1. All administrative
aspects of the trial were handled with great care, efficiency and
professionalism by the staff of the Scottish Court Service at Kamp van Zeist.
Apart from minor problems with simultaneous interpretation at the beginning
of the trial, there were no major weaknesses that might have affected the
fairness of the proceedings. The problems of interpretation were solved in a
satisfactory manner. The Scottish Court Service did its best to assist the
undersigned in the accomplishment of his observer mission.
2. The circumstances of
detention of the two accused at Her Majesty's Prison Zeist were in conformity
with national legal requirements and international legal and human rights
standards. According to the information given by the accused in a private
interview with the undersigned, no people had access to them without their
consent. In particular, the medical services and the medical care for the second
accused (who needs permanent medication) were up to the required standard. Upon
their special request, the undersigned sent a note about his meeting with the
accused in May 2000 and conveyed their concerns in regard to certain political
aspects of the United Nations arrangements and conditions for their coming to
the Netherlands to the Secretary-General of the United Nations. The Governor of
HM Prison Zeist forwarded the undersigned's confirmation note on the forwarding
of this message to the two accused. The prison administration was fully
co-operative in regard to the undersigned's requests in the exercise of his
observer mission.
3. The extraordinary length
of detention of the two suspects / accused from the time of their arrival in the
Netherlands until the beginning of the trial in May 2000 has constituted a
serious problem in regard to the basic human rights of the two Libyan nationals
under general European standards, in particular those of the European Convention
on Human Rights. In general, the highly political circumstances of the trial and
special security considerations related to the political nature of the trial may
have had a detrimental effect on the rights of the accused, in particular in
regard to the duration of administrative detention.
4. As far as the
material aspects of due process and fairness of the trial are concerned, the
presence of at least two representatives of a foreign government in the
courtroom during the entire period of the trial was highly problematic. The two
state prosecutors from the US Department of Justice were seated next to the
prosecution team. They were not listed in any of the official information
documents about the Court's officers produced by the Scottish Court Service, yet
they were seen talking to the prosecutors while the Court was in session,
checking notes and passing on documents. For an independent observer watching
this from the visitors' gallery, this created the impression of "supervisors"
handling vital matters of the prosecution strategy and deciding, in certain
cases, which documents (evidence) were to be released in open court or what
parts of information contained in a certain document were to be withheld
(deleted).
5. This serious problem of
due process became evident in the matter of the CIA cables concerning one of the
Crown's key witnesses, Mr. Giaka. Those cables were initially dismissed by the
prosecution as "not relevant," but proved to be of high relevance when finally
(though only partially) released after a move from the part of the defense.
Apart from this specific aspect − that seriously damaged the integrity of the
whole legal procedure
-, it has become obvious that the presence of
representatives of foreign governments in a Scottish courtroom (or any
courtroom, for that matter) on the side of the prosecution team jeopardizes the
independence and integrity of legal procedures and is not in conformity with the
general standards of due process and fairness of the trial. As has become
obvious to the undersigned, this presence has negatively impacted on the Court's
ability to find the truth; it has introduced a political element into the
proceedings in the courtroom. This presence should never have been granted from
the outset.
6. Another, though less
serious, problem in regard to due process was the presence of foreign nationals
on the side of the defense team in the courtroom during the whole period of the
trial. Apart from the presence of an Arab interpreter (which was perfectly
reasonable under aspects of fairness and efficiency of the proceedings), the
presence of a Libyan lawyer who had held high posts in the Libyan government and
who represented the Libyan Jamahiriya in its case v the United States and the
United Kingdom at the International Court of Justice gave the trial a political
aspect that should have been avoided by decision of the panel of judges. Though
Mr. Maghour acted officially as Libyan defense lawyer for the accused Libyan
nationals and although he was not seen by the undersigned as interacting with
the Scottish defense lawyers during court proceedings, he had to be perceived as
a kind of liaison official in a political sense. It has to be noted that the
original Libyan defense lawyer, Dr. Ibrahim Legwell (chosen by the two suspects
long before their transfer to the Netherlands), resigned under protest when the
Libyan government introduced Mr. Maghour as new defense lawyer for the two
accused. In sum, the presence of de facto governmental representatives of
both sides in the courtroom gave the trial a highly political aura that should
have been avoided by all means, at least as far as the actual proceedings in the
courtroom were concerned. Again, as to the undersigned's knowledge, the presence
of foreign nationals on the side of the defense team was mentioned in no
official briefing document of the Scottish Court Service.
