DATE DOWNLOADED: Wed Mar 26 20:40:33 2025
SOURCE: Content Downloaded from HeinOnline
Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.
Bluebook 21st ed.
Zia Akhtar, Universal Jurisdiction, Jus Cogens, and Suppression Conventions in the
Aftermath of Lockerbie, 31 AFR. J. INT'l & COMP. L. 478 (November 2023).
ALWD 7th ed.
Zia Akhtar, Universal Jurisdiction, Jus Cogens, and Suppression Conventions in the
Aftermath of Lockerbie, 31 Afr. J. Int'l & Comp. L. 478 (2023).
APA 7th ed.
Akhtar, Zia. (2023). Universal jurisdiction, jus cogens, and suppression conventions
in the aftermath of lockerbie. African Journal of International and Comparative Law,
31(4), 478-498.
Chicago 17th ed.
Zia Akhtar, "Universal Jurisdiction, Jus Cogens, and Suppression Conventions in the
Aftermath of Lockerbie," African Journal of International and Comparative Law 31, no.
4 (November 2023): 478-498
McGill Guide 10th ed.
Zia Akhtar, "Universal Jurisdiction, Jus Cogens, and Suppression Conventions in the
Aftermath of Lockerbie" (2023) 31:4 Afr J Int'l & Comp L 478.
AGLC 4th ed.
Zia Akhtar, 'Universal Jurisdiction, Jus Cogens, and Suppression Conventions in the
Aftermath of Lockerbie' (2023) 31(4) African Journal of International and Comparative
Law 478
MLA 9th ed.
Akhtar, Zia. "Universal Jurisdiction, Jus Cogens, and Suppression Conventions in the
Aftermath of Lockerbie." African Journal of International and Comparative Law, vol.
31, no. 4, November 2023, pp. 478-498. HeinOnline.
OSCOLA 4th ed.
Zia Akhtar, 'Universal Jurisdiction, Jus Cogens, and Suppression Conventions in the
Aftermath of Lockerbie' (2023) 31 Afr J Int'l & Comp L 478
Please
note: citations are provided as a general guideline. Users should consult their
preferred citation format's style manual for proper citation formatting.
Provided by:
Harvard Law School Library
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
UNIVERSAL JURISDICTION, JUS COGENS, AND
SUPPRESSION CONVENTIONS IN THE AFTERMATH OF
LOCKERBIE
ZIA AKHTAR*
I. INTRODUCTION
The principle of international law allows the trial of offenders in domestic
jurisdiction for serious crimes committed in foreign States. This applies to nonterritorial jurisdiction where sovereign States may cooperate by extraditing or
prosecuting the alleged offenders. In Her Majesty's Advocate v. Abdelbaset Ali
Mohamed Al Megrahi and Al Amin Khalifa Fhimah,1 a Scottish Court tried two
Libyan officials for blowing up the UK-US-bound Pan Am flight 103, on 21
December 1988, over Lockerbie for the loss of 270 passengers. This was after
they were extradited and then indicted for breaching the Montreal Convention
for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 1971.2
This concerns universal jurisdiction and whether the criminal suspects can be tried
under domestic jurisdiction if extradition is refused and the accused is prosecuted
for breach of jus cogens norms.
The principle allowing a State to grant extradition if the crime is not recognised
in its jurisdiction is an obligation binding on all States if the offence is serious
enough under the rules of customary international law. 3 This applies to cases
* LLB (Lon), LLM (Lon), Gray's Inn, PhD. candidate Coventry University.
1 No. 1475/99 (31 January 2001) High Court of Judiciary.
2 Multilateral Convention for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation (with Final Act of the International Conference on Air Law held under the
auspices of the International Civil Aviation Organization at Montreal in September 1971).
Concluded at Montreal on 23 September 1971, No. 14118, available at <www.un.org/en/ec/etc/
docs/conventions/conv3.pdf>.
