By Hassan Nafaa * Unexpectedly, the US and the UK have accepted that the two Libyans accused of blowing up the Pan Am airliner over Lockerbie in 1988 stand trial in the Netherlands, before a Scottish court and in accordance with Scottish law. Within hours of this declaration, the UN Security Council unanimously resolved to suspend the sanctions against Libya as soon as the UN secretary-general notified the Council that the defendants had arrived in the Netherlands. Naturally, the surprise announcement precipitated a flood of questions as to the timing and significance of the change in the US and British position. In particular, startled observers have wondered whether it indicates a change in their policy towards Libya, or whether it is merely a tactical move designed to regain the initiative in the face-down with Libya after a series of setbacks. Views are divided. Some observers are optimistic that the decision is a move towards the end of the Lockerbie crisis, while others predict that it signals the beginning of a renewed escalation in the campaign against Libya. On the surface, the dramatic shift in the US-UK position appears to offer a margin that would give all parties the opportunity to save face and open the way to a true settlement of the crisis. Up to this juncture, at has been clear that Libya has been the most moderate and flexible. Libya long ago took up the Arab League secretary-general's suggestion that the trial be held in a third country, before a Scottish court in accordance with Scottish law, while the US and the UK remained entrenched in their refusal of any compromise. The course of events worked against them, however. Last February, the International Court of Justice ruled that it was competent to adjudicate in the dispute regarding jurisdiction over the Lockerbie trial. The ICJ's ruling was based on the Montreal Convention of 1971 pertaining to crimes against the safety of civilian airliners. Although the ruling concerned only a procedural matter, it came as a slap in the face to the US and the UK which had persisted as long as possible in their claim that the ICJ had no jurisdiction whatsoever in their dispute with Libya. The ruling implicitly cast Libya in a favorable light, as having acted in greater conformity with international law on this issue than the US and the UK. As for the two Western parties, their recent agreement that the trial be held in a third country may be seen as an attempt to preempt any further ICJ rulings in favour of Libya in accordance with the 1971 Montreal Convention, and thus an extension of their long-held rejection of that court as the ultimate arbiter in the case. In a second significant development, the Organisation of African Unity recently asked the Security Council to suspend sanctions against Libya until the ICJ has ruled on the Libyan suspects' case. Indeed, the OAU was bolder still in its challenge to the Security Council when it announced its members' resolve to cease abiding by the sanctions against Libya as of 1 September 1998 if the US and the UK continue to refuse to hold the trial of the Libyan suspects in a neutral country. It was anticipated that the members of the Non-Aligned Movement would adopt a similar resolution in their meeting scheduled for the beginning of September. Certainly, the ICJ ruling on its jurisdiction over the case brought into question the legality of the Security Council resolutions imposing sanctions upon Libya. These doubts, in turn, paved the way for a political challenge to these resolutions, and for the possibility that the system of sanctions against Libya could collapse. Clearly, the US and the UK realised that, were this political challenge to persist and gain in momentum, it would undermine not only their political position and standing with regard to the Lockerbie case, but also the authority of the Security Council, which had already begun to lose its credibility. The US-UK announcement, therefore, can also be seen as an attempt to stem a tide of opinion that, were it to gain in momentum, would enable Libya to break out of its political isolation and shatter the blockade in spite of the Security Council. If this analysis is correct, then the sudden shift in the US-UK position may have been motivated more by the intention to secure the stranglehold on Libya than by the sincere desire to search for a reasonable settlement to the crisis. Other evidence that points in this direction is the tough, intimidating wording in which the US-UK couched their initiative, which they described as a one-time, non-negotiable offer that Libya could either accept or reject. Immediately after having made this announcement, they pushed through a Security Council resolution to confirm the sanctions against Libya in accordance with resolutions 748 and 883, which still apply to all member nations. Simultaneously, the Security Council announced that it would seriously contemplate imposing further sanctions if Libya did not immediately turn over the suspects for trial. Clearly what we have, therefore, is a slightly modified plan for Libya's submission. Libya must surrender its suspects unconditionally, to Holland rather than to the US or the UK this time, or suffer harsher sanctions. In other words, the ball is back in the Libyan court. If Libya refuses the US-UK offer, it will look as though its previous stances, however flexible, were mere ruses intended solely to evade responsibility and buy time. It would then bear all the consequences because, at that point, other parties could no longer continue to come to its aid. If, on the contrary, Libya does accept the offer as it