais by important regional otrythe two suspects by Scottish
1 judges, at the seat of the International Court of Justice in The Hague, under Scottish
law.5The United Kingdorn/United States initiative differs from proposais by Libya only
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in that the Scottish courtroom and associated facilities are to be located on a Netherlands
1 Air Foree installation rather than at the seatThe Hague. This arrangement
was strongly preferred by the Government of the Netherlands for administrative reasons
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and tobest ensure the security of ali participants.
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1.6 Libya initially seemed to accept the United Kingdom!United States initiative.
1 On 26 August1998, the General People's Comfor Foreign Affaand
International Cooperation issued a communiqué indicating Libya's acceptance:
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every international organization, was finally accepted, just as it regrets the seant regard
forhe wishes of the international community and of the International Court of Justice.
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In stating its acceptance of this evolution in theposition of the Governments of the United
1 Kingdom and the United States oan evolutwhich it has demanded
constantthe GenePeople's Commitfor ForeAffairs and International
Cooperation emphasizes t17 need to ends imposed under Security Council
1 resolutions 748 (1992) and 883 {1993).
1Letter dated 28 July 1994 from the Secretary-General to the President of the Security Council, Doc.
1 S/1994/900of29 July 1994,pp. 4-5. Counter-Memorial Exhibit 8.
13864thMeeting of the Security Council, 20 March 1998, DCounter.3864, pp. 6, 9, Il.
1 Memorial Exhibit9.
1The text of the draft Agreement between the United Kingdom and the Kingdom of the Netherlands
1 conceming a Scottish trialerlands is annexed to the 24 August I998 lener of the U.S. and U.K.
Acting PermanentRepresentatives. Counter-Memorial Exhibit2.
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1 of the SecurityCouncil, Doc. S/1998/808 (Emphasis added). Counter-Memorial Exhibit 10. President
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1.7 Libya's statement to the Security Council the next day even more clearly
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accepted the initiative. On 27 August 1998, Libya's representative told the Council:
[T]heLibyanbJamahiriyaaccepts that the two suspectsshould be tried in a Scottish
court in the Netherlands by Scottishjudges, according ta Scots law. We reaffirm this
positiontoday;ve alreadias bas been officially recorded in the Security
Council. This isa seriousirreversibleposition. 1
1.8 Notwithstanding such public statements and its previous representations to the
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Court, Libya has not yet complied with its obligations, in particular those under
paragraph 4 of Security Council Resolution 1192. The Secretary-General has worked to
arrange for the transfer of the two accused, as requested in Resolution 1192. He bas
sought to clarify detailed legal and practical points raised by Libya, and bas personally
visited Libya. Secretary-Genefforts to bring about cowithance
Resolution 1192 are continuing. However, to date, those efforts 1ave not been met by
Libyan compliance with the requirements of Resolution 1192. 1
Section 2. Further Indications of Libya's Support for Terrorism
1.9 The second set of developments bearing upon the factual background of this
case involves information that bas come to light regarding Gover1nent of Libya's long-
term involvement in acts ofThis provides additional background for the
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Security Council's calls in Resolutions 731, 748, 883 and 1192 for Libya to renounce its
support for terrorism and for the Council's associated measures affecting Libya. It also
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l3920thMeeting of the Security Council, 27 August 1998, Doc. S/PV.3920, p. 4. Counter-Memorial
Exhibit 11.
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1999. Counter-Memorial Exhibit 12./2161, 9 December 1998, and Doc. SG/SM/6896, 16 February
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1 relevant to assessing Libya's daims against the United States under the Montreal
Convention.
1 1.1O. First, shortly before the deadline for printing this Counter-Memorial, there
1 were important developments related to the 9 September 1989 bombing of UTA Flight
772 over Niger that resulted in the deaths of 170 people. According to press accounts, on
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10 March 1999, a French court in Paris found six Libyan intelligence officers, including
Abdallah Senoussi, deputy head of Libya's secret services and brother-in-law of Colonel
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Qaddafi, guilty of the bombing of UTA 772 followiThe sixial in absentia.
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defendants were sefe imprisonment.
1 1.11. UTA Flight 772 was destroyed by a bomb while in flight from Brazzaville,
1 Congo to N'djamena,An8 January 1992 communication from Libya to the
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Secretary-Ge"denied categorically" allegations of Libyan involvement in the
1 bornbings of UTA 772 aAm 103.However, in 1997, French examining
1 magistrate Judge Jean-Louis Brugière completed an Judgery. into the bombing.
Brugière's investigation, which led to the 10 March, 1999 guilty verdict, is described in
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his letter to the Minister ofF oreign Affairs of France transmitted to the Security Council
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on 6 November 1997.
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2Initial press reports are at CounThe United States is seeking official
1 proceedings now underway. The United States may wish to submit to the Court additional informationcivil
regarding these proceedings as it becomes available.
1 2Letter dated 8 january 1992 from the Permanent Representative of the Libyan Jamahiriya to the
Secretary-General, Doc. A/46/841-S/23396, 9 January 1992. 1995
n Letter dated 6 November 1997 from the Permanent Representative of France to the Secretary-General,
1 Doc. S/!997/858 (6 November 1997). Counter-Memorial Exhibit 14.
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1.12Judge Brugièrefound compelling evidence to recommen1 prosecution of six
Libyan nationals be1ievedto be intelligence operatives for the attack on UTA Flight 772.
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Arrest warrants were issued for ali six; none are in French custody. Judge Brugière's
chilling conclusions regarding the charges and evidence against these Libyan
summarizedin an earlierjudgment of the Cour d'Appel of 12June, 1998.
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1.13 Other developments also illustrate Libya's involvement with terrorism.
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Sincet brought this case in 1992, Libya has made significant public statements regarding
its involvement in terrorism. On 14 May 1992, Libya's Permanent Representative sent
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the Secretary-General a Libyan Govemment conununiqué declaring, inter alia, that
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"Libya severs relations with all organizations and groups involved in international
terrorismany kiThe communiquécontinued that "in implementat1on of the
above," Libya would "comply with the United Kingdom's request concerning its
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previous relations with the ArrnyThis confirms that Libya had
relations with one important terrorist organization. The wording (the use
"severs" in the present tense, the reference to "ali organi1ations and groups") also
suggests that Libya maintained such relations with several terrorist organizations and that
those relations continued until at least 1992. (Whether those relations have in tact been
severed is another issue.) 1
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2Relevant excerpts of the court's 12 June 1998 judgment are at Counter-Memorial Exhibit 15. Also
included for the convenience of the Court's translators is a commercially-prepared translation of these
pages. This translation has not been reviewed by the Department of State's Office of Language Services
and is not therefore certified.
2Letter dated 14 May 1992 from the Permanent Representative1of the Libyan Arab Jamahiriya to the
Secretary-General and attached communiqué,Doc. S/23917. Counter-Memorial Exhibit 16.
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1.14 On the same day, Libya's Permanent Representative sent the Secretary-
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General a second communication expanding upon this communiqué. This was a letter
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from H.E. Ibrahim M. Bishari, Secretary of the People's Committee of the People's
Bureau for Foreign Liaison and International Cooperation, indicating in greater detail the
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nature ofLibya's tangible support for the IRA. Secretary Bishari stated that:
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Libya will comply promptly and effectively with the United Kingdom's request for
infonnation conceming Libya's links with the Irish Republican Anny, including details
1 points?ncial assistance, provision of weapons, training of personnel and names of contact
1 By the only reasonable reading, this shows that Libya's past "links" with the IRA
included financial assistance, weapons, and training. Secretary Bishari then continued
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thatibya doesnowhave any link with Abu Musa or Abu Nidal." (Emphasis
1 addedThe choice of words indicates that Libya previously had links with these
prominent terrorists. (In fact, reports in the press suggest that Abu Nidal may have been
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present in Libya until the summer of 1998.)
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-1.15Although Libya bas thus sometimes acknowledged its support for terrorism,
charges of complicity in specifie terrorist attacks often have evoked deniais of
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responsibility, as they have with Am103 bombings. deniais often
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are accornpanied by efforts to place biarne on others. Thus, a 1996 Libyan letter to the
1 Security Council made the extraordinary and false claim that the
1 2sLetter dated 14 May 1992 from the Permanent Representative of the Libyan Arab Jamahiriya to the
Secretary-General, Doc. S/23918. Counter-Memorial Exhibit 17.
1 26"8omb Mastermind Abu Nidal Arrested," The Times (London) (26 Aug. 1998). Counter-Memorial
Exhibit 18.
27.L.!b Letter dated 20 November 1991 from the Permanent Representative of the Libyan Arab Jamahiriya
1 to the President of the Security Council, Doc. S/23226. 1995 U.S. Exhibit 12.
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responsible for the murder of Police Constable Yvonne Fletcher in1front of the Libyan
Embassy in London in 1984, when she was struck by a bullet fired from within the
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Embassy.In a similar vein, Libya sought to support its Memorial in this case with a
videotape of a British commercial television program, the "Maltese Double Cross." This
program contends that non-Libyan groups were responsible for the 1an Am 103 bombing.
Libya's MemoriaJ gives no explanation or foundation for this video, which is filled with
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wild and unsubstantiated charges. It has no probative value and should not be considered
as evidence for Libya's daims.
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1.16 Finally, there have been interesting developments in Germany relating to the
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1986 bombing of the "La Belle" discothequeThe discotheque was a
nightspot frequented by off-duty members of the United Thetes Anned Forces.
bomb, which was filled with iron nails, killed three people and wounded over a hundred
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persansIn November 1993, during Security Council deliberations on Resolution 883,
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Libya's representative stated that Libya had nothing to do with this bombing and had
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been completely exonLibya has maintained this position. 1
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Presidenthe Security Council, Doc. S/1996/269, Il April 1996. Counter-Memorial Exhibit 19. ("Thehe
facts show that [Police Cowas killed by a bullet fired by a United States intelligence
agent in arder to put a strainetween the Jamahiriya a"). TheUnited Kingdom ....
United States denies this oThe Govemment of the United Kingdom's response is
contained in Doc. S/1996/360, dated 21 May 1996. Counter-Memorial 1xhibit 20.
23312thMeeting of the Security Council, Il No9.1995 U.S. Exhibit/PV.3312, p.
33. 1
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President of the Security Council, Doc. S/1996/269 ("[TJhe Libyan Arab Jamahiriya is innocent of the
charges falsely made against it and contrived bygence, beginning with the accusation
ofterrorism. They include the charge ofhaving bombed a West Berlin nightclub in 1986 .... "). Counter
Memoria1 Exhibit 19.
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1 1.17 However, in February 1997, German prosecuting authorities made public the
indictments of five Libyan operatives allegedly involved in the La Belle bombing. These
1 persons are presently undergoing trial, and noneHowever, thenvicted.
Il indictments contain numerous allegations of direct involvement by, and responsibility of,
the Libyan.People's Bureau in East Berlin, particularly through the actions oftwo Libyan
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intelligence agents attached to the Peopie's Bureau, Messrs. Keshlaf and Chraidi, who are
1 alleged to have arranged the attack.
1.18 The indictments, together with the evidence being adduced at trial, suggest
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substantial Libyan Government involvement. The indictment of Mr. Mahmoud alleges
1 that Mr. Keshlaf was, at the timeBelle bombing, the head of the intelligence
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1 office at the East Berlin LibyaneChraidi was an operative accredited
33
to the East Berlin office of the People's Bureau, but active mostly in West Berlin.
1 Chraidi is also alleged to have assassinated a Libyan opposition figure in West Berlin
1 upon orders from Tripoli and then to have been hidden and assisted by the East Berlin
People's Bureau and its eThe indictment charges that the plan was to attack
1
a discotheque frequentedican soldiers or a U.S. military facility. "The purpose
1
1
1
31The indictmentof oneofthe accused,Mr.!mad Mahmoud,isCounter-MemorialExhibit21.
1 ' Iemp. 7.
33Idepp914.
1 34Jdep.8.
1
1 l6 1
was to cause the deaths of as manThe trial in th1 cases possible."
began in November 1997 and is continuing.
1
1.19 These developments -- the guilty verdicts against Libyan intelligence officers
in the 772 case, Libya's admissions ofits involvement with terrorist groups, and the
trial in the La Belle discotheque bombingclusion that Libya, at the
1
times relevant to this proceeding, was deeply involved in supporting and procuring acts
of international terrorism. They must be taken into account in assessing Libya's daims
under the Montreal Convention and its requests that this Court overturn decisions ofthe
1
Security Council.
1
1
1
1
1
1
1
1
1
35 1
Idem, p. 10.
1
1 -----------. -----
17
1
1
1
PART II
THE MONTREAL CONVENTION DOES NOT
1 SUPPORT LIBYA'S CLAIMS
1
CHAPTERI
1
INTRODUCTION TO THE MONTREAL CONVENTION
1
1 2.1 The Court's Judgment of 27 February 1998 establishes the Court's jurisdiction
to consider Libya'sonly insofar as those daims concem the interpretation and
1 application of the MontrealThe Court has not decided that the Montreal
1 Convention applies.r, it has recognized that:
[T]he parties differ on the question whether the destruction of the Pan Am aircraft over
1 Lockerbie is governed by the Mo8A dispute thus exists between the
Partieso the legal regime event,lble to this
2.2 The Court's judgment of 28 February 1998 identified four specifie disputes
1
between the parties regarding interpretation and applicationion:
1
--The first concems "the question whether the destruction of the Pan Am aircraft
1 over Lockerbie is governed by the Montreal
1
3E.gJudgmentof27 Febpara24, 28,32-35.
37
1 Thetext ofthe MontrealConvention isat 1995U.S.Exhibit 17.
3Judgment of271998,p24..
1 3Idem, para.24.
1
1 18 1
-- next 1s Libya's daim that there has been a violation of Article 7 1f the
40
Convention, read in conjunction with other cited articles;
41 1
-- third is Libya's daim that the United States violated Article 11;
-- finally, the Court identified a dispute involving Libya's claim that the United
42
States caused the Convention to be set aside contrary to its requirem1nts.
This Part demonstrates that the United States is not required by the Montreal Convention
1
to do or refrain from doing the things asserted by Libya, and that in any case the United
States bas not violated the Convention. 1
2.3 In order to analyze Libya's contentions regarding the Convention, it is
necessary to recall the Convention's background and siThe Montreal
Convention is an important component in the legal structure established by the
international community to combat attacks on civil aircraft:
The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation
[citation omitted] is the final stage in the triad of efforts by the international community to
"rhe Tokyo Convention on Offences and Certain Other Acts Co)mitted on Board Aircraft 1963he world.
and the Hague Convention for the Suppression of Unlawfulleft are of Aircraft 1970
1acunan this area, namely the problem of aircraft sabotage, which this convention seeks to fil!.
4Idem, para. 28. 1
41
Idem, para. 32.
4Idem, para. 35. 1
43Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention),
signed 14 September 1963, 704 U.N.T.S. 219. Counter-Memorial Exhibit 22. 1
44
December 1970, 860 U.N.T.S. 105. Counter-Memorial Exhibit 23.gned 16ue Convention),
l'
4C.S. Thomas and N.J. Kirby, "The Convention for the Suppression of Unlawful Acts Against the Safety
of Civil Aviation," 22 Int'! and Comp. L.Q., p. 163 (1973). See also G. Guillaume, "Terrorisme et Droit
International," 215 Recueil des Cours de 1'Academie de Droit International de la Haye, pp. 287, 312 (1989-
lli).
1
1 19
1
2.4 In aid of their primary objective of protecting civil aviation from criminal
attacks, the Tokyo, Hague and Montreal Conventions ali include provisions establishing a
1 treaty basis to ensure that at least one state --and often several states-- have international
and domestic legal authority to exercise criminal jurisdiction and, where appropriate, to
1
impose severe penalties, with respect to such attacks. The three conventions are related
1
parts of a system, in which one convention o:ften provides context or guidance for
1 interpreting the They were negotiatedrt of a continuing endeavor to
strengthen the legal regime against attacks on aircra:ft. Particularly the case of The Hague
1
and Montreal Conventions (which were negotiated within a few months of each other),
1 there are many similar or even identical provisindra:fting theecause
Montreal Convention, "the Committee used the yet unsanctioned Hague Convention as a
1
directive model, which accounts for the many parallel ·provisions
documents."
1 2.Inter athe Conventions addressed previous uncertainty and confusion asto
which state -- if any -- bad jurisdiction over particular acts threatening the safety of
1
aviation. Prior to the Coiwas generally acknowledged that states could
1 prosecute persans for crimes committed in their territory or elsewhere by their own
nationals, but there were no generally accepted views on other important matters. As a
1
1
4N.D. Joyner, Aerial Hi@jacking as an International Crime, p. 219 (1974). Indeed, following a proposai
by the Netherlands Delegation, the Montreal Conference adopted Articles 4-14
1 Conference on Air Law, Montreal, September 1971, Volume I, MINUTES, ICAO Doc. 9081-LC/170-1,
pp. 19-20 (1973) (hereinafter, Conference Records"). Counter-Memorial Exhibit 24.
1 4See,,D.P. O'Connell, II International Law 824 (2d ed. 1970).
1
1 20
senior International Civil Aviation Organization lawyer noted w1ile the Tokyo
Convention (the firstree) was Wldernegotiation in 1962-63:
The absence of unifonn international rules conceming offences and certain other acts
committed on board aircraft gives rise to serious problems. If, for example, a passenger
commits a criminal act on board an aircraft flying over the1high seas, it is possible that no
aircraft flying intemationally at great speed and at very high altitude though the airspace
of severa! states in a short period of time, sorne or all o1 the states traversed during the
commission of the crime might seek to take jurisdiction over the suspected offender with
resultant conflicts.
