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Libya v United States; Libya v United Kingdom ICJ Rep 1992 3, p. 114, International Court of Justice
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie Presented by: Nor Farhani Ahmad Nur Farah Hanim Burhan Nur Liyana Zainal Karib Zur Azureen Zainalkefli
A bomb exploded in a plane, Pan Am over the town named, Lockerbie in Scotland.
259 people on board and 11 people in town of Lockerbie were killed.
All
Investigation team lead by United Kingdom found a bomb in a suitcase leading to two Libyans suspects, Al-Megrahi and Fhimah. UK and USA keep urging the Libyan Government to surrender the two suspects to be prosecuted. However, relying on Article 7 of Montreal Convention, Libya refused to extradite their citizens to UK and USA
21 December 1988
Pan
Timeline
Am flight 103 from London to New York is blown up over Lockerbie, Scotland.
14 November 1991
Libyans
Abdelbaset al-Megrahi and Al Amin Khalifa Fhimah are named as suspects to the case. is placed under house arrest.
Megrahi
23 March 1992
Libyas
UN delegate says the suspects will be handed over to the Arab League but the West rejects Libyas condition.
31 March 1992
Security
April 1992
UN
11 June 1997
UN
20 March1998
Suggest
22 April 1998
Libya
says it will accept a trial of the two suspects under Scots law on neutral territory.
5 April 1999
Megrahi
and Fhimah are flown to the Netherlands and formally charged with
murder.
UN
May 2000
The
trial begins.
January 2001
Megrahi Megrahi
is sentenced to life with a recommended minimum term of 20 years. He immediately appeals against his conviction.
April 2001
appeal is rejected
Megrahi's
2003
Megrahi
applies to the Scottish Criminal Cases Review Commission(SCCRC) to review his case. - A court tells Megrahi he must serve a minimum of 27 years as punishment for the crime, to comply with the Human Rights Act.
SCCRC refers the cases back to the High Court on the grounds that Megrahi may have suffered a miscarriage of justice. grounds of appeal are referred to the court, but Megrahi's lawyers successfully argue that all 48 grounds should be heard.
November
2007
The
Six
2008
Megrahi
2009
April:
May 5:
Application to transfer Megrahi to his home country under the Prisoner Transfer Agreement.
July 24:
August 14:
Seek leave from the High Court to abandon his appeal against conviction and sentence.
August 18:
August 20:
Justice secretary Kenny MacAskill releases Megrahi on compassionate grounds. The prisoner transfer application is rejected. Megrahi is flown by private jet to Tripoli, where a large crowd turns out to greet him.
August 21:
October 1:
UK ministers and the Scottish Government release documents recording correspondence and
9 November 2010
Campaigners
2011
try to force the Scottish Government to hold an inquiry into the conviction.
January 23:
An
FOI request reveals the Scottish Government received about 10,000 letters and emails about the release of the Lockerbie bomber.
February 8:
Fresh
calls are made by American senators to open an independent inquiry into the decision to free al-Megrahi.
February 11:
A
July 27:
Al-
September 26:
Libyas
October 3:
Al-Megrahi says 'leave me in peace' in first TV interview and says the facts (about the Lockerbie bombing) will become clear one day and hopefully in the near future.
2012
March 25:
The
May 20:
Megrahis
On 27 November1991, United States and United Kingdom had issued a joint declaration towards Libya -to surrender for trial all those charged with the crime and accept responsibility for the actions of Libyan officials; - disclose all it knows of this crime, including the names of all those responsible, and allow full access to all witnesses, documents and other material evidence, including all the remaining timers; - pay appropriate compensation
That Libya has fully complied with all of its obligations under the Montreal Convention. That the United States has breached, and is continuing to breach, its legal obligations to Libya under articles 5 (2), 5 (3), 7, 8 (2) and 11 of the Montreal Convention. That the United States is under a legal obligation immediately to cease and desist from such breaches and from the use of any and all force or threats against Libya, including the threat of force against Libya, and from all violations of the sovereignty, territorial integrity, and the political independence of Libya."
(a) The appropriate convention should be the Montreal Convention as it is the only appropriate convention in force between the Parties dealing with the offences listed in Article 1 referred to above. Consequently, the United States and United Kingdom are bound to adhere to the provisions of the Montreal Convention relating to the incident. (b) Pursuant to Article 5 (2) of the Montreal Convention, Libya is entitled to take such measures as may be necessary to establish its jurisdiction over the offenses listed above in cases where, as is the situation here, the alleged offender is present in its territory and is not extradited pursuant to Article 8 of the Convention. By its actions and threats against Libya, the United States and United Kingdom, in violation of Article 5 (2) of the Convention, are attempting to preclude Libya from establishing its legitimate jurisdiction over the matter.
