INTERNATIONAL AVIATION TERRORISM. THE LOCKERBIE AFFAIR BETWEEN LAW AND POLITICS. Maria Rosaria Brizi A thesis submitted to the Faculty of Arts, University of the Witwatersrand, Johannesburg, in fulfilment of the requirements for the degree of Doctor of Philosophy in International Relations. Johannesburg, 2006. Abstract On 21 December 1988 a civil airliner, Pan Am 103, blew apart over the town of Lockerbie, Scotland. This was a major terrorist attack against civil aviation, which shocked billions of people and gained worldwide media attention. This thesis examines the Lockerbie case in its political and legal dimension as a heinous and spectacular example of international aviation terrorism. First, it discusses the very idea of terrorism and the inherent definitional problems. Then, it focuses on the disaster and its aftermath. The thesis approaches the numerous issues this complex case raised as years went by. In particular, it portrays the long-standing diplomatic and political wrangle between the United Kingdom and the United States on one side and Libya on the other side. The International Court of Justice and the United Nations Security Council were both involved in this case. The thesis tries to depict the inextricable link between law and politics within the United Nations framework and the difficult balance the judicial and the political powers need striking for a correct and fruitful functioning of the whole system. The Lockerbie case turned out to be a testing-gown for the inherent consistency of the United Nations set-up. Extradition of the alleged perpetrators of the bombing was the issue at stake. For the first time ever, the Security Council imposed sanctions on a sovereign state in order to secure to justice the alleged perpetrators of a terrorist attack. And this raised another pivotal issue that this thesis explores: the adequacy of sanctions as a means for inducing a country’s leadership to adopt a certain course of action. The Lockerbie case is also a story of unofficial diplomacy where mediation of enlightened leaders such as Nelson Mandela proved pivotal. The stance that so-called emerging powers took was also crucial to determine the course of the following events. Ultimately, a criminal trial took place and somebody was convicted for the heinous onslaught. This thesis tries to analyse the Lockerbie trial in its peculiarity: for the first time ever, a national Court sat in a foreign country in order to deal with a criminal case. If the parties to the dispute had not compromised on the idea of a neutral venue where to stage the trial, the latter would have probably never come about. Yet, the criminal trial was not the closing chapter of the lengthy Lockerbie saga. Of course, for the grieving families of the victims, the fact that somebody was held accountable was better than nothing. Yet, the said families also tried to advocate their own cause and get something more than a criminal verdict convicting one single person. Restitution being impossible, there was still room for monetary compensation. This thesis focuses on the lengthy and painful battle the families of the Lockerbie victims engaged in. It was a double battle, actually: one against the airline ii that had somehow let one of its aircraft crash and one against the Libyan Government, which might be held responsible for the deeds of its agents. None of the two was an easy battle to win and yet it was pivotal to fight both, if justice was to be achieved. In the event, the Lockerbie case came to an end. Somebody was convicted for Pan Am 103 bombing and the families of the victims got some money in compensation, both from the airline and the Libyan Government. In the meantime, the world geopolitics has been changing. The relationship between the West and Libya is no longer as tense as it was. The African state is back to the international fold. This took a long time to be achieved but it happened through the use of legal tools. In the aftermath of the disaster, striking back by military means might have been an option but it was ruled out. In this respect, this thesis tries to show that law and politics can interact in a fruitful way, thus preventing escalations of violence. Whether they also achieve substantial justice might however be questionable. Declaration iii I declare that this thesis is my own unaided work. It is submitted for the degree of Doctor of Philosophy in the University of the Witwatersrand, Johannesburg. It has not been submitted before for any other degree or examination in any other university. (Maria Rosaria Brizi) This day of January 2006. Acknowledgments iv I am beholden to Professor Garth L. Shelton of the Department of International Relations at the University of the Witwatersrand who read and commented on the drafts of my thesis. I thank him for his constant encouragement and support. His belief in my ability to undertake and complete this project has sustained me throughout the years I have spent on this thesis, which is due as much to his helpful suggestions as it is to my efforts. I am also immensely grateful to Justice Richard Goldstone and Justice