(December, 1997)

INTRODUCTION:

1. On 14 November 1991 an indictment was handed down by the United States District Court of the District of Columbia against two Libyan citizens alleging their involvement in the crash of Pan Am flight 103 over the town of Lockerbie, Scotland on 21 December 1988 (document A/46/831, S/23317).

On the same day, the Lord Advocate of Scotland made an announcement alleging that there was sufficient evidence to justify asking the court for warrants for the arrest of the same two Libyan citizens on charges of conspiracy, murder and contravention of the Aviation Security Act of 1982 (document A/46/826, S/23307).

2. On 20 December 191, the Permanent Mission of France circulated as an official document of the General Assembly and the Security Council, a communique from the Presidency of the French Republic and the Ministry of Foreign Affairs with regard to the crash of the UTA flight 722 on 19 September 1989 (document A/46/825, S/23306), calling on Libya:
1. To produce all the material evidence in its possession and to facilitate access to all documents that might be useful for establishing the truth.
2. To facilitate the necessary contacts and meetings, inter alia, for the assembly of witnesses.
3. To authorize the responsible Libyan officials to respond to any request made by the examining magistrate responsible for judicial investigation.

3. On 27 November 1991, the United States of America and the United Kingdom circulated a joint declaration (document A/46/827 and S/23308) demanding that Libya:
1. Surrender for trial all those charged with the crime; and accept responsibility for the actions of Libyan officials;
2. 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;
3. Pay appropriate compensation.

4. On the same day, 27 November 1991, a joint declaration issued by the United States of America, France, and the United Kingdom states that, following the investigation carried out into the bombings of Pan Am 103 and UTA 772, the three states have presented specific demands to the Libyan authorities related to the judicial procedures that are under way, and called or Libya’s compliance with all these demands, that Libya cease all forms of terrorist action and all assistance to terrorist groups.

5. It did not take very long for the pre-meditated purpose of these countries to become quite clear. These countries sought to get the Security Council to adopt a resolution to pressure Libya into surrendering its citizens and foregoing its rights under international law which are clearly established in the 1971 Montreal Convention. In a few days, these countries submitted to the Security Council a draft resolution, exercised all sorts of pressure, and within a month, the Security Council adopted its resolution 731 (1992) on 21 January 1992. This took place during a period that witnessed the peak of what Secretary-General Kofi Annan has described eloquently and accurately as a "frenzy era" in his report entitled "Renewal of the United Nations: A Programme of Reform" (document A/51/950)
6. What is the real truth about Lockerbie? Both the United States and the United Kingdom know, more than anybody else that Libya has nothing to do at all with the tragic accident of Pan Am flight 103. Both the United States and the United Kingdom alleged that two Libyan placed a time bomb in a bag on board a Maltese Airlines flight which took off from Malta, that the bag was unaccompanied baggage, that it was transferred in Frankfurt Airport from the Maltese airliner to an American airliner whose destination was London; and that this same unaccompanied bag was transferred again in a London Airport from the airliner originating in Frankfurt to Pan Am flight 103, which later took off and exploded over Lockerbie.

Can anyone imagine, how can unaccompanied bag move itself from one airliner to another and from one airport to another with utmost precision !

7. The Government of Malta investigated the matter and concluded that there were no unaccompanied bags on the said flight. The competent authorities in Germany, in turn, investigated the matter and found nothing to corroborate the story about the bag.

THE LEGAL ASPECT:

8. Right from the start, Libya dealt with the suspicion in two of its citizens, within a framework of the 1971 Montreal Convention for the Suppression on Unlawful Acts against the Safety of civil aviation which accords Libya the judicial competence for trying the two suspects. The two suspects were arrested. Two judges were entrusted with investigating the case. They started their investigation and contacted the judicial authorities in the countries concerned. These judicial authorities in the United States and the United Kingdom, however, refused to offer any sort of cooperation. This led the investigation to an impasse and it had to stop.

