Many factors and developments have been instrumental in forcing the change in the position of the United States and the United Kingdom vis-à-vis the Lockerbie dispute, most important of which are the following:

The rulings by the International Court of Justice on 27 February 1998 against the United States of America and against the Britain, asserting the Court’s competence to consider the dispute, rejecting the challenge by each of them, contesting that competence and affirming the 1971 Montreal Treaty as a basis for adjudicating that dispute, and in particular, the realization by the two countries that the ruling of the Court (on the substance) will not be in their favor.

The strong support for Libya from the regional and international organizations, through their letters to both the Secretary-General and the President of the Security Council (S/1998/596, 598, 599 and 602), expressing their firm readiness to make their positions even stronger in the face of the complete disregard by the other party, of their many proposals and initiatives over the past seven years. That position is reflected in the resolution of the Organization of African Unity Summit in Ouagadougou, 8-10 June 1998, and the recommendation made to the 12th Summit of the Non-Aligned Movement by the Conference of Foreign Minister of the Movement held in Cartagena, Colombia, 18-20 May 1998.

As a result of this strong and firm position, the United States and the United Kingdom finally agreed to hold the trial in a third country, in a letter delivered to the Secretary General of the United Nations by the representatives of both states on 24 August 1998, to which was attached two annexes: one referring to the text of an agreement to be concluded between the Government of the Netherlands and the Government of the United Kingdom governing the sitting of a Scottish Court in the Netherlands, and the other relating to a legislation to be enacted by the Government of the United Kingdom for the transfer and the sitting of the Scottish Court in the Netherlands (S/1998/795).

What Libya and the international community had, for years and years, been waiting for, and after the numerous proposals submitted by Libya and the international community, the United States and the United Kingdom finally, on 24 August 1998, announced their acceptance, adding to it the legal documents referred to above. However, they wanted Libya, the Security Council, and the international community to agree within hours to what they themselves had delayed for many years. The next day, 25 August 1998, they introduced a draft resolution and pressured the Council to vote on it on 27 August 1998.

Libya asked the Security Council to delay its decision on the draft resolution, until the competent legal authorities in Libya completed their study of the documents presented by the two states and to enable the Secretary-General of the United Nations to perform his role with a view to reaching practical solutions acceptable to all, and in order to enable him to surmount any difficulties or problems that might delay the achievement of the desired result (document S/1998/803).

We have warned the international community, ever since an announcement appeared in The Guardian on 21 July 1998, followed by statements by the two states, that their belated acceptance of the initiative of the regional and international organizations put forward more than four years ago, was designed to serve political purposes, namely:

To by pass the two judgments by the International Court of Justice, referred to above especially when the two countries have realized that the ruling of the Court (on the substance) will be in their favor.
To foil the Ouagadougou Summit decisions and pre-empt events that would result from Africa’s initiative to challenge the sanctions, which they indeed started to implement even before September 1998.
To pre-empt the 12th Non-Aligned Summit in South Africa in order to prevent the adoption by the Summit of the recommendation placed before it from the Conference of Foreign Ministers of the Non-Aligned Movement, in Cartagena, Colombia (18-20 May 1998), and also to prevent the adoption by the summit of resolutions similar to those of the Ouagadougou Summit.
To maintain the sanctions against Libya.
To distance the international community and its regional and international organizations from Libya and isolate it.

When Libya expressed those concerns, a priori, and before the two countries, party to the dispute, announced their formal position, it was the intention of Libya, as we had directly told the President and members of the Security Council, the Secretary General and the members of the Committee of Seven (Arab League), the Committees of Six (Non Aligned Movement), and the Committee of Five (OAU), to avoid any difficulties or obstacles that would complicate the situation and return to its starting point. Our concerns were serious and legitimate.

For the United States and the United Kingdom to insist on placing all the parties in a difficult situation, and to impose the acceptance of their position within hours ­ despite the fact that all concerned needed adequate time to examine all the legal documents which are very complicated and multi-faceted - merely add to our past and present doubts and concerns.

The acceptance of holding the trial in a neutral country should mean that only the legal authorities of the countries concerned should deal with that matter, because the case is purely legal and technical. In addition to matters pertaining to the applicable laws and judges, there are other complicated and detailed questions that must be dealt with by legal specialists such as:

Guarantees for the two suspects regarding their security and rights throughout the different stages; their non-extradition to the other two states concerned; and the designation of the guarantor party or parties;
The investigation procedures and the trial proceedings;
The prosecution;
The legal reference;
Witnesses for the prosecution and defense, and evidence;
Responsibility of all parties in the case of acquittal or conviction. These are technical and legal issues on which agreement should be left to the appropriate legal authorities in the countries concerned;
The lifting or suspension of the sanctions.

