A Preview of the Lockerbie Case
By Professor Michael P. Scharf
On December 21, 1988, a bomb exploded in the cargo hold of Pan Am Flight 103, killing all 259 passengers and crew, as well as eleven residents of the town of Lockerbie where the wreckage of the Boeing 747 crashed 31,000 feet below. After years of negotiations and diplomatic maneuvering, in April 1999, Libya surrendered the two Libyan officials accused of the bombing (Abdelbasset Ali Ahmed Al-Megrahi and Ali Amin Khalifa Fhimah) for trial in the Netherlands before a panel of Scottish judges at a former U.S. military base known as Camp Zeist. The trial is set to begin on May 3, 2000. It scheduled to last a year, with as many as 1,000 witnesses testifying.
Events Leading to the Trial
Though neither country had an extradition treaty with Libya, the United States and United Kingdom both demanded that Libya immediately surrender Al-Meghrahi and Fhimah to them for trial. Citing the "lynch mob atmosphere" prevailing in the United States and United Kingdom concerning this case, as well as its right to undertake its own prosecution of the accused under the Montreal Aircraft Sabotage Convention of 1971, Libya refused to comply with the United States and United Kingdom demands.
In 1992, the UN Security Council responded to Libya's refusal by adopting Resolution 748, which imposes sanctions on Libya until it hands over the two accused for trial, makes compensation to the victims' families, and demonstrates with concrete actions its renunciation of terrorism. As expanded in 1993 with the adoption of Security Council Resolution 883, the sanctions required the members of the United Nations to freeze Libyan government funds in their banks, impose an embargo on military and oil production equipment on Libya, and prohibit flights arriving from or destined for Libya.
Libya responded by offering to extradite Al-Meghrahi and Fhimah to Malta, where their acts allegedly took place. However, the United States and United Kingdom rejected the offer on the ground that Malta was so close geographically to Libya that its judiciary would be susceptible to improper influence. As an alternative, in 1994, Libya proposed trial before a Scottish court, provided it sat in a neutral country such as the Netherlands. At first, the United States and United Kingdom rejected the offer, believing it to be merely a propaganda ploy. During the next few years, however, it became increasingly clear that, despite sanctions, the two Libyans would not be surrendered for trial. Meanwhile, a growing number of countries were expressing their opposition to the sanctions, and enforcement of the sanctions began to erode. Finally, in August 1998, the British Government of Tony Blair persuaded the United States to agree to Libya's plan.
The final deal with Libya contained the following elements: (1) The Security Council imposed sanctions would be suspended when Libya surrendered Al-Megrahi and Fhimah to the Netherlands for trial before a Scottish panel of judges at Camp Zeist, part of the decommissioned U.S. Soesterberg air base outside of Utricht; (2) Al-Megrahi and Fhimah would be permitted to fly on a non-stop flight from Libya to the Netherlands so that they would not be susceptible to arrest in a third country; (3) While in the Netherlands, Al-Megrahi and Fhimah would stand trial only for the Pan Am 103 case, and if acquitted, would be returned directly to Libya; (4) If Al-Megrahi and Fhima are convicted, U.N. monitors would be permanently stationed inside "Barlinnie Prison" in Scotland where the two would serve sentence; and (5) The United Kingdom would permit Libya to establish a consulate in Edinburgh to watch over Al-Megrahi and Fhima's interests, despite the absence of diplomatic relations between the United Kingdom and Libya. In addition to these five conditions, press reports indicated that the United Kingdom had agreed that no senior Libyan intelligence officers would be required to testify at the trial and that the prosecution would not try to trace the orders for the bombing to Khaddafi himself. Scottish prosecutors have insisted that no such deal concerning senior Libyan intelligence officials has been made.
On April 6, 1999, Al-Megrahi and Fhimah arrived at in the Netherlands. Later that day, pursuant to Security Council Resolution 1192 (1998), the U.N. sanctions were suspended when Secretary-General Kofi Annan communicated formally to the Security Council the successful handover of the two accused.
