International Courtof Justice
Case Concerning Questions of
Interpretation and Application of the
1971 Montreal Convention Arising from
the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom)
Counter-Memorial of the
UnitedKingdom
MARCH, 19991_ International Courtof Justice
Case Concerning Questions of
Interpretation and Application of the
1971 Montreal Convention Arising from
the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom)
Counter-Memorial of the
United Kingdom ·
MARCH, 1999 Table of Contents
Page
Part 1 The Case in its Present Perspective 1
A Introduction (paras. 1.1 to 1.13)
B The Proceedings before the International
Court of Justice (paras. 1.14 to 1.16) 5
c The Issues now before the ·Court
(paras. 1.17 to 1.21) 7
D Structure of the Counter-Memorial (para. 1.22)
9
Part2 The Factual Background Il
A Introduction (paras. 2.1 to 2.7)
Il
B The Facts of the Case (paras. 2.8 to 2.13) 13
1. The record ofLibyan involvement in
terrorism (paras. 2.8 to 2.9) 13
2. The destruction of Pan Am Flight 103
and the criminal investigation
(paras..10 to 2.13) 15
Part3 The Interpretation and Application of the
Montreal Convention 17
Chapter 1 The Issues in Dispute (paras. 3.1 to0) 17
Chapter2 The Background to, and Scheme of, the
Montreal Convention (paras. 3.11 to 3.43) 22
A Introduction (paras. 3.11 to 3.13) 22
B The Problem addressed by the Hague and
Montreal Conventions (paras. 3.14 to 3.19) 23
c The Initiatives leading to the Hague and
Montreal Conventions (paras.3.20 to 3.24) 27
D The Scheme of the Montreal Convention
(paras. 3.25 to 3.33) 29
E The Issue of State Complicity
(paras. 3.34 to 3.43) 32
F Pre1iminary Conclusions
(paras. 3.39 to 3.43) 34
Chapter 3 Rights and Obligations under the Montrealonvention
(paras. 3.44 to 3.103) 35
A The Montreal Convention inthe Framework
of International Law (paras. 3.44 to 3.46) 35
1 B The Allegation that the United Kingdom
bas violated Article 7 (paras. 3.47 to 3.61) 36
C The Allegation that the United Kingdom
bas violated Article 11(paras. 3.62 to 3.103) 41
1. The factual background to the allegation
(paras. 3.65 to 3.76) 42
2. The content of the obligation in Article 11
(paras. 3.77 to 3.83) 45
3. The United Kingdom is not in breach
of Article Il (paras. 3.84 to 3.103) 48
Chapter4 The Interpretation and Application of the Montreal
Convention in Cases in which a State is Implicated
in a ConventionOffence (paras. 3.104 to 3.121) 56
Chapter 5 Conclusions regarding the Montreal Convention
(paras. 3.122 to 3.123) 62
Part4 The ;Effect of the Security Council Resolutions
On the Obligations of the Parties 64
Chapter 1 Summary of the Arguments (paras. 4.1 to 4.8) 64
Chapter 2
The Interpretation ·orthe Security Council Resolutions
(paras. 4.9 to 4.61) 68
A Introduction (paras. 4.9 to 4.13) 68
B The Adoption of Resolutions 731, 748
and 883 (paras. 4.14 to 4.34) 70
C The Interpretation ofResolutions 731,748
and 883 (paras. 4.35 to 4.61) 78
Chapter 3 The Legal Effects of the Resolutions
(paras. 4.62 to 4.96) 92
A Resolutions 748 and883 create Binding
Legal Obligations for Libya and the
United K.ingdom(paras. 4.63 to 4.75) 92
B Those Obligations tak.ePriority over
Obligations under the Montreal Convention
(paras. 4.76 to 4.96) 96
Chapter4 The Validity of the Security Council Resolutions
(paras. 4.97 to 4.221) 105
A Introduction (paras. 4.97 to 4.99) 105
B The Relationship between the Court and the
Council is not Hierarchical
(paras. 4.100 to 4.109) 106
Il ..~·'
C The Security Cmmcil Resolutions were
adopted in theProper Manner
(paras.4.110 to 4.128) 110
D The Court Jacksthe Power to Scrutinise the
Substantive Validity of the Security Council
Resolutions on the Grounds advanced
by Libya (paras. 4.129 to 4.173) 118
1. The Security Council alone is entitled to
determine under Article 39 of the Charter the
existence of a threat to international peace and
security (paras. 4.146 to 4.159) 123
2. The Security Council alone is entitled to
decide what measures should be adopted
pursuant to an Article 39 determination
(paras. 4.160 to 4.163) 130
3. The Security Council alone is entitled to
decide if the requirements containedinits
decisions have been met (paras. 4.164 to 4.173) 132
E The Decisions of the Security Council
are Valid in any Event
(paras. 4.174 to 4.221) 136
1. Introduction (para. 4.174) 136
2. The Security Colinèilwas entitled to find
that there was a threat to the peace
(paras. 4.175 to 4.201) 137
3. The Security Council acted validly in adopting
the measures taken inResolutions 748 and 883
(paras. 4.202 to 4.220) 148
4. The Security Council was entitled to determine
that Libya had not complied with the
requirements ofResolution 748 (para. 4.221) 156
Chapter 5 Conclusions regarding the Effectsof the Security
Counci1Resolutions on the Obligations
of the Parties (para. 4.222) 157
PartS Resolution 1192 (1998)
159
A The Third Country Trial Initiative
(paras. 5.2 to 5.6) 159
B Resolution 1192 (1998) (paras. 5.7 to 5.13) 161
C Developments since the Adoption of
Resolution 1192 (1998) (paras. 5.14 to 5.16) 165
Part6 Summary and Submissions 167
List of Annexes
Ill PARTl
THE CASE IN ITS PRESENT PERSPECTIVE
Section A: Introduction
1.1 The present proceedings have their origin in an act of terrorism which, on 21
December 1988, destroyed Pan American Flight PA 103 over the town of Lockerbie in
Scotland. Ail 259 people on board the aircraft were killed, together with eleven residents of
Lockerbie. It is common ground that the destructionof the aircra:ftand the consequent loss of
life were caused by a bomb that had been placed on the aircraft.
1.2 Following a lengthy and meticulous investigation by police forces in Scotland and
1
other countries, in November 1991, the prosecuting authorities in Scotland brought charges
of murder, conspiracy to murder and contravention of the Aviation Security Act 1982, against
two Libyan nationals, Abdelbaset Ali Moluned Al Megrahi and AI Amin Khalifa Fhimah.
The charges alleged that the two accused were members of the Libyan intelligence services
and had acted in furtherance of the purposes of those services. A warrant for their arrest was
2
issued by a Scottish court on 13 November 1991. Similar charges were a!so laid by Federal
prosecuting authorities in the United States.
1.3 On 14 November 1991 copies of the charges and warrant, together with a detailed
3
Statement of Facts, were transmitted to the Libyan Arab Jamahiriya ("Libya") along with a
demand for the surrender of the two accused fortrialin Scotland. The same day Libya issued
a press release denying any knowledge of the crime and, a few days later, announced that a
4
Libyanjudge bad been appointed to inquire into the accusations.
The details of this investigation are summarised in paras. 2.28-2.51 of the United Kingdom Preliminary
Objections (hereinafterPOs").
2 Annex 17.
Annex 16. Inorder to avoid any risk of prejudicing the trial of the two accused, the United Kingdom
requested that the StatementFacts not be made public at the Preliminary Objections stage of the
proceedings. The Court so decided.
4 Annex 12to the Libyan Memorial. See a1soUnited Nations Docs. A/46/844 and S/23416 (Annex 47).
11.4 No satisfactory response was received from Libya. Accordingly, on 27 November
1991the United Kingdom and the United States issued ajoint declaration calling upon Libya,
inter alia, to surrender the two accused for trial. 5 On 21 January 1992, the United Nations
6
Security Council unanimously adopted Resolution 731 (1992). That Resolution condemned
the destruction ofFlight PA 103 and a French airliner, UTA 772; strongly deplored the fact
that Libya had not responded effectively to the requests by the Govemments of the United
Kingdom, the United States and France to co-operate fully in establishing responsibility for
the terrorist acts against the two flights; and urged Libya immediately to provide a full and
effectiveresponse to the requests.
1.5 Security Council Resolution 731 was followed by the adoption, on 31 March 1992,
of Resolution 748 (1992). In that Resolution, which was adopted under Chapter VII of the
United Nations Charter, the Council determined that the failure by Libya to demonstrate by
concrete actions its renunciation of terrorism and, in particular, its continued failure to
respond fully and effectively to the requests in Resolution 731, constituted a threat to
international peace and security. The Council then decided that Libya must cornply without
further delay with the call in Resolution 731 to provide a full and effective response to the
requests of the three Governments; conunit itself definitively to cease ail forrns of terrorist
action and assistance to terrorist groups; and demonstrate, by concrete actions, its
renunciation of terrorism. Resolution 748 imposed varions economie and other sanctions
upon Libyauntil it complied with the substantive requirements of the Resolution.
1.6 The Council reaffirmed the decisions contained in Resolution 748 when it adopted
8
Resolution 883 (1993). Resolution 883 also extended the scope of the sanctions against
Libya, but expressed the Council's readiness to review those sanctions with a view to
suspending them inunediately if Libya ensured the appearance of the accused for trialbefore
the appropriate United Kingdom or United States court.
5 Annex 7. The various communications, and the history of this matter before the Security Council, are
considered in greater detail in paras. 4.14 to 4.34, below, and in para. 2.46 et seq.
6 Annex2.
7 Annex 3.
Annex4.
21.7 Libya did not comply with the requirements of Resolutions 748 and 883, and the
sanctions have therefore remained in force. Libya did, however, call for the trial of the two
accused to take place in a "third country." ~n particular, Libya repeatedly suggested that a
trial take place before a Scottish court in the Netherlands. 9 Similar proposais were put
forward by the Organisation of African Unity, the League of Arab States, the Non-Aligned
Movement and the Islamic Conference. 10
1.8 The Governments of the United Kingdom and the United States, while deploring
Libya's persistent failure to comply with its obligations under Resolutions 748 and 883,
submitted to the Security Council in August 1998 a proposai that the Council should adopt a
new resolution permitting the trial to take place before a Scottish court which would sit in the
11
Netherlands for the sole pwpose of trying the two accused under Scottish law. This
proposai was accompanied by drafts of an Agreement between the United Kingdom and the
Netherlands and of legislation to be adopted by the United Kingdom to give effect to this
proposai.
1.9 On 27 August 1998, the Secùrity Council unanimously adopted Resolution 1192
(1998), 12in which it welcomed the United Kingdom-United States initiative and, acting under
Chapter VII of the Charter, called upon the Governments of the United Kingdom and the
Netherlands to take the necessary steps to implement the proposai, recalled its earlier
Resolutions and demanded that Libya comply with them. The Council decided that Libya
was to ensure the appearance of the accused for the purpose of trial before the Scottish court
in the Netherlands and to ensure that any evidence or witnesses in Libya should, ifthat court
so requested, promptly be made available for the purpose of the trial. Resolution 1192 also
provides that th.e sanctions imposed by Resolutions 748 and 883 will be suspended
immediately:
9
See, e.g., the references in the Libyan Observations at paras. 1.13 and 1.50 to 1.51, and in CR 97/20, pp.
18-19, paras.14 and 2.17. See also UN Docs. S/1997/518 (Annex 115) and S/1998/5 (Annex 116).
10 See the documents referred to in the preamble to Security Council Resolution 1192 (1998) (Annex 87).
Il UN Doc. S/19981795 (Annex 86). The details of this initiative are set out in greater detail in Part 5 of
this Counter-Memorial.
12
Annex 87.
3 "if the Secretary-General reports to the Council that the two accused have arrived in
the Netherlands for the purpose of trial before the [Scottish court) or have appeared
for trial before an appropriate court in the United Kingdom or the United States, and
that the Libyan Government bas satisfied the French judicial authorities with regard
13
to the bombing ofUTA 772."
1.10 The implications of Resolution 1192 (1998) and Libya's response thereto will be
analysed in Part 5 of this Counter-Memorial. It is sufficient, at this point, to note that that
Resolution, which was adopted unanimously:
(a) reaffirms the Chapter VII basis of Resolutions 748 (1992) and 883 (1993);
(b) confirms that those Resolutions placed Libya under a binding legal obligation,
inter alia,to ensure that the accused appear for trial before a Scottish or United
States court; and
(c) provides the clearest possible determination that Libya had failed to cornply
with its obligations under those resolutions.
1.11 The Govemment of Libya made a number of statements welcoming this initiative. In
particular, speaking in the Security Council immediately before the adoption of Resolution
1192, the Representative of Libya said:
"First, we welcome the acceptance by the United States of America and the United
Kingdom of the proposais already made by the League of Arab States and the
Organisation of African Unity (OAU) and supported by the Organisation of the
Islamic Conference (OIC) and the Non-Aligned Movement more than four years
ago. We believe that this acceptance is a positive step likely to result in a
satisfactory and just solution for ali to this long-standing dispute - a dispute from
which our people, as well as the families of the victims, have suffered.
Secondly, the Libyan Arab Jamahiriya accepts that the two suspects should be tried
in a Scottish court in the Netherlands by Scottish judges, according to Scots law.
We reaffirm this position today; we have already stated it, as has been officially
recorded in the Security Council. This is a serious, irreversible position. We hope
that the other party is also serions in its position. There is still an important issue
that must be formally reaffinned before ·the Security Council - an issue we have
tak:enup with the Council and the Secretary-General many times. From today, the
14
issue will return toits original status as a strictly legal matter."
13 Annex 87, para. 8.
14 UN Doc. S/PV. 3920, p. 4 (Annex 88).
4 - - - - - - - - - - - - - - - - ~
1.12 Libya theo sought and received clarification of certain matters relating to the trial
before the Scottish court in the Netherlands. This process was still taking place when the
deadline for filing the CoWiter-Memorial (30 December 1998) was reached. Although the
United Kingdom had completed the text ofits Counter-Memorial, it therefore asked the Court
to consider extending the time-limit for its filing. The Court decided to extend the time-limit
15
until 31 March 1999.
1.13 At the time when this Counter-Memorial was sent for printing in March 1999, the
two accused had still not appeared for trial. Nevertheless, the United Kingdom hopes that
Libya will soon comply with its obligations under Resolution 1192 (1998) and that it will be
possible to proceed with a criminal trial of the accused before the Scottish court in the
Netherlands. If that were to happen, it would have important consequences, not least for the
present proceedings. In the meantime, the United K.ingdom remains ready to comply fully
with its duties to the Court. Rather than seeking a further extension of the time-limit set by
the Court, the United Kingdom hereby submits its Counter-Memorial but respectfully
reserves the right to supplement the Counter-Memorial as necessary in the light of furt:her
developments.
Section B: The Proceedings before the International Court of Justice
1.14 The present proceedings were initiated by a Libyan Application filed with the Court
on 3 March 1992 under Article 14(1) of the Montreal Convention for the Suppression of
16
Unlawful Acts against the Safety of Civil Aviation, 1971 ("the Montreal. Convention"),
which provides that:
"Any dispute between two or more Contracting States concerning the interpretation
or application of this Convention which cannot be settled through negotiation, shaH,
at the requestof one of them, be submitted to arbitration. If within six months from
the date of the request for arbitration the Parties are unable to agree on the
organisation of the arbitration, any one of those Parties may refer the dispute to the
International Court of Justice by request in conformity with the Statute of the
Court."
!5 Order of 17 December 1998.
16 Annex 1.
5Libya's request for provisional measures of protection was rejected by the Court in its
17
decision of 14 April 1992.
1.15 In its Memorial, filed on 20 December 1993, Libya asked the Court to adjudge and
declare:
''(a) that the Montreal Convention is applicable to this dispute;
(b) that Libya has fully complied with ali of its obligations under the Montreal
Convention and is justified in exercising the criminal jurisdiction provided for by
that Convention;
(c) that the United Kingdom has breached, and is continuing to breach, its legal
obligations to Libya under Articles 5(2), 5(3), 7, 8(3) and 11 of the Montreal
Convention;
(d) that the United Kingdom is under a legal obligation to respect Libya's right
not to have the Convention set aside by means which would in any case be at
variance with the principles of the United _NationsCharter and with the mandatory
rules of general international law prohibiting the use of force and the violation of the
sovereignty, territorial integrity, sovereign equality and political independence of
States."18
1.16 In June 1995, the United Kingdom submitted prelirninary objections, contesting the
jurisdiction of the Court and the admissibility of the daims brought by Libya. 19 In its
Judgment of 27 February 1998, the Court dismissed the United Kingdom's objection to
jurisdiction and held that there was a dispute between Libya and the United Kingdom which
came within the jurisdiction of the Court under Article 14(1) of the Montreal Convention.
The Court held that the United Kingdom's objection that Security Council Resolutions 748
and 883 had rendered the daims of Libya without object did not possess an exclusively
17 Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Provisional Measures) (Libyanited Kingdom), ICJ Reports,
1992, p. 3 (hereinafter "Provisianal Measures Order").
18 Libyan Memorial, para. 8.1.
19
Libya's Observations and Submissions on the Preliminary Objections of the United Kingdom were
submitted in December 1995 and are cited in this Counter-Memorial as "Libyan Observations".
6preliminary character, and that the issues there raised thus feil to be decided at the merits
20
phase.
Section C: The Issues now before the Court
1.17 In its Judgment of 27 February 1998, the Court held that it had jurisdiction in respect
of the following disputes betv.reenthe Parties:
(a) the applicability of the Montreal Convention betv.reen the Parties m the
circumstances of the present case;21
(b) the interpretation and application of Article 7 of the Montreal Convention,
read in conjunction with Articles1, 5, 6 and 8 of the Convention;2
23
(c) the interpretation and application of Article Il of the Montreal Convention;
and
(d) the question of whether the actions of the United Kingdom criticised by Lîbya
24
are at variance with the provisions~ft Mhontreal Convention.
1.18 While the Court upheld its jurisdiction, it did not accept that it had jurisdiction over
aliof the claims advanced by Libya.
1.19 First, it is apparent from paragraph 36of the Judgment that the Court did not accept
that Article 14(1) of the Montreal Convention gave it jurisdiction to consider Libyan
allegations that the conduct of the United Kingdom was at variance with "the principles of
the United Nations Charter and with the mandatory rules of general international law
20 Case Concerning Questions of Interpretation and Application ofthe 197/ Montreal Convention arising
from the Aerial IncidentLockerbte {Libya v. United Kingdom) (Preliminary Objections), Judgment of
27 February 1998, (hereinafter "Preliminary Objections Judgment"), para. 53(3).
21
Ibid., para. 25.
22 Ibid., para. 29.
23 Ibid., para. 33.
24
Ibid., para. 36.
7prohibiting the use of force and the violation of the sovereignty, territorial integrity,
sovereign equality and political independence ofStates". 25
1.20 Secondly, the Court did not accept Libya's arguments that jurisdiction existed in
respect of separate disputes regarding Articles 5(2), 5(3), 8(2) or 8(3/ 6 of the Convention.
These provisions, together with Article 6, are thus relevant to the proceedings on the merits
only if, and insofar as, they inform the interpretation and application of Article 7 of the
Convention, as is con:finned by paragraph 29 of the Court's Judgment.
1.21 In the event that the Court is called upon to deal with the questions over which it has
jurisdiction, it will also be called upon to apply Security Council Resolutions 731 (1992), 748
(1992), 883 (1993) and 1192 (1998). As will be explained in Parts 4 and 5 of this Counter
Memorial, the United K.ingdomcontends that Resolutions 748, 883 and 1192 impose binding
legal obligations upon both Libya and the United Kingdom. The obligations of each State,
under Article 25 of the United Nations Charter, to accept and carry out the decisions of the
Security Council contained in those Resolutions take priority over any rights and obligations
which they may have under the Montreal Convention. Accordingly, the jurisdiction of the
Court to settle disputes under the Montreal Convention must encompass giving effect to the
overriding normative obligations arising out of the United Nations Charter which preclude
the relief sought by the Applicant.
25
Libyan Memorial, para. 8.I, quoted at para. 34 of the Preliminary Objections Judgment. This is
confirmed by the Joint Declaration of Judges Guillaume and Fleischhauer (pp. 3-4), the Separate Opinion
of Judge Kooijmans (para. 8) and the Dissenting Opinion of President Schwebel (pp. 2-3). The general
principle that thejurisdiction of the Court under the cornpromissory clause of a convention is confmed to
matters that come within the scope of the convention in ratione materiaewas also confmned by the
Court in the Genocide Convention Case {Application of the Convention on the Prevention and
Punishment of the CrimeofGenocide, PreliminaryObjections,Judgment, l.C.J. Reports 1996, p. 595, at
paragraph 30). See also Oil Platforms (lslamic Republic of Iran v. United States of America),
Preliminary Objections, Judgment, l.C.J. Reports 1996, p. 803. The Court there concluded that,
notwithstanding the broad formulation of Article lof the 1955 Treaty of Amity in issue in that case, this
could not be interpreted as incorporating ali of the provisions of international law conceming relations
between the States in question and could not therefore form the basis for the Court's jurisdiction.
26
In contrastto the reference to Article 8(2) of the Montreal Convention in its Application, Libya's
Memorial and the Libyan Observations place reliance on Article 8{3)of the Convention.
8Section D: Structure of the Counter-Memorial
1.22 The United Kingdom will set out its case in this Counter-Memorial as follows:
Part 2 will briefly outline the relevant factual background.
Part 3 will set out the submissions of the United Kingdom regarding the
interpretation and application of the Montreal Convention. The principal
submissions are:
(1) that Libya has failed to establish that the Montreal Convention gives it the
rights to which it lays claim;27
(2) that Libya has failed to establish that the United Kingdom has violated any
obligations imposed upon it by the Montreal Convention; 28
(3) that, properly interpreted, on its terms and in accordance with the principle of
effectiveness, the Convention does not, in any case, confer upon a State
implicated in the commission of serious breaches of the Convention the rights
29
which Libya claims.
Part 4 will set out the submissions of the United Kingdom regarding the effects of
Security Couneil Resolutions 731, 748 and 883. The United Kingdom maintains:
(1) that the decisions of the Security Council contained in Resolutions 748 and
883 require Libya to surrender the two accused for trial before an appropriate
30
United Kingdom or United States court;
(2) that the decisions contained in those Resolutions impose binding legal
obligations upon Libya and the United Kingdom which prevail over any rights
27
Paras. 3.44 to 3.51.
28 Paras. 3.52 to 3.103.
29 Paras. 3.104 to 3.I2l.
30
Paras. 4.9 to 4.6l.
9 or obligations which either Libya or the United Kingdom might have under the
Montreal Convention; 31
(3) that the obligations deriving from those Resolutions must be given effect by
the Court in the present proceedings, because:
32
(a) the Resolutions were validly adopted asto procedure and form;
(b) the Court does not possess the power to question the substantive
33
validity of decisions of the Security Council;
(c) alternatively, even if the Court did possess such a power of substantive
review, the decisions of the Council were not defective. 34
Part 5 will examine the effects of Resolution 1192, and will demonstrate that this
Resolution confirms the United Kingdom's submissions relating to the
interpretation, validity and effect of Resolutions 748 and 883. The conclusions and
formai submissions of the United Kingdom are set out in Part 6.
31
Paras. 4.62 to 4.96.
32 Paras. 4.110 to 4.128.
33 Paras. 4.129to4.173.
34
Paras. 4.174 to 4.221.
10 PART2
THEFACTUALBACKGROUND
Section A: Introduction
2.1 In thisPart,the United Kingdom will briefly recall the facts relating to the destruction
ofPan Am Flight 103 andthe subsequent investigation, which resulted in charges being brought
against two Libyan nationals, Abdelbaset Ali Mohmed Al Megrahi and Al Amin K.halifa
Fhimah, acting on behalf of the Libyan intelligence services and in furtherance of the purposes
ofthose services, of causing the destruction of the aircraft and the deaths of270 people.
2.2 The United Kingdom will, however, be circumspect in.dealing with the facts. This is
not because the United Kingdom has any reservations about the basis on which the Scottish
prosecuting authorities brought charges againstthe two accused. The need to be circumspect
arises solely from the fact that these proceedings must not prejudice the holdingof a criminal
trialof the two accused. For the reasons given in Part1 ofthis Counter-Memorial, the United
Kingdom hopes that such a trial is now imminent.
2.3 Nevertheless, an appreciation of the facts is vital because - today, just as in November
1991 - these go to implicate Libya in the destruction ofFlight 103. As further explained iPart
3, it is for this reason that the two accused should not be tried in Libya, and for this rinter,
alia, that Libya does not have the rightsunder the Montreal Convention that it now claims to
enJoy.
2.4 It is stressed that it is not, of course, for the Court to determine whether or not the two
accused are guilty; norisit for the Court to decide whether or not the Libyan State was involved
in the destruction of Flight 103. Similarly, the Court does not have to decide on the factual
contentions of Libya, which centre on wholly unfounded allegations of the existence of a plot,
said to have been hatched by the United Kingdom and the United States with the aim of making
Libya conform to the interestsof those two States and of their oil companies.
112.5 The Libyan Observations, however, focus on an alleged lack of evidence justifying the
charges brought against the two accused, as if their trial were already taking place. 1 This is
contrasted with the expressions of the certitude of the guilt of the accused that, according to
2
Libya, have been voiced by varions United Kingdom representatives. Libya misses the point.
Of course the United Kingdom prosecuting authorities have reason to believe that the two
Libyan accused were responsible for the destruction of Flight 103. That is why the two have
3
been charged with the offences set out in the Petition of 13 November 1991. Insofar as these
proceedings are concemed, the sole interest of the United Kingdom is that the accused be
brought to a trial before the appropriate court and that the evidence be fully tested there. The
Libyan position appears to be that the question of where the accused are to be tried cannat be
resolved until all the evidence is revealed and, in e:ffectitis proved that the two are guilty and
were acting on behalf of Libya. Sncb a proposition is obviously devoid of logic. Moreover, as
4
already explained in its Preliminary Objections, the United Kingdom cannot properly make
public further details of the evidence while criminal proceedings are pending, as to do so
5
might prejudice the fair trial ofthe case.
2.6 Libya bas also focused on what it describes as the "rhetoric" of the United Kingdom
and on what it sees as the "real" reasons behind the United Kingdom's allegations of Libya's
involvement in the destruction ofFlight 103:
Libyan Observations, para 1.2.
2
Ibid., paras. 1.8-1.13.In fact, the statementsof United Kingdom representatives cited by Libya do not
support the contentionthat the guiltofthe twoaccused is assumed.
3 Annex 17.
4
UKPOs, para. 2.35
5 Because of the prohibition on the Crown publishing evidence while a criminal trial is pending, the
then Lord Advocate, when announcing the charges against the two accused on 14 November 1991,
said that he "cannot and will not comment on the evidence on which these charges are based." UN
Docs. A/46/826 and S/23307 at p.6 (Annex 6). See, also, the statement of Lord James Douglas
Hamilton, House of Commons Debates, 13 December 1994, cols. 45-48 (Annex 79), and the
Summary of Scottish Criminal Procedure in Murder Cases, at para. 19 (Annex 18).
12 "The accusations leveiled against Libya in the wake of the attack against the Boeing of
Pan Am together constitute the most recent phase in that policy of destabilisation
linked to the geostrategical or national interests of the United States and the United
King dm. ,;6
Further it is stated that as long as Libya refuses to adopt "a model of a market economy designed
to promote [United States and United Kingdom] interests and those of their oil companies",
Libya will remain 'Thebêtenoire of the region, a regime to be struck down". 7
2.7 The logical inference is that the United Kingdom's sole objective was the
destabilisation of Libya and that it was indifferent to the question of the arrest, trial and
punishment of those really responsible for the destruction of Flight 103 over Lockerbie and the
resultant deaths of 270 people. Such a suggestion does not merit conunent, other than to draw
the attention of the Court to the detailed arrangements which have been made for the trial of the
8
accused.
Section B: The Facts of the Case
1. The record ofLibyan involvement in terrorism
2.8 The United Kingdom adopts and repeats the evidence of Libya's past involvement in
9
terrorist activities containedin the United Kingdom's Preliminary Objections. With specifie
regard to Libya's connections with the Provisional IrishRepublican Army (the "Provisional
IRA"), on 20 November 1995 the United Kingdom issued a statement, for circulation to the
members of the Security Council, to the effect that Libya had "largely met our expectations" in
6 Libyan Observations, para. 1.23. Libya also devotes one section of the chapter in its Observations on
the context of the dispute to the "initiatives" that it has allegedly taken in accordance with the
Montreal Convention. Reference îs madeo "Libya's proposai that the two accused should be tried in
The Hague by aScottish court". Ibid., para. 1.51. See now the provisions of Resolution 1192 (1998)
and Libya's response thereto, which are discussed in paras. 1.8 to 1.13 and Part 5 of this Counter
Memorial.
7 Libyan Observations, para. 1.25.
8
See Part 5 of this Counter-Memorial and Annexes 86, 89 and 90.
9 UKPOs, paras.2.15-2.27. See LibyanObservations,para.1.10.
13terms of its disclosure of information relating to Libya's contacts with the Provisional IRA. 10
The statement continued:
"We acknowledge that the Libyan readiness to answer our questions is a positive step
towards its implementation of the relevant Security Council resolutions, in particular
towards its renunciation ofterrorism, a path which we hope it will continue to follow.
We should not forget the circumstances which led to our putting these questions to
them. The material and financial help given to the Provisional IRA added significantly
to its paramilitary capabilities at a time when it was waging a terror campaign against
British interests."
It is also noted that, in various statements made by Libya to the UN Secretary-General, Libya
11
has accepted that it hashad links with terrorist organisations.
2.9 A recent development in this regard is that, on 10 March 1999, the Cour d'Assises in
Paris convicted six Libyan nationals on charges of having been party to premeditated murder
and to the destruction of a civil aircraft in flight. As the accused, Ahmed Abdallah Elazragh,
Ibrahim Naeli, Arbas Musbah, Abdallah Senoussi, Issa Abdelsalam Shibani and Abdelsalam
Hammouda El Ageli, did not present themselves to answer to the charges, they were convicted
in absentia under the relevant provisions of the French Code ofCriminal Procedure. Each of the
accused was sentenced to life imprisonment.
!0
UN Doc. S/1995/973 (A!Ulex 109).
Il As to admissions to the Secretary-General, in a communiqué of 14 May 1992, Libya confrrmed its
readiness to implement the provisions of Resolution 731 relating to the "definitive renunciatîon of
terrorism", a!Ulouncing:
"1. Libyasevers relations with ali organisations and groups involved in international terrorism of
any kind; ..." UN Doc. S/23917, p. 2 (Annex 55) (emphasis added).
The cOimectionbetween Libya and terrorist organizations prior to May 1992 was thus expressly admitted.
In Libya's letter to the Secretary General of 8 December 1992, the statement was repeated, but this time
with the useof the past tense:
"1. lt has severed its relations with ali groups and organisations suspected ofinvolvement in acts
ofterrorism; ..."UN Doc. S/24961 (Annex 63).
In his letter of21 May 1992, the permanent representative ofMauritania brought to the Secretary
General's attention "certain positive points" made by the representative of Libya, one of these
"positive points" being the fact that Libya had agreed "to disassociate itself from terrorism and
terrorists". UN Doc. S/23995, p. 1 (Annex 145 bis to the Libyan Memorial). Further, in its
142. The destruction ofPan Am Flight 103and the criminal investigation
2.10 When, on 21 December 1988,Pan Am Flight 103 exploded over the town ofLockerbie
in southern Scotland, ali 259 passengers and crew were killed, as well as eleven residents of
Lockerbie. The victims included nationals of twenty-one countries in Europe, the Americas,
Africa and Asia. Nineteen of the victims were children. An international investigation was
immediate!y commenced, based at Lockerbie and under the command of the Chief Constable of
the Dumfries and Galloway Constabulary, the police force whose area ofresponsibility covered
the part of Scotland which included Lockerbie. The Dumfries and Galloway Constabulary was
assisted by police officers from a number of other police forces in the United Kingdom, and
worked in co-operation with agents of the United States Federal Bureau of Investigation.
2.11 The investigation of sudden and unexplained deaths in Scotland, whether caused by a
criminal act or otherwise, is the responsibility of the Procurator Fiscal, who is the public
prosecutor acting within a particular district. The Procurator Fiscal is the local representative of
the Lord Advocate, who is the chief public prosecutor for Scotland. The Procurator Fiscal
whose district includes Lockerbie is the Procurator Fiscal for Dumfries. A description of
Scottish criminal procedure and investigative procedures so far as is relevant to the Lockerbie
case is contained in theSummaryofScottishCriminalProcedureinMurderCases. 12
2.12 The investigation and the decisions to bring charges are described in paragraphs 2.28 to
2.51 of the United K.ingdom's PrelirninaryObjections. In addition, a Statement ofFacts, which
was handed to Libya on 14 November 1991, was appended as Annex 16 to those Preliminary
Objections. The Court decided, at the hearing on the Preliminary Objections in October 1997,
that this Statement ofFacts should not be made public. In view of the possibility that a criminal
trialof the two accused will commence in the near future, the United K.ingdom does not, at
present, wish to add anything regarding the facts to what is already before the Court in the
Preliminary Objections and the Statement ofFacts.
2.13 Further, under the law of Scotland, no person may be convicted of a crime on the
memorandum tothe SecretaryGeneralof 11September1993,Libyaadmîts thatit provided"assistance"
to"certainliberationorganisations".UNDoc.S/26500,p. 13(Annex67).
l2
Annex 18.
15evidence of only one \Vitnessor on evidence from only one source. The essential facts in any
criminal case must be proved by the prosecutor beyond reasonable doubt by corroborated
evidence. The Lord Advocate came to his conclusion that there were sufficient grounds to bring
these charges only on the basis of a comprehensive investigation, independent of any
Goverrunent influence, and on the basis of available evidence. The Lord Advocate hasseen no
evidence which would warrant reconsideration of the charges that have been made, and remains
of the opinion that the evidence should properly be tested before the crim.inalcomts having
jurisdictionin Scotland or the United States, or before a Scottish court, sitinnthe Netherlands,
pursuant to Resolution 1192 (1998).
16 PART3
THE INTERPRETATION AND APPLICATION
OF THE MONTREAL CONVENTION
Chapter 1
The Issues in Dispute
3.1 The Court'sdelimitation of the issues in the case raises a threshold question,
namely whether the Montreal Convention is applicable to a case in which a State is
implicated in the commission of one or more of the acts to which Article 1 of the
Convention refers. The United Kingdom considers that the Convention is applicable
in such a case. The material set out in paragraphs 3.11 to 3.43, below, the bread
language of Article 1 of the Convention and the duties placed upon States to prevent
2
aviationterrorism and to co-operate in forestalling it demonstrate that it was intended
that the Convention should have the widest possible coverage. 3
3.2 This does not mean, however, that the Convention applies in the same way
when a State Party is implicated in a grave Convention offence. As the United
Kingdom will contend in paragraphs 3.104 to 3.121, below, the possibility of aState
Party being so implicated is relevant to the interpretation of the Convention and is a
highly rnaterialfactorfor its applicationin the present case.
3.3 Since Libya is the Clairnant in the present case, it is important to identify
precisely what it is that Libya daims against the United K.ingdorn.The Libyan case
depends entirely on the argument that the Convention confers upon Libya the
indefeasible right to choose to prosecute the accused before its own courts and thus to
See para. 1.17,above.
2 Articles 10and 12 ofthe Convention (Annex 1).
3 That much is common ground between the Parties in the present case, since Libya has also
contended that the Convention is applicablee acts of State agents acting in their official
capacity. See, e.g., the Libyan reply to the question posed by Judge Schwebel in the
Provisional Measures hearing; letter of2 April 1992.
17 4
exclude the jurisdiction of the courts of any other State. In that regard, Libya also
daims a right not to be prevented from - or hindered in - the performance of its
obligations under the Convention. Without such a right, or option, the Libyan
submissions either fall to the ground or become insubstantial. These inelude Libya's
claims, under Article 11 of the Convention, that the United Kingdom should have
supplied Libya with the evidence against the accused, and Libya's general assertion
that it has a right to have the United Kingdorn deal with iton the basis of the Montreal
6
Convention and not to have the Convention "set aside" by the United Kingdom. For
the reasons given in paragraphs 3.44 to 3.103, below, the United Kingdom rejects
Libya's interpretation of the Convention and denies that the Convention confers upon
Libya the rights which it daims.
3.4 This case is not, however, about Libya's claim to rights in the abstract. It is a
contentious case brought against the United Kingdom as Respondent. These
proceedings are not the appropriate forum for the Court to adjudge and declare, as
Libya is requesting it to do, "that Lîbya bas fully complied with ali of its obligations
under the Montreal Convention and is justified in exercising the criminal jurisdiction
7
provided for by that Convention". The Court is not in a position to make such an
8
assessrnent and thus ought not to do so. It should refrain from commenting on the
rights claimed by Libya save insofar as they are directly related to Libya's daims
against the United Kingdom. As Sir Hersch Lauterpacht observed on the question of
declaratory judgments by the Court:
..... unless the rendering of declaratory judgments, i.e., judgments unrelated
to a concrete daim for redress in respect of an alleged particular act, is kept
4 Libyan Memorial, paras. 3.5 and 4.43.
5 Ibid., paras. 3.9 and 4.44 to 4.46.
6
Ibid, para. 8.l(d).
7 Ibid,para. 8.l(b).
If the evidence supporting the charges against the two accused is sustaitwould ground a
claim by the United Kingdom against Libya for a particularly serious violation of the Montreal
Convention. The United Kingdom bas made no counter-claim against Libya in the present
proceedings. lt considers that thfrrspriority is to ensure that the guilt or innocence of the
accused is detennined in proper criminal proceedings, as required by the Security Council.
The United Kingdom reserves, however, ali ofits rights in respect ofLibya's responsibility for
violationsofitsobligations under the Montreal Convention.
18 within limits, the contentious jurisdiction of the Court might be used as a
means for obtaining Advlsory Opinions liy·States (as distinguished from
requests by an authorisedorgan or specialisedagency of the United Nations).
The Statute wisely makes no provision for requests9for Advisory Opinions,
which are not binding, by individual States .... "
3.5 This case is, therefore, about what, if any, obligations the United Kingdom
owes towards Libya under the Montreal Conventionand whether Libya can sustain its
allegation that the United Kingdom is in breach of those obligations. Libya's
allegations cao be summarisedas follows:
(a) that the United Kingdom acted in breach of the Montreal Convention
by seeking the surrender of the accused for trial and by referring the
matter to the Security Council;
(b) that the United Kingdom's actions have prevented Libya from
exercisingits claimedright or option under Article 7, read together with
Article 5(2), of the Convention, to submit the matter to its own
authorities for prosecution; and
(c) that the United Kingdom is in breach of Article 11 of the Montreal
Convention in failing to assist Libya inrespect of (b), above.
