UN Judicial Observer Found
Lockerbie Trial a Miscarriage of Justice
By Dr. Hans Koechler
06 September, 2009
Statement by Dr. Hans Koechler, international observer of the International Progress Organization, nominated by the Secretary-General of the United Nations, at the Lockerbie trial in the Netherlands (2000-2002), on the agreement between the United States, the United Kingdom and the Libyan Jamahiriya on the remaining issues relating to the fulfilment of all Security Council resolutions resulting from the bombing of Pan Am 103 over Lockerbie
Reykjavik, 23 August 2003
1. The agreement between the United States, the United Kingdom and the Libyan Jamahiriya about the compensation payment of USD 2.7 billion to the relatives of the Lockerbie bombing, Libya’s acceptance of responsibility for the bombing and her commitment to cooperate in any further investigations of the bombing of Pan Am 103, as well as Libya’s condemnation of terrorism and her pledge to support the efforts of the United Nations in the battle against terrorism, will not be conducive to the search for truth in the Lockerbie case as long as those measures avoid addressing the crucial question of personal criminal responsibility of individuals other than the convicted Libyan national.
2. The letter addressed by the Chargé d’affaires a.i. of Libya to the President of the UN Security Council, confirming the resolution of the remaining issues, does not contribute to clarifying the issue of individual criminal responsibility for the bombing. The wording regarding responsibility is vague and ambiguous: “… out of respect for international law and pursuant to the Security Council resolutions, Libya as a sovereign state has facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am 103, and accepts responsibility for the actions of its officials …”
3. The above statement, one would assume, can only be interpreted in the sense of Libya accepting the guilt of the Libyan national who was sentenced in the Lockerbie trial. Libya, however, through statements of her officials (among them the Foreign Secretary) made after the delivery of the above mentioned letter, has maintained the innocence of Mr. Al-Megrahi. In view of the fact that one of the "two suspects" referred to in the letter has been acquitted and the state accepting responsibility for the "actions of its officials" maintains the innocence of the second suspect (who has been declared guilty by the court), the concept of “state responsibility,” apparently used in the above mentioned letter, becomes inapplicable, indeed void of any meaning. However, the fact that a compensation payment of USD 2.7 billion has been deposited with the Bank for International Settlements in Basel stands in stark contrast to this vague and ambiguous admission of state responsibility – unless there are other facts eventually establishing the guilt of officials other than the "two suspects" mentioned in the letter to the President of the Security Council.
4. It is to be recalled that neither in the trial nor the appeal proceedings at the Scottish Court in the Netherlands was any material evidence presented linking the sentenced Libyan national to the crime. The verdict was entirely based on inferences and circumstantial evidence. Many of the statements of the Prosecution’s witnesses were contradictory – or even proven wrong in the course of the trial. The co-accused Libyan national, Mr. Fhimah, was acquitted by the Court – not because of lack of evidence (“not proven”), but because it was proven, in the opinion of the Court, that he had nothing to do with the crime (although the entire strategy of the prosecution was based on the assumption that the two accused had prepared the crime together).
5. The entire trial and appeal proceedings were characterized by a lack of adequate defense for the convicted Libyan national. The defense team in many instances had chosen not to use the evidence available and had thus created the impression of pursuing an agenda different from that of providing adequate legal defense in this particular case. All the details are contained in the undersigned’s observer reports of 3 February 2001 and 26 March 2002.
6. Furthermore, it is obvious that an intelligence officer alone – from whichever country – was never in a position of planning, financing and carrying out a terrorist act such as the bombing of a large jetliner in midair. It would have been the duty of the Scottish investigating authorities to continue their investigations so as to find out which persons from which country (or countries) actually ordered, financed and carried out the terrorist act.
7. In the course of the Lockerbie trial in the Netherlands, a large amount of evidence concerning the crime was either not available or was chosen not to be used either by the Prosecution or Defense (for reasons that were never disclosed). Additional evidence has surfaced during the appeal proceedings in the Netherlands in 2001/2002 which was never made use of. Further revelations were made after the appeal decision of March 2002, namely concerning the alleged responsibility of the Abu Nidal terrorist group. It is the duty of the Scottish judicial authorities to follow up on this new information. No one will believe that a lone Libyan intelligence officer will have been able to carry out a crime that required sophisticated logistics and large financial resources.
8. It is to be noted that in the course of the trial and appeal proceedings at the Scottish Court in the Netherlands the intelligence services of all three countries involved in the Lockerbie dispute – the United States, the United Kingdom and Libya – had hampered, to varying degrees, the Court’s ability to obtain necessary evidence. A Libyan-American double agent was presented as key witness of the prosecution (who was proven as totally lacking credibility); important information was either censored or completely withheld from the court because of national security considerations; etc.
9. It is also to be noted that Western intelligence services, for whichever reason, must have had advance knowledge of the bombing plot because specific warnings were circulated in December 1988 – which saved the lives of those privileged to share this information.
10. In view of the arguments presented in the Court proceedings, it seems unlikely that the Lockerbie bomb was inserted at Luqa International Airport in Malta. On the basis of the circumstantial evidence available so far, insertion in Frankfurt or Heathrow is much more likely. It is also to be investigated why the information on a break-in at the luggage area where the bags for Pan Am 103 were stored at Heathrow in the night before the Lockerbie bombing had never reached the investigating authorities and why the Scottish Police had invited a key witness of the Prosecution, a Maltese shop owner, for holiday trips to Scotland. It is further to be investigated why much of the forensic evidence (concerning the bomb’s timer, etc.) that was available at the time of the trial and appeal was never made use of by the Defense.