9. In a letter addressed to the Secretary of State of the United States and the Foreign Minister of the United Kingdom by the Secretary of the People’s Committee for Foreign Liaison and International Cooperation, Libya called for the implementation of article (14) of the 1971 Montreal Convention which states that "any dispute between two or more contracting states, that could not be settled through negotiations, shall be referred to arbitration, at the request of any one of these states. Should the parties to the dispute fail to agree on the arbitration panel within six months of the submission of the request for referring the dispute to arbitration, anyone of the parties may refer to the dispute to the International Court of Justice, by an application, under the statute of the Court." That is what Libya had to do; namely, to resort to the International Court of Justice, in view of the rejection of the other parties of both negotiations and arbitration. The case is still before the International Court of Justice. Thus, Libya has met all its commitments under applicable international law, in the case of its dispute with the countries concerned (S/23441).

10. Security Council resolution 731 (1992) called on Libya to respond - namely to give an answer - to the requests of the three countries concerned. That is exactly what Libya did when it exercised its judicial competence, in accordance with article (7) of the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, and adopted the legal procedures called for under article (6) of the same convention, and called on the countries concerned to cooperate with it in accordance with article (11) of the convention.

11. Security Council resolution 731 (1992) was adopted in contravention of the principles and purposes of the Charter of the United Nations whose article (27) paragraph (3) states that, decisions of the Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members", which did not happen in the case of resolution 731 (1992). Moreover, article (33) paragraph (1) states that, "the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice". Paragraph (2) of the same article states, "the Security Council shall call upon the parties to settle their dispute by such means". In addition, article (36) paragraph (3) states that, "in making recommendations under this article, the Security Council should also take into consideration that legal disputes should, as a general rule, be referred by the parties to the International Court of Justice."

12. Notwithstanding the content of the paragraphs above, and the legal nature of the question where the case at issue is a dispute over judicial competence between states parties to the 1971 Montreal Convention, the Security Council adopted its two resolutions 748 (1992) and 883 (1993) [based on resolution 731 (1992)] with all sorts of sanctions against Libya, boycotts and embargoes. These measures have jeopardized the lives of Libyans and non-Libyans. Accounts of the serious impact of the sanctions on the Libyan Arab people periodically reported to the Security Council. The latest of such a report is contained in document S/1997/404. This has been a "collective punishment" that can neither be legally defended nor morally condoned since the two suspects were not investigated, were not tried and they have not been convicted of anything.

THE POLITICAL ASPECT:

13. Libya has submitted several initiatives aimed at the acceleration of investigating the two suspects, revealing the truth and identifying the real culprit responsible for the tragic incident of Pan Am flight 103 over Lockerbie, Scotland. These initiatives included a call for investigators from the United States and the United Kingdom or representatives of international committee or organizations to be present at the investigation and trial of the two suspects. Libya has also accepted a trial in a neutral country (document S/23416, S/23417).

14. Libya offered to resort to the International Court of Justice to ascertain the veracity of the accusations leveled against the two Libyan suspects. It has also offered to hand over the two suspects to the UNDP office in Tripoli for investigation, and has also proposed that the Secretary-General could establish a legal committee composed of judges known for their fairness and impartiality to investigate the matter, find the facts, and verify the seriousness of the allegations against the two suspects, including conducting a full investigation. If the Secretary-General would determine that the allegations were serious, then, the Libyan Arab Jamahiriya would not object to surrendering the two suspects, under the personal supervision of the Secretary-General to a third party on condition that they may not be handed over to the United States of America or Scotland (S/23672).

15. Libya did not object to an investigation and trial to be conducted by the Committee of Seven established by the League of Arab States, or through the United Nations before a fair and just court to be agreed upon. It has also declared its readiness to enter into negotiations with the United States and the United Kingdom, under the supervision of the Secretary-General of the United Nations, (for the two countries unilaterally broke diplomatic relations with Libya, and no extradition treaties exists with the two countries) with the aim of reaching an agreement on holding a trial in a neutral country acceptable to the parties to the dispute, and which offer all guarantees for uncovering the truth (document S/26313, S/23918, S/24209, and S/24961).

16. The Libyan Arab Jamahiriya has announced that, as a state, it has no objection to the appearance of the two suspects before the Scottish judiciary. However, the two suspects defense lawyers, who are British, Scottish, Americans, and other nationalities, warned the two suspects against appearing in a court in any of the two countries because of the prior condemnation by the mass media, as well as by government officials in the two countries (document S/26500, S/26523, S/26629).