3.6 The United Kingdom's response can be summarised as follows. First, in the
circumstances of this case, Article 7 does not impose any obligations on the United
Kingdom, or confer any corresponding "right" on Libya. Article 7 imposes
obligations on Libya, and uniquely so. Since Article 7 is the lynchpin ofLibya's case,
the fact that it does not confer upon Libya the "right" which Libya daims exposes the
hollowness of the entire Libyan argwnent.
3.7 Secondly, with regard to Libya's more general claim that it is entitledto have
the United Kingdom act "in accordance with the [Montreal] Convention, and only in
10
accordance with the Convention, with respect to the matter involving flight PA 103",
the United Kingdom rnaintains that Libya misunderstands the nature of international
9
Sir H. Lauterpacbt, The Development of InternatLawaby the International Court (1958),
at p.50.
10
Libyan Application, para. III (g).
19law and the place which the Montreal Convention occupies relative to other
international agreements and customary international law. In particular, the United
Kingdom denies that it has sought to "set aside" the Montreal Convention at ali, or by
11
means which are at variance with the Convention, or, indeed, that it has sought to set
aside the Convention at ali.
3.8 Thirdly, the United Kingdom denies that it has violated any obligations
towards Libya under any of the provisions of the Montreal Convention on which
Libya relies.
3.9 Fourthly, the United Kingdom contends that the Convention provides no
basis for a supposed right on the part of a State implicated in the commission of an
offence to insist on trying the perpetrators before its own courts. To ask the Court to
endorse such a claim of right is to ask it to act against the very object and purpose of
the Convention and the principle of effectiveness in the interpretation and application
of treaties.
3.10 The United Kingdom sets out these submissions as follows:-
Chapter 2 analyses the scheme and history of the Montreal Convention;
Chapter 3 demonstrates that, even without reference to the allegations of
Libyan involvement in the destruction of Pan Am Flight 103, the Montreal
Convention does not confer upon Libya the rights which it claims and that the
United Kingdom has not violated any ofits Convention obligations to Libya;
11 The actions of the United Kingdom - independently or in the context of the UN Security
Council- aimed at ensuring that the accused are tried before a Scottish or United States court,
cannot amount to a violation of the Convention. lnsofar as Libya daims that the United
Kingdom bas acted contrary to the United Nations Charter, the United Kingdom notes that this
claim falls outside the jurisdictionof the Court under Article 14(1) of the Montreal
Convention, as determined by the Court in its Judgment on the United Kingdom's Preliminary
Objections. Without submitting to the jurisdiction of the Court in respect of these broader
Libyan allegations, thenited Kingdom notes that Libya bas failed to produce any evidence in
support of those allegations and denies that it bas acted at variance with the principles of the
United Nations Charter or with other principles of international law. As this element falls
outside the Court'sjurisdiction under Article 14(1) of the Montreal Convention, nothing more
needs tobe said on this point.
20 Chapter 4 considers the interpretation and application of the Montreal
Convention in cases in which a State is implicated in an offence under Article
1of the Convention;
Chapter 5 sets out the conclusions of the United Kingdom regarding the
interpretation and application of the Montreal Convention.
These matters are addressed without reference to the obligations created for Libya and
the United Kingdom by the decisions of the Security Council in Resolutions 748, 883
and 1192. The effects of those decisions are considered in Parts 4 and 5 of this
Counter-Memorial.
21 Chapter2
The Background to, and Scheme of, the Montreal Convention
Section A: Introduction
3.11 The Montreal Convention was the third in a trilogy of multîlateral treaties
concluded within an eight year period under the auspices of the International Civil
Aviation Organisation ("ICAO") to address crimes of unlavvfulinterference with civil
aviation. It followed the Convention on Offences and Certain Other Acts Committed
on Board Aircraft, concluded at Tokyo on 14 September 1963 ("the Tokyo
12
Convention"), and the Convention for the Suppression of Unlawful Seizure of
13
Airerait, concluded at The Hague on 16 December 1970 ("the Hague Convention'').
These three Conventions, and in particular the Hague and Montreal Conventions, had
as their object the prevention and suppression of unlawful acts against civil aviation in
the contex:tof a dramatic upsurge in such crimes.
3.12 The principal objective of the Montreal Convention - to prevent and deter
unlawful attacks against civil aviation- was to be achieved through the establishment
of an effective mechanism for the prosecution of persons accused of the relevant
offences. Thus, the preamble to the Convention records in unambiguous terms:
"The States Parties to this Convention
Considering that unlawful acts against the safety of civil aviation jeopardise
the safety of persons and property, seriously affect the operation of air
services, and undermine the confidence of the peoples of the world in the
safety of civil aviation;
Considering that the occurrence of such acts is a matter of grave concem~
12 704 United Nations Treaty Series 219 Cmnd. 4230 (Annex 97).
13
860 United Nations Treaty Series 105 (Annex 100).lt is recalled that ICAO was established as a
result of the 1944 International Civil Aviation ConferencinChicago. Article 44 of the
Convention on International Civil Aviation (the "Chicago Convention") establishes the aims and
objectives of ICAO. These inelude the development of principles and techniques of international
air navigation and the fosteringhe planning and development of international air transport so
as, inter alia, to ensure the safe and orderly growthrnational civil aviation throughout the
world, in addition to the meeting of the needs of the peoples of the world for safe, regular,
efficient and economie air transport.
22 Considering that, for the purpose of deterring such acts, there is an urgent
need toprovide appropriate measuresfor pufzishment of offenders." 14
The importance of this objective is also clearly apparent from an examination of the
circurnstances leading up to and surrounding the conclusion of the Montreal
Convention as weil as from its travauxpréparatoires. 15
3.13 There were, of course, already rules of international law relating to the
jurisdiction of States which applied to crimes against aircraft. The State on whose
territory a crime against civil aviation was committed manifestly possessed
jurisdiction to try those responsible. It was also widely recognised that the State in
which the aircraft concemed was registered possessed jurisdîction over such crimes.
The Hague and Montreal Conventions did not attempt to detract from the jurisdiction
of those States. On the contrary, the intention was to ensure an effective mechanism
for the prevention and deterrence of crimes against civil aviation by enhancing and
supplementing existing jurisdiction, not by detracting from it.
Section B: The Problem addressed by the Hague and Montreal Conventions
3.14 The statistics on aviation terrorism in the period in question illustrate the
extreme nature of the problem that was to be addressed by the Hague and Montreal
Conferences. Allowing for disparities in figures produced by various sources, the
period 1961 to 1967 saw around 34 incidents of aerial hijacking 16 and eight incidents
14 Emphasis added.
15
Consideration is given in thistion to the ICAO initiatives in relation to both the Hague and
Montreal Conventions. A1though covering distinct issues, the texthe Montreal Convention
draws on thatof the Hague Convention in a number of important respects. The discussions
relating to the fonnulationthe Hague Convention clearly infonned the later consideration of
the Montreal Convention. Similarly, the deliberations of the Iater conference draw on and
reflect the discussions at the earlier conference. Further, itmmon ground between the
Parties that, given the drafting historythe Hague and Montreal Conventions, the travaux
préparatoiresof the Montreal Convention include the documentary and verbatim record of the
Hague conference.
16 Shubber, inJurîsdiction Over Crimes on Board Aireraft (1973), notes 19 incidents of hijacking
reportedin newspapers and elsewhere durîng this period (at pp. 344·345). Evans, however, in
Legal Aspects of International Terrorism (Evans and Murphy (eds.), 1978), notes 34 such
incidents in this period on the basis of US Federal Aviation Administration statistics (at pp. 5,
68·72). This latter figure accords broadly with figures cited by Clyne (An Anatomy of
Skyjacking (1973), at p. 185) and St. John (Air Pîracy, Airport Security and International
Terrorism: Wînning theWar against HijaclŒrs(1991), at p. 211), although for slightly broader
periods.
23 17
of explosions on board aircraft. In contrast, the period 1968 to 1971 saw these
figures rise to between 250-300 incidents of hijacking and around 15-20 incidents of
explosions on board aircraft. 18ln total, the airerait of sorne 55 States or territories
were the subject of such attacks during this latter period. 19 The response of the
United Nations, ICAO, other organisations concemed with aviation security and
individual States to these incidents attests to the grave concem felt by the international
community. This concem was the direct catalyst for the initiatives, within ICAO, that
led to the conclusion of the Hague and Montreal Conventions. It is therefore germane
to the interpretation of the Montreal Convention, since it indicates the determination of
the international community to take effective measures to deter and punish the
commission of the acts in question.
3.15 Following a number of incidents of unlawful interference with international
civil aviation in early 1969, the ICAO Council, on 10 April 1969, decided "to give
immediate and continuing attention to future acts of unlavvful interference with
international civil aviation" and to this end established a committee (the Committee on
Unlawful Interference) to address the matter. 20 By its Resolution establishing this
Committee, the ICAO Council also:
"(1) [Declared] that acts of unlawful interference with international civil
aviation are not to be tolerated.
(2) [Urged] ail Contracting States to take ail appropriate measures to
prevent the occurrence of any acts of unlawful interference so as to assure
continued safety in international civil aviation."
17 St. John, op. cil., at pp. 213, 219.
18 On the basis of Federal Aviation Administration statistics, Evans notes 273 incidents of
hijacking during this period (op. cit., at pp. 5, 72-108). This corresponds broadly with the
figures quoted by Clyne (op. cit., at p. 185) and others.St. John notes 17 incidents of
explosions on board aircraft during this period, leaving 145 people dead (op. cit.. at pp. 213,
219).
19 These included Algeria, Angola, Argentina, Australia, Austria, Bolivia, Brazil, British
Honduras, British West Indies, Canada, Chile, China, Colombia, Costa Rica, Cuba,
Czechoslovakia, Dominican Republic, Ecuador, EgYPt,Ethiopia, Finland, German Democratie
Republic, Federal Republicof Germany, Greece, Honduras, India, Iran,Ireland, Israel, Italy,
Japan, Jordan,South Korea, Mexico, Netherlands Antilles, Nicaragua, Pakistan, Panama, Peru,
the Philippines, Poland, Portugal, Romania, Saudi Arabia, the Soviet Union, Spain, Sweden,
Switzerland, Thailand, Trinidad and Tobago, Turkey, the United Kingdom, the United States,
Venezuela and South Vietnam.
20
ICAO Doc 8798-26, C/983-3, C Min. L:XVI/26at pp. 512-514.
243.16 The concern over acts of unlawful interference with international civil
aviation, and the need for effective measures in response, is also evident in United
Nations General Assembly Resolution 2551 (XXIV) of 12 December 1969 on the
21
Forcible Diversion of Civil Aircra:ft in Flight. In this Resolution, th.e General
Assembly, considering "it necessary to recommend effective measures against
hijacking in ali its forms, or any ether unlawful seizure or exercise of control of
aircra:ft":
"[called] upon States to take every appropriate measure to ensure that their
respective national legislations provide an adequate framework for effective
legal measures against ali kinds of acts of unlawful interference with, seizure
of, or other wrongful exercise of control by force or threat thereof over, civil
aircra:ftin flight;
[urged] States in particular to ensure that persons on board who perpetrate
such acts are prosecuted."
3.17 The number and severity of acts of unlawful interference with international
civil aviation continued to rise during 1970. In the wake of the destruction, in mid
flight, of a Swissair aircraft on 21 February 1970 with the loss of 47 lives, the Swiss
Government and nine other States called upon ICAO to arrange an emergency
conference on air security. 22 In response to this request, an Extraordinary Assembly of
ICAO was convened in Montreal from 16-30 June 1970. In addition to agreement on
a package of security and legislative measures to address the issue, the Assembly
adopted a Declaration in which it:
21 Annex 21.
22
ICAO Doc. 8874 C-Min LXIX/12 at pp. 384-385. The nine other States were: Austria,
Belgium, Denmark, the Federal Republic ofGennany, the Netherlands, Norway,ain, Sweden
and the United Kingdom.
The Provisional Agenda sent out to States called for:
"Development of adequate security standards and procedures, for application by ICAO States in
international civil aviation, airned at the protectionpassengers, civil aviation personnel
and civil aircraft by
a) preventing criminal action of any kind that may endanger the safety of air transport; and
b) consideration of arrangements under which those responsible for criminal actions
endangering civil air transport can be brought to justice." (Para. (b) is as amended;
amendment recorded in ICAO Doc. 8874-C-Min LXIX/16 at p. 548).
25 "[Condemned] ali acts of violence which may be directed against aircraft,
crews and passengers engaged in ... international civil air transport;
Urgently [called] upon States not to have recourse, under any circumstances,
to acts of violence directed against international civil air transport and
airports and other facilities serving such transport;
[Recognised] the urgent need to use ali of the Organisation's resources to
prevent and deter such acts [of unlawful seizure and violence against civil
aircraft and facilities];
[Requested] application, as soon as possible, of the decisions and
recommendations of this Assembly so asto prevent and deter such acts." 23
In calling upon States not to have recourse to acts of violence against civil aviation,
the Declaration evidently addressed the issue of State complicity in acts of aviation
terrorism - the background to the Declaration being allegations by the Swiss
Govemment that certain States had participated or acquiesced in the 21 February 1970
bombing of the Swissair aircraft.
3.18 Reacting to the hijacking of a Pan Am aircraft on 6 September 1970 and its
subsequent destruction on the ground at Cairo airport, the hijacking of American and
Swiss aircraft to Dawson's Field in Jordan on the same day, the unsuccessful attempt
to hijack an Israeli aircraft over the United Kingdom, also on the same day, and the
hijacking of a British aircraft to Dawson's Field three days later, the Security Council
adopted, without a vote, Resolution 286 (1970) on 9 September 1970. This Resolution
provided:
"The Security Council,
Grave/y concerned at the threat to innocent civilian lives from the hijacking
of aircraft and any other interference in international travel,
23 Resolution of the Assembly, A17-l, ICAO Doc. 8849-C/990/4 (extract) (Annex 99).
26 ',.-
1.Appeals to ali parties concemed for the immediate release of ali passengers
and crews without exception, held as a result of hijackings and other
interference in international travet;
2.Calls on States to take ali possible legal steps to prevent further hijackings
or any other interference with international civil air travel."4
3.19 On 25 Novernber 1970, the United Nations General Assernbly adopted
5
Resolution 2645 (XXV) on Aerial Hijacking or Interference with Civil Air Travetl
By this Resolution, the General Assernbly reiterated its grave concem over acts of
aerial hijacking or other wrongful interference with civil air travel and went on, inter
alia, to:
"1. [Condemn], without exception whatsoever, ali acts of aerial hijacking or
ether interference with civil air travet, whether originally national or
international, through the threat or use of force, and ali acts of violence which
may be directed against passengers, crew and aircraft engaged in, and air
navigation facilities and aeronautical communications used by, civil air
transport;
2. [Call upon] States to takè ali appropriate rneasures to deter, prevent or
suppress such acts within their jurisdiction, at every stage of the execution of
those acts, and to provide for the prosecution and punishrnent of persons who
perpetrate such acts, in a manner commensurate with the gravity of those
crimes, or, without prejudice to the rights and obligations of States nnder
existing international instruments relating to the matter, for the extradition of
such persans for the purpose of their prosecution and punishment."
Section C: The Initiatives leading to the Hague and Montreal Conventions
3.20 The legal aspects of the question of the wùawful seizure of aircraft were
6
referred by ICAO toits Legal Committee in December 1968? During two sessions
held in 1969, a Subcommittee of the Legal Committee on the Unlawful Seizure of
Aircraft prepared a draft convention. The focus of the Subcommittee was expressly
on the deterrence, prosecution and punishment of acts of unlawful seizure. Thus in the
Report of the second session, held on 23 September- 3 October 1969, it was noted:
24 Annex 24.
25
The Resolution was adopted by 105 votes in favour, none against and eîght abstentions (Annex
23).
26 !CAO Doc. 8784-6 C.Min. LXV/6 at pp. 112-115.
27 "In its report of the first session, the Subcommittee hadstated that the basic
objective of its study of the problem of unlawful seizure of aircraft should be
to 'deter persons from committing acts of unlawful seizure of aircraft and,
more specifically, ensure, as far as practicable, the prosecution and
punishment of these persons'. It had also stated that in its opinion the most
efficient way of attaining the objective in question would be through an
international agreement. After review of the comments received and
discussions at the second session in the Subcommittee these conclusions were
reaffirmed .m
3.21 The Legal Committee pursued the preparation of the draft convention in
February and March 1970. It noted that "for the purpose of deterring acts of unlawful
seizure of aircraft there is an urgent need to make them punishable as an.offence and
to provide appropriate measures to facilitate prosecution and extradition of the
28
offenders".
3.22 The draft Convention prepared by the Legal Committee was submitted for
consideration to the International Conference on Air Law, which met at The Hague
from 1-16 December 1970. Following its deliberations, the Conference adopted the
29
text of the Hague Convention.
3.23 In parallel with the final preparations for the Hague Conference, the Legal
Committee ofiCAO was convened in September and October 1970 in order to prepare
a draft convention on acts of unlawful interference against international civil aviation.
In his introductory comments, the Chairman of the Legal Committee noted that the
United Nations, the ICAO Assembly, international organisations and the travelling
public "were ali urging that legal measures should be adopted to put an end to
27
Subcommittee of the Legal Committee on Unlawful Seizure, Montreal, 23 September - 3
October 1969, ICAO Doc. 8838-LC/157, at p. 2.
28 Legal Committee, Seventeenth Session, Montreal, 9 February-Il March 1970, ICAO Doc.
8877-LC/161, p. 2. In the words of the delegate ofBarbados, "there was a need throughout the
world to attain the objectivef punishing the authors of this crimeIbid, at p. 61. The
Comments of the International Chamber of Commerce, stressed the need for a "multilateral
agreement on effective measuresibid.p. 166, and noted that:
"In September 1969 the President of the International Chamber of Commerce expressed its
grave concern at the recent increasein politically inspired acts interfering with the
navigation and endangering the safetyf aircraft which demonstrated the urgent need for
effective action Governments to control crime committed on board aircraft."
29
Annex lOO.
28 .'J'
unlawful interference with international civil aviation", and that the recent work of the
Legal Committee had provided an answer to those demands. 30
3.24 Moreover, as noted in the introduction to the Summary of the Work of the
Legal Committee during its Eighteenth Session, it bad been convened pursuant to
Resolution Al7-20 of the ICAO Assembly, passed at its Extraordinary Session of June
1970, the Agenda of which bad invited "consideration of arrangements under which
those responsible for criminal actions endangering civil air transport can be brought to
31
justice". Due to the urgency of the situation, the matter had not been referred to a
legal subcommittee, and the Delegates bad for consideration a draft prepared by the
32
Chairman of the Legal Committee with the assistance of the Secretariat. On the
basis of this draft, the Delegates prepared a dra:ftconvention which was circulated by
ICAO to States in November 1970 and subsequently considered at the International
Conference on Air Law, held at Montreal from 8 to 23 September 1971, the Montreal
Convention being adopted on 23 September 1971.
SectionD: The Scheme of the Montreal Convention
3.25 The Montreal.Convention was prompted by the sharp increase in the number
of unlawful acts against the safety of civil aviation and concem that, notwithstanding
the existence of jurisdiction in a number of States to try those responsible for such
acts, the perpetrators were frequently not brought to trial and were o:ftenable to seek
33
refuge in other States. The Montreal Convention was designed to establish an
effective, multilateral mechanism for the prosecution of persons accused of the
30
Legal Committee, Eighteenth Session, London, 29 September- 22 October 1970, ICAO Doc.
8936-LC/164-1, at p. 3. The Delegates of severa! States also made oral general introductory
comments. In the words of the Delegate ofBrazil, the main points to be dealt with were ''thatthe
scope of application of the Convention should be as broad as possible and, second1y, that
measures should be taken to ensure the bringing to trial and punishment of the alleged
offenders". Ibid., p. 4. In a similar vein, the Delegate of Canada stated that: "There was an urgent
need to move towards the implementation of certain basic international legal obligations relating
to the prevention and deterrenceof ali forms of unlawful interference with international civil
aviation." Ibid., p. 8.
3! Legal Committee, Eighteenth Session, Volume Il, Documents, ICAO Doc. 8936-LC/164-2,
pp.l-55, at 15.
32
Ibid.
33 See, e.g., the discussion in Evans and Murphy (eds.), Legal Aspects of International Terrorism,
1978, at pp. 503-504.
29offences set out in Article 1 of the Convention and thereby to prevent and deter the
commission of such acts. This objective is expressly stated in the preamble of the
34
Convention.
3.26 With this abject in mind, the offences in Article 1 are broadly cast and
include, inter alia, the unlawful and intentional -
• performance of an act of violence against a persan on board an aircraft
in flight if that act is likely to endanger the safety of that aircraft
(Article 1(1)(a));
• destruction of an aircraft in service or causing damage to such an
aircraft which renders it incapable of flight or which is likely to
endanger its safety in flight (Article l(l)(b)); and
• placing or causing to be placed on an aircraft in service, by any means
whatsoever, a deviee or substance which is likely to destroy that
aircraft, or to cause damage to it which renders it incapable of flight, or
to cause damage to itwhich is likely to endanger its safety in flight
(Article 1(1)(c)).
3.27 By Article 1(2), a person also commits an offence if he:
• attempts to commit any of the offences mentioned in paragraph 1 of
Article 1 (Article 1(2)(a)); or
• is an accornplice of a person who commits or atternpts to commit any
such offence (Article 1(2)(b)).
3.28 The scope of the Convention ratione materiae thus encompasses a broad
range of acts affecting the safety of civil aviation and includes within its scope the
involvement, whether directly or indirectly, of persans other than the immediate
perpetrators of the act which endangers the safety of the aircraft. For example,
persans who, through the acts of others, cause a deviee or substance to be placed on an
aircraft which is likely to destroy that aircraft, orto cause damage to it which renders
34 See para. 3.12, above.
30it incapable of flight, or which is lik.elyto endanger its safety in flight, will conunit the
offence in Article 1 (1)(c) of the Convention. Similarly, accomplices of persons
committing one of the offences set out in Article (1), whether or not they are direct!y
involved in the commission of the final act, will commü the offence in Article 1(2)(b).
Pursuant to Article 3 of the Convention, each Contracting State undertakes to make
the offences mentioned in Article 1punishable by severe penalties.
3.29 Article 10(1) enjoins Contracting States, in accordance with international and
national law, to take ali practicable measures for the purpose of preventing the
offences mentioned in Article 1. Under Article 12, any Contracting State having
reason to believe that one of the offences mentioned in Article 1 will be cornmitted
shaH, in accordance with its national law, fumish any relevant information in its
possession to those States which it believes are likely to be the States which would
have jurisdiction over the offences pursuant to Article 5(1) of the Convention.
3.30 Central to the achievement of the objectives of the Convention are those
provisions which increase the number of States possessing jurisdiction to try the
offences listed in Article 1 and which impose upon ali States Parties an obligation to
extradite or prosecute persans accused of such ciffences whenever they come within
their territory.
3.31 Articles 5(1) and (2) of the Convention require Contracting States to take
such measures as may be necessary to establish jurisdiction over the offences in
question in a number of different cases. These provisions build upon the existing
international law regarding jurisdiction. Thus, Article 5(1) requires each State Party to
establish its jurisdiction when the offence is comrn.itted in the territory of that State
(Article 5(1)(a)) and when the offence is committed against, or on board, an aircraft
registered in that State (Article 5(l)(b)). In addition, Article 5 requires each State to
establish its jurisdiction when the aircraft on which an offence is committed lands in
the State's territory with the alleged offender still on board (Article 5(1)(c)) and, in
certain circumstances, when the offence is comrnitted against, or on board, an aircraft
leased to a lessee based in that State (Article 5(1)(d)). Article 5(2) also provides that a
State must establish its jurisdiction, in specified cases, when the alleged offender is
present in the territoryof that State and it does not extradite him, pursuant to Article 8
of the Convention, to one of the other States having jurisdiction mentioned in Article
315(1). The scherne of building upon, and strengthening, existing heads of jurisdiction is
also evident in Article 5(3), which pro vides that "this Convention does not exelude
any criminal jurisdiction exercised in accordance with national law".
3.32 Article 6 of the Convention requires a Contracting State in whose terri tory an
alleged offender is present to conduct a preliminary enquiry and take various ether
steps. By Article 7 of the Convention, a Contracting State in whose tetritory the
alleged offender is found is required, if it does not extradite hirn, to submit the case to
its competent authorities for the purpose of prosecution. Article 8 of the Convention
then sets out various provisions designed to facilitate the extradition of alleged
offenders.
3.33 The Convention does not establish a hierarchy amongst those States entitled
to exercise jurisdiction, proposais during both the Hague and the Montreal
Conferences to establish sorne form of hierarchy having been rejected. 35 Indeed, it
appears to have been envisaged that, in sorne circumstances, more than one State
would be exercisîng jurisdiction. 36 However, as expounded in the deliberations of the
Subcommittee on Unlawful Seizure, "the convention would not atternpt to solve
37
problems of conflicts of jurisdiction". Thus, the Subcommittee envisaged a "system
38
of multiple jurisdiction".
Section E: The Issue of State Complicity in Acts of Unlawful Seizure and Acts of
Unlawfullnte!ference Against the Safety of CivilAviation
3.34 The question of State involvement in hijacking and unlawful acts against the
safety of civil aviation was not addressed in any detail at either the Hague or Montreal
Conferences. The participants were, however, acutely aware of the problem, the issue
having been the source of controversy in a number of the incidents that preceded or
35
International Conference on Air Law, Montreal, September 1971, !CAO Doc. 9081·LC/170·1
(1973), app. 52·54.
36 Subcommittee of the Legal Committee on Unlawful Seizure, Montreal, 23 September - 3
October 1969,ICAO Doc. 8838·LC/157, at p.5.
37 Ibid., at p. 20.
Legal Committee, Seventeenth Session, Montreal, 9 February - 11 March 1970, ICAO Doc.
8877·LC/161, p. l7. This is not contested by Libya, which accepts that the United States and
the United Kingdom each havejurisdiction; Libyan Memorial,paras. 3.5 and 3.7.
32were broadly contemporaneous with the Conferences, The issue was also the subject
of a separate initiative within ICAO.
3.35 The June 1970 Declaration of the Extraordinary Assembly of ICA0 39 bad
called upon States not to have recourse, under any circumstances, to acts of violence
directed against aviation. This Declaration was followed by the adoption by the ICAO
Council, on 1 October 1970, of two resolutions. The frrst resolution noted the
growing threat to international civil aviation and recorded that States had an obligation
''to ensure the safe and orderly growth of international civil aviation throughout the
world". The resolution also raised the possibility of action against States which,
subsequent to an unlawful seizure, detained passengers, crew and aircraft for
international blackmail purposes, or failed to comply with obligations relating to the
40
prosecution or extradition of offenders. The second resolution directed the Legal
Committee to investigate the possibility of enforcement measures against States
failing to meet their international legal obligations relating to unlawful interference
41
with aircraft.
3.36 The terms of the two resolutions are not reflected m the Montreal
Convention, since the sanctions inltiati.vewas pursued separately. 42 They nonetheless
demonstrate that the problem of State involvement in acts of unlawful interference
with civil aviation was clearly recognised in the period immediately prior to the
Montreal Conference.
3.37 It is also evident that States were looking at means to address such incidents
through a multilateral instrument under the auspices of ICAO that would allow the
imposition of sanctions against States irnplicated in such acts.
39
See para. 3.17, above.
40
!CAO Doc. 8912-C/997, C-Min. LXXI/6 at pp. 181-186 (Annex 101).
41 Ibid.
42 The sanctions initiative did not result in the conclllSion of a tIn large part, that was
because States considered that the impositionanctions upon a State which participated in an
attack on civil aviation, or which gave rtopersons accused of such an attack, was a matter
for the Security Council; see paras. to4.185, below.
333.38 Nothing inthe two Council resolutions suggests that State agents committing
offences under the Montreal Convention should not be subject to the jurisdictional
provisions laid down in the Convention. On the contrary, they suggest that, in
addition to the prosecution of the accused, action should be tak:enagainst the States
concemed.
Section F: Preliminary Conclusions
3.39 In the lightof the foregoing, a nurnber of preliminary conclusions, relevant to
the broaderquestion of interpretationof the Montreal Conventionthat is at the heartof
this case, can be stated.
3.40 First, the Montreal Convention was drafted and concluded against the
backdrop of a rising incidence in, and severity of, acts of unlawful interference with
civil aviation.
3.41 Secondly, the incidence and severity of these acts was such as to occasion
grave concem on the part of the international community, including the United
Nations (the Security Council and the General Assembly), the International Civil
Aviation Organisation,as well as other organisationsconcemed with the safety of civil
aviation and individualStates.
3.42 Thirdly, in the face of these incidents and the gravity of this concem, the
Convention bad as its object the prevention and deterrence of such acts by the
establishment of an effective,multilateral regime for the prosecutîon of those accused
of them.
3.43 Finally, the drafters of the Montreal Convention and the participants at the
Montreal Conferencewere acutely aware of the problem of State complicity in acts of
aviation terrorism andwere looking in tum at means to eradicatethis further problem.
34 Cbapter3
Rights and Obligations under the Montreal Convention
Section A: The Montreal Convention in the Framework of International Law
3.44 In paragraphIII(g) of its Application, Libyadaims that:
"the United Kingdom is bound by its legal obligations under the Montreal
Convention, which obligations require it to act in accordance with the
Convention, and only in accordance with the Convention, with respect to the
matter involving flight PA 103 and the accused."
The Montreal Convention, however, constitutes only one part of the applicable system
of international law. In that system, other international agreements and rules of
customary international law also play a part, even in relation to offences falling within
the scope of the Montreal Convention. The United Nations Charter, of course,
occupies a position of specialimportance. 43
3.45 The fact that the Montreal Convention is to be seen as part of a wider body of
legal rules is confirmed by the travaux préparatoires and the provisions of the
Convention. The analysis of the background to the Convention, set out in paragraphs
3.11 to 3.43, above, demonstrates that the purpose of the States which drew up the
Convention was not to supersede the existing national and international law but to
build upon it. That is clear from a number of the provisions of the Convention. Article
5, requiring Statesto establish theirjurisdiction overConvention offences, provides, in
paragraph 3, that "this Convention does not exclude any criminal jurisdiction
exercised in accordance with national law". Article 8(1) builds upon existing
extradition treaties by providing that Convention offences "shaH be deemed to be
included as extraditable offences in every extradition treaty existing between
Contracting States". The same principle, that the Convention exists, and is to be
applied, within the framework of international law as a whole, is apparent in Article
11(2), which, after laying down, in paragraph 1, the obligation of the Parties to afford
one another assistance in criminal proceedings, statesthat:
43
See paras. 4.62 to 4.96, below.
See paras. 3.62 to 3.64 and 3.77 to 3.83, below.
35 "The provisions of paragraph 1 of this Article shall not affect obligations
under any ether treaty, bilateral or multilateral, which govems or will govern,
in whole or in part, rnutual assistance in criminal matters."
3.46 The Montreal Convention cannot, therefore, be placed into a sealed
compartment, detached from international law as a whole. It could only be said to
fumish an exclusive and exhaustive regime to the extent that any of its provisions
rigorously obliged States Parties to follow one single prescribed course. So far as the
establishment and exercise of jurisdiction is concemed, this is manifestly not the case.
The result which the United Kingdom sought, and seeks, to achieve, is directly in
conformity with the Convention, namely the trial of the accused in its own courts as
the State in whose territory the crime was committed. Its jurisdiction is established
under customary international law and it is one of the States specifically required by
the Convention to establish jurisdiction. It follows that the objective of procuring the
accused for trial before the courts of the United Kingdom cannet, by any stretch of the
imagination, be alleged to be a "violation" of the Convention. It follows, further, that
only if the means employed by the United Kingdom in pursuit of this objective were in
sorne sense prohibited by the Convention could there be any basis for alleging a
45
"violation" on its part. For the reasons given below, that is not the case.
Section B: The Allegation that the United Kingdom has violated Article 7
3.47 Article 7 of the Montreal Convention, containing what is frequently referred
to as the ruleaut dedere, autjudicare, provides as follows:
"The Contracting State in the territory of which the alleged offender is found
shaH, if it does not extradite him, be obliged, without exception whatsoever
and whether or not the offence was committed in its territory, to submit the
case to its competent authorities for the pwpose of prosecution. Those
authorities shall take their decision in the same manner as in the case of any
ordinary offence of a serious nature under the law ofthat State."
3.48 Libya argues that this provision confers upon it an indefeasible right to insist
46
upon prosecuting the two accused before its own courts. In this regard, it cites in
particular Article 5(2) of the Convention which provides inter alia that Contracting
States shall take measures necessary to establish their jurisdiction over the offences
45 See paras. 3.52 to 3.61.
46 Libyan Memorial, at para. 3.5.
36 ..·..·
mentioned in Article 1 of the Convention "in the case where the alleged offender is
present in its territory and it does not extradite hirn pursuant to Article 8 to any of the
States rnentioned in paragraph 1 of this Article". 47 Libya also cites Articles 1, 6 and 8
of the Convention.
3.49 The Libyan argument is, however, a distortion of the meaning of Article 7.
That Article does not confer any "right" upon the State which bas custody of the
accused; it imposes an obligation to prosecute. Moreover, that obligation is a
contingent one: it arises only if the accused are not extradited to one of the States
expressly rnentioned in Article 5(1) of the Convention. In those circumstances, the
State holding the alleged offender cornes under an obligation to submit the case to its
own prosecution authorities.
3.50 Since the two accused are Libyan nationals, Libya would have bad
jurisdiction over them even if there hadbeen no Convention. Custornary international
law bas long recognised the right of a State to exercise jurisdiction over its nationals
for serions offences comrnitted outsicie its territory. Moreover, since there is no
extradition treaty between Libya and the United Kingdom, Libya would have been
under no obligation in international. law to treat the offences as extraditable and
surrender the accused for trial in the United Kingdorn. What Article 7 of the Montreal
Convention does is not to enhance Libya's rights, but to superirnpose upon the general
law an obligation on Libya to subrnit the case to its prosecuting authorities if in fact it
does not extradite the accused. The only right which Article 7 creates is thus the right
which is correlative to that obligation. It is a right which inheres in ali other Parties to
the Montreal Convention, narnely to require that Libya honour its obligation. That
right would be in issue only if Libya were the Respondent, confronted with a claim
that it bad failed to honour its obligations under Article 7. That is not the case here.
3.51 Against this background, the Libyan allegation is not, therefore, that the
United Kingdorn is in violation of an obligation irnposed upon it directly under Article
7. It is more inchoate. It is an allegation that the United K.ingdornis in breach of an
obligation implicit in Article 7, read in conjonction with other articles of the
Convention, not to prevent Libya from exercising its alleged right to choose between
47 Ibid
37extradition and prosecution. Even if, contrary to what has been submitted in the
preceding paragraphs, Article 7 is capable of conferring such a "right", the United
Kingdom will demonstrate (in paragraphs 3.104 ta 3.121 below) that Libya, as aState
which is implicated in the very offence whlch is in issue, cannat possess such a "right"
and that, accordingly, no such obligation can be imposed upon the United Kingdom.
3.52 Moreover, even if Article 7 did create Libyan "rights" and United Kîngdom
"obligations", it would be necessary to consider exactly what it is that the United
Kingdom is accused of doing whlch could be characterised as a breach. The actions
of the United Kingdom have been con:finedto:
(a) instituting criminal proceedings against the two accused;
(b) making a request for the surrender of the two accused and seeking, by
normal diplomatie means, to secure compliance with that request;
(c) referring the matter to the Security Coune il; and
(d) following the adoption of Resolutions 748 (1992), 4& 883 (1993) 49and
1192 (1998), 50implementing, in accordance with its obligations under
the United Nations Charter, the measures imposed by the Security
Council.
None of these actions is capable of constituting a violation of any obligation of the
United Kingdom under the Montreal Convention.
3.53 The United Kingdom acknowledges, as indeed it argues in paragraphs 3.104
to 3.121, below, that ali Contracting States to the Montreal Convention are obliged to
refrain from acting in such a manner as would defeat the abject and purpose of the
Convention. That would, however, come into play only in the event that a Party
sought ta use the terms of the Convention to frustrate the effective trial of an alleged
4ll
Annex3.
49 Annex4.
50 Annex 87.
38offender. It cannot, by definition, apply to a case in which, as here, a Party seeks, with
wide international support, to bring about an effective trial.
3.54 In initiating criminal proceedings in Scotland against the two accused -long
51
before Libya even made mention of the Montreal Convention - the United Kingdom
was acting properly within the accepted limits of its jurisdiction under both customary
international law and the Montreal Convention. The fact of criminal proceedings
being instituted in Seotland could not therefore, in any way, be construed as
frustrating, either by intent or in fact, Libya's rightsn.derthe Montreal Convention.
The provisions of the Convention expressly exclude - in Article 5 - any notion of a
jurisdictional hierarchy amongst those States entitled to exercise jurisdiction in
accordance with its terms. 52 It follows that the United Kingdom's exerc1se of
jurisdiction was, and remains, entirely compatible with th.eConvention.
3.55 Articles 1, 5, 6 and 8 of the Montreal Convention have already been
considered in paragraphs 3.25 to 3.33, above. Read together, they form the essential
core of the Convention's scheme aimed at establishing an effective régime for the
apprehension, prosecution and, if warranted, punishment of persons alleged to have
committed the offences mentioned in Article 1 of the Convention. They do not,
however, advance Libya's claim against the United Kingdorn under Article 7.
3.56 If the act of instituting proceedings against the two accused cannot constitute
a violation of the Convention, nor can the United Kingdom's action in requesting
Libya to surrender them for trial before a Scottish court. Nothing in the Convention
precludes a State Party from requesting another State Party to surrender for trial
persons accused of Convention offences. Nor are the means by which the United
Kingdom sought to secure international support for the goal of a trial before a Scottish
court or by which it sought to persuade Libya to cornply with its request in any way
inconsistent with the obligations of the United Kingdom under the Montreal
Convention.
51 See UKPOs, paras. 2.46-2.48 and 2.65.
52 See para. 3.87, below.
393.57 So far as the action of the United Kingdom in referring the matter to the
Security Council is concemed, Libya has claimed that the United Kingdom acted:
''todeprive Libya of the freedom of choice it enjoys under the Montreal
53
Convention ... " and
". .. by applying to the Security Council to try to have it oblige Libya to
surrender the accused to them, the Respondents deprive Libya of a right
explicitly recognized it by the Montreal Convention, in common vvith ali its
sister conventions: the right not to extradite a person when national law
54
precludes this."