1
Article 3 of the 1963 Tokyo Convention resolved sorne It these uncertainties.
established that at least one state the aircra:ft's registratio1 -- "is competent
to exercise jurisdiction over offenses and acts committed on board." Article 3(2) of the
1
Convention then required that each partych measures as may be necessary
1
to establish its jurisdiction as the state of registration over offences committed on board
aircraft reinsuch state."
1
2.6 The Tokyo Convention was followed by the 1970 Hague Convention, which
1
authorized severa! additional states to exercise jurisdiction over the hijacking
aircraft. Article 2 of the Hague Convention requires parties to1make the unlawful seizure
(hijacking) of aircraft punishable by severe penalties. Article 4 then requires that each
1
state party establish its jurisdiction over hijacking in four different situations: where an
1
offense is cornmitted on board registered in that state; where a hijacked aircraft
lands on its territory with the hijacker on board; where an aircraft is leased without crew
1
to a lessee whose principal place of business is in the state; and where a hijacker is
1
sG.F. Fitzgerald,"The Developmentof InternationalRules ConcemingOffences and Certain Other Acts
Committed on Board AircrYbkInt'l Law, pp. 230-31 (1963). See also R. Hirano,
. Annualof InternationalLaw,pp. 7-8(1963). Acts Committed on Board Aircraft of 1969," 7 Japanese
1
1 21
1
present m the state's territory and is not extradited. Hence, in a particular case,
1 49
'jurisdiction may be lawfully exercised by any of four potentially involved states."
1
2.7 The Montreal Convention,·the third part ofthe structure, was adopted in 1971,
1 soon after completione Hague Convention. It was developed rapidly, in response to
an initiative by European governments following bombing attacks against Swissair and
1
Air Austria flights in FebruaArticle 3 of this Convention requires that each
state make bombing aircraft and other specified offensesbypsevereble
penalties.Then, following the pattern of the Hague Convention, the Montreal
Convention authorized several different states to exercise jurisdiction over a particular
1
terrorist attack. As Professer Lillich observed:
1 The Convention attempts to establish a form of universal jurisdiction. lt recognizes, in
registration; (2) the State of first landing; (3) the State in which the lessee has its of
principal place of business or permanent residence in the case of an aircraft leased
1 without crew; and (4) the State where the alleged offender is present and is not extradited
(Article 5).
1.
2.8 Each of these Conventions seeks to strengthen the international regime for
1 deterring attacks on aireraft. The Montreal Convention's preamble makes this goal clear:
IU]nlawful acts against the safety of civil aviation jeopardize the safety of persans and
1 the peoples of the world in the safety of civil aviation; and undermine the confidence of
l' Considering that the occurrencea matter of grave concern;
Considering that, for the purposeing such acts, there is an urgent need to
1 provide appropriate measures for punishment of offenders ....
4N.D.Joyner,supr46p181.
1 5Idem,p216-17.
1 51R.B. Lillich, Transnational Terrorism: Conventions and Commentary. A Compilation of Treatîes,
AgreementsdDeclarationsof Especiallnterestt39, (1982).dStates,p.
1
l' 22 1
(The Preamble of the Hague Convention is very similar; the Tokyo Convention does not
have a preamble.) As part of an effort to strengthen intern1·.onal protection against
attacks on aircraft, eachee convenincreathe number of states
1
with clear authority under international and domestic law to prosecute an offender
52 1
implicated in an attack, and thus to increase the likelihoodof effective prosecution.
2.9 The core of this system -- the object and purpose of the Montreal and other
·1
conventionss to require and facilitate vigorous, bona jide national criminal
prosecution of persans accused of prohibited attacks on aircraft. The Montreal
Convention must be construed and applied to give effect to t1is goal. Libya's position in
this case thus involves a terrible irony. Libya's alleged in1elligence operatives have been
accused the competent authorities in the United Kingdom and the United States of
destroyinAmP103. As ninPart I, other Libyan operatives have recently been
convicted in absentia in Franceo destroyed UTA 772. However, Libya asks
1
the Court to interpret and apply the Montreal Convention so as to prevent the United
1
Kîngdom and the United. States, bath entitled to exercise jurisdiction under both
customary law and the Convention, from doAmg103. Instead,se of Pan
Libya asks thet to give it the sole .right to submit the case for the purpose of
prosecution. Interpreting and applying the Convention as Libya seeks would
fundamentally contradict its abject and purpose. Asbserved, "the
1
1
zSee G. Guillaume, supra note 45, pp. 341-42.
1
1 23
Convention would hardiy have deterrent effect if the State accused of having directed the
sabotage were the only State competent to prosecute the persans accused of the act."
1 2.10 In this situation, as Professor Tomuschat concluded:
1 [O}necould proceed from the proposition that the Montreal Conventioncannat be held to
grant rights of prosecution to a state which has no intention whatsoever of making use of
those rights. lndeed, the Convention seeks to establish an effective system of criminal
1: If, on the contrary, aState just seeks to frustrate the objectives ofcriminal justice, it must
be debarred from invitbenefit the stipulations of the Convention. In such
a case, only the alternative of extradition can apply.
1
1
'1
1
5Judgment of27 February 1998, dissenting opinio1.of President Schwebel, p.
54
International Commissionts, p. 38, at pp. 42-43 (I 992).nal Court of Justice", 48 Review of the 24 1
CHAPTERII 1
THE MONTREAL REGIME IS NOT EXCLUSIVE AND DOES NOT
LIMIT THE RIGHT OF THE UNITED STATES TO SEEK CUSTODY
OF THE PERSONS ACCUSED OF BOMBING PAN AM 103
1
2.11 The frrst dispute concemmg the application and interpretation of the .1
MontrealConvention identified by the Court poses the question whether the Convention
55
govems the destruction ofAman103. Libya essentially contends that the Montreal
Convention assigns to Libya, and to Libya alone, the sole right to determine the
disposition the two persans accused of destroyiAm P103. However, asudge
Oda observed at the provisional measures stage, the legal regime of the Montreal
Convention is not the exclusive source of legal rules potentially applicable in this
situation. Thenvention does not bar the United States (or the United K.ingdom)from
seeking to exercise jurisdiction over the accused through other legal avenues. As Judge
Oda observed:
[A]ny State may exercise criminal jurisdiction over crimes committed in its own territory
or may claim criminal jurisdiction over acts done abroad by aliens which are prejudicial
to its security or certain offences recognized by the communîty of nations as of universal
concem.6
The Montreal Convention does not take away these rights of the United States (or the
United Kingdom) under customary international law. In particular, it does not bar the
5Judgment of 27 February 1998, para. 24.
56Case Conceming Questions of Interpretation and Application of the 1971 Montreal Convention Arising
From the Aerîal Incident at Lockeibie (Libyan Arab Jamahiriya v. United States of America), Provisîonal
Measures, I.C.J. Reports 1992, Declaration of Acting President Oda, p. 130 (hereinafter "Provisional
Measures").
'1 ---~--~- --~----------------
1 25
United States (or the United Kingdom) from requesting custody of the accused for trial
1
and from pursuing diplomatie initiatives seeking to obtain such custody outside of the
framework of the Montreal Convention, including through recourse to the Security
Council.
2.12 The Court has emphasized that the existence of rights and obligations under
a treaty does not impair the continued existence and validity of related rights and
1 obligations under customary international law. Thus, in the Case Concerning Military
and Paramilitary Activities in and against Nicaragua, the Court noted that:
even if the customary norm and the treaty norm were to have exact!y the same content,
this would not be a reason for the Court to hold that the incorporation of the customary
norm into treaty-law must deprive the customary norm of its applicability as distinct from
that of the treaty norm. The existence of identical rules in international treaty law and
customary law has been clearly recognized by the Court in the North Sea Continental
1 Shelf cases.s
Similar principles apply here. The existence of a treaty authorizing states to exercise
jurisdiction certain circumstances involving bombing attacks on aircraft does not wipe
l' away the rights of other states under customary international law also to act in relation to
such attacks.
2.13 Libya's effort to bring this matter exclusively within the ambit of the
Montreal Convention rests on a flawed syllogisLibya daims that the Montreal
Conventionis the exclusive means by which one state party may seek to exercise criminal
jurisdiction over those accusedcovered attack on an aircraft. The United States did
.
1 s; Case Conceming Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 94-95, para. 177.
'
11
1 ----------· --··--
26 1
not pursue these suspects through resort to the Convention. Therefore, Libya contends,
the United States has violated the Convention.
2.14 The major premise of this syllogism is wrong. The Montreal Convention is
notthe sole means by which one state party may seek to exercise criminal jurisdiction
over a suspect located in another's territory. The Conventionincreaseended to
the opportunities for bringing offendenot to limit tIt does not foreclose
other avenues not involving the ConventThe text of the Convention itself
emphasizes this point.
2.15 Article 5(3) con:firmsthat the Convention does not limit exercises of national
1
jurisdiction outside thetion framework. It provides that "[t]his Convention does
not excludany criminal jurisdiction exercised in accordance \vith national la1."
(Emphasis added.) Hence, the Convention does not limit national efforts to exercise
1
criminal jurisdiction on bases other than the Article 5(3) confirms that the
United-Kingdom and the United States retain the right to seek to exercise criminal
jurisdiction over those accusedroying Pan Am 103, including appropriate effort1
to gain custody of the accused through diplomatie initiatives and by bringing the situation
'1
to the attenof the Security Council.
2.16 The history of Article 5(3) shows the importance that the parties a1tached to
preserving their right to act outside the Convention framework. Article 5(3) r\1eats
1
para.12.byan Application, Part III (1); Libyan Memorial, para. 3.2; Libyan Observations and Submissions,
59The same language appears in Article 3(3) of the Tokyo Convention and Articll'4(3) of the Hague
Convention. 27
1
verbatim the text of Article 4(3) of the 1970 Hague Convention and Article 3(3) of the
1
1963 Tokyo ConvenThe ICAO Legal Committee, in preparing the draft that
1 becamethe Hague Convention, specifically considered whether the new convention could
1 in any way restrict or exclude resort to national court jurisdiction. The Committee's
discussion confirmed that it would not. For example, the Delegate ofBarbados expressed
1 concem that a draft article would prevent a State leasing an aircraft registered in another
1 State from exercising jurisdiction over a hijacker of the leased plane. The Delegate of
1 France, who served as Chainnan of the drafting Subcomrnittee, answered that the
provision of concem to Barbados:
1 did not exclude any other criminal jurisdiction exercised
national law. At the present time, French legislation provided for jurisdiction
1 over any offence comrnitted either by an alleged offender of French nationality or
against a victimench nationality, no matter where this occurred and on
dealt wbynational law which could establish jurisdiction beyond what wasof being
1 contemplatedrticle 4(1).
1 No delegation questioned France's explanation that the text did not restrict or foreclose
resort to national legal remedies apart from the Convention.
1
2.17 Thus, the Montreal Convention is just one element of the system of
1 conventional and customary international legal rules potentially bearing upon the pursuit
and prosecution of persans accused of bombing attacks on aircraft. The Convention
1
establishes that several States party to the Convention potentially can exercise
1
61971 Montreal Conference Records, p. 162-63.
1
Documents Relating to the Subject ofUnlawful Seizure of Aircraft, ICAO Doc. 8877-LC/161, p. 47 (1970)
(comments of delegate of France, chainnan of the drafting group, on the provision that would become
1 Hague Convention Article 4(3)) (hereinafter,Counter-Memorialmittee Records")
Exhîbit25.
1
1 28 1
international and domestic legal authority to prosecute persons accused of such attacks.
1
However, the Convention is by no means the sole avenue for addressing such attacks, nor
doeslimit the capacity of states to address such attacks through the exercise of rights
under customary international law. Libya ignore1 both the Convention's clear terms and
its underlying logic to.cbato acbstates outside thed as a
Convention fThe Court should reject Libya's first Montreal Convention
1
Claim.
1
1
1
1
1
1
Il
1
.1
1
1
1
1 29
1
1
1 CHAPTERIII
THE UNITED STATES DID NOT VIOLATE ARTICLE 7 OF THE
1 MONTREAL CONVENTION
2.18 The second dispute identified in the Court's judgment of 27 February 1998
1
regarding the interpretationn of the Montreal Convention involves Article
1
7. As to that provision:
1 [T]he Court finds that there exists ... a specifie dispute which concems the interpretation
and application of Article 7 -- read in conjunction with Article 1, Article 5, Article 6 and
Article 8 --of the Montreal Convention, and which ... falls to be decided by the Court.
1 The judgment thus establishes that several other articles of the Convention cited by Libya
1 (notably Articles, and 8) cannot be viewed as posing separate disputes between the
1 parties. lnstead, they are germane to this case only insofar as they relate to or are read in
conjunction withThis Chapter demonstrates that there hasbeen no violation
1 of Article 7, or of Articles 1, 5, 6 and 8.
1 2.19 Article 7 states in relevant part that:
The Contracting State in the territory of which the alleged offender is found shall, if it
1 does not extradite him, be obliged, without exception whatsoever and whether or not the
the purpose of prosecution.s territory, to submit the case to its competent authorities for
1
The United States has not violated this requirement. The text of Article 7 creates an
1 obligation only for the state in whose territory an alleged offender
persons accused of destroying Pan Am 103 are not in the territory of the United States. If
1
1- 6Judgment of27 Fpa28.ry 1998,
1
1 30 1
they enter U.S. territory, the United States will ensure that the case will be submitted to
1
its competent authorities for the purpose of prosecution (unless it decides to extradite
1
them to another state for trial), as United States has made clear by its actions and
statements since 1991. 1
2.20 Hence, Libya's daim that the United States has 1iolated Article 7 must rest
upon the contentionimpliobligation not found in the Convention's text.
Libya must be contending that Article 7 implicitly gives Libya, where the accused
persans apparently are located, a right to investigate a1d perhaps
to the right of any other Convention party. In addition, this implicit right precludes ether
1
parties to the Convention from seeking to exercise jurisdiction
do so. However, as the previous Chapter demonstrated, the Montreal Convention is not
exclusive. It does not take away states' rights under customary international law to seek
1
custody of persans accused of destroying their national aircraft. In addition, this Chapter
showsthat the Convention does not give legal priority to a party where an alleged
offender is located so as to preelude ether parties from 1eeking custody. The Montreal
Convention simply does not create priorities among the severa! states it authorizes to
1
exercisejurisdiction.
Alleged Offenderhe Convention Does Not Give Priority to a1State Holding an
2.21 The United States has not invoked and need not rely upon the Montreal
Conventionprovide a basis under international law for its1exercise of criminal
jurisdiction in relation to Messrs. Abdel Basset and Lamen Fhimah. Its rights in this
1
respect are firmly basedry international law. However, had the United States
1
1 31
1
irrvoked and relied upon theLibya's claim to jurisdiction under the
1
Convention would not be superior or entitled to priority over the U.S. claim.
1
2.22 As the previous discussion of the Tokyo, Hague and Montreal Conventions
1 makes clear, the Montreal Convention intentionally authorizes severa! different states to
prosecute persans accused oThe Convention's language, structure and
1
history show that it does not give any of these states priority over the others. Article 5 of
1 the Convention requires as many as five potentially interested states ta ensure that they
1 have criminal jurisdiction to prosecute an offense. Thus, Articles 5(
a state party ensure that it has jurisdiction:
1 (a) when the offence is committed in the territory ofthat state;
1 (b) when the offence is committed against or registered in that state;
(c) when the aircraft on board which the offence is committed lands in its territory with
the alleged offender still on board; and
1
a lessee who bas his principal place of business or, if the lessee bas no such place of
1 business, his permanent residence in that state.
(2) Each contracting party shall likewise take such measures as may be necessary to
1 Am 103]in the case where the alleged offender is present in its territory and it doest on Pan
not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of
1 this Article.
2.23 The Convention requires every party to amend its domestic law to ensure its
1 ability to prosecute offenders in eachituations. Libya does not claim that
1
1
63
over an attack like that on Pan Am 103 "committed against or on board an aîrcraft registered" in the United
1 States.
1
1 32 1
the United States has failed to amend U.S. domestic law as 1he Convention requires.
Instead, Libya contends that the United States must defer t1 Libya's wish to exercise its
jurisdiction over the allThere is no basis for this clairn that the
Convention gives Libya such priority. 1
2.24 Neither the plain language of Article 7 nor of any1ether part of the Montreal
Convention supports Libya's claim. Under the familiar principles of Article 31 of the
Vienna Convention on the Law ofTreaties, "[a] treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the ten1.s of the treaty in their
64
context and in light of its objecThis fundamental rule -- that
1
interpretation must rest on the ordinary meaning of the text -- means that Libya cannet
force into the Montreal Convention a significant obligation not contained in its text.
2.25 Commentators have observed that the Tokyo-Hague-Montreal sequence of
1
treaties does not establish priorities among the several states authorized to exercise
1
jurisdiction over an offense. The Tokyo Convention, the first of the group, affirmed that
the state of registration was competent but also expresslyiction,
1
disclaimed excluding ether "criminal jurisdiction exercised in accordance with national
66 1
law."A senior ICAO legal official characterized the result:
[T]he article on jurisdiction does not supersede any ba1is for criminal jurisdiction which
a state might have incorporated into its national laws. Hence, more than one state might
have, and claim, jurisdiction over a given offence committed on board an aircraft, and
1
64 1
Vienna Convention on the Law ofTreatîes, signed 23 May, 1969, 1155 UNTS 331, Art. 3l.
6Tokyo Convention, Article 3.
