REPORT ON AND EVALUATION OF THE LOCKERBIE TRIAL CONDUCTED BY THE SPECIAL SCOTTISH
COURT IN THE NETHERLANDS AT KAMP VAN ZEIST
by Dr. Hans Köchler, University Professor,
international observer of the International Progress Organization nominated by United
Nations Secretary-General Kofi Annan on the basis of Security Council resolution
1192 (1998)
Santiago de Chile, 3 February 2001/P/HK/17032
The undersigned observed the proceedings of the High Court of Justiciary at Camp
Zeist (Netherlands) since the beginning on 5 May 2000 until the announcement of the
verdict and sentence in the causa Her Majesty’s Advocate v Abdelbasset Ali Mohamed
Al Megrahi and Al Amin Khalifa Fhimah on 31 January 2001. He regularly attended the
sessions of the Court, repeatedly met with the prosecution and defense teams, interviewed
the Registrar and staff members of the Scottish Court Service at Kamp van Zeist,
inspected HM Prison Zeist, met with the Governor and Deputy Governor of HM Prison
Zeist and with the Chief of the Scottish Police at Kamp van Zeist. He interviewed
the two accused Libyan nationals at the beginning of the trial and again — in separate
meetings — after the passing of the verdict and sentence on 31 January 2001. All
meetings were arranged through the Scottish Court Service. The undersigned further
had access to the complete transcripts of the Court’s proceedings and exchanged notes
with the additional international observer of the International Progress Organization,
Mr. Robert Thabit, Esq.
On the basis of his first exploratory visit to Kamp van Zeist
and of the interview with the two accused, the undersigned, in May 2000, sent a confidential
message to the Secretary-General of the United Nations. He made no public comments
during the entire period of the trial and did not seek a meeting with the panel of
judges, Lord Sutherland, Lord Coulsfield and Lord Maclean. He exercised his observer
mission on the basis of respect of the constitutional independence of the judiciary
and interpreted his mission — in the absence of any specific description of the tasks
of international observers in the respective Security Council resolution — in the
sense of evaluating the aspects of due process and fairness of the trial. He reached
agreement on the nature of this observer mission with the additional observer of
the International Progress Organization, Mr. Robert Thabit.
Based on his observations
during the entire period of the trial and on the information obtained in the numerous
meetings with the protagonists of the trial mentioned above, the undersigned presents
the following evaluation in regard to the aspect of due process and the question
of the fairness of the trial:
1. All administrative aspects of the trial were handled
with great care, efficiency and professionalism by the staff of the Scottish Court
Service at Kamp van Zeist. Apart from minor problems with simultaneous interpretation
at the beginning of the trial, there were no major weaknesses that might have affected
the fairness of the proceedings. The problems of interpretation were solved in a
satisfactory manner. The Scottish Court Service did its best to assist the undersigned
in the accomplishment of his observer mission.
2. The circumstances of detention of
the two accused at Her Majesty’s Prison Zeist were in conformity with national legal
requirements and international legal and human rights standards. According to the
information given by the accused in a private interview with the undersigned, no
people had access to them without their consent. In particular, the medical services
and the medical care for the second accused (who needs permanent medication) were
up to the required standard. Upon their special request, the undersigned sent a note
about his meeting with the accused in May 2000 and conveyed their concerns in regard
to certain political aspects of the United Nations arrangements and conditions for
their coming to the Netherlands to the Secretary-General of the United Nations. The
Governor of HM Prison Zeist forwarded the undersigned’s confirmation note on the
forwarding of this message to the two accused. The prison administration was fully
co-operative in regard to the undersigned’s requests in the exercise of his observer
mission.
3. The extraordinary length of detention of the two suspects / accused from
the time of their arrival in the Netherlands until the beginning of the trial in
May 2000 has constituted a serious problem in regard to the basic human rights of
the two Libyan nationals under general European standards, in particular those of
the European Convention on Human Rights. In general, the highly political circumstances
of the trial and special security considerations related to the political nature
of the trial may have had a detrimental effect on the rights of the accused, in particular
in regard to the duration of administrative detention.
4. As far as the material aspects
of due process and fairness of the trial are concerned, the presence of at least
two representatives of a foreign government in the courtroom during the entire period
of the trial was highly problematic. The two state prosecutors from the US Department
of Justice were seated next to the prosecution team. They were not listed in any
of the official information documents about the Court’s officers produced by the
Scottish Court Service, yet they were seen talking to the prosecutors while the Court
was in session, checking notes and passing on documents. For an independent observer
watching this from the visitors’ gallery, this created the impression of “supervisors”
handling vital matters of the prosecution strategy and deciding, in certain cases,
which documents (evidence) were to be released in open court or what parts of information
contained in a certain document were to be withheld (deleted).