This position was subsequently clarified in the following terms:
" .. .it is not the resort to the Security Couneil per se which is regarded by
Libya as a breach of the Montreal Convention: it is solely the resort to the
Security Council for the purpose of depriving the Montreal Convention of its
effects."55
3.58 This is an extraordinary claim. Quite apart from the obvions chronological
flaw in the argument - namely that the United Kingdom referred the matter to the
Security Council before Libya invoked the Montreal Convention - Libya o:ffers no
grounds for its allegation that the United Kingdom set out to undennine the Montreal
Convention when it referred the matter to the Security Council. The United Kingdom
referred the matter to the Council quite properly, as it was entitled to do, under Article
35(1) of the United Nations Charter. It was then a matter for the Council to determine
whether the situation was appropriate for its consideration or whether this would be
"untimely" or "unfruitful" in the light of other procedures that might be available. 56
3.59 As will be addressed more fully in paragraphs 4.183 to 4.195, below, acts of
terrorism against international civil aviation have long been regarded as properly
within the purview of the Security Council. This, indeed, is particularly true in
circumstances in which a State is alleged to have been involved in such acts. The
53
Professor David, at CR97/20, pp. 40-41, para. 4.9 (translation by the Court; emphasis in the
original).
54 CR 97/20, p. 41, para 4.9 (translation by the Court; emphasis in the original).
55 Professor David atCR 97124,p. 24, paragraph 3.13 (translation by the Court; emphasis in the
original).
56
See Goodrich, Hambro and Simons, Charter of the United Nations: Commentary and Documents
(3'dand Revised Edition, 1969),at p. 274.
40 ._:..
United K.ingdom's reference of the matter to the Security Council was therefore fully
. .-· . -. -.-'
in accordance with established and·àccepted practice in this area. To argue, as Libya
does, that a State may violate a bilateral or multilateral treaty merely by bringing
before the Security Council a matter concerning international peace and security,
would introduce a serious and wholly unwarranted obstacle to the exercise by the
Council of its primary responsibility under the United Nations Charter. The act of
referring the matter to the Council cannat, therefore, of itself, be a credible and
su:fficient foundation for the Libyan allegation that the United Kingdom acted in such
a way asto frustrate the operation of the Montreal Convention.
3.60 For completeness, the United Kingdom's actions in implementation of the
binding obligations imposed on all UN Members by Security Council Resolutions 748
(1992) and 883 (1993)- and, most recently, 1192 (1998)- cannet be regarded as a
violation of Libya's rights under the Montreal Convention. This matter is addressed
more fully in Part 4 below in the context of the discussion on the effect of Article 103
of the United Nations Charter. It suffices here, therefore, to observe simply that the
consequences of Libya's argument would be fatally to undermine the integrity and
effectiveness ofthe United Nations Charter system.
3.61 In the light ofthe foregoing, the United Kingdom submits that the allegation
that it is in breach of Article 7 of the Montreal Convention, read in conjunction with
Articles 1, 5, 6 and 8 of the Convention, bas no basis in substance and should be
dismissed by the Court.
Section C: The Allegation thal the UnitedKingdom has violatedArticle Il
3.62 Article 11 of the Montreal Convention provides as follows:
"1. Contracting States shall afford one another the greatest measure of
assistance in connection with crirninal proceedings brought in respect of the
offences. The law of the State requested shall apply in ali cases.
2. The provisions of paragraph l of this Article shall not affect obligations
under any other treaty, bilateral or multilateral, which governs or will govern,
in whole or in part, mutual assistance in criminal matters."
413.63 The Libyan allegation against the United Kingdom is that, notwithstanding
requests for assistance by the Libyan authorities, the United Kingdom has "adamantly
57
refused to enter into any form of co-operation with the Libyan courts".
3.64 The United Kingdom rejects the suggestion that it is in breach of Article 11.
The United Kingdorn provided Libya with both the Petition 58 and the Staternent of
Facts.59 The obligation on Contracting States under Article 11 is not unqualified or
without exception, nor does it apply regardless of the circumstances of the request for
assistance and the wider incident to which it relates. It does not simply require, as
Libya would have the Court believe, a Contracting State to band over "ali such
documents and records as may relate" to the incident in question. 60 lt is subject to the
law of the requested State. It is predicated on the requesting State's bona jide
entitlernent to institute the proceedings in respect of which the assistance is sought.
The refusai of the United Kingdom to provide documentation or other evidence to
Libya beyond the Petition and Statement of Facts does not therefore ipso facto
constitute a breach of Article 11.
1. The factual background to the allegation
3.65 Before turning to address these issues, it is useful to outline the basic facts
relating to the allegation in question.
3.66 The Petition containing the charges levelled against the two accused by the
Scottish prosecuting authorities and the warrant for their arrest was granted on 13
November 1991. On the same day, the Lord Advocate produced a Statement ofFacts
containing a more detailed, though still necessarily summ.ary, account of the facts
underpinning the charges against the two accused. On 14 Novernber 1991, the Petition
and Statement of Facts were supplied to Libya. In substance, the Statement of Facts
contained as much information as the documentation that the United Kingdorn would
prepare, and would expect to receive, in support of a request for extradition under
57
Libyan Memorial, para. 3.9.
58
Annex 17.
59 Annex 16.
60 Letter from A.T. Zaoui, Judgeof the Libyan High Courtto the Attorney General of the United
Kingdom dated 27 November 1991; at Annex 44 to the Libyan Memorial.
42modem extradition arrangements (sQch as the European Convention on Extradition).
•·..t· / .·\... •
It was therefore sufficiently detailed to allow a determination to be made in
accordance with usual practice that the case alleged bad a basis in fact.
3.67 On 27 November 1991, Judge A.T. Zaoui of the Libyan High Court
addressed a letter to "the Attorney General of the United K.ingdom" in which, inter
alia, he stated as follows:
"... in order to accomplish that task [of investigating the allegations against
the two accused] according to the Law, we are bound to examine ali such
documents and records as may relate to that unfortunate incident." 61
3.68 A further letter was addressed to ''the Minister of Justice (Lord High
Chancellor) ofthe United K.ingdom" by Brah.im Baccar, the Secretary of the People's
General Comnùttee for Justice, on 14 January 1992. This stated inter alia:
"... the enquiry opened in Libya implies a need for the divulgation of certain
important facts concem.ing the way in which the accident occurred, i.e., the
reports on the inspection of the place at which it occurred and reports on the
debris and its analysis. We also need certain items of information relating to
the "black box" as well as the documentation giving teclmical information on
the aircraft (in order to ascertain the date of its manufacture in the United
States, the various checks that have been carried out on the aircraft and the
number of hours of flight time, plus any previous malfunctions of the
aircraft).
We should obtain certain items of information on the Captain and his
assistants (age, state of health, experience). We also need statements by eye
witnesses (inhabitants of Lockerbie and certain members of the victims'
families, etc). "62
3.69 On 18 January 1992, Libya relied on the Montreal Convention for the frrst
63
time in correspondence with the United K.ingdom.
3.70 On 21 January 1992, the Security Council adopted Resolution 731 (1992) in
which, inter alia, it urged Libya to provide a "full and effective response" to the
requests by the United K.ingdom and the United States for the surrender of the two
accused for trial in Scotland or the United States.
61 Libyan Memorial, Annex 44.
62
Libyan Memorial, Annex 77.
63 Libyan Memorial, Annex 79.
433.71 The United Kingdom declined to furnish Libya with evidence or
documentation going beyond what had already been provided. Referring to the fact
that Libyan involvement in the acts in question was alleged on the record of the
Scottish criminal proceedings against the two accused, Lord James Douglas-Hamilton,
responding for the British Government to a Parliamentary question on 28 January
1992, noted, interalia,as follows:
"... the Libyan authorities have made public the fact of their request that the
Lord Advocate assist a Libyan judicial investigation. The Lord Advocate has
made it clear that he is not prepared to co-operate in such an investigation, for
reasons which are obvious from the terms and nature of the charges as
announced by the Lord Advocate on 14 November. The matter has been
investigated fully,leading to the issue ofjudicial warrants in Scotland and the
United States. It is now up to the Libyan authorities to comply with our
requests as endorsed by Security Council resolution 731 (1992)." 04
3.72 Following the adoption of Security Council Resolution 731 (1992) on 21
January 1992, and in terms of paragraph 4 thereof which requested the UN Secretary
General to "seek the cooperation of the Libyan Government to provide a full and
effective response", UN Under-Secretary-General Vasiliy Safronchuk, acting as
Special Envoy to Libya, met with the Libyan leader, Colonel Qaddafi. In the course
of two meetings in late February 1992, Colonel Qaddafi was reported by the UN
Special Envoy to have indicated interalia as follows:
"The possibility of handing over the suspects to the authorities of third
countries for trial may be considered. In this context Malta or any Arab
country were mentioned ... ;" 65
3.73 This reflected the terms of a letter of 27 February 1992 from the Secretary of
the People's Cornmittee for Foreign Liaison and International Cooperation of the
Libyan Arab Jamahiriya addressed to the UN Secretary-General which noted inter
alia:
"Should it become evident to the Secretary-General of the United Nations
that the charge is well founded, the Jamahiriya will not oppose the hand-over
64 Ibid.,Annex 87.
65 Further Report by the Secretary·General Pursuant to Paragraph 4 of SecuriiResolution
731 (1992), at para. 4{e) (UN Doc. S/23672, 3 March 1992) (Annex See also the Libyan
Memorial, para. 2.22.
44 ~---------~~--.,..------
of the two suspects, under his persona! supervision, to 66third party, while
stressing that they shouldnot again be hân(ièd over."
3.74 In the contextof the late February 1992meetings with the UN Special Envoy,
Libya also suggestedthat:
"[a]n irnprovernentof bilateral relations between Libya and the United States
of America would make 67 possible to hand over the two suspects to the
United Statesauthorities."
3.75 Numerous proposais in faveur of a trialof the accused in a State other than
the United Kingdornorthe United Stateswere subsequentlymade by Libya. 68
3.76 On 14 March 1992, the Security Council, acting under Chapter VII of the
Charter, adopted Resolution 748 (1992). By this Resolution the Security Council
decided, inter a/ia, "that the Libyan Governrnent must now cornply without any
further delay with paragraph 3 of Resolution 731 (1992) regarding the requests
contained in documents S/23306, S/23308 and S/23309'' [inter a/ia requesting the
surrender of the two accused for trialin Scotland or the United States]. 69 This was
followed, on 11Novernber 1993,by the adoptionofResolution 883 (1993). 70
2. The content ofthe obligation in Article 11
3.77 Article 11(1) of the Montreal Convention requires, in its frrst sentence, that
Contracting States afford one another the "greatest measure of assistance" in
connection with crirninal proceedings. This obligation is qualified by the second
sentence of the paragraph which provides that the law of the State requested shaH
apply in all cases. The language of Article 11 reflectsalmost exactly the language of
Article 10 of The Hague Convention for the Suppression of Unlawful Seizure of
66 UN Doc. 8123672(Annex 14),atpara.3 of the firstAnnextothe Report.
67
Libyan Memorial,atpara. 2.22.
68
See Part 5, below.
69 Annex 3. The text ofResolution748 isanalysedatparas.4.22 to 4.27and4.35 to 4.6l,below.
70 Annex 4. Thetext of Resolution883 isanalysed atparas.4.31to 4.34and 4.35 to 4.61, below.
45 71
Aircraft, on which it was based. As a result, there was relatively little discussion of
72
the provision at the Montreal Conference.
3.78 A number of elements relevant to the scope and content of the obligation are,
however, apparent from both the Hague and Montreal discussions. First, the
generality of the language "the greatest measure of assistance", rather than marking a
high point in the co-operation of States on this matter, in fact masked disagreement on
the precise scope of the intended provision amongst the members of the Subcommittee
of the ICAO Legal Committee that was charged with producing a draft of the Hague
Convention. 73
3.79 Second!y, it is evident from the negotiating record that the second sentence of
Article 11(1) was in fact intended to qualify the substantive scope of the obligation to
co-operate. It was not intended sirnply to address issues of procedure. This is
apparent, in particular, from the following exchange at the Montreal Conference
conceming Article 10 of the draft Convention, whlch became Article 11 in the final
text:
"38. The Delegate of Australia said that his Administration, which was in the
process of translating the provisions of the Hague Convention into their
national legislation, had difficulty understanding the last sentence of
paragraph 1 of Article 10, i.e. "The law of the State requested shaH apply in
ail cases".
39. The Secretarv recalled that the sentence was in fact borrowed from
certain European instruments regarding extradition. Article 1 0 required that
States afford each other the greatest measure of assistance and it was
necessary to specify what in fact this "greatest measure" would be. If both
71
See Volume 1,Minutes of the International Conference on Air Law, Montreal, September 1971,
ICAO Doc 9081-LC/170-1, at p. 65, para. 37.
72 For the recordof the discussion see Volume 1, Minutes of the International Conference on Air
Law, ibid., at pp. 65-66, 129and 181.
73
The matter was addressed by the Delegate of France, Chairman of the Subcommittee, in the
following terms:
"... Article 11 covered problems of assistance in connection with proceedings. The
drafting was not very restrictive since it was limited to this idea that would
grant one another the greatest possible measureassistance in connection with the
offence. lt had not been possible for the Subcommittee to reach a more restrictive
drafting than that despite the lengthy discussions whithad had in that regard."
(Minutes and Documents of the ICAO Legal Committee Relating to the Subject of
Unlawful Seizure of Aircraft; ICAO Doc 8877-LCII61, at p. 78, paragraph 34).
46 States were party to a multilateral extradition treaty there would be no
problem because the nationallaws in this regard would be in conformity with
that multilateral document; however, if either the requesting or the requested
State were not party, then, by the provision of Article 10, the national law of
the requested State would apply." 7 .
3.80 Tiûrdly, in the Iight of the generality of the language of the draft and the
qualification subjecting it to the law of the requested State, the obligation that was
later to be reflected in Article 11 of the Montreal Convention was acknowledged by
the conference participants to be limited in scope. Thus, for example, Switzerland,
addressing the question of the "provision of evidence" in the ICAO Legal Committee
proceedings dealing with the draft Hague Convention, commented as follows:
"We wish to raise for the Legal Committee the question whether the terms of
Article 11 suffice. When a Contracting State declares that its legislation
gîves it no possibility of effectively providing information, the proposed text
is useless. The Contracting States should at least be forced to furnish the
necessary ev1 ence. ,75
This proposai was not accepted.
3.81 The limited character of the obligation in Article 11 of the Montreal
Convention is also revealed by comparison with similar provisions in later
conventions. Th us, for example, Article 10(1) of the Convention on Crimes against
Intemationally Protected Persans, 1973,provides that:
"States Parties shall afford one another the greatest measure of assistance in
connection with criminal proceedings brought in respect of the crimes set
forth in article 2, including the supply of all evidence at their disposai
76
necessaryfor theproceedings."
3.82 The same language is found in Article 11(1) of the International Convention
Against the Taking of Hostages ("the Hostages Convention"), 1979, 77 and in
74 Volume I, Minutes of the International Conference on Air Law, Montreal, September 1971,
ICAO Doc 9081-LC/170-1, at pp.65-66.
75 Minutes and Documents of the ICAO Legal Committee Relating to the Subject of Unlawful
Seizure of Aircraft; ICAO Doc 8877-LCfl6atp.122,paragraph6.
76
1035 United Nations Treaty Series 167 (Atmex 102); emphasis added.
n 1316 UnitedNations Treaty Series 206; 18International Legal Materials (1979) 1456.
47 78
Article 9(1) of the Convention against Torture, 1984. Broadly siinilar language is
also foun.din Article 12(1) of the Convention for the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation, 1988. 79
3.83 To the extent that these Conventions ali contain express language providing
for the "supply of ali evidence" necessary for criminal proceedings, the pointed
omission of such language from Article Il (1) of the Montreal Convention, particularly
when viewed against the background of the discussions at the Hague and Montreal
conferences mentioned above, indicates that the obligation in Article 11(1) of the
Montreal Convention cannot be seen in those terms. Rather, it embodies a more
general duty on Contracting States to co-operate in connection with criminal
proceedings brought in respect of the offences in question.
3. The United Kingdom is not in breach of Article 11
3.84 To say that Article 11(1) of the Montreal Convention reflects simply a
general duty to co-operate does not, of course, denude the article of substance. The
question is whether, in the circumstances ofthis case, the United Kingdom was under
a duty to co-operate with Libya and, if so, whether it was in breach of that duty. In the
United Kingdom's contention, it was not under such a duty for two principal reasons.
First, the obligation in Article 11(1) is not a self-standing obligation that operates
independently of the other provisions of the Montreal Convention or of the object and
purpose of the Convention. It is an obligation that arises once it is clear where
jurisdiction will be exercised in respect of the offences alleged. It is not therefore an
obligation that operates when there is a dispute asto the exercise of jurisdiction, until
such time as that dispute is resolved.
3.85 Secondly, given the allegation of Libyan involvement in the acts in question
and the fact that criminal proceedings against the two accused had already been
commenced in Scotland, the United Kingdom was entitled, by reference to its
established law and practice in such matters, to refuse assistance to Libya. This, in
78 1465 United Nations Treaty Series 85; 23 International Legal Materials (1984) 1027.
79 27 International Legal Materials (1988) 672.
48other words, is a case in which the law of the requested State applies to permit that
State- the UnitedKingdom- to refuse the request for assistance.
(1) The obligation in Article 11 applies only once the issue of jurisdiction has
been resolved
3.86 As will be clear from the preceding paragraphs, which address the factual
backgroWldto the Article 11allegations, the issue of the appropriatejurisdiction to try
the two accused has been in dispute from the outset. The United Kingdom was acting
within the proper limits of its jurisdiction over the incident under customary
international lawand the Montreal Convention when it instituted criminal proceedings
against the two accused on 13 November 1991. These proceedings were instituted
against the accused prior to any proceedings, even of a preliminary, investigative,
character being instituted by Libya.
3.87 The Montreal Convention did not establish a jurisdictional hierarchy.
Varions proposais, at both the Hague ànd Montreal. Conferences, suggesting that
jurisdiction shouldbe vested principally in the State of registration of the aircraft were
rejected. Article 5 of the Montreal Convention simply provides that a number of
States shall take measures necessary to establish their jurisdiction over the offences.
These include the State in whose territory the offence îs committed, 80 the State of
1
registration of the aircrafl} the State in whose territory the aircraft lands with the
82 83
alleged offender still on board, the State of residence of the lessee of the aircraft
84
and the State in whose territory the alleged offender is found. Furthermore, pursuant
to Article 5(3), the Convention does not exclude any criminal jurisdiction exercised in
accordance with national law. The possibility of other States also exercising
jurisdiction over theoffences is therefore expressly contemplated. The position under
110 Article 5(1)(a).
81
Article 5(1)(b).
82
Article 5(l)(c).
83 Article 5(l)(d).
84 Article 5(2).
49the Montreal Convention in respect of the offences alleged in this case was therefore
that a number of States could daim to be entitled to exercise jurisdiction.
3.88 Libya's assertion of jurisdiction was nevertheless subsequent to that of the
United Kingdom. Moreover, Libya's position on the question of its own jurisdiction
85
was, from the outset, equivocal. As hasalready been noted, în the context of the
February 1992 meetings between UN Special Envoy Safronchuk and the Libyan
leader, Colonel Qaddafi, Libya indicated that it was prepared to consider not only the
86
possibility of a third country trial but also the handing over of the two accused to the
United States. Even by reference to Libya's stated position, therefore, it was not clear
that a trialn Libya was contemplated.
3.89 There is a further dimension to this issue. In its Statement of 27 November
1991, the United Kingdom demanded of Libya the surrender of the two accused for
87
trial. On 21 January 1992, after careful deliberation, the Security Council
unanimously endorsed that demand in Resolution 731 (1992). While the Resolution
was not binding, and was not, therefore, a definitive statement on where a trial of the
accused ought to take place, it clearly discounted the appropriateness of a trial of the
accused taking place in Libya. Whatever might have been the United Kingdom's
obligations under Article 11 in the abstract prior to this point, the Resolution thus
changed the factual and legal landscape with the consequence that, even if the United
Kingdom might have been under an obligation towards Libya under Article 11, it was
right and proper for the United Kingdom to take into account the Resolution and to
await Libya's reaction to it.
3.90 The position can thus be summarised as follows. The United Kingdom
asserted its jurisdiction to try the two accused on 13 November 1991. Libya
apparently initiated investigative judicial proceedings at sorne time thereafter in
88
response to the Petition and Statement ofFacts. From this point, therefore, there was
potentially a dispute about where a trial ofthe accused would take place. That Libya
85 See para. 3.73, above.
86
See paras. 3.72 to 3.75, above.
87 Attached as Annex III to UN Docs. S/2330andA/46/826, 31 December 1991 (AIUlex6).
88 Libyan Memorial, para. 2.5.
50was not, however, the appropriate jurisdiction for such a trial was acknowledged by
the Security Council in Resolution 731 (1992) and, thereafter, in Resolution 748
(1992) and subsequently. That Libya was not the necessary jurisdiction for such a
trial was acknowledged by Libya itself in its statements relating both to the possibility
of a third country trial and the possibility that the accused might be persuaded to band
themselves, or might be handed, over to the United Kingdom or the United States.
3.91 Given that criminal proceedings had already been initiated in Scotland, and
that there were objective reasons to reject Libya as a necessary or appropriate
alternative venue, the United Kingdom was not required by Article 11 to provide
Libya with evidence. Whatever the scope of the obligation in Article 11, it is
concerned with assistance to a Contracting State in respect of jurisdiction properly
assumed. Where there is a dispute over jurisdiction, the obligation in Article 11
cannet arise until such time as that dispute has been resolved.
(2) Scottish law, as the law of therequested State,permits the United Kingdom to
refuse assistance in this case
3.92 The United Kingdorn provides legal assistance in criminal rnatters in most cases
without the need for a bilateral or multilateral agreement being in place as between the
United Kingdom andthe requesting State. The principal statutorybasis for doing so is in
the Crirninal Justice (International Co-operation) Ac1990 (''the1990 Act").
3.93 Responsibility for co-ordinating legal assistance in criminal matters in the
United Kingdom lies with the Central Authority for Mutual Legal Assistance in Crirninal
Matters (''the UK Central Authority"). This is part of the Horne Office, a Central
Govemrnent Department. In respect of Scotland, various functions are exercised under
the Act by the Lord Advocate through the Crown Office, the Department responsible for
criminal law matters in Scotland. Requests for assistance involving Scotland are thus
referred by theUK Central Authority to the Crown Office.
3.94 In order to facilitate requests for assistance, and ensure that they are handled
efficiently, the UK Central Authority has produced Guidelines on International Mutual
Legal Assistance in Criminal Matters under United Kingdom law ("the Guidelines").
51This document was produced in August 1991 and copies are made available to the
89
authorities of other States seeking mutual assistance.
3.95 The 1990 Act introduced a range of powers to assist other States in the
investigation and prosecution of offences. Before evidence can be obtained and
provided to a requesting State, the Lord Advocate (in the case of Scotland) must be
satisfied inter alia thatan offence under the laws of the requesting State has been
committed, or that there are reasonable grounds for suspecting that such an offence
has been committed, and that an investigation into the incident is taking place in the
requesting State.
3.96 The Guidelines also indicate the appropriate form and content of a request for
assistance.90 In particular, a request for assistance must include details of th.especifie
evidence sought.
3.97 Under the Act and the Guidelines, requests for assistance may also be refused
in certain cases. These are described in general terms in paragraph 41 of the
Guidelines as follows:
"Specifie grounds for refusai
41. Refusa/ may be made on politica/, security, or national interest
grounds, but may also be unavoidable in certain other cases. For example,
as indicated in these guidelines, evidence may not be taken or passed on
where a witness has made a substantiated daim to privilege, or search and
seizure may be refused if the circumstances of the case do not satisfy the
requirements for the exercise of the power contained in the United
Kingdom's legislation. Assistance may also be refused in relation to overseas
proceedings where those proceedings may result in double jeopardy for the
accused (e.g. retrial for an offence for which he or she has already been tried
in the United K.ingdomor elsewhere). In the case of prisoners, transfer may
have to be refused or delayed ifthe prisoner is very near the date of his or her
release in the United Kingdom or is required for proceedings in United
Kingdom courts. Moregenerally, the rule is that assistance cannot be granted
where execution of a91equest would be contrary to United Kingdom law or
establishedpractice."
89 Annex 104.
90 Ibid., at Chapter II.
91 Ibid., at para. 41; emphasis added.
523.98 In giving effect to these provisions, the Lord Advocate is bound to have
regard, inter alia, to such matters as political, security and national interest grounds as
weil as to whether the grant of assistance would prejudice Scottish investigations or
proceedings. In the latter case, assistance will invariably be refused in circumstances
in which the matter is the subject of criminal proceedings in Scotland, unless the
assistance would be so limited as to avoid prejudicing the Scottish proceedings or is
carried out for the purpose of commencement or continuation of the proceedings in the
requesting State with the agreement of the Lord Advocate.
3.99 There is nothing unusual about Scottish law and procedure in this respect; it
is consistent with that set out in international conventions and other similar
instruments dealing with mutual assistance in criminal matters. Thus, for example,
Article 2 ofthe European Convention on Mutual Assistance in Criminal Matters, 1959
92
("the European Convention"), to which the United Kingdom is a party, provides
inter alia as follows:
"Assistance may be refused:
(b) if the requested Party considers that execution of the request is lîkely
to prejudice the sovereignty, security, ordre public or other essential
interestsof its country."
3.100 Article 6(1) of the same Convention goes on to provide:
"The requested Party may delay the handing over of any property, records or
documents requested, if it requires the said prop93ty, records or documents in
connection with pending criminal proceedings."
United Kingdom Treaty Series No.24 (1992).
This rightto refuse a request for assistance on grounds that it may prejudice the sovereignty,
security, ordre public or other essential interests of the requested State is to be found also in
other mutual assistance conventions and instruments. Thus, for example, the Mode! Treaty on
Mutual Assistance in Criminal Matters adopted by the General Assembly on December 1990
(A/RES/45/117) (Annex 103)provides in Article 4(I)(a) and (d) that:
"Assistance may be refused if:
(a) the requested State is of the opinion that the request, if granted, would prejudice its
sovereignty, security, public orderre public) or other essential public interests;
(d) the request relates tooffence that is subject to investigation or prosecution in the
requested State ..."
533.101 Viewed against the background of these instruments, and by reference to the
terms of Article 11 of the Montreal Convention, the United Kingdom was entitled to
refuse assistance to Libya in the circumstances of this case on two grounds. First,
under the 1990 Act and the Guidelines, the Scottish authorities are entitled to refuse
assistance in circumstances in which criminal proceedings have already been initiated
before a court in Scotland. The reason for so doing is straight-forward. In such
circumstances, the release of evidence could prejudice the trial of the accused in
Scotland. For this reason, the United Kingdom has, throughout this case, proceeded
with caution when setting out a summary of the key elements of the case against the
two accused. Under the rules of Scottish criminal procedure, evidence that is
con:fidential to the prosecuting authorities may not be disclosed, other than to the
accused (once they have been arrested) and their legal advisers for purposes of the
preparation of their deferree,out of concem for the faimess of the trial.
3.102 Secondly, where the Lord Advocate has, on the basis of enquiries carried out
on his behalf, reason to suspect that the requesting State is itself implicated in the
crime, he would be failing in his public duty to uphold the law if he were to disclose to
the authorities of that State material which would otherwise be con:fidentialto the Public
Prosecutor. On this basis too,the United I<Jngdomconsidersthat it wasproperly entitled
to refuse assistanceto Libya onthe grounds of national interest.
Article 4(3) of the UN Model Treaty goes on to provide that:
"[t}he requested State may postpone the execution of the request if its immediate
execution would interfere with an on-going investigation or prosecution in the requested
State."
Similar provisions are found in Article 7(2)(a) of the Scheme Relating to Mutual Assistance in
Criminal Matters within the Commonwealth, Article 9(e) of the Inter-American Convention on
Mutual Assistance in Criminal Matters 1992, Article 4(1)(a) of the Economie Community of
West African States Convention on Mutual Assistance in Criminal Matters 1992, as weil as in
other conventions.
As will be evident from these provisions, the 1990 Act and UK Guidelines mirror the
provisions contained in a wide range of multilateral instruments dealing with mutual assistance
in criminal matters. In each case, these instruments provide that a request for assistance may
be refused ifto comply with it would be contrary to the essential public interests of the
requested State.
543.103 The United Kingdom therefore contends that it is not in breach of the obligation
in Article 11(1) of the Montreal Convention, on the grounds that its action was warranted
under Scottish law as the law of the requested State.
55 Chapter4
The Interpretation and Application of the Montreal Convention in Cases
in which aState islmplicated in a Convention Offence
3.104 In Chapter 3 the United Kingdom has submitted that the Montreal
Convention does not confer upon a State in whose territory persons accused of a
Convention offence are found the "right" or "option" which Libya asserts. In the
present Chapter, the United Kingdom will contend that there are broader reasons why
the Convention could not, in any event, confer such a "right" or "option" on a State
Party which is implicatedin the very offences that are in issue.
3.105 These are precisely the circumstances of the present case. The investigation
that followed the destructionof PanAm Flight103 resulted in the Scottish prosecuting
authorities concluding that there was corroborated evidence that Abdelbaset Ali
Mohmed Al Megrahi and Al Amin Khalifa Fhimah cornmitted the offence. The
investigation also indicated that both were members of the Libyan intelligence
94
services. Although, pending a trialof the accused and the testing of the evidence
that would then take place, these accusations have not been proved, they cannot be
treated as if they were capricious and without any foundation in fact. The Lord
Advocate, acting wholly independently as the chief prosecutor in Scotland, was
satisfied when he authorisedthe Procurator Fiscal to present the Petition charging the
accused and seeking a warrant for their arrest, that there was sufficient evidence
available to prove the charges. The implication of Libya in the bombing of Pan Am
Flight 103, while not as yet proved, is, therefore, alleged on the record of criminal
proceedings undertak.en by the public prosecutor and on the basis of the evidence
before him.
3.106 In the circumstances, the United Kingdom contends that Libya's argument
that the Convention gives it an indefeasible right to prosecute the accused is not only a
distortion of the relevant Convention provisions, it is an attempt to frustrate the
operation of the Convention,as it fails to ensure that the two accused will be subject to
effective prosecution as envisaged by the Convention. For the Court to hold that, in
94
See UKPOs paras. 2.to2.51 and Annex 16.
56the circumstances of this case, the Montreal Convention confers upon Libya the right
to insiston a trial of the two accused in its own courts, would be to create a loophole
in the Convention of the greatest magnitude.
3.107 The United Kingdom's argument is based upon the nonnal canons of treaty
interpretation, as set forth in Articles31 and 32 ofthe Vienna Convention on the Law
of Treaties, 1969, and, in particular, the maxim that a treaty shaH be interpreted "in
good faith in accordance with the ordinary meaning to be given to the tenns of the
95
treaty in their context and in the light of its object and purpose". With regard to
reliance on the ordinary meaning of terms, Sinclair has stressed that the interpretation
96
of a treaty is not simply an exercise in "grammatical analysis". He notes that: "The
true meaning of a text has to be arrived at by taking into account ail the consequences
which normally and reasonably flow from that text". Bin Cheng similarly observes
that ''treaty obligations should be carried out according to the common and real
intention of the parties at the time the treaty was concluded, that is to say, the spirit of
97
the treaty and not its mere literai meaning." It follows that the interrelation between
the need to accord a term its ordinary meaning and the determination of the meaning
in context, and in the light of the object and purpose of the instrument, is particularly
strong.
3.108 It was demonstrated in paragraphs 3.11 to 3.43, above, that the Montreal
Convention was designed to establish an effective multilateral mechanism for the
prosecution of persons accused of the offences set out in Article 1 of the Convention,
and thereby to prevent and deter the commission of such acts- an object that is clearly
stated in the Preamble to the Convention, and that emerges with equal clarity from the
scheme and text of the Convention more generally, as weil as from the circumstances
of, and background to, the adoption of the Convention.
3.109 Accordingly, it can readily be seen that neither Article 7, nor the Montreal
Convention as a whole, allows a State holding an alleged offender to choose between
95
Article 31(1).
96 Sinclair, The Vienna Convention on the Law ofTreaties (2nded., 1984), at p. 121.
97 Bin Cheng, General Principles of Law as Applied by International Courts and Tribunats (1987),
atp. 114.
57extradition and prosecution without having regard to the object and purpose of the
Convention. More particularly, it would defeat the object and purpose of the Montreal
Convention to allow such unfettered latitude to such a State when it is believed to be
98
implicated in the offence.
3.110 Reflecting on the present case, Tomuschat, writing in 1992, put the matter in
the following terms:
". .. one could proceed from the proposition that the Montreal Convention
cannot be held to grant rights of prosecution to a state which has no intention
whatsoever of making actual use of those rights. lndeed, the Convention
seeks to establish an effective system of criminal prosecution with regard to
persans endangering the security of international air traffic. If, on the
contrary, a state just seeks to frustrate the objectives of criminal justice, it
must be debarred from invoking to its benefit the stipulations of the
99
Convention. In such a case, only the alternative of extradition can apply."
3.111 This analysis fmds support in the individual provisions of the Convention.
The injunction in Article 10(1), that "Contracting States shall, in accordance with
international law, take ali practicable measures for the purposes of preventing the
offences mentioned in Article 1" necessarily means that a Party may not itself commit
such acts. The requirement of "prevention" also militates against any suggestion that
the Convention can be construed in such a manner as to confer upon a State alleged to
be implicated in such an offence the right to insist on a trial in its own courts of the
persons accused of the offences.
3.112 Similarly, the requirement, in Article 12, that a Contracting State having
reason to believe that one of the offences mentioned in Article 1 will be conunitted
must furnish any relevant information in its possession to other States that might be
entitled to exercise jurisdiction, also goes to deny that the Convention can properly be
interpreted so asto allow a State implicated in an offence to insist that its courts are
98 To adopt the words of the Court inthe South West Ajrica cases, the"raison d'êtreof this
essentialprovision", Article 7 of the Montreal Convention, is "obvious" ~ the effective
prosecution of those accused of acts of unlawful interference against the safety of aircraft. In
such a case, interpretative effect must be giveno thisraison d'être.South West Africa,
Preliminary Objections, Judgment, ICJ Reports 1962, p. atp.336.
99
Tomuschat, "The Lockerbie Case before the International Court of Justice"Review of the
international Commission of Juri(1992),p. 38, atpp. 42-43.
58 ''
the sole venue for the trial. Any other reading would undermine the integrity and
effectiveness of the Convention.
3.113 The manifest concem, as demonstrated in paragraphs 3.34 to 3.43, above, of
the international community with State involvement in acts of aviation terrorism
points in the same direction. As the ltalian Delegate to the !CAO Legal Committee
noted, state complicity in acts of aviation terrorism amounted to ''international
100
blackmail" and constituted a "flagrant infringement of international law". This
description would necessarily be applied with even greater force where the State
originated the unlawful act in question. It is inconceivable that, in such circumstances,
the Montreal Convention could have been intended to be interpreted and applied in
such a way as to accord to such a State an indefeasible right to try those accused of
that offence.
3.114 The same sentiment was even more forcefully apparent in the statement of
the Indian delegate to the !CAO Legal Committee in the following terms:
"... a State, which by its Govemmental action
assists the hijacker or hijacking,or
detains an aircraft after its unlawful seizure, or assists in its destruction,
or
creates obstacles to th.eimmediate release of passengers, crew and cargo
of such aircra:ft,or
fails to take action (by way of extradition or prosecution) against persans
committing acts of unlawful seizure or interference with civil aviation,
loses by that very action any benefit that it might otherwise enjoy in respect
of operation of air services under the Convention on International Civil
Aviation, 1944, the International Air Services 101nsit Agreement, 1944, and
any other multilateral or bilateral agreement."
lOO Legal Committee, Eighteenth Session, London, 29 September - 22 October 1970, Documents,
ICAO Doc. 8936-LC/164-1, p. 207.
lOI ICAO Doc. LC/SC-CR 27/4n l,at p. 41. And, see, the comments of the ObservIFALPA at
the Twentieth Session of the Legal Committee held in Montreal9-30 January 1973, ICAO Doc.
9050- LC/l69-2,at p. 150.
593.115 The statement submitted by the United Kingdom at the meeting of the Legal
Subcommittee held in Washington in September 1972, expressed a similar view:
"A State which was responsible for a threat to the safety of civil aviation was
acting contrary to the objectives and purposes of the Chicago Convention
and, consequently, other States parties to that Convention were entitled to
regard the defaulting State's rights under that Convention and under bilateral
air services agreements which were expressly or impliedly subject to that
102
Convention, as suspended.''
3.116 While these remarks were directly concemed with the Chicago Convention
and other aviation agreements, in view of the overall purpose behind the creation of
ICA0, 103 it is unthinkable that the drafters and negotiators of the Montreal Convention
could have contemplated an instrument that would grant a State implicated in an act of
aviation terrorism the right to insist on trying, in its own courts, those accused of the
offence, let alone a right which even the United Nations Security Council could not
displace in order to address a threat to international peace and security.
3.117 With regard to the principle of effectiveness in treaty interpretation, rn
104
contrast to many of the cases inwhich this principle has been invoked, this is a case
in which the application of the principle to the Convention is entirely consistent with
the interpretation derived from the scheme and text of the Convention, its object and
purpose and the good faith of the parties. As Sir Hersch Lauterpacht observed:
"... the principle ut res magis valeat quam pereat ... means that the
maximum of effectiveness should be given to [a treaty] consistently with the
105
intention- the common intention- of the parties."
3.118 If the Montreal Convention is to possess the "maximum of effectiveness" -
indeed for it to possess any effectiveness at aHin such a case- it cannet be construed
in such a way as to accord to a State Party implicated in a Convention offence the
rights which Libya daims in the present case.
102
Twentieth Session of the Legal Committee held in Montreal 9-30 January 1973, !CAO Doc.
9050- LC/169-2, atp.102.
103 As expressed in the Preamble and in Arti44eof the Chicago Convention.
W4
See, for example, Sir H. Lauterpacht, The Development of International Law by the
International Court (2ed.,1958),at pp.282 et seq.
105 Ibid.,atp.229.
603.119 That, of course, gives rise to a difficult question. Clearly, a mere unsupported
allegation of involvement in an act of unlawful interference by one Contracting State
against another cannot of itself be sufficient to mak:etrial in the courts of that State
inappropriate. However, since the purpose of the Convention is to establish a regime
for the prevention and effective criminal prosecution of persons alleged to have
committed the offences mentioned in Article 1, the consequences of a State Party
being implicated in an offence cannot be determined ex post facto on the basis of a
trial in thatState. Nor can it be determined by sorne other process where ali the
evidence of the crime would be aired, since that would, in effect, require that a
crirninal trial be held in order to determine where a criminal trial should be held.
3.120 The question ofwhere the line between these two extremes is to be drawn is a
difficult one, particularlyas the balance is not simply one of principles in the abstract,
but relates to the fair and effective prosecution of persons who, as in this case, are
alleged to have been responsible for a crime of considerable gravity. The pertinent
issue in this case is not, however, precisely where that line should be drawn as a
matter of abstract principle, but whether the circumstances here in issue fall on one
side ofthat putative line orthe other.