66 1
Idem, Article 3(3).
1
1 33
1
this could give rise to a conflict Proposais to67olve such conflict
1 by including a system ofpriorities in the Convention have been rejected ....
lndeed, sorne writers criticized the Tokyo Conventionidid notly because
1
establish priorities among potential claims tojurisdiction.
1 2.26 The 1970 Hague Convention, upon which the Montreal Convention is
closely based, isIrequires that several states potentially connected to an offense
1
be able to exercise jurisdiction, but it does not give priority to any of them. During the
1
Hague diplomatie conference, the Jack of a system of priorities under the Tokyo
1 Convention was recognized. However, the conference decisively rejected two proposais,
one by the Union of Soviet Socialist Republics and Poland, and a second by Ghana, to
1 provide that that statercraft's registry would have priority to claimjurisdiction.
1 As a result, there is no system of priorities under the Hague Convention:
The jurisdiction of the state of registration, the state of landing, the state of the lessee and
1 the state where the offender is presNo priorities have been fixed
despite a proposai effect in the Legal Committee and the Diplomatie Conference,
1 and despite the fact that it was pointed out that the difficulty in accepting the Tokyo
too difficult to determine the priorities.ple jurisdiction, for the reason that it would be
1 2.27 The Montreal Convention was rapidly developed in 1970-71following bomb
attacks on Swiss and Austrian airliners. The negotiators used the provisions
1
1 6G.F. Fitzgerald,supra note 48, p. 238.
6R. Hirano, supra note 48, p. 45. See also Alec Samuels, "Crimes Committed on Board Aîrcraft: Tokyo
ConventionAct 1967,"42 Brit. Ybk. lnt'1Law, p. 272 n. 7 (1969).
1
6Severa! delegations to the Seventeenth Session of the ICAO Legal Committee argued for the need to
Records, pp. 135, 153.However, the Conference ultimately rejected proposed amendments to thatommittee
1 effecSee ICAO, International Conference on Air Law, The Hague, December 1970, Volume I,
MINUTES, ICAODoc. 8979-LC70-74972). Counter-Memorial Exhibit26.
1 70
S.K. Agrawala,AircraftHijacking and InternationalLaw, p. 42 {1073)(footnotes omitted).
1
1 34 1
recently concluded Hague Convention as a reference point, repeat1ng many articles
verbatim.he debates at Montreal demonstrate that, as with the Tokyo and Hague
1
Conventions, the Montreal Convention gave no priority to any of the states it authorized
to prosecute an offense. 1
2.28 As at the Hague Conference, the delegation of the USSR1again offered
unsuccessful proposais to give priority for prosecution to the state of registry of the
aircr,rguing that: 1
as an offence against an aircraft, crew and passengers migh1 lead to severa! States
wishing to claim ju72sdiction, his proposai was that the State of Registry of the aircraft
should have primary jurisdiction.
1
However, these proposais to give priority to one of the states potentially authorized to
prosecute were rejected by the Conference by Other delegations
1
suggested that other states entitled to exercise jurisdîction besides the state of registry
1
might be best situated ta do sa; in the view of the delegate of France, for example:
_[i]twas the State in the territory of which the aircraft landed that would be in the best
position to deal with the offendem and to start prosecution.
1
However, no such suggestion gained general acceptance.
229During the debate at Montreal, severa! delegations commented on the
1
absence of a system of priorities in the new convention:
Austria --"in the field of international criminallaw and extradition law, there bad
already been sorne initiatives to establish a hierarchy of jurisdiction, but none had
1
71
N.D. Joyner, supp218-19.46,
71971 Montreal Conference Records, p. 61. Counter-Memorial Exhibît 24.
73
Idemp52-54, 58, 6!-62. 1
7Idem, p. 58.
1
1 -... ------------------
35
1
1 establish hierarchy ofjurisdiction or of requests for extradition .... "er to
Indonesia - "he bad difficulty in accepting any concept of priority of jurisdiction.
1 He could accept the conceptative jurisdictions, as bad been done in the
Hague."
1
People's Republic of the Congo -- "The USSR proposa] threw doubt on the
flexibility which bad been so laboriously achieved at the Hague and with which
1 he believed the present convention should be aligned."n
1 various claims which could be made to jurisdiction . . . he considered it logical
that there should be an ardBecause he believed that this problem
required solution he did not accept the argument that the question bad already
1 been debated at the Hague
As these statements show, there was no agreement to add any system of priorities to the
1
Montreal Convention, and none was written into the text. The delegates at Montreal did
1
not give any of the states authorized to exercise jurisdiction under the convention priority
overny other.
1
1
1
1
1
1
7Idem, pp. 61-62.
76
1 Idem, p. 62.
n Idp62.
1 7Idep62.
1
1 36 1
Section Other Provisions bythe Court Do Not Alter the
Meaning of Article 7 1
2.30 None of the four ether provisions identifted i1 paragraph 28 of the Court's
judgment as potentially bearing upon the construction of Article 7 -- Articles 1, 5, 6 and 8
1
-- materially alters the meaning of Article 7. They do not support Libya's claim for a
1
priority or create ether relevant obligations. If anything, they support the conclusion that
Libya bas neither an exclusive right to prosecute nor a priority in prosecution.
1
2.31 Article 1 defines offenses There seems to be noon.
dispute between Libya and thes that the destruction of Pan Am 103 can be
viewed as an offense under the Convention. Article 5 ob1iges parties to the Convention
to establish domestic criminal jurisdiction over offens1s in specified situations. As noted,
the United States bas done so, and Libya contends that it has done so. There is no dispute
between the parties in this respect. Libya has pointed to no conduct by the United States
that can reasonably be understood as a violation of Article 5.
1
2.32 Article 6 requires a contracting state to take into custody offenders or
1
alleged offenders found in its territory. It also requires that state to notify several ether
states of the arrest; including ail those authorized to1prosecute the offender under Article
5(1). Insofar as Article 6 may bear upon the interpretationo
confirm that the Montrealn does not give priority to a state holding the
accused. Article 6's requirement that the state holding an.offender notify each of the
ether states entitled to exercise jurisdiction allows ea1h of them to consider whether it
will seek to exercisIf so, it can take action through diplomatie, law
1
1
11 37
1 enforcement or other appropriate channels to seek a transfer of custody. There is no basis
for concluding that the United States is in violation of any obligation under Article 6.
1 2.33 Article 8 concems the interaction of the Convention with extradition
1 treaties. Libya bas identifiedhe United States contrary to Article 8, nor
has it explained how this Article is thought to support Libya's daim to priority under
1
Article 7. The most relevant aspect of Article 8 appears to be that it illustrates the
1 enabling, facilitating characteronvention. The article contaîns several
1 provisions that may facilitate the transfer of accused persons between states, either in the
context of existing extraditThis shows how the Montreal
1 Conventionimed at assisting states in bringing about the effective prosecution of
offenders, not at limiting their right or capacity to do so.
1
2.34 Thus, none of the additional provisions invoked by Libya and noted by the
1 Court paragraph 28 of its judgment -- Articles 1, 5, 6 and 8 -- bas been violated by any
action by the United States. None supports Libya's claim to have an exclusive right or
1
priorityhe investigation and prosecutioAm103.hose accused of destroying Pan
1
1
1
1
1
1
1
1 38
1
1
CHAPTERIV
THE UNITED STATES HAS NOT VIOLATED ARTICLE 11 1
1
2.35 The previous Chapter showed that the United States has not violated Article
1
7 of the Montreal Convention. In its judgment of 27 February, the Court also decided
thatthere equally exists between [the parties] . . . a dispute whi1h concerns the
interpretation and application"Article Il provides:
1
Contracting States shaH afford one another the greatest measure of assistance in
connection with crimina! proceedings brought in respect of the offences. The law of the
State requested shall apply in ali cases. 1
This Chapter demonstrates that there has been no violation of Article 11.
1
2.36 So far as we are aware, Libya's d11rest upon just one
1
request, contained in a 27 November 1991 letter in Aiabic from Judge Ahmad Al-Tahir
al-Zawi, Judgehe High Court, addressed to the foremanjurinhe feder1l grand
the District of ColThat letter did not mention the Montreal Convention or
1
7Judgment of27 February, 1998, para. 32. 1
soLener dated 27 Novernber 1991 addressed to the Foreman of the Grand Jury of the District of Columbia
by Judge Ahmad Al-Tahir al-Zawi, Count(Rule 6(e) of the Federal Rul1s of
foreperson shall have the power to administer oaths and Theirmations and shall sign ali indictments. The
forepersonhall keep a record of the number of jurors concurring in the fmding of every indictment
andhall file the record with th" See 1995 U.S. Exhibit 4). A lener dated 18
Exhibit 16, refers to a communication said to have been sent by Judge AI-Zawi to the "Attorney General of
the United States oWe have not located such a communication to the Attorney General.
However, context, it appears that there may be a typographical error in the text of the 18 January Libyan
letter. The communication referred to may have been addressed to the Attorney General of the United
1
1 1 39
identify itself as a request for assistance pursuant to Article 11 of the Convention. It was
1 not transmitted in conformity with the normal procedures for inter-state requests foz:
1 assistance in -criminal matters. It did not indicate that the Government of Libya in any
way believed the requested assistance was legally required. Instead, the letter contained a
1
general request that the foreman of the grand jury provide access to "ali the documents
1
and investigative reports related to this grievous incident."
1 2.37 Astate called upon to provide law enforcement assistance that the requester
1 daims to be legally required surely is entitled to be told of the requester's position and of
the legal basis for the request. Judge al-Zawi's request did not do either. His letter did
1
not refer in any way to the Montreal Convention. It did not suggest that there was any
obligation to provide the material sought. Instead, the letter was framed as a request, in
1
language indicating that compliance by the addressee was voluntary. ("We hope that you
1 will make this possible .... ") (Emphasis added.)
1 -2.38 In addition, the assistance requested could not lawfully be provided.
Assuming, arguendo, that Judge al-Zawi's letter was an effective request for assistance
1
under the Montreal Convention -- which we believe is highly doubtful -- the United
1 States was not obliged to provide the material requested. First, through its resolutions,
1 the Security Council has determined that United Kingdom or United States courts, and
not Libyan courts, are the appropriate venue for trial of the accused. In light of the
1
Council's actions, any criminal proceedings by Libya against the accused would be
inconsistent with the legally controlling allocation
1
1 having received one.e expected to have received such a communication but is not otherwise listed as
·1 40 1
following the Security Council's actions, the United States could1not be obligated to
respond to any Libyan request for assistance under Article 11, since any such requirement
1
would conflict with the Council's decisions allocating jurisdiction
United Kingdom courts. 1
2.39. Second, the tenns of Article 11did not require the United States to provide
1
the additional material Libya requested. The United States gave Libya a substantial
1
description of the case against the two accused. The United States transmitted to the
Libyan authorities, through the Government of Belgium, the United1States grand jury's
detailed indictment containing the charges against them. The indictment contained a
detailed description of the charges and of the criminal acts the defendants allegedly
committedThe indictment made Libya well aware of the criminal cas1 against the
accused, and offered a "road map" for any substantial bona fide criminal investigation.
1
Judgel-Zawi asked no specifie questions regarding the contents of the indictment.
1
lnstead; he made a sweeping request to the grandjury for ali docwnents and investigative
reports.
1
1
8!995 U.S. Exhibit 1.
82 1
accus@.:_.ibyan Observations and SubmissiThis suggests an imp.ortantlt of the
misunderstanding of the U.S. criminal process. Under U.S. crimina1 procedure, the indictment ofpersons
accused in a case is not the act of a judge. lndictments are accusations drafted on the basis of available
jury, which is a group of up to 23 ordinary citizens who act as a check on the power of prosecutors to bring
unwarranted prosecutions. The grand jury hears evidence and detennines whether there is sufficient basis
to proceed with the charges in the fonn of an indictment. The charges in the indictment must then be
indictment in U.S. criminal procedure is more fully described in Appendix l to the Annex of Factual
Background. Counter-Memorial Exhibit l. 1
1
1 41
1
1 2.40 Article 11 did not require theturnover this additional
extensive and sensitive material. The requirement to provide assistance under the first
1 sentence of Article 11(1)must be read together with the second sentence, that "[t]he law
of the State requested shall apply in all cases." Assistance can be provided under Article
1
11only if it conforms to the legal requirements of the requested state. As we shall show,
1
thapplic abliions of United States law directly bar providing the material Libya
1 requested.
1 2.41There was only a short discussion of Article 11 at the Montreal Conference,
after which the delegates adopted a slightly rnodified version of the text of Article 10 of
1 the,earlier Hague ConHowever, this discussion emphasized that the national
law of the requested state controls the extent of any assistance to be provided. In answer
1
to an Australian request for clarification of the second sentence (containing the reference
1
to national law), the conference secretary explained:
1 that the sentence was in fact borrowed from certain European instruments regarding
extraditArticle 10 required that States afford each other the greatest measure of
If both States were party to a multilateral extradition treaty, there would be no problem
1 because the national laws in this regard would be in conformity with that multilateral
document; however, if either the requesting or the requested States were not party, then,
1 by the provisionicle 10, the national law of the requested State would apply.
2.42The negotiating historytheimportance that delegates attached
1
to ensuring that the extent of cooperation under Article 11 was subject to the
1 requirements of national law. A working text proposed by the Chairman of the ICAO
1 8Article 10(1) of the Hague Convention reads: "Contracting States shal\ afford one another the greatest
measureassistance in connection wjth criminal proceedings brought in respect of the offence and other
acts mentioned in Article 4. The law of the State requested shall apply in ali cases."
1 S1971 Montreal Conference Records, p. 66. Counter-Memorial Exhibit 24.
1
1 42 1
Legal Committee stated that "Contracting States shall, in accord1nce with the applicable
law, afford one another the greatest measu"e However, sorne....
1
delegates viewed this as ambiguous. Accordingly, the conference decided to re-use the
Hague Convention text, which places the national law reference in a separate sentence
and leaves no doubt that assistance under Article 11 is required1only if it satisfies the
requirements of national law.
2.43 It would be contrary to United States law to provide the specifie assistance
requested by Libya. As noted, Libya's claims under Article the 21
November 1991 letter from Judge Al-Zawi to the foreman of the federal grand jury in the
86 1
District of ColUnited States law expressly forbids grand jurors from disclosing
material that cornes to them iof their duties. Rule 6(e) of the Federal
Rules of Criminal Procedure states in relevant part:
1
A grand juror, an interpreter, a stenographer, an operator of a recording deviee, a typist
who transcribes recorded testimony, an attorney for the government,
:whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose
matters occurring before the grand jury,e ithese rules.
1
No exceptions to this rule of secrecy apply to grand jurors or the foreperson. For them,
the rulenon-disclosure is absolute, and any knowing violation "may be punished as a
1
contempt of coRule 6(e) thus barred that foreperson of the grand jury from
providing the materials requested by Judge al-Zawi. 1
1
8ICAO, International Conference on Air Law, Montreal, September, 1971, Volume Il, DOCUMENTS,
Doc. 9081-LC/170-2 at 17(1973). Counter-MemorialExhibit24. 1
86
Counter-MemorialExhibit27. 1
8The full text of Rule 6(e)and associatedrules areat 1995U.S. Exhibit4.
1
1~ 43
1
2.44 Even were the particular assistance requested by Libya not directly
l,
prohibited by United States law, Articleire turning over the extensive
1 material related to the prosecution that Judge al-Zawi requested ("all the documents and
1 investigative rThe wording adopted at The Hague and carried forward at
Montreal indicates thatning the leve! of assistance to be provided, context -
1 the particular circumstances involved -- are to be taken into account. A requested state is
1 not required to provide ali assistance requested or ali that might hypothetically be
1 possible. Riis to provide the greatest measure of assistance that can be provided
in the circumstances.
1 2.45 In the circumstances of this case, it was appropriate -- indeed necessary --for
the United States to tak.einto account the substantial indications that the accused were
1
agents of the requesting state in deciding how to respond to Libya's request for
1
assistance. Clearly, in these circumstances, the provision of assistance could frustrate,
andnot promote, the effective prosecution of offenders. (And, as noted in paragraph
1
2.3itwould also conflict with the directives of the Security Council regarding the states
1
that should exercise criminaljurisdiction inthis case.)
1 2.46 Interpreting Article 11 as Libya demands conflicts with the abject and
1 purpose the Convention -- assuring the effective exercise of jurisdiction over persans
accused of attacks on ciWhen Judge al-Zawi sent his request in late
1 November 1991, extensive investigations by United States and United Kingdom
1 authorities had established substantial grounds for believing that alleged operatives of
Libyan intelligence hadAme103. The results of these investigations were
1
ali the more serious in light ofLibya's history ofusing and supporting terrorist violence.
1
1 44 1
2.47 In these circumstances, it was reasona1le for U.S. officiais to conclude that
complying with Libya's request would probably result in the premature disclosure to the
alleged perpetrators of a terrorist act of the evidence against them prior to their
88
appearance befThis would give those perpetrators a powerful tool to
disrupt further investigations and to prevent an effective trial. In these circumstances, it
would defeat the whole purposeon to interpret Article 11 to require that
1
materials presented to the grand jury be handed over as Libya asked.
1
1
1
1
1
1
1
1
1
1
88
court do not have the discovery rights that ar1 available to them after they have surrendered to the
jurisdiction ofthe court.
1
1 --------------
45
1
1
1 CHAPTERV
THE UNITED STATES DID NOT UNLAWFULLY 'SET ASIDE'
1 THE MONTREAL CONVENTION
1
2.48 The fourth and final dispute regarding interpretation and application
1 Montreal Convention identified in the Court's judgment of 28 February 1998 involves
Libyaclaithat the United States somehow caused the Montreal Convention to be "set
1 89
aside" contrary to the Convention's requirements.
