Time for The Hague?

By Hoda Tawfik and Rasha Saad

 rightly considered the shift in US and British positions to signal the success of their campaign to end the unjust treatment of Libya since the UN Security Council imposed an air and arms embargo against Tripoli in April 1992.

However, the initial euphoria proved short-lived. Reports emerging later from Washington and Tripoli indicated that there are still several major problems to be solved before there is agreement on the conditions in which the trial will be held.

It is also not clear whether holding the trial would in itself constitute sufficient progress for the UN to lift sanctions immediately, as Libya demands.

Ibrahim Legwell, the lawyer representing the two Libyan suspects Abdel-Basset Migrahi and Lamin Khalifa, said that Libya had not yet received any official offer from the US and Britain, although one is expected soon.

While maintaining that his clients are innocent, he confirmed that they are ready for the trial in The Hague by an international panel of judges headed by a Scottish judge. "Since 1992 we have been explaining that this is the best possible solution," he said.

According to reports, Britain -- which sees the Libyan refusal of a trial in Scotland as an insult to the integrity of the Scottish judiciary -- still insists that all the judges must be Scottish, claiming that this would partly fulfil the Security Council's resolution that the trial should be held in either Scotland on the United States.

One American official told Al-Ahram Weekly that for Washington, the bottom line is "to apply Scottish judicial standards in a third country. We want the same law, the same procedures, the same process by which justice is provided in a Scottish court to occur, but in a different place."

However, a senior aide to Muammar Gaddafi was quoted in the London Observer on Sunday as saying that the Libyan leader would not accept this condition. "We accept a Scottish chairman and Scottish legal procedure, but we do not believe it would be fair if all the judges come from the country where the crime took place," the Libyan source said.

Among the other conditions that Libya has set is the guaranteed safety of the two suspects during and after the trial. Legwell said that questioning should only be carried out by the judges and in the presence of the defence team, which would also select the translators. He added that only the judges and the defence should be allowed to communicate with them, to avoid any pressure by American or British intelligence services. There is no guarantee that the US and Britain will accept these conditions.

There are also a number of technical problems that still have to be solved. The Dutch constitution does not include any articles which allow for the trial of non-Dutch citizens according to another state's law. It is also unclear, if there should be an appeal, to which court it should be addressed: the US, Britain, Holland or the International Court of Justice (ICJ)? And if the two suspects are convicted, in which country will they serve their sentences?

Since the US claims that it has "clear evidence of Libyan involvement in the Lockerbie bombing," there are also fears that Washington will use the trial to accuse Gaddafi's regime of sponsoring state terrorism.

Some Arab observers believe that the Americans' recent change of heart is a political manoeuvre to put the ball in Libya's court and thus embarrass Gaddafi's regime. Such an attitude could be discerned in the words of James Rubin, the US State Department spokesman, who described the initiative as "a creative alternative....[that] will call Gaddafi's bluff if indeed he does not turn them [the accused] over."

Another State Department official told the Weekly that Washington was "sceptical that the Libyans will accept. But if we can make the arrangements to hold the trial in The Hague, then Libya will have to comply."

He added that "if the Libyan position is not supportive, that will be good for the maintenance of the sanctions' regime and the strengthening of it."

The Arab League hailed the new stance adopted by Washington and London and immediately sent an envoy to New York for talks with UN Secretary-General Kofi Annan. Arab League Secretary-General Esmat Abdel-Meguid is also due to travel to Tripoli in the first week of August for discussions with Gaddafi on the conditions under which the trial would be held.

Observers believe that one of the main reasons that has led the US and Britain to soften their position is the ruling issued by the ICJ last February stating that it has the authority to examine the Lockerbie dispute, contrary to claims by the US and Britain who have been insisting that this issue is the sole responsibility of the Security Council.

Pressure by Arab and African countries on Washington over the past few years has also played a crucial role in bringing about this change in the US position. The Organisation of African Unity (OAU) decided last month to defy the embargo by September, if the US and Britain did not agree to the two suspects standing trial in a neutral country.

In recent years, Gaddafi has violated the air embargo by traveling to several African countries and by sending Libyan pilgrims to Saudi Arabia without seeking permission from the Security Council. A number of African leaders also violated the air embargo following the OAU decision when they travelled by air to Libya a few weeks ago to celebrate a Muslim religious festival.

Meanwhile, it had become obvious to the US that six years of sanctions had failed to weaken Gaddafi's regime or advance their attempts to topple the revolutionary leader. Sanctions against Libya were seen as an attempt to punish Gaddafi for his alleged support of "terrorist groups" and his vehement opposition to the Arab-Israeli peace process.