U.S., Britain Announce Plan for Pan Am TrialBy Thomas W. Lippman
Washington Post Staff Writer
Tuesday, August 25 1998; Page A01
The United States and Britain announced a novel proposal yesterday to convene a Scottish court in the Netherlands in an effort to bring to trial two Libyan intelligence agents accused of the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland.
If accepted by Libya, the plan would apparently create an international legal precedent by moving an entire court system and code of laws from one country to another, and would be a milestone in a decade-long quest for justice by the families of the 270 victims of the bombing.
The proposal was designed to meet conditions laid down by Libyan leader Moammar Gadhafi for delivering the two suspects. If Gadhafi rejects the plan, U.S. officials said, the United States and Britain will ask the U.N. Security Council for additional economic sanctions on Libya, including a ban on crude oil sales, the mainstay of the Libyan economy.
As described by British and American officials, Gadhafi will face a difficult choice once the proposal is formally delivered to him by U.N. Secretary General Kofi Annan: comply with U.N. demands that he deliver the two suspects, risking exposure of his government's alleged complicity in the bombing, or refuse to comply even though his terms have been met, giving the United States and Britain strong leverage to seek a crude oil export ban when the Security Council reviews the issue in November. Tripoli did not respond yesterday to the release of the plan.
In coordinated announcements, British Foreign Secretary Robin Cook and Secretary of State Madeleine K. Albright made what Albright called a "take it or leave it" offer to Gadhafi, which they said is not subject to negotiation or modification. Both insisted that the proposal was designed to call Libya's bluff, not as a concession to terrorists.
Cook said the plan, approved yesterday morning by the Dutch cabinet, represents a "historic innovation in international legal practice to enable the court of one country to conduct a trial in another country." He said the agreements, reached after months of planning in Washington, London and The Hague, "are the product of long and careful examination by the law officers of Scotland, the United States and the Netherlands. They are not up for negotiation with any other party."
Those discussions began months before the Aug. 7 terrorist bombings of the U.S. embassies in Tanzania and Kenya prompted a revision of U.S. counterterrorism policy to emphasize prevention and retaliation more than the apprehension of individual suspects -- a shift put on dramatic display last Thursday with the U.S. missile attacks on a pharmaceutical factory in Sudan and on purported terrorist training camps in Afghanistan.
The Pan Am trial proposal, officials said, is not inconsistent with the new strategy because it is designed to deal with a case from years ago in which individuals are already under indictment in the United States and Scotland.
"One way or another, terrorists must answer for their crimes," Albright said.
Albright and White House national security adviser Samuel R. "Sandy" Berger briefed family members of some victims about the proposal in a conference call yesterday morning. Reaction to the plan was mixed, as some family members said they would welcome a break in the stalemate with Libya and others said it sets a dangerous precedent by allowing terrorism suspects to set the terms of their trial.
"We know it's not going to work," said Rosemary Wolfe, president of one family group that opposes the plans. "There is no chance that Gadhafi is going to turn them over to a Scottish court. The only way we can really get justice is to take some kind of unilateral action, as we did last week."
But Jane Schultz of Ridgefield, Conn., whose son Thomas was killed in the bombing, told Reuters that "certainly the overwhelming majority of the families on the phone call were clearly behind this. I feel we have taken a very positive step forward and I applaud Albright and Berger."
The Pan Am Boeing 747 blew up on Dec. 21, 1988, shortly after taking off from London on a flight to New York. The bomb killed all 259 people on the plane -- many of them college students returning home for the holidays after semesters in Europe -- and 11 people on the ground. The fatalities in the village of Lockerbie made the bombings a criminal case in Britain as well as in the United States.
Initial suspicion focused on Iran and Syria. But because the plane went down over land, investigators were able to recover forensic evidence that led them after more than two years to the two Libyans, according to the 1991 indictment. The suspects are Abdel Basset Megrahi and Lamen Khalifa Fhimah, both labeled by Albright yesterday as "agents of the Libyan government."
Despite U.N. demands and limited economic sanctions imposed by the Security Council, Libya has refused to make the two men available to either U.S. or British law enforcement authorities, arguing that they could not receive a fair trial in either country. Libya maneuvered for years in an effort to find some alternative to delivering the two for trial in the United States or Scotland, settling finally on the idea of a trial under Scottish law in a neutral country, conditions endorsed by the Arab League and other international organizations.
Albright, Cook and other officials said Washington and London accepted the principle of the Libyan plan because the stalemate was leading nowhere and many family members were clamoring for some resolution of the case. In addition, several officials said, the commitment of other countries to maintaining the existing sanctions was weakening and the trail of potential evidence was growing old, two factors that made it necessary to act now.
"Year after year has passed without resolution," Albright said. "The sanctions have not altered Libyan intransigence. The families of the victims have become increasingly and understandably frustrated. The cause of justice was not being served."
If Libya accepts the proposal, the two suspects will be delivered to custody in The Hague and held there during a trial conducted under Scottish law, which is similar to English law in principle but has different procedures and different judges, a reflection of Scotland's distant past as an independent country.
Three Scottish judges would hear evidence presented by a Scottish prosecutor. A jury trial is not possible, officials said, because ordinary Scottish citizens could not be expected to be transported to a foreign country and kept there for weeks or months.
If convicted, the two Libyans would serve 30-year sentences in Scottish prisons, officials said.
But an acquittal would not end the case, senior U.S. officials said. Families of the victims would be able to sue Libya in U.S. courts, using evidence made available at the criminal trial. Foreign countries are normally exempt from civil suits by U.S. citizens, but Congress recently changed the law to allow suits against countries listed by the State Department as sponsors of international terrorism. Libya is on that list.
Staff writers John M. Goshko at the United Nations and T.R. Reid in London contributed to this report.
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