1 2.49 The Court should also reject this claim. As the Separate Opinion of Judge
1 Kooijmans and the Joint Declaration of Judges Guillaume and Fleischhauer point out,
1
theCourt can have jurisdiction over this daim "only if, and in so far as, it concems the
1
interpretation and applicationmore of the provisions ofmthe Convention.•
1 Libya's-claim, however, is that the United States has acted to ''setaside" the Convention
by means that are "at variance with the principles of the United Nations Charter and ...
1
the mandatory rules of general international law prohibiting the use of force and the
violation of the sovereignty, territorial integrity, sovereign equality and political
89
Judgment of27 February 1998, paras. 33-35.
9Idem, Separate Opinion of Judge Kooijmans, para. 8.
91
Platforrns (lslamic Republic·of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J.
Reports 1996, p. 814, para. 28, in which the Court confirrned that Article I of the United States-Iran Treaty
of Amity did not incorporate and thereby bring within the Court's jurisdiction ail the rules of general
1 international law regulating peaceful and friendly relations between states.
1
1 46 1
92
independence of SThe United States denies that its actions hav1 violated the
Charter or the rules of general international law invoked by Libya. However, disputes
1
between the United States and Libya regarding the Charter or the rules of general
international law manifestly do not concem the interpretation and application of the
Montreal Convention. The Court does not have jurisdiction over them under Article 14
1
of the Montreal Convention.
2.50 Perhaps this final Libyan daim rests upon the view that the United States bas
violated another unwritten obligation in the This time, thenti1n.
unwritten obligation requires that the(and presumably all other states as
weil) not appeal to the Security Council conceming a matter claimed to be completely
and exclusively regulated by thor that it exhaust the Convention's
procedures before appealing tWe have demonstrated that the Montreal
l
Convention is not the exclusive legal framework for states to deal with the bombing of
I
their airliners, and that the Convention does not preclude states party from exercising
jurisdiction on ether bases, or from seeking the surrenderr the
1
purpose of exercising such Thus, even within the framework of the
1
Convention, Libya is not entitled to the jurisdictional priority it asserts.
2.51 Even were this not so, the Court should not accept Li1ya's final daim. Libya
contends that by applying to thetrto have it oblige Libya to
1
9Judgment of27 February 1998, para. 33. 1
9Libyan Observations and Submîssions, para. 2.16.
1
9Idem, para. 2.20.
1
11 47
surrender the accused to them the respondent deprives Libya of a right explicitly
1
recognized it by the Montreal Convention. However, it cannat violate international law
1 for a state to bring before the Security Council a situation that state believes threatens
1 international peace and security. The right to do so is recognized by Article 35 of the
Charter, which makes clear that any Member of the United Nations bas the rîght to bring
1
to the Security Council's attention any situation likely to endanger the maintenance of
1 international peace and security. Many -- indeed, perhaps most -- of the situations in
which the Security Council is urged to act in response to threats to peace and security are
1
regulated in sorne degree by treaties or involve under treaties.
1 That is part of the reason for incItcannat violate03 in the Charter.
1 those treaties for ones concemed to exercise its right under the Charter to
appeal to the SecurityCouncil.
1
1
1
1
1
1
1
1 9Article 103 of the Charter is analyzed in greater detail in Part Hl, infra.
1
1 48
1
CHAPTERVI 1
LIBYA'S CLAIMS UNDER THE MONTREAL CONVENTION
HAVE BECOME MOOT 1
2.52 This Part lat the United States has not violated Articles 7 or Il
of the Montreal Convention or any ether Article referred toby Libya. However, the
1
Court need not decide Libya'sthe Convention, for the issues raised by those
daims have become moot. As Part III ofthe Counter-Memorial shows, the legal rules
applicable in this dispute are those established by binding1resolutions
Council. Accordingly, any decision by the Court on Libya's daims under the Montreal
Convention would be without practical abject or effect. 1
2.53 At theiminary Objections stage of this case, the C1urt decided that the
Security Council's Chapter VII resolutions were not a bar t1 the admissibility of Libya's
Montreal Conventionbecause those resolutions were adopted after the Application
96 1
was filNevert:heless,the resolutions must be taken into account at the current merits
stage. The situation as to Libya's Montreal Convention daims is thus like that in the case
1
concerning the Northern Cameroons, where the Court declined to decide the Cameroons'
l'
daims because doing so would be without legal consequence. In that case, as with
Libya's Montreal Convention: 1
safeguard the judicial function. Whether or not at the moment the Application was fi led
there was jurisdiction in the Court to adjudicate upon the dispute submitted to it,
circumstances that have since arisen renderUnderadjudication devoid ofpurpose.
1
9Judgmof2February1998,para.43.
1
1 49
1
these conditions, for the Court to proceed further in the case would not, in its opinion, be
1 ·aproper discharge of its duties.
1 2.54 The Court followed the same wise course in the Nuclear Tests cases,
dedining to decide the Applicants' daims where the dispute that gave rise to them had
disappeared:
1 The Court, as a court of law, is called upon to resolve existing disputes between States.
judicial function ... The dispute brought before it must therefore continue to exist at the
time when the Court makes its decision. lt must not fail to take cognizance of a situation
1 in which the dispute bas disappeared ....
1 Australia no longer has any abject. 1tfollows that any further finding would have no
raison dsêtre.
1 For the same reasons, the Court should not decide Libya's daims based upon the
1 Montreal Convention. Thoseve become moot as a result of the Security
Council's mandatory resolutions. Asto them, "no further pronouncement is required ....
1 The object of the daim having dearly disappeared, there is nothing on which to give
judgment.
1
.1
1
1
1
9Case Conceming the Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 38.
&Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 270-271, paras. 55-56.
l'
9Idem, pp. 271-272, para. 59.
1
1 50 1
1
PARTIII 1
THESECURITYCOUNCIL'SRESOLUTIONS
PRECLUDETHECLAIMSADVANCEDBY LIBY A
1
3.1 Part II of this Counter-Memorial showed why the Court1should reject Libya's
four claims that the United States has violated the Montreal Convention. But were any of
these daims under the Convention valid, the binding resolutions of the Security Council
adopted under Chapter VII of the Charter have nevThoseless di1placed them.
100
binding resolutions establish the controlling legal rules in this case.
3.2 The Court bas already recognized the controlling effect of the Security
Council's resolutions. In its 14 April 1992 Order denying Libya's request for provisional
measures, the· Court was not prepared to decide fmally the legal e:ffect of Security
1
Council ResolutioHowever, the Court's Order clearly recognized the legal
authority of the rules established by Security Council Resolutions, and made clear states'
duty to comply with them: 1
Whereas bath Libya and the United States, as Members of the United Nations, are
oArticle 25 of the Charter; whereas the Court, which is at the stage of proceedings on
provisional measures, considers that prima facie this obligation extends to the decision
containedesolution 748 (1992); and whereas, in accordanc1 with Article 103 of the
Charter, the obligations of the Parties 101that respect prevail over their obligations under
any ather international agreement, including the Montreal Convention ....
1
100
However, the Court concluded that the Uriited States arguments regarding the resolutions' effect did not,
"in the circumstances in the case, have an exclusively preliminary character." Judgment of 27 February
1998,para. 53(3). 1.
10Provîsîonal Measures, p.l26, para. 42.
1
1 51
1
The Court bas thus concluded that prima facie the obligations imposed by Resolution 748
govern this case. Libya bas shawn no reason to reverse that conclusion at this final stage.
3.3 Judge Weeramantry, while dissenting from the judgment of the Court on other
grounds, described the legal effect of the resolutions clearly:
1
Without expressing definitive views on the matter at this stage of provisional measures, 1
1 take the view that resolution 748 (1992) must be treated as binding on Libya as on ail
countries in terms of Article 25 of the United Nations Charter and that, in terms of
Article 103, the obligations it lays down prevail over the obligations flowing from any
other international agreement. ln specifie terms, this means that Libya is, prima facie,
Libya daims under the Montreal Convention. In this respect, I am in agreement with the
viewf the majority of the Court.
3.4 Chapter 1of this Part reviews the specifie legal rules established by Security
Council Resolutions 748, 1192. Chapter II analyzes how the rules established by
those resolutions are binding on Libya and other Members of the United Nations under
the Charter. This Chapter also rebuts severa! Libyan arguments against the controlling
effect of the resolutions. Chapter III shows how the Security Council properly adopted
1
its resolutions in the exercise of powers conferred by the Charter. It also refutes severa!
1 additional Libyan arguments that these resolutions were not validly adopted or are
otherwise invalid or ineffective.
1
1"
1
10Idem,DissentingOpinionof JudgeWeeramantry,p. 177.
1
1 52 1
1
CHAPTERI
LIBYA'S OBLIGATIONS UNDER THE RESOLUTIONS ARE CLEARLY 1
INCONSISTENT WITH ITS CLAIMS IN THIS CASE
1
3.5 The United States maintains that Security Council Resolutions 748, 883 and
now 1192 require the transfer Libyan suspects for trial in a United Kingdom or
United States court, including the proposed Scottish court to be convened in The
Netherlands. Libya has denied that resolutions 748 and 883 have this effect, instead
contending that they should be interpreted merelybyan proposais, offers
103
to negotiate, or other significantly lower This Chapter showsiance.
that the applicable Security Council resolutions do indeed impose a legal obligation to
transfer the suspects for trial.
-3.6 The Court may wish to begin consideration of this issue by recalling
Resolution 1192 relating to the United Kingdom!United States ini1iative for a trial of the
104
accused in The Netherlands, adopted by the Security CouInil on 26 August 1998.
Resolution 1192, the Council emphasized that Libya bad not complied with its past
resolutions, and demandedative paragraph 1 that Libya immediately do so. In
paragraph 4, the Council:
1.
Decides that ail States shall cooperate [ta implement the initiative]... , and in particular
that the Libyan Government shall ensure the appearance in th1 Netherlands of the two
10~.Libyan Memorial!~·ara. 6.6, 1.
w4Counter-Memorial Exhibit 3.
1
1 53
1
accused for the purposebythe Court described in paragraph 2 . . . . (Emphasis
1 added.)
3.7 Thus, Libya's obligation under the applicable Security Council resolutions is
1.
not to make counter-proposals or to offer to negotiate, as Libya would have it. Rather, as
l'
the Security Council reiterated in Resolution 1192, it isppearance ... of
the two accused for the purpose of triaL" Libya's representative clearly acknowledged
1
that the resolution bad this effect during the Security Council debate prior
Resolution 1192.
3.8 Prior to Resolution 1192, the nature of Libya's obligation to transfer the
accused was likewise quite clThe.taiting point in the structure of Libya's
obligations Security Council Resolution 731, adopted unanimously on 21 January
1992.06In that resolution, ali fifteen Council members declared themselves "deeply
concerned over the results of the investigations, which implicate officiais of the Libyan
Government" in the bombings Am P103 and UTA 772. The Couneil urged Libya
1 to respond fully to specifie demands from the British, United States and French
1 governments contained in several SecurityCouncil docwnents. Threeents
merit particular mention:
l'
--Document S/23308is a Declaration of the United Kingdom and United States
Governments issued soon after the Scottish and U.S. criminal charges were
1 announced inNovember 1991. The two Governments called for Libya to
surrender for trial before United Kingdom or United States courts the persans
103920th Meeting of the Security Council, 27 August 1998, Doc. S/PV.3920, p. 5. Counter-Memorîal
Exhîbit Il.
106
1995 U.S. Exhibit 18.
1 101995 U.S. Exhibit 9.
1 54 1
charged with destroying Pan Am 103, to accept responsibility for their actions, to
provide full disclosure, and to pay appropriate compensation.
-- Document S/23306was a communiqué from the Presidency of the French
Republic and the French Ministryoreign Affairs, demanding that Libya
produce evidence and otherwise cooperate in France's investigation of the 1989
bombing of UTA Flight 772.
-- Document S/23309was a tripartite French/British/United States declaration
of 27 November 1991. In it, the three Govenunents "require that Libya comply
with ali [their] demands, and, in addition, that Libya commit itself concretely
and definitively to cease ail fonns of terrorist action and aU assistance1to terrorist
groups."
Through Resolution 731, the Security Council unanimously adopted these demands 1"r
specifie actions by Libya as its own.
1
3.9 The Council next adopted Resolution 748, which established Libya's legal
duty to transfer the accused. It was adopted by 10 votes in favor, with no nega1ive votes
and five abstentioAustria, Belgium, Ecuador, France, Hungary, Japan, Russia, the
1
United Kingdom, the United States and Venezuela voted for it. Resolution 748 directs
that Libya "must now comply without any further delay with paragraph 3 of Resolution
731." (Paragraph 3 refers to the documents containing the French, British and U.S.
demands summarized above.) The Council thus placed a binding legal obligation upon
Libya to do the things specified in those documents. Libya was legally required, among
other things, to surrender for criminal trial in the courts of Scotland or the United States,
the persans charged with destroying Pan Am 103.
101995 U.S. Exhibit 10.
101995 U.S. Exhibit 11.
1 55
1
3.10 It was weil understood by Council members that, in adopting Resolution
1
748, the Council was imposing a legal obligation to transfer the accused for trial in a
1 UnitedStates or United Kingdom coThe representaof the United States
110
'1 expressed this understaLibya, too, understood Resolution 748 this way. Before
this Court, Libya objected to Resolution 748 precisely because it required Libya to
1
transfer its nationals The Cours'Order of April 14 1992 records Libya's
1 contemporaneous understanding of Resolution 748:
[WJhereas in its observations on Security Council resolution 748 (1992) presented in
response to the Court's invitation, Libyaby deciding, in effect, that
1 Libya must surrender its nationals to the United States and the United Kingdom, the
Security Council infringes ... rights conferred on Libya ....
1.
3.11 The Security Council subsequently confrrmed its On 11rements.
1 November 1993, Resolutionfound that Libya's continued failure to demonstrate its
renunciationterrorism, and to respond effectively to the Council's earlier resolutions,
Il
constituted a threat to international peace and security. Paragraph 16 of Resolution 883
1;
reiterated and made clear the's requirement to bring about the transfer of the
1 accused for trial in United Kingdom or UnitedurtIn paragraph 16, the
Council expressed its readiness to suspend sanctions against Libya:
immediatifthe Secretary-General reports to the Councilthat the Libyan Government
before the appropriate United Kingdom or Uniand has satisfied thean Am 103for trial
Frenchjudicial authorities with respect to the bombing of UTA 772 ....
1
113063rdMeeting of the Security Council, 31 March 1992, Doc. S/PV 3063, p. 66. 1995 U.S. Exhibit 22.
1 111
Provisional Measures, p. 125, para. 38.
111995 U.S. Exhibit 32.
11Emphasis added.
1 56
Resolution 883 was adopted by eleven votes to none. Brazil, Cape Verde, France,
Hllilgary,Japan, New Zealand, Russia, Spain, the United Kingdom, the United States and
Venezuela joined in voting for it. The statements of the Representatives of the United
States, France, the United Kingdom, Russia, Spain and Hllilgary demonstrate the
Collllcil's llilderstanding that its resolutions required Libya to hand over the suspects for
trialtl4
3.12 As noted earlier, Resolution 883 was recently followed in August 1998 by
Resolution 1192,though which a llilanimousCouncil called attention to Libya's failure to
comply with its duty llilder previous resolutions to surrender the two accused, and again
demanded "that the Libyan Government immediately comply" with those resolutions.
The Collilcil also expressly required ''that the Libyan Govemment shaH ensure the
appearance in the Netherlands of the two accused for the purpose of trial .... "
3.13 Thus, notwithstanding Libya's imaginative contrary interpretations,
Resolutions 748, 883 and 1192 create clear and binding international legal obligations.
They require Libya to surrender for a proper criminal trial those accused of having
destroyed Pan Am 103. They further require Libya to provide ail relevant testimony and
evidence to the Scottish court to be convened in The Netherlands as that Court may
direct. These requirements are inconsistent with Libya's assertions that it has the sole
right totry the accused, and that the United States must band over to Libya the evidence
considered by the grandjury and the record of its proceedings.
114See 1995 U.S. Exhibit 33, pp. 41,44-45, 55, 58, 62. 57
1
1
1 CHAPTERII
1 THE RESOLUTIONS PREV AIL OVER ANY INCONSISTENT CLAIMS OF
RIGHTS UNDER THE MONTREAL CONVENTION
1
3.14 This Chapter examines Libya's international legal obligation to honor the
1 requirements of Resolutions 74Libya must comply with these
resolutions, even requirements might conflict with rights asserted by Libya under
the Montrealntion.
