Finally, in late August, the United States and United Kingdom announced they would agree to convening in the Netherlands a Scottish court, operating under Scottish criminal procedure and penal law, and presided over by a panel of three Scottish judges. The U.N. Security Council then issued a new, unanimous resolution calling on Libya to transfer the suspects to the Netherlands, make evidence and witnesses available to the court, and also cooperate with French authorities investigating the 1989 bombing of a French airplane over Niger, which killed 171 people. In return, the Security Council would suspend economic sanctions that have been in effect since 1992. Additional sanctions would be imposed on Libya if the two are not promptly turned over for trial.

WHAT are the advantages and disadvantages for Libya in having
the trial in a third country?

      Libya undoubtedly wants an end to the U.N. sanctions that banned air travel to and from Libya, barred the sale of weapons and some oil equipment, and froze its foreign assets. Many African states have already agreed to ignore the sanctions, and Libya is probably banking on this momentum to seek their ultimate elimination. But we can clearly see from its equivocation that it doesn't want to appear to be capitulating to Western ultimatums. I would suspect that national dignity is more important to Moammar Gadhafi than concern for the rights of the two individual nationals. But he may also be worried that under the pressure of prosecution, they may implicate other Libyan officials in the Pan Am 103 plot, if not also in the entire Middle East terrorist infrastructure.

WHAT are the advantages and disadvantages for the United States
and United Kingdom?

      Clearly, the United States and United Kingdom would prefer the trial be held in either of their own countries, at the very least, and not appear to be undermining the prestige and integrity of their own criminal justice systems. But as the British representative to the Security Council explained, this proposal has been made in the interest of justice and to bring an end to the years of waiting by the victims' families.

      Some of the families are critical of the Netherlands plan, arguing that it sets a dangerous precedent for terrorists to dictate terms of their own trials. But this is clearly an exceptional case, since suspected terrorists, when they are identified, are usually either beyond reach or caught by the state that wants to prosecute them. Both Secretary of State Madeleine Albright and British Foreign Secretary Robin Cook insist the plan is designed not as a concession to terrorists, but to call Libya's bluff. If they succeed in calling Libya's bluff, they may get further sanctions imposed, such as a complete oil embargo.

ARE there precedents
for such a trial?
      The closest precedents, such as the Nuremberg Trials, were international courts trying international law. Of course, changes of venue from one jurisdiction to another are common within the U.S. legal system: Witness the movement of the Timothy McVeigh trial from Oklahoma City to Denver. While that took place within the common jurisdiction of U.S. law, the principle behind a move to the Netherlands is similar—to ensure that the trial is not prejudiced by the hostility of the local population.

WILL justice be served?
      It all depends on your definition of justice, and I'm sure that Moammar Gadhafi has a different one from Attorney General Janet Reno or the Scottish Crown Office. But if you consider that a trial is always a compromise between fairness and expediency in the search for truth, then I think that justice is possible. Scottish criminal law, no matter where it is applied, is presumably fair to defendants. After 10 years of waiting, it is pragmatic to hold the trial outside Scotland rather than to never hold it at all.
      However, there are many potential traps for the unwary. If the defendants are convicted, Libya and possibly its allies may retort that the trial was unfair from the start. If they are acquitted, many of the victims' families will be crushed. From what I've read, the evidence against these two suspects is rather flimsy, based on an unreliable eyewitness identification. It is equally if not more plausible that the true culprits had Iranian or Syrian rather than Libyan connections, or at the very least, that these Libyans were not acting alone. Therefore, a truly fair trial may result in their acquittal. In other words, while the trial may serve justice, it might not produce satisfaction.

Pamela Elaine Herbert

Karen Lee Hunt

Christopher Andrew Jones

Julianne F. Kelly

Wendy A. Lincoln

Alexander Lowenstein

Suzanne Marie Miazga


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