3.121 On this point, the United Kingdom sees no difficulty. The circurnstances
here in issue amount to far more than a mere unsupported allegation of Libyan
involvement in the offence. This is a case where the accusations are based upon the
most careful of investigations. It is worth recalling that the investigation took almost
three years before the authoritiesin Scotland were satisfied that the evidence was such
as to justify charges against the two accused. The conclusions of the investigation also
indicated that the accused were members of the Libyan intelligence services and were
106
acting in furtherance of the purposes of these services. Similar accusations bad
been made by France in connection with UTA Flight 772. Moreover, the Security
Council bas considered the accusations of sufficient weight to justify it in requiring
concrete acts to demonstrate Libya's renunciation ofterrorism. 107
106
See UKPOs paras. 2.28 to 2.51 and Annex 16.
107 See paras. 4.14 to 4.34, below.
61 Chapter5
Conclusions regarding the Montreal Convention
3.122 It follows from the discussion in this Part that, while the Montreal
Convention is applicable to the present case, it does not have the effects for which
Libya contends. In particular, the Convention does not confer upon Libya the rights
which Libya maintains that it possesses. More important!y, the United Kingdom bas
not violated any Convention obligation which it owes to Libya.
3.123 The submissions of the United Kingdom on these questions may be
summarised asfollows:-
(a) Article 7 of the Montreal Convention, whether taken alone or in
conjunction with Articles 1, 5, 6 and 8 of the Convention, imposes
obligations upon Libya. It does not confer upon Libya a "right" or
"option'' correlative to any obligation on the part of the United
Kingdom;
(b) Even if Article 7 of the Montreal Convention did confer such a right or
option upon Libya and impose corresponding obligations upon the
United Kingdom, none of the United Kingdom's actions in the present
case is capable of amounting to a violation of those obligations. In
particular:-
(i) the Convention does not preclude a State which does not have
custody of persans accused of a Convention offence from
instituting proceedings against those persans and seeking their
surrender from another State;
(ii) the Convention does not restrict the right of States to refer
matters to the United Nations Security Council;
(iii) the action of the United K.ingdomin implementing, in accordance
with its obligations under the United Nations Charter, the
decisions of the Security Council in Resolutions 748 (1992), 883
62 (1993) and 1192 (1998) cannet amount to a violation by the
United Kingdom of its Convention obligations towards Libya;
(c) The United Kingdom bas not violated Article 11(1) of the Montreal
Convention by declining to provide Libya with evidence beyond what
was supplied on 13 November 1991;
(d) Moreover, there are broader reasons why the Convention could not, in
any event, confer upon a State Party which is itself implicated in a
Convention offence a "right" or "option" to insist upon trying the
accused before its own courts.
63 -------------------------
PART4
THE EFFECT OFTHESECURITYCOUNCILRESOLUTIONS
ONTHE OBLIGATIONSOF THE PARTIES
Chapter1
SummaryoftheArgumentsRegarding
the Effect ofthe SecurityCouncilResolutions
4.1 Even if, contrary to the submissions in Part 3 of this Counter-Memorial,
Libya bas the rights and the United Kingdom the obligations which Libya claims
under the Montreal Convention, the United Kingdom submits that Security Council
Resolutions 748 (1992), 883 (1992) and 1192 (1998) impose obligations upon Libya
and the United Kingdom, one effect of which is that the rights which Libya claims to
derive from the Montreal Convention are not opposable to theUnited Kingdom in the
present proceedings. Consequently, the United Kingdom submits that Libya is not
entitled to the relief which it seeks.
4.2 In brief, the United Kingdomcontends that Security Couneil Resolutions 748
and 883 contain, inter alia, decisions of the Security Council requiring Libya to
surrender the two accused to stand trial before an appropriate United Kingdom or
United States court. This is con:firmedby Resolution 1192, adopted on 27 August
1998. In that resolution, the Security Cowtcil repeated its earlier demands, but
approved a proposai by the United Kingdom and the United States for the trial to be
held before a Scottish court -sittingin the Netherlands. Following the adoption of
Resolution 1192, therefore, Libya is required to ensure that the two accused appear
for trial before the Scottish court in the Netherlands or before an appropriate court in
the United Kingdom or the United States?
Annex 87. The tenns ofResolution 1192 (1998) are analysed in Part 5, below.
2
Resolution 1192 (1998) (Annex 87), paragraphs 4 and 8.
644.3 By virtue of Article 25 of the United Nations Charter, Libya and the United
Kingdom are under a legal obligation to comply with the decisions contained in the
three Resolutions. The obligation under Article 25 to comply with the Council's
decisions prevails over any rights or obligations which either State might have under
the Montreal Convention. 3 The Security Council Resolutions, therefore,
authoritatively determine the issues raised by the present Application.
4.4 In this respect, reference is made to the fmding of the Court at the stage of
Libya's Request for the indication ofprovisional measures:
"Whereas both Libya and the United Kingdom, as Members of the United
Nations, are obliged to accept and carry out the decisions of the Security
Council in accordance with Article 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 contained in resolution
748 (1992); and whereas, in accordance with Article 103 of the Charter, the
obligations of the Parties in that respect prevail over their obligations under
any other international agreement, including the Montreal Convention.'.4
4.5 Libya denies that the decisions contained in Security Council Resolutions
748 and 883 can have such an effect. Libya's pleadings to date have not, of course,
addressed the effects of Resolution 1192. Accordingly, the United Kingdom will, in
this Part of the Counter-Memorial, reply to Libya's submissions regarding
Resolutions 748 and 883. Resolution 1192will then be discussed in Part 5.
4.6 With regard to Resolutions 748 and 883, Libya contends that:
(a) The Security Council has not required Libya to surrender the two
accused to the United K.ingdomor the United States; 5
Insofar as Libya seeks to assert rights or obligations arising outside the Montreal Convention, îts
clalin falls outside the jurisdiction of the Court which is based exclusively upon Article 14(1) of
the Montreal Convention; see para. l.l9, above.
4 Provisiona/ Measures Order, ICJ Reports, 1992, p. 3 at para. 39. See, also, the Dissenting
Opinion of Judge Weeramantry at pp. 60-61, and the Dissenting Opinion of Judge AjiboJa at p.
88. See also the Prelîminary Objections Judgment, Joint Declaration of Judges Guillaume and
Fleischbauer, at p. 2, the Dissenting Opinionresident Schwebel, at p. 3 and pp. 9-10, the
Dissenting Opinion of Judge Sir Robert Jennings, at p. 10, and the Declaration of Judge
Herczegh, at p..
Libyan Memorial, Part 4, Chapters 1and II.
65 (b) The Security Council Resolutions were, in any event, not validly
adopted, because France, the United Kingdom and the United States
should have abstained from voting on Security Council Resolution
731· 6
'
(c) If the Security Council Resolutions are interpreted as requiring Libya
to surrender the two accused for trial in Scotland or the United States,
they are invalid; 7and
(d) In any event, the obligations which the Security Council bas purported
to impose under the Security Council Resolutions cannot prevail over
8
Libya's rights under intemationallaw.
4.7 Libya's submissions raise a number of cornplex arguments of international
law. The complexity of these arguments is increased by the fact that they are not
always advanced in the same form in the different Libyan pleadings. Indeed, Libya
has frequently contradicted itself in its different statements to the Court, the Security
Council and other international bodies. That is particularly the case with regard to
Libya's staternents conceming the interpretation of the relevant Security Council
Resolutions, as will be demonstrated below. 9
4.8 In this Part of its Counter-Memorial, the United Kingdom will reply to the
Libyan submissions by developing the following propositions:
(a) Properly interpreted, Security Council Resolutions 748 and 883 decide
that Libya must surrender the two accused for trial in Scotland or the
United States (paragraphs 4.9 to 4.61);
(b) The decisions contained in those Resolutions are binding upon Libya
and the United Kingdom in accordance with the United Nations
6
This argument was not raiseinLibya's Memorial but appears at paras. 4.43-4.48 of the Libyan
Observations.
7 Lîbyan Memorial, Part 4, Chapters III and IV.
8 Libyan Observations, paras. 4.23to4.26; Professor David, CR 97120, pp. 46-48, paras. 4.17-
4.21 (Court's translation).
9
See paras. 4.59 to.60 below.
66 Charter, and the legal obligations ~mpos by dthe decisions of the
Security Council prevail over any rights or obligations which Libya or
the United Kingdom might have under the Montreal Convention or
other sources of international law (paragraphs 4.62 to 4.96);
(c) The obligations deriving from those Resolutions must be given effect
by the Court (paragraphs 4.97 to 4.221). This proposition has several
parts:
(i) the relationship between the Court and the Council is not a
hierarchical one but a relationship based upon co-operation
between two independent organs of equal standing (paragraphs
4.100 to 4.109);
(ii) Security Council Resolutions 748 and 883 were adopted in the
proper manner and in accordance with ali procedural
requirements (paragraphs 4.110 to 4.128);
(iii) the Court hasno power to question the validity of the Security
Council Resolutions on grounds wbich relate to their
substantive validity (paragraphs 4.129 to 4.173);
(iv) altematively, even if the Court does have such a power, the
Resolutions in the present case are valid and must be treated as
such (paragraphs 4.174 to 4.221).
67 Chapter2
The Interpretation of the Security Council Resolutions
Section A: Introduction
10
4.9 In its Memorial, and in its submissions in the oral proceedings at the
11
Preliminary Objections phase of this case, Libya bas put forward a highly artificial
interpretation of Security Council Resolutions 748 and 883. It argues that, far from
requiring that Libya surrender the two accused to stand trial in Scotland or the United
States, Resolution 748 requires only that Libya negotiate with the United Kingdom
and United States with a view to fmding a means by which responsibility for the
Lockerbie bombing can be established in order to deter future acts of terrorism. 12
13
Libya maintains that Resolution 883 confinns this interpretation.
4.10 The Court bas bad cause to interpret and to apply resolutions of the Security
14
Council on a number of occasions. It hasnot, however, hitherto made any general
pronouncement regarding the principles to be applied in interpreting such resolutions.
Although there are obvious and important differences between resolutions of the
Security Council and treaties, the United Kingdom submits that guidance may be
obtained from the provisions of Articles 31 and 32 of the Vienna Convention on the
15
Law of Treaties, 1969, and, in particular, the well-established general rule that «a
treaty shall be interpreted in good faith inaccordance with the ordinary meaning to be
10
Libyan Memorial, paras. 6.2 to 6.26.
ll See, Professor Suy, CR 97/21, pp. 20-27, paras. 5.19-5.23.
12 Libyan Memorial, para. 6.22.
13
Libya's pleadings do not, of course, deal with Resolution 1192 (1998).
14 See, e.g., Corfu Channel, Preliminary Objection, ICJ Reports, 1947-1948, p. 15 at p. 28; Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ
Reports, 1971, p. 16at paras. l08-11O.
15 See M.C. Wood, 'The Interpretation ofSecurity Council Resolutions', 2 Max Planck Yearbook
of United Nations Law (1998),p.73, at pp. 85 to 95.
68given to the tenns of the treaty in their context and in the light of its object and
purpose."
4.11 The application of this rule to the interpretation of Security Council
resolutions was implicit in the Court's Opinion in the Namibia case, where it referred
to the terrns of Resolution 276 (1970), its context and the purposes of the Security
16
Council in adopting that resolution. The Appeals Chamber of the International
Criminal Tribunal for the Former Yugoslavia adopted a similar approach to the
interpretation of its Statute (a text which derived its legal force from Resolution 827
(1993)). lt referred to the ordinary meaning of the words used, their context and the
object and purpose of the Statute in order to determine the scope of the jurisdiction
17
which the Council bad intended to confer upon the Tribunal. In addition, a Panel of
the United Nations Compensation Commission bas stated that:
"In interpreting Security Council Resolution 687 (1991), the Panel takes
guidance from the Vienna Convention on the Law of Treaties (the 'Vienna
Convention'), which provides, in part, that 'a treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terrns
of the treaty in their context and in the light of its object and purpose.'
Although a resolution of the Security Council is not a treaty within the
meaning of the Vienna Convention, the Panel finds that the Convention when
referred to with care is relevant toits task ofinterpretation." 18
4.12 It is particularly important to have regard to the background to the adoption
of a resolution and to the fact that, as is the case here, a given resolution is frequently
part of a series of resolutions addressing the same subject, as the Court recognised in
16
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970}, Advisory Opinion, ICJ
Reports, 1971, p. 16at, paras. 108-116.
17 Prosecutor v. Tadic (Jurisdiction), decision of the Appeals Chamber of 2 October 1995, 105
ILR 419 at paras. 71-78 and 88. In another phase of the same case, a Trial Chamber of the
Tribunal was more explicit, stating that "the rules of treaty interpretation coninithe
Vienna Convention on the Law of Treaties appear relevant" to the interpretation of the
Tribunal's Statute.rosecutor v. Tadic (Protective Measures), decision of the Trial Chamber of
10August 1995, 105 ILR 599 atpara.18.
IS
Report and Recommendations made by the Panel of Commissioners concerning the First
Instalment of "E2" ClaimsUN Doc. SIAC.2611998n, para.54 (AMex 119).
69 19
the Namibia Opinion. In addition, the interpretation which the Council itself places
upon a resolution in its subsequent practice and, in particular, in its subsequent
20
resolutions, is of the utmost importance. As the Permanent Court hassaid:
"...it is an established principle that the right of giving an authoritative
interpretation of a legal rule (le droit d'interpréterauthentiquement une règle
juridique) belongs solely to the person or body who has power to modify or
suppress it."1
4.13 The interpretation that Libya seeks to place upon Resolutions 748 and 883 is
contrary to the text of the Resolutions and their drafting history, as weil as the
subsequent practice of the Security Council and the States concemed. Indeed, an
examination of Libya's statements and conduct since the adoption of Resolution 748
will show that, from the start, Libya has been in no doubt about what the Security
Council hasrequired of it. Libya's obligations in this regard have been confirmed by
Resolution 1192. The Security Council there decided that Libya might comply with
the previous decisions of the Council by ensuring the appearance of the accused for
trial before a Scottish court in the Netherlands. The e:ffectsof Resolution 1192 will be
considered in Part 5, below.
22
Section B: The Adoption of Resolutions 731, 748 and 883
4.14 On 14 November 1991, the same day as the charges against the two accused
were published in the United Kingdom and the United States, the United Kingdom
supplied copies of the charges and the warrant, together with the Statement of Facts,
to the Libyan Government and demanded that Libya hand over the two accused for
23
trial in Scotland. Since it received no satisfactory response from Libya to the
19 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 2761970), Advisory Opinion,ICJ
Reports, 1971, p. 16 at paras. 108-110.
20 See, e.g., the Separate OpinionJudge ad hoc LauterpachtinApplication of the Convention on
the Prevention and Punishment of the Crime of Genocide, Pravisionai Measures, Order of 13
September 1993, ICJReports, 1993, p. 325 438.
21
Jaworzina, Advisory Opinion,1923,PCIJ, SeriesB,No. 8,p. 37.
22 The background to the adoption of the threeResolutions is considered in greater detail in
UKPOs, paras. 2.52 to 2.99.
23
Libyan Memorial, Ailllex 37.
70demand for surrender of the two accused, on 27 November 1991 the Govemment of
the United Kingdom issued jointly with the Government of the United States a
declaration stating that the Government of Libya must:
" - surrender for trial ali those charged with the cnme; and accept
responsibility for the actions of Libyan officiais;
- disclose ali it knows of the crime, including the names of alithose
responsible, and allow for full access to aliwitnesses, documents and ether
material evidence, including ali the remaining timers;
24
- pay appropriate compensation."
The statement concluded by expressing the view that the two Govemments expected
Libya "to comply promptly and in full". 25 Also on 27 November 1991, the
Governments of France, the United Kingdom and the United States issued a tripartite
declaration in which they repeated earlier requests regarding PA Flight 103 and UTA
Flight 772 and required Libya promptly to commit itself to ceasing ali forms of
26
terrorist activity.
4.15 From 2 January 1992 onwards, France, the United Kingdom and the United
States made démarchesto a number of States, including ali the members of the
Security Council. These sought support for the proposai that the Security Council
should cali on Libya to comply with the demands of the three Govemments. In
addition, by 7 January, the Permanent Representatives of the three Governments at the
United Nations in New York had discussed possible action by the Security Council
with the representatives of ail the other Council members. A dra:ft resolution
supporting the demands made of Libya by the Governments of France, the United
Kingdom and the United States, and prepared after discussion between the five
24
UN Docs. A/46/827 and S/23308 (Annex 7).
25 It is also relevant that on 20 December 1991 France issued a communiqué(UN Docs. A/46/825
and S/23306; Annex 5) which said that the judicial inquiry into the attack on UTA flight 772 on
19 September 1989 causing 170 deaths had implicated severa! Libyan nationals. The
communiqué called on Libya to produce ali material evidence in its possession;acilitate
access to ail documents that might be useful in inquiring into the attack; and to authorise the
responsible Libyan officiaisto respond to any request made by the French examining
magistrate.
26 UN Doc. A/46/828 and S/23309 (Annex 8).
71permanent members of the Security Cmmcil, was circulated informally in New York
to all members of the Council on 0January 1992.
4.16 The next day, Il January, Libya sent a letter to the International Civil
Aviation Organisation in which it referred for the first time to the Montreal
Convention. 27
4.17 On 21 January 1992, the Security Council unanimously adopted Resolution
731.28 In the preamble, the Security Council reaf:finned its earlier resolutions on
terrorist threats to international aviatand the Presidential Statement made at the
time of the Lockerbie bombing.30 The Council expressed its deep concern:
"... over the results inves~ig a tih imnslcate officiais of the Libyan
Govemment and which are contained in Security Council documents that
include the requests addressed to the Libyan authorities by France [S/23306
and S/23309], the United Kingdom of Great Britain and Northem Ireland
[S/23309 and S/23307] and the United States of America [S/23309, S/23308
and S/23317] in connection with the legal procedures related to the attacks
carried out against Pan American flight 103 and Union de transports aérens
[sic] flight2."
The Resolution thus contained a clear reference to the demands by the United
Kingdom and the United States that Libya hand over the two accused to stand trial
before an appropriate United Kingdom or United States court. The preamble to the
Resolution also recorded the determination of the Council to eliminate international
terrorism. The paragraphs of the Resolution began by condemning the destruction of
PA 103 and UTA 772. They then went on to state that the Council:
"2. Strongly deplores the fact that the Libyan Govemment has not yet
responded effectively to the above requests to co-operate fully in establishing
responsibility for the terrorist acts referred to above against Pan American
flight 103 and Union de transports aérens[sic] flight 772;
3. Urges the Libyan Govemrnent immediately to provide a full and
effective response to those requests so asto contribute to the elimination of
international terrorism;
27
Libyan Memorial, Annex 75. An earlier Libyan communication to ICAO of 30 December 1991
(Libyan Memorial, Annex 66) bad made no mention of the Convention.
28
Annex 2.
29 Resolutions 286 (1970) (Annex 24) and 635 (1989) (Annex 40).
30
UN Doc. SC/5057 (Annex 38).
72 4. Requests the Secretary-General to seek the co-operation of the Libyan
Government to provide a full and effective response to those requests;
5. Urges ali States individually and collectively to encourage the Libyan
Government to respond fully and effectively to those requests;
6. Decides to remain seized of the matter."
4.18 Even though the Security Council was not, at that time, acting under Chapter
VII of the Charter, the fact that the situation before it involved a threat to international
peace and securîty was expressly recognised. For example, the Representative of
Hungary stated:
"The attacks on Pan Am and UTA aircraft are acts that obviously threaten
international peace and security. As a result, we feel that it is entirely
justified and highly appropriate for the Security Council, the United Nations
body entrusted with the primary responsibility for the maintenance of
international peace and security, to consider these terrorist manifestations.
Hungary believes that the question of eradicating international terrorism has
a legitimate place among the ccincems of the Security Council, which, on the
basis of its mandate under the Charter, is obliged to follow closely any event
that might endanger international peace and security. In this cormection the
Council is in duty bound to exercise vigilance and to remaîn seized of
specifie acts of terrorism that threaten or destroy innocent lives. For verbal
expressions of faith are no longer enough; the time has come for concrete
actions." 31
4.19 Following the adoption of Resolution 731, the Secretary-General's
Representative, pursuant to paragraph 4 of the Resolution, undertook consultations
with the Libyan authorities. The Secretary-General reported on those consultations on
32
Il February and 3 March 1992. The second report mentioned the possibility of
Libya changing its law to remove the obstacles to surrendering the two accused for
trial, the possibilityof trial in the United States and a number of suggestions for trial
33
in a country other thanScotland or the United States.
3!
UN Doc. S!PV. 3033, pp. 91-92 (Annex IO). Similar statements were made by other members
of the Council. See, in particular, the statements by the Representatives of Austria (p. 92),
Canada (p. 46) and the Russian Federation (p. 87).
32 UN Docs. S/23574 (Annex 13) and S/23672 (Annex 14).
33 UN Doc. S/23672, para. 4 (Annex 14). For other indications that Libya understood that it was
being called upon to surrender the two accused for trial before a United Kingdom or United
States court, and that it accepted the Resolution, see, paras. 4.59 to 4.60, below.
734.20 Nevertheless, on the same day that this report was published, 3 March 1992,
Libya filed its Application in the present case together with a Request for the
indication of provisional measures. Thereafter, Libya, while not formally rejecting
Resolution 731, made clear that itwas not going to surrender the two accused for trial
before a Scottish or United States court,as that Resolution had called upon it to do.
4.21 In view of Libya's refusai to surrender the accused, France, the United
Kingdom and the United States began discussions with other members of the Security
Council on 9 March 1992 about measures directed to ensuring compliance by Libya
with Resolution 731. On 17 March 1992, the three Governments circulated informally
to the other m.embers of the Security Council a dra:ft of what was to become
Resolution 748. While the Court held oral hearings on Libya's request on 26, 27 and
28 March 1992, consultations among members of the Security Council regarding the
dra:ftresolution continued.
4.22 Those consultations resulted in the adoption by the Security Council, on 31
March 1992, of Resolution 748. 34 The Resolution was adopted by 10 votes (Austria,
Belgium, Ecuador, France, Hungary, Japan, Russian Federation, United Kingdom,
United States, Venezuela) to none. Five members (Cape Verde, China, India,
Morocco and Zimbabwe) abstained.
4.23 In the preamble to the Resolution, the Security Council expressed its deep
concem that Libya had not provided a full and effective response to the requests in
Resolution 731, and its conviction that:
"the suppression of acts of international terrorism, including those in which
States are directly or indirectly invo1ved,is essential for the maintenance of
international peace and security."
The preamble also re-affirmed that:
"in accordance with the principle in Article 2, paragraph 4, of the Charter of
the United Nations, every State has the duty to refrain from organising,
instigating, assisting or participating in terrorist acts in another State or
acquiescing in organised activities within its territory directed towards the
commission of such acts, when such acts involve a threat or use of force".
34
Annex3.
744.24 The preamble then made a formai dete;rnination that the failure by Libya to
demonstrate by concrete action its renunciation of terrorism, and in particular its
continued failure to respond fully and effectively to the requests in Resolution 731,
constituted a threat to international peace and security. The final paragraph of the
preamble stated that the Council was acting under Chapter VII of the Charter of the
United Nations.
4.25 In paragraph 1 of the Resolution, it was stated that the Security Council bad
decided that:
"the Libyan Government must now comply without any further delay with
paragraph 3 of resolution 731 (1992) regarding the requests contained in
documents S/23306, S/23308 and S/23309."
These documents contained, respectively: the French communiquécalling on Libya to
co-operate with French justice with regard to the attack on UTA flight 772; the joint
declaration by the United Kingdom and the United States demanding the surrender of
the two Libyans accused of the sabotage of PA flight 103; and the tripartite
declaration calling on Libya to prove by concrete actions its renunciation of terrorism.
4.26 ln paragraph 2, the Council decided that:
"the Libyan Government must commit itself defmitively to cease ail fonns of
terrorist action and ali assistance to terrorist groups, and that it must
promptly, by concrete actions, demonstrate itsrenunciation ofterrorism."
4.27 Paragraphs 3 to 8 of the Resolution then prescribe a number of measures to
be applied by ali Members of the United Nations to Libya until the Security Council
has decided thatLibya had complied with paragraphs 1 and 2. The measures include:
a prohibition on flights to and from Libya; prohibitions on the export of anns to
Libya; reductions in the number and level of staff at Libyan diplomatie missions and
consular posts; and deniai of entry to, or expulsion of, Libyan nationals who have
been denied entry, or expelled from, other States because of their involvement in
terrorist activities.
4.28 In the 19 months between the adoption of Resolution 748 on 31 March 1992,
and the adoption of Resolution 883 on 11 November 1993, Libya sent numerous
75communications to the United Nations in which it claimed that it was complying with
35
Resolution 731, and that Resolution 748 was therefore unjustified.
4.29 Even though Libya maintained that its law prevented the two accused being
extradited, several of the Libyan communications suggested a variety of ways in
which the two accused could be tried outside Libya, usually, although not always,
provided the trial was not held in Scotland or the United States. 36
4.30 Libya did not, however, comply with the requirements of Resolution 748
regarding the surrender of the two accused for trial - a fact explicitly recognised by
the Security Council. 37
4.31 Since Libya had still not complied with Resolutions 731 and 748, or even
38
accepted that it must do so, despite repeated calls for its compliance, France, the
35 See, e.g., UN Docs. S/23917 (Annex 55), S/23954 (Libyan Memorial, Annex 145), S/24428
(Annex 59), S/24961 (Annex 63), S/26313 (Annex 66), S/26500 (Annex 67) and S/26523
(Annex 69).
36 Libya bas not been consistent in this regard. At the oral hearing on the Libyan request for an
indicationof provisional measures, the Agent for LibyMr Al Fatouri, stated:
"The Libyan Government has not ruled out the possibility of amending its national law in
order to remove the internai obstacle created by the prohibition of extraditing its nationals."
(CR92/2 p. 20 (original); pp.l4 and 15 (translation provided by the Registry)).
Furthermore, Libya, in a lettto the United Nations Secretary-Generalof 14May 1992, said:
"the competent authorities in Libya have not rejected the principle of surrendering the two
individuals under suspicion."(UN Doc. S/23918, Annex 56).
Yet in a letter of Il September 1993 to the Secretary-General, Libya stated that it refused to
compel the two accused to "extradite themselves" and that in the absence of an extradition
agreement Libya was unable to compel them to do so. (UN Doc. S/26500,Annex 67, p. 9, paras.
8 and 9).
37
Resolution 883, second preambular paragraph, operative paras. 1, 15 and 16 (Annex 4);
Resolution 1192, paragraph 1 (Annex 87).
38
France, the United Kingdom and the United States issued declarations calling upon Libya to
comply with the requirements of Resolution 748 on 27 November 1992 (UN Docs. A/471758
and S/24913, Annex 62) and 13 August 1993 (UN Docs. A/48/314 and S/26304 (Annex 65)).
The latter declaration stated that:
"If, by October first, the Libyan Govemment bas failed to comply with resolutions 731
(1992) and 748 (1992), including the transfer to United States or United Kingdom
jurisdiction of the Lockerbie suspects and compliance with the requests of French justice on
UTA flight 772, we will table a resolution strengthening the sanctions in key oil-related,
fmancial and technological areas."
76 United Kingdom and the United St.t....'bmitteda draft resolution to the Security
Council. Resolution 883 was adopted on Il November 1993 by 11 votes (Brazil,
Cape Verde, France, Hilllgary, Japan, New Zealand, Russian Federation, Spain,
United Kingdom, United States, Venezuela) to none. Four members abstained (China,
Djibouti, Morocco and Pakistan). The Resolution extended the scope of the sanctions
on Libya and tightened the existing measures already imposed by Resolution 748.
4.32 The preamble to the Resolution included the following:
"The Security Council ,
Reaffirming its resolutions 731 (1992) of21 January 1992 and 748 (1992) of
31 March 1992,
Deeolv concemed that a:fter more than twenty months the Libyan
Government hasnot fully complied with these resolutions;
Determining, in this context, that the continued failure by the Libyan
Government to demonstrate by concrete actions its renunciation of terrorism,
and in particular its continued failure to respond fully and effectively to the
requests and decisions in Resolutions 731 (1992) and 748 (1992), constitute a
threat to international peace and security ... ."
It followed that Libya was still in breach of its obligations under the Charter. The
operative paragraphs then demanded once more that Libya comply in full with
Resolution 748.
4.33 Nevertheless, paragraph 16 of the Resolution expressed the Security
Co uneil' s readiness to review the sanctions with a view to suspending them
immediately if the Secretary-General reported to the Council that:
". .. the Libyan Government has ensured the appearance of those charged
with the bombing of Pan Am 103 for trial before the appropriate United
Kingdom or United States court"
and, with a view to lifting them immediately,
"when Libya complies fully with the requests and decisions in resolutions
731 (1992) and 748 (1992)."
774.34 A statement issued by the Libyan Foreign Ministry on the day that
Resolution 883 was adoptedexpressed its "displeasure" that the Security Council had
"once again yielded to the pressures and manoeuvres ofthe United States, the United
Kingdom and France", and referred again to the many initiatives and proposais made
by Libya, which the Council bad not treated as sufficient to amount to compliance
with the earlier Resolutions. The statement repeated that Libya bad no objection to
the two accused appearing before a Scottish court and was prepared to urge them to
39
do so.
Section C: The Interpretation of Resolutions 731, 748 and 883
4.35 The text of Resolutions 748 and 883, and the circumstances oftheir adoption,
make plain that the Security Council required Libya, inter alia,to surrender the two
40
accused for trial before an appropriate United Kingdom or United States court.
Nevertheless, Libya bas latterly advanced before the Court an interpretation of
Resolutions 731 and 748 whlch leads it to conclude that Resolution 748 does not
require Libyà to surrender the accused but only "places an obligation on Libya to
negotiate". At the very most, Libya contends, the Resolution "gives rise to a pactum
de contrahendo, for which the British-American requests and the aims pursued by the
41
Council provide the starting point". In Libya's view, Resolution 883 does not alter
this interpretation. Libya asserts that this interpretation of the Resolutions is
supported by an analysis of the texts and negotiating history, and is con:firmed by
reference to the UnitedNations Charter and general international law.
4.36 The United Kingdom submits that this interpretation flies in the face of the
text of the Resolutions and the evidence of the circumstances surrounding their
adoption.
39
UN Doc. S/26760 (Annex 72).
40
That this was what the two Resolutions required is confrrmed by Resolution 1192 (1998)
(Annex 87; see Part 5, below).
41 Lîbyan Memorial, para. 6.22, Court's translation; ProfesserCR97/21, p. 24, para. 5.21.
That was not, however, the interpretation which Libya advancedhe Court at the time that
Resolution 748 was adopted; see the Libyan submission to thert regarding the effect of
Resolution 748 upon its request for the indication of provisional measures of protection, quoted
at paragraph 4.59, below.
784.37 As bas been seen, paragraph, 1 of Resol~ t4i8orquires Libya "to comply
without any further delay with paragraph 3 of Resolution 731 (1992) regarding the
requests contained in documents S/23306, S/23308 and S/23309." Those documents,
submitted by France, the United Kingdom and the United States, call upon Libya:
(a) In relation to the destruction ofUTA 772 to "co-operate innnediately,
effectively and by ail possible means with French justice in order to
help to establish responsibility for this terrorist act" and, "to that end"
42
to take certain specified steps;
(b) In relation to the destruction of Pan Am 103, once again to take certain
specified steps, in particular tosurrenderfor trial al/ those charged
with the crime; and accept responsibility for the actions of Libyan
officiais" and to "disclose ali it knows of this crime, including the
names of ail those responsible, and allow full access to ali witnesses,
documents and other material evidence, including ali remaining
43
timers", and
(c) More generally, to "commit itself concretely and definitively to cease
ali fonns of terrorist action and ali assistance to terrorist groups" and
"by concrete actions, prove its renunciation ofterrorism".
4.38 While these requests, therefore, called upon Libya to take a number of steps
(of varying degrees of specificity), there can be no doubt that one of those steps was
to band over the two accused for trial before an appropriate United Kingdom or
United States court. Moreover, the context in which that demand was made (the Joint
Declaration of the United Kingdom and the United States) and the way in which it
bad been discussed, both prior to the adoption of Resolution 731 and in the period
between the adoption of Resolutions 731 and 748, further made it clear that the
accused had to be handed over for trial before a Scottish or United States court.
42 UN Docs. A/46/825 and S/23306 (Annex 5).
43 UN Docs. Af46/827 and S/23308 (Annex 7) (emphasis added).
44
UN Docs. A/46/828 and S/23309, DeclaratiofFrance, the United Kingdom and the United
States on Terrorism (Annex 8). -
79Libya's staternents and conduct, both at the tirne of the adoption of the Resolutions
and thereafter, dernonstratethat it understood this perfectlyiL
4.39 Paragraph 3 of Resolution 731 urged Libya to provide a "full and effective
response" to these requests. Despite the use of diplomatie language, the Security
Council was making clear that: (i) the response Libya was urged to make was to caver
all the elements of the requests (i.e. it was to be "full"); and (ii) it was to be
unequivocal, thus ensuring that the French judicial process would be able to operate
as set out in the French communiqué,that the two men accused of the Lockerbie
bombing would be brought ta trial as required in the Joint Declaration, that any
evidence relating to the Lockerbie incident which was in Libya's possession or over
which it bad control would be made available, and that there would be a real
guarantee that Libya had renounced terrorism and severed ali terrorist contacts (i.e. it
was to be "effective").
4.40 The adoption of Resolution 748 gave binding effect to what was previously
only a recommendation by the Council. By the time the Council adopted that
Resolution, it had already been made aware of Libya's opposition to surrendering the
accused for trial in Scotland or the United States ·and of its proposais for trial
elsewhere. Yet it concluded that Libya bad not complied with Resolution 731 and
ordered itto do so. The inescapable conclusion is that the Council decided that one of
the steps which Libya bad to take in arder to provide a "full and effective response" to
the requests in the documents referred to in Resolutions 731 and 748 was to surrender
the accused for trial before an appropriate United Kingdom or United States court and
that, until it did so, it would not have complied with paragraph 1of Resolution 748.
4.41 This interpretation is confmned by paragraph 16 of Resolution 883. As has
been shown, that paragraph made provision for the immediate suspension of sanctions
if the Secretary-General reported that "the Libyan Governrnent has ensured the
appearance of those charged with the bombing of Pan Am 103 for trial before the
appropriate United Kingdom or United States court" (ernphasis added). The plain
meaning of this provision is that ensuring the appearance of the two accused for trial
before a United Kingdornor United States court was (and, subject to Resolution 1192,
remains) an indispensable step ifLibya is to comply with the binding decisions of the
Security Council.
804.42 In an attempt to escape this conclusion, Libya engages in a highly artificial
line of reasoning, which seeks to take the Court ever further from the plain meaning
ofthe words used in the Resolutions.
(1) Libya maintains that becauseparagraph 2 of Resolution 731 speaks of the need
for Libya "to co-operateJully in establishing responsibility for the terrorist acts ...
against Pan Americanjlight 103 and Union de transports aériensjlight 772", ail that
Libya is required to do is to co-operate to that end and not to co-operate in any
partzcu ar way. 45
4.43 This argument misrepresents both Resolution 731 and the demands made by
the three Governments. The words on which Libya relies indicate the purpose behind
the demands and behind this part of the Resolution, i.e. the end to be achieved. It is
extraordinary to argue that by expressly endorsing that end the Security Council was
somehow tuming its back upon the very clear and express statements by the
Governments of France, the United Kingdom and the United States about the means
by which that end was to be achieved. As has been seen, the three Governments
unequivocally called for the surrender of the two accused for trial in Scotland or the
United States. The trial of the two accused in one ofthose jurisdictions was to be one
of the means by which responsibility for the two terrorist attacks was to be
established. Even if paragraph 2 of Resolution 731 stood alone, its endorsement of
the end to be achieved would not entai! a rejection of the means by which the three
Govemments sought to achieve that end. Moreover, ail three Security Council
Resolutions go beyond the endorsement of that end and cali upon Libya (in the case
of Resolutions 748 and 883, require Libya) to take the specifie step called for by the
three Govemments, namely to ensure that the accused appear for trial before an
appropriate United Kingdomor United States court.
45 LibyanMemorial,para.6.11.
81(2) Libya argues that Resolutions 731 and 748 do not actual!y reproduce the
demands made by the three Governments but mere/y refer to them, something which
46
Libya maintains is quite different.
4.44 This argument is pure pedantry. It haslong been the practice of the Security
Council to incorporate in its resolutions the provisions of other documents by
reference rather than by reproducing their terms in the text. For example, Resolution
692 (1991), regarding the establishment of the United Nations Compensation
Commission and Fund, is based almost entirely upon a Report of the Secretary
General, to which the resolution makes reference. Similarly, Resolution 1044
(1996) 47 refers, in the prearnble, to certain requests made by the Organisation of
African Unity and then, in paragraph 4, calls upon Sudan to comply with those
requests. The Council's practice in this regard demonstrates that no significance
should be attached to the fact that the Council refers to a document rather than
incorporating the terms of that document in the text of a resolution. Thus, both the
International Criminal Tribunal for the Former Yugoslavia and the International
Criminal Tribunal for Rwanda were established by decisions of the Security Council,
taken under Chapter VII of the Charter. In the case of the Rwanda Tribunal,
8
Resolution 955 (1994t expressly incorporated the Statute as an annex to the
49
Resolution, while in the case of the Yugoslav Tribunal, Resolution 827 (1993)
referred to the draft Statute set out in the report of the Secretary-General. Yet it has
never been suggested - and it is surely not the case - that the status or legal effect of
the Yugoslav Tribunal's Statute is in sorne way inferior to that of the Rwanda
Tribunal.
4.45 The technique of giving effect to the provisions of a document by referring to
it rather than by reproducing its terms is particularly appropriate here, since the
demands contained in the documents from the three Governments covered a number
of subjects and varied from the highly specifie- to surrender the accused for trial-to
46 Ibid.para.6.23.
47 Annex llO.
48
Annex 108.
49
Annex 105.
82 ,:.
the more general - to demonstrate by concrete steps the renunciation of terrorism.
What matters is not whether the resolution embodies the provisions of the ether
documents or merely refers to them, but whether it makes clear what States are
required to do. In the present case, the Security Council required that Libya take the
specifie steps and achieve the broader objectives stipulated in the documents
emanating from the three Govemments. One of those specifie steps was to surrender
the two accused for trial before an appropriate United Kingdom or United States
court.