The Scottish Legal Procedures
The Scottish rules of evidence and procedures that will govern the Pan Am 103 trial differ from the U.S. rules in several notable respects that may affect the outcome of the trial.
Under the Scottish rules, for example, there is no requirement that probable cause be confirmed at a preliminary hearing to test the sufficiency of the Prosecutor's case prior to trial. In contrast, had the case been tried in the United States, a magistrate would have to independently determine through an open and adversary hearing that there are substantial grounds upon which a prosecution may be based. This U.S. screening process is said to prevent hasty, improvident or improper prosecutions.
It is a peculiarity of the Scottish system that no one may be convicted without corroboration. This requires that, for every element of the crime, there must be credible evidence from more than one source. A single piece of evidence of guilt, no matter how compelling, cannot support a conviction. This corroboration requirement will make it more difficult to obtain a conviction in the Lockerbie court than if the case had been tried in the United States.
At the request of the defense, the Lockerbie court will be composed of a panel of three judges, rather than a fifteen-member Scottish jury. Yet, as with a Scottish jury, the three-judge panel can rule by a simple majority. This is to be contrasted with the U.S. practice of requiring a determination of guilt by a "substantial majority" (a minimum of 9 out of 12 jurors) in a federal felony case. In countervailance to the strict corroboration requirement, this will make it somewhat easier to obtain a conviction in the Lockerbie court than if the case were tried in the United States.
Perhaps the greatest difference between the Lockerbie court and a U.S. court concerns the range of verdicts that are possible. Where the United States only has "guilty" and "not guilty," the Scottish court can issue three possible verdicts: "proven," "not proven," and "not guilty." "Not proven" in Scotland usually means that the jury thinks the defendant is guilty, but that the proof of guilt was not beyond a reasonable doubt. The existence of this third option may make it easier for the judges to acquit Al-Megrahi and Fhimah, because they can do so while simultaneously explaining in their written judgment that they nonetheless thought the defendants were guilty.
If the defendants are convicted, they cannot be subject to the death penalty, which has been outlawed in the United Kingdom. The sentence for murder is a mandatory life imprisonment, with no possibility for a reduction of sentence in light of mitigating factors. There is no prescribed sentence for a conspiracy conviction, which would be up to the discretion of the judges.
Finally, in contrast to the U.S. double jeopardy principle, the Scottish prosecutors can appeal an acquittal on a legal point. The appeal is to the High Court (a panel of five Scottish judges in Edinburgh), which can order a new trial if it concludes that the verdict rested on an error of law.
A Preview of the Prosecution's Case
From the indictment and the discovery proceedings in the civil case against Libya, one can glean what the prosecution's key evidence will likely be in this case.
One of the most important pieces of evidence was the discovery in the Pan Am 103 wreckage of an unaccompanied suitcase, containing clothing that was traced to a shop called "Mary's House" in Malta. The owner of the shop, Tony Gauci, has identified Al-Megrahi as the person who purchased the items in question. The Prosecutor will argue that Al-Meghrahi filled the suitcase with this clothing, in addition to the Toshiba radio-bomb, so that it would not appear suspicious to airport security personnel.
After months of searching through the debris of some 10,000 items spread over 850 square miles, the Lockerbie investigators found the most important piece of evidence of all -- a small fragment of a circuit board from the electronic timer that had triggered the bomb. The FBI Lab, headed by Thomas Thurman, matched the fragment, which was smaller than a thumb nail, to a timer seized earlier from Libyan agents in west Africa. That timer was traced to an electronics company in Zurich Switzerland called Mebo, which admitted that it had sold 20 such timers to the Libyans in 1985.
Finally, the Prosecution will present its star witness -- a Libyan defector, presently in the U.S. witness protection program, who used to work for Libyan Arab airlines in Malta. He is expected to testify that early on the day of the Pan Am 103 bombing, he saw Fhimah put the suitcase containing the bomb aboard the Air Malta Flight to Frankfurt.
