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Al-Ahram Weekly 18 - 24 March 1999 Issue No. 421 
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Published in Cairo by AL-AHRAM established in 1875 |
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Al-Ahram Weekly 18 - 24 March 1999 Issue No. 421
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| Published in Cairo by AL-AHRAM established in 1875 |
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Egypt Region International Economy Opinion Culture Profile Features Travel Living Sports People Time Out Chronicles Cartoons Letters What price will innocence exact?
By Hassan Nafaa *Official and public receptions were arranged for Libyan President Colonel Muammar Gaddafi in Marsa Matrouh, Cairo, Fayoum and Alexandria, where he also held meetings with writers, artists and journalists. The 10-day visit served to remind the colonel of the warmth of popular sentiment in Egypt towards Libya and the close connections between the two peoples. No new developments emerged, however, with regard to the Lockerbie crisis; nor did the visit alleviate the feelings of frustration he harbours against the Arabs in general for their position on the unjust sanctions imposed on Libya.
If any lesson was to be gleaned from this 10-day stay, it was that relations between Egypt and Libya cannot be reduced to a single issue, even one as complex as Lockerbie; the network of connections between the two countries are intense and solid enough to withstand differences of opinion on this issue.
Recent developments had suggested that the dispute between Libya and the US and UK was about to be resolved. In the months preceding Gaddafi's visit to Egypt, intensive Saudi Arabian and South African mediation efforts, coordinated with the secretary-general of the UN, succeeded in furnishing the Libyan government with the clarifications it had demanded in order to guarantee a fair trial for the Libyan suspects should Libya turn them over to Holland for trial in a Scottish court that would be formed for that purpose. Before the Security Council meeting, scheduled for 26 February to review the resolutions concerning the Lockerbie issue, the secretary-general, following consultations with US and UK representatives, sent a letter to Libya containing the required clarifications in what were described as clear and unambiguous terms. Then, at the 26 February meeting, the US and the UK did not implement their threat to propose harsher sanctions on Libya and, instead, extended their ultimatum by another month.
So is the crisis indeed approaching a solution, or has it merely entered another phase of manoeuvring during which the parties will persist in clinging to their goals? At present, the only certain prospect is that the sanctions against Libya will be dropped as soon as Libya hands over the suspects. Paragraph 8 of UN Resolution 1192 of 27 August 1998 states explicitly that the sanctions will be "suspended" immediately after the UN secretary-general notifies the Security Council that the Libyan suspects have arrived in Holland for trial before a Scottish court.
On the surface, therefore, it would appear that, once Libya abides by the US's and UK's demands, it will return to the international fold and the world will be able to put Lockerbie behind it. In fact, however, not until the court pronounces its final verdict will we actually know whether the period following the hand-over of the suspects is the prelude to the end of the crisis or only a lull in the storm. Whether the court pronounces the defendants guilty or innocent, its ruling will bring to the fore a host of new problems which will once again bring into relief the intractability of the crisis.
If, for example, the court clears the defendants, either because it has established that they were not involved in the bombing of the PanAm flight or due to lack of sufficient evidence, the seven years of sanctions imposed on Libya will emerge as demonstrably undeserved, and Libya could well be entitled to sue for compensation for the material and moral damage it has been forced to endure during this period. If, on the other hand, the defendants are found guilty, the court's ruling will bring to the fore the question of the Libyan government's involvement, particularly if it is ascertained that the suspects were Libyan intelligence agents. In that event, it is difficult to imagine that the US and the UK will be content with merely obliging Libya to pay compensation to the families of the Lockerbie victims. Rather, they will pressure not only for the reimposition but for an intensification of the sanctions.
Indeed, it is possible to envision a retaliatory military operation. If such a scenario unfolds, then the handing over of the Libyan suspects will have been no more than bait to lure the Libyan regime into the trap set for its ultimate destruction. This, at least, is how the Libyan regime must perceive the situation which is why it has refused to comply with the US-British ultimatum.
If the preceding assessment is correct, then, contrary to appearances, both sides are simply shifting tactics while maintaining their respective ends. Thus, the US and the UK are just as dogged as they ever were in their pursuit to snare the Libyan regime and settle outstanding scores from the Cold War, while the Libyan regime seeks not only to save its skin but, in so doing, to demonstrate the tyranny of the new world order under American hegemony.
The fact is that the Libyans have a point. The successive stages of the Lockerbie affair have cast a glaring light on the disintegration and chaos that have beset the international order at all levels. From the outset, the US and the UK have not handled this crisis decently. They showed no respect for the jurisdiction of the UN. For two full years following the Lockerbie incident, they issued statements implicating numerous parties, including Iran and certain factions that have split off from the PLO, before finally pointing the finger at Libya. This fact alone brings into question the sincerity of their motives and the substantiality of the evidence upon which they based their accusation. Prior to this, in 1986 the US had waged military assaults against Libya on the grounds that it was involved in another terrorist operation, although Libya's involvement could not be proven. Certainly that precedent, which had already called into question the US's credibility, should have made it a little more circumspect in its readiness to point the finger.
The US and the UK, however, insisted that the Libyan government had to hand over the two Libyan suspects for trial in the US or Scotland. As no extradition treaties existed between the parties involved, there was no law compelling Libya to comply with the US-British demands and it was well within its rights -- indeed, it was absolutely right -- to refuse. Libya's only commitment under international law in this instance was to bring the suspects to a fair trial before the competent judiciary authority and to offer sufficient guarantees that the trial would bring to light the true facts of the case. Still, the allegation that the suspects were Libyan intelligence agents cast into doubt whether a trial held in Libya could fulfil the latter condition. This was the objective reason the US and the UK gave for their refusal to have the suspects tried in Libya. For its part, Libya claimed that the suspects, regardless of the legality of handing them over in the first place, would not receive a fair trial in the US or the UK on the grounds that the enormous media coverage there, which had already issued a de facto condemnation, would have prejudiced the jury. That, too, was an objective and persuasive justification.