1
3.15 This legal situation follows directly from sorne of the most clear and
1 fundamental provisions of the United Nations Charter, principles that Libya's arguments
often disregard or distort. Through the Charter, the Members of the United Nations gave
1 the Securityil primary responsibility for the maintenance of international peace
1 and secuThey also empowered theto act on their behalf in seeking to
1 maintain international peace and security. As Article 24(1) of the Charter establishes:
ln arder to ensure promptand effectiveactionbythe UnitedNations,itsMembersconfer
1 on the SecurityCouncilprimaryresponsibilityfor the maintenanceof internationalpeace
Councilotheir behalf.that incarryingoutitsduties underthis responsibilitythe Security
1· 3.16 The Council's powers relating to theandintenance ofintemationalpeace
security are of course not unlimited. The Council, like ali other organs of the United
1
Nations, must exercise its powers in accordance with the limitations and requirements of
1
1
1
1----------·-~-----------------------------------------
58 1
the CharteNevertheless, under Article 39 of the Charter, the Council has the duty and
1
authority ta determine the existencea the peace, breaches of the peace, or acts
1
of aggressTa deal with such situations,hathe exceptional power to
authorize the useUnder Article 41, the Council is also authorized to:
decide what measures not involving the use of armed force are to be employed ta give
effect to its decisions, and it may cali upon the Members of the United Nations to apply
such measures. These may include complete or partial interruption of economie relations
severance of diplomatie relations.egraphie, radio and other me1ns of communication, and the
3.17 'Where the Council makes decisions in\ the exercise of these powers,
Membersof the United Nations have uanunquestionable commitment to
implement those decIn Article 25, Members specifically agreed "to accept and
carry out the decisionsecurity Council in accordance with the present Charter."
1
Article 48(1) is to sirnilar effect:
1
The action required to carry out the decisions of the Security Council for the maintenance
of international peace and security shall be taken by ali the Members of the United
Nations or by sorne ofthem, as the Security Council may determ1ne.
·Article 103 establishes that in case of any conflict between the obligations of members
under the Charter and under any other international agreement, their Charter obligations
prevail.
3.18 Thus, the Charter's clear system requires all States, and in particular Libya,
to carry Resolutions 748, 883 and 1192. Nevertheless, Libya has presented an array
of arguments seeking to evade these CharteSorne involve dubious 1
1:
1Conditions of Admission of a State to Membership in the United Nat1ons (Article 4 of the Charter),
Advisory Opinion, 1947~p64 (hereinafter, "Admissions Case").
1
1 59
1
interpretations of the Charter; ethers rest upon other grounds. None of them provides a
1
lawful basis for relieving Libya implement the Council's resolutions.
1 Secti1. The Council can reactioinconsiswith treaty
provisions
1 3.19 Libya first argues that the Council's power to require Members to carry out
1 its decisionsbythe requirements of other treaties. Libya in effect contends that
the Council cannet require any State to take any action contrary toits rights under treaties
1 such as the Montreal Convention.
1 3.20 This argument seems based in two Charter provisions. First, Article 24(2)
requirest,. in discharging its duties, the Council "shall act in accordance with the
1
Purposes and Principles of the UArticle 1(1) lists sorne of those
1 Purposes, including the settlement of international disputes "in conformity with the
1 principles of justice and inTherefore, Libya's argument goes, the
Securityuncil can tak.e no action which conflicts with existing requirements of
1 international law, including treaties such as the Montreal Convention.
1 3.21 This argument cannot withstand analysis. It does not reflect the language of
1 the Charter, or the long-standing practice of States. To begin, the argument's minor
premise fails because it selectivelyrence to the principles of international
1 law out the limiting context of Article 1(l) of the Charter. This fundamentally distorts
1 the scope and effect of the reference. Article 1(1) must be read in its entirety:
1
1 11SeeLibyanMemorial~~-ras.6.64,
1
1 60 1
The Purposes of the United Nations are: 1
collective measures for the prevention and removal of threats to the peace, and for the
suppression of acts of aggression and other breacbys of the peace, and to bring about
peaceful means, and in conformity with the princip/es ofjustice and of international law,
adjustment or settlementtional disputes which might lead to1a breach of the
peace (emphasis added).
3.22 Thus, Article 1(1) establishes as the first Purpose of1the United Nations "to
maintain international peace and security." To that end, the Organization carries on two
broad types of activities, corresponding to the types of activities foreseen by Chapters VI
and VII of the Charter. First, it may "take effective collective1measures" to prevent and
remove threats to the peace,zed by Chapter VII. Second, it is to "bring about
1
by peaceful means" the settlement of international disputes, as authorized by Chapter VI.
1
The reference to the principles of international law occurs in this latter clause of Article
1(1),corresponding to.the Organization's activities under Chapter VI. Libya's argument,
1
however, ignores thistinstead seeks to expand the phrase to caver as weil
1
actionstinChapter VII situThis is not a correct reading of Article 1(1).
3.23 The reference to the principlesal law received close a1tention in
the drafting of Article 1 at San Francisco. The Committee concem1d intentionally moved
the phrase "in conforrnity with the principles of justice and international law" from the
first partaragraph 1 to its present location in the latter part, so that it would only
apply to the adjustment or settlement of internationaTheisputes o1 situations.
t1E.g., Libyan Observations and Submissions, para. 4.13. 1
1n See 6 Documents of the United Nations Conference on International Organ.ization, "Report of
(hereinafter, "DUNCJO"); see also Judgment of 27 February 1998, Dissenting Opinion of President)
Schwebel, p. 11.
1
11 61
Committee Rapporteur's Report showed that this change was made to ensure that the
1
critical task of preventing or removing threats to and breaches of the peace could include
1 measures that night conflict with particular rulesw otherwise
119
1 applicable.
3.24 Thus, it was clear from the outset that preventive or enforcement action
1
under the Charter could --and often would -- require measures over-riding the legal rights
1 of states under treaties. However when it came to "adjusting or settling" disputes or
situations in the non-coercive framework of Chapter VI, the Organization would be
1
expected to act in conformity This correspondseaties.m of
1 Chapters VI and VII of the Charter. Actions by the Security Council in Chapter VI
1 situations are in essence recommendations to the parties to a dispute. Implementation
requires consentparties, because Chapter VI does not give the Security Council the
1 power to impose solutions. In this context, involving the peaceful settlement of disputes
1 based on the consentarties, existing treaties may provide a central framework for
constructing recommendations likely to be accepted and implemented.
1
3.25 Situations involving the exercise of the Council's powers under Chapter VII
1
are fundamentally different. These by definition involve at least a threat to international
peace, if not an actual breach of the peace or act of aggression. They characteristically
1
require more substantial and intrusive measures to restore peace and security.
1 Recognizing this, the draftersII gave the Council the exceptional power
1 under Article 42 to authorize the use of force. In ether Chapter VII cases not requiring
1
16 DUNCp453.
1
1 62
1
the use of the force, the Cotu1cil likewise was authorized ta act vigorously ta campel
1
complianThis necessarily includes the power ta decide upon measures conflicting
1
with the rights of States under treaties and under general international law. Absent such
power, the Charter's regime for meeting threats ta or breaches of the peace without the
1
use of force would beeome a paper tiger.
1
3.26 This power of the Council is confirmed by severa! Charter provisions, by
commentators, and by widespread and important international practice.
Section The Power to Require Measures Inconsistent with Treaties
Necessarily Follows From Articles 103, 48 and 25 of the Charter
A. The Importance ofArticles 103, 48 and 25 1
3.27 Articles 103, 48 and 25 of the Cis power under the Coune
1
Chapter VII to require measures inconsistent with treaties and general international law.
Article 103 provides: 1
In the event of a conflict betweenthe obligationsof the Membersof the United Nations
':lfthe present Charter and their obligations under any1other internationalagreement,
their obligationsunderthe presentChartershaHprevail.
Article 48 requires that action to carry outcisions "shall 1e taken by
ali the Membçrs of the Security Council or by sorne of them, as the Security Council may
1
determinInArticle 25, Members "agree to accept and carry out the decisions of the
Security Council in accordance with the present Charter," thus explicitly obliging UN
Members to carry out CouncThe Court has emphasized the part1cular
importance of this obligation:
[W]hen the Security Council adopts a decision under Article 25 in accordance with the
Charter,is for member States ta complTa hold otherwiseion ....
1
1
1 63
1
Charter. ta deprive this principal organ of its essential functions and powers under the
1
1 3.28 Read together, these fundamental Charter prov1s10ns establish beyond
question that the Council can adopt measures requiring actions which conflict with pre-
1
existing rights and obligations under a treaty such as the Montreal Convention. Under
1
Articles 25 and 48, States are bound to carry out such decisions. Under Article 103, this
obligation under the Charter prevails over obligationsternational
1
agreement."
1
3.29 Nevertheless, questions·have been raised regarding the effect of Article 103.
1 Article 103 by its terms appliesunder the present Charter." It has
1 been suggested that this wording encompasses only obligations stemming directly from
the articlese Charter itself and not obligations stemming from Security Council
1 resolutioHowever, states' duty to comply with resolutions is derived directly from
Articles 25 and 48 of tThe force of the Security Council's Chapter VII
1
resolutions stems from states' obligations under the Charter to carry them into effect.
1
Thus, Members' obligations to carry thelutions into effect are "obligations
1 of the Members of the United Nations under the present Charter." As Professer Bernhardt
concludes regardi103:riicle
1
To the extent that the Charter provides for the competence of UN organs to adopt binding
decisions, measures tak.en in accordance with such provisions can lead to obligations of
1 the members that prevail under Art. 103, notwithstanding any other commitments of the
1 1Legal Consequences of States of the Continued Presence of South Africa in Namibia (South West
para. 116 (hereinafter,nion").Resolution 276, Advisory Opinion, I.C.J. Reports 1971, p. 54,
1 1Judgment of27 February 1998, Separate Opinion of Judge Rezek, para.2.
1
1 64 1
members concemed. This holds true for decisions and enforcement1measures of the SC
carry out the decisionscurity Council in accordance with the present Charter', and
they are also bound, according to Art.these obligations priority over any
other commitments. 1
3.30 It has also been noted that Article 103 speaks only of states' "obligations"
1
under their treaties and not of their "rights." Hence, it is suggested that the primacy of
1
Charter obligations under Article 103 may not extend to "rights" under a treaty or under
general internationaThis suggestion also gives too little weight to 1tates'
obligations under the Charter. The obligation to comply with Security Council decisions
1
under Articles 25 and 48 of the Charter applies equally to decisions affecting the rights
1
and to those affecting the obligations of states.
3.31 Thearter creates an unqualified duty to accept and carry o1t the Council's
decisionThe duty to carry out thel's decisions will often require states to
1
forego the exercise of rights otherwise available to them under treaties or under general
intemat~ona lccrw.gly, in interpreting this aspect of the Charter, 1his Court bas
not recognized any distinction between "rights" and "obligations." It bas instead stressed
1
the breadth and importance of these CharteCom.mentators have also
stressed the breadth of states' obligations to carry out the decisions of the Council and do
not support the view that their duty does not include actions affecting "rights."
1
12R. Bernhardt, "Article 103," in The Charter of the United Nations: A Commentary, p. 1120 {B. Simma
ed. 1994) (hereinafter,See T. Flory, "Article 103," in La Charte Des Nations Unies, pp. 1382§
83 (J.P&A. Pellet 2d ed. 1971)&(Pellet"); J. Combacau, Le Pouvoir de Sanction de
L'O.N.U., p. 283 (1974).
1
12Se~, Namibia Opinion, p. 54, para. 116.
124
bound by Art. 25 'to accept and carry out the decisions of the Security Council in accordance with the
present Charter', they are also bound, according to Art. 103, to give these obligations priority over any
1
1 65
1
B. Enforcement Measures Often Affect Rights Under Treaties
1 3.32 Enforcement measures by the Security Council under Article 41 often require
1 one state to forego commerce with another state, or to prevent its nationals from investing
or doing business there, even though the rights to trade, invest or do business may
1
otherwise be protected by treaty or customary international law.
1
likewise require states to limit their diplomatie contacts or take other actions inconsistent
with customary international law rightSuch measures obviously
1
have the effect of preventing, at least temporarily, the exercise of otherwise existing
1
treaty and legal rights and obligations of states. Yet, because they are expressly provided
1 for by the Charter, they prevail such conflicting legal rights and
1 obligations by operation of Article 103.
3.33 There are many historical examples of decisions by the Security Council
1 under Article 41 that pose conflicts with treaty obligations or rights under general
1 internationaIn this case, Resolutions 748 (1992)directed a1993)
variety of measures limiting commerce and diplomatieThelations with Libya.
1
Security Council bas taken similar steps in many other situations as weil. After Rhodesia
26
1 unilaterally declared independence, Security Councorderedlution 232 (1966Y
Member States to completely interrupt economie relations with the new regime and ta
1
other comminnents. This was recently demonstrated by SC Res. 670 (1990), adopted in connection with
1 the Iraq/Kuwait crisis, in which the Councilons of Article 103 of the Charter' and
'Decides that ali State, notwithstanding the existence of any rights or obligations conferred or imposed by
1 supra note 122,al agree.'") (Emphasis added); E. Suy, "Article 25," in Cot & Pellet,
1Resolution 748, United Nations Security Council, 3063'dMeeting, 31 March 1992, Doc. S/RES/748.
1 1Resolution 232, United Nation1 eeting, 16 December 1966, Doc. S/RES/232.
1
1 66 1
impose an arms embargo. The Council also charged specifie countries to take specifie
1
actions intended to disrupt Rhodesia's economy. Thus, Rescalledn 221 (1966/
uponPortugal to prevent the pumping of ail from Mozambique to Rhodesia and called
upon the United K.ingdom, using armed force if necessary, to interdict1the arrivai in
Mozambique of tankers with ail for Rhodesia. (Resolution 221 included a grant of
1
authority to arrest and detain a specifie vessel.) The Security Council also required an
anns embargo under Article 4th Afria complete economie boycott on Iraq1
after its invasion of a general and complete embargo on ali deliveries into
1
Yugoslavia ofweapons and military equipment, and complete embargo on ail ·
deliveries of weapons and military equipmenm a general and complete 1
arms embargo against Libea limited trade embargo and assets freeze against
1
Haiti,and a boycott and weapons embargo against rebeEach of these
1
enforcement actions interfered to sorne degree with otherwise binding treaty obligations
or rights recognized under international law. However, their legal legitimacy was not
subject any serious question.
1
1 1
12Resolution 221, United Nations SMeetin9Aprill966, Doc. S!RES/221.
12Resolution 418, United Nations Security Council, 2046LhMeeting, 4 Nov1mber 1977, Doc. S/RES/418.
12Resolution 661, United Nations Security Council, 2933'dMeeting, 6 August 1990, Doc. S/RES/661.
1
13Resolution 713, United Nations Security Council, 3009'hMeeting, 25 September 1991, Doc. S/RES/713.
m Resolution 733, United Nations Security Council, 3039thMeeting, 23 January 1992, Doc. S/RES/733.
1
13Resolution 788, United Nations Security Council, 3138thMeeting, 19 November 1992, Doc. S/RES/78 8.
13Resolution 841, United Nations Security Council, 3238thMeeting, 16 Ju1e 1993, Doc. S/RES/841.
13Resolution 864, United Nations Security Counci!, 3277thMeeting, 15 September 1993, Doc. S/RES/864.
1
1 67
1
1
C. Article 41 Conjirms the Security Council's Power to Act Notwithstanding
1 lnconsistent Claimsts Under Treaties
3.34 Article 41 of the Charter specifically lists severa! non-forcible measures
1 availablethe Security Council under Chapter VII, including "complete or partial
1 interruption of economie relations and of rail, sea, air, postal, telegraphie, radio and ether
meansf communication, and the severance ofEmbargoes, bansations."
1 on the salerms, bans on air tlights and other compulsory measures adopted by the
1 Council pursuant to this Article often prevent States from exercising rights under treaties,
1 but that is what the clear languagenticipates. The Security Council's non-
forcible measures to restore international peace and security under
1 very nature, can and must prevail over inconsistent rights
1 D. Libya 's Claims that the Montreal Convention Prevails as Lex Posterior or As
a Lex Specialis Are Unavailing
3.35 Libya also seeks ta avoid its obligation ta comply with the Security
1
Council's resolutions through flawed arguments derived from treaty law. Libya contends
1
that the Montreal Convention was lex posterior to the Charter and, further, that it
1 135
constitutes apecialis as ta itsIt is therefore asserted that Libya's
claimed rights under the Montrealre superior td its obligations under the
1
Charter.
1
3.36 These are unsound and dangerous arguments, for they would open the door
to the destruction ofthe legal regime ofthe Charter. No state practice, scholarly opinion,
1
1 13Libyan Observations and Submissions, para. 2.18.
1
1 68 1
or other persuasive authority is cited to support them. However, it is not necessary to
1
reach their mThere is no necessary inconsistency between Libya's Charter
1
obligations and its situation under the Montreal Convention; the two can be construed in
harmony. \Vhen states negotiated the Montreal Convention, t1ey did so subject to their
common agreement in Article 103 of the Charter to accord priority to their obligations
1
under the ChLibya has referred to nothing in the language or history of the
Montrealnvention indicating that the Parties sought to change or supersede this basic
Charter commitment. 1
3.37 Even if Libya's arguments did not fail on this basis, the Court should not
accept them. As shown previously, the superiority of obligations under the Charter over
obligations under prior or subsequent treaties affirmed by 1rticle 103.
Libyalex postargument would render Article 103 a nullity as to any treaty
1
concluded by any state following its acceptance of the UN Charter.
1
3.38 Tlex posrule advocated by Libya cannat bring about by implication
the repeal of treaty obligations established by the Charter. Article 30(1) of the Vienna
1
Convention on the Law of Treaties, which expresses the rule that a treaty later in time
1
generally prevails, clearly recognizes this. The general rule contained in Article 30(1) is
made expressly "[s]ubject to Article 103 of the Charter of 1he United Nations."
3.39 A similar response must be given to Libya's argument that the Montreal
Conventiolex speprevailing over the more general provisions of the Charter.
Under Libya's theory, almost any treaty addressing a specifie subject matter could be
deemed superior to the Charter. Again, this wowitthenflict 1ith Article 103 and
basicpremiseshe Charter.
