International observer mission of the President of the International Progress Organization, Dr. Hans Koechler, at the Scottish Court in the Netherlands ("Lockerbie Court")
by Dr. Hans Koechler, appointed as international observer
the Lockerbie Trial by UN Secretary-General Kofi Annan,
on misunderstandings and conflicting interpretations of his report on and evaluation of the trial, as expressed in official statements and in the subsequent international media coverage*
9 June 2001
1. As stated clearly on pages 1 and 8 of the document itself, my report of 3 February 2001 is neither a United Nations report nor one of the International Progress Organization (I.P.O.). It reflects my personal opinion as international observer of the I.P.O. who was appointed on the basis of Security Council resolution 1192 (1998).
2. At my own initiative, I submitted the report to the Secretary-General of the United Nations on the day it was issued. In a letter dated 20 February 2001, the Legal Counsel of the United Nations, Mr. Hans Corell, Under-Secretary-General for Legal Affairs, informed me that the report had been forwarded to the Scottish Court in the Netherlands.
3. Contrary to media reports, I was not criticized by the United Nations for the issuing of my report and evaluation of the Lockerbie Trial. In the spirit of Security Council resolution 1192 (1998) – which provides for the nomination of international observers by the Secretary-General –, the Secretariat of the United Nations did not interfere in the proceedings of the Scottish Court in the Netherlands nor in the conduct of the international observer mission. The Secretariat acted in a perfectly appropriate manner by forwarding my report – without further comments – to the Registrar of the Scottish Court in the Netherlands.
4. My observer mission would be meaningless if I considered my nomination as a personal privilege, keeping the results of my observation and evaluation of the trial to myself and making use of the information obtained merely for academic purposes. If this were the interpretation of the task of observing the trial, the Security Council would not have needed to provide for the nomination of international observers at all.
5. In its resolution, the Security Council did not define the concept of “international observer.” In the absence of a definition by the Council, the tasks of an international observer have to be interpreted in the context of that resolution: Taking into consideration the political dispute among United Nations member states over judicial matters in the Lockerbie bombing case, the Security Council’s provision for the nomination of international observers can only be seen as intending to assure a sense of transparency to judicial proceedings in this unique setup of a national court having to operate in a highly politicized international environment.
6. Therefore, the only meaningful interpretation of “international observer,” in my analysis, must be to observe the proceedings of the court in regard to basic aspects of fairness and due process, and to share the observations, when appropriate, with the United Nations Organization and the international public – without interfering in the actual conduct of the court.
7. I interpreted my observer mission very cautiously. For this reason, I did not seek any meeting with the panel of judges and I did not make any comments during the trial. But keeping silent after the passing of the verdict – when I was actually convinced that basic requirements of the rule of law had been violated in the court’s proceedings and in the verdict itself – would have made my role as international observer void of any meaning. I would have considered such behaviour irresponsible vis-à-vis the United Nations Organization (the legitimacy of which is based on the international rule of law), and – in view of my NGO affiliation – also vis-à-vis international civil society.
8. The spokesman for the Crown Office in Edinburgh, when stating that I misunderstood the nature of the Scottish legal system, apparently did not pay attention to my report in its entirety and was not aware of the general context of my evaluation of the Court’s proceedings and the verdict in regard to the basic principles of the rule of law. As observer of the proceedings of the Scottish Court in the Netherlands for nearly nine months, I have been fully aware of the adversarial nature of the Scottish legal system (in distinction from the inquisitive nature of other European legal systems). This system, like the Continental one or any other legal system, has its merits and disadvantages. But it is based on common legal principles – those of due process and basic human rights – that are shared by all nations and that are enshrined, as far as European nations are concerned, in the European Convention on Human Rights.
9. It is clear from the foregoing that I did not criticize the Scottish legal system as such or its adversarial nature. This would have been a complete misunderstanding of my observer mission, which is to be seen in the given constitutional context of the Scottish Court. In no paragraph does my report expect the panel of judges to act in an inquisitive manner or to assume a role which they cannot play under Scottish law. My report clearly and unambiguously refers to the legal quality of the conclusions which the judges drew from the evidence presented, and to eventual contradictions in the way they argued in the Opinion of the Court. It goes without saying that the legal quality of the verdict depends first and foremost on the evaluation and interpretation of the evidence by the judges themselves.