(3) Libya also ma/Œsmuch of thefact that paragraphs 2 and 3 of Resolution 731 do
not cali upon Libya to comply with the demands of the three Governments but mere/y
toprovide a full and effective response to them.5°
4.46 Libya interprets the term "full and effective response" as meaning that the
demands, and the Resolution, are merely a basis for negotiation, allowing Libya to
offer counter-proposals. That interpretation is wholly at odds with the language used
in the Resolution and in Resolutions 748 and 883. It is not a full and effective
response to demands that aState does "x" that it offers to do "y" instead. Moreover,
having demanded that Libya provide a full and effective response, it is plainly for the
Security Council to determine whether Libya's subsequent conduct amounts to such a
response. It is clear, however, that theCouncil has not considered Libya's "response"
to be full and effective.
4.47 Instead, the Council adopted Resolution 748. That Resolution expressly
concluded both that Libya had not complied with Resolution 731, and that its failure
to respond fully and effectively to the requests in that Resolution was one aspect of a
threat to international peace and securiry. Whatever the merits or demerits of Libya's
argument regarding Resolution 731, it is clear that the Council rejected Libya's
approach when it adopted Resolution 748. It is similarly clear that when the Council
adopted paragraph 1 of Resolution 748 (which is the provision that is at the heart of
this case), it intended to require Libya to surrender the accused for trial before an
appropriate United Kingdom or United States court.
50 Libyan Memorial, para 6.12.
83(4) Libya seeks to make much of a perceived difference between paragraphs 1 and
51
2 of Resolution 748.
4.48 Libya points to the fact that paragraph 2 expressly incOiporates the United
Kingdom's demand that Libya should cease ail fonns ofterrorist action and assistance
to terrorist groups and demonstrate by concrete actions its renunciation of terrorism.
Libya contrasts this approach with that taken in paragraph 1, which refers back to the
demands of France, the United Kingdom and the United States. It suggests that this
difference shows that the Security Couneil was not adopting the other demands of the
three States in the way that it was adopting the demand for renunciation of terrorist
activity.
4.49 There is no substance in this argument. As was shown in paragraph 4.14,
above, the demands made by the three States concemed three separate but related
matters; the UTA 772 bombing, the Lockerbie bombing and the broader problem of
Libyan support for terrorism. It need cause no surprise that the Security Council
chose to make express reference in a separate paragraph to the broader question of
Libyan support for terrorism. That fact does not in any way detract from the decision
in paragraph 1 that Libya was to meet al! (not sorne) of the specifie requests made by
the three Governments in the documents referred to by the Council. Indeed, Libya
bas itself repeatedly accused the Council of completely endorsing an Anglo-American
demand or even of acting as the "boîte de lettres et huissier" of the United Kingdom
52
and the United States.
(5) Libya also seeks to support Usinterpretation of the Resolutions by painting to
the role given to the Secretary-General by paragraph 4 of Resolution 731, which
requested the Secretary-General ''toseek the co-operation of the Libyan Government
to provide a full and effective response to those [i.e. the three Governments'}
requests . 53
51
Ibid., 6.11.
S2 Lîbyan Observations, para. 2.11. See also para. 4.36.
53 Lîbyan Memorial, para 6.14.
844.50 The Secretary-General was given a role within the scope of the Resolution
and not beyond it. His mission, as he made clear in his reports to the Council, was to
assist in finding the means of ensuring Libyan compliance with the Resolution, not to
negotiate the terms of that Resolution or to discuss Libyan "counter-proposals". 54
The Secretary-General reported to the Security Council on the Libyan position
regarding Resolution 731. By adopting Resolution 748, the Council made clear that it
did not consider that Libya had complied with Resolution 731 or that its "counter
proposals" made to the Secretary-General offered the possibility of its compliance.
Moreover, both Resolution 748 and 883 made provision for a role for the Secretary
General. Paragraph 16 of Resolution 883 makes the nature of that role particularly
clear: once the Secretary-General had reported to the Council that Libya had complied
with the central requirement of Resolutions 748 and 883 and ensured the appearance
of the two accused for trial in the United Kingdom or the United States, provision was
made for the suspension of sanctions. That paragraph is incompatible with the
suggestion that the Secretary-General was somehow charged with negotiating on
whether the two accused were to be brought to trial somewhere other than in Scotland
or the United States.
(6) Libya also maintains that thefact that Resolution 748 makes provision for the
Security Council to review the measures imposed (in the light of Libyan compliance
with the requirements of the Resolution and the reports of the Secretary-Genera/)
55
supports its interpretationof the Resolution.
4.51 The United Kingdom has sorne difficulty in understanding this argument.
What Libya appears to be saying is that, if Resolution 748 required it to surrender the
two accused for trial in Scotland or the United States, then it would have provided for
the termination of sanctions as soon as that event occurred, rather than providing that
the Security Council should determine whether or not Libya had complied. If that is
indeed the argument, it is completely without merit. It is for the Security Council to
determine whether its decisions have been complied with and whether, and the
54
UNDocs.S/23574(Annex 13)andS/23672(Annex14).
55 LibyanMemorial,para. 6.24.
85 56
procedure by which, the sanctions which it bas imposed should be lifted. Thus it was
the Security Council which determined (in Resolution 460 (1979)) that the conditions
bad been met for lifting the sanctions imposed upon Southem Rhodesia by
Resolutions 232 (1966) and 253 (1968). It bas been a common feature of the
Council's practice during recent years to include in resolutions imposing sanctions
provision for the Council to determine whether its decisions bad been complied with
57
and to lift sanctions. Such provisions appear in resolutions on Iraq, the former
58 59
Yugoslavia and Haiti. Moreover, while the surrender for trial of the two accused
was one of the steps which Resolution 748 required Libya to take, it was not the only
step. Sorne of the others, in particular those demonstrating Libya's renunciation of
terrorism and making available any evidence in its possession, were of such a nature
that whether or not Libya bad complied with them would not have been so easy to
monitor. It is therefore entirely unsurprising that the Council included paragraphs 3
and 13 of Resolution 748, but by so doing the Council in no way supported Libya's
contention that the Resolution did not require Libya to surrender the two accused for
trial before an appropriate United Kingdom or United States court.
4.52 Moreover, a glanee at the provisions of Resolution 883 makes clear that this
Libyan argument is unsustainable. As has already been noted, paragraph 16 of
Resolution 883 expressly provides that the Security Council will review the sanctions
imposed by Resolutions 748 and 883 "with a view to suspending them immediately if
the Secretary-General reports to the Council that the Libyan Govemment bas ensured
the appearance of those charged wi.ththe bombing of Pan Am 103 for trial before the
appropriate United K.ingdom or United States court and has satisfied the French
judicial authorities with respect to the bombing of UTA 772". The paragraph goes on
to provide for sanctions to be lîfted completely "when Libya complies fully with the
requests and decisions in resolutions 731 (1992) and 748 (1992)." That provision
makes clear both that ensuring the appearance for trial of the two accused in Scotland
56 Although, in certain cases, the Security Council decides to establish a mechanism - such as
UNSCOM under Resolution 687 (1991) - which allows others to advise it whether the
requirements for the lifting of sanctions have been met.
57 See, e.g., Resolution 687 (1991), paras. 20-22.
58 See, e.g., Resolution 757 (1992), para. 16.
59
See, e.g., Resolution 917 (1994), paras. 16to 18.
86 ;. '
or the United States was an indispensable step if Libya was to comply with the
requirements of Resolution 748, and that there were other additional steps which
Libya was required to take. The result is that the provisions for determining whether
or not Libya bad complied with Resolution 748, far from supporting Libya's strained
interpretation of that Resolution, actually make it clear beyond doubt that Libya was
required by Resolution 748 to surrender the two accused for trial in Scotland or the
United States.
4.53 Libya has attempted to distort the obvions mearung of paragraph 16 of
Resolution 883 by drawing a comparison between the draft of Resolution 883 and the
60
text adopted by the CoWlcil. In fact, none of the changes made bad any effect upon
the clearly stated central message of the Resolution, that the Council required Libya,
inter alia, to ensure the appearance of the two accused for trial before a United
Kingdom or United States court. The fact that the text was amended to make clear
that this requirement would be complied with if the two accused voluntarily
surrendered themselves for trial did not affect the result which Libya was required to
bring about, namely the appearance of the accused for trial before a Scottish or United
1
States court.
4.54 Libya argues that:
". .. the Council merely stated that the enforcement measures could be lifted
immediately ifLibya ensured the appearance of those charged before an
American or Scottish court. This contrasts with the (hypothetical) adoption
of a decision obliging Libya to ensure the appearance of those charged and,
even more, of a decision obliging Libya to surrender the suspects.
This is no merely formai distinction. When it says that the measures shaH be
lified if Libya ensures the appearance of the suspects before an American or
Scottish court, the Council does not rule out the possibility of those measures
also being lifted if the suspects were to be brought before another court for
trial. In the first case, the measures have to be lifted, in the second case, they
may be." 61
This argument misreads the Resolution. The relevant decisions are contained in
paragraphs 1 and 2 and refer back to the decisions taken in Resolution 748. The
60 Libyan Memorial,paras. 6.137to6.14l.
6l
Ibid,para.6.139.
87expression of readiness to suspend sanctions in paragraph 16 does, however, give a
very clear confirmation of what measures Libya had to take in order to comply with
the decisions in Resolutions 748 and 883. Of course, paragraph 16 did not preclude
the possibility of the Councillifting sanctions in ether circumstances - the Council is
always free to adopta fresh decision- but unless it does so, Libya and the United
Kingdom remain bound by the decisions taken in Resolutions 748 and 883.
(7) Libya suggests that the reference to the United Nations Charter and to
princip/es of international law in the preamble to Resolution 731 reinforces its
interpretation of the Resolutions.62
4.55 This argument has two limbs. Libya maintains that requiring it to surrender
the accused to a United Kingdom or United States court would be contrary to the
Montreal Convention (as Libya interprets it). Libya also argues that to impose such a
requirement would be contrary to the rights of the accused to a fair trial, since,
according to Libya's Memorial, a trial in Scotland or the United States would not be
fair. On these grounds, Libya argues that the reference to international law in the
preamble makes it clear that no such requirement was envisaged.
4.56 Leaving aside the fact that it is Resolutions 748 and 883, not 731, which
impose obligations upon Libya, this argument is unfounded. With regard to the ftrst
limb of the argument, the result called for by Resolution 731, and required by the two
later Resolutions, is not in any way incompatible with the Montreal Convention or
ether principles of international law. As already noted in Part 3, the Montreal
Convention specifically envisages trial of an accused taking place in any one of a
number of States, including the State where the alleged offence took place (in this
case, the United Kingdom) and the State ofregistration of the aircraft (in this case, the
63
United States). The Convention does not determine priority between the various
States that it envisages might exercise jurisdiction. In requiring Libya to surrender the
accused for trial in one of those two jurisdictions, the Security Council was
endeavouring to achieve a result which, so far from being contrary to the Convention,
62
Ibid., para. 6.10.
63 See para. 3.31, above.
88was specifically provided for by that Convention .. It i.strue that the Security Council
required Libya to do something which it had not previously been under a specifie
64
obligation to do, but that isin the nature of a mandatory Security Council resolution.
4.57 The argwnent that a requirement to surrender the two accused would violate
their rights to a fair trial is based upon the premise that a fair trial incotland or the
United States wouJd not be possible. Libya has itself accepted both that the trial
process in Scotland meets ali international requirements of fairness and that the
65
accused would receive a fair trial. Moreover, the special inquiry established by the
Secretary-General to inquire into trial procedures in Scotland reported in 1997 that the
accused would receive a trial which would meet international human rights
66
requirements of faimess. lt is clear that no member of the Security Council has at
any time considered that the accused would not receive a fair trial in Scotland.
4.58 Finally, although Libya now argues that the Resolutions did not require the
surrender of the two accused for trial in the United Kingdom or the United States, this
argument is wholly at odds with Libya's interpretation ofthe Resolutions at the time
they were adopted.
4.59 In its Jetter of7 April 1992 to the Court, written in response to the Court's
invitation to the Parties to make submissions regarding the effect of Resolution 748,
Libya stated that:
"Now, by deciding that Libya must comply without any further delay with
paragraph 3 of Resolution 731 (1992), that is to say, respond to the requests
contained in Documents S/23306, S/23308 and S/23309, that is, extradite its
nationals to the Respondents on pain of being subjected to economie and
diplomatie sanctions as from 15 April 1992, the Security Council impairs or
threatens to impair three categories of rights of Libya:
(1) The Security Council compels Libya to ignore the provisions of the
Montreal Convention and bence the enjoyment of the rights conferred
The Libyan argument that a requirement to surrender the two accused would be contrary to the
Charter goes more to the question of validity of the Resolutions (which is discussed in paras.
4.97 to 4.221, below) than to theîr interpretation.
65
See, UN Docs. S/26500 (Enclosure) (Annex 67) and S/26523 (Annex 69), as weil as S/26629
(Annex 71).
See, the report prepared by Dr Dumbutshena and Professor Schermers, UN Doc. S/1997/991, at
p. 15 (Annex 85).
89~--~·······--------~~----~~-~-----~~---~------
upon it by this Convention. This, in itself, is already an impairment of
the rights of Libya.
(2) In obliging Libya to extradite its nationals to the United Kingdom or
the United States, the Security Council seeks to impair the exercise by
Libya of the rights that the Montreal Convention grants to it. For it is
clear that if Libya is compelled to extradite its nationals to one or other
of the two requesting States it will be deprived of its right to opt
between the extradition of these persons or their prosecution with the
assistance of the Respondents. The exercise of this right by Libya is
therefore directly threatened by Resolution 748 (1992); bence it is
important that, in order to protect this right, the Court should indicate
provtstona measures. ,67
4.60 Libyan statements to the Security Council and the Secretary-General, both at
the time the Resolutions were adopted and subsequently, are based upon the same
interpretation of what those Resolutions require Libya to do. For example, Libya's
often repeated protests that the Council acted as the instrument of the United
Kingdom and the United States make no sense if the Resolutions indeed have the
meaning for which Libya now contends. 68
4.61 In summary, the United Kingdom submits that the meaning of the three
Security Council Resolutions is perfectly clear. Those Resolutions require that Libya
provide a full and effective response to the requests - not merely sorne of the requests
- made by the United Kingdom, France and the United States in the docwnents to
which the Resolutions refer. Those requests clearly included a request for the
surrender of the two accused to stand trial in a United Kingdom or United States
court. The text of the Resolutions and their drafting history make clear that the
Security Council required Libya, inter alia, to ensure that the two accused appear for
trial in a Scottish or United States court That is confirmed by the way in which the
Resolutions have been interpreted in practice by the Council, the Secretary-General
and by States, including Libya herself. Compliance with that requirement bas been at
the heart of ali the exchanges between the Parties to these proceedings and between
Libya and the Security Council ever since the adoption of Resolution 748. The
central position which the requirement to ensure that the accused appear for trial in a
Scottish or United States court occupies in the Resolutions is further demonstrated by
67 Libyan letter of 7 April 1992, para. 2 (translation by the Court).
68 Libyan Observations, para. 2.11.
90the express provision in Resolution 883 for the suspension of the sanctions in the
event of Libyan cornpliance with that requirement. It is also confinned by the
provisions of Resolution 1192 (1998). 69
69 Annex 87. See Part 5, below.
91 Chapter3
The Legal Effects of Security Council Resolutions
748 (1992) and 883 (1993)
4.62 Whatever the precise legal effect of Resolution 731 (a matter which it is not
necessary to consider in the present proceedings), it is clear that Resolutions 748 and
883 contain legally binding decisions of the Security Council. They give rise to
obligations for Members of the United Nations under Articles 24, 25 and 48 of the
United Nations Charter which, by virtue of Article 103 of the Charter, prevail over
70
obligations under any other international agreement.
Section A: Resolutions 748 and 883 create Binding Legal Obligations for Libya
and the UnitedKingdom
4.63 In the Namibia Opinion, the Court stated that:
"The language of a resolution of the Security Council should be carefully
analysed before a conclusion can be made as to its binding effect. In view of
the nature of the powers [of the Council] under Article 25 [of the United
Nations Charter], the question whether they have been in fact exercised is to
be detemrined in each case, having regard to the terms of the resolution to be
interpreted, the discussions leading to it, the Charter provisions invoked and,
in general, ali circumstances that might assist in detenni71ng the legal
consequences of the resolution of the Security Counci1."
4.64 It is conunon ground that Chapter VII of the United Nations Charter gives
the Security Council the power to take binding decisions. Thus, Article 39 provides
that:
"The Security Council shall determine the existence of any threat to the
peace, breach of the peace, or act of aggression and shaH make
recommendations, or decide what measures shall be taken in accordance
with Articles 41 and 42, to rnaintain or restore international peace and
security." (Emphasis added)
70
The effect of Articles 25 and 103 is considered at paras. 4.76 to 4.96, be1ow.
71 Legal Consequences for States of the Continued Presence of South A.frica in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ
Reports, I97l, p. 16at para. 114.
92Once the Council has made such a determin_ation, Article 41 g1ves the Council
extensive powers to decide upon measures necessary to address the threat to the peace:
"The Security Council may decide what rneasures not involving the use of
arrned force are to be employed to 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 and of rail, sea,
air, postal, telegraphie, radio, and ether means of communication, and the
severance of diplomatie relations."
4.65 The duty of Members of the United Nations to give effect to such decisions
is implicit in Article 24(1) of the Charter, which states:
"(1) In order to ensure prompt and effective action by the United Nations,
its Members confer on the Security Council primary responsibility for the
maintenance of international peace and security, and agree that in carrying
out its duties under this responsibility the Security Council acts on their
behalf.
(2) In discharging these duties the Security Council shall act in accordance
with the Purposes and Principles of the United Nations. The specifie powers
granted to the Security Couneil for the discharge of these duties are laid down
in Chapters VI, VII, VIII and XII."
That duty is expressly stated in Article 25:
"The Members of the United Nations agree to accept and carry out the
decisions ofthe Security Council in accordance with the present Charter."
In addition, Article 48(1) provides that:
"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 of them as the Security Council
may determine."
4.66 The scope of the obligation under Articles 25 and 48 was considered by the
Court in the Reparations Opinion, where it said that:
"The Charter has not been content to make the Organisation created by it
merely a centre 'for harmonizing the actions of nations in the attainment of
these comrnon ends' (Article 1, para 4). It has equipped that centre with
organs, and has given it special tasks. It has defined the position of the
Members in relation to the Organisation by requiring them to give it every
93 assistance in any action undertak:en by it (Article 2, para. 5), and to accept
and carry out the decisions of the Security Council." 72
4.67 Similarly, in the Namibia Opinion, the Court stated that:
"Thus when the Security Council adopts a decision under Article 25 in
accordance with the Charter, it is for member States to comply with that
decision, including those members of the Security Council which voted
against it and those Members of the United Nations who are not members of
the Council. To hold otherwise would be to deprive this principal organ ofits
essential functions and powers under the Charter." 73
4.68 \Vhile the Council may make non-binding reconunendations under Chapter
VII of the Charter, in accordance with the normal practice of the Council over many
years, the Council indicates its intention to take a binding decision by such factors as
the inclusion in a resolution of a determination under Article 39 that there exists a
threat to international peace and security, the express invocation ofChapter VII of the
Charter and the use of mandatory language in the operative paragraphs. All of those
74
indicators are to be found in Resolutions 748 and 883.
4.69 In the seventh preambular paragraph of Resolution 748 the Council
determined that:
"the failure by the Libyan Government to demonstrate by concrete actions its
renunciation of terrorism and in particular its continued failure to respond
fully and effectively to the requests in resolution 731 (1992) constitute a
threat to international peace and security."
The CoWlcil's decision in paragraph 1 of that Resolution, that Libya must comply
with the requests of the three Governments, was stated in terms to have been taken
under Chapter VU of the Charter.
72 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Op1CJon,
Reports, 1949, pp. 174 and 178.
73 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstandingecurity Council Resolution 276 (1970), Advisory OpinioICJ
Repons, 197l,p. 16,atp. 54.
74 Resolution 1192 (1998) (Annex 87), which îs considered in Part 5, below, similarly îndicates
that it is întended to be legally bîndîng.
944.70 Paragraphs 1to 6 of Resolution 748 use mandatory language, stating that the
Council "decides" that the Libyan Government must:
"comply without any further delay with paragraph 3 of resolution 731"
(paragraph 1)
and
"commit itself definitively to cease ali fonns of terrorist action and ali
assistance to terrorist groups and that it must promptly, by concrete actions,
demonstrate its renunciation ofterrorism" (paragraph 2)
and that ali States shall adopt the measures contained in paragraphs 3 to 6.
4.71 Resolution 883 reiterated the requirements of Resolution 748, so adding to
the elements that constituted the threat to international peace and security. The
Council now found a threat to international peace and security by virtue of the failure
of Libya to respond fully and effectively both to the requests of the Governments and
75
to the decisions relating thereto contained in Resolutions 731 and 748. Again, the
demand for compliance contained in paragraph 1 of Resolution 883 was expressed as
being made under Chapter VII.
4.72 Resolution 1192 recalled the provisions of Resolutions 748 and 883, thereby
including the determinations of the existence of a threat to the peace in those earlier
Resolutions. Again, the Resolution is expressly stated to have been adopted under
Chapter VII of the Charter and uses mandatory language.
4.73 It is therefore unnecessary to consider ali the circumstances in which a
resolution of the Security Council might be held to impose legal obligations in
accordance with the principles identified by the Court in its Namibia Advisory
76
Opinion. In adopting Resolutions 748 and 883, the Security Council expressly
determined that there existed a threat to international peace and security and stated
that it was acting under Chapter VII of the Charter. The principal operative
paragraphs of the Resolutions use the mandatory _ forrn in stating decisions of the
Council. Accordingly, Member States of the United Nations are required, under
75 Preambularparagraph6.
76 NamibiaOpinion,loc.cit. note 73,above, atparas. 114-116.
95Article 25 of the Charter, to accept and carry out the decisions of the Council stated in
the Resolutions.
4.74 Thus, it has never been doubted that the Resolutions impose binding
obligations upon ali States to apply the sanctions measures set out therein. The
provisions which impose sanctions are not, however, the only binding decisions
contained in the Resolutions. Those sanctions were împosed in support of the
demands made upon Libya in paragraphs 1 and 2 of Resolution 748 and reiterated in
paragraph 1 of Resolution 883. To impose measures binding on ali Members of the
United Nations under Chapter VII in support of demands on Libya which were not
themselves binding, would have been futile and illogical. Moreover, the paragraphs
statingwhat is required of Libya are themselves expressly stated to have been adopted
under Chapter VII and are couched in mandatory terms. It follows that, under Articles
24, 25 and 48 of th.eCharter, Libya is obliged to accept and carry out those decisions.
Since the Resolutions also impose legal obligations on the United Kingdom, the same
provisions of the Charter also require the United Kingdom to accept and carry out the
decisions applicable to it.
4.75 Libya itselfhas not contested that, in so far as they are valid, Resolutions 748
and 883 are legally binding on ali States including Libya. It questions the
interpretation of the Resolutions and challenges their validity on a number of grounds,
but it does not contest that, ifvalid, the two Resolutions impose legal obligations.
Section B: The Obligations of Libya and the United Kingdom to Comply with the
Decisions in Resolutions 748 and 883 Take Priority over Obligations
under the Montreal Convention
4.76 Once it is established that Resolutions 748 and 883 are legally binding, then
their effect upon the obligations of the Parties and upon the present proceedings
becomes apparent, as the Court itself recognised (with regard to Resolution 748) in its
77
1992 decision in this case. Those judges who dissented from the 1992 decision did
77 See para. 4.4, above.
96not disagree with the proposition,that, if Resolution 748 was valid, Article 103 applied
78
to the obligation to give effect to it.
4.77 The relationship between the obligations of Libya and the United Kingdom
under Article 25 of the Charter and the position of those States under the Montreal
Convention is made clear by Article 103 of the Charter, which provides that:
"In the event of a conflict between the obligations of the Members of the
United Nations under the present Charter and their obligations under any
other international agreement, their obligations under the present Charter
shall prevail."
The priority accorded by Article 1 03 is not confined to the provisions of the Charter
but extends to ali the obligations of the Members Wlder the Charter. 'It therefore
applies to the obligation under Articles 24, 25 and 48 of the Charter to carry out
binding decisions of the Security Council.
4.78 The need to provide for the possibility of a conflict between the obligation of
Members to carry out a decision of the Council and the provisions of other treaties was
clear at the time that the Charter was drafted. It was recognised that a conflict might
arise either
" because of intrinsic inconsistency between the two categories of
obligations or as a result of the application of the provisions of the Charter
under given circumstances: e.g., in the case where economie sanctions were
applied against a state which derives benefits or advantages from previous
agreements contrary to said sanctions." 79
Article 103 was designed to address both types of conflict.
4.79 The leading commentaries on the Charter recognise that Article 103 applies
in the event of a conflict between the obligation of Members under Article 25 to carry
out a decision of the Council and their obligations under other international
7S Provisional Measures Order, Dissenting Opinion of Judge Bedjaoui at pp. 4647; Dissenting
Opinion of Judge Weeramantry at p. 67; Dissenting Opinion of Judge Ranjeva at pp. 73-74.
Dissenting Opinion of Judge Ajibola at p. 88. Judge El-Kosheri noted, at p. 101, that non
compliance with a ChapterVII decision constituted a threat to the peace.
79
UNCIO, Vol. 13, Doc. 933 (IV/2/42(2)), p. 708 (Annex 95).
97---~--------------------------------------------------------------~-----------
agreements. Thus, Professer Bernhardt, writing in the Commentary on the Charter
edited by Professer Simma, states that:
"Art. 103 does not say that only the Charter shall prevail, but refers rather to
obligations under the Charter (in the French text: 'obligations ... en vertu de
la présente Charte'). It is clear that this formula includes ali obligations
which result immediately and directly from the Charter, such as the
obligation to settle disputes only by peaceful means and not to use force.
However, Art. 103 goes further. To the extent that the Charter provides for
the competence of United Nations organs to adopt binding decisions,
rneasures taken in accordance with such provisions can lead to obligationsof
the members that prevail under Art. 103, notwithstanding any other
cornmitments of the members concemed. This holds true for decisions and
enforcement measures of the Security Council under Chapter VII. As far as
members of the United Nations are 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, accord tonArt. 103, to give these obligations priority
over any other cornmitments." 0
4.80 It has also been the practice of the Security Council to treat Article 103 as
applicable to the obligation to carry out its decisions, so that the Council has
frequently reminded Members that their obligation to give effect to decisions
imposing sanctions under Chapter VII of the Charter must be honoured,
notwithstanding the provisions of other international agreements. For example, in
Resolution 670 (1990), which concemed air communications with Iraq, the Council
expressly recalled the provisions of Article 103, and then decided that:
".. . ali States, notwithstanding the existence of any rights or obligations
conferred or imposed by any international agreement or any contract entered
into or any licenceor permit granted before the date of the present resolution,
81
shaHdeny permission to any aircraft to take off from their territory .... "
4.81 Similarly, in Resolution 1160 (1998), the Security Council decided that:
". .. ali States shall, for the purposes of fostering peace and stability in
Kosovo, prevent the sale or supply to the Federal Republic of Yugoslavia,
including Kosovo, by their nationals or from their territoriesor using their
flag vessels and aircraft,of anns and related matériel of ail types, such as
80
Bernhardt. in Simma (ed.), The Charter of the United Nations: A Commentary (l995), p. 1120.
See,also, the views which tend in the same direction, espoused by Professor Flory, in the
Commentary edited by Professors Cot and Pellet, La Charte des Nations Unies (1991), pp.
1382-1383.
8! Preambular paragraph 12, and paragraph 3.
98 weapons and ammunition, military vehiçles ,and equipment and spare parts
for the aforementioned, ·~dshall prev 'kminngtand training for terrorist
activitiesthere;"82
and called upon:
"ali States and all international and regional organisations to act strictly in
conformity with this resolution, notwithstanding the existence of any rights
granted or obligations conferred or imposed by any international agreement
or of any contract entered into or any license (sic) or permit granted p8ior to
the entry into force of the prohibitions imposed by this resolution ... "
Other examples are considered at paragraphs 4.92 and 4.207 to 4.212, below.
4.82 In its Observations on the United Kingdom's Preliminary Objections and in
the oralhearings in 1997, Libya sought to avoid the obvious implications of Articles
25 and 1 03 by arguing:
(a) that Articles 25 and 103 are not applicable to decisions of the Council
which are invalid under the United Nations Charter;
(b) that Articles 25 and 103 do not give the Council the power to alter
international law;
(c) that, in any event, the Montreal Convention is both lexposterior and lex
specialis as regards the United Nations Charter and thus takes priority
84
in the present case.
4.83 The first of these arguments in fact relates to a quite different point, which
will be considered in paragraphs 4.97 to 4.221, below. If the Court accepts the
arguments regarding the validity of Resolutions 748 and 883 which the United
Kingdom there advances, then the question of validity is disposed of. In those
circumstances, the obligation of Libya and the United Kingdom to carry out the
decisions of the Council in accordance with Article 25 is clearly engaged and any
82 Resolution 1160 (1998), paragraph 8.
83
Ibid., paragraph 10.
84 Libyan Observations, paras. 4.23-4.26 and 4.51-4.54; Professor David, CR 97/20, pp. 46-48,
paras.4.17-4.2!.
99conflict with their obligations under the Montreal Convention is resolved by Articles
25 and 103, in the manner identified by the Court in 1992.
4.84 The second argument is based upon a misunderstanding of the issue before
the Court. The United Kingdom has nowhere suggested that the Council can, or has
purported to, change the law. Nor is that what the Court held in its 1992 decision.
4.85 To say that Article 103 applies to the obligation to give effect to decisions of
the Security Council is not to say that the Council can change the law. The United
K.ingdom has never argued that the Council functions as a legislature in the sense of
being able to effect changes of a permanent character in general rules of international
law. Resolutions 748 and 883 did not in any way purport to alter the Montreal
Convention (or any other international agreement) and that Convention remains in
force, including as between Libya and the United K.ingdom, notwithstanding those
Resolutions. It is simply a question of detennining the priority between the
obligations of ali United Nations Members to carry out the decisions contained in
those Resolutions and their obligations under the Montreal Convention. That is the
question to which Articles 25 and 103 furnish the answer.
4.86 Where the Council takes a decision in the exercise of its powers under
Chapter VII of the Charter, then the Council has the power to require States to act in a
manner which departs from what would otherwise be their rights or obligations under
international law, and the obligation of Members to carry out that decision prevails
over their obligations under other international agreements for so long as that decision
remains in force.
4.87 The fmal Libyan argument is plainly wrong. The principle that a treaty
which is lex posterior or lex specialis prevails over an earlier or more general treaty
does not apply to the United Nations Charter. That follows necessarily from the place
of the Charter in the system of international law and from general principle, as well as
from the terms of Article 103 of the Charter. This is recognised, for example, in
Article 30 of the Vienna Convention on the Law ofTreaties 1969 which, in setting out
the general rule for priority between different treaties, expressly states that its
provisions are "subject to Article 103 of the Charter". The special status of the
Charter has also been recognised by the Court both in the 1992 decision in the present
100case and in its decision in the Case concerning Military and Paramilitary Activities in
and against Nicaragua. 85 In addition, the agreement by which the International Civil
Aviation Organisation, under whose auspices the Montreal Convention was adopted,
became a specialised agency requires ICAO to render "such assistance to the Security
Council as that Council may request, including assistance in carrying out decisions of
the Security Council for the maintenance or restoration of international peace and
86
security". While that agreement was concluded before the negotiation of the
Montreal Convention, there is no hint that any of the specialist agreements concluded,
or to be concluded, under the auspices of ICAO was to tak:e priority over such
decisions- quite the contrary.
4.88 That obligations under the Charter prevail over the specialist agreements
regarding civil aviation has also been expressly recognised in the course of the
discussions within ICAO on a proposed convention for sanctions to be imposed upon
87
States which engaged in, or supported, terrorist acts against civil aviation. The
minutes ofthe Special Sub-Committee ofthe ICAO Legal Committee stated that:
"It was unanimously agreed that, in accordance with Article 103 of the
United Nations Charter, in the event of a conflict between the obligations of
the members of the United Nations under the Charter and their obligations
under.the8roposed new instrument, their obligations under the Charter would
prevrul."
4.89 Similarly, during a meeting of the ICAO Legal Committee concerning the
Montreal Convention, the delegate of the United Arab Republic commented that "no
international convention or instrument could in any way contradict or amend the
Charter which, according to Article 103, gave supremity [sic] over any other
89
international agreement." Other delegates also made clear that there could be no
ss Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
Jurisdiction and Admissibîlîty, Judgment, ICJ Reports, 1984, p. 392, at paras. 106-107.
Agreement between the United Nationsand theInternational Civil Aviation Organisation, 1947,
Article VII; 8nited Nations Treaty Series (1947) 324 (Annex 96).
87 For further considerationthese proposais, see paras. 4.to4.185, below.
88
Legal Committee, Twentieth Session, Montreal,-30January 1973, !CAO Doc. 9050- LC/169-
2, p. 112, para. 63.2.
89 Legal Committee, Eighteenth Session, London, 29September- 22 October 1970, ICAO Doc.
8936-LC/164-1, p.228, para 20.
101question of any treaty prevailing over the Charter merely because it was lex specialis
90
or lex posterior.
4.90 Indeed, it is impossible to see how the Security Council could function
effectively in discharging its primary responsibility for the maintenance of
international peace and security if agreements concluded after the adoption of the
91
Charter were to be given priority. Such an approach would, in effect, allow a group
of States to contract out of decisions of the Council on particular subjects - and thus
contract out of the Charter system- by concluding an agreement on a specifie subject
amongst themselves.
4.91 In the oral hearings in 1997, Counsel for Libya effectively conceded this
point. Professor David said that:
". .. by asserting the lex specialis or lex posterior character of the Montreal
Convention, Libya is not trying to claim that the Security Council could never
substitute its action for that resulting from the application of an international
convention. "92
4.92 Counsel for Libya recognised that the Security Council bad taken such action,
for example, when it required States to surrender accused persans for trial before the
International Criminal Tribunats for Yugoslavia and Rwanda, notwithstanding the aut
dedere aut punire provisions of the Geneva Conventions or the terms of the Genocide
Convention, and when it required action inconsistent with air services agreements in
the case of Iraq and Yugoslavia. He did not contest the validity ofthose actions by the
Council or the application of Articles 25 and 103 of the Charter in those cases.
Instead, Professer David sought to distinguish those cases from that of Lockerbie by
arguing that:
"... it is manifestly clear that in aU cases where the nonnally applicable lex
specialis has indeed been set aside, the prevailing situation was either a
classic one of a threat to international peace and security or one in which no
problem of evidence or charges arase, unlike the Lockerbie tragedy.'m
90 See, in particular, the commbytthe delegate of Francibid.paras. 11·13.
91
This matter is considered further in paras. 4.160 to 4.163 and 4.207 to 4. 212, below.
CR 97 !20,p. 46, para. 4.18 (translbyithe Court).
93 Ibid.p. 48, para. 4.21 (translabyothe Court).
1024.93 In the submission of the United Kingdom, this passage from Professer
David's speech exposes the flaw at the heart of Libya's case. The ground on which
Libya seeks to distinguish the Lockerbie Resolutions from those relating to
Yugoslavia, Rwanda or Iraq is the assertion that those cases involved threats to
international peace and security and the Lockerbie case does not. In other words,
Libya accepts that the Council bas the power to require States to act in a manner
different from that of the aut dedere, aut punire provisions of a treaty which is lex
specialis, provided that there is a "real" threat to international peace and security.
Libya's argument on the application of Articles 25 and 103thus becomes just another
aspect of its challenge to the substantive validity of Resolutions 748 and 883 and
stands or falls on its assertion that the Court should decide that the Council was wrong
to make a determination underArticle 39 in those Resolutions.
4.94 The Court cannot, however, substitute itsassessment of this question for that
of the Council. The determination by the Council, when it adopted Resolution 748,
that there was a threat to international peace and security must be regarded as
definitive.94 Once that is accepted, Libya's argument that the Montreal Convention is
lexposterior and lex specialisfalls away.
4.95 As for Libya's point that the Lockerbie case is distinguishable on the ground
of alleged problems of evidence, it is difficult to see how that could be relevant tothe
issue under consideration. Neither the Security Council nor this Court bas been called
upon to pronounce upon the evidence or charges against the two accused, any more
than the Council attempted to pronounce upon the evidence against individual persans
who might be accused before the Yugoslav or Rwanda Tribunats.
4.96 Libya's arguments regarding the effects of the Securitr Council Resolutions
and the implications of Articles 25 and 103 ultimately lead back to its arguments
regarding the validity of those Resolutions and, in particular, its view that there is no
threat to international peace and security. Libya urges that view, in preference to the
determination by the principal organ charged under the Charter with deciding that
question. Once the validity of Resolutions 748 and 883 is recognised, as the United
Kingdom submits in paragrapbs 4.97 to 4.221, below, it must be, wbatever obligations
94 See paras. 4.146 to 4.159, below.
103might exist Widerthe Montreal Convention cannot prevail over the obligations of
Libya and the United Kingdom..to carry out the decisions contained in those
Resolutions.
104 Chapter4
The Validity of the Security Council Resolutions
Section A: Introduction
4.97 The main thrust of the Libyan Memorial and subsequent pleadings has been
that if Resolutions 748 and 883 purport to require Libya to surrender the two accused
for trial in Scotland or the United States, then those Resolutions must be treated as
invalid as being ultra vires the powers of the Security Council.
4.98 The Libyan argument is framed in tenns of a plea that the Court should find
that it bas a power to review acts of the Council in order to ensure that the Council
remains subject to the rule of law. The approach is thus to invite the Court to
challenge the decisions of the Council. The United Kingdom respectfully submits
that this approach misrepresents the issues before theCourt.
4.99 The United Kingdorn will present its submissions on this 1ssue by
developing the following propositions:
(a) The relationship between the Court and the Council is not a
hierarchical one but, rather, a relationship based upon co-operation
between two independent organs of equal standing. Libya' s
submissions in the present case undermine that relationship
(paragraphs 4.100 to 4.109);
(b) Security Council Resolutions 748 and 883 were adopted in the proper
manner and by the required number of votes and are, accordingly,
formally valid (paragraphs 4.110 to 4.128);
(c) The Court has no power to question the validity of the Security
Council Resolutions on the grounds relating to their substantive
validity which have been advanced by Libya (paragraphs 4.129 to
4.173);
105 (d) Alternatively, even if the Court does have such a power, the
Resolutions in the present case are valid and must be treated as such
(paragraphs 4.174 to 4.221).