7. It was a consistent
pattern during the whole trial that − as an apparent result of political
interests and considerations − efforts were undertaken to withhold substantial
information from the Court. One of the most obvious cases in point was that of
the former Libyan double agent, Abdul Majid Giaka, and the CIA cables related to
him. Some of the cables were finally released after much insistence from the
part of the defense, some were never made available. The Court was apparently
content with this situation, which is hard to understand for an independent
observer. It may never be fully known up to which extent relevant information
was hidden from the Court. The most serious case, however, is related to the
special defense launched by defense attorneys Taylor and Keen. It was officially
stated by the Lord Advocate that substantial new information had been received
from an unnamed foreign government relating to the defense case. The content of
this information was never revealed, the requested specific documents were never
provided by a foreign government. The alternative theory of the defense − leading to conclusions contradictory to those of the prosecution
− was never
seriously investigated. Amid shrouds of secrecy and "national security"
considerations, that avenue was never seriously pursued − although it was
officially declared as being of major importance for the defense case. This is
totally incomprehensible to any rational observer. By not having pursued
thoroughly and carefully an alternative theory, the Court seems to have accepted
that the whole legal process was seriously flawed in regard to the requirements
of objectivity and due process.
8. As a result of this
situation, the undersigned has reached the conclusion that foreign governments
or (secret) governmental agencies may have been allowed, albeit indirectly, to
determine, to a considerable extent, which evidence was made available to the
Court.
9. In the analysis of the
undersigned, the strategy of the defense team by suddenly dropping its "special
defense" and canceling the appearance of almost all defense witnesses (in spite
of the defense's ambitious announcements made earlier during the trial) is
totally incomprehensible; it puts into question the credibility of the defense's
actions and motives. In spite of repeated requests of the undersigned, the
defense lawyers were not available for comment on this particular matter.
10. A general pattern of
the trial consisted in the fact that virtually all people presented by the
prosecution as key witnesses were proven to lack credibility to a very high
extent, in certain cases even having openly lied to the Court. Particularly as
regards Mr. Bollier and Mr. Giaka, there were so many inconsistencies in their
statements and open contradictions to statements of other witnesses that the
resulting confusion was much greater than any clarification that may have
been obtained from parts of their statements. Their credibility as such was
shaken. It seems highly arbitrary and irrational to choose only parts of
their statements for the formulation of a verdict that requires certainty
"beyond any reasonable doubt."
11. The air of international
power politics is present in the whole verdict of the panel of judges. In spite
of the many reservations in the Opinion of the Court explaining the verdict
itself, the guilty verdict in the case of the first accused is particularly
incomprehensible in view of the admission by the judges themselves that the
identification of the first accused by the Maltese shop owner was "not absolute"
(formulation in Par. 89 of the Opinion) and that there was a "mass of
conflicting evidence" (ibid.). The consistency and legal credibility of
the verdict is further jeopardized by the fact that the judges deleted one of
the basic elements of the indictment, namely the statement about the two accused
having induced on 20 December 1988 into Malta airport the suitcase that was
supposedly used to hide the bomb that exploded in the Panam jet.
12. Furthermore, the
Opinion of the Court seems to be inconsistent in a basic respect: while the
first accused was found "guilty," the second accused was found "not guilty." It
is to be noted that the judgement, in the latter's case, was not "not
proven," but "not guilty." This is totally incomprehensible for any rational
observer when one considers that the indictment in its very essence was based on
the joint action of the two accused in Malta.