Albie Sachs of the Constitutional Court of South Africa, Justice Mauro Politi of the International Criminal Court and Professor William A. Schabas of the National University of Ireland, Galway, for meeting with me and accepting being interviewed. It has been a great privilege and an extremely inspiring experience to discuss the subject matter of my thesis with them all. They have provided me with invaluable insight, which I will always treasure as an outstanding source of inspiration. A special word of thanks is given to those that agreed to being interviewed via e-mail and kindly answered my many questions in writing, also sending me useful materials and providing me with extremely helpful elucidations: George Saliba, Malta’s former Ambassador in Libya and several other countries; Peter Watson and Jim Kreindler, attorneys that represented many of the relatives of the Lockerbie victims; Jan van Eck, conflict analyst at the University of Pretoria; Pieter Bekker, former staff attorney of the International Court of Justice and Counsel in the International Arbitration Group; John E. Noyes, Professor of Law at the Western School of Law, San Diego, California. v Contents Abstract ………………………………………………………….….. ii Acknowledgments …………………………………………………. v INTRODUCTION ………………………………………………... 1 1. TERRORISM AND DEFINITIONAL ISSUES 1.1 The importance of a “neutral” approach ………………………. 13 1.2 Terrorism and warfare …………………………………………… 19 1.3 Terrorism as a crime …………………………………………….. 25 1.4 Terrorism and the United Nations …………………………….. 29 1.5 The United Nations and the global approach …………….….. 42 1.6 International terrorism and customary law ………………...... 49 1.7 Conclusion …………………………………………………………. 56 Notes ……………………………………………………………....... 60 2. PAN AM 103 CRASH AND THE U.N. RESPONSE 2.1 Pan Am 103 bombing …………………………………………….. 65 2.2 The Security Council and the package of sanctions …………. 69 2.3 Libya’ request for interim measures …………………………… 75 2.4 Libya’s case ………………………………………………………... 84 2.5 Preliminary objections by the United Kingdom ……………… 87 2.6 Preliminary objections by the United States …………………. 95 2.7 The World Court addresses Preliminary Objections ………… 104 vi 2.8 The Court and the Council within the U.N. system ………… 107 2.9 The International Court of Justice and judicial review …….. 114 2.10 Conclusion …………………………………………………………. 120 Notes ………………………………………………………………... 127 3. THE LONG WAY TO THE LOCKERBIE TRIAL 3.1 Libya and the United Nations sanctions ……………………… 136 3.2 Libya gains African support …………………………………….. 141 3.3 The possibility of a trial in a third country …………………… 148 3.4 The handover ……………………………………………………… 155 3.5 Trial arrangements and charges ……………………………….. 160 3.6 Evidence and findings ……………………………………………. 165 3.7 Reactions to the verdict ………………………………………….. 173 3.8 The appeal ..………………………………………………………. 181 3.9 Reactions to the appeal judgement …………………………….. 188 3.10 Conclusion …………………………………………………………. 192 Notes ………………………………………………………………... 200 4 THE LOCKERBIE AFFAIR AND THE MEDIA 4.1 Terrorism and media coverage ………………………………….. 207 4.2 The media issue at Camp Zeist ……………..…………………. 212 4.3 The “remote sites” issue …………………………………………. 219 4.4 Striking a balance ………………………………………………… 224 4.5 Appeal judgement ………………………………………………… 228 vii 4.6 Al Fhimah and Al Megrahi v. Times Newspaper Ltd ……….. 231 4.7 The press and the bereaved families …………………………... 237 4.8 Unanswered questions and political intrigue………………… 241 4.9 A long deadlock, a huge trial, a poor outcome ………………... 246 4.10 Conclusion …………………………………………………………. 252 Notes ………………………………………………………………... 256 BEYOND RETRIBUTION: RESTORATION AND 5. REHABILITATION 5.1 Redressing unbalances in modern times……………………… 265 5.2 Airline security and Pan Am responsibility …………………... 268 5.3 Civil lawsuit against Libya ……………………………………… 276 5.4 The long way to the final deal …………………………………... 281 5.5 Meanwhile at the United Nations ……………………………… 284 5.6 Compensation in the view of the lawyers ……………………... 287 5.7 What about Libya …………………………………………………. 291 5.8 Conclusion …………………………………………………………. 296 Notes ………………………………………………………………... 300 EPILOGUE ………………………………………………………... 307 References ………………………………………………………….. 330 viii INTRODUCTION One of the global challenges for the 21 st century seems to be aviation security. It is unquestionable that aviation terrorism is a frightening feature of the world of today and a major concern for governments worldwide. As a matter of fact, the international community has been experiencing an epidemic growth of unlawful acts of interference with civil aviation, which began in the late sixties and early seventies and still threatens to this day the safety of billions passengers. Undeniably, civil aviation provides terrorists with highly visibility targets and, due to the great media attention paid to attacks on aviation targets, provides terrorists with great propaganda opportunities as well as a noteworthy leverage in the achievement of their aims. This is why civil aviation is often an optimal target for terrorists. Air transport is certainly a vital factor for global economic growth, communication and social development.