In light of the above, the Libyan Arab Jamahiriya asserts that:

The political decision regarding the trial of the two suspects in a third country, other than the United States of America or the United Kingdom, was taken seven years ago at the highest decision-making level of the Libyan Arab Jamahiriya. The so called US-British initiative accepting the trial of the suspects in the Netherlands, in a Scottish Court with Scottish judges and according to Scottish law is, in fact, an acceptance of the Libyan initiative itself. It is the same initiative that has been valued and adopted by the international community as represented by its regional and international organizations; the League of Arab States, the Organization of African Unity, the Organization of the Islamic Conference, and the Movement of Non-Aligned Countries, in its many summits and ministerial conferences, as well as by many other states, not members of these organizations.

This dispute has now returned to its original nature: a legal matter.

Libya welcomes the acceptance by the United States of America and the United Kingdom of the proposals which have been submitted by the League of Arab States and the Organization of African Unity, and supported by the Organization of the Islamic Conference, and the Non-Aligned Movement more than four years ago. It considers this a positive step that would result in a satisfactory and just solution for all parties, to this dispute, which has lasted far too long and from which our people, as well as the families of the victims, continue to suffer.

Libya accepts that the two suspects be tried in a Scottish Court in the Netherlands by Scottish judges and according to Scots law. This position has already been confirmed. It is well-known and officially documented with the international community represented by its regional and international organizations and with the Security Council. Libya hopes that the two countries, party to the dispute, would prove their seriousness by cooperating effectively, either directly with Libya or through the Secretary-General of the United Nations, so as to close this file once and for all

Just like the judicial authorities in the United States of America and the United Kingdom have studied the legal aspect of all the documents attached to their letter to the Secretary-General referred to above, the Libyan legal and judicial authorities are now considering the procedural and legal question and the related legal arrangements and aspects resulting from the letter and its annexes. On its part, Libya is ready to address those questions, either directly with the judicial authorities of the States concerned, or through the Secretary-General of the United Nations.

We are looking forward to close this file once and for all. Libya has demonstrated its seriousness and flexibility in all phases of this dispute. It reaffirms that it shall continue to be serious and practical in this new phase.

The acceptance by the two states would not have taken place had it not been for the strong and firm position of the regional and international organizations and their member states, as well as their steadfastness in supporting the practical and reasonable Libyan position based on international laws and conventions, and in accordance with the Charter of the United Nations. The continuation of this strong support, in all forums is necessary in order to reach the arrangements and agreements necessary to implementing the initiative of those organizations - namely, the holding of a fair and just trial for the suspects in a neutral country.

Paragraph 4 of the said letter contained the following:

“…if found guilty, the two accused will serve their sentence
in the United Kingdom.”

As long as this Scottish Court is held in the Netherlands, as an exceptional measure, the sentence should, likewise, be served in the Netherlands, as an exceptional measure, or be served in Libya.

The holding of the trial in the Netherlands and the acceptance of Libya and the other parties of this solution, is the result of a political act, therefore, it should be considered a political solution which does not allow the use of laws as pretext. Since an amendment to those laws has already been prepared to go along with the political solutions, an amendment can also include the venue where the sentence be served in the framework of the political solution.

Paragraph 7 of the said letter contained the following:

“We are only willing to proceed in this exceptional way on the basis of the terms set out in the present letter (and its annexes), and provided that the Libyan Arab Jamahiriya cooperates fully by:

Ensuring the timely appearance of the two accused in the Netherlands for trial before the Scottish Court;

Ensuring the production of evidence, including the presence of witnesses before the Court;
Complying fully with all the requirements of the Security Council resolutions.”

The conditions contained the annexes relating to the two suspects or to the Libyan state should be taken with the defense of the two suspects and with the Libyan judicial authorities, and no one else has the right to decide on their behalf, including the Libyan political authorities. This is a constitutional matter.

The conditions in subparagraph “a” of 7: “”.Ensuring the timely appearance of the two accused in the Netherlands for trial before the Scottish Court Libya accepted the appearance of the two suspects before a Scottish Court, with Scottish judges and according to the Scottish law in the Netherlands. This is a political decision taken since several years and confirmed by Libya after the countries accepted it recently. As the judicial authorities in the two countries dealt with the technical and legal questions relating to the trial, therefore, it has become the responsibility of the Libyan judicial authorities to deal with these matters in accordance with their constitutional mandates and responsibilities. As with regard to the time limit, Libya has not until now been informed of it.

