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