Section B: The Relationship between the Court and the Council is not
.Hierarchical
4.100 The United Kingdom bas set out its submissions on the relationship of the
Court and the Security Council in Part 4 of its Preliminary Objections. It will not
repeat those submissions here but merely reaffirms its reliance upon them and
smnmarises the main points. The United Nations institutional system envisages the
different organs working alongside each other mutually to reinforce the attainment of
the purposes and objectives of the United Nations. The Charter does not create a
hierarchical relationship between the principal organs. However, coherence, political
effectiveness and legality are ali provided for through the diverse allocation of
competences among the different organs, and, concomitantly, through "limitations on
95
their activities ... ratione materiae". While the Court is the principal judicial organ
of the United Nations, the Security Council is charged, under Article 24 of the
Charter, with "primary responsibility for the maintenance of international peace and
security" and, in discharging that responsibility, the Council acts on behalf of ali the
Members ofthe Organisation.
4.101 To say that the Court deals only with legal matters, and the Security Council
only with political matters, is to oversirnplifY. Judicial decision-making necessarily
has a political impact. Conversely, in the exercise of its primary responsibility for the
maintenance of international peace and security, the Security Council has to make
determinations ofrelevance to the legal sphere. Each organ has its own competences,
but in terms of subject matter they are not to be viewed as hermetically sealed or
absolutely rigid. This is no more than is to be expected, because the competences of
international organisations are not divided up by reference to legislative, executive
95
Rosenne, Law and Practice of the International Court of Justice (3rd ed., 1997), vol. 1,p. 113.
106and judicial powers. Thus the principle of separation of powers cannot be tully
applied in the United Nations system. 96
4.102 There are no provisions in the Charter enabling States to whom resolutions
of the Security Council are addressed to seek judicial review of them. This matter
will be addressed in detail below. It is sufficient to say here that the absence of such
provisions was not due to any oversight but was a matter of conscious choice at the
time the Charter was adopted. Thus, in so far as there can.be any judicial scrutiny of a
resolution in contentious proceedings, it can only arise in a manner incidental to the
determination of the issues to be resolved. 97 By contrast, in an advisory opinion, a
resolution may necessarily assume a more central place in the Court's scrutiny.
Certain organs of the United Nations or specialised agencies may themselves,
tlrrough a request for an advisory opinion, seek advice as to what course of action
they may legally take in the execution of their tasks. This may entail the scrutiny of a
resolution, or resolutions, already adopted by one or other of the political organs. The
98 99
Expenses Case and the Namibia Case a:ffordexamples.
4.103 The key elements in the relationship between the Court and the Security
Council may be summarised thus:
(1) the relationship between the main organs of the United Nations is not
hierarchical;
96
As Judge Lachs put it in his separate opiinothe Provisional Measures phase of this case:
"The framers of the Charter,inproviding for the existence of several main organs, did not
effect a complete separation of powers, nor indeed is one to suppose that such was their
aim." (Provisional Measures Order, ICJ Repons, 1992, p. 3 at p. 26.)
97 ln paras. 3.8·3.9 of the Libyan ObseJVations, Libya misrepresents the position taken in this
regard by theUnited Kingdom in para. 4.18 of its Preliminary ObjectionsThe point there
made by the United Kingdom, and repeated here, is simply that the nature of contentious
proceedings is such that they cannot take the form of anything resembling judicial review
proceedingsin the national law sense.
98 Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter). Advisory
Opinion,ICJ Reports, 1962, p. 151.
99 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ
Reports, 1971, p. 16.
107 (2) the functions are characterised by a delimitation ratione materiae;
(3) at the same time, there is a certain functional overlapping of
competences.
As Judge Lachs stated in an earlier phase ofthis case:
"One may therefore legitimately suppose that the intention of the founders
was not to encourage a blinkered parallelism of functions but a fruitful
100
interaction."
4.104 It is common ground that, to quote Judge Lachs once more:
"While the Court has the vocation of applying international law as a
universal law, operating both within and outside the United Nations, it is
bound to respect, as part of that law, the binding decisions of the Security
Council." 101
That role - respect for binding decisions of the Security Council as part of the
vocation of applying international law within the United Nations- may entai! certain
functions of a properly judicial character for the Court. It may not be entirely clear
what the Security Council has decided; in an appropriate case, the Court may have to
interpret the meaning of particular resolutions and clarify the obligations to which
102
they give rise. Again, an issue may arise as to whether a particular resolution is
103
binding.
4.105 In the present case, the Court may interpret Security Council Resolutions
731, 748 and 883 insofar as that is necessary to enable it to take account of their legal
effect on the dispute which it has found to exist between Libya and the United
Kingdom and which cornes within Article 14 of the Montreal Convention. 104 There
!00 Provisional Measures Order, ICJ Reports, 1992p.3 atp.26.
101
Ibid.
102
See paras.4.9 to 4.61, above.
103 See paras. 4.62 to 4.75, above.
104
The United Kingdom's submissions regarding the interpretation of the Resolutions are set out at
paras. 4.35 to 4.61, above.
108is no doubt that, in the present case?the Court has before it binding decisions,it being
entirely clear that Security Council Resolutions 748 and 883 were adopted under
Chapter VII of the Charter and expressed in mandatory terms. 105
4.106 In addition, in order to respect a binding decision of the Security Council as
part of its vocation of applying international law, the Court may need to satisfy itself
that that decision bas been adopted by the required voting majorities and in
accordance v.r:iththe correct procedure ("formai validity"). The Court bas already, in
the Namibia case,106 addressed arguments of aState that a particular voting practice
of the Security Council was unlawful, thus rendering invalid resolutions adopted
thereby. The Court there affirmed the Security Council's longstanding practice that
abstention by a permanent member constituted a "concurring vote" for the purposes
of Article 27(3).
4.107 In the present case, Libya has put in issue the interpretation of Security
Council Resolutions 748 and 883 and the United Kingdom has responded to those
arguments in paragraphs 4.9 to 4.61, above. Libya bas also, somewhat belatedly, put
in issue the formai validity of those Resolutions. The United Kingdom will respond
to that challenge in paragraphs 4.110 to 4.128, below. Libya's main challenge,
however, is to the substantive validity of the Resolutions. Libya argues that in tak.ing
decisions under Chapter VII of the Charter the Security Council was guilty of an
abuse, because:
(a) there was no threat to internationalpeace and security;
(b) the measures adopted by the Security Council, and, in particular, the
requirement that Libya surrender the two accused for trial in Scotland
or the United States, were outside the powers of the Council;and
105
See paras. 4.62 to 4.96, above.
106
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970}, Advisory Opinion, ICJ
Reports, 1971, 16 at paras. 19-22.
109 (c) there is no justification for the continued application of sanctions to
Libya, because Libya has complied with the requirements of the
Security Council Resolutions.
4.108 The issue which is thus put-before the Court is whether the Court has the
power, in contentious proceedings, to reopen the Security Council's determination
that there existed a threat to international peace and security; to reassess the measures
chosen by the Security Council as appropriate to address that threat; orto reconsider
the Security Council's assessment that Libya had not done what the Security Council
required of it.
4.109 The United K.ingdom maintains that,in view of the nature of the relationship
between the Court and the Council, what Libya is asking the Court to do is precisely
what the Court may not do, namely to enter into matters which are reserved to the
Security Council alone. The argument to that effect is set out in paragraphs 4.129 to
4.173, below. In the alternative, the United Kingdom submits that, if the Court had
the power to scrutinise the validity of Security Council resolutions on these grounds,
Resolutions 748 and 883 are nonetheless to be regarded as valid. That alternative
argument is set out in paragraphs 4.174 to 4.221, below.
Section C: The Security Council Resolutions were adopted in the Proper Manner
4.110 In its Observations on the United Kingdom's Preliminary Objections, Libya
challenged the formai validity of the three Security Council Resolutions on the
ground that, because of Article 27(3) of the United Nations Charter, the United
Kingdom, the United States and France should have abstained from voting on what
107
became Resolution 731. lbis argument was not raised in Libya's Memorial, and is
obviously inconsistent with the fact that Libya bas expressly stated its acceptance of
108
Resolution 731.
107 Libyan Observations, paras. 4.43-4.48.
108 See, fn. 119 to para. 4.117, beloSecurity Council Resolution 1192 (1998) (Annex 87),
which is discussed in Part 5, beisatsorelevant in this regard.
110 ' ·.,,.,
4.111 It is clear, in any event, from the text of Artide 27(3) that the duty to abstain
under Article 27(3) applies only to "decisions under Chapter VI, and under paragraph
3 of Artide 52", and when the Security Council is dealing with a dispute, and then
only to a party to that dispute. As has already been demonstrated, Resolutions 748
and 883, were adopted under Chapter VII of the Charter. The provision on abstention
in Article 27(3) is therefore entirely irrelevant to those Resolutions.
4.112 In an attempt to avoid this conclusion, Libya adopts a line of argument,
which runs as follows:
(a) The duty to abstain under Article 27(3) was applicable to the voting on
Resolution 731;
(b) Resolution 731 is accordingly invalid;
(c) Resolutions 748 and 883 are "grafted upon" Resolution 731 and,
accordingly, are also invalid; 109
(d) Further, or in the alternative, the duty to abstain under .Article 27(3) is
applicable when the Council acts under Chapter VII if it is acting in a
quasi-judicial capacity.
The United Kingdom submits that every step in this process ofreasoning is wrong.
(1) France, the United Kingdom and the United States were not required to abstain
from voting on Resolution 731.
4.113 Article 27(3) of the Charter requires a State to abstain from voting only
when (a) the Security Council is dealing with a dispute and (b) the State concemed is
a party to that dispute. The fact that the Council is acting under Chapter VI, rather
than Chapter VII, of the Charter by no means implies that the Council is dealing with
a dispute between States. On the contrary, the practice of the Council over sorne fifty
years, confmned by the Court, is to distinguish between cases in which the Council is
W'J LibyanObservations,para.4.44.
111concemed with a 'dispute' and those in which it addresses a 'situation'. Moreover,
Article 34 of the Charter, in Chapter VI, expressly distinguishes between "disputes"
and "situations". By providing, in Article 27(3), that a party to a "dispute" shaH
abstain from participating in the voting, it necessarily follows that the provision does
110
not apply where the Security Council is examining a "situation".
4.114 It is well established that it is the Security Council alone which decides
whether it is dealing with a dispute or a situation and, therefore, whether or not a
State is required to abstain from voting. This bas been the invariable practice of the
Council and has been expressly confmned by the Court. In the Namibia case, the
Court stated that the proviso to Article 27(3) "requires for its application the prior
determination by the Security Council that a dispute exists and that certain members
111
of the Council are involved as parties to such a dispute." The same view has been
taken by authoritative commentaries on the Charter. Thus, Bailey and Daws
conunent that "it is the Council itself, rather than the parties, that determines whether
a dispute exists." 112 Similarly, the Commentary on the Charter edited by Professer
Simma states: "it is the Security Council that decides whether a dispute has arisen; a
113
dispute does not automatically·exist as saon as this is claimed."
110 Article 34 of the Charter provides that: "The Security Council may investigate any dispute, or
any situation which might lead to international friction or give Tiseto a dispute, in order to
determine whether the continuance of the dispute or situation is likely to endanger the
maintenance of internationalpeace and security".
Ill Legal Consequences for States of the Continued Presence of South Africa in Namibîa (South
West A.frica) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ
Reports, 1971,p. 16at para. 26.
Ill
Bailey and Daws, The Procedure of the UN Security Councii, (3rd ed., 1998), p. 257.
113 Commentary on the Charter of the United Nations (1995), p. 460 (Commentary by Professor
Brunner on Article 27). See, for example, in relation to the Security Council's consideration in
1951 of the restrictions imposedon use of the Suez Canal (in response to a request from Israel),
Egypt's contention that the matter constituted a dispute, and that States that had protested to the
Egyptian Govemment about the restrictions (France, the Netherlands, Turkey, the United
Kingdom, the United States) should be regarded as parties thereto and were thus requireto
abstain from any voting. The Security Council did not accept the Egyptian argument and the
States in question voted on what became Resolution 95. Had the Egyptian argument been
accepted, the Security Council would not have been ableto deal with the issue at ali, since the
Charter at that time required that seven Membersof the Council had to cast affirmative votes
for a decision to be adoptedand the effect of the five States being required to abstain would
have been to reduce to onlyix the number of Council members entitled to vote.
112 .:...:_.,.
4.115 Speaking before the adop!iop_of Resolutior: 731, the representative of Libya
claimed that there was a dispute between Libya, on the one band, and the United
Kingdom and United States on the other. He maintained that the United Kingdom
114
and United States therefore bad a duty to abstain. The question whether or not the
proviso to Article 27(3) should be applied was therefore before the Council when it
came to vote (although Libya bad given no indication, at that stage, that it regarded
France, as weil as the United Kingdom and the United States, as obliged to
abstain). 115
4.116 It is clear from the record that, in this instance, the Security Council
considered that it was examining a situation with a far wider ambit than the limited
dispute portrayed by the Libyan representative and, notwithstanding the invocation of
Article 27(3), did not consider that ît was dealing with a dispute to which members of
the Council were party. Thus, far from there being a determination by the Security
Council that a dispute existed and that certain members of the Council were involved
116
as parties to that dispute, not a single member of the Council suggested that the
proviso to Article 27(3) was applicable. On the contrary, a number ofmembers made
statements to the effect that international terrorism was a threat to the international
community as a whole, and was not simply a matter of concem to the United
Kingdom and the United States. 117 It is therefore apparent that the Council took the
considered view that it was dealing with a situation of wide application, not a dispute
between particular States.
4.117 Since the proviso ta Article 27(3) was not applicable, it follows that there is
no basis for Libya's assertion that Resolution 731 was invalidly adopted. However,
114 UN Doc. S!PV. 3033, pp. 24-25 (Annex 10). The contention that the Council was dealing wîth
a dispute was rejected by the representativethe United Kingdom; Ibid.p. 104
115
It did, however, make a statement to that effect in the debate on Resolution 748, UN Doc.
S/PV. 3063, pp. 7-8 (Annex 11).
1!6 See, Legal Consequencesfor States of the Continued Presence of South Africa in Namibia
{South West Africa) notwithstanding Security Council Resolution 276 {1970), Advisory
Opinion, ICJ Reports, 1971, p. 16 at para 26.
117 See, in particular, the statements by the representatives of Hungary (UN Doc. S!PV. 3033
(Annex 10),pp. 91-92),Austria (Ibid.p.92) and Canada (Ibid.p. 47).
113even if the proviso bad been applicable, it does not follow that the Resolution was
invalidly adopted simply because France, the United Kingdom and the United States
voted in favour, rather than abstaining. Resolution 731 was adopted unanimously.
Consequently, it would have achieved the nine affirmative votes required by Article
118
27(2) even ifthe three States bad abstained. It is significant that when, in the
debate on what became Resolution 748, Libya claimed that the Security Council bad
not taken into account "the correct implementation" of Article 27(3) in the adoption
of Resolution 731, it did not assert that Resolution 731 was invalid. On the contrary,
Libya bas made numerous statements concerning Resolution 731 that presuppose the
119
validity of that Resolution. In circumstances where Libya has made multiple
li&
The significance of this fact is indirectly conceded by Libya in its Observations, when it goes to
sorne length to show that ifthe affirmative votes of France, the United Kingdom and the United
States were deducted from the number of votes cast in favour of Resolutions 748 and 883,
neither would have achieved the requisite nine votesavour. Libyan Observations, para 4.47.
!19
See, for example, the meeting of the Under Secretary-General for Political Affairs, Mr
Petrovsky, and Colonel Qaddafi on 7 April 1992. The Under Secretary-General recorded:
"As a result of our discussion Colonel Qaddafl formulated the following points as the basis
for settling the matter:
1. Libya accepts Resolution 731 (1992)." (Libyan Memorial, Annex 129)
See, also, the communiqué from the Libyan Peoples Committee for Foreign Liaison and
International Co-operation transmitted to the Secretary-General on 14 May 1992:
"Proceeding from the belief of the Great Socialist People's Libyan Arab Jamahiriya in the
necessityof strengthening the role of the United Nations in the maintenance of international
peace and security, it bas declared its acceptanceSecurity Council resolution 731 (1992)
and its readiness to implement its provisions relating to defmitive renunciation of terrorism
in ali its forms and whatever origin.' UN Doc. S/23917, p.2 emphasis added (Annex 55).
The acceptance of Resolution 731 was further recorded in the letter of Mr Bishari to the
Secretary-General of 14 May 1992. UN Doc. S/23918, p. 2 (Annex 56). See, also, the Libyan
Declaration of 18 November 1992, Libyan Memorial, Annex 171, and the letter of Mr Al
Muntasir to the Secretary-General of8 December 1992. UN Doc. S/24961, p. 2 (Annex 63).
Further, Libya's acceptanceof Resolution 731 was noted by States and regional and other
organisations - such as the Organisation of African Unity, the Conference of the Foreign
Ministersof the Non-Aligned Countries, the lslamic Conference of Foreign Ministers - and
incorporated within submissions and resolutions against the adoption or maintenanceof the
measure aimed at procuring the surrenderof the two accused. See, for example, the statement
of the Sudanese representative at the Security Council meeting of Il Noveniber 1993, UN Doc.
SIPV. 3312, p. 34 (Annex 12); Paragraph 127 of the Final Document of the Eleventh
Conference of the Foreign Ministers of the Non-Aligned Countries held 29 May-4 June 1994,
UN Doc. S/1994/681 (Annex 106), p. 2; the Resolution of the Council of Ministers of the
Organisationof African Unity passed at the session held 6-11 June 1994, UN Doc. S/19941741,
114 ..,.·,.-t'-
formai declarations ofits acceptance.ofR'-olution 73.1.o .~e-.'cretary-General, with
the intention that this acceptance be taken into account in the Security Coune il's
deliberations and be noted by ali members of the international community, it cannot
now resile from this acceptance and question the foffilal validity of Resolution 731
before the Court.
(2) The Validity of Resolutions 748 and 883 is not dependent upon the Validity of
Resolution 731.
4.l18 Even if Libya's argument that Resolution 731 is invalid were correct -
which is not the case - that does not assist Libya unless it can show that the validity
of Resolutions 748 and 883 is thereby undermined. Libya's argument to that effect is
confined to a single bald assertion:
"This [ie the alleged invalidity of Resolution 731] occasions the formai
invalidity of Resolutions 748 and 883, which can only be seen as grafted
upon Resolution 731." 120
No attempt is made to explain this wholly novel argument that two Resolutions,
adopted by the requisite majorities under Chapter VII of the Charter, are to be treated
as invalid merely because they refer back to the provisions of an earlier Resolution.
4.119 There are four points to be made in this regard. First, there is no a priori
reason why a resolution adopted under Chapter VII should be held to be invalid
simply because it contains an entirely fresh decision that Libya must comply with the
cali, in paragraph 3 of Resolution 731, to make a full and effective response to the
requests of the three States. In exercising its powers under Chapter VII of the
Charter, the Security Council is discharging its primary responsibility, under Article
24 of the Charter, for the maintenance of international peace and security. It would
have been entirely in accordance with the Charter for the Security Council to have
proceeded directly to Chapter VII without first adopting Resolution 731. Rad it done
so, no question of the application of Article 27(3) would have arisen (subject to what
p. 3 (Annex 107); Resolution No. 14/24-P of the Islamîc Conference of Foreign Ministers
passed at the session of 9-13 December 1996, UN Doc. S/1997/35, p. 2 (Annex 113).
120
Libyan Observations, para. 4.44.
115is said in paragraphs 4.123 to 4.127, below, regarding Libya's alternative argument).
It would, therefore, be an excessively formalistic approach to say that, because the
Council frrst adopted Resolution 731 and then referred back to it in the later
Resolutions, any procedural defect in the adoption of Resolution 731 necessarily
taints Resolutions 748 and 883 also.
4.120 Secondly, and following from the above, even if it were accepted that
Resolution 731 is invalid, this would not render subsequent resolutions that referred
back to paragraph 3 invalid or inoperative.
4.121 Thirdly, Libya fails to explain how those provisions of Resolutions 748 and
883 which do not refer to Resolution 731 could be affected by any invalidity of that
Resolution.
4.122 Fourthly, it must follow from Libya's argument that Resolution 1192,
adopted unanimously on 27 August 1998, is also invalid, as this Resolution too refers
121
back to the previous Resolutions in its first operative paragraph. This conclusion
exposes the hollowness of the Libyan position. It cannot seriously be argued that
three Resolutions expressly adopted under Chapter VII by the Security Council over
a period of six and one half years (with a different membership at the time of the
passing of each Resolution) are to be held invalid on the ground that, had France, the
United Kingdom and the United States not participated in the voting on Resolution
731, this Resolution would have been adopted bytwelve votes instead of fifteen.
(3) Libya's argument that the duty to abstain in the proviso to Article 27(3) also
applies to decisions of a "quasi-judicial character'' taken under Chapter VII is
unfounded.
4.123 Libya's alternative argument - that the proviso to Article 27(3) also applied
to the voting on Resolutions 748 and 883, notwithstanding the fact that they were
adopted under Chapter VII of the Charter, because those Resolutions were "quasi-
l2l It îs noticeable that, when it addressed the Security Council on what became Resolution 1192
(Annex 87), Libya dîd not oppose the adoption ofthat Resolution; United Nations Doc. S/PV.
3920, pp. 2-5 (Annex 88).
116 122
judicial" in character - is also without merit. Thi ar~ument is an attempt to read
into the Charter words which are not there and which, moreover, would be
incompatible with the structure and system of the Charter.
4.124 First, Libya ignores the clear wording of Article 27(3), which is expressly
limited to decisions under Chapter VI and Article 52(3). The terms of the Article are
quite explicit about when the proviso shaH apply. It has never been applied to
decisions taken under Chapter VII of the Charter and the logic of the Namibia
Opinion (to which reference has already been made) and authoritative commentaries
confmn that itis not applicable in such cases.23
4.125 Secondly, decisions of the Security Council taken under Chapter VII of the
Charter do not, as Libya appears -toaccept, 124 possess a "quasi-judicial character." In
this respect, the decisions taken by the Council in Resolutions 748 and 883 were not
exceptional, as they constituted decisions taken in the exercise of the Council's
primary responsibility to maintain and restore international peace and security.
4.126 Thirdly, the only authority on which Libya relies is a passage from Advisory
125
Opinion No. 12 of the Permanent Court of International Justice. That Opinion
related to the interpretation of the provisions of the Covenant of the League and, in
particular, the rule of unanimity to be applied in disputes before the Council.
Notwithstanding that Libya maintains that this Opinion applies "a fortiori" to the
Charter, it .does nothing of the kind. The Charter, and, in particular, the role of the
Security Council, is markedly different from the arrangements under the Covenant of
the League and, of course, there is no rule of unanimity under the Charter, whether in
relation to disputes or otherwise.
!22
Libyan Observations, para. 4.45.
!23 See, e.g., Simma, op. cit., p. 455 et seq., Cot-Pellet, op. cit., p. 504.
!24
Libyan Observations, para. 4.45.
125
Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne, Advisory Opinion, 1925.
PCIJ, Series B, No. 12, pp. 31-32.
1174.127 Fourthly, in relying exclusively on the provisions of the Covenant, Libya
overlooks both the tenns of the Charter and the established practice of the Security
Council, which is far from militating towards a strict application of the proviso to
Article 27(3) where the Council is acting under Chapter VI, let alone where the
Council is exercising its powers pursuant to a different Chapter to which Article
27(3) does nat apply.
4.128 The United Kingdom therefore submits that no challenge to the formai
validity of Resolutions 748 and 883 can be sustained.
Section D: The Court Lacks the Power to Scrutinise the Substantive Validity of the
Security Council Resolutions on the Grounds advanced by Libya
4.129 Libya's challenge to the substantive validity of Resolutions 748 and 883
requires that the Court contest the Security Council's exercise of discretion in areas
which the Charter has reserved to the Security Council alone. What Libya asks
would undermine the relationship between the Court and the Council. 126
4.130 In approaching this aspect of Libya's pleadings, the starting point is that
neither the Charter nor the Statute of the Court confers upon the Court any power of
substantive review of decisions of the Security Council. No hint of such a power is to
be found in the text of either document. Libya accepts this fact, but then attempts to
dismiss it as irrelevant on the ground that Libya does not contend that a power to
127
scrutinise the validity of Security Council acts can be derived from the Charter.
Instead, Libya argues that a power of this kind is inherent in the judicial function, and
128
thus constitutes an implied power of the Court.
4.131 The constitutive documents of the United Nations and the Court, cannot,
however, be brushed aside. The travaux préparatoires make clear that the absence
from both the Charter and the Statute of express provisions for judicial review of
126 That relationship bas already been reviewed in paras. 4.100 to 4.109, above.
127 Libyan Observations, para. 3.4.
128
Ibid., para. 3.7.
118decisions of the Security Council is no oversight but that, on the contrary, the
possibility of including such a power of review was considered and deliberately
rejected. The reasons are instructive. The Soviet Union believed that it would weaken
129
the Security Council too much. The United States pointed to the obligation of the
13
Council to secure only the objectives of the Charter. ° France believed that such a
review would unacceptably disperse the responsibilities allocated under the
Charter. 131 The United Kingdom emphasised that the delays that such a review
would entai! would operate to the advantage of aggressor States. 132
4.132 A later proposai, for a Committee on Legal Problems to be established as an
interpretative organ for certain parts of the Charter, was also rejected. The clear view
was that the Charter requirements themselves, the ability of the major organs to
request advisory opinions, and the entitlement of States to resolve their disputes
before the Court, provided sufficient guarantees of protection of sovereign rights by
reference to internationallaw. 133
4.133 Just as significant is the fact that the Court itself has expressly declined the
suggestion that it possesses powers ofjudicial review. Founding itself in terms on the
constitutive instruments, the Court observed in the Expenses case that:
"In the legal systems of States, there is often sorne procedure for
determining the validity of even a legislative or governmental act, but no
analogous procedure is to be found in the structure of the United Nations.
Proposais made during the drafting of the Charter to place the ultimate
authority to inte~ heetCharter in the International Court of Justice were
13
not accepted..."
129
UNCIO, vol. 12, Doc. 433 (III/2J15p.47 atp.49 (Annex 92).
130 Ibid., at p. 49.
131
Ibid.,atp.50.
132 UNCIO, voL 12, Doc. 498 (IIJ/2Jl9p.65 atpp.65~6 (6 nnex 93).
133
UNCIO, voL 13, Doc 843 (IV/2/37p.645 (Annex 94) and Doc. 933 (IV/2/42(2)pp. 709~710
(Annex 95).
134 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion, ICI Report1962, p. 151atp.168.
119And in the Namibia Case the Court observed:
"Undoubtedly, the Court does not possess powers of judicial review or
appeal in res13ct of the decisions taken by the United Nations organs
concerned." '
4.134 In seeking to denude these passages of their content, Libya argues that the
Court in both Expenses and Namibia was prepared to examine the legal basis for the
acts of political organs and that the two opinions are no authority for what Libya
characterises as the proposition that the political organs of the United Nations enjoy
"immunity" from the jurisdiction of the Court in respect of their acts. 136 The
reference to "immunity", however, is a false characterization of the issue before the
Court. The Libyan argument, moreover, distorts the position of the United Kingdom
andmisunderstandsthe effect of the Coùrt'sopinions in the two cases.
4.135 The United Kingdom has at no stage advanced the argument that the
political organs of the United Na tons enjoy any kind of immunity - indeed, the
United Kingdom has never even used the term. The United Kingdom has confined
itselfta the issue which arises in the present case, namely whether the Court has the
power to review the validity of measures adopted by the Security Council to deal
with a threat ta international peace and security. To say, as the United Kingdom
does, that the Court does not possess a power of review on grounds of substantive
validity, is entirely different from saying that the Court may not interpret a decision
ofthe Security Council or examinethe legal basis for such a decision, for example, in
arder to determine whetherthat decision was intendedto be legally binding.
137
4.136 The latter is precisely what the Court did in the Namibia opinion: it
examined the legal basis for Resolution 276 in arder to determine whether that
resolution was intended to be legally binding or only recommendatory. It also
135 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution (1970), Advisory Opinion, ICJ
Reports, 1971, p. 16 p. 45.
136
Lîbyan Observations, para. 3.19.
137
Moreover, this was an advisory opinion requested by the Security Council itself; see paragraph
4.102, above.
120 .·.
examined the text of the resolution and the background to it in order to ascertain its
correctmeaning. However, in finding that the Council had acted in the exercise of its
primary responsibility for the maintenance of international peace and security, the
Court did not question whether a threat to international peace and security actually
existed, notwithstandingthat this issue had been raised by South Africa.
4.137 Libya also glosses over the reasons why no power of judicial review was
included in the Charter or the Statute. Proposais to allow a State a right of direct
challenge to Security Council resolutions were rejected because of the need for the
Security Council to act freely if it was to be an effective means of addressing threats
to international peace. Moreover, Article 24 of the Charter makes clear that it was
"in order to ensure prompt and effective action by the United Nations" that the
Members conferred upon the Security Council primary responsîbility for the
maintenance of international peace and security and agreed that in carrying out its
duties under this responsibility the Council acted on their behalf. The emphasis upon
the need for prompt and effective action by the Security Council excludes, in terrns,
andjust as eloquentlyas the absence of contrary provision, any incidental faculty in a
Member to seek to reopen before the Court the decisions of the Council after the
event.
4.138 Proceedings brought directly against the Security Council (or, at least, in a
forrn in which the Council could appear before the Court) at the time that the
adoption of a resolution was under consideration were thought to undermine the
effectiveness of the Council in this area. That would be ali the more true for
proceedings broughtafter the event- perhaps, as in the present case, many years after
the event - to which the Security Council could not be a party. Plainly, such
proceedings would undermine the Charter system for the maintenance of
internationalpeace and security.
4.139 The comrnents of the Court in the Expenses and Namibia cases (quoted
above) are particularly pertinentin this regard. In advisory proceedings, the United
Nations organ whose acts are in issue is represented before the Court and the
Mernbersof the United Nations havethe right to appear. If the Court has denied that
121-----------------------------------------------------~-----------
it haspowers of review in proceedings of that kind, then, a fortiori, it lacks such a
power when the validity of a resolution is indirectly put in issue in contentious
proceedings and the organ which adopted that resolution is not before theCourt.
4.140 None of this means that the Security Council is above the law. Article 24(2)
of the Charter expressly provides that the Council is to act in accordance with the
purposes and principles of the United Nations. The travaux préparatoires of the
Charter show that the States were prepared ta put their trust in the system of political
checks and balances built into theUnited Nations.
4.141 Under Article 23 of th.e Charter, the composition of the Security Council,
was designed to ensure that the Council would be broadly representative of the
United Nations membership as a wbole. The non-permanent members are elected by
the membership as a whole. The permanent members cannet impose a resolution;
they can only "veto" a resolution that would otherwise be adopted. Conversely, any
seven members of the Council are able to prevent a draftresolution from obtaining
the requisite nine votes,if they are so minded.
4.142 That is the essential mechanism, not only when the Security Council
permanent members are in political conflict (as was often the case during the Cold
War), but also when they agree (as was envisaged in the Charter and as bas more
recently been the case).The fact that Security Council members are more frequent!y
today in agreement, neither removes the provision in Article 24(1) that the Council
operates on behalf of the membership of the United Nations, nor does it invite the
Court to replace with its own perceptions the discretion conferred on the Council.
4.143 The United Kingdom submits that the Charter clearly and unambiguously
reserves certain essential competences to the Security Council alone. That follows
from the nature of the judgement which the Council is called upon to make in
exercising those competences, the need for an effective United Nations system for the
maintenance of international peace and security and the rejection of a power of
review of those judgements in arder to avoid limiting the effectiveness of that system.
It also reflects the essential features of the relationship of the Court and the Council.
1224.144 In the United Kingdom's submission, the essential competences relating to
international peace and security reserved to the Security Council and relevant to this
case are the following:
(a) to determine the existence of any threat to the peace, breach of the
peace or act of aggression;
(b) to select the measures appropriate for responding to situations that may
disturb relations between States or potentially threaten international
peace and security; and
(c) to decide if its decisions have been carried out and, by virtue of Article
41, to decide what measures not involving the use of anned force are
to be employed to give effect toits decisions.
4.145 Each ofthese essential competences \viii now be examined in relation to the
facts of this ca.Se.
1. The Security Council alone is entitled to determine onder Article 39 of
the Charter the existence of a threat to international peace and security
4.146 In Resolution 748 (1992), the Security Council detennined that:
"the failure by the Libyan Government to demonstrate by concrete actions
its renunciation of terrorism and in particular its continued failure to respond
fully and effectively to the requests in resolution 731 (1992) constitute a
threat to international peace and security."
The Council went on to state that it was "acting under Chapter VII of the Charter" in
deciding upon various measures. The same tenns were used in Security Council
Resolution 883 (1993). The Security Council was uniquely entitled to make these
determinations under Article 39.
4.147 The specifie function ofmak.ing determinations under Article 39 is a matter
for the Security Council alone, and not subject to any review. This view was clearly
put by Judge Weeramantry in his dissenting opinion inthe Order of 14 April 1992:
123 "[T]he determination under Article 39 of the existence of any threat to the
peace, breach of the peace or act of aggression, is one entirely within the
discretion of the Council. It would appear that the Council and no other is
the judge of the existence of the state of affairs which brings Chapter VII
into operation... Once [an Article 39 decision is] taken, the door is opened to
the various decisions the Council may make under that Chapter." 138
Similarly, the International Criminal Tribunal for Rwanda has held that:
"The question of whether or not the conflict [in Rwanda] posed a threat to
international peace139d security is a matter to be decided exclusively by the
Security Council."
4.148 The determination of a threat to the peace is necessarily an act of political
judgeroent. There is no "correct legal" answer to whether international peace and
security is threatened by a particular set of circumstances. Because the Security
Council's assessment under Article 39 is necessarily an act of discretion, if a finding
of the Security Council were to be brought into question, that review itself would
necessarily entai! an act of political judgement. It could not be a judicial act, as there
are no legal criteria by which the existence of a "threat to the peace" is to be
judicially determined, or the Security Council's own assessment thereof could be
found to be legally incorrect. The Court is indeed the "guardian of legality"- but the
determination of a threat to international peace and security is not a matter of law, but
of political appreciation. There îs no yardstick for appropriate review on groWids of
legality. Review by the Court would, therefore, necessarily be an alternative act of
political appreciation.
4.149 In its Observations on the Preliminary Objections of the United Kingdom,
Libya contends that the United Kingdom has produced no authority in support of the
proposition that the determination that there exists a threat to the peace is a matter
fallîng within the exclusive competence of the Security CoWicil, and suggests that
"the Court's jurisprudence categorically contradicts the argument of the United
!38 Pravisional Measures Order, ICJ Reports, 1992, p. 3, at p. 66.
!39 Prosecutor v. Karryabashi, Decision of the International Criminal Tribunal for Rwanda, 18 June
1997, para.1.
124K.ingdom." 140 The United Kingd has,~of course, cited no judgment or dictum of
the Court on the precise point made here, because the issue bas never previously
arisen before the Court in these terms. The authorities to which Libya refers inno
way contradict (categoricallyor otherwise) the point made by the United Kingdom.
The passage which Libya cites from the Expenses Opinion does indeed, as Libya
141
maintains, say "nothing to uphold th.eimmunity of the political organs," but, as
noted above, the United Kingdom is not suggesting that any such bread principle of
immunity exists. The United Kingdom's point is that the question whether or not
there exists a threat to the peace is a matter for the exclusive jurisdiction of the
Security Council. That question is not touched upon in the passage from the
Expenses Opinion.
4.150 Nor do the comments of certain members of the Council regarding
142
Resolution 687, to whichLibya refers, bear upon that question. What was at issue
there was not the Article 39 determination but, rather, the nature of the measures
which the Council could take once it had made that determination, a matter
considered below. 143 As for theNamibia Opinion,the fact that the Court there "did
not consider it inappropriate to examine the legal basis of the resolution in question
and had no difficulty in so doing" again is not in point.144 The Court there said
nothing to suggest that it could second guess a determination by the Council that one
of the situations referred to in Article 39 existed. Even Sir Gerald Fitzrnaurice's
dissenting opinion, to which Libyarefers in paragraph 3.21 of its Observations, does
145
not addressthat question.
4.151 Challenges by Statesto an Article 39 determination by the Security Council
have not been accepted, because it is the Security Council that is given the sole
!40 Libyan Observations, para. 3.18.
!41 Ibid., para. 3.19.
142 Ibid., para. 3.17.
143 See paras. 4.160 to 4.163 and 4.202 to 4.220, below.
144
Libyan Observations, para. 3.20.
!45
See, also, Prosecutor v. Kanyabashi, Decision of 18 June 1997, para. 21.
125competence to make that assessment. The decision that it makes is then immediately
effective and is not open to challenge by any Member. Precisely because, as Judge
Weeram.antry pointed out, an Article 39 determination is the condition precedent to
146
action to maintain and restore international peace, the Security Council's intended
role under Chapter VII would be rendered impossible if the determination could itself
be the subject matter of litigation brought by one State against another. The Security
Council would be unable to fulfil its primary responsibility for the maintenance of
international peace and security, as conferred on it by Article 24(1).
4.152 Further, if the matter simply came before the Court for review as an
incidental factor in an interstate dispute, perhaps months or years after the adoption
of the resolution in question, any review of an Article 39 detennination would be
incompatible with the concept of stability and finality in the UN legal order.
Members have to be able to rely on Article 39 detenninations that have been the basis
of UN resolutions binding on th.e membership, and which have provided the legal
ground for various kinds of subsequent action, such as the imposition of economie
and political sanctions, which may have entai1edextensive and onerous implementing
legislation in those States.
4.153 Detenninations made by the Security Council onder Article 39 do not
become subject to review, as Libya bas argued, 147 because of the allegation that the
detennination was only made in order that certain action could then be taken. Several
observations may be made. First, while those persons cited by Libya may hold the
view that there is no threat to international peace and security, the Security Council
bas taken a different view - and it is the Security Council that is given competence
under the Charter to make this determination. Secondly, the threat perceived by the
Security Council was not, of course, the outrage of 21 December 1988 alone, nor
even was it that outrage taken together with the outrage of 19 September 1989 against
UTA Flight 772; it was the refusai of Libya, with its long history of involvement in
terrorism, to co-operate fully, and in the manner required by the Security Councïl
146
"Once [an Article 39 decision is] taken, the door is opened to the various decisions the Council
may make under thatChapter." Pravisional Measures Order, ICJ Reports, 1992, atp. 66.
147
Libyan Memorial, paras. 6.112·6.121.
126 148
from January 1992 to this day, in the fight against terrorism. Thirdly, Libya
concedes that "if the Council fmds that there is a threat to the peace, it is because it
149
intends to take action under Chapter VII". Libya daims, however, that the
decisions of the Security Council in the present case were taken "not on account of
the intrinsic characteristics of the situation" but with the sole aim of depriving Libya
ofher rights. However, it is not possible for the Court to decide, after the adoption of
a resolution, that an Article 39 fmding was made only in arder to assume Article 41
powers. To do sa would entait an impossible inquiry into the perceptions and motives
of members of the Security Council. Whatever Libya may daim, it would also
involve the Court substituting its own assessrnent for that of the Security Coune il.