1
1 69
1
1 3.40 Thus, Libya's arguments for the superiority of the Montreal Convention
over the Charter would fundamentally weaken the legal regime of the United Nations.
1 They would permit States to "contract out" of Chapter VII or of any other Charter
1 provisions they found burdensome or iThese are pemicious and
unsupported doctrines. They should not be sanctioned by the Court.
1 E. Individual UN Members Do Not Have the Right to Choose Whether Or Not to
Camp/y With Security Council Resolutions
1
3.41 Libya also contends that it need not comply with Resolutions 748 and 883 --
1 that the Resolutions are not "opposable" to it -- because it believes those resolutions are
not based upon the Charter or exceed the Cos argument is also
1
dangerous and must fail.
1
3.42 In Article 24Charter, members gave the Security Council the prirnary
1 responsibility for the maintenance of peace and security and agreed that the Council acts
on their behalf in carrying out this responsibility. Under Article 39, the Council is
1
responsible for determining the existence of threats or breaches of international peace and
1 security and for determining the measures required in response.·Under Article 25, states
137
1 are obliged to carry such decisioOnce the Council has made such
decisioan individual UN member cannat refuse to comply with them because it
1 disputes the legal validitYof the Council's action. This argument, like others advanced
1
136
E.g., Libyan Memo~~-l, para. 6.44,
1 1Namibia Opinion, p. 53, para. 115 (Security Council resolutions "adopted in conformity with the
binding on ali Members of the Uarthus under obligation to accept and carryand 25 ...
1 them out.")
1
1 70 1
by Libya, could produce grave damage to the legal or1er established by the Charter.
(The final Part ofthe Counter-Mernorial, shows how, in any case, the rneasures taken by
theouncil were reasonable and appropriate in relation to the threat to peace and security
associated with the bombings and UTA 772.) 1
1
1
1
1
1
1
1
1
1
1
1
. m J. Delbrueck, "Article 25," in Simma, supra note 122, p. 413 ("If the binding nature of decisions under
Art. 25 rested ontance by the members, the general and objectively guaranteed binding
only on tad acceptance would contradict the nature of these decisions as decisions taken byf SC decisions
a collegiate body. A decision under Art. 25 is not the sum total of individual wills but an act by an organ
decision.").be binding upon ali UN members no matter1what their position is towards the particular
1 71
1
1 CHAPTERIII
1 RESOLUTIONS 748, 883 AND 1192 WERE VALID EXERCISES OF THE
SECURITY COUNCIL'S AUTHORITY
1
3.43 This Chapter shows how the relevant resolutions were a proper exercise of
1
the Council's mandate and were validly adopted. It also answers a barrage of Libyan
attacks on the substance and procedure of the Security Council's actions.
1
Secti1. The Council Followed Appropriate Procedures
1
3.44 Resolutions 731, 748alwere adopted at regular meetings of
1
the Council following debates in which Libya was able to participate. They received the
majorities required by Article 27der Article 27(3), a resolution
1
requires nine affirmative votes and no veto. Resolutions 731 and 1192 were adopted
1
unanimously. Resolutionived ten votes. Resolution 883 received eleven. No
1 members of the Security Council voted against any ofthese four resolutions.
3.45 In such a case, the Court that the Council's resolutions must
1
be presumed to have been validly adopted:
1
accordance with rles of procedure, and is declared by its President to have passed in
been so passed, must be presumed to have been validly adopted.
1
Nevertheless, Libya deploys a wide variety of arguments against the validity and
1 effectivenessof the resolutions.
1
1 1Namibîa Opinpar20.. 22,
1
1 72 1
A. Libya 'sAttack Upon the Voting Procedure 1
3.46 Libya first asserts that it was improper for France, the United Kingdom and
1
the United States to participate in the Council's voting on these matters and that this
impropriety deprives the resolutionseLibya argues that none of thes1
three countries should have voted when Resolution 731 was unanimously adopted, and
1
that doingtainted or invalidated both Resolution 731 and ali subsequent Chapter VII
Resolutions. These arguments fail. 1
3.47 Libya's argument appears to rest on Article 27(3) of the 1harter, which
requires "idecisions under Chapter VI to a disshall abstain from
voting" (emphasis added). The text mak.esclear that this rule applies only to Council
proceedings involving Chapterto those under Chapter VII. In additio1, had
France, the United Kingdom and the United States donemands and not
1
joined the other Council members in voting for Resolution 731, the resolution (which
1
passed unanimously) still would have received twelve votes, three more than required.
3.48 Moreover, Article 27(3) did not require that France, the United
the United States refrain from voting on Resolution 731. The text of the Resolution, and
the circumstances of its adoption, mak.e clear that the Council sought to address a
situatwithin the ambit of Articles 34 and 35 ofdispusubject toot a
Article 27(3). There isation to abstain from voting in relation to situations:
Ithe obligation to abstain were extended to situations, the SC would be unable to
reach decisions on important questions affecting many of its members in the
context of Article VI, although it would be capable of reaching decisions without
restriction in the contexter VThis is contradictory because the
14Libyan Observations and Submissions, para. 4.34. 1
1
1 73
1
1 unnecessary.of Chapter VI ought ideally to make action under Chapter VII
The text of Resolution 731 shows that the Council was not dealing with a narrow dispute
1
between two states, but rather with a far broader situation affecting international peace
1 and security. Thecil was concemed by the broad problems of terrorism and of
1 attacks on aircraft; Libya's suspected involvement in the attacks on Pan Am 103 and
UTA 772 and its past conduct were considered as part of a broader situation.
1 3.49 The fact that the United States and Libya and the United Kingdom and Libya
Il may also have bad ongoing disagreements as to whichxercise criminal
jurisdiction over the accused does not change the fact that Resolution 731 addressed a
1
situation. As Simma and Brunner note:
1 A situation and a dispute cao exist simultaneously, parallel to one another, so that the
existence, more specifically, of a dispute does noz exclude the presence of a situation.
1 3.50 The practice of the Council shows that "it is the Council itself rather than the
1 partieshatdetermines whether a dis[I]f there is any question about an
obligatory abstention under Article 27(3), the matter should be settled before voting takes
1 143
place."In this regard, the Council clearly did not view Resolution 731 as involving a
dispute in which France, the United Kingdom and the United States should refrain from
1
voting. When Libya addressed the Council just before the vote on Resolution 731, it
1
questioned "the participation of the parties to this dispute in the voting" on the
1
141
1 B. Simma and S. Brunner, "Article 27," in Simma, supra note 122, p. 458.
1Idem, p. 459.
143
1 S.D. Bailey and S. Daws, The Procedup.257 id. 1998).urity Council, ,,
74 1 ',1
resolutionNo member of the Council supported LibyIn any case,. 1
Libya's chasno legal consequence. Questions concerning voting on Resolution 731
1"
cannat affect the validity of the Council's subsequent actions under Chapter VII, to which
Article 27(3)e Charter clearly does not apply. 1
3.51 Libya also contends that France, the United Kingdom and the United States
1
were precluded from voting for Resolutions· 748 and 883 because the Council was
performing a "quasi-judicial task" iThis daim too lacks foundation.
The Charter neither contains nor suggests any limitation of the ki1d Libya urges. But, in
any case, the Security Couneil's resolutions were not judicial actions. Their texts show
1
that the Council was addressing the threato peace and security, a political
and not a judicial role. The Council did not purport to establish 1he guilt or innocence of
the persans accused of destroying Pan Am 103. Instead, it identified the national courts
1
that should be the judicial forum to examine the charges and evidence and to determine
guilt or.innocence. 1
B.Libya 's Unwarranted Demand for Exhaustion of Other Means o1 Sett/ement
3.52 Libya next contends that Article 33 of the Charter requires that the parties to
l-
a dispute first seek peaceful settlement through the various means listed in that Article,
and that only after the parties attempt and exhaust such means can the Security Council
I
lawfully act.is argument essentially construes the Chapter VI of the Charter to
1
143033nl Meeting of the Security Council, 21 January1995 U.S.c. S/PV.3033, pp. 24-25.
Exhibit 19. 1
14See Libyan Observations and Submissions, para. 4.36.
1
14~.Idempara. 2.20; CR 97/20,~~- 49, para. 4.22,
1
1 ------~~~~~-
75
1
1 establish an implicit "exhaustion of remedies" rule as a precondition to Security Council
action under Chapter VII.
1 3.53 Libya's argument has no basis in the language or history of the Charter or in
1 state practice, and rests uponiably selective and narrow reading of the inter-
related elements of Chapter VI of the Charter. Article 33 is Iocated in Chapter VI and is
1 partf that Chapter's system for promoting the pacifieThettlement of disputes.
1 actions of the Security Council attacked by Libya were not taken in the context of
Chapter VI. They were taken under Chapter VII, as the Council acted to maintain or
1
restore international peace and security.
1
3.54 As a practical matter, the Securityed though Resolution 731
to bring about a resolutionifaced prior to resorting to the exercise of its
1
mandatory powers under Chapter VII. In paragraph 4 of Resolution 731, the Council
1
requested the Secretary-General ''toseek the cooperation of the Libyan Govenunent to
1 provide- a full and effectiveo the requests put to Libya. For his part, the
Secretary-General diligently but unsuccessfully sought Libyan cooperation in order to
1
bring about such a sett1ement.
1 3.55 However, the Charter does not require that either the Security Council or the
1 parties to a dispute progressively work their way through ail the possible steps of peaceful
settlement in the framework of Chapter VI before the Council can act. The Council did
l' not have to exhaustr VI's options for peaceful setticould with Iraq before
1
14See Report of the Secretary-General Pursuant to Paragraph 4·of Security Council Resolution 731, Doc.
S/23574,January 1992, 1995 U.S. Exhîbit 20; Further Report of the Secretary-General Pursuant to
1 Paragraph 4 of Security Council Resolution 731, Doc. S/23672, 3 March 1992, 1995 U.S. Exhibit 21.
1
1 76 1
act following Iraq's 1990 invasion of Kuwait. The Council could not meet its Chapter
1
VIIesponsibilities if each time it faced a threat to or breach of the peace, it were limited
1
to encouraging the parties to exhaust the varions means of peaceful settlement.
3.56 The Court bas properly refused to allow the introduction into the Charter of
elements that are notItshould do the same here. The Court should refuse
1
to add an exhaustion of remedies rule to Chapter VIL
C. Libya 'sClaim That There Was No Fair Hearing and No Factual Justification
3.57 Following from its contention that the Security Co1ncil was performing a
"quasi-judicial task," Libya contends that the Council can only act on the hasis of "fully
demonstrated" facts. The suggestion seems to be that the Council bad an inadequate
factual predicate for its actions.o contend that there shou1d have been
sorneform of adversarial process, in which the United States and Libya each presented its
1
evidence, to be tested and debated before the
1
·3.58 is more fully discussed elsewhere in this Counter-Memorial, the Security
Council bad a substantial factual basis for the decisions it took. Nevertheless, neither the
1
tenns of the Charter nor the rules or practice of the Council require the formai fact
1
finding procedures Libya asks the Court to impose.e or realistic to
demand that the Council hold a formai evidentiary hearing b1fore taking decisions to
meet a particular threat to peace. To fulfill its responsibilities, the Security Council must
1
mak:evital decisions in evolving and complex disputes. Often, it must act rapidly and at
1
1Admissions Case, pp. 62-63.
1
1Libyan Observations and Submissions, para. 4.17.
1
1 77
1
unpredictable hours. Each Member brings to the Council's deliberations its O\Vllstore of
1
information and experience, supplemented by information provided by the Secretariat and
1 by interested states (including, in this case, Libya). There is no basis for this
1 prescribe-a process of formai fact-finding or a standard of evidence or "burden of proof'
that the Council must meet before it can act under either Chapter VI or Chapter VII of the
1 Charter.
1 Section 2. The Council Was Not Otherwise Precluded From Acting In These
Circumstances
1
A. The Security Council 'sActions Were Not Invalidated by a Supposed Threat of
Force
1
3.59 Libya has severa! times charged that the United States threatened to use force
1 against Libya at the time of the adoption of the Security Council resolutions. Libya did
1 so in the 1997 oral proceedings, where Professor Bro\Vlllie repeated in substantially
sirnilar language arguments he fThe supposed relevance of this
1 canard to the Montreal Convention hStanding alone, Libya's
1 daim that the United States illegally threatened the use of force is outside the Court's
jurisdiction in this dispute as to the interpretation and application of the Montreal
1
Convention, as suggested by the declaration of Judge Guillaume and Fleischhauer
1 151
accompanying the Court's FebruAs this Libyan daim is manifestly
outside the jurisdiction of the Court, it will not be rebutted further here.
1
1
1See CR 97/21, pp. 51-54, paras. 80-92 (Professor Brownlie).
1 1Judgment of27 February 1998, Joint Declaration of Judges Guillaume and Fleischhauer, p. 4.
1
1 78 1
B. The Security Council Js Not Prec/uded From Acting In M1tters lnvolving
CriminalJustice
3.60 Finally, Libya ineed not comply with the Security Co1ncil's
resolutions because the Council does not have the power to act in matters conceming
1
criminal justice. Libya contends that the "principles of a sound administration of justice"
madeiinappropriate ultra for the Council to adopt Resolutions 748 and
883.5Libya supplements this argument with a more narrowly focused claim that the
1
Council cannot require a State to transfer persons for trial outside its territory absent sorne
treaty obligation requiring this resultaut dedere autjudicareiple of
(that astate may elect whether to prosecute or extradite anal1eged offender) in support of
its claim that Libya alone can decide whether to transfer its nationals for prosecution
1
abroad.
3.61 Nothing in the Charter or in the practice of the Security Council or of states
supports Libya's claim that the Council, when acting within the framework of Chapter
1
VII, cannot require that particular offenses or types of offenses be tried in a particular
courtNothing about the daut dedere aut gives it superior status
precluding such action by the Council under Chapter VII, eith1r here or in the context of
other situations such as the former Indeed, state practice shows
that the doctrine is not a rule of customary international law. States general!y do not view
themselves as having an obligation under customary international law to prosecute every
accused person whom they decline to extradite. If there were such a customary principle,
1
152 1
.êk·ibyan Observations and S~~-issîons, para. 4.16,
1
1 79
1
the Montreal Convention and other treaties creating a specifie treaty obligation to this end
1
woulde unnecessary.
1 3.62 The Security Council has taken several important initiatives relating to the
1 transfer of persons triinitiatives that have received widespread support and
approbation from the international community. In creating the International Criminal
1 Tribunals for the former Yugoslavia and Rwanda, the Council required that individuals
1 accused of certain crimes of international concern be subjected to international criminal
jurisdiction and did not find that this was precluded by the principle
1 153
judicare.
1 3.63 The Appeals Chamber of the International Criminal Tribunal for the Former
Yugoslavia has recognized the powerncil to require the trial of an accused
1
person in a tribunal'prescribed by the Security Council, in the Appeal of Dusko Tadié.
1
In the Tribunal's TriaMr.Tadiéfiled a motion challenging the Tribunal's
1 jurisdiction, which was denied. arinter that the Security Council
could not require that he be tried in the International Tribunal in lieu of trial in the
1
domestic courtsnnany or Bosnia-Herzegovina. The Tribunal's Appellate Chamber
1 rejected this line of argument frnding that, pursuant to the Statute of the International
1 Tribunal (which derives legal authority from a Chapter VII resolution of the Security
Council), Mr. Tadiécould be tried in the International Tribunal.
1
15See Resolution 827, United Nations Security Council, 3217u.Meeting, 25 May 1993, Doc. S/RES/827,
1 par~(Yugoslavia Tribunal); Resolution 955, United Nations Security Council, 3453,; Meeting, 8
November 1994, Doc.55, para. 2 (Rwanda Tribunal).
15Prosecutor v. Tadié(Jurisdiction), decision of2 October 1995, 35 I.L.M. 32 (1996).
1 155a
Idem, paras. 49-60, 35 I.L.M. pp. 48-52.
1
1 80 1
3.64 The Council also adopted Resolufollowing the051,and 1070
attempted assassinationnt Mubarak of Egypt while attending the OAU Summit
in Addis Ababa. Through these resolutions, the Council sougbt to encourage Sudanese
authorities to comply with the OAU's request to extradite to Ethiopia persons accused of
involvement in the assassination attempt. The Council also adopted sanctions aimed at
1
bringing about compliance. In this situation, the Council chose to encourage the transfer
of the accused by means of extradition, since that was the procedure endorsed by the
OAU. However, as in the cases of Libya, the former Yugo1lavia and Rwanda, the
Council's goal was to bring about the criminal trial of accused persons in an appropriate
1
court.
3.65 Thus, the Security Council bas taken several i1portant decisions under
Chapter VII airned at establishing which courts should conduct particular criminal trials
where theuncil bas concluded that such trials will help to maintain or restore
international peace and security. In ali of these cases, the Security Council bas not itself
acted as a criminal court deciding the guilt or innocence of persans accused of particular
1
crimes. Rather, thebas determined which jurisdiction or jurisdictions are, in the
1
particular circumstances, best situated to carry out ajust and effective triaL
1
1
1
sResolution 1044, United Nations Security Council, 3627thMeeting, 31 January 1996, Doc. S!RES/l 044;
Resolution 1054, United Nations Security Council, 3660th Meeting, 26 April 1996, Doc. S/RES/1054;
Resolution 1070, United Nations Security Council, 3690thMeeting, 16August 1996, Doc. S/RES/1070.