3 See, e.g., General Assembly resolution 2840 (XXVI) of 18 December 1971 entitled 'Question
of the Punishment of War Criminals and of Persons who Have Committed Crimes Against
Humanity,' General Assembly resolution 3074 (XXVIII) of 3 December 1973 on the 'Principles
of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons
Guilty of War Crimes and Crimes Against Humanity,' and principle 18 of Economic and Social
Council resolution 1989/65 of 24 May 1989 entitled 'Effective Prevention and Investigation
of Extra-legal, Arbitrary and Summary Executions.' The Principles of 24 May 1989 endorse
universal jurisdiction over persons suspected of extra-legal executions. (It actually endorses the
extradite-or-prosecute approach - but since it purports to apply to all states, it effectively supports
African Journalof Internationaland ComparativeLaw 31.4 (2023): 478-498
Edinburgh University Press
DOI: 10.3366/ajicl.2023.0462
© Edinburgh University Press
www.euppublishing.com/ajicl
478
Jurisdiction,Jus Cogens, Suppression Conventions
479
where there is an extradition treaty between two or more countries which requires
certain internationally agreed procedures to be followed to convict those in
breach of international crimes. This may happen when two countries sharing
similarities in political and legal systems without an extradition treaty may accept
the repatriation of nationals under these circumstances. 4
The principle of Universal Jurisdiction allows any State to prosecute a person
for the suspected commission of certain offences (e.g., piracy, war crimes, etc)
and, crucially, without any need other than the presence of the accused within
its jurisdiction.5 International crimes such as; slavery, slave trade, genocide,
war crimes, crimes against humanity and torture are considered trialable under
universal jurisdiction because of the moral heinousness of the offences. 6 However,
the right to prosecute the accused under the rules of universal jurisdiction does not
need a correlation between the political and moral conduct of the accused and only
the facts associated with the crime can be determined.7
There is a treaty-based version of universal jurisdiction which is secondary in
application because of its foundation in 'multi-lateral treaties that oblige States to
criminalise certain forms of conduct and provide legal assistance to other States
to suppress treaty violations of international concern.'" This is predominantly
impacted in the transnational elements in the commission of offences or because
States acting alone are unable to address grounds that permit an indictment on the
basis of the presence of the accused in the state's jurisdiction. In the Suppression
Conventions, the treaty provisions only operate between the parties to ensure that
when prosecuting a national of a non-party state on a universal basis, liability can
be determined after extradition to the state that is the victim.
4
5
6
7
8
universal jurisdiction for this offence.) Res. 2840 is about state cooperation, including extradition
to states where crimes were committed and the like, not referring to universal jurisdiction.
Res. 3074 only says that persons committing core international crimes shall be 'subject to
investigation' (seemingly by any state), and shall also subject to 'tracing, arrest, trial.' It goes
on to say, however, that, 'as a general rule,' trial and punishment are to be by the state in which
the acts took place - with other states having the task of cooperating by way of extradition.
The inception of its framework was in the General Assembly adopting 'Principles of International
Co-operation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War
Crimes and Crimes Against Humanity' in 1973 which declared that all states were to cooperate
in the prosecution of persons guilty of war crimes and crimes against humanity. Adopted by
General Assembly resolution 3074 (XXVIII) of 3 December 1973.
In the Declaration of the High-level Meeting of the General Assembly on the Rule of Law
at the National and International Levels, the Heads of State and Government and Heads of
Delegation attending the meeting on 24 September 2012 committed themselves to 'ensuring
that impunity is not tolerated for genocide, war crimes, crimes against humanity and for
violations of international humanitarian law and gross violations of human rights law, and that
such violations are properly investigated and appropriately sanctioned, including by bringing
the perpetrators of any crimes to justice, through national mechanisms or, where appropriate,
regional or international mechanisms, in accordance with international law...'
Yves Beigbeder, International Justice Against Impunity: Progress and New Challenges
(Martinus Nijhoff 2005) pp. 48-53.
Eugene Kontorovich, 'The Piracy Analogy: Modern Universal Jurisdiction's Hollow
Foundation,' 45 Harvard International Law Journal (2004) 183.
Neil Boister, 'Human Rights Protections in the Suppression Conventions,' 2(2) Human Rights
Law Review (2002) 199-227, available at <https://doi.org/10.1093/hrlr/2.2.199>.
