A return to Lockerbie and the Montreal Convention in the wake of the September 11th terrorist attacks: ramifications of past Security Council and International Court of Justice action.

• Author: Frank, Jonathan A.

1. INTRODUCTION

   Nearly thirteen years after the bombing of Pan Am Flight 103 over Lockerbie, Scotland in December, 1988, (1) the international community again faces the challenge of confronting the international legal ramifications surrounding the extradition and prosecution of alleged international state-sponsored terrorists. As has been explored in a number of previous works on the subject, United Nations Security Council actions in response to the Lockerbie bombing created significant tension between the Security Council and the International Court of Justice ("ICJ"). (2) These tension-producing actions were a response to Libya's attempted invocation of various articles of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, otherwise known as the Montreal Convention of 1971. (3)

   Generally speaking, Libya's claims were grounded in the Montreal Convention's prescription for extradition processes of individuals accused of committing acts of aviation-related terrorism, (4) as well as for adjudication in the ICJ in the case of disputes between party states arising from the Montreal Convention. (5) The Security Council invoked its Chapter VII powers of the United Nations Charter at the same time as Libya instituted proceedings in the ICJ with respect to the above and in reference to disputes with the United Kingdom and the United States. (6) Implemented at the urging of the United Kingdom and the United States, Security Council Resolutions 748 (1992), 883 (1993) and their progeny, built upon Resolution 731 (1992) and effectively bound Libya to Resolutions 748 and 883's term. These resolutions had the effect of rendering any ruling of the International Court of Justice and any further Libyan action subject to the mandates of the Security Council. (7)

   This paper will attempt to elucidate upon the United Nations role with respect to international action taken in response to the tragic terrorist attacks upon the United States on September 11th. Furthermore, this paper will attempt to provide some insight regarding the question of whether states complicit in acts of international terrorism should have the opportunity to rely on international conventions as a course of responsive action in the international legal arena; prior to Security Council or unilateral State political action initiated under the Security Council's Chapter VII authority. (8)

2. LOCKERBIE: A BRIEF HISTORY OF UNITED NATIONS INVOLVEMENT

   In the aftermath of the Lockerbie bombing, the United Nations played a significant role in facilitating the extradition of the accused Libyan terrorists for trial in a neutral state at the behest of the United States and the United Kingdom. (9) During the nearly ten-year negotiation process leading up to the extradition of the accused terrorists from Libya, the United Nations Security Council, by way of Resolutions 731, 748, 883 and 1192 (1998), acted a posteriori in a positive manner with regards to only Libya and not with regards to other states known to harbor, financially assist, or otherwise support terrorists. (10) Rather, the Security Council deferred to the United Nations Charter and General Assembly Resolutions 49/60 (1995) and 51/210 (1997) in its comparatively inert or passive historical "urgings" to other member and non-member States. (11)

   The distinction between general directives of the Security Council aimed at combating international terrorism and specific action taken (e.g., the imposition of sanctions or authorization of the use of force) in response to individual acts of international terrorism, such as Lockerbie and the September 11th attacks, is an important one insofar as attempting to discern a pattern of Security Council behavior and decision-making in response to international terrorist attacks. Security Council Resolutions 731 and 748 served to preempt Libya's lawful and timely claim for provisional measures that would have allowed for ICJ proceedings on the question of extradition in that case without the imposition upon Libya of United Nations Security Council sanctions. (12) Resolutions 883 and 1192 served to further strengthen and solidify the terms set forth in Resolutions 731 and 748. (13)