(c) Pursuant to Article 5 (3) of the Convention, Libya is entitled to exercise criminal jurisdiction over the master in accordance with its national law. By its actions and threats, the United States and United Kingdom are attempting to preclude Libya from exercising that right in violation of the Convention.
(d) Under Article 7 of the Convention, Libya is obliged to submit the case to its competent authorities for the purpose of prosecution a step that Libya has taken. By its efforts to force Libya to surrender the accused, the United States and United Kingdom are attempting to prevent Libya from fulfilling its obligations in this respect in violation of the Convention. (e) Under Article 8 (2) of the Convention, extradition is made subject to the laws of the State from which extradition is requested. Under Article 493 (A) of the Libyan Code of Criminal Procedures, Libyan law prohibits the extradition of its nationals. It follows therefore, that there is no basis in either Libyan law or under the Montreal Convention for the extradition of the accused from the territory of Libya, and the United States and United Kingdoms effort to the contrary constitute a violation of this provision of the Montreal Convention.
f) Under Article 11 (1) of the Convention, the United States and United Kingdom are under an obligation to afford Libya, as a Contracting State, with the greatest measure of assistance in connection with criminal proceedings brought by Libya in respect of the offences listed in Article 1. By failing to provide such assistance, the United States has breached its obligations under the Montreal Convention. (g) The US and UK are bound by its legal obligations under the Montreal Convention, which obligations require it to act in accordance with the Convention, and only in accordance with the Convention, with respect to the master involving flight PA 103 and the accused. Whereas Libya submits that it has fully complied with its own obligations under the Convention, the United States and United States has breached, and is continuing to breach, those obligations.
After order of 14 April 1992, the UK and US filed preliminary objections on 16 June 1995, alleging that :
The court lacked jurisdiction. The Libyan application was inadmissible. The Libyan claims had become moot as having been rendered without object.
Hearing on the preliminary objections were held in the
Rejects the objection by the UK and US and finds that it has jurisdiction, on the basis of Article 14, paragraph 1, of the Montreal Convention of 23 September 1971, to hear the disputes between the parties. Finds that the Application filed by Libya on 3 March 1992 is admissible. Declares that the objection raised by the United Kingdom according to which Security Council resolutions 748 (1992) and 883 (1993) have rendered the claims of Libya without object does not, in the circumstances of the case, have an exclusively preliminary character
2.
3.
Jurisdiction of courts
Libya submits that the courts has jurisdiction on the basis of Article 14, paragraph 1, of the Montreal Convention. However, the US and UK object on the ground Libya failed to show existed legal disputes. The United States claimed also that, even if the Montreal Convention did confer on Libya the rights it claims, those rights could not be exercised because they were superseded by Security Council resolutions 748 (1992) and 883 (1993) which, by virtue of the UN Charter, have priority over all rights and obligations arising out of the Montreal Convention. In any event, the adoption of those resolutions meant that the only dispute that might exist is between Libya and the Security Council as a whole, falling outside Article 14(1) of the Montreal Convention. But the Court pointed out that both resolutions were adopted after the date on which Libya filed its Application. On that date, which alone is relevant, the Court had jurisdiction.
The Court agreed with Libya that the critical date for determining the admissibility of an application is the date on which it is filed, in this case March 3, 1992. Resolutions 748 and 883 were adopted after March 3, 1992, and resolution 731, although adopted before the application was filed, was a mere recommendation without binding effect. Consequently, the Court, by 12 votes to 3, rejected the U.S. objection to admissibility derived from Security Council resolutions 748 and 883 and found that the Libyan Application is admissible.
The Objection that intervening Security Council resolutions have rendered the Libyan claims without object.
The United States argued that the Libyan claims had been rendered moot, and Libya had been precluded from obtaining the relief it seeks, by the subsequent adoption of Security Council resolutions 748 (1992) and 883 (1993). However, the Court declared, by 10 votes to 5, that the U.S. objection according to which Libya's claims became moot because Security Council resolutions 748 and 883 rendered them without object, does not, in the circumstances of the case, have an exclusively preliminary character, and can be considered at the merits stage.
once, there only exist 2 options- aut dedere (extradite) aut judicare (prosecute) Discretionary power of requested state had increased and broaden to opted for middle path-delivery of accused to a third state Delivery is seen as de facto extradition especially from perspective of the requested state and its domestic law Security Council play a role as an enforcer of the principle of aut dedere aut judicare Intervention of Security Council in extradition is justified as long as the situation constitutes threat to international peace and security (Chapter VII UN Charter)
Extradite or prosecute The legal obligation of states under public international law to prosecute persons who commit serious international crimes where no other state has requested extradition. Obligation arises regardless of the extraterritorial nature of the crime and the fact that the perpetrator and victim may be of alien nationality Article 7 Montreal Convention.
END