17. Libya, out of respect for the regional and international organizations and the role entrusted to them by Chapter VIII of the Charter, accepted the proposals and initiatives submitted by the League of Arab States, the Organization of African Unity, the Organization of the Islamic Conference, and the Non-Aligned Movement, which represent the majority of the international community. These initiatives are:

1. The trial of the two suspects in a third country to be designated by the Security Council.
2. The trial of the two suspects by Scottish judges, at the seat of the International Court of Justice, under Scottish law.
3. The establishment of a special criminal court, at the seat of the International Court of Justice to try the two suspects.

18. It is also well known that the Security Council has not adopted any provisions that call for the surrender of our citizens to foreign countries. Instead of focusing their efforts on reaching a speedy solution for the dispute, the United States of America and the United Kingdom, on the contrary, have focused all their efforts on imposing, continuing, and tightening of the sanctions against Libya; exploiting the international circumstances that were prevalent at the start of this dispute; and in a clear violation of the provisions of the United Nations Charter which calls for the settlement of disputes among states by peaceful means (articles 27, 33 and 36).

19. The rejection by the United States of America and the United Kingdom of all the initiatives submitted by Libya or the regional and international organizations for holding the trial of the two suspects in a place that meets the requirements of neutrality and impartiality has unfortunately led to the delay of the trial of the two suspects all this time. This is despite the fact that these two countries afford the accused, amongst their citizens, the opportunity to change the venue of their trial. A case in point is the trial of the defendants in the terrorist act that took place in Oklahoma, where the venue of the trial was changed to Denver, Colorado. Libya believes that the two Libyan suspects in the Lockerbie accident, have also the right to stand before a just court at venue free from the atmosphere of prior condemnation prevalent in the United States and in Scotland, as is the case with their citizens, and as provided for in article 14 of the International Covenant on Civil and Political Rights.

LIBYA’S RESPONSE TO SECURITY COUNCIL RESOLUTIONS:

20. Libya has declared, at all official levels, her unequivocal condemnation of terrorism in all its forms and manifestations. It called upon the United Nations to dispatch whoever it sees suitable to ascertain that Libya has no relation whatsoever with terrorism (documents S/23221, S/23226, S/23396, S/23414, S/23416, S/23641, S/23672, S/23918, S/24961 and S/1995/624, S/1995/633, S/1996/7, S/1997/176, S/1997/218, and S/1997/880).

21. Libya has cooperated fully with the United Kingdom concerning the Irish Republican Army. The United Kingdom expressed her satisfaction with this cooperation in a letter from the Permanent Representative of the United Kingdom to the President of the Security Council (document S/1995/973).

22. France, too, has expressed her appreciation for Libya’s full cooperation with the investigating judge of the UTA 772 incident in a letter by the investigating judge to the French Foreign Minister (document S/1997/858).

23. Libya accepted the two Libyan suspects be tried by a just and fair court in a neutral country (document S/2496, S/26313).

24. Libya encouraged the two suspects to accept to appear before the Scottish judiciary in Scotland (document S/26500, S/26523, S/26629).

25. Despite Libya’s positive and sincere response to Security Council resolutions and the flexibility she has shown in order to reach a just and peaceful solution to this dispute, the United States and the United Kingdom insist on rejecting all the practical initiatives; be they those presented by Libya or those from regional and international organizations. In addition, the United States continues to prevent the Security Council from implementing paragraph 2 of resolution 748 (1992). This position can only strengthen the already strong suspicions which Libya has about the real political aims of the two countries towards Libya. These suspicions can only be removed by the closing of this file as soon as possible.

CONCLUSION:

26. Ever since the issue was forced upon the Security Council, many statements, both official and unofficial, have been issued, many books and articles have been published, many audio and visual recordings have been presented, and many seminars and conferences were held - all of which concluded that Libya is innocent of the allegations made against her. Eminent people from all over the world have spoken in favor of lifting these sanctions imposed on Libya. Among them, His Holiness Pope John Paul II, who called in an unambiguous terms for the lifting of the sanctions on 31 October 1997 (document S/1997/857). Many organizations have adopted resolutions demanding the lifting of the sanctions which have been imposed on Libya.

