I There were trials of German and Italian nationals by US courts in France and in the Netherlands, and the International Criminal Tribunals for the former Yugoslavia and Rwanda try cases where the alleged offences were committed abroad, but this is the first instance of a court being established for and limited to the trial of two named individuals. At the Nuremberg and Tokyo trials, the defendants were German and Japanese respectively but they were being tried in their own country, albeit by foreign courts. 2 e.g. United Nations Press Release, document no. SC/5057 of 30 December 1988, expressing outrage and condemning the attack.
3 Article 493 of the Libyan Code of Criminal Procedure provides that Libya may extradite offenders with the proviso that: "the extradition does not relate to a Libyan citizen". 4 The UK and US Governments demanded that Libya "surrender for trial all those charged with the crime...and accept responsibility for the actions of Libyan offi- cials, disclose all it knows of this crime... and pay appropriate compensation". 5 Montreal Convention of 23 September 1971 for the Suppression of Unlawful Acts against the Safety of Civil Aviation. 6 Letter from the Permanent Representative of France to the President of the Security Council (Doc S/23306).
7 Security Council document S/23309 8 Security Council resolution 731 (1992), S/RES/731 dated 21 January 1992. 9 Applications of Libya filed in the Registry of the International Court of Justice, 3 March 1992. 10 Article 14(1) of the Montreal Convention provides: "Any dispute between two or more Contracting States concerning the application or interpretation of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration; if within six months from the date of the request for arbitration the Parties are unable to agree on the organisation of the arbi- tration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court." 11t In "T7te Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?" (1999) European Journal of International Law, Vol.10, No.3, 517, Bernd Martenczuk argues cogently that the Lockerbie cases may prove to be a turning point for the ICJ which may in future rely on the rule of law to place a limit on the powers of the Security Council, a limit he sees as already present in the very wording of article 39 of the UN Charter. 12 Security Council resolution 748 (1992), S/RES/748 dated 31 March 1992.
133 Chapter VII gives the Security Council power to take measures "to maintain or restore international peace and security"; actions taken under Chapter VII are binding. 14 Article 103 of the United Nations Charter provides: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement their obliga- tions under the present Charter shall prevail". 15 Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, Request for the Indication of Provisional Measures, Order dated 14 April 1992, International Court of Justice. 16 For a thorough examination of the early developments (resolutions 731 and 748, and the first stage of the ICJ proceedings) see Beveridge F , "The Lockerbie A,ffair" 41 ICLQ 907. 17 Security Council resolution 883 (1993), S/RES/883 dated 11 November 1993.
18 The ICJ held that the Application was admissible since "the critical date for deter- mining the admissibility of an application is the date on which it is filed" (Border and Transborder Armed Actions, (Nicaragua v Honduras), Jurisdiction and Admissibility, LC.J. Reports 1988). The application, filed on 3 March 1992, predat- ed Security Council resolutions 748(1992) and 883(1993) and consequently, the claim of inadmissibility based on those resolutions was rejected. Libya argued that the objections were "not exclusively preliminary" and entailed decisions which should be left to the merits stage, and the ICJ upheld this contention. 19 Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie. Judgment dated 27 February 1998 (Preliminary Objections). The judgments in the two cases, Libya v United States and Libya v. United Kingdom, are very similar and any differences are irrelevant for present purposes.
20 See the following documents: S/1994/373 Letter dated 31 March 1994 from the Permanent Representative of the Libyan Arab Jamahiriya to the United Nations addressed to the President of the Security Council; S/1995/834 Letter dated 4 October 1995 from the Permanent Representative of the Libyan Arab Jamahiriya to the United Nations addressed to the Secretary-General; S/1997/35 Letter dated 15 January 1997 from the Charge d'affaires A.I. of the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations addressed to the President of the Security Council; S/1997/273 Letter dated 3 April 1997 from the Permanent Representative of the Libyan Arab Jamahiriya to the United Nations addressed to the President of the Security Council; S/1997/406 (Annex) Final Document of the Twelfth Ministerial Conference of the Movement of Non-Aligned Countries; S/1997/497 Letter dated 26 June 1997 from the Permanent Observers of the League of Arab States and of the Organization of African Unity to the United Nations addressed to the President of the Security Council; S/1997/529 Letter dated 9 July 1997 from the Permanent Representative of the Zimbabwe to the United Nations addressed to the President of the Security Council. 21 Letter dated 24 August 1998 from the acting permanent representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations addressed to the Secretary-General (S/1998/795). 22 Annex II of S/1998/795 is a draft Agreement between the Government of the Kingdom of the Netherlands and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning a Scottish Trial in the Netherlands.