480
Zia Akhtar
A trial in a foreign court can arise when the act in question does not give rise to
universal jurisdiction and the suspects cannot be tried in the courts of the offending
State. It may be argued that a universal jurisdiction system operates within the
limited circle of treaty parties and there are 'about 60 treaties which concern
extradition or prosecution.' 9 The issue of trying a person under the Suppression
Conventions in this instance has to be within the binding rules of international
customary law and the violation of them can lead to miscarriages of justice.
This article considers the principle of universal jurisdiction, jus cogens, and
the liability for breach of a Suppression Convention invoked in Lockerbie that led
to the trial of the Libyan officials under Scottish jurisdiction. The road map will
be as follows: in Part II, jus cogens and universal jurisdiction will be considered
as separate principles of international law; in Part III, the concept of Enforced
Compliance of aut dedere aut judicare (i.e., extradition or prosecution) will be
considered; in Part IV, the impact on contemporary events and legal principles
binding states in multilateral Conventions will be examined; and Part V will
evaluate the Suppression Conventions and the principle of Complementarity, and
if the ambit of these treaties should be extended in order for prosecution to be
carried out in domestic courts instead of extradition.
II. JUS COGENS AND UNIVERSAL JURISDICTION
A. Customary International Law and Treaty
The doctrine of universal jurisdiction relates to serious crimes under international
law and the specific offences which fall under the category of jus cogens are
defined in Art. 53 of the Vienna Convention on the Law of Treaties 1969 which
states that:
A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of the
present Convention, a peremptory norm of general international law
is a norm accepted and recognized by the international community of
States as a whole as the norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general
international law having the same character.10
In the treaty the
interchangeably.'"
'term jus cogens
and peremptory norms
are used
.
9 Multilateral conventions are relevant for the International Law Commission on the topic: 'The
Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare),' Study by the Secretariat, 18
June 2010, UN Doc.A/CN.4/630, para. 4.
10 Vienna Convention on the Law of Treaties, 23 May 1969. Entered into force on 27 January 1980.
331
United Nations, Treaty Series, vol. 1155, p.
11 The terms 'jus cogens' and 'peremptory norm' are used interchangeably. See D. Costello,
Legal Consequences of Preemptory Norm, in InternationalLaw (Cambridge University Press
2017) p. 11.
Jurisdiction,Jus Cogens, Suppression Conventions
481
Jus cogens is a norm conceived to be so 'fundamental that it even invalidates
rules drawn from treaty or custom' and it 'presupposes an international public
order sufficiently potent to control states that might otherwise establish contrary
rules on a consensual basis.' It is defined as a peremptory norm because it has
been accepted by the terms of customary international law and is adopted in the
national legal order to challenge the unjust circumstances where the individual
has suffered gross abuse of their rights, such as torture. The concept implies
that a State's jurisdictional immunity is terminated when it violates human rights
protections that are considered peremptory norms. 13
This is a mirror image of Art. 38, paragraph 1(b) of the ICJ Statute which states:
'The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply: international custom, as evidence of a
general practice accepted as law.'
Article 53 (like Art. 38, para. 1(b)) is concerned with the existence of law as a
matter of fact and inquiry under Art. 53 is whether a rule of international law is
jus cogens or not.1
To establish the existence of a rule of customary international law, there has
to be considerable State practice and understanding that practice is required
as a matter of law (opinio juris).1 5 The most recent analysis of State practice
by the chairman of the Working Group of the International Law Committee,
Kriangsak Kittichaisaree, addressed the issue of obligation to extradite or
prosecute. Kittichaisaree revealed that 'although a large number of States provide
for universal jurisdiction for core crimes only about 25 States implement in their
national legislation the obligation to extradite for various crimes.' There are eight
States in at least 11 cases that have asserted the 'existence of the obligation to
extradite or prosecute outside treaty law for various crimes varying from ordinary
crimes to war crimes, genocide, crimes against humanity, torture and enforced
disappearance.' However, there are also national courts of four states dealing with
prosecution of jus cogens cases in lieu of extradition of nationals. 16
While this perspective acknowledges that this practice is not universal, it
implies that it is persuasive and extensive. It is apparent that this obligation,
.
12 Mark W. Janis, An Introduction to International Law, 4th edition (Martinus Nijhoff 2003)
pp. 62-63.