stands, it may put its national peace and security at risk, squandering all the sacrifices it had made to safeguard these interests up to now. For Libya to turn over citizens who work in the agencies responsible for state security to a third country without any guarantees that the trial will restrict itself to corroboration or refutation of evidence concerning the Pan Am flight would mean that Libya had, in essence, caved in to US-UK conditions and accepted a situation not too different than that which it had originally resisted, at a cost of at least $42 billion. Libya has been very clever in handling its dilemma. At the beginning, it welcomed the US-UK initiative enthusiastically, saying that it would agree -- in principle -- to turn over the suspects to the court in the Netherlands. This was only natural, since the US-UK offer was originally an Arab proposal, which Libya had officially adopted in its communications with various international bodies. Soon, however, Libya began to ask for guarantees for a fair trial, and Gaddafi began to object strenuously to the US-UK offer, calling it "a pact to make a third country a transit point for the transportation of the suspects to Great Britain". Gaddafi also objected to the agreement which the UK had signed with the Netherlands for the purposes of the trial, on the grounds that Libya was not a party to it. As for the Security Council resolution adopting the agreement, it was "invalid". It would by too hasty, however, to assert that the game has reverted to square one. For one, the Western parties can no longer insist that the trial be held in the US or the UK. It is now clear that the trial must take place in a neutral third country, and that there must be guarantees for a fair trial. One guarantee is for all sides to sincerely abide by a commitment to avoid politicising the trial, and to keep it focused on the legal issues surrounding the crime. Toward this end, the US and the UK must abandon any intention of transforming the court into a trial of the Libyan regime with the purpose of destabilising or toppling it. Further, all details regarding the handing over, detention and prosecution of the Libyan suspects, as well as the execution of the sentence against them if they are found guilty, must be clearly laid out in a separate written agreement between Libya and the Netherlands, signed by the UN secretary-general and ratified by the Security Council. Of course, Libya can only secure this guarantee if it is sincere in its desire to bring the suspects to trial in the first place. It is surprising that the US and the UK refuse to negotiate with Libya over these guarantees. If their refusal stems from their reluctance to enter into direct contact with Libya, they can always use the Netherlands and the UN secretary-general as intermediaries in order to alleviate the Libyan government's legitimate fears. If, on the other hand, the refusal to negotiate with Libya has ulterior political motives which the US and the UK do not care to reveal, then their position once again casts serious doubts on their intentions. Indeed, one may be given to suspect that the evidence in the US's possession regarding the involvement of the Libyan suspects is so weak that no neutral court could accept it, and that the US's true intention is to get its hands on the suspects in order to build up the evidence against them. Moreover, some have gone so far as to suspect that the US knows the true perpetrators of the Lockerbie crime but is unable to reveal their identity for political reasons. It therefore needs a scape-goat to sacrifice to public opinion and Libya, that "recalcitrant" regime that no longer has a rightful place in the post-Cold War order, is the perfect candidate. Clearly, even if there is solid proof of Libyan involvement in Lockerbie, the US-UK refusal to negotiate, whatever its true causes, gives the Libyan regime a golden opportunity to refuse to hand over the suspects. One can only conclude that, if there was any firm proof, the two countries would have no reason to fear offering the necessary guarantees for a fair trial, and even catering to some of Libya's more excessive demands. The US would have been in a better position to call Gaddafi's bluff with regard to the trial if it had showed more flexibility and less arrogance. In all events, if the US and the UK truly want to bring the Lockerbie case to a legal conclusion, they have only two options. They could accept the jurisdiction of the ICJ, in which case they would have to assent to lifting or freezing the sanctions against Libya until the court has pronounced its final verdict; or they could accept to conduct the trial in The Hague before a Scottish court in accordance with Scottish law, in which case they must accede to Libya's demands for guarantees for a fair trial. The US and the UK, in fact, have to choose between a legal trial intended to bring the facts to light, so that the actual perpetrators can be brought to justice, on one hand, and a political trial of the Libyan regime, on the other. But they cannot have both. The past five years have demonstrated that the political campaign waged against the Libyan regime failed to weaken it. The coming weeks will make it clear whether the two Western powers will submit their political will to international law and the correct legal procedures for resolving the Lockerbie case, or whether their recent shift in position turns out to be nothing more than a tactical manoeuvre, geared to tighten their grip, not only on Libya but on the entire region. * The writer is professor of political science at Cairo University.