27. Inspite of all this, Libya is still suffering since 1992 from these unjust sanctions imposed on her, in a clear violation of the Charter of the United Nations, specially articles 27(3), 33(1), and 36, in deliberate disregard of the 1971 Montreal Convention.

28. As is stipulated in all laws and legislations, sanctions are imposed as a punishment for the commitment of a crime or of a prohibited act proved as such through an impartial and fully independent investigation, and whose perpetrator has been tried and convicted by a just and fair court. However, the sanctions imposed on Libya took place in the absence of all legal and logical conditions which permit the imposition of such sanctions. The two Libyan citizens are only suspects. They have not appeared before a court, and no conviction has been issued against them. The legal rule is that an accused person is innocent until proven guilty, has been completely ignored. Libya was accused of being responsible for an incident with which it had nothing to do. The Security Council was pushed into the imposing sanctions against Libya. These sanctions are in fact a "collective punishment" against an entire country, state, and people. The United States and Britain assumed by functions of an arbiter, investigator, and a judge, and issued convictions in advance without any proof or investigation, without a trial or a verdict. They have even asked for compensation. Is there a more serious violation of the rights of individuals and peoples?

29. Libya has fully responded to the demands of Security Council resolutions. The responsibility for the delay in the implementation of the parts of these resolutions that were not implemented falls on the two countries concerned. Libya and its people should not bear the results of that delay.

30. The international community represented by international and regional organizations, such as the League of Arab States, the Organization of African Unity, the Organization of the Islamic Conference, the Non-Aligned Movement, and in addition to several countries which are not members of these organizations, is convinced that Libya has no problem with the Security Council. The problem is between the United States and the United Kingdom on one hand, and Libya on the other, and should be solved by a peaceful means provided for in the Charter of the United Nations for solving disputes among states.

31. The Security Council’s review of the sanctions last July 10^th, Security Council’s Ministerial Meeting of 25 September (document S/PV.3819), and the latest review on 7^th November 1997 and the debate that took place, are the best proof that the Security Council is cognizant and appreciative of all what Libya has done and offered, and of the flexibility and realism it has shown in dealing with this dispute. It is high time for the other parties to show flexibility and do what is required of them in order to reach a peaceful, fair, and just solution to this dispute.

32. If the two countries really want to reach a solution to this dispute, they can accept one of the three options offered by the African Summit and the League of Arab States referred above.

33. Any other initiatives that fall outside this frame and do not seek to achieve these goals or tend to waste time in order to perpetrate the sanctions imposed on Libya, will only protract the suffering of the families of the victims, who call for expediting the trial to uncover the truth; and support the holding of the trial in The Hague or a third neutral country, and to stop exploiting this tragedy for political ends that will not be realized.

1. The sanctions imposed upon Libya in accordance with Security council resolution 748 (1992) and 883 (1993) be lifted because they represent a collective punishment of an entire people for the mere suspicion of two of Libya’s citizens, who have not been condemned in accordance with any judicial verdict;
2. The two suspects be tried expeditiously by a just and fair court at a venue where there is no prior condemnation of the two suspects;
3. That the issue of Libya’s alleged relations to terrorism (paragraph 2 of resolution 748 (1992)), be closed. For Libya has condemned terrorism in all its forms and manifestations, and offered to cooperate with the Security Council and the World Community to combat terrorism. However, it is the other party who hinders the closure of this question. Moreover, the world at large knows where the terrorists live and who financed them.
34. Preventing the Security Council from implementing paragraph (2) of resolution 748 (1992) added to Libya’s strong suspicions in the true political objectives of the two countries concerned. The only thing that could remove these suspicions is a closure of this file as soon as possible.
35. The Secretary-General has an important role to play in reaching a solution for this problem by exercising his good offices, under the Charter, with the concerned parties, with the aim of bringing all of them to the negotiating table, in order to agree on the procedures for the trial of the two suspects, and its venue in order to put an end to the tragedy of the families of the victims, and lift the sanctions imposed on the Libyan people immediately. If the other two parties to the problem are unwilling to have a face-to-face meetings with Libya, Libya would be ready to start immediately to enter into indirect contacts, through the Secretary-General, in order to achieve the desired aim.