   Libya's argument to the ICJ, grounded in the Montreal Convention, plainly contended that Libya was not bound to extradite her own nationals in the absence of a bilateral extradition treaty with either the United States or the United Kingdom. (14) The adoption of United Nations Security Council Resolutions 731, 748, 883 and 1192 illustrated the shortcomings of the Montreal Convention in dealing with the extradition of state-sponsored terrorists insofar as the principle of aut dedere aut judicare. (15) The Montreal Convention simply does not address situations in which a state is complicitous in a terrorist action. (16) Furthermore, these Resolutions arguably established a precedent that the Security Council would act when necessary, and to the limits of its power, especially when such politically influential states as the United Kingdom and the United States are involved, to bypass the tenets of the Montreal Convention in situations where a State refuses to extradite her own ostensibly state-sponsored terrorist nationals for trial under the laws of the State in which the act of terrorism was carried out. (17)

   In the intervening period between the Lockerbie bombing and the eventual extradition of the accused Libyan terrorists to a neutral third-party country, Libya refused all demands from both the United States and the United Kingdom for extradition of the alleged terrorist pair who were also found to be Libyan nationals. (18) In the absence of a bilateral extradition treaty between either Libya and the United States, or Libya and the United Kingdom, Libya sought to rely on the articles of the Montreal Convention pertaining to extradition as the basis of its argument. (19) Although there is generally not considered to be any international customary law pertaining to acts of international terrorism, the Montreal Convention was, and to an extent still is, one of the primary governing Conventions of extradition of accused individuals for acts of aerial terrorism. (20)

   According to Article 7 of the Montreal Convention, in a situation in which an accused State is in possession of a terrorist accused of acting abroad, the requested State(s) must either extradite that individual to the requesting State(s), or "[s]ubmit the case to its competent authorities for the purpose of prosecution" in accordance with the appropriate laws of that state. (21) Furthermore, Article 8 of the Montreal Convention provides that signatory States may consider the Convention itself the legal basis for extradition in the absence of a bilateral extradition treaty between the requesting and the requested states. (22) As there existed no extradition treaties between either the United States and Libya or the United Kingdom and Libya at the time of the bombings, it follows that Libya had no obligation to extradite its own nationals under the Montreal Convention. (23) Apart from the Montreal Convention, which does not in and of itself establish a principle of international customary law, there exists no international law requiring a state to extradite. (24) Under well-established principles of international law, no recourse exists on behalf of the claiming state(s) for failure of the requested State to extradite unless such recourse is authorized by the United Nations Security Council against a United Nations member State. (25)

   The Convention is, however, silent on the issue of extradition of a national from his own state, where that state itself has been shown to have sponsored one of their national's alleged terrorist activities. (26) In this sense, the shortcomings of the Montreal Convention are necessarily resolved by United Nations Security Council action with the goal of combating threats against the maintenance of international peace and security in accordance with the United Nations Charter. (27) The extensive investigation surrounding the Lockerbie case led authorities to the conclusion that the terrorists responsible for the bombing were Libyan intelligence agents who had been instructed to blow up Pan Am Flight 103 by individuals directly linked to the Libyan government. (28) The United States and the United Kingdom realized this deficiency of the Montreal Convention in terms of forcing the extradition of a state-sponsored terrorist from his own country of citizenship, and pursued other avenues in an attempt to compel Libya to extradite the accused terrorists, namely through the levying of sanctions via United Nations Security Council Resolutions passed under Chapter VII authority. (29)

   Approximately two months after Security Council Resolution 731 was passed, the first such Resolution urging Libya to extradite the alleged terrorists, Libya filed suit in the ICJ seeking provisional measures to effectively delay or prohibit the implementation of sanctions by the United Nations until the matter of Libya's argument per the Montreal Convention was decided. (30) The reasoning behind the United States and the United Kingdom's strategy to seek a remedy through the Security Council was arguably founded in part on the premise established by Article 25 of the United Nations Charter, which reads: "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the Present Charter." (31) In effect, the Resolutions passed by the Security Council, in accordance with Article 25 of the United Nations Charter, preempted any injunctive action by the International Court of Justice as Libya is a permanent member of the United Nations and therefore bound to adhere to United Nations Security Council Resolutions. (32) The ICJ ultimately decided that Security Council Resolution 748 was determinative on the issues presented in Libya's...