13 See, for example, Al Shimari, et al. v. CACI Premier Technology, Inc., No. 1:08-cv-827
(LMB/JFA), Opinion of 22 March 2019, 2019 WL 1320052 (E.D. Va. 2019), at p. 26.
14 See T. Weatherall, Jus Cogens: InternationalLaw and Social Contract (Cambridge University
Press, 2015), at pp. 6-7 ('Although the Vienna Convention concerns the law of treaties and binds
only signatories ... Article 53 reflected a concept with legal effect beyond the treaty context...
The contemporary practice of international and domestic judicial organs, to refer to Article 53
for any consideration of jus cogens, is consistent with this view of a concept existing outside the
treaty context'); E. Santalla Vargas, 'In Quest of the Practical Value of Jus Cogens Norms,' 46
Netherlands Yearbook of International Law 2015 (2016) 211-240, at pp. 223-224 ('However,
the potential effects of jus cogens not only expand beyond treaty law but they even appear more
significant in situations that are not concerned with treaty law').
15 Ibid.
16 Informal working paper by Kriangsak Kittichaisaree, Working Group on the Obligation to
Extradite or Prosecute (Aut Dedere Aut Judicare), 5 April 2013 (Chairman's informal working
paper).
482
Zia Akhtar
particular to core crimes of jus cogens, has become a rule of customary
international law even if it is not by universal consensus. Therefore, this obligation
does not bind States that have been persistently objecting to the customary
obligation while it was in the process of emerging."
The ICJ has held in the Arrest Warrant case that it distinguishes the
jurisdictional immunities of States and their courts competence and
that the rules governing the jurisdiction of national courts must be
carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while
absence of immunity does not imply jurisdiction. Thus, although
various international conventions on the prevention and punishment
of certain serious crimes impose on States obligations of prosecution
or extradition, thereby requiring them to extend their criminal
jurisdiction, such extension of jurisdiction in no way affects
immunities under customary international law... These remain
opposable before the courts of a foreign State, even where those courts
exercise such a jurisdiction under these conventions. 18
The ICJ statement implies the rule of international law, that a State has
immunity from prosecution, still applies and its actions cannot be challenged in
a domestic court. This is regarded as a fundamental principle in which the acts
committed by a foreign State cannot be invoked in the national court because it has
immunity under the doctrine of State immunity. The international customary law
upholds this doctrine under the community of States that respect it as a governing
principle. The ICJ has formulated the jus cogens exception that shall not dilute the
principle of State immunity and extra-territorial exemption where tort acts have
been committed and shall be subject to its jurisdiction. In Germany v. Italy, 19 the
ICJ considered the territorial tort exception to State immunity based on Italy's
contention that the judgments in its domestic courts ordered Germany to pay
compensation for its acts during the war and occupation.
To establish the customary character of the tort exception under international
law, Italy referenced Article 11 of the European Convention on State Immunity of
1972 and Article 12 of the UN Convention on Jurisdictional Immunities of States
of 2 December 2004. The ICJ rejected Italy's claims for damage by Germany in
the Second World War and State immunity as part of customary international law.
The fact that the underlying acts by the German State were violations of jus cogens
did not deprive Germany of its jurisdictional immunity.
The ICJ could not find any supporting evidence in treaty law or international
customs for Italy's claims and rejected the underlying acts as violations of jus
cogens, denying Germany immunity. The judgment was based on, firstly, the
17 Ibid.
18 Arrest Warrant of 11 April 2000, Congo, The DemocraticRepublic of the v. Belgium, ICJ, 121,
para. 59.
19 JurisdictionalImmunities of the State (Germany v. Italy: Greece intervening) Judgment, ICJ.
Reports 2012, p. 99.
Jurisdiction,Jus Cogens, Suppression Conventions
483
facts indeed being serious violations of international law and it still upheld the
principle of State immunity and emphasized that this does not imply the 'the
possibility to deny individual immunity.' 20 Secondly, the underlying facts of 'jus
cogens character does not conflict with the international customary law principle
of State immunity. The former addresses the (un) lawfulness of certain conduct,
while the latter concerns procedural, jurisdictional issues.' Thirdly, the Court
considered that 'it cannot accept Italy's contention that the alleged shortcomings
in Germany's provisions for reparation to Italian victims entitled the Italian courts
to deprive Germany of jurisdictional immunity.' 2 2
This resulted in the ICJ overruling the claims despite affirming that crimes
against humanity and war crimes were violations ofjus cogens. These rules did not
prevail over immunity of States, however, the Court confirmed the jurisdictional
immunity of States. The ruling absolved the responsible State and its actors in
the commission of acts that caused material damage to the occupied state because
they did not override the long-established doctrine of State immunity.
