Gadaffi’s Death May Obscure Truth about Pan Am 103 Bombing

by Michael Scharf

As yesterday’s killing of Libyan dictator Muammar Gaddafi is celebrated in Libya and around the world, we should take a moment to ponder what it means for the long quest to discover the truth about the bombing of Pan Am Flight 103. I write this from the perspective of a former State Department lawyer who had been assigned to the Pan Am 103 case (1989-1993) and as an academician who later observed and published critiques of the Pan Am 103 trial in The Netherlands in 2000.

As most Opinio Juris readers are well aware, on December 21, 1988, Pan American Airways Flight 103 exploded over Lockerbie, Scotland, killing 259 passengers and crew members (including two-dozen Syracuse University students) as well as eleven residents of the small Scottish town. With the exception of the attacks of September 11, 2001, this was the worst case of air terrorism ever committed on Western soil and the Scottish and American authorities responded by launching the largest international criminal investigation ever undertaken.

At first the U.S. government thought Iran was behind the bombing, then Syria, and then a Palestinian Terrorist Group. It took three years for the investigators to piece together what happened and who they ultimately concluded to be responsible. In 1991, the United States and United Kingdom each issued indictments against two Libyan agents for the Lockerbie bombing, which had allegedly been undertaken in revenge for the U.S. bombing of Tripoli in 1986. It required the imposition of UN Security Council sanctions and eight years of shuttle diplomacy to work out a deal between the United Nations, the United States, the United Kingdom, and Libya to bring the accused perpetrators to trial before a novel Scottish court sitting at a retired U.S. air force base known as Camp Zeist in The Netherlands.

On January 31, 2001, after a nine-month exceptionally messy trial, the Pan Am 103 Tribunal rendered its verdict. The court found one of the two Libyan defendants, Al Amin Fhima, not guilty and he was immediately returned to Libya where he received a hero’s welcome. It found the other defendant, Abdelbaset al-Megrahi, guilty of murder and sentenced him to a minimum of 20 years incarceration in Berlinie prison in Scotland.  Al-Megrahi was, however, released eight years into his sentence in August 2009 on “compassionate grounds” due to medical evaluations indicating that he was likely to die within months of prostate cancer.  Subsequent press reports suggested that in reality al-Megrahi had been released in a trade deal between the UK and Libya, and al-Megrahi is still alive today.

The purpose of an international criminal trial is, in the words of Nuremberg Prosecutor Robert Jackson, “to establish incredible events with credible evidence.”  Unfortunately, that wasn’t the case here, as  the verdict of the Pan Am 103 Tribunal did not implicate those higher up in the Libyan government, nor did it rule out the possible involvement of Iran in the bombing. Moreover, although the decision to convict Al-Megrahi was unanimous, the judgment indicates that it had been a close call, with the three judges acknowledging that the prosecution’s case had “uncertainties and qualifications” and that key witnesses had repeatedly lied. Indeed, portions of the judgment read as though the text had been drafted for a “not proven” verdict, which is used under Scottish law when the court is convinced of guilt but the evidence does not rise to the level of “beyond reasonable doubt.”  According to recent press reports, Al-Magrahi continues to assert his innocence. For a detailed analysis of the evidence of the Pan Am 103 trial, see Michael P. Scharf, The Lockerbie Model, in International Criminal Law (3rd ed. 2007).

Now that Gaddafi has died, will we ever learn the full truth behind the Pan Am 103 bombing?  There was no indication that the documents recently found in the office of Musa Kusa, Gaddafi’s former intelligence chief, contained anything about the Pan Am 103 case.  After he switched sides in February 2011, Gaddafi’s former Minister of Justice, Mohamed Abud Al Jeleil, did state that Gaddafi ordered the Pan Am bombing, but that could have just been an effort to enlist international support for anti-Gaddafi forces.  Had Gaddafi lived and been brought to trial, it is unlikely that the charges would have included his involvement in the Pan Am 103 bombing.  The ICC indictment only concerned crimes against humanity since February 2011, and the Libyan transitional authorities were focused only on prosecuting him for crimes against the people of Libya. 

There is still a possibility that as-of-yet discovered documents about the Pan Am 103 case will surface in Libya, but with Gaddafi’s death it is more likely that the full truth will have died with him.

http://opiniojuris.org/2011/10/21/gadaffis-death-may-obscure-truth-about-pan-am-103-bombing/

5 Responses

  1. Response… “Subsequent press reports suggested that in reality al-Megrahi had been released in a trade deal between the UK and Libya…” ; but such reports fail to recognise that the Libyan trade deals were being done by the UK (then with a Labour Party government) and US, while the release was by Kenny MacAskill who is a Minister in the Scottish Government (then as now, Nationalist) . Whatever the rights and wrongs of the release, the idea that MacAskill would put himself out to do a favour for Tony Blair and his pals is incredible to anyone with any understanding of the deep hatred and contempt between SNP and Labour. I don’t doubt that London Labour was deeply relieved that the decision was taken in Edinburgh as it was; and it may have tried to encourage it; but it cannot have taken part in it because it lacked the political power to do so. These reports (and there are other similar ones in the London press) simply fail to engage with the party politics of the situation. There is a deeper significance in this: the assumption that the UK is a unitary state with monolithic government is obsolete, as indeed this episode showed.

  2. Has his death changed anything?
     
    What if he honestly knew nothing of the Pan Am 103 bombings?  Would we have believed him?

  3. At least there is one good thing in it: the rest of the tyrants might just start feeling less untouchable when they see the graphics of Gadaffi’s death. Dictator is not a life profession anymore. Look what happened to all those guys, Ceausescu, Honecker, Mubarak, Pinochet, Milosevic, Charles Taylor, Marcos, Ben Ali, Saddam and others.

  4. Arguably the Burmese Junta felt the same way.

  5. Writes Scharf: The purpose of an international criminal trial is, in the words of Nuremberg Prosecutor Robert Jackson, “to establish incredible events with credible evidence.”

    Since Scharf distorts the quote from Jackson’s letter to the President (that has nothing to do with the purpose of international trials) by inventing the words “to” and “with” we should actually know the full context of this often abused statement by Jackson–as well as reject as absolutely appalling Scharf’s inappropriate suggestion that bombing a jetliner is as incredible as the destruction of European Jews and the effects of waging aggressive wars in Europe:

    The Nazi Master Plan

    4. Our case against the major defendants is concerned with the Nazi master plan, not with individual barbarities and perversions which occurred independently of any central plan. The groundwork of our case must be factually authentic and constitute a well-documented history of what we are convinced was a grand, concerted pattern to incite and commit the aggressions and barbarities which have shocked the world. We must not forget that when the Nazi plans were boldly proclaimed they were so extravagant that the world refused to take them seriously. Unless we write the record of this movement with clarity and precision, we cannot blame the future if in days of peace it finds incredible the accusatory generalities uttered during the war. We must establish incredible events by credible evidence.

    See: http://www.ibiblio.org/pha/war.term/trib_07.html

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