5. This serious problem
of due process became evident in the matter of the CIA cables concerning one of the
Crown’s key witnesses, Mr. Giaka. Those cables were initially dismissed by the prosecution
as “not relevant,” but proved to be of high relevance when finally (though only partially)
released after a move from the part of the defense. Apart from this specific aspect
— that seriously damaged the integrity of the whole legal procedure —it has become
obvious that the presence of representatives of foreign governments in a Scottish
courtroom (or any courtroom, for that matter) on the side of the prosecution team
jeopardizes the independence and integrity of legal procedures and is not in conformity
with the general standards of due process and fairness of the trial. As has become
obvious to the undersigned, this presence has negatively impacted on the Court’s
ability to find the truth; it has introduced a political element into the proceedings
in the courtroom. This presence should never have been granted from the outset.
6.
Another, though less serious, problem in regard to due process was the presence of
foreign nationals on the side of the defense team in the courtroom during the whole
period of the trial. Apart from the presence of an Arab interpreter (which was perfectly
reasonable under aspects of fairness and efficiency of the proceedings), the presence
of a Libyan lawyer who had held high posts in the Libyan government and who represented
the Libyan Jamahiriya in its case v the United States and the United Kingdom at the
International Court of Justice gave the trial a political aspect that should have
been avoided by decision of the panel of judges, Though Mr. Maghour acted officially
as Libyan defense lawyer for the accused Libyan nationals and although he was not
seen by the undersigned as interacting with the Scottish defense lawyers during court
proceedings, he had to be perceived as a kind of liaison official in a political
sense. It has to be noted that the original Libyan defense lawyer, Dr. Ibrahim Legwell
(chosen by the two suspects long before their transfer to the Netherlands), resigned
under protest when the Libyan government introduced Mr. Maghour as new defense lawyer
for the two accused. In sum, the presence of de facto governmental representatives
of both sides in the courtroom gave the trial a highly political aura that should
have been avoided by all means, at least as far as the actual proceedings in the
courtroom were concerned. Again, as to the undersigned’s knowledge, the presence
of foreign nationals on the side of the defense team was mentioned in no official
briefing document of the Scottish Court Service.
7. It was a consistent pattern during
the whole trial that — as an apparent result of political interests and considerations
— efforts were undertaken to withhold substantial information from the Court. One
of the most obvious cases in point was that of the former Libyan double agent, Abdul
Majid Giaka, and the CIA cables related to him. Some of the cables were finally released
after much insistence from the part of the defense, some were never made available.
The Court was apparently content with this situation, which is hard to understand
for an independent observer. It may never be fully known up to which extent relevant
information was hidden from the Court. The most serious case, however, is related
to the special defense launched by defense attorneys Taylor and Keen. It was officially
stated by the Lord Advocate that substantial new information had been received from
an unnamed foreign government relating to the defense case. The content of this information
was never revealed, the requested specific documents were never provided by a foreign
government. The alternative theory of the defense — leading to conclusions contradictory
to those of the prosecution — was never seriously investigated. Amid shrouds of secrecy
and “national security” considerations, that avenue was never seriously pursued —
although it was officially declared as being of major importance for the defense
case. This is totally incomprehensible to any rational observer. By not having pursued
thoroughly and carefully an alternative theory, the Court seems to have accepted
that the whole legal process was seriously flawed in regard to the requirements of
objectivity and due process.
8. As a result of this situation, the undersigned has
reached the conclusion that foreign governments or (secret) governmental agencies
may have been allowed, albeit indirectly, to determine, to a considerable extent,
which evidence was made available to the Court.
9. In the analysis of the undersigned,
the strategy of the defense team by suddenly dropping its “special defense” and cancelling
the appearance of almost all defense witnesses (in spite of the defense’s ambitious
announcements made earlier during the trial) is totally incomprehensible; it puts
into question the credibility of the defense’s actions and motives. In spite of repeated
requests of the undersigned, the defense lawyers were not available for comment on
this particular matter.
10. A general pattern of the trial consisted in the fact that
virtually all people presented by the prosecution as key witnesses were proven to
lack credibility to a very high extent, in certain cases even having openly lied
to the Court. Particularly as regards Mr. Bollier and Mr. Giaka, there were so many
inconsistencies in their statements and open contradictions to statements of other
witnesses that the resulting confusion was much greater than any clarification that
may have been obtained from parts of their statements. Their credibility as such
was shaken. It seems highly arbitrary and irrational to choose only parts of their
statements for the formulation of a verdict that requires certainty “beyond any reasonable
doubt.”
11. The air of international power politics is present in the whole verdict
of the panel of judges. In spite of the many reservations in the Opinion of the Court
explaining the verdict itself, the guilty verdict in the case of the first accused
is particularly incomprehensible in view of the admission by the judges themselves
that the identification of the first accused by the Maltese shop owner was “not absolute”
(formulation in Par. 89 of the Opinion) and that there was a “mass of conflicting
evidence” (ibid.). The consistency and legal credibility of the verdict is further
jeopardized by the fact that the judges deleted one of the basic elements of the
indictment, namely the statement about the two accused having induced on 20 December
1988 into Malta airport the suitcase that was supposedly used to hide the bomb that
exploded in the Pan Am jet.
12. Furthermore, the Opinion of the Court seems to be
inconsistent in a basic respect: while the first accused was found “guilty”, the
second accused was found “not guilty”. It is to be noted that the judgement, in the
latter’s case, was not “not proven”, but “not guilty”. This is totally incomprehensible
for any rational observer when one considers that the indictment in its very essence
was based on the joint action of the two accused in Malta.