The conditions contained in subparagraph “b” of 7: “Ensuring the production of evidence, including the presence of witnesses before the court”. This condition cannot be accepted as it is because it encroaches upon the national sovereignty, and also because it is vague.

The conditions contained in subparagraph “c” of 7: “Complying fully with all the requirements of the Security Council resolutions”. Libya responded fully to what is required of her by the Security Council resolutions. Libya’s full response to the requirements of the Security Council resolutions is documented with the Security Council. This condition has no meaning whatsoever except to make it insuperably difficult, or that there are prior dispositions to retreat at any time that the two countries decide, especially if the two suspects have in fact arrived in the Netherlands or have appeared before the Court. Therefore, this condition cannot be accepted because of the many possibilities it raises.

Therefore, the trial should be the final measure in a comprehensive agreement to implement the Security Council resolutions by all parties. It must be made precisely clear what is required of each state in order that the sanctions imposed on Libya are lifted at the start of the trial. This will make any retreat or prevarication, as an excuse of non-compliance with the Security Council resolutions, absolutely impossible.

First:

The fourth operative paragraph of Security Council resolution 1192 (1998) adopted on 27 August 1998 stipulated that “the Libyan Government shall ensure that any evidence or witnesses in Libya are, upon the request of the Court, promptly made available at the Court in the Netherlands for the purpose of the trial.”

The text deals with practical matters in the future which are still to be known, for example, it is not clear what are the substances of the said documents, or the identities of the probable witnesses which could be called by the Court for achieving its purposes.

Moreover, in principle, the identification of witness and the appropriate evidential documents will be solely for the Court and its rules of procedures including hearing the argumentations of the prosecutor and of the defense. It is for the Court to decide upon these issues and the methodology of the presentation. The fourth paragraph constitutes a flagrant intervention in the Court’s procedures even before its commencement, and in dealing with relating to its procedures.

It goes without saying that the legal obligation of states vis-à-vis the international judicial cooperation is a prerogative of the Court on one hand, and the state that requests such cooperation on the other. This aspect should be limited to the point were it should not come into conflict with the national security, its laws, and its higher sovereign interests. There are several means to fulfill this cooperation including judicial representation, the transfer of the Court to investigate, and others. The Libyan Government finds in absolute compliance on matters stipulated in paragraph 4 of the Security Council resolution 1192 (1998) totally out of context with the practiced rules of procedures and rules of evidence and investigation process.

It is obvious that this transigent coercive political condition runs in total contradiction to what is indicated in the evidence section of the legal orders of 1998, where article “12” which deals with the rules of notifying of witnesses, and particularly subparagraph “3” which deals with the witnesses who are outside the jurisdiction of the Court.

On general, the Libyan Government views the said text as an intervention in the Court proceedings and making limitations on the rights of the defense, and abrogation of the legal rights of the Libyan Arab Jamahiriya, which are granted in accordance with international laws and customs that govern the rules of evidence and procedures.

The Libyan Arab Jamahiriya believes that the declaration stipulating questions of evidence and matters of Libya’s cooperation should be left to be dealt with in general terms as indicated in the fourth operative paragraph, “…that all states shall cooperate to this end, in accordance with international legal norms”. This should be left for the Court and the concerned countries.

Second:

Security Council resolution 1192 (1998) referred to the joint letter of the United States and the United Kingdom dated 24 August 1998 (S/1998/795) which specifies in its fourth paragraph that, “if found guilty, the two accused will serve their sentence in the United Kingdom”. The agreement between the United Kingdom and the Netherlands in article 16/2/B referred that, “the two accused will be transferred to the United Kingdom for the purpose of serving a custodial sentence imposed by the Scottish Court following their conviction”.

The initiative adopted by the Security Council which is primarily a political initiative is based on the proposals of regional and international organizations, included in the preamble of resolution 1192 (1998). We refer in particular to the contents of the joint letter of the two Secretaries Generals of the Arab League and of the Organization of African Unity (S/1997/497). Therefore, any provision which will allow the transfer of the two suspects for trial in any other place (except in the Netherlands) under whatever circumstances will be considered in violation of the regional organizations proposals accepted by Libya.

This stipulation conflicts with the understanding of the initiative - the purpose of the trial of the two suspects is to uncover the truth about the tragic incident of Pan Am 103 and not to punish two suspected Libyan nationals on baseless evidence. In the final analysis, all the Court’s procedures including serving custodial sentences, if proven guiltily, should be served in a third country other than the United States or the United Kingdom.

The agreement among the parties to hold the trial in the Netherlands is a political solution reached as a result of a political action. Therefore, the venue for serving the sentence should be part of the political solution. The Scottish laws should not be a justification, especially when the Court is held in the Netherlands and not in Scotland. The proposed draft law with regard to this matter should include in its provisions this question.