23 Security Council Press Release SC/6566 dated 27 August 1998. 24 Security Council resolution 1192 (1998), S/RES/1192 dated 27 August 1998. 25 Article 3(1) of the Agreement. 26 Article 3(3) of the Agreement. 27 Articles 7-15 of the Agreement. 28 Article 16(2) of the Agreement. 29 Article 16(2)(b) of the Agreement. 30 Article 16(4) of the Agreement. 31 Statutory Instrument 1998 No.2251, The High Court of Justiciary (Proceedings in the Netherlands)(United Nations) Order 1998, made 16 September 1998, laid before Parliament 17 September 1998, entry into force 18 September 1998.
32 Article 5 of the Statutory Instrument.
33 Paragraph 8 of Security Council Resolution 1192 (1998) lays down that sanctions "shall be suspended immediately if the Secretary-General reports to the council that the two accused have arrived in the Netherlands for the purpose of trial ... and that the Libyan Government has satisfied the French judicial authorities with regard to the bombing of UTA 772" France had not demanded the extradition of the 6 Libyans it suspected of the attack on UTA flight 772, but instead chose to try them in absentia, and on 10 March 1999, they were convicted and sentenced to life imprisonment. The Libyan Government has given France satisfactory assurances with regard to implementation of those sentences. 34 Report of the Secretary-General submitted pursuant to Paragraph 16 of Security Council resolution 883 (1993) and Paragraph 8 of resolution 1192, document S/1999/726 dated 30 June 1999. 35 Secretary-General's Report, supra., n.33 36 Many websites offer "Lockerbie news", some starting from the position that the two suspects are innocent such as http:/www.geocities.com/Capitol Hill/5260/. There is a substantial body of respected commentaries arguing that the criminal case is badly flawed, e.g. Paul Foot and John Ashton, "Body of Evidence", The Guardian 29 July 1995. See also Menno T Kamminga, "Comment: Trial of Lockerbie sus- pects before a Scottish Court in the Netherlands", (1998) Netherlands International Law Review XLU, 417. 3� Widely reported in the British press (e.g. The times, The Independent, The Guardian), 7 December 1999.
38 Widely reported in the international press: 7, 8 and 9 December 1999. e.g. "Libyans Make First Public Appearance in Lockerbie Case", International Herald Tribune, 8 December 1999; "Proccs Lockerbie: maintien de 1'accusation de complot", Agence France Presse, 8 December 1999, "Judge agrees to delay trial of Lockerbie suspects", The Guardian, 9 December 1999. 39 The changing way in which the Security Council is perceived is also illustrated by the totally unrelated NATO action in Kosovo, which represents a challenge to the Security Council's traditional Chapter Vll role. In "NATO's 'Humanitarian War' over Kosovo" Survival, vol. 41, no. 3, 1999, 102-123, Adam Roberts points out that a UK Foreign and Commonwealth Office note of October 1998 stated "A UNSCR would give a clear legal base for NATO action, as well as being politically desir- able. But force can also be justified on the grounds of overwhelming humanitarian necessity without a UNSCR." The fact that the government of a Permanent Security Council Member was willing to countenance the use of force without Security Council authorisation suggests an important shift in perception. 40 See, for example, Mohammed Bedjaoui, The New World Order and the Security Council - Testing the Legality of its Acts, Martinus Nijhoff Publishers, Dordrecht 1994, in particular at pp. 66-75.