A Preview of the Defense Case
In response, the Defense will likely suggest that Pan Am 103 was blown up not by Libya, but by Iran or the Popular Front for the Liberation of Palestine - General Command (PFLP-GC), terrorist group that operated out of Syria, as the criminal investigators originally suspected. The defense point out that two months before the Pan Am 103 bombing, German police raided an apartment in Frankfurt, Germany, belonging to members of the PFLP-GC. The raid disclosed an arsenal of terrorist weapons, including a Toshiba radio cassette player converted into a bomb, like the one that was later discovered in the wreckage of Pan Am 103.
Under Scottish law, this is the special defense of "incrimination." It is permissible to blame "persons unknown" in Scottish law. A special defense is special only in the sense that it must be announced prior to trial. It does not shift the burden of proof to the defense.
But if Libya was not behind the bombing, how will the Defense deal with the circuit board, which had been sold by Mebo to the Libyan Government? The Defense is likely to call Edwin Bollier, the director of Mebo, who will testify that the fragment found in the Pan Am 103 wreckage does not in fact match the timers that his company sold the Libyans in 1985. Bollier told CBS "60 Minutes" in April 1999 that investigators had shown him a photograph of the Lockerbie fragment. In contrast to the circuit boards that he sold to Libya, which were smoothly printed by machine, that photograph shows clearly that the Lockerbie fragment was roughly soldered as if made by hand.
In addition, Bollier has publicly stated that he had previously sold roughly soldered handmade timers similar to the one used in the Lockerbie bomb to the Stasi, the East German secret police. And the Stasi was known to have supplied weapons and explosives to Palestinian terrorist groups including the PFLP-GC, the original Lockerbie suspects. Bollier has also said that a few months before the Lockerbie bombing in 1988 he reported a break in at his company in which a photographic blueprint for a circuit board like the one used to blow up Pan Am 103 was stolen. Whoever had that blueprint was in a position to make the Lockerbie circuit board and timer. Thus, the Defense has ammunition to argue that the necessary connection between the Lockerbie circuit board and Libya is broken. And to bolster its case, the defense may point out that Thomas Thurman, the FBI forensic expert responsible for the Pan Am 103 investigation, was forced out of the FBI after a Justice Department inquiry found that he had allowed examiners in his explosives unit to overstate conclusions in favor of the prosecution in several cases.
On the other hand, there seems to be little doubt that the clothes in the suitcase containing the bomb were bought at Mary's House in Malta. But Tony Gauci, the eyewitness who links Al-Megrahi to the mysterious suitcase, identified Al-Megrahi from a photo a year after the bombing. Prior to the photo ID, Gauci said the person who purchased the clothing was 50 years old, six feet tall and heavily built. Al-Megrahi was then only 36, just five foot eight, and slight of build. And after the ID, Gauci later identified the person who purchased the clothing as Mohammed Abu Talb, a PFLP-GC terrorist who was in Malta at the time in question and is now serving a life-sentence in jail in Sweden.
Finally, the Defense will try to impeach the Libyan defector by pointing out that he stands to gain $4 million, which is the reward that has been put up by the US and Air Pilots Association for evidence which leads to a conviction of Megrahi and Fhima.
Faced with no trial, or this trial, perhaps this was the best possible solution. The families of the victims of the bombing will finally see some sort of closure, but given the peculiarities of the Scottish procedures and the problems with the prosecution's case that are mentioned above, it may be very difficult for the prosecution to obtain a conviction in the Lockerbie case.
Visiting Professor of International Law, Fletcher School of Law & Diplomacy, Spring 2000; Professor of Law and Director of the Center for International Law & Policy, New England School of Law; formerly Counsel to the Counter-Terrorism Bureau, U.S. Department of State, 1989-1991; Attorney-Adviser for U.N. Affairs, U.S. Department of State, 1991-2000.
There are a number of excellent internet websites devoted to the Lockerbie Trial, including:
www.law.gla.ac.uk/lockerbie. Website includes background on Scottish criminal procedure, trial analysis, copies of judgments on preliminary motions, copies of the charges, news stories, and pertinent background material.
MSNBC (search ?Lockerbie?) Website contains news stories and trial analysis.
Website includes biographies of the defense and prosecution attorneys and judges, descriptions of the evidence, analysis of legal issues, and contact information.
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