I.P.O. Information Service



Applicability of the intergovernmental agreement between the United Kingdom and the Netherlands
concerning a Scottish Trial in the Netherlands to appeal proceedings


Statement by Dr. Hans Koechler

International Observer at the trial before the Scottish Court sitting in the Netherlands, nominated by the Secretary-General of the United Nations pursuant to paragraph 6 of Security Council resolution 1192 (1998) and in conformity with Art. 18 of the Agreement between the Governments of the U.K. and the Netherlands (18 September 1998)


Vienna, 23 June 2008



In an article published in its issue of 15 June 2008, the Sunday Times reports that Prof. Robert Black (Edinburgh) “said that the intergovernmental agreement no longer applied.” He is quoted with the statement that the Agreement “existed for the original trial and the appeal. This is now the second appeal …” and that “the agreement was spent.”

The statement that the Agreement “no longer applied” and “was spent” contradicts the precise wording of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Governmernt of the Kingdom of the Netherlands concerning a Scottish Trial in the Netherlands, concluded at The Hague, Netherlands, on 18 September 1998 and entered into force on 8 January 1999 (United Kingdom Treaty Series No. 43 [1999]) in the following two respects:


(1)        Art. 3, Par. 4 states that “the trial” “will be deemed to be ended when … any judgments of the Scottish Court following conviction have become final and conclusive.” (Lit. c) As of today, this is clearly not the case since the Scottish Criminal Cases Review Commission has referred Mr. Megrahi’s case back to the High Court for a second appeal.

(2)        Under “Definitions” in Art. 1, lit. (i) it is expressly stated that the term “the trial” also means “any appeal by the accused following conviction, all in accordance with Scots law and practice.” (Emphasis by H.K.) Nowhere does the agreement distinguish between a “first” and a “second” appeal.


If one applies the provision of Art. 16, Par. 2, lit. (a) of the Agreement to the situation prevailing now – after a new appeal has been granted to the convicted Libyan national –, the appeal proceedings can only be held in Scotland under the condition that he has given his “written agreement” and has confirmed that agreement “in person to the High Court of Justiciary in the presence of any counsel instructed by [him].”

As of today, the undersigned is not aware of such a written agreement given by Mr. Megrahi in person to the High Court of Justiciary. An agreement conveyed by his defense counsel (should that have been the case) is not sufficient. Even in the case of Mr. Megrahi’s having given his agreement according to Art. 16, Par 2, lit. (a), the intergovernmental Agreement as such is still valid because it does not distinguish between “first” and “second” appeal.


Dr Hans Köchler

  • Sunday Times article of 15 June 2008

  • Agreement between the United Kingdom and the Netherlands (1998)

  • Lockerbie Observer Mission of Dr. Hans Koechler