B. Principles Inherent in Suppression Conventions
The nexus between the jus cogens norms and Suppression Conventions can be
established by an analysis of the framework of treaties that prohibit the breach
of international humanitarian law. There is a connection between the protection
of human rights norms and the objectives of Suppression Conventions which can
be discerned from the non-refoulement conventions that prevent repatriation and
are included in international legal documents.2 3 The mechanism is the principle
of non-refoulement that is often referred to in the context of refugee protection
given its codification in Article 33 of the Convention Relating to the Status of
Refugees and in regional refugee law instruments. Over the past decades, however,
the principle has been included in human rights treaties, such as; the Convention
Against Torture and Other Cruel Inhuman; Degrading Treatment or Punishment
(Article 3); the International Convention for the Protection of All Personsfrom
Enforced Disappearance(Article 16); and in regional human rights instruments.
In all its applications, the right of non-refoulement, like all jus cogens norms, is
a principle of customary international law and exists outside of treaties and is
overriding making it binding and judicially enforceable.'
As an example, the International Convention on the Suppression and
Punishment of the Crime of Apartheid demonstrates how jus cogens norms are
20
21
22
23
Paras 81-91.
Paras 92-97.
Para. 101.
Report of the U.N. High Commissioner for Refugees, 40 U.N. GAOR Supp. (No. 12) at 6, U.N.
Doe. A/40/12 (1985) ('The principle [of non-refoulement] requires that no person shall be subject
to such measures as rejection at the frontier... or compulsory return to any country where he may
have reason to fear... serious danger resulting from unsettled conditions or civil strife.').
24 Karen Parker, 'Jus Cogens: Compelling the Law of Human Rights,' 12 Hastings Int'l & Comp.
L. Rev. 411 (1989). Available at <https://repository.uchastings.edu/hastings_international_
comparative_law_review/voll2/iss2/4> (accessed 28 March 2021).
484
Zia Akhtar
integral in Suppression Conventions. The General Assembly moved a resolution
that the apartheid regime in South Africa 'has few parallels in history for its
inhumanity.' These treaties of permanent importance are part of international law
that seeks to override the injustices that exist in the domestic legal orders and have
emerged as a multilateral system of obligations signed to by states. The impact of
these treaties is to provide a platform in international law whereby jus cogens
norms can be implemented through the suppression of acts that are considered
abhorrent by a majority of States.
III. ENFORCED COMPLIANCE OF AUT DEDERE AUT JUDICARE
A. Circumventing the Lack of Extradition Treaty
The debate surrounding the requirement of universal jurisdiction and extradition
was commenced by the 'Lockerbie incident' of 21 December 1988 when a Pan
American aircraft (flight 103) carrying 271 passengers and crew exploded over
the village of Lockerbie in Scotland. The Libyan government was accused of
breaching the Montreal Convention for the Suppression of Unlawful Acts Against
the Safety of Civil Aviation 1971 (The Montreal Convention)26 and its insistence
that it should indict the accused in its own courts was refused.
The airline and most of the passengers were American and there were also 11
people killed on the ground. During the investigations, the British and American
governments began making a series of allegations against the officials of the
Libyan government and on 14 November 1991, a Grand Jury of the District of
Columbia indicted two Libyan nationals, al-Amin Khalifa Fhimah and Abdelbaset
Ali al-Megrahi, for homicide. The Lord Advocate of Scotland issued warrants for
their arrest for conspiracy to murder and offences under both the Criminal Justice
Act of 1988 and the Aviation Security Act of 1982 ss. 2(1) and 2(5).