4.154 It would not be possible ta foresee the circumstances in which a
determination by the Security Council could be challenged. Such a challenge would
potentially be open to States of ali political persuasions, in support of ali sorts of
objectives. Thus when Rhodesia's minority government unilaterally declared
independence from the United Kingdom, beth Portugal and South Africa challenged
the Security Council'sdecision that this constituted a threat to international peace and
security- a finding that was essential to "opening the door" to enforcement action by
150
the Security Council. Although in the view of Portugal and South Africa a threat
to international peace and security did not "objectively exist", the Security Council,
in making its determination, was correctly treated as having exercised a political
judgment that was not subject to challenge.
148 See, Resolution 748, seventh preambular paragraph and paragraph 2 (Annex 3); Resolution
883, sixth preambularparagraph and paragraph 1(Annex 4).
149 Libyan Observations, para. 4.8.
15() See Security Councîl Resolution 221 (1966), paragraph 1; SCOR 2lst Session; and Security
Council Resolution 232 (1966), paragraph 1; loc. cit.
1274.155 Lockerbie is in no sense an isolated case. The decisions of the Security
Council relating to Somalia, 151 Haïti,152 and Rwanda, 153 for example, are also
instances in which it has been suggested that the Security Council was seeking a
necessary basis to sustain a decision to order actionunder ChapterVII. The Council's
deterniinations in those cases that there was a threat to international peace and
security cannot, however, be opened up to review, perhaps many years after they
were made, without calling into question large and complex operations which
attempted to deal with situations of particular gravity. In sornerespects, Lockerbie is
surely an a fortiori case, because the Security Council had for many years been
concemed with international terrorism, and had long viewed its manifestations as a
154
threat to international peace and security.
4.156 In its Observations on the United Kingdom Preliminary Objections, Libya
argued that the determination that there was a threat to international peace and
security in Resolution 748 is invalid because it was not consistent. Libya maintains
that "when the action of a political organ is inconsistent, the exercise of decision
making power i~unjustified."155 The suggestion that the Council's decisions on
Lockerbie are invalid because the Council bas not always taken the same action in
other cases is an extraordinary one which would leadto absurdconsequences.
4.157 To apply a legal standard of the kind suggested by Libya is to deny the
essentially political nature of the Council's decisions. Is Libya saying that the
Security Council resolutions determining that the commission of war crimes,
genocide and crimes against humanity in the former Yugoslavia and Rwanda, and
establishing tribunals to try those offences, are invalid because the Council hasnot
taken similar action in respect of other conflicts? Is Resolution 794, which
151
Security Council Resolution 794 (1992). See, also, the Report of the Secretary-General that
preceded the adoptionf this Resolution. UN Doc. S/24868.
152 Security Council Resolution1 (1993).
153 Security Council Resolution 955 (1994) (Annex 108).
154 See, paras. 4.183 to 4.193, below.
155
Libyan Observations, para. 4.15.
128determined that "the magnitude of the human tragedy" in Somalia was a threat to
international peace, subject to review by the Court because other human tragedies
have not been similarly treated? And is Libya saying that the validity of a particular
determination that there exists a threat to the peace is dependent upon its consistency
with the view that the Council has taken in the past or with the approach that the
Council takes thereafter? The former view would stifle ali new initiatives. The latter
would make the validity of a resolution depend upon future events.
4.158 The Court has clearly indicated that it is not prepared togo behind decisions
of United Nations organs acting within their competence:
"Whatever the motivation of the General Assembly in reaching the
conclusions contained in those paragraphs, whether or not it was acting
wholly on the political plane and without the Court finding it necessary to
consider here whether or not the General Assembly based its action on a
correct interpretation of the Trusteeship A~eemen there is no doubt ... that
1 6
the resolution had definitive legal effect."
Further:
"It must be assumed that the General Assernbly was mindful of the general
interest when, acting within its competence, it decided on the termination of
the Trust." 157
4.159 There are Article 39 determinations in Resolutions 748 and 883. These
reflect the Security Council's view that Libya's failure in concrete terms to renounce
terrorisrn does, in the lightf ail the relevant history, constitute a continuing threat to
international peace and security. This is not to suggest that every failure to respond to
dernands in a resolution which is not adopted under Chapter VII (such as Security
Council Resolution 731) can constitute such a threat. It is for the Security Council to
!56 Northern Cameroons, Judgment, ICJ Reports, 1963, p. 15at p. 32.
!57 Ibid., ap. 36. See also the Separate Opinion of Judge Morelli in Certain Expenses of the
United Nations (Article 17,paragraph 2, of the Charter), Advisory Opinion, ICJ Reports, 1962,
p. 151 at p. 223. Libya misconstrues the United Kingdom's arguinrelation to the Court's
powers of review. It bas never been the United Kingdom's position that the Court has no
jurîsdîction whatsoevero consider the conduct of United Nations organs, as is claimed at
Libyan Observations, para. 3.13.
129decide that question, case by case, in the light of all the circumstances and
information at its disposaL
2. The Security Council alone is entitledtodecidewhat measures should be
adopted pursuant to an Article39 determination
4.160 It is axiomatic that the Security Councilmust always act in accordance with
the purposes and principles of the Charter. Its exclusive entitlement to decide upon
measures appropriate to addressing a threat to international peace and security is
nonetheless the necessary corollary of the right to determine the existence of a threat
to international peace and security. In addition to the decisions contained in
paragraphs 1-2,thepolitical steps decided uponbythe SecurityCouncil in Resolution
748 were those enumeratedin paragraphs 3-7 thereof. lt decided, in accordance with
Article 41 of the Charter, upon measures not involvingthe use of anned force. These
cover aviation sanctions, prohibition on arms and related training, and reduction of
Libyan diplomatie representation. Resolution 883 decided upon the steps in
paragraphs 2-8, directed at the freezing of certain funds, a prohibition on the export
of certain oil industryequipment and furtheraviationsanctions.
4.161 Libya devotes several pages of its Memorial and Observations to asserting
that the measures adopted were "at variance with the principles of justice and
international law". 158 It does not fully explain why. It is clearly for the Security
Council to decide what measures it thinks appropriate. That is exactly what is
provided for in Article 41 of the Charter. The measures selected were, in fact,
restrained and carefully fashioned. But in any event measures adopted within the
political discretion of the Security Council may not be reviewed by the Court or
replaced by measures ofits own selection,and thuscannat form the subject matter of
any dispute beforethe Court.
4.162 In consideringand eventually adoptingResolution748, the Security Council
was faced with four sets of factors. The first was a longstanding concem with
158 Libyan Memorial,paras. 6.7etseq.Libyan Observations, paras. 4.29 et seq..
130 159
international terrorism, which had already been the subject of various resolutions.
The second was the results of the painstaking scientific analysis and police
investigations after the destruction of Flight PA103. These produced evidence that
Abdelbaset Ali Moluned Al Megrahi and Al Amin Khalifa Fhimah caused the
placing of the explosive deviee on Pan Am 103, and that they were officers of and
acting on behalf of the Libyan intelligence services. The third was the conclusions
reached by the French judiciary concerning responsibility for the terrorist attack
against UTA Flight 772. The fourth was that the United Kingdom, along with the
United States, had asked for the surrender of the accused for trial in Scotland or the
United States, and that these demands had not been met, just as was the case with the
French demands.
4.163 It is within the discretion of the Security Council to decide that this
convergence of events represented a matter properly to be placed upon its agenda. It
is further within the appreciation of the Security Council to decide that the combating
of international terrorism required both a general renunciation of terrorism by Libya,
and co-operation in bringing the Lockerbie accused and the UTA accused to trial
before the appropriate courts. Article 24(1) makes clear that the Security Council is
given specifie discretions and powers under Chapters VI and VII which it can
exercise. It was in the exercise of these discretionary competences that the Security
Council did not accept the argument that either Libyan involvement in terrorism
generally, or the PA103 and UTA 772 attacks specifically, could be handled as if
they were simply a question of legal rights and obligations under the Montreal
Convention. In the debate which preceded the adoption of Resolution 731 (1992),
Libya argued that the matter should be treated by the Council as a dispute between
itself and theUnited K.ingdom. No member of the Council accepted this view and, in
adopting Resolution 731 and, subsequently, Resolution 748, the Security Courreil
clearly rejected it.60 Notwithstanding Libya's daims to the contrary, the Security
Council was perfectly entitled - and subject to no review in this entitlement - to
classify the problem as one relating to the maintenance of international peace and
159
See, para. 4.183 to 4.187, below.
160
See, para. 4.116, above.
131security and thus requiring certain responses, rather than to classify the problem as
one of protecting alleged legal rights of Libya or simply as a dispute between Libya
and the United Kingdom.
3. The Security Council alone is eotitled to decide if the requirements
contained in its decisions have been met
4.164 In its Memorial, Libya complains at length that it bas fully met the demands
of the Security Council in Resolutions 731 and 748. 161 It therefore argues that the
Council bas no right to maintain the sanctions in force. These complaints entail both
a very remarkable interpretation by Libya asto what was required by the Resolutions,
which has been addressed in Chapter 2 above; and an insistence that the requirements
bad been met and that the Security Council was "wrong" in proceeding from
Resolution 731 to Resolution 748. 162
4.165 However, it is a matter for the Security Council to determine whether
demands contained in its resolutions have in fact been met. It is apparent that the
organ which is given the authority to decide on measures in order to secure
compliance with its demands has, by necessary implication, the authority to
determine whether those demands have been met. Thus the Security Council decided
that it was for itself alone to determineif sanctions against Rhodesia should be lifted
in 1979; it is for the Security Council to resolve whether Iraq has met ali the
requirements laid down in Resolution 687 (1991) as a condition for the lifting of the
measures against it; and it is for the Security Council to appraise Libya's conduct in
the light of the requirements ofits resolutions. Libya is wrong in law in assuming that
the Court can be used as an appeal court from the political assessments made by the
Security Council.
4.166 Resolution 748 was adopted by 10 votes in favour (Austria, Belgium,
Ecuador, France, Hungary, Japan, Russian Federation, United Kingdom, United
161 Libyan Memorial, para. 6.36.
162 See also Libyan Observations, paras. 4.12 et seq.
132States, Venezuela), none against, and 5 abstentions (Cape Verde, China, India,
Morocco and Zimbabwe). It is clear that each of the States voting in favour of the
Resolution exercised its own sovereign judgment that Resolution 731 bad not been
complied with. Thus, for example, it was stated by lapan:
"At the time Resolution 731 (1992) was adopted ... it was foreseen that the
Security Council would be compelled to take further measures if Libya did
not comply with it. Unfortunately the subsequent develoEments in the
1 3
situation cali for the Council's adoption of a new resolution."
Hungary stated:
". .. we are compelled to note that, although over two months have passed
since the adoption of Security Council resolution 731 (1992), Libya has yet
to comply with its provisions. This is all the more regrettable since the
United Nations Secretary-General, the League of Arab States and other
countries have spared no effort to promote and facilitate the implementation
of that resolution. Ali of this casts doubt on the value of statements
expressing readiness to cooperate with the Security Council ... Bearing in
mind the vital significance of the subject before us today ... Hungary basfelt
and continues to feel that the Security Council must take further measures to
164
ensure compliance with its own resolutions."
Austria stated:
"Terrarism is a most dangerous threat to international peace and security.
That is why it is appropriate for the Security Council to deal firrnly with the
matter ...
[The sanctions under resolution 748] are not punishment; they are introduced
in order to make a certain member of the international community comply
with its obligations under the Charter of the United Nations." 165
The Russian Federation stated:
163 UN Doc. SIPV. 3063, p. 75 (Annex Il).
164 Ibid., p. 76.
165
Ibid., pp77-78.
133 "... international terrorism ... poses an overt threat to our cornmon security
... the Russian Federation, together with many other States, has been t:rying
for two months now to convince the Libyan authorities to heed the will of
the international conununity. Unfortunately, these efforts, including the good
offices of the Secretary-General of the United Nations, have not produced
166
the desired results."
Belgium noted that the new Resolution was even subject to a two week delay, in the
hope of securing a Libyan response. 167 Venezuela made
"one more appeal to the Govemment of Libya that Libya fulfil the
provisions of resolution 731 (1992) before the 15 April 1992 deadline
provided for in this latest resolution." 168
4.167 No member of the Security Council, including any of those abstaining,
supported Libya's contention, which it now deploys before the Court, that it had
complied with Resolution 731.
4.168 ln Resolution 883, eleven States now voted in favour (Cape Verde having
moved from an abstention), none against, and four states (China, Djibouti, Morocco
and Pakistan) abstained. By that time sorne twenty months had elapsed since the
Security Council issued its requests in Resolution 731. The French Representative
felt obliged to observe that:
"the Libyan Govemment has sought literally to take advantage of our
Council... Libya may still hope to have it believed that it is prepared to do
what the Security Council expects of it, but no one cao be duped any
longer." 169
Spain and Brazil clearly thought the requirements had yet to be met. Hungary speke
of "delaying tactics and unkept promises and the growing gap between verbal
17
statements and concrete actions". ° China, while still placing its hope on a "certain
166
Ibid.,pp. 79-80.
167 Ibid.,pp. 81-82.
168 Ibid.p. 84.
169
UN Doc. S/PV. 3312, p. 43 (Annex 12).
170 Ibid., 59.
134flexibility" -onthe Libyan part, di4 not suggest that._therequirements of the earlier
Resolutions had been met. Pakistan, explaining its abstention, said that ''wehave not
lost hope and feel that these endeavours should continue.'' 171It did not contend that
the new Resolution should not be passed because Libya had met the Security
Council'sdemands.
4.169 Not one single rnernber of the Security Council, the composition of which
altered between the adoption of Resolutions 748 and 883, and in whose deliberations
all mernbers of the Council were fully involved, accepted that Libya had met the
requirements laid down by the Security Council and which the Council considered
necessary to address the threat of international terrorisrn. Every rnernberwas aware of
every proposai, staternent and suggestion of Libya. It was for the Council, and the
Council alone, to mak.ethis appreciation. It is not a matter for the Court, even in the
unlikely event that itwished to replace this judgment with its own.
4.170 The obligations which the decisions of the Security Council in Resolutions
748 and 883 irnposed upon Libya and the United Kingdom were modified in certain
respects by Resolution 1192 (1998). The effect of that Resolution is discussed in Part
5, below.
4.171 In summary, the United Kingdom's principal submission is that the Court
has no power to review the validity of Security Council resolutions on the three
grounds advanced by Libya, namely whether the Council was entitled to detennine
that there was a threat to international peace and security, whether the Council was
entitled to take the measures which it did take in order to address that threat, and
whether the Council was right to decide that Libya had failed to comply with the
obligations which the decisions of the Council had imposed upon it.
4.172 Further, the United Kingdom contends that this principal submission is
entirely in accord with the application of the concept of judicial review as it appears
in its most developed form - in municipal law. Libya's invocation of the "inherent
jurisdiction of the Court" assumes that there is a sound basis for the exercise of a
171
Ibid., pp. 53 and 64.
135wide power of judicial scrutiny. An overview of the concept of judicial review
shows, to the contrary, that where it exists in municipal legal systems, its subject, in
each system, to certain well-defined limitations.
4.173 In particular, both national courts and international tribunats which exercise
a power of judicial review normally recognise as a limitation on the extent of their
powers tbat they may not question the exercise of a political body's judgement on
essentially political questions. Nor may they substitute theirjudgement for that of the
body whose decisions are under review. Another feature of judicial review
proceedings before such courts is that the body whose acts are under review is
usually a party to the proceedings, or is entitled to intervene therein. The United
Kingdom maintains that the question whether the Court has a power to review the
decisions of the Security Council is one which can only be answered by reference to
the provisions of the Charter and the law and practice of the United Nations. Vague
generalisations, of the kind found in the Libyan pleadings, about the inherent powers
of courts, or cursory references to one or two national legal systems are not enough.
Nevertheless, in so far as comparisons with national law may be useful, it is
important to note that the limitations identified above as existingn national law, and
in other international systems, suggestan absence of a general power of review in the
case of decisions of the Security Council.
Section E: The Decisions of the Security Council are Va/id_ in any Event
1. Introduction
4.174 While the United Kingdom's fust argument is that the Court lacksjurisdiction
to scrutinise the validity of the Security Council Resolutions on the grounds advanced
by Libya, it submits, in the alternative, that if such a jurisdiction exists, then its
exercise in the present case would lead to the conclusion that Resolutions 731, 748
and 883 are valid. This alternative argument is developed in the following sub
sections.
136 .,•.·,
2. The Security Council was entitled to find that there was a threat to the
peace
4.175 The central feature of Libya's argument is that the determination by the
Security Council that there was a threat to the peace, which was frrst made in
172
Resolution 748 and repeated in Resolution 883, constituted an abuse of power (or a
détournementde pouvoir) by the Security Council. Libya thus invites the Court to
challenge the validity of the Council's application of Article 39 ofthe Charter.
4.176 Neither the Charter, nor any other instrument of international law, contains
any definition of a "threat to the peace" or even sets out legal criteria for ascertaining
whether such a threat exists. The question whether or not there exists a threat to
international peace and security in any given case is, therefore, one to which
international law does not fumish an answer. The question is a political one which
the Charter provides is to be answered by the Security Council. Accordingly, the
United K.ingdom has already drawn attention to the extensive body of opinion to the
effect that the determination of a threat to the peace is a matter which falls within the
exclusive competence of the Security Council. 173 Even those who have suggested that
the Court has a power to review the substantive validity of decisions of the CounciJ
have frequently accepted that the determination whether or not there exists a threat to
. b' . 174
the peace 1s not su ~ec to rev1ew.
172 Resolution 1192 (1998) (Annex 87) contains no separate determination of a threat to the peace
but refers backtoResolutions 748 and 883.
173
See paras. 4.146 to 4.159, above, and, in partîcular, the Opinion of Judge Weeramantry, quoted
at para. 4.147.
174 For example, Judge ad hoc Sir Elihu Lauterpacht, in a passage in his Separate Opinion in the
Case concerning the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide, Provisional Measures, Order of 13 September 1993, to whîch Libya refers,
states that any power of review "does not embrace any right of the Court to substitute its
discretion for thatf the Security Councîl in determining the existence of a threat to the peace,
a breachofthe peace or an act ofaggression." ICJ Reports, 1993, p. 439.
Sir Derek Bowett, in an article on which Libya again relies, has said"itwouid be wrong to
allow any Court to question the Council's judgment that a ChapterVU situation- a 'threat to
the peace, breachof the peace, oact of aggression' - either had, or had not occurred". Bowett,
"Judicial and Political Functions of the Security CoWtciland the International Court of Justice"
in Fox (ed.) The Changing Constitution of the United Nations (1997) at p. 84. A sirnilar view
has been expressed by other commentators; see, e.g., Akande, "The ICI and the Security
1374.177 Also, even those who have suggested that the Council's determinations under
Article 39 may be subject to judicial scrutiny hold that the Security Council enjoys a
particularly broad discretion (or margin of appreciation) in determining whether or
not there exists a threat to the peace. The Appeals Chamber of the International
Criminal Tribunal for the Former Yugoslavia, while maintaining that there are legal
limits to the Council's powers to determine the existence of a threat to the peace,
stated that "the Security Council plays a pivotai role and exercises a very wide
175
discretion" under Article 39. The Appeals Chamber considered that there was an
established Security Council practice to the effect that a conflict within a State was
capable of constituting a threat to international peace, and concluded that the
existence of such a practice was sufficient to mak:eit unnecessary for the Chamber to
consider further whether such a threat existed in th.ecase of the conflict in Bosnia
Herzegovina. Sir Gerald Fitzmaurice in his Dissenting Opinion in the Namibia case
(to which Libya has made reference on numerous occasions) speke of there being no
Iimit to the occasions on which the Security Council could act in the preservation of
peace and security "provided the threat said to be involved is not a mere figment or
pretext". 176 A number of commentators have tak:ena similar view. Professer Shaw,
for example, states that "detenninations of threats to or breaches of the peace are
177
under the Charter decisions within the widest discretion of the Security Counci1".
4.178 It is clear, therefore, that, at the very least, the Security Council possesses a
very wide discretion in detennining whether or not there exists a threat to
Council: is there room for judicial control of decisions of the UN's political organs" 46
International and Comparative Law Quarter/y (1997) at p. 3.38.
175 Prosecutor v. Tadic (Jurisdiction), decision of 2 October 1995, 105 ILR at para 28. The
Appeals Chamber in this case did not assert any general power of judicial revîew but
considered only whether the International Criminal Tribunal for themer Yugoslavîa bad
been validly established and thus possessed ajurisdiction whîch it could exercise. Accordingly,
it considered the particular resolution by which the Security Councild established the
Tribunal.
176 Legal Consequences for States of the Continued Presence of South A/rica in Namibia (South
West Ajrica) notwithstanding Security Council Resolution 276 (1970}, Advisory Opinion, ICI
Reports, 1971, p16,at p. 293, para. 112.
Shaw, "The Security Council and the International Court of Justice: Judicial Drift and Judicial
Function" in Muller etal(eds.), The International Court of Justice: Its Future Role after Fifiy
Years (1997)p. 219 at p. 258.
138 ·•
,,~.
;;';
international peace in any particular.situation... In making such a determination, the
Council performs a political, not a quasi-judicial, role. Accordingly, Libya accepts
the principle that the Court cannet substitute its discretion for that of the Council. 178
That principle can therefore be regarded as common ground between the parties.
However, Libya qualifies that acceptance by arguing that the Court can and should
find that the Council was guilty of an abuse of power when it determined that "the
failure by the Libyan Govemment to demonstrate by concrete actions its renunciation
of terrorism and in particular its continued failure to respond fully and effectively to
the requests in Resolution 731 (1992) constitute a threat to international peace and
179
security". Libya contends that the Court can make such a finding without having to
substitute its own discretion for that of the Security Council.
4.179 In reality, however, Libya's argument that there was an abuse of power
renders meaningless its purported acceptance of the principle that the Court cannot
substitute its discretion for that of the Council. Libya seeks to characterise the Article
39 determination in Resolution 748 (and Resolution 883) as an abuse of power by
arguing that the Council made that determination not because there really was a threat
to the peace, but because such a determination was a prerequisite to action under
Chapter VII of the Charter and, only by employing its powers tuider Chapter VII,
could the Council purport to require Libya to do something which it was otherwise
under no obligation to do. This argument is dependent upon two premises, namely
that there was no real threat to the peace and that the Council acted from improper
motives.
4.180 The first premise exposes the hollowness of Libya's claim to accept the
principle that the Court cannat substitute its discretion asto whether there is a threat
to the peace for that of the Council: that is exactly what Libya is asking the Court to
do. For its abuse of power argument depends upon the Court finding that there was no
real threat to the peace, when the Council has concluded that there was such a threat,
and has twice reaffirmed that conclusion.
178 Libyan answer to question posed by President Schwebel at the 1997 hearings.
179
Resolution 748, seventh preambular paragraph (Annex 3).
1394.181 In its attempt to argue that there was no "real" threat to the peace which
could have formed the basis of the Security Council's determination in Resolution
748, Libya has attempted to paint that decision of the Council as an isolated action,
taking a view ofthreats to the peace which is at odds bath with the general practice of
the Council and the approach of the General Assembly. 180 The reality is entirely
different.
4.182 In fact, there were ample grounds on which the Council could find that a
threat to the peace existed at the time when it adopted Resolution 748, and the
Council's determination in that Resolution that a tbreat to the peace existed is far from
being an isolated instance. There is no reason why the concept of threat to the peace
should be con:fined to situations capable of giving rise to a conventional con:flict
between States, and it has not been the practice of the Council so to confine it. For
example, the Council has long considered that the existence of a conflict within a
State is capable of constituting a threat to international peace and security. The
Council has tak.en that approach in respect of events in South Africa and Southem
Rhodesia and, more recently, in the former Yugoslavia, Liberia, Somalia and Haiti.
4.183 It is ali too apparent that terrorist attacks upon aircraft and other targets are
capable of inflicting enarmous loss of life and destruction of property. The very
rationale of such attacks is the destabilisation of national and international political
relations through the targeting of sensitive and high profile targets and the taking of
wholly innocent lives. Such conduct entails an assault upon the political integrity of
States as weil as the lives and property of the immediate victims. It is therefore
unsurprising that the Security Council, in the exercise of its primary responsibility for
the maintenance of international peace and security, has long been concemed with
such attacks.181 For the Security Council to tak:eaction against terro anrd th~sets
who sponsor terrorism would necessarily involve the use of its powers under Chapter
ISO Libyan Observations, paras. 4.14 to 4.15.
1&1 The history ofthe Security Council's concern and that of the United Nations generally has been
documented by Judge Guillaume in 'Terrorisme et droit international' 215 Recueil des Cours
(1989), pp. 287-416, especially p. 305.
140 '~-.
VII of the Charter and thus présupposesthe exis,tenceof a threat to the peace, breach
of the peace or act of aggression.
4.184 That the Security Council is an appropriate forum for addressing threats to
civil aviation, and that it could do so by exercising its powers imder Chapter VII, bas
also been expressly recognised by a number of States in connection with
developments in ICAO. Thus, in the debates on a possible convention to facilitate the
imposition of sanctions, outside the framework of the United Nations, against States
engaging in or supporting attacks upon civil aviation, several States suggested that the
imposition of sanctions was a matter for the Security Council.
4.185 Speaking in the ICAO Legal Committee in 1973,the delegate ofEgypt said:
"...everyone agreed that hijacking was a very serions problem, a crime
deserving of the attention of the international community. The disagreement
in the Committee was on the most effective way of combating it. In the
opinion of his delegation that way was the widest possible participation in
the Hague Convention and recourse to the universally accepted enforcement
procedures and machinery established by the United Nations Charter." 182
The delegate of the USSR commented:
"In the first place, many delegations pointed out that the proposai for
collective sanctions was not in harmony with the United Nations Charter.
Indeed, according to Article 41 of the United Nations Charter, one of the
measures that the Security Council of the United Nations was empowered to
apply included the suspension of air communications. Without entering into
the interpretation of that provision the Soviet delegation would point out that
it was the Security Council on which members of the United Nations had
placed the main responsibility for upholding international peace and security.
It was also important to note that according to Article 24 of the United
Nations Charter ail members of the United Nations conferred on the Security
Council the primary responsibility for the maintenance of international peace
and security and agreed that in carrying out its duties under this
183
responsibility the Security Council acts on their behalf."
182
Minutes of the Legal Committee of !CAO, 20th Session, 1973, Vol. 1, JCAO Doc. 9050-
LC/169-1, p. 114.
183 Ibid., p41.
141Similar views were expressed by, inter a/ia, France, Sweden and Libya. 184 The ICAO
Special Sub-Conunittee also agreed that "threats to civil aviation often constituted
threats to world peace". 185
4.186 The Security Council's concem with acts of terrorism was frrst manifested in
the form of a resolution of the Council in 1970, when the Council adopted Resolution
186
286 on the subject of hijacking and other forms of interference with civil aviation.
That resolution expressed grave concem at the threat to innocent civilian lives and
called on ali States to take ail possible legal steps to prevent any interference with
international civil aviation. On 9 October 1985, the Council issued a statement
deploring the killing of a passenger during the hijacking of the Italian passenger ship
187
Achille Lauro, and condenming hijacking and other forms of terrorism. In
December 1985, Resolution 579 condemned ali acts of hostage-taking and abduction.
A statement issued by the Council in the same month condem.ned the attacks on Rome
188 189
and Vienna airports. A further statement was issued on 28 January 1987.
4.187 A few days after the Lockerbie bombing itself, the President of th.e Security
Council made a statement on behalf of the members of the Council strongly
condemning the destruction of Flight PA 103 and calling upon ali States to assist in
190
the apprehension and prosecution of those responsible for the crirne. The
Lockerbie bombing also led the Security Council to adopt Resolution 635 (1989),
which condemned all acts of unlawful interference with the safety of civil aviation,
called upon all States to co-operate in measures to prevent terrorism and urged ICAO
184
Minutes of the Legal Committee ofiCAO, 18th Session, 1970, ICAO Doc. 8936-LC/164-1, p.
229 (France); Minutes of the Legal Committee of ICAO, 20th Session, 1973, Vol. II, ICAO
Doc. 9050-LC/169-2, p. 220 (Libya), p. 231 (Sweden)
!85 Minutes ofthe Legal Commîttee ofiCAO, 20tbsession, 1973, VoL II, ICAO Doc.9050-LC/169-
2, p. 105, para. 55.3.
!86 Annex 24.
!87 UN Doc. S/17554 (Annex 31).
188
UN Doc. S/17702 (Annex 32).
!89 UN Doc. S/18641 (Annex 35).
!90 UN Doc. SC/5057, 30 December 1988 (Annex 38).
142 :.-.'.
to intensify its work on devising an international regime for the marking of explosives
to facilitate detection.191
4.188 On 31 January 1992, the President of the Security Council made a statement
on behalf of the members of the Council at the conclusion of the meeting held at the
levet of Heads of State and Government, in connection with the item entitled "The
Responsibility of the Security Council in the Maintenance of International Peace and
Security", which included the following passage:
"The members of the Council express their deep concem over acts of
international terrorism and emphasize the need for the international
192
comrnunity to deal effectively with ali such acts."
4.189 That concern has been reiterated by the Security Council on a number of
subsequent occasions. On 31 January 1996, following an attempt to assassinate the
President of Egypt (while on a visit to Ethiopia) by persans who then fied to Sudan,
the Security Council adopted Resolution 1044, the preamble to which stated that "the
suppression of acts of international terrorism, including those in which States are
involved, is an essential element for the maintenance of international peace and
security". The Resolution condemned the terrorist assassination attempt, deplored the
violation of the territorial integrity of Ethiopia, "and the attempt to disturb the peace
and security of Ethiopia and the region as a whole," and called upon Sudan to comply
with requests from the OAU to extradite the suspects to Ethiopia for trial and desist
193
from supporting terrorism.
4.190 That Resolution was followed by Resolution 1054, adopted on 26 Aprill996
194
by thirteen votes to none with two abstentions. Resolution 1054 reaffirmed that the
suppression of acts of international terrorism was essential for the maintenance of
international peace and security and determined that Sudan's failure to comply with
!91
These moves led to the adoption, on l March 1991, ofthe Convention on the Marking of Plastic
Explosives for the Purpose of Detection, 30 International Legal Materials (I991) 721.
192 Annex 49.
193 Annex 110.
!94
Annex 111.
143the requests set out in the relevant paragraph of Resolution 1044 was a threat to
international peace and security. The Resolution went on to state that the Council,
"determined to eliminate international terrorism and to ensure effective
implementation of resolution 1044 (1996) and to that end acting under Chapter VII of
the Charter of the United Nations", demanded Sudan's compliance and decided that
ali States were to impose specified sanctions on Sudan if it had not complied by a
given date. The sanctions regime was further strengthened in Resolution 1070,
adopted on 16 August 1996 by the same majority. 195
4.191 Most recently, on 13 August 1998, the Council unanimously adopted
Resolution 1189 (1998), in the a:ftermath of the bombings in Nairobi and Dar-es
Salaam.196 That Resolution stated in its preamble that "the suppression of acts of
international terrorism is essential for the maintenance of international peace and
security" and reaffinned the determination "of the international community to
eliminate international terrorism in ali its forms and manifestations".
4.192 Contrary to what is suggested by Libya, the approach of the Security Council
has been mirrored by that of the General Assembly, which has adopted a number of
resolutions condemning terrorisrn. Of particular note îs the Declaration on Principles
of International Law conceming Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations (Resolution 2625 (XXV)), which
dealt with the problem of terrorisrn in the context of Charter obligations related to the
use of force:
"Every State bas the duty to refrain from organising, instigating, assisting or
participating in acts of civil strife or terrorist acts in another State or
acquiescing in organised activities within its territory directed towards the
commission of such acts, when the acts referred to in the present paragraph
involve a threat or use offorce."197
195
Annex 112.
1% Annex 120.
197 Annex 22.
1444.193 In a number of resolutions on the subject of terrorism adopted in the 1990s
and carried by large majorities, the Assembly expressed its continuing concern with
198
international terrorism. On 9 December 1994, the General Assembly adopted,
without vote, a Declaration on Measures to Eliminate International Terrorism. The
Assembly there expressed its conviction:
"that the suppression of acts of international terrorism, including those in
which States are directly or indirectly involved, is 199 essential element for
the maintenance of international peace and security."
Most recently, on 15 December 1997, the General Assembly adopted Resolution
52/164, to which was annexed a Convention for the Suppression of Terrorist
Bombings, the preamble to which recalled the 1994 Declaration. 200
4.194 'Whileit is for the Security Council, under the scheme of the United Nations
Charter, to determine the existence of particular threats to international peace and
security, it is clear from these resolutionsthat the General Assembly has shared the
view of the Co uncil that acts of international terrorism are capable of posing a threat
to international peace and security.
4.195 The Security Council's determination, in Resolution 748 (1992), that there
was a threat to international peace and security was therefore firmly based upon
practice over a long period. It was certainly not "a mere figment or pretext", to
01
ernploy the test suggested by Sir Gerald Fitzmaurice.Z By any test, the
determination that "the failure by the Libyan Govemment to dernonstrate by concrete
actions its renunciation of terrorism" was objectively justified and falls weil within
the margin of appreciation which the Security Council possesses under Article 39 of
the Charter.
!98 Resolutions 31/102, 32/147, 34/145, 36/109, 381130,40/61, 42/159, 44129,46/51.
!99 UN Doc. A!RES/49/60 (Annex 81). See also the Declaration annexed to Resolution 51/210
(Annex 114).
200 Annex 117.
201
Legal Consequences for States of the Continued Presence of South A.frica in Namibia (South
West A/rica) notwithstanding Securîty Council Resolution 276 (1970), Advisory OICJion,
Reports, 1971,p. 16,p293 atpara. 112.
1454.196 The second limb of the Article 39 determination in Resolution 748, namely
that Libya's "continued failure to respond fully and effectively to the requests in
resolution 731 (1992)" constitutes a particular example of its failure to demonstrate by
concrete actions its renunciation of terrorism and thus amounts to part of the threat to
peace and security, is also weil within the powers of the Council. It has already been
seen that the Council regards the suppression of international terrorism as an essential
element in the maintenance of peace. That necessarily implies bringing to justice
persons accused ofterrorist offences. The Council has accordingly required that States
surrender such accused persons for trial both in the Lockerbie and the "Sudan"
resolutions. Similarly, in the resolutions establishing the International Criminal
Tribunal for the Former Yugoslavia and the International Criminal Tribunal for
Rwanda, the Council has required States to co-operate in bringing to trial persons
202
accused of war crimes, crimes against humanity and genocide. The status of such
requirements as measures designed to address a threat to the peace is considered in the
next sub-section. For present purposes, it is suf:ficient to note that, if they are
legitimate means of addressing such a threat, theo the failure of a State or States to
comply with them is capable, in itself, of constituting a threat to international peace.
4.197 It is also relevant to note that the determination that there was a threat to the
peace cannet be regarded as an isolated act undertaken by the Security Council at a
particular moment in its history. The determination contained in Resolution 748 was
expressly recalled in Resolution 883. In addition, the periodic reviews of sanctions
mean that every State which hasbeen a member of the Council between 1992 and the
present date - sorne forty-seven in total, i.e. morethan a quarter of the membership of
the United Nations- has been involved in the application of the Council's decisions
in respect of Libya. None of the States which was a member of the Council at the
time of the adoption of any of the three Resolutions voted against its adoption. None
of those members who abstained suggested that the Council was wrong to fmd that
there was a threat to international peace and security. In these circumstances, itis
submitted that Libya's argument that the Co_uncilhas never had any objective grounds
for finding that there existed a threat to international peace and security, and that the
202
Resolutions 827 {1993) (Annex 105) and 955 (1994) (Annex 108).
146Council's determination that such a threat existed an;tountedto an abuse of power, is
wholly unsustainable.
4.198 The other premise of the Libyan argument is that the CoWicilacted from
improper motives in finding that there was a threat to the peace. The Libyan
argument on this pointis, to say the least, con:fused. Libya is unable to point to any
evidence of impropriety on the part of the members of the Council. Instead, it
contends once more that the Resolutions regarding Lockerbie stand in "splendid
isolation" differing from the practice of the Council and the Assembly in ether
cases.203 In support of this contention, Libya invokes the Council's Resolution 138
(1960) regarding the abduction of Adolf Eichman, a resolution which hasno bearing
whatsoever on the issues in the present case and, also, the fact that in two ether cases
from the 1990s in which States declined requests for the extradition of persans
suspected of terrorist offences, the Security Couneil was not seised of the matter. On
that basis, the Council is accused of inconsistency.
4.199 In any legal system the allegation that a public body bas acted from improper
motives is not one lightly to be made, let alone accepted. Libya, on the ether band,
bas accused the Council and its members of impropriety on the basis of comparison
with a decision of more than thirty years ago, which bears no comparison with those
in the present case, and the fact that two other matters were never brought before the
Council at ali. The paucity of the material invoked by Libya and its complete lack of
relevance to the present case demonstrates the weakness of Libya's case on this point.
4.200 Libya's statement that "the General Assembly does not, in its resolutions on
international terrorism, make any reference to the concepts of a danger or a threat to
204 205
the peace", is quite simply untrue. The 1994 Declaration quoted above
demonstrates that the Assembly, like the Council, hascharacterized such actions as a
203 LibyanObservations,paras.4.14- 4.15.
204
Ibid.para.4.14.
205 Seepara. 4.193,above.
147threat to international peace and security. Moreover, the ICAO materials quoted
above show that this characterization is not something new.
4.201 Libya's only other argument is that the Council's finding of a threat to the
peace was based upon a general and abstract proposition and its action was aimed at
the avoidance of future terrorist acts. In fact, however, Resolution 748 was quite
specifie in finding that it was Libya's failure to demonstrate by concrete acts its
renunciation ofterrorism and, in particular, its failure ta surrender the accused for trial
which was the threat ta the peace. There is nothing "general and abstract" about that
finding. Libya's allegations that it should have been followed by a more consistent
attitude on the part of the Couneil have already been addressed. 206
3. The Security Council acted validly in adopting the measures taken in
Resolutions 748 and 883
4.202 Libya argues that even if the Security Council was entitled to find that there
was a threat to the peace, it had no power to require Libya ta surrender the two
accused for trial in Scotland or the United States as a means of addressing that threat.
Libya contends that no provision in the Charter expressly confers such a power.
4.203 The relevant provisions of the Charter are, however, in very broad tenns.
Thus, Article 41 provides that:
"The Security Council may decide what measures not involving the use of
anned force are to be employed to 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 and of rail, sea,
air, postal, telegraphie, radio, and other means of communication, and the
severance of diplomatie relations."