Third:

It is meaningless what is contained in resolution 1192 (1998) regarding the relation between the Libyan Government and the French judicial authority concerning UTA 772, (paragraph 8). This has no relation to substance of the “initiative” on which resolution 1192 (1998) is based. Moreover, the Security Council is cognizant that Libya has fully responded to what was required of her in this respect. The matter is being dealt with by the French judicial authorities.

Libya wishes to point out that it should be clearly understood that the sanctions shall be suspended as soon as an agreement with the Secretary-General is reached on the appearance of the two suspects in the Court, and they shall be lifted once the suspects reached the territories of the Netherlands, without any further measures.

The most practical and speedy solution is for all parties concerned to negotiate an agreement regarding the practical steps to be taken for implementing “the initiative” of holding the trial of the two suspects in a Scottish Court in a neutral country (the Netherlands), as is called for by the Non-Aligned Summit held in South Africa in August/September 1998.

Should such negotiations not be possible due to the refusal of the United States and the United Kingdom to negotiate directly with Libya, which they announced when declaring their acceptance of the initiative of the regional and international organizations, the negotiations would take place through the Secretary-General of the United Nations. Any agreement reached should set forth all the practical measures to be taken, the obligations of each party and the rights of the two suspects and their defense team, as well as the guarantees given to them. The agreement should also precisely specify what is required of all parties, according to the Security Council resolutions, so that the trial of the two suspects be the final, and not the first step, in the implementation of those resolutions, and should lead to the lifting of the sanctions imposed on Libya, thus closing the door forever on any prevarications or retreat from, on the grounds that Libya had not complied fully with the Security Council resolutions, since Libya has already completely responded to what was required of it.

Among the questions which the Libyan Arab Jamahiriya believes should be included in the agreement are the following:

Agreement on limiting, specifying, and identifying in advance, the witnesses to be summoned from all parties, and not only by Libya alone, and on giving the defense team the right to obtain and examine all the evidence and cross examination of the witnesses.

Agreement on the venue for serving the sentences in case of conviction, either in the Netherlands or Libya.

Undertake to guarantee that the two suspects are not extradited to either the United States or the United Kingdom, or their transfer or transport to either country, for whatever reason and during any phase of the trial, and ensuring their return to Libya in case the Court cannot be convened or in the event of the prosecution being discontinued by any process of law preventing any further trial, or if acquitted.

Agreement on the legal, personal, social, health and religious rights of the suspects throughout the different stages.

Concluding an agreement between the Kingdom of the Netherlands and the Libyan Arab Jamahiriya specifying the means of transfer of the suspects to the Netherlands and guaranteeing their security and safety during their transfer to and presence in the Netherlands and their return when the trial is over, as well as during serving their sentence. The agreement should be approved by the Security Council and implemented under the supervision of the Secretary-General of the United Nations.

Confirming in the agreements to be reached, or in a resolution by the Security Council the obligations of all states concerned and in particular, the United States, the United Kingdom, and the Kingdom of the Netherlands, to respond to the demands of the defense team, within the limits of the law, such as facilitating their entry into the territories of those states for the purposes of fact-finding, contacting witnesses, and examining documents and records, and retaining counsellors, etc.

Ensuring that lawyers, particularly the Libyan lawyers, are enabled to perform their professional duties in the territories of the two states with ease and without any interference or impediments of any kind, and are permitted, together with all non Scottish lawyers, to attend the trial and participate in arguing the case before the Scottish Court, by granting the necessary licenses, if required.

Sanctions should be suspended as soon as an agreement is reached and the Secretary-General who notifies the Security Council thereof, and be lifted once and for all when the suspects appear before the Court, in view of the fact that the sanctions were imposed on the pretext of ensuring their appearance in a court of law. That agreement would make the sanctions redundant and their continuation unjustified, particularly since they were imposed without a conviction, trial, or investigation. The fact that the Security Council resolution 1192 (1998) refers to the intention to back away from suspending the sanctions, also raises grave concerns which cannot be dispensed except by a clear agreement precisely specifying when the sanctions would be lifted.

What is agreed upon could be formulated in the framework of an agreement signed by the Libyan Arab Jamahiriya and the Secretary-General.

The Secretary-General shall refer the agreement to the Security Council with his report on the subject.

The Security Council endorses the agreement and which will become a formal document and requests the Secretary-General to implement it.

Once the agreement is endorsed, the Security Council will issue an amendment to resolution 1192 (1998) and its annexes according to the agreement.