1
1 81
1
Section 3. The Security Council Had Ample Foundation for Its Decisions
1
3.66 The preceding section demonstrated that the Security Council's resolutions
'1
imposed binding legal obligations upon Libya that prevail over any inconsistent daims
1 asserted under the Montreal ConUnder the Charter, the Security Council's
adoption of these resolutions required decisions that the Couneil alone has the power and
1 responsibility to make, because they involve the fundamentally political question
constitutes a threat to international peace under ArticAs Judge the Charter.
1
Weeramantry observed:
1
[T]he determination under Article 39ence of any threat ta the peace, breach
of the peace or act of aggression, is one entirely withi1tthe discretion of the Council.
1 would appear that the Council and no other is the judge of the state of affairs which
bringsChapter into operation.
1 3.67 Nevertheless, the Council had ample bitdid. lts decisions
1 were justified and approTheate.ncil was not "incohinconsisteor,
158
irrational" as Libya cIn order to exercise its authority under Chapter VII, the
1
Security Council had to make two types of deUnder Article 39 of the
Charter, it first had to determine whether the circumstances before it -- including Libya's
1
support for terrorism, its implication in the violent deaths of several hundred people in
1· attacks on two aircraft, and its failure to comply with the Council's resolutions --
1 constituted a threat to international peace. The Council three times decided that they did.
The Council then bad to decide what measures should be taken to rnaintain or restore
1
1'Judgment27Februa199DissentingOpinionof JudgeWee176.Libyamay not
1 disputethisprincip\4.oftheLibyanObservationsandSubmîssîonsspeaksof"thefactthat
onlytheSecurityCouncilisauthorizedtodeterminetheexistenceofa 'threattothepeace'.... "
1 158
LibyanObservandSubmîss,ar4.55.
1
1 82 1
international peace and security. Libya now is asking this Court bath to find that the
1
determinatione Security Council was wrong and to put those measures aside,
particularly Libya's obligation (recently reaffirmed by Resolution 1192 (1998)) to
transfer the accused for trial. 1
3.68 The Council weighed a varietyn concluding that t1e situation
involved a threaItwas mindful of the grave threats posed by international
1
terrorism and of Libya's past support for terrorist actions against ether states. Several
hundred people were dead after two carefully planned attacks on civilian airliners. These
1
deaths dernonstrated an actual and Painstaking investigations
involving a numbertes indicated that Libya played a direct role in these deaths.
Specifie criminal charges had been brought in two countri1s against two persans who
allegedly acted on Libya's behalf. Of course, these charg1s did not establish the guilt of
the accused; that would require a proper criminal trial in a qualified coUrt with
1
appropriate safeguards of the defendants' human rights. However, the charges were
necessarily relevant to the Council's appreciation of the situation. The Council was also
1
aware of Libya's unsatisfactory responses to its calls for clarification and cooperation,
first in Resolution 7hen in ResolutionThese circumstances1
provided a compelling foundation for the Council's decisio1 that international peace and
security were threatened.
1
3.69 The measures the Council adopted under Article 41 of the Charter m
1
response were likewise justifiedrostances. These measures were precise,
lirnitedand did not involve the use of armed force. The Council sought to meet the threat
1
to peace and spaby seeking to bring about a legitimate and fair criminal trial
1
1 83
1
of the individuals accused Am 103. The Council was not unconcemed
1
about the human rights of However, in the extraordinary circumstances
1
before it, the Council was not persuaded of Libya's willingness or capacity to provide an
appropriate trial.
1
3.0 In these circumstances, the Couneil's decision to require that the accused
1
individuals be transferred for trial by the judicial authorities
1 reasonable and appropriate measure. As Professor Tomuschat concluded regarding the
Council's decision:
1
[O]nefinds littlewhichgivesriseto seriousobjections. Extraditionof major criminalsis
a legitimateconcem within the frameworkof a strategy aimed at combatingterrorism.
1 Eradica159nerrorism presupposesthe efanyshelter and refuge
to terrorists.
1. 3.71 In sununary, the Council's resolutions reflected decisions taken in the
exercise of its vital -- and unique -- responThe Council'sr the Charter.
1
determination that there was a threat to international peace and security and that
1 enforcement measures were necessary to meet it did not rest on conjecture or theory.
Acts of terrorism had cost hundreds of lives. Intensive factual investigation pointed to
1
the responsibilityts ofLibya. Libya failed to respond effectively to the Council's
1
requirements. World wide concern called for effective responses. It was thus appropriate
for the Security to view the situation as a threat to peace and to decide to adopt
1
enforcement measures under Article 41.
1
1C. Tomuschat, supra note 54, p. 44.
1 84 1
Section 4. Libya's Claims Based on Article 2(7) of the Charter Must Fail
1
3.72 Particularly given the substantial and compelling basis for the Security
l'
Council's actions described above, it is also clear that that the Court should reject Libya's
attacks on the Council's actions based upon Article 2(7)7) 1
provides that the Charter does note United Nations to intervene in matters
1
which are essentially within the domestic jurisdictiono
states thats principle shaH not prejudice the application of enforcement measures
under Chapter" It is precisely such enforcement measures that1Libya asks the Court
to annul or set aside on the basis of Article 2(7). Libya's argument must fall before the
plain textrticle 2(7). 1
3.73 In addition, the matters leading to the Council's de1isions, such as Libya's
support for terrorism, its apparent involvementPan Am 103 and UTA
1
772, and its failure to comply with the Council's resolutions, were not "matters which are
1
essentially within the domestic" of Libya. These were matters of profound
and legitimate international concern. They were appropriate for Security Council action
1.
in the dischargeresponsibilities under the Charter. The Court should reject Libya's
1
arguments based upon Article 2(7).
1
1
1
l'
16Libyan Memorial~ ~·ras. 6.84,
1
.1 85
PART IV
THE COURT CANNOT SUBSTITUTE ITS
JUDGMENT FOR THE SECURITY COUNCIL'S
CHAPTERI
INTRODUCTION
4.1 The United States is mindful that this case has stimulated rouch discussion and
commentary regarding the relationship between the Court and the Security Council and,
in particular, regarding the possibility of judicial review by the Court of the actions of the
Council. Sorne vmters have encouraged the Court to seize upon the case as a vehicle to
assert inherent judicial authority to review the actions of the Security Council. However,
such commentary does not alter the Court's responsibility carefully and conscientiously
to perform its proper judicial role in deciding this case.
4.2 This Part of the U.S. Counter-Memorial examines the Court's relationship to
the Securityouncil. It shows how the Charter clearly establiresp~_he oteivfe
Court and Council, and has not allocated to the Court the authority to substitute its
judgment for the Council's regarding the matters disputed by Libya. The Charter bas not
conferred on the Court the authority to review thesCdeterminations under Article
39 of the Charter, or other related decisions taken under Chapter VII for the purpose of
maintaining or restoring international peace and security, except where the Court may do 86 1
so in performing its advisory functièm.Acc1rdingly, the Court's responsibility here is to
avoid weakening the effectivenessuncil in dealing with threats to
international peace and security. Doing so would not be an abdication of the Court's
functionhe principal judicial organ of the United Nations. Rather, it would be to
recognize and carry into effect the legal 1tructure created by the Charter.
1
1
1
l'
1
1
1
1
'1
1.
1
1
1
1 87
1
CHAPTERII
1
THE CHARTER SYSTEM
1 4.3 The Charter establishes the respective raies of the Court and of the Security
Council.t does not allocate ta the Court the authority to substitute its judgment for the
1
Council's as ta matters assigned to the Council.
1 Section 1. The Ro1eof the Court
A. There is No Charter Basis for Judicial Review
4.4 Under Article 92 of the Charter, the Court "shall be the principal judicial
organ of the United Nations" and "shall function in accordance with" the Statute. Article
36 of the Statute provides that:
The jurisdiction of the Court comprises ail cases which the parties refer ta it and ali
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force.
The Court thus has the power ta decide a matter only if its jurisdiction has been
establis:P.edby the reference of a case by the parties, or is "specially provided for in the
Charter." Yet, it is clear thadoes noprovide for jurisdiction of the Court ta
review and set aside determinations and decisions of the Security Council. No provision
of the Charter or of the Statute allocates to the Court the authority ta review, pass
judgment upon and potentially modify or set aside actionsty Council under
Chapter VILIndeed, as will be shawn, the drafters of the Charter considered and
deliberately rejected conferring such powers on the Court.
4.5 This proposition is simple, but it is vital ta the maintenance of the legal arder
created by the Charter. The Court, like other organs and bodies of the UN, is bound ta ··-~
88 1
161
respect and follow the Charter. It simply is not open to the Court to exercise
jurisdiction in a way that has basis in either the agreements of states or in the Charter.
B. Judicial Review Was Deliberately Excluded From the Charter
4.6 The power of judicial review was considered and deliberately rejected by the 1
framers of the Charter.62 At San Francisco in 1945, the Belgian delegation argued that
1
the Conference should decide which organ of the Organization should be empowered to
render definitive interpretations of the meaning of the Charter. The precise question
referred ta the Legal Problems Committee of Commission IV (Judicial Organization) of
the Conference was: "how and by what organ or organs of the Organization the Charter
164
should be interpreted." The Legal Problems Committee debated the question at sorne
length, considering the appropriateness of constituting the General Assembly (as the most
broadly representative organ), or the Court (as the principal judicial organ) as the final
arbiter of the meaning of the Charter. There was also discussion of dividing
responsibility, with a committee of legal experts to answer routine questions of a time-
sensitive nature; more complex questions (where time was not of the essence) being
16See Admissions Case, p. 64.
16See generally L. Sohn, "The UN System as Authoritative Interpreter of its Law," in 1 United Nations
Legal Order, pp. 171-74 (O. Schachter & C. Joyner eds. 1995) (hereinafter, "UN Legal Order").
163
3 DUNCIO, "Dumbarton Oaks Proposais Conceming the Establishment of a General International
Organization: Amendments Submitted by the Belgiantion," General Doc. 2 G/7(k)(l), p. 339, (May
4, 1945).
1613 DUNCIO, "Summary Report of Twelfth Meeting of Committee IV/2," Doc. 664 IV/2/33, p. 633,
(May 29, 1945). 89
1
1 reserved for the Court; and grave questions requiring "an authentic and constitutional
interpretation" being answered through amendments to the Charter.
'1 4.7 At the end of the debate, there was no consensus on any particular approach
and Belgium maintained its position that one organ must have ultimate responsibility for
1
interpreting the Charter. The Legalomrnittee then referred the matter to a
1 166
subcommittee for furtheThe subcommittee's report recommended the far more
1 flexible approach which came to be reflected in the structureich has
been implemented in thef the Organization:
1
In the course of the operations from day to day of the various organs of the Organization,
it is inevitable that each organ will interpret such parts of the Charter as are applicable to
1 its particular fonctions. The process is inherentof any body which
operates under an instrument defining its functions and powers. It will be manifested in
the functioning of such a body as the General Assembly, the Security Council, or the
1 provision either authorizing or approving the normal operation of this principle.e Charter a
1 Difficulties may conceivably arise that there should be a difference of
opinion among the organs of the Organization conceming the correct interpretation of a
provision of the Charter. Thus, two organs may conceivably hold and may express or
1 even act upon different views. Under unitary forms of national government the final
national authority. However, the nature of the Organization and of its operation would
not seem to be such as to invite the inclusion in the Charter of any provision of this
1 nature. If two member states are at variance concerning the correct interpretation of the
Charter, they are of course free to submit the dispute to the International Court of Justice
1 asin the case of any other treaty. Similarly, it would always be open to the General
International Courtice for an advisory opinion concerning the meaning of athe
provision of the Charter. Should the General Assembly or the Security Council prefer
1 another course, an ad hoc committee of jurists might be set up to examine the question
and report its views, or recourse might be bad to a joint conference. In briefthe members
1 or the organs of the Organization might have recourse to various expedients in arder to
1 16Idem, pp. 633·34; see also 13 DUNCIO,"Revised Summary Report of Fourteenth Meeting of
CommittIV/Doc873 IV/2/p.653,(June9, 1945).
166
1 l3DUNCIO,"SummaryReportofTwelfth MeeIV/2Idem,pp.634-35.
1
1 90 1
obtain an appropriate interpretation. It would appear neither necessary nor desirable to
list orto describe in the Charter the various possible expedients. 1
4.8 This important report was approved by the Legal Problems Committee,
1
while the Belgian proposai was affirmativelCommission IV unanimously
1
approved the Committee's Report, and thus elected not to establish a mechanism for
170
authoritative interpretation of tThereaftèr, the San Francisco Conference 1
Plenary unanimously approved the Commission's This brief history offers
1
several significant leFirst, it documents that the UN's founders directly and
carefully considered whether to grant the Court the power as the ultimate interpreter of
the Charter and, hence, the power of ')udicial review" of the acts of other organs. They
recognized that in sorne (but certainly not ali) national systems, courts or other bodies
may have such power. "However, the nature of the Organization and of its operation
would not seem to be such as to invite the inclusion in the Charter of any1provision of this
167 1
Charter," Doc. 750 IV/2/B/I, pp. 831-32, (June 2, 1945).ittee IV/2 on the Interpretation of the
1613 DUNCIO, "Summary Report of Sixteenth Meeting of Committee JV/2," Doc. 934 IV/2/43, p. 701,
(June 12, 1945); 13 DUNCIO, "Report of the Rapporteur of Committee IV/2 as Approved by the
Committee," Doc. 933 IV/709~10,ne 12, 1945); 13 DUNCIO, "Revised Summary Report
ofFourteenth Meeting ofCommittee IV/2," Idem, pp. 653-54 (Committee approved Subcommîttee report
"on interpretation of the Charter which suggested that if two member states are at variance conceming the
interpretation of the Charter, they are free to submit the dispute to the Court, and that if two organs are at
variance conceming the correct interpretation of the Charter they may either ask the Court for an advisory
opinion, establish an ad hoc committee of jurists to examine the question and report its views, or have
recourse to ajoint conference"). ·
1613 DUNCIO, "Revised Summary Report of Fourteenth Meeting of Committee IV/2," Idem, p. 653
("The Committee decided to reject the Belgian suggestion of referring interpretive disagreements on the
Charter between organs to the Court as procedure").
1713 DUNCIO, "Revised Verbatim Minutes of Second Meeting ofI/12(1),ion IV," Doc. 1153
pp.101~(Jne 22, 1945).
m 1 DUNCIO, "Verbatim Minutes of Ninth Plenary Sessio625~2o(ue 27, P/20, pp1
1945).
1
11 91
nature." The framers expressly chose not to malŒsuch an exclusive grant -- to the Court
1
or any other UN organ or entity. As Professer Sohn concludes:
1 The San Francisco statement on the interpretation of the Charter of the United Nations
recognized that the Internationalw~othe principal judicial it
organ of the United Nations, did not have the exclusive power to provide an authoritative
1 interpretationCharter.
4.9 Thus, not only did notallocate to the Court the ultimate
1
responsibility for interpreting the Charter, they instead made ether organs primarily
1
responsible for construing and applying it in relation to their mandates. The Security
1 Councilnd the General Assembly were given responsibility to construe and apply
relevant provisions of the Charter in the course of their work. Of course, they could
1
decide to seek the adviceurt through the mechanism of advisory opinions, as
1 both organs have done on sorne important questions.
1 4.10 From the UN's early days, the principal organs carried into effect the system
adopted at San Francisco. For example, although Belgium's proposai was rejected in
1 1945, Belgium continued to seek opportunities for the Court to review actions
1 organs. In 1947, during the Security Council's consideration of the Indonesian question,
Belgium introduced a resolution calling for the Council to seek advice from the Court
1
to whether the Council was competent to deal with the problem. It was argued that «such
1 referrals could with the passage of time build up a body of jurisprudence which should
enable the Security Council 'to judge exactly' its competence in any given matter."
1
However, other delegations opposed the Belgian proposai on the grounds that the
1
1 11LSohn,Legal Order,162,pp. 169,171-74,203-04,226.
1
1 92
1
Security Council could not deal with the complex social and polit1cal issues before it if it
173
viewed them in predominantly legalthe proposai ultimately was rejected.
4.11 Professer Roserme has stressed the need for the Court to avoid revising
treaties, for reasons that are particularly compelling in the cas1
being a court ofbas the duty, in relation to international treaties, to interpret
them and not to revise them, and it would exceed itsjudicial1functions were it to revise a
treaty on the pretext of remedying a default for the occurrence of which the treaty has
the provisions of the treaty. The court will so act even if 1he consequences may notto
appearto be entirely satisfactory.
In this spirit, important commentators have emphasized the import1nce of maintaining
the allocationmpetences agreed upon in San Francisco and incorporated into the
1
Charter. Judge Jessup observed that:
The Charterhe embodimentof the internationaltreaty-agreement which the Members
have concluded. The rights and powers of the UnitedNations organs are therefore treaty
rights. These rights are vested and cannat be altered except as provided in the Charter
itsesf. 1
C The Court Does Not Have the Inherent Power to Review the S1curity Council 's
Decisions
4.12 The Court does not have inherent power stemming from its position as the
1
United Nations' principal judicial organ to review the actions of the Security Council in
1
adopting decisions under Chapterourt, like other UN organs, is created by
1
17G. Weissberg, "The Role of the International Court of Justice in the United Nations System: The First
Quarter Century" in The Future of the International Court of Just1ce, p. 131, at 153-54, (L. Gross ed. 1976)
(quoting SCOR 2nd Yr., !94th Mtg., Aug. 25, 1947, p. 2218, 2220).
17S. Rosenne, The Law and Practice of the International Court, 1920-1996, pp. 172-73 (3d ed. 1997).