13. The Opinion of the
Court is exclusively based on circumstantial evidence and on a series of highly
problematic inferences. As to the undersigned's knowledge, there is not one
single piece of material evidence linking the two accused to the crime. In such
a context, the guilty verdict in regard to the first accused appears to be
arbitrary, even irrational. This impression is enforced when one considers that
the actual wording of the larger part of the Opinion of the Court points more
into the direction of a "not proven" verdict. The arbitrary aspect of the
verdict is becoming even more obvious when one considers that the prosecution,
at a rather late stage of the trial, decided to "split" the accusation and to
change the very essence of the indictment by renouncing the identification of
the second accused as a member of Libyan intelligence so as to actually
disengage him from the formerly alleged collusion with the first accused in the
supposed perpetration of the crime. Some light is shed on this procedure by the
otherwise totally incomprehensible "not guilty" verdict in regard to the second
accused.
14. This leads the
undersigned to the suspicion that political considerations may have been
overriding a strictly judicial evaluation of the case and thus may have
adversely affected the outcome of the trial. This may have a profound impact on
the evaluation of the professional reputation and integrity of the panel of
three Scottish judges. Seen from the final outcome, a certain coordination of
the strategies of the prosecution, of the defense, and of the judges'
considerations during the later period of the trial is not totally unlikely.
This, however,
− when actually proven
− would have a devastating effect on the
whole legal process of the Scottish Court in the Netherlands and on the legal
quality of its findings.
15. In the above context,
the undersigned has reached the general conclusion that the outcome of the trial
may well have been determined by political considerations and may to a
considerable extent have been the result of more or less openly exercised
influence from the part of actors outside the judicial framework − facts which
are not compatible with the basic principle of the division of powers and
with the independence of the judiciary, and which put in jeopardy the very rule
of law and the confidence citizens must have in the legitimacy of state power
and the functioning of the state's organs − whether on the traditional national
level or in the framework of international justice as it is gradually being
established through the United Nations Organization.
16. On the basis of the
above observations and evaluation, the undersigned has − to his great dismay − reached the conclusion that the trial, seen in its entirety, was not fair and
was not conducted in an objective manner. Indeed, there are many more questions
and doubts at the end of the trial than there were at its beginning. The trial
has effectively created more confusion than clarity and no rational observer can
make any statement on the complex subject matter "beyond any reasonable doubt."
Irrespective of this regrettable outcome, the search for the truth must
continue. This is the requirement of the rule of law and the right of the
victims' families and of the international public.
17. The international
observer may draw one general conclusion from the conduct of the trial,
which allows to formulate a general maxim applicable to judicial procedures in
general: proper judicial procedure is simply impossible if political interests
and intelligence services − from whichever side − succeed in interfering in the
actual conduct of a court. We should remember the wisdom of Immanuel Kant who − in his treatise on
perpetual peace (Zum ewigen Frieden), elaborating on the
essence of the rule of law − unambiguously stated that secrecy is never
compatible with a republican system determined by the rule of law. The purpose
of intelligence services − from whichever side − lies in secret action and
deception, not in the search for truth. Justice and the rule of law can never be
achieved without transparency.
18. Regrettably, through the
conduct of the Court, disservice has been done to the important cause of
international criminal justice. The goals of criminal justice on an
international level cannot be advanced in a context of power politics and in the
absence of an elaborate division of powers. What is true on the national level,
applies to the transnational level as well. No national court can function if it
has to act under pressure from the executive power and if vital evidence is
being withheld from it because of political interests. The realities faced by
the Scottish Court in the Netherlands have demonstrated this truth in a very
clear and dramatic fashion − the political impact stemming, in this particular
case, from a highly complex web of national and transnational interests related
to the interaction among several major actors on the international scene.
19. The undersigned would
like to express his humble opinion − or hope, for that matter − that an appeal,
if granted, will correct the deficiencies of the trial as explained above. It
goes without saying that all will depend on the integrity and independence of
the five judges of an eventual Court of Appeal operating under Scottish law.
20. The above evaluation
should in no way be interpreted as to diminish the idealistic contribution and
commitment of so many civil servants of the Scottish Court Service and the
Scottish police authorities who guaranteed the smooth functioning of the whole
court operation at Kamp van Zeist under difficult and truly extraordinary
circumstances.