The Appeals Chamber of the International Criminal Tribunal for the Former
Yugoslavia addressed the scope of Article 41 in the Tadic (Jurisdiction) decision:
2()6
Libya also contends that the Security Council acted improperly beitdetermined that there
was a threat to the peace solelyorder to take measuresitcould not otherwise have taken.
This allegation has already been dealt with.paras. 4.153 to 4.159, above.
148 .·. t
....'·
).;;~
"Once the Security Council detennines .that a particular situation poses a
threat to the peace or that there exists a breach of the peace or an act of
aggression, it enjoys a wide margin of discretion in choosing the course of
action ...
As with the detennination of the existence of a threat to the peace, a breach
of the peace or an act of aggression, the Security Council has a very wide
margin of discretion under Article 39 to choose the appropriate course of
action and to evaluate the suitability of the measures chosen as weil as their
potential contribution to the restoration or maintenance of peace. But here
again, this discretion is not unfettered; moreover, it is limited to the measures
207
provided for in Articles 41 and 42."
4.204 The Appeals Chamber went on to say:
"It is evident that the measures set out in Article 41 are merely illustrative
examples which obviously do not exclude other measures. Ail the Article
requires is that they do not involve "the use of force". It is a negative
definition. "208
In ether words, the measures that the Council may take under Article 41 are not
confined to the economie sanctions listed by way of example in the second sentence
of that Article. The Appeals Chamber in Tadic had no hesitation in concluding that
such measures could include making provision for those accused of seriaus violations
of international law to stand trial. \Vhile the Appeals Chamber considered that the
article envisaged primarily action by the Members of the United Nations, it was also
capable of including the establishment by the Security Council of an international
criminal tribunal and the imposition upon States of a duty to co-operate with that
tribunal, inter a/ia, by surrendering for trial persans, including their own nationals,
whom they would otherwise have been entitled to try themselves.
4.205 In considering whether the establishment of the tribunal was an appropriate
measure under Chapter VII, the Appeals Chamber said:
"Article 39 leaves the choice of means and their evaluation to the Security
Council, which enjoys wide discretionary powers in this regard; and it could
not have been otherwise, as such a choice involves political evaluation of
highly complex and dynamic situations.
207
Prosecutor v. Tadic (Jurisdiction), Decision of2 October 1995, 105 ll..R419 at paras. 31-32.
208 Ibid.,para.35.
149 It would be a total misconception of what are the criteria of legality and
validity in law to test the legality of such measures ex post facto by their
success or failure to achieve their ends .... "09
4.206 If the threat to the peace takes the form of the commission of offences -
whether those of terrorism, as in the present case, or war crimes, crimes against
humanity and genocide, as in the case of the former Yugoslavia - and the aim is the
suppression of such acts, it is entirely natural and appropriate that the Security
Council should require the trial before a particular forum of those suspected of the
commission of such offences. It hasnow done so in three cases, in addition to that of
210 11
the Lockerbie accused- namely, in the case of the former Yugoslavia, Rwanda/
12
and the case of the attempted assassination of President Mubarak.Z Thus, while
Resolution 748 was the fust to require aState to surrender accused persons for trial, it
is by no means the only example of the Council adopting such a measure.
4.207 Libya, however, counters that the measures taken by the Council rn
Resolution 748 were ultravires on two counts:-
(a) because the Council does not have the power to override the rights of a
State under other rules of international law, in this case the Montreal
Convention; and
(b) because the measures taken in Resolution 748 were contrary to Article
2(7) of the Charter.
Neither ofthese arguments is weil founded.
4.208 So far as the :firstargument is concerned, it is clear that while the Council can
deal only with specifie situations and cannot alter the rules of international law with
209 Ibid.,para. 39.
210
Resolution 827 (1993) establishing the International Criminal Tribunal for the Fonner
Yugoslavia (Annex 105).
211 Resolution 955 (1994) establishing the International Criminal Tribunal for Rwanda (Annex
108).
212 Resolutions 1044 (1996) (Annex Il 0), 1054 (1996) (Annex 111) and 1070 (1996) (Annex 112).
150general effect, when it acts under Chapter VII it can require States ta take .action
which would otherwise be in coirllict with their treaty obligations. Indeed, it is
di:fficultto see how the type of measures specifically listed in Article 41 could be
given effect without overriding the provisions of other treaties. The severance of air
communications, for exarnple, will inevitably involve action which would nonnally
be contrary to the Chicago Convention, as weil as bilateral agreements concluded
pursuant to that Convention. Similarly, when the Council imposed sanctions upon the
Federal.Republic of Yugoslavia, it necessarily required States to act in a way which
would normally have been incompatible with the legal regime for navigation on the
River Danube. The Security Council made clear that the obligation to comply with
the Council's decisions took priarity over the terms afthe navigation conventians? 13
Ail sanctions resolutions have involved requiring States to perform acts which they
were not otherwise required to perform and, in many cases, ta abstain from acts which
under the general law they bad a right ta perfarm.
4.209 Libya's argument to the contrary depends upon the proposition that the
Montreal Convention is bath lex specialis and lex posterior vis-à-vis the United
Nations Charter and that, accordingly, the Council was required to act only in
accordance with its provisions. This argument stands the structure of international
law on its head. 1t would mean that the Council's power to take measures under
Chapter VII would be limited by aliof the numerous treaties, past or future, bilateral
as weil as multilateral, which may be in force at any given time. There is no
indication that this was the intention of the draftsmen of the Charter and no authority,
judicial, arbitral or juristic, in support of such a proposition, the acceptance of which
wauld have the effect of neutering not only the Security Council but the entire United
. 214
N at10nssystem.
4.210 Moreover, while the effect of Resolution 748 was to require Libya to do
something which it was not required to do under the terms of the Montreal
Convention, the result which the Council required is not in any way incompatible with
213 Security Council Resolutions 787 (1992), para. 13, and 820 (1993), para. 17.
214 See, further, paras. to84.96, above.
151the objectives of that Convention. The objective of the Montreal Convention is to
ensure that those accused of the crimes listed in Article l are effective! y brought to
justice. It is to that end that the Convention specifically provides for trial to occur in
one of a list of States, including the State where the crime was committed (in this case
the United Kingdom), the State of registration of the aircraft (in this case the United
States) and, in certain circumstances, the State in which the accused happen to be
present (in this case Libya). By requiring that trial take place in the United Kingdom
or the United States, the Security Council was acting ta bring about one of the results
specifically envisaged in the Montreal Convention.
4.211 Nor is there any merit in the suggestion that the decision of the Council
învolves an infringement of the rights of the two accused (as opposed to the rights
claimed by Libya itselt). International law does not provide for individuals accused
of offences to choose the jurisdiction in which they will be tried. There is no basis in
international law for asserting such a right, and arguments ta the contrary have
recently been rejected by the Appeals Chamber of the International Criminal Tribunal
215
for the Former Yugoslavia in Tadic, and the International Criminal Tribunal for
216
Rwanda in Kanyabashi. The requirement that the accused be surrendered for trial
cannot, therefore, in itself, involve a violation of their rights. Libya's argument that
the rights of the accused would be violated, because they could not receive a fair trial
in Scotland is contradicted by the evidence regarding the Scottish trial system, the
report to the Secretary-General and Libya's own admissions. These matters have
217
been dealt with above.
4.212 Again, comparison with the resolution establishing the International Criminal
Tribunal for the Former Yugoslavia is instructive. That resolution also requires States
to surrender accused persans for trial before the Tribunal if called upon to do so. Yet
prier to the adoption of Resolution 827 (1993), no such obligation existed and aState
in which such persons were found bad the same rights and obligations in respect of
215
Prosecutor v. Tadic {Jurisdiction), Decision of2 October 1995, 105 ILR 419, at paras. 61-64.
216 Prosecutor v. Kanyabashi, Decision18June 1997, paras. 30-32.
217 See, para. 4.57, above, and Annex 85.
152those accused of grave breaches of the Geneva Conventions as Libya daims under the
Montreal Convention, because the aut dedere aut punire provisions of the Geneva
218
Conventions are similar to those of the Montreal Convention. Accordingly, if
Libya's argument is weil founded, not only is Resolution 748 irnpugned, so are the
resolutions establishing the Yugoslav~R Waridatribunals.
4.213 The Libya arg~ment that the Security Council has acted contrary to Article
2(7) of the Charter is also without foundation. Article 2(7), it will be recalled
provides that:
"Nothing contained in the present Charter shaH authorize the United Nations
to intervene in matters which are essentially within the domestic jurisdiction
of any state or shall require the Members to submit such matters to
settlement under the present Charter; but this principle shall not prejudice the
application of enforcement measures under Chapter VII."
4.214 Libya's argument, albeit tortuous, appears to be that the requirement that
Libya band over the two accused is ari intervention in domestic affairs, but is not
19
itself anenforcernent measure" under Chapter VII.Z The argument is not easy to
follow.lt depends frrstly upon the assertion that the place oftrial ofthose accused of
the Lockerbie atrocity is a matter "essentially within the domestic jurisdiction" of
Libya, and, secondly, upon the argument that there is a necessary interrnediate step
between the Council detennining the existence of a threat to the peace under Article
39 arid deciding on measures to deal with it under Article 41. In both respects, Libya
misinterprets Article 2(7) and takes no accounthe practice of the Security Couneil
ar~ tde application of Chapter VII of the Charter over thaeha~f a century.
4.215 The argwnent that matters to do with the trial of the accused are essentially
within the domestic jurisdiction Libya is fundamentally inconsistent with Libya's
bringing the present case which it bases on rights allegedly conferred Montreal
Convention. lt has iar~ event been demonstrated (in paragraphs 4.182 to 4.201)
that international terrorism cari constitute a threat to international peace and security.
218
See, e.g., Geneva Convention, No. IV, Relative to the Protection of Cîvilîan Persons in Time of
War, 1949, Art. 146,75 UNTS 287.
219 LibyanMemoriai,para6.98.
153As such, it cannot be said to be a matter essentially within the domestic jurisdiction
of any one State.
4.216 According to the Libyan argument, the Council could find that the matters
before it in March 1992, including Libya's failure to hand over the two accused as
urged by Resolution 731, constituted a threat to international peace and security. The
Council would, however, have had no means by which to address that threat, since
Libya's right to legislate in such a way as to disallow the extradition of its own
nationals and therefore, the whole question of where the accused were tried, was a
matter within Liby a's domestic jurisdiction.
4.217 This interpretation of Article 2(7) is a simplistic one. The issue of whether a
matter can at one and the same time give rise to a determination of a threat to
international peace and security, and yet be essentially within the domestic
jurisdiction of aState is not even addressed. Yet this is a fundamental question. For
Libya's argument assumes that the requirement that two of its nationals be handed
over is of equivalent weight to a genuine interference in its domestic jurisdiction,
such as a requirement that it effect a general change in its legislation with respect to
the non-extradition of nationals. This is not the case. That the Security Council has
the power to require the former, but not the latter, is clear even from the Dissenting
Opinion of Sir Gerald Fitzmaurice in the Namibia case, on which Libya so often
relies. For, it is accepted there that although "[e]ven when acting under Chapter VII
of the Charter itself, the Security Council has no power to abrogate or alter territorial
rights, whether of sovereignty or administration",
"the Security Council might, after making the necessary determinations
under Article 39 of the Charter, order the occupation of a country or piece of
territory in order to restore peace and security, but it could not thereby, or as
part ofthat operation, abrogate or alter territorial rights."20
220 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstandingecurity Councîl Resolution 276 (1970), AcMsory Opinion, ICJ
Reports, 1971, p. 16, Dissentingion of Sir Gerald Fitzmaurice, p. 294, para. 115 (emphasis
added). -
1544.218 The absence of such a power would create a wholly unwarranted lacuna in
the Charter and would lead to Iudicrous results. For example, by Resolution 713
(1991) and acting under Chapter VII, the Security Council decided that ali States
should implement a complete embargo on the supply of weapons to Yugoslavia.
According to Libya's argmnent, this decision would be invalid, for Libya interprets
Article 41 as only allowing the Council "to give effect" to decisions already taken,
whereas here the Security Council proceeded directly to the imposition of a sanctions
measure. Sirnilar comments could be made in relation to Resolution 1160 (1998),
deciding on the prevention of the sale or supply of anns to the Federal Republic of
Yugoslavia, including Kosovo.
4.219 If Libya accepts, as it must, that the Security Council can validly impose
sanctions pursuant to Article 41 without reference to an extraneous decision, the
result is no less ludicrous. For this would mean, in the current case, that the Council
had the power ta determine that the matters before it, including Libya's failure to
hand over the two accused, constituted a threat to international peace and security,
and the power to impose sanctions as a result, but bad no power to put in place the
mechanism through which the sanctions could be brought to an end, that is, inter alia,
on the baoding over of the two accused.
4.220 Finally, the only logical outcome of Libya's restricted interpretation of the
powers conferred by Chapter VII, and its expansive interpretation of the restrictions
imposed by Article 2(7), would be that ali the resolutions of the Security Council
requiring the trial before a particular forum of those suspected of the commission of
222
offences in relation to the former Yugoslavia, 221 Rwanda, and the atternpted
223
assassination of President Mubarak, were ultra vires. Yet it is evident that,in the
case for example of the creation of the International Criminal Tribunal for the Former
Yugoslavia, the measure decided on by the Security Council was far closer to a real
22! Resolution 827 (1993) establishing the International Criminal Tribunal for the Former
Yugoslavia (Annex 105).
222
Resolution 955 (1994) establishing the International Criminal Tribunal for Rwanda (Annex
108).
223 Resolutions 1044(1996) (Annex llO), 1054 (1996) (Annex Ill) and 1070(1996) (Annex 112).
155intervention in the domestic jurisdiction of a State. The United Kingdom submits,
however, that none of the resolutions referred to above were ultra vires, and that it is
Libya, not the Security Council, that has misinterpreted the extent and scope of the
powers conferred by Chapter VII.
4. The Security Council was entitled to determine that Libya bad not
complied with the requirements of Resolution 748 .
4.221 Libya also argues that the Council has acted improperly in not accepting that
Libya has already complied with the requirements of Resolution 748. This argument
depends upon Libya's reading of what that Resolution requires. This matter has
already been addressed in paragraphs 4.9 to 4.61, above. Once it is accepted that
Resolution 748 required Libya to surrender the two accused for trial in Scotland or
the United States, it is manifest that Libya has not so far complied with that
requirement and Libya's argum.enton this point falls away.
156 Chapter5
Conclusions regarding the Effects of the Security Council
Resolutions on the Obligations of the Parties
4.222 It has already been pointed out that the decisions of the Security Council
contained in Resolutions 748 and 883 impose requirements on both Libya and the
United Kingdom. The obligation under Article 25 of the Charter to carry out those
decisions takes priority over the rights and obligations of bath States under the
Montreal Convention. The United Kingdom submits that this has the following
consequences for the present proceedings:
(a) Libya's obligation to surrender the accused for trial in accordance with
the decisions of the Security Council prevails over any inconsistent
rîght which it may claim under Article 7of the Montreal Convention;
(b) The obligation of the United K.ingdomto co-operate in achieving the
goal required by the Security Council, namely ensuring that a trial
takes place in accordance with the decisions of the Couneil, precludes
it from taking any action which would frustrate or hinder the
achievement of that objective. The United Kingdom is thus under an
obligation, as a result of the decisions of the Council, not to take action
to promote the holding of a trial in any venue ether than those selected
by the Council. This means that the United Kingdom is obliged not to
transfer evidence to Libya for use in a trial there. That obligation
prevails over any obligation which the United Kingdom might have
under Article 11 of the Montreal Convention and means that the
United Kingdom cannat be in breach ofthat provision;
(c) Even in respect of the period before the adoption of Resolution 748,
the United Kingdom was not in breach of Article 11 of the Montreal
Convention. Although Resolution 731 was not adopted under Chapter
157 VII of the Charter, it is not without effect upon the Parties. The United
Kingdom was entitled to take into account that the Security Council
had called for trial to take place in Scotland or the United States and
this fact justified it in not transferring evidence to Libya (even if,
which the United Kingdom has refuted in Part 3 of this Counter
Memorial) such an obligation would otherwise have existed;
(d) Since the adoption of Resolution 748 on 31 March 1992, ali of the acts
by which the United Kingdom is said by Libya to have sought to 'set
aside' the Montreal Convention have consisted of the implementation
of decisions of the Security Council. The United Kingdom had a legal
obligation under the Charter to take these steps in order to carry out the
decisions of the Security Couneil. Since that obligation prevails over
any obligations under the Montreal Convention, the conduct of the
United K.ingdom cannot be "at variance with the Montreal
Convention".
158 PARTS
RESOLUTION 1192 (1998)
5.1 The purpose of this Part of the Counter-Mernorial is to inform the Court of events
subsequent to the Court's Order of 30 March 1998 which have an important bearing on the
issues which may arise for decision in the case. Accordingly, Section A describes a new
initiative for a resolution the dispute through the trial of the two accused before a Scottish
court sitting in the Netherlands; Section B sets out the tenns Security Council Resolution
1192 (1998) and assesses its legal consequences; Section C offers a brief description of
events from the adoption of Resolution 1192to the date on which this Counter-Memorial was
sent for printing. Part 5 is therefore necessarily incomplete. The final outcome of intense
diplomatie activity by the Secretary-General under the provisions of Resolution 1192 is not
yet known. It will have an important bearing on the present proceedings. The United
Kingdom is thus obliged to reserve its right to supplement the present text once that point is
reached.
Section A: The Third Country Tria/Initiative
5.2 It has been demonstrated, in Part 4 of this Counter-Memorial, that the Security
Couneil decisions contained in Resolutions 748 and 883 imposed obligations on both Libya
and the United Kingdom. Specifically, Libya was required, inter alia, to ensure the
appearance of the two accused for trial before an appropriate Scottish or United States court.
The United Kingdom was required to co-operate in ensuring that this goal was achieved. It
must be stressed that these were mandatory requirements, which each State was under a legal
obligation to carry out, not matters for negotiation between them. The United Kingdom was
accordingly neither able, nor willing, to enter into discussions with Libya about other trial
proposais.
Annex 87.
1595.3 Nevertheless, by the summer of 1998, with the tenth anniversary of the Lockerbie
atrocity approaching, more than six years had passed since the Security Council frrst called
for the accused to be produced for trial, but without any sign that Libya was prepared to
comply with its obligations. While deeply deploring this situation, the Governments of the
United Kingdom and the United States decided to make a last attempt to explore a fresh basis
for a diplomatie seUlement to the issue. It was axiomatic that any fresh proposais would have
to be put to the Security Council for its endorsement, since the Council alone bas the power
to modify the requirements of its earlier decisions.
5.4 Accordingly, the Government of the United Kingdom, m consultation with the
Govemment of the United States, entered into discussion with the Government of the
Netherlands to explore the conditions under which the accused might be tried before a
Scottish court sitting in the Netherlands. Agreement was reached on the tenns of a treaty and
associated documents necessary to put the proposais into immediate practical effect, and the
United Kingdom drew up the necessary internai legislation for that purpose. These
arrangements replicated in every respect those that would apply to a criminal trial in Scotland
itself, with the sole exception that there would be no jury, but instead a court composed of
three judges in place of the usual single judge. Ail of the guarantees previously
communicated to Libya in respect of the pre-trial and trial procedure, and the role of
2
international observers, would, of course, apply.
5.5 The terms of the initiative were set out in a joint letter of 24 August 1998 to the UN
Secretary-General from the United Kingdom and the United States Permanent Missions. The
3
documents referred to above were annexed to that letter. The letter proposed the adoption of
a further resolution by the Security Council endorsing the initiative.
2
Withregardto thoseguarantees,see the Reportof Dr DumbutshenaandProfessorSchermers,UNDoc.
511997/991 (Annex 85).
S/1998/795 (Annex 86).
1605.6 In taking this initiative, the Govemment of the United Kingdom had taken full
account of the proposais for a trial in the Netherlands which bad been put fonvard by various
regional organisations, such as the Organisation of African Unity, the League of Arab States,
the Organisation of the Islamic Conference and the Non-Aligned Movement. The positions
taken by those organisations were, in fact, expressly referred to by the Security Council in
Resolution 1192. The United Kingdom was also, of course, aware that the Libyan
Government bad said on numerous occasions, including in statements made to the Court and
the Security Council, that it favoured the trial of the accused before a Scottish court sitting in
the Netherlands.
Section B: Resolution 1192 (1998)
5.7 Three days after the United Kingdom and the United States wrote to the Secretary
6
General, the Security Councii unanimously adopted Resolution 1192. Its full text is set out
at paragraph 5.8 below. Acting once again under Chapter VII of the United Nations Charter,
the Security Council welcomed the initiative, called upon the Govemments of the
Netherlands and the United Kingdom to take such steps as were necessary to implement it,
and required the Libyan Governrnent to ensure the appearance of the accused in the
Netherlands for the purpose of the trial as proposed and to co-operate over the provision of
evidence or witnesses. The Secretary-General was requested to assist the Libyan
Government with the physical arrangements for the safe transfer of the accused. The
Resolution makes specifie provision for the immediate suspension of the sanctions imposed
by the Security Council as soon as the Secretary-General bas reported that the two accused
4
See, e.g., CR 97/20, p. 18, para. 2.16.
Most recentlyin the debate held on 20 March 1998, the Representative of Libya said that Libya bad
accepted the idea of a trial before Scottish judges in the Netherlands. The Representclearthate
Libya's objection to trial inland was based upon the premise that "Scotland offers a climate which
wouid not be conducive to a just and fair trial" but that the Libyan Government bad no criticism either of
Scottish law or the Scottish judiciary, UN Doc. StPV. 3864, p. 9 (Annex 118)See also UN Doc.
S/26859 (Annex 74) and S/1994/900 (Annex 75).
6 Annex 87.
161have arrived in the Netherlands for trial, and conversely for the continuance of sanctions if
the two accused do not arrive or appear for trial promptly.
5.8 The following are the tenns of Resolution 1192 (1998):
"The Security Council.
Recalling its resolutions 731 (1992) of 21 January1992, 748 (1992) of 31 March
1992 and 883 (1993) of 11November 1993,
Noting the report of the independent experts appointed by the Secretary-General
(S/1997/991),
Having regard to the contents of the letter dated 24 August 1998 from the Acting
Permanent Representatives of the United Kingdom of Great Britain and North.em
1reland and of the United States to the Secretary·General (S/1998/795),
Noting also, in light of the above resolutions, the conununications of the
Organisation of African Unity, the League of Arab States, the Non-Aligned
Movement and the Islamic Conference (S/1994/373, S/1995/834, S/1997/35,
S/1997/273, S/1997/406, S/1997/497, S/1997/529) as referred to in the letter of 24
August 1998,
Acting under Chapter VIl of the Charter of the United Nations,
1. Demands once again that the Libyan Government immediately cornply with the
above mentioned resolutions;
2. Welcomes the initiative for the trial of the two persons charged with the bombing
of Pan Am 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 Kingdom of Great Britain and Northern
Ireland and of the United States of America ("the iriitiative") and its attaclunents,
and the willingness of the Govenunent of the Netherlands to cooperate in the
implementation of the initiative;
3. CaUs upon the Government ofthe Netherlands and the Govenunent of the United
Kingdom to take such steps as are necessary to implement the initiative, including
the conclusion of arrangements with a view to enabling the court described in
paragraph 2 to exercise jurisdiction in the tenns of the intended Agreement between
the two Governments, attached to the said letter of24 August 1998;
4. Decides that ali States shaH co-operate to this end, and in particular that the
Libyan Govemment shall ensure the appearance in the Netherlands of the two
accused for the purpose of trial by the court describedin paragraph 2, and that the
162 ..·"1'.
Libyan Govemment shall ensure that any evidence or 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;
5. Requests the Secretary-General, after consultation with the Government of the
Netherlands, to assist the Libyan Govemment with the physical arrangements for the
safe transfer of the two accused from Libya direct to the Netherlands;
6. Invites the Secretary-General to nominate international observers to attend the
trial;
7. Decides further that, on the arrivai of the two accused in the Netherlands, the
Government of the Netherlands shall detain the two accused pending their transfer
for the purpose of trial before the court described in paragraph 2;
8. Reaffirms that the measures set forth in its resolutions 748 (1992) and 883 (1993)
remain in effect and binding on all Member States, and in this context reaffirms the
provisions of paragraph 16 of resolution 883 (1993), and decides that the
aforementioned measures shall be suspended immediately if the Secretary-General
reports to the Council that the two accused have arrived in the Netherlands for the
purpose of trial before the court described in paragraph 2 or have appeared for trial
before an appropriate court in the United Kingdom or the United States, and that the
Libyan Govemment has satisfied the French judicial authorities with regard to the
bombing of UTA 772;
9. Expresses its intention to consider additional measures if the two accùsed have not
arrived or appeared for trial promptly in accordance with paragraph 8;
10. Decides to remain seized of the matter."
5.9 Severa}features require comment. First, the terms of Resolution 1192 are the clearest
possible confirmation that Resolutions 748 and 883 required Libya to surrender the accused
for trial before an appropriate Scottish or United States court and that the contrary
interpretations of those Resolutions advanced by Libya are wholly without foundation. In
particular, the provision in paragraph 8, that sanctions shall be suspended immediately if the
Secretary-General reports to the Council that the two accused had arrived in the Netherlands
for trial "or have appeared for trial before an appropriate court in the United Kingdom or the
United States, and that the Libyan Goven:unent has satisfied the French judicial authorities
with regard to the bombing of UTA 772", is compatible only with the interpretation of the
earlier Resolutions set out in paragraphs 4.35 to 4.61, above. The additional possibility,
163namely that Libya could comply with the requirements of the Council by producing the two
accused for trial before a Scottish court in the Netherlands, applied with effect from the date
of adoption of Resolution 1192. The terms of its paragraph 8 recon:finn, yet again, the
Council's view that its earlier Resolutions required that Libya surrender the two accused for
trial before an appropriateScottish or United States court.
5.10 Secondly, Resolution 1192 shows that it was the unanimous view of the Security
Council (the membership of which had changed since Resolutions 748 and 883 were
adopted) that Libya had failed to comply with the decisions contained in those earlier
Resolutions. In the debate before the adoption of Resolution 1192, the Representative of
Libya expressly raised this issue and complained that the preamble and operative paragraph 1
of the Resolution gave "the impression that the resolutions have been implemented neither in
7
part nor in their entirety, although my country has fully responded to those resolutions". By
adopting the Resolution the Council made clear that it disagreed.
5.11 Thirdly, Resolution 1192 shows the Council unanimously confirming its earlier
determination that there was a threat to international peace and security, as weil as its
decision that requiring the trialof the two accused was a necessary measure to address that
threat. In this context, it is important to note that the Representative of Libya, while
reiteratîng Liby a's allegation that Resolution 731 had been adopted without regard to the
provisions of Article 27(3) of the Charter, did not dispute the power of the Council to adopt
Resolution 1192 or the right of the United Kingdom, the United States or any other State to
vote on the draft resolution. Nor did the Representative of Libya make any reference, in the
course of his long speech, to the Montreal Convention (other thanas the basis on which the
Court had decided in February 1998 that it possessedjurisdiction). 8
5.12 Finally, the Resolution imposes fresh obligations upon the United Kingdom as weiL
7 S/PV. 3920,p.4 (Annex 88).
1645.13 Paragraph 3 requires the United Kingdom to take the necessary steps to implement
the initiative for trial in the Netherlands. That was done soon after the adoption of the
Resolution. The Agreement with the Netherlands was finalised and signed by representatives
9
of the two Govemments on 18 September 1998 and the United Kingdom legislation .was
10
adopted and entered into force on 16 September 1998. In addition, the United Kingdom is
bound by paragraphs 3 and 4 to co-operate to ensure that the trial takes place in the
Netherlands as required by the Council. As with Resolutions 748 and 883, the United
Kingdom would be in breach of this obligation if it were to respond to demands from Libya
for the transfer of evidence to assist in a trial in Libya, since such action would clearly be
incompatible with a trial in one of the fora endorsed by the Security Council.
Section C: Developments since the Adoption of Resolution 1192 (1998)
5.14 Speaking in the debate immediately prior to the adoption of Resolution 1192, the
Representative of Libya said:
"the Libyan Arab Jamahiriya accepts that the two suspects should be tried in a
Scottish court in the Netherlands by Scottish judges, according to Scots law. We
reaffirm this position today; we have already stated it, as has been officially
recorded in the Security Council. This is a serious, irreversible position. We
11
hope that the other party is also serious in its position."
5.15 In the intervening seven months the Secretary-General bas, following consultations
with the Netherlands, the United Kingdom and the United States, clarified a number of
detailed legal and practical points raised by Libya. The Netherlands and the United Kingdom
have meanwhile, as in duty bound under Resolution 1192, put in band the physical
9 Annex 90. · The Agreement entered into force on 8 January 1999.
!0 Annex 89.
!!
S/PV. 3920, p. 4 (Annex 88).
165 12
preparations for the trial, and the Lord Advocate has announced the composition of the
prosecution' s legal team, which has begun preparations for the trial. On 7 December 1998
13
the Secretary-General travelled to Libya in order to receive the definitive response of the
Libyan Govemment to the Security Council's requirements as laid down in Resolution 1192.
His visit did not, however, yield a definitive response. Following intense diplomatie efforts
by the Govenunents of Saudi Arabia and South Africa, the Secretary-General reported to the
members of the Security Couneil, on 26 February 1999, that he had provided further
clarifications to Libya that month, and on 25 February had written to the Libyan Govenunent
asking for a finn date on which the two accused would be handed over. The Secretary
General expressed the view to the members of the Coun.cil that it would be reasonable to
expect the accused to be handed over within 30 days. On 2 March 1999 the Secretary
General said that the Council had not given an.ultimatum to Libya. He also said that Libya
14
had been provided with ali the answers, clarifications and explanations that they had sought.
5.16 At the rime this Counter-Memorial was sent to the printers, the Govemment of Libya
had just announced its agreement to ensure that the two accused would be transferred to the
custody of the Secretary-General of the United Nations, on or before 6 April 1999, for them
to appear for trial before th.eScottish court in the Netherlands. This response is welcome. In
the light of it, the United Kingdom hopes that the matter will now swiftly be resolved in the
interests of the bereaved families and of the victirns of the Lockerbie bombing and in the
interests of the fight against international terrorism. Libya's actual compliance with its
obligations under Resolution 1192 remains the key.
12 The text of the Agreement together with an accompanying Exchange of Notes between the Netherlands
and the United Kingdom appears at Annex 90. The relevant United Kingdom legislation appears at
Annex 89.
13 For one Libyan statement regarding Resolution 1192 (1998), see the speeche Libyan Representative
to the Security Council, UN Doc. S/PV. 3920, pp. 2-5 (Annex 88). That statement may be compared
wîth the speechof the Libyan Representative to the United Nations General Assembly on 29 September
1998 (Annex 91).
14
SG/SM/6913 of2 March 1999(Annex 121).
166 PART6
SUMMARY AND SUBMISSIONS
6.1 In the light of the foregoing arguments, the position of the United Kingdom may be
summarised as follows:
(1) Libya does not have the rights which it claims under the Montreal Convention;
(2) The United Kingdom has not violated, and is not violating, any obligations
which it owes towards Libya under the Montreal Convention;
(3) Security Council Resolutions 748 (1992), 883 (1993) and 1192 (1998) impose
legally binding obligations upon both Libya and theUnited Kingdom which
prevail over any obligations which might have existed under the Montreal
Convention. The United Kingdom has acted throughout in accordance with
the decisions of the Security Couneil.
6.2 Accordingly, the United Kingdom respectfully requests the Court to dismiss the
daims of the Libyan Arab Jamahiriya.
30 March 1999 Franklin D Berman
Agent ofthe United Kingdom
of Great Britain
andNorthem Ireland
167 LIST OF ANNEXES
Annexes 1 to 84 are contained in Annexes: Volumes I to III to the United Kingdom's Preliminary
Objections. The following additional documents are contained in Annexes: Volumes IV and V.
Volume IV supplements the set of basic documents in Volume 1.Other documents are set out in
Volume V.
\Vhere material bas been circulated as a United Nations document, the date cited is that of the
United Nations document itself.
BASIC DOCUMENTS
Annex: Title and Reference
Number
85 Security Council Document S/1997/991, 18 December 1997: Letter from the United
Nations Secretary-General to the President of the Security Council transmitting the
reportof Dr Dumbutshena and Professer Schermers on the Scottish Judicial System.
86 Security Council Document S/1998/795, 24 August 1998: Letter from the United
Kingdom and United StatesActing Permanent Representatives to the United Nations
Secretary-General.
87 Security ColUlcilDocument S/RES/1192 (1998), 27 August 1998: Security Council
Resolution 1192 (1998).
88 Security Council Document S/PV. 3920, 27 August 1998: Provisional Verbatim
recordof the 3,920th meeting of the Security Council._
89 The High Cowt of Justiciary (Proceedings in the Netherlands) (United Nations)
Order 1998, Statutory Instrument 1998 No. 2251, 16 September 1998.
90 Agreement and Exchange ofNotes between the Government of the Kingdom of the
Netherlands and the Govemment of the United Kingdom of Great Britain and
Northern Ireland concerning a Scottish Trial in the Netherlands, 18 September 1998.
91 Statement by the Libyan Permanent Representative to the General Assembly, 29
Septernber 1998. Extract- pages 7 to 14. CHRONOLOGICAL LIST OF ALL DOCUMENTS
(Documents included in Volume IV are marked with an asterisk).
Annex:Title andReference
Number
1945
92 United Nations Conference on International Organization Documents, Doc. 433
(111/2/5).
93 United Nations Conference on International Organization Documents, Doc. 498
(111/2119).
94 United Nations Conference on International Organization Documents, Doc. 843
(IV/2/37).
95 United Nations Conference on International Organization Documents, Doc. 933
(IV/2/42(2)).
1947
96 Agreement between the United Nations and the International Civil Aviation
Organization,8 UnitedNations Treaty Series 324.
1963
97 Convention on Offences and Certain Other Acts Committed on Board Aircraft,
Tokyo, 14 September 1963 (the Tokyo Convention), 704 United Nations Treaty
Series219, United KingdomTreaty Series No. 126(1969).
1969
98 ICAO Document 8798-26, C/983-26, C-Min. LXVI/26, 2 June 1969: Council - 66th
Session, Minutes of26th Meeting. Extract- pgs. 512-514:uncilResolution.
1970
99 ICAO Document 8849-C/990/4, Aprill987: Aviation Security, 4th edition. Extract
- pgs. 1-2:Assembly Resolution Al7-I - Declaration by the Assembly (17th Session
Extraordinary), June 1970.
100 Convention for the Suppression of Unlawful Seizure of Aircraft, The Hague, 16
December 1970 (the Hague Convention), 860 United Nations Treaty Series 105,
United Kingdom Treaty SeriesNo. 39 (1972).
1971
101 ICAO Document 8912-C/997, C-Min. LXXI/6, 25 March 1971: Council - 7lst
Session, Minutes of 6th Meeting. Extract- pgs. 181- 186:Council Resolutions. 1973
102 Convention on the Prevention and Punishrnent of Crimes Against Intemationally
Protected Persons, lncluding Diplomatie Agents, New York, 14 December 1973,
1035UnitedNations Treaty Series 167.
1991
103 General Assembly Document AJRES/45/117, 3 April 1991: General Assemb1y
resolution 451117- Model Treaty on MutualAssistance in Criminal Matters.
104 Guidelines on International Mutual Legal Assistance in Criminal Matters under
United Kingdom Law, August 1991.
1993
105 Security Council Document S/RES/827 (1993), 25 May 1993: Security Council
Resolution 827 (1993).
1994
106 Security Council Document S/1994/681, 7 June 1994: Letter from the Libyan
Permanent Representativeto the United Nations Secretary-General.
107 Security Council Document S/1994/741, 22 June 1994: Letter from the Libyan
Permanent Representativeto the United Nations Secretary-General.
108 Security Council Document S/RES/955 (1994), 8November 1994: Securi.tyCouncil
Resolution 955 (1994).
1995
109 Security Council Document S/1995/973,20 November 1995: Letter from the United
KingdomPermanent Representative to the Presidentof the Security Council.
1996
110 Security Counci1Document S/RES/1044 (1996), 31 January 1996: Security Council
Resolution 1044 (1996).
111 Security Council Document S/RES/1054 (1996), 26 April 1996: Security Council
Resolution 1054(1996).
112 Security Council Document S/RES/1070 (1996), 16 August 1996: Security Council
Resolution 1070(1996). 1997
113 Security Council Document S/1997/35, 15 January 1997: Letter from the Chargé
d'affaires a.i. of the Libyan Permanent Mission to the President of the Security
Council.
114 General Assembly Document AIRES/51/210, 16 January 1997: General Assembly
resolution51/210.
115 Security Council Document S/1997/518, 7 July 1997: Letter from the Libyan
Permanent Representative to the President of the Security Council.
85* Security Council Document S/1997/991, 18 December 1997: Letter from the United
Nations Secretary-General to the President of the Security Council transmitting the
report of Dr Dumbutshena and Professer Scherrners on the Scottish Judicial System.
1998
116 Security Council Document S/1998/5, 6 January 1998: Letter from the Libyan
Permanent Representative to thePresident of the Security Council.
117 General Assembly Document AIRES/521164, 9 January 1998: General Assembly
resolution 52/164.
118 Security Council Document S/PV. 3864, 20 March 1998: Provisional Verbatim
record of the 3,864th meeting of the Security Council.
119 Security Council Document S/AC.26/1998/7, 3 July 1998: United Nations
Compensation Commission, Report and Recommendations made by the Panel of
Comrnissioners concerning the frrst instalment "E2" Claims. Extract- paragraphs
49 to 62.
120 Security Council Document S/RES/1189 (1998), 13 August 1998: Security Council
Resolution 1189 (1998).
86* Security Council Document S/1998!795, 24 August 1998: Letter from the United
Kingdom and United States Acting Permanent Representatives to the United Nations
Secretary-General.
87* Security Counci1Document S/RES/1192 (1998), 27 August 1998: Security Council
Resolution 1192 (1998).
88* Security Council Document S/PV. 3920, 27 August 1998: Provisional Verbatim
record of the 3,920th meeting ofthe Security Council.
89* The High Court of Justiciary (Proceedings in the Netherlands) (United Nations)
Order 1998, Statutory Instrument 1998 No. 2251, 16 September 1998.
90* Agreement and Exchange ofLetters between the Governrnent ofthe Kingdom ofthe
Netherlands and the Governrnent of the United Kingdom of Great Britain and
Northem lreland conceming a Scottish Trial in the Netherlands, 18 September 1998.91* Statement by the Libyan Permanent Representative to the General Assembly, 29
September 1998. Extract- pages 7 to 14.
1999
121 United Nations Press Release, SG/SM/6913 of 2 March 1999, transcript of Press
Conference by the United Nations Secretary-General (extract).
Counter-Memorial of the United Kingdom