11. Already at the end of the Lockerbie trial in January 2001 and even more so during the appeal proceedings in 2001/2002 the impression prevailed that strictly judicial considerations (aimed at defining the criminal responsibility of the accused individuals sine ira et studio) were put aside in favour of political considerations.
12. It is to be noted further that the defense teams for the two accused Libyan nationals – and in particular for the sentenced Libyan national – were not chosen by the two Libyan individuals, but by the Libyan government. Mr. Al-Megrahi’s defense team was chosen by the Libyan authorities and paid for by them, not by Mr. Al-Megrahi who has no funds. It did not act in defense of its client in a professional manner, but may have acted according to the instructions of the Libyan authorities whose interests are not necessarily directed towards establishing the truth in this particular matter of criminal justice, but towards reaching a political settlement with the United States and the United Kingdom for the removal of the sanctions and for unhindered economic cooperation.
13. In view of the above considerations, Mr. Al-Megrahi may well be the scapegoat in a comprehensive political arrangement, which allows the parties to the Lockerbie dispute, including Libya, a face-saving way out of the impasse that prevailed for more than a decade. Agreeing on putting the blame on a lone individual (as irrational and improbable as this may be) absolves the parties to the Lockerbie dispute from entering into delicate and highly embarrassing investigations of the potential role of the intelligence services (including advance knowledge of the crime and the question why they have done nothing to prevent it) of the countries involved in the Lockerbie dispute. Because Mr. Al-Megrahi’s guilt has not been proven beyond a reasonable doubt, further investigations would have to be conducted by the Scottish judicial authorities so as to find out the truth.
14. It is highly likely that the sentenced Libyan national is not guilty as charged and that one or more countries other than Libya, through their intelligence services and/or financial and logistical support for a terrorist group, may have responsibility for the crime. In this regard, last year’s revelations by Atef Abu Baker of the Fateh Revolutionary Council (made public after the assassination of Abu Nidal in Baghdad) will have to be further investigated. Since the events of September 11, 2001, there is absolutely no excuse for not fully investigating the responsibility for the Lockerbie crime. Terrorism cannot be fought through a political deal aimed at covering up the truth, but must be eradicated through identification and punishment of all countries, individuals and organizations that may have had responsibility for a specific terrorist act.
15. The relatives of the victims of the bombing of Pan Am 103 deserve appropriate compensation; but this must not come at the expense of the search for the truth in this matter – and the actual compensation must not be tied to political conditions and decisions (whether by the UN Security Council on the lifting of UN sanctions or by the United States on the lifting of unilaterally imposed sanctions, etc.). The relatives of the victims must not be made hostage to political deals of their governments.
16. Above all, the relatives of the victims deserve to know the full and uncensored truth about the Lockerbie crime. This is their inalienable right as well as an indispensable requirement of the international rule of law. For the above-described reasons, the undersigned international observer renews his call of 23 August 2002 for an independent public inquiry into the Lockerbie case. Because the case is related to the foreign affairs of the UK (in particular in the framework of Security Council resolutions), such an inquiry would have to be mandated by the British Parliament (irrespective of whether the Scottish judicial authorities will order a review of Mr. Al-Megrahi’s case, upon the latter’s request, or not). There is no reason why an independent judicial inquiry similar to the one conducted in connection with the death of Dr. Kelly (in relation to the Iraq war of 2003) should not be undertaken in the case of the Lockerbie bombing. The fact that the government of the United Kingdom has repeatedly rejected an independent inquiry creates the impression that the British administration is not interested in a transparent judicial, but in a political settlement based on the specific constellation of interests between the three parties to the dispute, the US, UK and Libya.
17. The chapter of the Lockerbie investigation can only be closed when the full truth will have been established and when the question will have been satisfactorily answered why only a lone individual has been sentenced in a case that relates to a terrorist crime the commission of which required a vast and sophisticated operational network (most likely involving more than one country and/or terrorist organization) and huge financial resources. An ambiguous declaration of “state responsibility” such as the one deposited with the UN Security Council does in no way answer the urgent and legitimate question as to personal criminal responsibility of individuals other than Mr. Al-Megrahi (and eventually also from other countries) for the Lockerbie crime. A political deal such as the one concluded last week between the US, UK and Libya linking individual compensation with the lifting of multilateral and subsequently unilateral sanctions does not advance the cause of justice in the present case, but is part of the politics of national interest of the countries involved in the present dispute. The intelligence cooperation established between the three countries since September 11, 2001, in the area of counter-terrorism must not come at the expense of the search for truth in the Lockerbie case. The doubts and misgivings about the Lockerbie trial in the Netherlands will only disappear when a full investigation of the crime by an independent commission will have been undertaken. Up to this moment the undersigned will maintain his doubts about the Lockerbie verdict and will consider the judgment concerning Mr. Al-Megrahi – on the basis of an Indictment that was substantially modified in the course of the trial and altered by the judges as part of the Verdict – as a miscarriage of justice.