1
17P. Jessup, "Parliamentary Diplomacy: An Examination ofthe Legal Quality ofthe Rules of Procedure of
(1956) (quoted in M. Bedjaoui, The New World Order and the Security Council: Testing the Legality of its
Acts, p. 74 n.26 (1994)). 1
1
1 ---------
93
1
Charter and derives its authority from the Charter. As the preceding discussion makes
1
clear, the drafters of the Charter consciously decided at San Francisco, a:fterextensive
1
debate,t to empower the Court to review and reverse the decisions of the political
organs. Tirisis reflected in the Charter they dra:fted,which confers no such power. There
l-
is no well of "inherent judicial power" from which the Court can draw to change the
I
Charter scheme. There is no inherent authority to perform functions that the framers
1 deliberately decidedthe Court should not perform.
4.13 Nevertheless, Libya argues that the ?obuilding its power,
1
argument upon Judge Fitzmaurice's dissent in the Namibia case to the effect that the
1
Court when asked for an-advisory opinion may have to determine whether a Council
resolution is binding or mecThis argument misses Judge Fitzmaurice's
1
point. Thist --like any court-- may need to interpreta pertinent legal instrument or
1
decide upon its legal effect. That is a fundamental aspect of the judicial function. But
1 suchn-interpretive determination is entirely different from this case, where the Council
bas not requested the Court's advice and where Libya asks the Court to annul Council
1
decisions or to hold that they cannat be applied to Libya. There is a fundamental
1
distinction between a Court's exercise of its inherent power to interpret and apply a legal
rule in a case beforee assertion of a power of judicial control to annul or deny
1
the applicability of decisions of an independent body not subordinate to it. The inherent
1
powers of the Court to interpret texts cannot be stretched to create a power of review,
1
1E.g., Libyan Observations an~ ~.bmissions, paras. 3.1
1 1Namibia Case, Dissenting Opinion of Judge Fitzmaurice, p. 293, para. 112.
1
1 94 1
much less the power to annul the Security Council's decisions or1to find that they cannet
be applîed to the very state at which they are directed.
1
4.14 This is a matter of fundamental importance in the law of the United Nations.
It cannot be obscured by referring to an inherent judicial power. It would likely astonish
the legal communities in the many countries that do not have judicial review should this
1
Court announce that judicial power inherently includes the authority to override decisions
by constitutional political organs where constitutional provisions do not provide for such
review.
4.15 As a judicial organ, this Court does have certain inherent characteristics, but
17 1
judicial review of the decisions of the politicas Hence, as not among them.
Professer Rosenne concludes, "[s]ince the court is not a constitutional court for the
United Nations system, it bas no general power of judicial review to determine the
1
'constitutionality' of the actions or decisions of any other organ or subdivision of the
United NationMany other writers affinn the same conclusion. 1
1
1
m See H. Mosler, "Article 92", in Simma, supra note 122, p. 985 Gudicia! review not among the
enumerated characteristics typical of courts andjudicial bodies).
17S. Rosenne, The World Court: What it Is and How it Works, p. 37 (5th ed., 1995).
180 1
Se~.O.Schachter, "The UN Legal Order: An Overview," in UN Legal Order, supra note 162, p. 13
pass on decisions of the piis asked for an advisory opinion by the organ"); D.eview or appellate power to
Ciobanu,tispendence Between the International Court of Justice and the Polîtica! Organs of the United
Nations," in The Future of the International Court of Justice, pp. 209, 242-43, (L. Gross ed. 1976) (San
interpretations); T. Eisen, Litispendence Between the Internatio1al Court of Justice and the Security
Council, p. 54 (1986) (same).
1
1 95
1
Section 2. The Court Has Recognized That It Does Not Have the Power of
1 Judicial Review
1 4.16 In light of the principles deseribed above, the Court bas wisely and
consistently declined to assert any claim to authority to render binding opinions on the
1 validity of the acts of other UN organs, and has indeed express!y disclaimed such power.
1 It bas occasionally registered observations on the legality, but
only where necessary in order to answer a particular question on which another organ bas
1
requested the Court's advisory opinion pursuant to Article 96
1 65 of the Statute. This bas occurred in several advisory opinions where the particular
questions presented required the Court to address matters of the authority or competence
1
of other UN bodies, or where the Court bad to consider such matters in order to confirm
1
its ownjurisdiction.
4.17 Thus, in the Certain Expenses of the Unthed Nations advisory opinion,
1
Court was asked to provide its opinion as to whether certain expenditures authorized by
1
the ·General Assembly to meet peacekeeping expenses in the Congo and in the Middle
1 East werepenses of the Organization" for purposes of Article 17(2) of the Charter. In
order for the Court to answer the question asked, it bad to establish "whether the
1
resolutions authorizing the operations here in question were intended to carry out the
1 purposes of the United Nations and whether the expenditures were incurred in furthering
1 these operations."
1 1Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion,
I.C.J. Report~ ~·62, p. 151,
1 1Idem, p.l58.
1
1 96 1
4.18 The particular question posed thus required the Court to inquire into the
1
powers and responsibilities of the Security Couneil and the General Assembly, including
1
analysis of possible limits on the Assembly's budgetary authority bearing upon the
meaning of 'expenses' under theTo answer the General Assembly's questio1,
the Court hadassess the conformity of the actions of two other principal organs with
1
their powers under the Charter. However, in so doing, the Court made clear the limited
scope of its powers in otheorgans: 1
In the legal systems of States, there is often sorne procedure for1deterrnining the validity
of even a legislative or govemmental act, but no analogous procedure is to be found in.
the structure of the United Nations. Proposais made durîng the drafting ofthe Charter to
place ultimate authority to interpret the Charter in the Internati1nal Court of Justice were
opinion. As anticipated in 1945, therefore, each organ must, in the first place at least,
determines.own jurisdiction. If the Security Council, for example, adopts a resolution
purportedly for the maintenancetional peace and security and if, in accordance
with a mandate or authorizationsolution, the Secretary-General incurs financial
obligatiothesamountsmustbe presurnta constit"expenseof the
Organization." 1
4.19 The Court thus stressed that even a limited advisory assessment of the work
1
of other organs was guided by the "presumption" thatultra vthes were "not
185 1
Organization.Certain Expenses shows the Court's keen awareness of the limitations
of its position in relation to the decisions of other organs. The Court1recogn:izedthat it
does not have authority to render binding judgments on the consistency with the Charter
1
of the acts of other UN Itmay provide advisory opinions on legal questions
1
18Idem,162. 1
18Idep. 168 (empioriginal).
185 1
Idem,168.
1
1 97
1
asked by another orgaimust approach even this limited task with a strong
1 186
presumption that other organs exercise their authority in conformity with the Charter.
1 187
4.20 The Namibia opinion iThere, the Security Council requested the
188
1 Court's advisory opas to "the legal consequences for States of the continued
presence of South Africa in Namibia, notwithstanding Security Council resolution 276
1 (1970)."(Resolution 276 aimed to give effect to the conclusions of General Assembly
Resolution 2145, which terminated the South African mandate over Namibia, by
1
declaring South Africa's continued presence in Namibia tocalling upon
1
States to act accordingly.) The Court began carefully by emphasizing that it
1 "[u}ndoubtedly . .. does not possess powers of judicial review or appeal in respect of
the decisions taken by the United Nations orHowever, in order to
1
answer the particular question posed to it, the Court addressed objections raised by the
1
Governmentsf South Africa and France to the Security Council and General Assembly
1 resolutionsTo do what was asked of it, the Court had to determine whether these
resolutions had consequences for States and whether the resolutions were consistent with
1
1
SSee, also, Sohn, supra note 162, pp. 201-02.
187
1 Namibia Opini~~· p. 14,
1Professor Weissberg suggests that "perhaps the chiefreason for the substantial number of abstentions on
the resolution seeking the opinion" was precisely the Council's concem that a request for an advisory
1 opinion on the question post factum wouid elevate the CSee G.o the role of ultimate arbiter.
Weissberg, supra note 173, p. 140.
1Namibia Opinion, p. 17, para. 1.
1
1Idem, p. 45, para. 89 (emphasis added).
1 1Idem, p. 45, para. 89.
1
1 98 1
192
the CharteIn these narrowly defined circumstances, the Court a1dressed the validity
of the acts of other organs in order to answer the question it was asked.
4.21 These advisory opinions assessing particular actions of political organs in
relation to ther underscore that the Court does not have the far broader powers of
judicial review urged by Libya. As Judge Bedjaoui points out:
1
[T]he fact that the San Francisco founders avoided including in the Charter any explicit
expressive of the preference they intended to give to interpretation by the political organs
themselves.
This choice by the founders did not exclude "the role of interpretation that could be
played by the Internationalustice ... through its advisory fun1tion," but only if
another organ so rIn no contentious case bas the Court asserted the right to
judge whether the Securityr the General Assembly bas acted ultra vires of the
Charter. 1
Section 3. The Role of the Security Council
1
4.22 Just as the Court's powers and role are prescribed by the Charter, so too are
the Security Council's. Through Article 24 of the Charter, the members of the United
Nations gave the Couneil primary responsibility for peace and security, and authorized it
1
to act on their behalf:
1
ln order to ensure prompt and effective action by the United Nations, its Members confer
and security, and agree that in carrying out its duties under this responsibility, the
Security Council acts on their behalf. 1
19Idem,p. 53, para. 114. 1
19M. Bedjaoui,supranote 175,p. 60.
19Idem, p. 61. 1
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11 99
1 4.23 The pertinent resolutions here -- Resolutions 748, 883 and 1192 -- were
adopted under the general powers of the Council in Articles 24 and 25 and the specifie
1
powers laid downpter VII of the Charter, in particular Articles 39, 41 and 48
1 (which a:ffirmsthat the actions required to carry out the decisions of the Council shall be
1 taken by ali or sorneof the members as the Council shall determine).
1 4.24 Therter makes the Article 39 determination of the existence of any threat
to the peace, breach of the peace or act of aggression, and the related decisions under
1 Articles 41 and 42, entirely the Council's responsibility. The Council must take these
decisions based on its unique political appreciation and events. It
1
may have to act at great speed or in the faceMostrapidly evolving situations.
1 important!y, the must be able to act authoritatively. Its ability to meet a breach
1 of the peace or other grave situation it determines ·to fall under Article 39 would be
gravely impaired ifthat determination (and the related decisions regarding measures to be
1
taken under Articles) werenot authoritative and binding on member states, but
1 could instead be reviewed and reversed months or years later by another
4.25 Pursuant toits powers and responsibilities under the Charter, the Coun.cilbas
1
imposed binding obligations not only on Libya but on ali other members of the United
1 Nations. As we have explained, these enforcement measures may have the effect of
1 depriving or curtailing the legal rights of the affected states under treaties, most
drastically the rights of a target state. However, when a state appeals to this Court to
1
vindicate its legal rights as against the Council's sanctions, the juridical question, as
1 Judge Shahabuddeen observed, is not the collision between the competence
1
1 100
Security Council and that oIt is instead a collision between rights that the
state may assert under treaties and the obligations imposed as a result
1
actions. As we have shawn, Article 103 oftVII~.,rArticles 25pter
and 48) leave no doubt that the obligations undThey are theer prevail.
applicable rule in this case.
1
4.26 In discharging its responsibilities, the Council is not above the law. It must
1
act as the Charter requires.the Charter makes the fifteen Council members
responsible for assessing the existence of threats to security a1d the appropriateness of
measures to meetThe Security Council is indeed pre-eminently a political organ,
whose members generally apply political criteria and make political judgments.
However, they are not indifferent to the principles and rulespable
of reaching decisions based on the Charter. It is very much in their collective interest to
1
maintain the basic framework of their authority, and the records of the Council amply
1
demonstrate that Council members take acconnt of Charter provisions and resolve
differences by reference to the Charter and accepted principles of interpretation.
1
4.27 The changing group of permanent and elected members of the Council are
1
broadly representative, and the maintenance of their collective authority requires that
their constitutional compactRenee, the Court alone is not the gu1rdian of
legality. Under the Charter, the Security Council along with the1ether principal organs,
19Provisional Measures, Separate Opinion of Judge Shahabuddeen, p. 141.
1
19See Admissions Case, p. 64.
197
served as members ofthe Security Council since l992.ennanent Mem1ers of the United Nations that have
1
1 101
1
share that responsibility. And, in the final analysis, it is the member states that have the
1
power --.and the dutyure that their Charter is maintained and respected, for they,
1 after ali, are accountable to their peoples for international peace and security.
4.28 Libya consistently disregards the role and responsibility of the many
1
Members ofthe Security Council who joined together to deal with the destruction of Pan
1 Am103. In so doing, Libya ignores a fundamental Charter mechanism for ensuring
1 international legality. The Council has repeatedly adopted measures directed against
Libya only because a numberientious States, each one bearing significant
1 responsibilities as a Memberrity Council, concluded that they were legally
1 appropriate within the Charter framework.
1 Section 4. The Indirect Review Libya Seeks Is Likewise Precluded
4.29 Libya has also urged the Court to engage in indirect
-1 notion judicial review, arguing that the Court should frnd that the Security Council's
1 resolution cannat be applied to Libya because they result from an abuse or misuse of
198
1 power by the CoThis line of argument rests upon principles of administrative
law found in sorne national legal systems. However, the Court lacks bath the sweeping
1 power to annul actions by political organs and the narrower power to hold that a
1 particular Security Council decision cannat principles of
dornestic administrative law relied upon by Libya do not alter the Charter regime, nor are
1
they rules of international law that can be a81)of the this Court under Article 3
1 Statute. They are not treaties. They do not reflect customary international law. As their
1 1E.g., Libyan Memo~ ~·, para. 6.109,
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1 102
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origin in a particular national legal tradition suggests, they1are not general principles of
law. Instead, they are principles specifically designed for a particular form of domestic
legal order, which is quite different from the international legal arder, including the
Charter. These principles do not alter the legal regime establ1shed by the Charter.
While Libya's Claims Were_Before thect Improperly in Adopting 1esolutions
4.30 Finally, it bas been suggested that the Security Council acted inappropriately
1
m adopting Resolution 748 in April 1992 while Libya's requests for preliminary
1
measures against the United States and the United Kingdom were pending. The United
Stateses not agree. The Court'sjurisprudence takes the position that one organ of the
1
United Nations may act within its sphere of responsibility where another organ may also
1
be involved in the saThe sarne principles operate here as weiL
4.31 The representativeuela summed up the relationship bet1een Court
and Council very weil when the Council adopted Resolution 731:
1
[B]oth the Council and the InternationalCourt of Justice are independentof each other
. . . .chofthese organs in the UnitedNations systemmust exercise itsjurisdiction
which the one or the otherand ... their actions do not imply a disregard fore actions
their respective responsibilities.
1
1
1
1See.S. Rosenne, I The Law and Practice ofthe International Court, 1920-1996, pp. 127-38 (1997).
2306rMeeting of the Security Counci\, 31 March 1992, Doc. SIPV. 3063, p. 84. 1995 U.S. Exhibit 22.
1
11 103
Section 6. Concluding Observations
1 4.32 What is the Court's role when faced with Libya's challenge to the validity of
1 mandatory Security Council decisions in this contentions case? As demonstrated here,
1 this issue, and this case, cannet be resolved simply by referring to the Court's role as the
principal judicial organ of Libya's challenge to the Council's
1
decisions calls into question the basic constitutional instîtutional structure established by
1 the Charter,il as the understanding of member states regarding the powers they
delegated to the Council and to ether organs.
1 4.33 It is beyond the competence and responsibility allocated to the Court by the
1 Charter for itnd-guess the Council when the Council found a threat to peace and
security and decided upon measures in response. The framers of the Charter gave the
1
Security Council the Council alone -- the duty and power to decide, in its
1
discretion, that a situation came within the terms for enforcement
1 action under Article 41. The proper function of the Court faced with this challenge to the
Council's decisions therefore can onlym questioning the authority given
1 to the Council by the Charter. The Council's authority is not against or outside of the
1 lawIis grounded in the Charter itself. The Court would properly exercise its judicial
responsibility by recognizing that the obligations imposed on Libya by the Security
1
Councilconstitute the applicable rule oflaw in this case.
1
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104 1
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PART V 1
CONCLUSION AND SUBMISSION 1
1
5.1 Thus, the claims of the Libyan Arab Jamahiriya against the United States of
1
American should be rejected by the Court. As Part II of this Counter-Memorial has
shawn, each of the Libya's four claims against the Unit1d States based on the Montreal
Convention must be rejected. The destruction of Pan Am 103 is not exclusively regulated
by the Montrealntion. The United States has not violated Articles 7 of the
Convention, or Article Il, or of any ofthe other Articles invoked by Libya. By appealing
to the Security Council as provided in the Charter, the United States has not violated the
1
Convention. Moreover, as Part III has shawn, the applicable legal standards in this case
1
the requirements of the Security Council's mandatory resolutions, not those of the
Montreal ConveThese resolutions are binding on Libya, a1d impose clear
obligations that Libya has not met. Finally, as Part IV bas shawn, neither the Charter nor
the Court's judicial character confer upon it the authority to substitute its judgment for
matters theer has made the responsibilîty of the Security Council.
5.2 The position of the inthis Counter-Memorial is without
1
prejudice to the right of the United States, at an appropriate later time, to initiate separate
1
proceedings against the Libyan Arab Jamahiriya for breach of its obligations to the
United States under the Montreal Convention or otherwis1.
1
11 105
* * * * * * * *
1
1 On the basis of the facts and arguments set out above, the Government of the
United Statesrica requests the Court to dismiss the claims of the Libyan Arab
1
Jamahiriya.
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1 David R. Andrews
Agentthe United States of America
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Counter-Memorial submitted by the United States of America