13. The Opinion of the
Court is exclusively based on circumstantial evidence and on a series of highly problematic
inferences. As to the undersigned’s knowledge, there is not one single piece of material
evidence linking the two accused to the crime. In such a context, the guilty verdict
in regard to the first accused appears to be arbitrary, even irrational. This impression
is enforced when one considers that the actual wording of the larger part of the
Opinion of the Court points more into the direction of a “not proven” verdict. The
arbitrary aspect of the verdict is becoming even more obvious when one considers
that the prosecution, at a rather late stage of the trial, decided to “split” the
accusation and to change the very essence of the indictment by renouncing the identification
of the second accused as a member of Libyan intelligence so as to actually disengage
him from the formerly alleged collusion with the first accused in the supposed perpetration
of the crime. Some light is shed on this procedure by the otherwise totally incomprehensible
“not guilty” verdict in regard to the second accused.
14. This leads the undersigned
to the suspicion that political considerations may have been overriding a strictly
judicial evaluation of the case and thus may have adversely affected the outcome
of the trial. This may have a profound impact on the evaluation of the professional
reputation and integrity of the panel of three Scottish judges. Seen from the final
outcome, a certain coordination of the strategies of the prosecution, of the defense,
and of the judges’ considerations during the later period of the trial is not totally
unlikely. This, however, — when actually proven — would have a devastating effect
on the whole legal process of the Scottish Court in the Netherlands and on the legal
quality of its findings.
15. In the above context, the undersigned has reached the
general conclusion that the outcome of the trial may well have been determined by
political considerations and may to a considerable extent have been the result of
more or less openly exercised influence from the part of actors outside the judicial
framework — facts which are not compatible with the basic principle of the division
of powers and with the independence of the judiciary, and which put in jeopardy the
very rule of law and the confidence citizens must have in the legitimacy of state
power and the functioning of the state’s organs - whether on the traditional national
level or in the framework of international justice as it is gradually being established
through the United Nations Organization.
16. On the basis of the above observations
and evaluation, the undersigned has — to his great dismay — reached the conclusion
that the trial, seen in its entirety, was not fair and was not conducted in an objective
manner. Indeed, there are many more questions and doubts at the end of the trial
than there were at its beginning. The trial has effectively created more confusion
than clarity and no rational observer can make any statement on the complex subject
matter “beyond any reasonable doubt”. Irrespective of this regrettable outcome, the
search for the truth must continue. This is the requirement of the rule of law and
the right of the victims’ families and of the international public.
17. The international
observer may draw one general conclusion from the conduct of the trial, which allows
to formulate a general maxim applicable to judicial procedures in general: proper
judicial procedure is simply impossible if political interests and intelligence services
— from whichever side — succeed in interfering in the actual conduct of a court.
We should remember the wisdom of Immanuel Kant who — in his treatise on eternal peace
(Zum ewigen Frieden), elaborating on the essence of the rule of law — unambiguously
stated that secrecy is never compatible with a republican system determined by the
rule of law. The purpose of intelligence services — from whichever side — lies in
secret action and deception, not in the search for truth. Justice and the rule of
law can never be achieved without transparency.
18. Regrettably, through the conduct
of the Court, disservice has been done to the important cause of international criminal
justice. The goals of criminal justice on an international level cannot be advanced
in a context of power politics and in the absence of an elaborate division of powers.
What is true on the national level, applies to the transnational level as well. No
national court can function if it has to act under pressure from the executive power
and if vital evidence is being withheld from it because of political interests. The
realities faced by the Scottish Court in the Netherlands have demonstrated this truth
in a very clear and dramatic fashion — the political impact stemming, in this particular
case, from a highly complex web of national and transnational interests related to
the interaction among several major actors on the international scene.
19. The undersigned
would like to express his humble opinion — or hope, for that matter — that an appeal,
if granted, will correct the deficiencies of the trial as explained above. It goes
without saying that all will depend on the integrity and independence of the five
judges of an eventual Court of Appeal operating under Scottish law.
20. The above
evaluation should in no way be interpreted as to diminish the idealistic contribution
and commitment of so many civil servants of the Scottish Court Service and the Scottish
police authorities who guaranteed the smooth functioning of the whole court operation
at Kamp van Zeist under difficult and truly extraordinary circumstances.
The undersigned
would like to emphasize that the above remarks constitute a personal evaluation by
himself alone and that he is only bound by the dictates of his conscience; as an
international citizen committed to the goals and principles of the United Nations
Charter, he does not accept any pressure or influence from the part of any government,
political party or interest group.
Truth in a matter of criminal justice has to be
found through a transparent inquiry that will only be possible if all considerations
of power politics are put aside. The rule of law is not compatible with the rules
of power politics; justice cannot be done unless in complete independence, based
on reason and the unequivocal commitment to basic human rights.
Dr. Hans Köchler
The man is incarcerated in Barlinnie Prison, Glasgow, Scotland.
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