Ruth Wedgwood on the Lockerbie Release, and the Politics of Security Council Resolutions

Ruth Wedgwood comments at Forbes magazine website on the “compassionate” release of Al-Megrahi from prison in Scotland.  I agree overall with Ruth:

Abdel Basset Ali al-Megrahi, is now a free man. He was convicted in the specially created Hague trial court by a panel of Scottish judges, and his appeal was rejected by the Scottish appellate chamber. He remained in prison and began to serve his time.

But on Aug. 20, 2009, he was released from his Scottish jail cell by the justice minister of Scotland, walking away from a 27-year sentence. The release, said the minister, was a gesture of “compassion” in light of the defendant’s advanced prostate cancer.

Al-Megrahi has now flown back to Tripoli on the Libyan leader’s private plane. Ardent supporters were brought to the airport by government buses to greet him on his return. He has appeared publicly with one of al-Qaddafi’s sons and will be received officially by al-Qaddafi as well.

When the prospect of the release of this convicted murderer became widely known this week, the president of the United States told a radio interviewer he had “objected” to the release. But he did not say how much body English had gone into this objection. President Obama warned that al-Megrahi should not be given a “hero’s welcome” by Libya. But this thought too was, as diplomats like to say, “overtaken by events.”

Meanwhile, British Foreign Minister David Miliband says it is a “slur” to speculate that the release of a mass murderer was influenced, even at the margin, by the bidding for oil extraction rights in Libya. One of England’s princes has been to Libya three times recently to talk about oil.

The role of oil, though, does make the motivation for al-Megrahi’s release look murky, and the road ahead worrisome.

First, Libya may use this “compassionate” release to sow specious doubt about its own role in the mass murder. This was its tactic, even, in countering the civil law suits filed by the families of the victims. Al-Qaddafi agreed to settle with the families, but never directly admitted Libya’s operational role.

Of course, Libya’s problem is that the custom-designed timers for explosives served as a signature in the crime. Undaunted, Libya may still try to insinuate that it was some other group–say Iran, operating alone or through the Popular Front for the Liberation of Palestine. That, of course, is not an especially exculpatory choice, since after their expulsion from Lebanon, parts of the Palestinian leadership took up residence in Libya.

Second, and equally dismaying, Libya may read this triumph as a certified all-purpose “get out of jail free” card–absolving it of a broad swath of bad acts.

With oil reserves at play in North Africa’s version of the Great Game, it could seem churlish to recall that, without any accounting, during the 1990s, Libya helped to fuel the bloody civil conflicts of West Africa, supplying money and weapons to the RUF rebellion in Sierra Leone, prolonging the misuse of child soldiers and the staggering atrocities against civilians. Or that Libya may have had a hand in the unrest on the Sudanese-Chad border, since southern turmoil makes Libya’s southern tribes more dependent on Tripoli for defense.

Libya’s leadership still thinks it can get away with common indecencies. There was, of course, the jailing of the Bulgarian nurses and Palestinian doctor, released in 2007 after being held as virtual hostages for eight years in an HIV controversy.

Though I doubt (apart from Julian, perhaps) there would be much assent here at OJ to this view, I rather think John Bolton understood the fundamental problem (“Is There Really ‘Law’ in International Affairs, 10 Transnational Law & Contemporary Problems 1 (Spring 2000), at 23, and weirdly apparently not up at Westlaw):

The basic wrong turn in policy began with the Bush Administration’s [Bush Sr.] decision in 1991-92 to judicialize the Pan Am 103 matter rather than to use force, in effect treating this Libyan act of terror like a domestic murder case, rather than the political-military attack that it was.

Ruth remarks in her article that the Lockerbie trial chamber was organized under pressure of Security Council resolutions (SC Resolution 731 (1992) deploring Libya’s lack of cooperation with investigators, and SC Resolution 748 (1992) imposing sanctions on Libya):

In response to the bombing, the Americans mobilized lawyers and diplomats. The U.S. and U.K. marched to the U.N. Security Council to demand the arrest of the Libyan operatives, and pressed that they be extradited for prosecution–for at the time, and even now, there were no international criminal courts with jurisdiction. In reply, Libya hired a former U.N. legal counselor to file suit before the International Court of Justice in The Hague, claiming the right to try its own state-commissioned crimes in its own courts.

The Libyan claim was ultimately defeated, by dint of the ICJ’s required deference to a mandatory Security Council resolution. So Colonel Muammar al-Qaddafi, the honcho of the Socialist People’s Libyan Arab Jamahiriya, proposed another solution he could live with. He called for a specially created criminal court to convene in the Netherlands, seating Scottish judges and applying Scottish law.

But, as Bolton observed in his article, although

hailed at the time as great victories, in fact, there was little enthusiasm for the initial Council condemnation of Libya, and there was barely enough support for the subsequent imposition of sactions.  Since 1992 [writing in 1999], the United States has faced continuous pressure to scale back or eliminate the sanctions on any pretext, largely from Europeans who would rather trade with Moammar Ghadhafi than punish him for murder.

One wonders, therefore, whether the hints and rumors tossing about now of oil deals for the UK have any merit, in light of the long history.  That problem of politics has always plagued the Security Council.

A newer feature of the politics of the Council has arisen since Bolton wrote.  In the past, in the 90s, for example, Security Council resolutions – many of those dealing with Saddam, for example – were passed by the Council in relatively strong form precisely because they were tacitly understood to be ‘just talk’.  They were an alternative to using force; cover for not acting.  Then came the GWB administration, which used the long succession of Saddam-resolutions as part of its legal basis for using force.  This seemed to take other states by surprise; they had politically gone along in large part way-back-when because the language of the resolutions was a tradeoff for not using force, not a basis for it, no matter how strong the surface language.  So today states (particularly Russia and China, but not just them) have a very different understanding of how strong resolutions should be viewed – they might, it turns out, be appealed to years later as part of a case for using force and therefore need to be treated as such, not merely as a gift to some SC member in present need of saying something as a substitute for actually doing something.

Finally, the legal status of apparently binding Security Council resolutions is itself under some pressure from Europe.  We have discussed here the decisions of the European Court of Justice (Kadi) that subject even apparently binding commands of the Security Council under its Charter authority to interpretation and being contravened and set aside on human rights grounds by the ECJ or other courts; a flood of scholarship is emerging in Europe to explain those doctrines (curiously largely uncommented in the US academic literature), and there is not a clear consensus on what they mean.  However, it is not beyond all political imagination to suggest the feature of those decisions is a Security Council decision that is seen to be taken at the behest and for the benefit of the superpower, the US.  A court might talk loftily about how everything is subject to human rights considerations, but it is not beyond imagining that, in a European court’s eyes, even without recourse to human rights claims, Security Council resolutions seemingly to benefit one P-5 member, even assented to by the Council, and even apparently binding under the Charter, should be seen as somehow less binding than something that seems to be more to the benefit of the whole, and not the product of bargaining.

It is not a crazy moral position, in fact – but seems to me to have little support in the way that Europe has traditionally seen the Charter as a legal document.  What it does seem to me to be is a sideways move to reform the role of the P5 without actually altering its composition.  The way in which sanctions against Libya were seen from by European states from the get-go, despite the legal command of the Security Council resolutions, suggests that the Kadi decision need not necessarily be understood as a matter of human rights, or at least not exclusively as a matter of human rights, but instead as both a simple political proposition about global consitutionalism by the EU, but also an indirect move to alter power relations among the P5 by judicializing them.  The history of Libya and Pan Am 103 in the Security Council is not irrelevant to that.

(Cross posted with some editing to Volokh.)