The Libyan authorities stated that they were parties to the Montreal Convention
along with the US and the UK. 28 The Libyan government sent a communication to
the Lord Advocate of Scotland requesting bilateral cooperation in the investigation
and sought information from all related authorities to review the evidence. Its
delegates travelled to Scotland to investigate the air crash and the involvement
of their officials under Article 7 and 11(1) of the Montreal Convention.2 9 The
Libyan government agreed to try the two officers who had been charged in the US
under its own penal laws and it wrote two letters to the British government and
25 G.A. Res. 31/6,31 U.N. GAOR Supp. (No. 39) at 16, U.N. Doc. A/31/39 (1976).
26 Multilateral Convention for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation (with Final Act of the International Conference on Air Law held under the
auspices of the International Civil Aviation Organization at Montreal in September 1971).
Concluded at Montreal on 23 September 1971, No. 14118, available at <www.un.org/en/ec/
etc/docs/conventions/conv3.pdf> (accessed 5 February 2020).
27 Statement Issued by the Government of the United States on 27 November 1991, Regarding the
Bombing of Pan Am 103, U.N. Doc. S/23308 (1991).
28 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23
September 1971, 974 U.N.T.S. 177.
29 3. 4. 5. 6. S.C. Res. 883 (1993) 11 November 1993.
Jurisdiction,Jus Cogens, Suppression Conventions
485
identical letters to the US government stating their intention to try the accused to
meet the obligations under Article 5 of the Convention. Article 5(2) permits the
trial in the country of origin if the suspects are not being extradited. The Libyans
also objected that by refusing to cooperate in Libya's own domestic judicial
investigation in submitting any evidence the US was not meeting its obligations
under Article 11(1).30
The Libyan Code of Criminal Procedures Articles 490-510 provide the right
to prosecute nationals when found on national territory, in lieu of extradition or
prosecution outside its jurisdiction.3 1 The Libyan Penal Code, Article 6, declares
that Libya has the right to prosecute Libyan nationals for crimes committed in
foreign territory if and when they return to the national jurisdiction. The jurist's
perspective is that the Libyans had satisfied the parties according to international
law by agreeing to try the officials having fulfilled the step required for the
prosecution of the accused. 32
The Libyans received no formal response from the Lord Advocate of Scotland
or from the authorities in the US. On 27 November 1991, the governments
of both the US and the UK issued a joint declaration demanding that Libya
surrender for trial those charged with the crime, accept responsibility for the
actions of its officials, disclose all information of this crime, and allow complete
access to the evidence and pay appropriate compensation. 33 The US and the UK
drafted a resolution in the UN Security Council while Libya sought arbitration
according to Article 14(1) of this Convention.3 4 However, on 21 January 1992, the
UN Security Council (UNSC) adopted resolution 731/1992 calling on Libya to
cooperate in the implementation of the resolution and to commit itself to renounce
and condemn terrorism. 35 There was a further UNSC resolution that imposed
economic sanctions on Libya if they failed to satisfy the demand to surrender
the indicted suspects for trial.3 6
Aoude argues,
there were no treaties of extradition between Libya and the UK or
US, and Libya was not bound by any multi- or bi-lateral treaty to
extradite its citizens to these two States whose citizens had died in the
Lockerbie crash. 37 However, the Libyan government had ratified the
30 Article 11(1) 'Contracting States shall afford one another the greatest measure of assistance in
connection with criminal proceedings brought in respect of the offences. The law of the State
requested shall apply in all cases.'
31 Article 493, section A.
32 M. Plachta, 'Aut Dedere Aut Judicare: An Overview of Modes of Implementation and
Approaches,' 6 Maastricht Journal of European and Comparative Law (1999) 331-365;
M. Cherif Basstouni and Edward Wise, The Duty to Extradite or Prosecute in International
Law (Martinus Nijhoff 1996) 3-70.
33 See UN Doc. A/46/825.
34 S/23306; 31 December 1991.
35 S.C. Res. 731 (1992) 21 January 1992.
36 S.C. Res. 738 (1992) 31 March 1992.
37 Safia Aoude, 'The Lockerbie Legality, A Critical Analysis of International Law in
Connection with the Lockerbie Case', 11 June 1997, available at <http://plane-truth.com/Aoude/
geocities/academic.html> (accessed 10 May 2017).
