A Missed Opportunity

PRESUMABLY the aim of the United States in pushing for United Nations sanctions against Libya has been to bring to justice two Libyan officials accused of bombing a Pan Am jet over Scotland. If that is the case, then the US has chosen a misguided approach. The US has rejected the option most likely to resolve the crisis - trial of the Libyans by an international criminal court - and has persisted in a policy likely to undermine the long-term authority of the United Nations Security Council.

The US approach is misguided, first, because it will probably fail. The sanctions are too weak to cause Libya serious economic harm and do not enjoy widespread support in the region. While the sanctions imposed by the Security Council require all UN members to cut off arms shipments and air links with with Libya as of April 15, the sanctions do not affect Libya's oil exports and will therefore have little economic impact.

Furthermore, the Arab League has opposed the sanctions, and the US will not be able to successfully prevail on all of Libya's neighbors to prevent violation of the sanctions.

More seriously, however, the Security Council's sanctions create the image that the council is merely a tool of the interests of Britain, France, and the US. Nations have no duty under international law to extradite unless they have ratified an extradition treaty with the country seeking extradition. Libya has no extradition treaty with the US or Great Britain, and the Montreal Convention on Terrorism Against Civilian Aircraft, which has been ratified by Libya, expressly allows states to try alleged terr orists themselves rather than allowing extradition. Libya has begun criminal proceedings against the two officials and thus has at least formally complied with its obligations under the Montreal Convention.

I do not wish to argue that Libya is capable of judging its own officials when they stand accused of terrorism; I strongly doubt it. But Col. Muammar Qaddafi has also offered to have his officials tried in a neutral country or by an international tribunal, and the US was foolish not to take him up on it. The Security Council is only authorized to impose sanctions in the case of a "threat to" or a "breach of" the peace. To impose sanctions on Libya, the council had to implicitly judge Libya incapable of p rosecuting the accused officials itself and then find that Libya's failure to extradite the officials to Great Britain or the US constituted a "threat to the peace."

Great Britain and the US, dominating the Security Council, stood in the council as Libya's victims, accusers, and judges, and stretched the definition of "threat to the peace" far beyond any previous use. Not surprisingly, much of the rest of the world feels very uncomfortable.

It is hard to feel sympathy for Colonel Qaddafi. Aside from any government participation in the Pan Am bombing, Libya has long offered a safe haven for such terrorists as Abul Abas, the mastermind behind the hijacking of the Achille Lauro in 1986, and long ago forfeited any credibility it might have as a forum for fair criminal prosecutions. But even assuming that Qaddafi caves in to the Security Council and the alleged terrorists are sent to the US, is it really in the US government's interest to try th e case here?

Think of the wonderful public relations which the Noriega case has provided the US in Latin America. A legitimate case against a drug trafficker, perhaps, but one whose arrest required an invasion and whose trial involved such touchy issues as the government's pre-trial seizure of the defendant's assets, tape recordings by prison officials of Manuel Noriega's conversations with his attorneys, and a prosecution witness list made up of admitted or convicted drug traffickers eager for a deal.

In 1954, the UN's International Law Commission presented the General Assembly with a Draft Code of Offenses Against the Peace and Security of Mankind, and a variety of proposals for international criminal tribunals and international criminal codes have been presented since.

In 1989, small countries led by Trinidad and Tobago, worried by their inability to try international drug traffickers, successfully pushed the General Assembly to research an international criminal court for drug trafficking.

The US Congress has shown interest in an international criminal court to try war crimes. On March 14, the Senate unanimously passed a resolution calling for the trial of Saddam Hussein by an international court. Use of even an ad hoc tribunal in the Libyan case allows the US to set a precedent which can prove invaluable in dealing with terrorism, drug trafficking, and war crimes and other serious human rights violations.

In the Libyan case, only an international criminal court can satisfy the third world that the Security Council has not become the captive of Western powers. Much of the authority of the council comes from moral legitimacy and prestige built up over time, and unenforceable sanctions against Libya undercut both.

It is possible that Qaddafi's offer of trial by an ad hoc international criminal court was a ploy to gain time, but exploration of the option would at the very least have increased the Security Council's base of support for sanctions. With hundreds of terrorists and international drug traffickers at large, international tribunals offer a neutral, face-saving option when extradition is unavailable.