10. Because I was perfectly aware of the adversarial nature of the Scottish legal system, I also critically evaluated the actions of the prosecution and defense teams in regard to the presentation of evidence. I did not blame the judges for the shortcomings in the performance of the antagonists (prosecution and defense) in the court; I only criticized the judges’ evaluation of the materials put before them.
11. My critical references to (foreign) governmental and intelligence interference in the presentation of evidence in the court are directly related to how the prosecution and defense teams acted in the performance of their duties and how they eventually allowed or condoned such interference.
12. It is clear to me, from the foregoing, that the Crown Office in Edinburgh may have misunderstood my report because it did not read the twenty paragraphs of the report in their general context. I assume that the Secretary of State for Foreign and Commonwealth Affairs, in his written answer to the Hon. Mr. Dalyell in the House of Commons Debate of 1 May 2001, did base his evaluation of my report on the earlier statement of the Crown Office.
13. In reference to the answer given by the United Kingdom’s Solicitor-General in the debate of Standing Committee D on the International Criminal Court Bill [Lords] in the House of Commons on 10 April 2001, I would like to emphasize that – as a legal philosopher – I have based the overall evaluation of my report on general principles of law, due process and human rights as outlined, inter alia, in my books Democracy and the International Rule of Law and Philosophie – Recht – Politik [Philosophy – Law – Politics]. I cannot see any defect in my being a philosopher of law in connection with an international observer mission concerning a case where the very essence of law as a system of universally enforceable norms and the independence of the judiciary are at stake.
14. Law enforcement in a context of international power politics: this has been the challenging task put before the Scottish Court in the Netherlands by the Security Council of the United Nations. As the Hon. Mrs. Gillan rightly emphasized in the debate on the International Criminal Court Bill [Lords] in the House of Commons and in her question to the Solicitor-General of the United Kingdom, the “politicization of courts” is the basic issue that may determine the future of international criminal justice. As the International Criminal Court is still in its incipient stage, the lessons learned from the Lockerbie case are highly relevant for the evaluation of the proposed mechanisms of the International Criminal Court. It is here where philosophy of law can play a crucial role in defining the principles and the normative framework in which criminal justice may – or may not – be exercised in a framework of realpolitik.
15. As the Lockerbie case is still sub judice in regard to one of the two Libyan nationals, I consider my observer mission as ongoing. In conformity with my nomination by the UN Secretary-General, I shall continue to observe the proceedings of an eventual Court of Appeal at Kamp van Zeist in the case of Abdelbasset Ali Mohamed Al Megrahi.
Dr. Hans Koechler
° In my capacity as President of the International Progress Organization (I.P.O.) and as co-ordinator of the I.P.O. Committee of Legal Experts on United Nations Sanctions against Libya, I have been promoting, since the beginning of the crisis, the idea of a peaceful settlement of the Lockerbie dispute on the basis of the international rule of law. As early as 1992 our committee suggested adjudication of the dispute between Libya, the United States and the United Kingdom by the International Court of Justice and that "the parties involved should consider submitting the question of personal criminal responsibility to an ad hoc international criminal tribunal." A delegation of our committee, including international law experts Professor Ataoev (Turkey), Professor Boyle (USA), and Professor Charvin (France), met on 1 December 1994 with the President of the Security Council at United Nations Headquarters. We presented to the President of the Council our proposal that "the Security Council could submit the question of personal criminal responsibility of the two accused Libyan nationals to a criminal tribunal of Scottish Judges meeting at the seat of the International Court of Justice." In the context of the preceding efforts of the I.P.O., Security Council resolution 1192 (1998) was considered by myself as a decisive step in moving the issue away from political controversy and into a transparent and objective judicial procedure in the framework of well-defined rules of a national legal system.