The US and Britain Should Take Libya to Court

THE United States and the United Kingdom have issued warrants for the arrest of two Libyan officials accused of involvement in the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland. Libya has denied official involvement and offered to submit the legal issues to an impartial tribunal, suggesting the International Court of Justice at The Hague. The US should leap at the offer.Libya is not the defendant, although if Libya attempts to cover the acts of its officials with a cloak of sovereign immunity, it will face serious legal implications. Foreign government officials have no immunity from criminal law if on a frolic of their own and not under the protection of diplomatic or equivalent immunity. If Libya protects them legally, Libya becomes liable for the damage they have done; in this case the bill is high. American and British laws certainly apply to individuals whose acts have significant effects on an American aircraft in British airspace. Libyan law also applies to the acts of Libyans, whether at home or abroad. The issue now is whether Libya has any legal obligation to try the accused itself or to cooperate in enforcing American or British law. Libya claims that there is not enough evidence to require it to act. Several treaties apply. The key one is the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. Libya, the US, and Britain are all parties. The convention says a person commits an offense if he or she "causes to be placed on an aircraft in service, by any means whatsoever, a device ... which is likely to ... cause damage to it which is likely to endanger its safety in flight." The convention also covers accomplices. Each contracting party is obliged "to make the offenses ... punishable by severe penalties." Parties to the convention are further obliged to either prosecute or extradite accused offenders. None of this applies, however, if there is insufficient evidence that the accused actually committed an offense specified in the treaty. So the issue comes down to the credibility of the evidence used by the US and Britain as a basis for their arrest orders. Libya cannot demand that intelligence techniques, the means used to gather the evidence, be revealed. If the evidence pieced together by the US and the UK is adequate to make a case sufficient to be worth putting to a jury or equivalent process, Libya is wrong. The International Court at the Hague is a high platform from which to expose that evidence to the world. The court would not judge guilt or innocence of the accused, but only whether there is enough evidence to trigger Libyan legal obligations. In judging the case, the court's own objectivity would be at issue. It is hard to believe the the court would jeopardize its reputation in order to protect from prosecution people accused of offenses under the 1971 convention and other anti-hijacking agreements.

IF the court is not convinced, displaying the evidence would indicate the basis for the American and British conclusions and allow people in those countries to judge whether their elected representatives should be supported in carrying matters further. If the evidence is less than adequate to convince fair-minded people that a reasonable case has been made, then there is certainly no excuse for resort to force against Libya, or kidnapping the accused, or other measures that assume that British or American intelligence is incapable of error. It would be very difficult to understand dramatic steps to enforce "law" if the facts do not support the accusations. Surely, the US and Britain would not want to risk displaying Libya as the victim and themselves a s violators of the law. If the court holds Libya bound under the convention or other law to prosecute or extradite the accused, and a trial in Libya meets international standards of justice and "severe penalties" result, the rule of law will have been upheld and Libya will be brought back, at least in that regard, to the civilized world. If Libya fails to carry out the decision of the court, it will be in violation of the UN Charter, under which "each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party." Failure to perform this obligation opens the door to Security Council action. Instead of being the David facing American and British Goliaths, Libya would be in the position of an outlaw nation. If an embargo of Libya is sought, this is the path to go. In sum, if the charge is serious, there is everything to gain and nothing to lose by presenting the case to the International Court of Justice as Libya proposes. If this is not done, then Libya will appear the victim of Anglo-American disinformation and gain sympathy in large areas of the world - an ironic result, made worse if there were American or British action to implement self-evaluated conclusions.