I.P.O. Information Service
Release of the Lockerbie prisoner: the case is not closed
Statement by Dr. Hans Koechler, International Observer,
appointed by the United Nations, at the Lockerbie Trial in the
Netherlands
Vienna, 21 August 2009
Dr. Hans Koechler has been appointed by the Secretary-General of the
United Nations as international observer at the Lockerbie Trial in the
Netherlands. In two analytical reports, submitted to the United Nations
in 2001 and 2002, about the trial and first appeal he had suspected a
miscarriage of justice. Commenting on yesterday's release on
compassionate grounds of the only person convicted in the Lockerbie
case, the Libyan citizen Abdelbaset Ali Mohmed Al
Megrahi, Dr. Koechler clarified certain important points in interviews
for Austrian and international media.
Domestic and international legal aspects of the release
The decision by Scotland’s Justice Secretary, Kenny MacAskill, was in conformity with Scots law and did not violate any international obligation of the United Kingdom. Notwithstanding other declarations, release on the basis of the recently ratified prisoner transfer agreement between the Libyan Jamahiriya and the United Kingdom would have violated the terms of an agreement concluded between the United Kingdom and the United States according to which the full sentence of any person convicted by the Scottish Court in the Netherlands would be served in a Scottish prison.* Dr. Koechler who had listened to the reading of Mr. MacAskill’s statement, said that he is at a loss to explain how the Scottish authorities can say that they had no specific information on this legal matter because the UK authorities did not provide it to them. If he would have checked relevant documents in the public domain, he could have found – in the official records of the House of Commons – the text of a statement made by the then Foreign Secretary of the United Kingdom, the late Robin Cook, on 31 January 2001. Because of the importance of the issue in legal and political terms the respective part of the statement is reproduced below:
"I can give the right hon. Gentleman and the House an
absolute assurance that there will be no deal with the Libyan Government
on the sentence of Mr. Al Megrahi. I do not
believe that any Scottish court would wear such a deal, even if we
remotely contemplated striking one. As part of the terms of the
agreement in 1991 [sic!], it was agreed that the full sentence would be served
in a Scottish prison. At that stage, we rejected the proposal that the
person responsible might be sent to a prison in a third country. The
United Nations will have access to his prison, because we have nothing
to hide or to fear about the standard of Scottish prisons. I suspect
that they will be better than those of Libyan prisons.
This was the Foreign Secretary’s answer to the
following question by the Hon. Francis Maude, MP:
"Will the Government undertake that Al Megrahi will
neither be released early as part of some deal with Libya, nor permitted
to serve part of his sentence in Libya?
In view of this official statement, made by the
British Foreign Secretary in the House of Commons, it is crystal-clear
that only release on compassionate grounds was in conformity with the
United Kingdom’s international obligations -
as Dr. Koechler had already stated on 5 August 2009
in an interview for the BBC London.
Dropping of the appeal by the convict
In an op-ed article for The Independent
(London), Dr. Koechler has expressed serious doubts about the decision
by Mr. Al Megrahi to withdraw his (second)
appeal. His decision may have been made under duress and would thus be
legally questionable, he said. According to Scots law, the termination
of the ongoing appeal was not in any way required for compassionate
release to be granted. The Scottish Justice Secretary will have to
clarify vis-à-vis the Scottish, British and international public the
exact circumstances under which the appeal was dropped. According to
reports, Mr. Al Megrahi’s request was lodged through his defence team on
12 August 2009, in close proximity to the date of his release (20 August
2009) and just a few days after his meeting with the Justice Secretary.
How are these coincidences to be explained?
It should have been obvious to the Scottish
authorities that - in a case where an act
of
international terrorism is suspected -
it would be in the public interest of the country
that has jurisdiction to continue with criminal proceedings and to
exhaust all legal means to establish the truth about the incident. Why
did the authorities satisfy themselves to deal with the question of
criminal responsibility of two, later only one, suspects, and why did
they accept the abrupt ending of the ongoing appeal of the only person
convicted?
Omission by Scotland's Justice Secretary of any reference to
the decision of Scottish Criminal Cases Review
Commission
Mr. MacAskill was right, in political as well as
legal terms, in releasing Mr. Al Megrahi on compassionate grounds.
However, in yesterday’s statement explaining his decision, he failed the
test of statesmanship or judicial expertise. Upon concluding his
statement he appeared more like a Prosecutor in a trial, suddenly
assuming a vindictive tone and trying to convince the court of the guilt
of the indicted, not like the Secretary of Justice who has to make a
decision that is not related to the question of guilt or innocence (as
is the case with “release on compassionate grounds” according to Scots
law).
It is noteworthy that, in his statement, the Justice
Secretary did not in any way take note of the fact that
- in the years since the trial court's
decision on 31 January 2001
- serious doubts
have arisen about the guilty verdict and that the Scottish Criminal
Cases Review Commission (SCCRC) – after four (!) years of painstaking
investigations – had stated (in June 2007) that it suspects a
miscarriage of justice and had, thus, referred the case back to the
appeal court. He did – obviously deliberately – overlook the finding of
the SCCRC according to which “there is no reasonable basis in the trial
court’s judgment for its conclusion that the purchase [by Mr. Al
Megrahi] of the items [clothes] from Mary’s House, took place on 7
December 1988.” It does not need special intellectual skills to realize
that the entire verdict collapses if there is no proof for the assertion
that Mr. Al Megrahi was the person who bought clothes on that particular
day in that particular shop in Malta.
In view of the appeal now having been aborted, the
work of the Scottish Criminal Cases Review Commission will have been in
vain. The least that is to be expected from the Scottish judicial
authorities is that they publish the full report of the Commission. Up
to the present moment, not only the full report has not been released
into the public domain, several grounds of appeal given by the
Commission are being kept secret.
Public inquiry and possible role of the United
Nations
As matters stand in Scotland, there may be no further
criminal proceedings or investigations. However, establishing the truth
about the midair explosion of an airliner and identifying the
perpetrators is in the supreme public interest of any polity that is
built on the rule of law. The legitimacy of any state is closely
connected to a state’s willingness and ability to investigate and
prosecute sine ira et studio each and
every incident such as that which caused the death of 270 innocent
people on the PanAm plane and in Lockerbie, Dr. Koechler said. In an
exclusive interview with Al-Jazeera’s Felicity Barr the former
UN-appointed observer reiterated his call for a public inquiry to be
mandated by the British House of Commons. He further explained that,
absent a decision by the House of Commons, the United Nations General
Assembly may consider establishing an international commission of
inquiry into the Lockerbie incident on the basis of Art. 22 of the UN
Charter. Since the United Nations Security Council, acting under Chapter
VII of the Charter, has decided on 12 September 2003 to remove the
Lockerbie issue “from the list of matters of which the Security Council
is seized,” the General Assembly would undoubtedly have authority to
deal with the issue.
About alternative theories
In all conversations with media representatives and in an interview, moderated from London and broadcast live on Al-Jazeera TV shortly after Mr. Al-Megrahi’s release, Dr. Koechler has made clear that, as a United Nations-appointed observer as well as a scholar, he does not engage in any speculation about the perpetrators as long as no alternative theory about the incident can be built beyond a reasonable doubt. He added that, if the Scottish judges at Camp Zeist would have respected that criterion, they could not have reached the guilty verdict in the case of Mr. Al Megrahi.
_________________
"I saw the trial - and the verdict made no sense"
Article by Hans Köchler in The Independent, London
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