To get out of this impasse, the US and the UK could have appealed to the principles of international law and brought the case to the International Court of Justice (ICJ). All the countries involved in the dispute have ratified the Montreal Convention on crimes against the safety of civilian air traffic. Article 14 of this convention obliges parties to appeal to the ICJ in any dispute concerning the interpretation of the articles. It was thus clear from the outset that the ICJ had the jurisdiction to review the Lockerbie case.
It is ironic that it was "totalitarian" Libya that acted in accordance with international law by taking the initiative to appeal to the ICJ while the liberal, democratic Western nations rejected this course and resorted instead to the Security Council, in which they have the more advantageous position -- a position based, of course, on power rather than on justice and the law. Because of the disparities in the post-Cold War international order, the Security Council was much more vulnerable to Western pressure and agreed quite readily to the imposition of sanctions on Libya for not handing over the suspects, thereby overstepping its powers and permitting political considerations to prevail over the rule of law.
Numerous international organisations, including the Arab League, brought pressure to bear on Libya to prove that it was not hiding behind casuistic pretexts in order to evade its responsibility. Yielding to these pressures, Libya agreed, in principle, to have the suspects tried under Scottish law but in a third, neutral country. For years, the US and the UK rejected this initiative and remained adamant that the suspects could only be tried in one of those two countries. Everything points to the fact that, when the US and the UK finally relented, they were not concerned with the need to arrive at a face-saving compromise solution for all parties.
The change in the US-British stance was the product of three interrelated factors. First, when the International Court of Justice declared its competency to review the case under the provisions of the Montreal Convention, it implicitly brought into question the legal foundations of the UN resolutions pertaining to Libya. Second, international respect for the Security Council had entered a phase of precipitous decline, especially when the Organisation of African Unity announced that its member nations would no longer be obliged to adhere to the sanctions regime should the US and the UK persist in their refusal to try the Libyan suspects in a third, neutral country. Finally, there were the pressures brought to bear by the families of the Lockerbie victims themselves, eager to finally learn the truth and to obtain appropriate compensation from the party responsible for the crime or for whatever negligence led to the explosion.
The US and the UK, furthermore, by resorting again to ultimatums against Libya after agreeing on a neutral country as a venue, have not shown any particular enthusiasm for ensuring a fair trial. Much time and effort could have been spared, had the UN resolution approving this step explicitly empowered the UN secretary-general to undertake all necessary communications to furnish the guarantees, thus bringing to light the facts while simultaneously ensuring that the trial does not degenerate into a general investigation of the activities of the Libyan intelligence services.
The legal position of the US and the UK is so weak, however, that they have to appear as though they always agree to compromise at the last minute. It is also ironic that the Libyan position, which was unassailable as long as the US and the UK persisted in their demand that the suspects be handed over to either of them, is now beginning to weaken before the increasing flexibility of its adversaries.
The statements issued by Libyan officials all suggest that the Libyan suspects will be found guilty, and that the sole concern of the Libyan regime now is to look for a way to sacrifice them while evading any accusations of responsibility for the crime.
Can we conclude from the foregoing that the behaviour of both parties to the dispute was motivated by a large degree of uncertainty? Perhaps. If the US had incontrovertible proof of the Libyan suspects' involvement, it would have focused its efforts on ensuring conditions for a fair trial, regardless of the venue. By securing the conviction of the Libyan suspects first, it would have been in a strong position to isolate the Libyan regime politically and economically without appearing despotic. Conversely, its former insistence that the suspects be tried in the US or the UK can easily be interpreted as a ploy to gain control over the suspects in order to cajole or coerce them into revealing secrets about the Libyan intelligence apparatus that have no bearing on the Lockerbie incident. If Libya, for its part, had been certain of the innocence of the suspects, its first concern would have been to establish their innocence before the world community, thereby ensuring that it had substantial grounds to challenge the credibility of the US as world leader. It could then have envisaged taking the US to court for the damages inflicted upon the Libyan people, and other peoples, by arbitrarily imposed sanctions.
Therefore, it makes little sense for Libya to keep harping about the place in which the suspects will be detained and international guarantees for their protection when, if they are convicted, the Libyan regime itself will have to face the harshest penalties. In the climate engendered by these positions, it will be impossible to hold a truly fair trial. It is therefore possible that no trial will be held at all, and that the parties involved will continue to play at cat-and-mouse for years to come. Then again, the trial could be held, but only after some deal is struck that would void it of its substance, with Libya agreeing to relinquish its right to sue for compensation should the suspects be found innocent, and the US (or the Security Council) agreeing not to reimpose sanctions against Libya should they be found guilty. Another way out of the impasse would be for the court to voice strong suspicions about the suspects' involvement but release them on the grounds of insufficient evidence.
Regardless of the alternative chosen, the real loser in the case will be the integrity of international law and the institutions embodying that law. If there is a lesson to be learned from the Lockerbie crisis, regardless of how it plays itself out, it is that the UN system is in urgent need of reform if it is to ensure respect for international law from all nations. It seems, however, that the international community is not yet mature enough to effect the vital reform. One only hopes that a third world war is not necessary for such reform to become possible.
*The writer is professor of political science at Cairo University.