486
Zia Akhtar
Montreal Convention and it argued that its legal actions in relation to
this case had been taken in accordance with that Treaty and these were
premised upon Article 5 Paragraph 2.38
The Libyan authorities gave assurances to prosecute the accused under the
Libyan criminal law and Article 6 Paragraph 1 of the Montreal Convention. The
Libyan government had also ratified the Treaty for Rendering Criminals of 1952,
and Article 7, which declares that a State can choose to refuse an extradition claim
from the requesting State, if the subject for extradition is a citizen of or a national
of the requested State. The State may then prosecute the accused or proceed to
extradite, that is, aut dedere aut judicare.
Under Article 7 of the Montreal Convention, the Libyan government carried
out a preliminary inquiry into the case and its argument was that the principle aut
dedere aut judicare is incorporated in this article. 39 Under this legal instrument,
the State that has custody of an offender suspected of having violated the laws
of Civil Aviation is able to choose whether to extradite or indict the accused for
national/local prosecution. The Libyans claimed that the sanctions carried out by
the US and the UK to coerce Libya into extradition were a violation of Article
8 Paragraph 2 of the Convention. Under Article 11 Paragraph 1, the Libyan
authorities sought relevant judicial assistance from the US and the UK to take
the process further and to accept its actions already taken since the Convention
stipulates that 'the involved parties shall afford one another the greatest measure
of assistance ... in the criminal proceedings.'
Article 14, Paragraph 1 of the Convention allowed the Libyan authorities to
request arbitrational measures from the UK and the US, since the parties disagreed
upon the actual application and interpretation of the Convention. Further, under
the same provision Libya later chose to bring the case to the ICJ since the issue of
arbitration was rejected by the UK and the US.40 However, they argued that Libya
was not proceeding correctly, and their condition was a six-month waiting period,
but the Libyans had not accepted this duration before taking the case to the ICJ.
The Libyan argument was that until the question came before the UNSC the issue
was a simple criminal case interacting with the rules of international criminal law.
This was the reason why Libya presented the argument for an interpretative ICJ
38 Ibid.
39 Michael Plachta, 'The Lockerbie Case: The Role of the Security Council in Enforcing Principle
of Aut Dedere Aut Judicare,' European Journal of InternationalLaw (2001) 125-140 at p. 127,
available at <http://www.ejil.org/pdfs/12/1/499.pdf> (accessed 10 January 2018).
40 The federal government recognises the principle of aut dedere autjudicare, which indicates that
they in general would be expected to accept a refusal to extradite if the requested state prefers
to prosecute instead of, and that the US would not allow for any derogation of that principle,
unless it has been modified by a subsequent norm of general international law having the same
essence or character. In Valentine v. US ex.-rel. Neidecker 299, US, (1936) the Supreme Court
of the US did rule, that the option to extradite does not suffice to surrender an accused national
to foreign power. The court noted that the formal legal requirements must be met as well. Paras
8-9. In Rauscher v. United States 119 US 407 (1886) the Supreme Court expressly stated the use
of extradition without a treaty 'not being among those obligations of one government towards
another...' and the principle of aut dedere autjudicare as 'resting upon established principles
of international law'. At 411-12.
Jurisdiction,Jus Cogens, Suppression Conventions
487
ruling that it could try the accused within its own jurisdiction subject to available
evidence.
The Libyan government applied to the ICJ stating that as the governments of
the US and the UK had failed to respond it had the right to apply to the Court
for the implementation of article 14(1) of the Montreal Convention.41 The claim
stated the ICJ should declare that Libya had complied with the Convention and for
an order for provisional measures to protect its rights under international law.42 On
15 April 1992 economic, political, and technical sanctions were enforced against
Libya which consisted of an air-traffic ban, a financial freeze of Libyan capital
abroad, breaking diplomatic contact, and other economic-trade blockades. 43 The
Libyans applied for a preliminary ruling by the ICJ, within the context of the
Montreal Convention, and invoked the grounds that it does not compel a referral
to any international body. It is pertinent to consider the issues raised in a breach of
a horizontal treaty that makes for binding obligations, that the Libyan government
invoked for a declaration that it had complied with the Convention and for an order
for provisional measures to protect its rights under international law."
In the Case Concerning Questions of Interpretation and Application of the
1971 Montreal Convention Arising from the Aerial Incident at Lockerbie case
summary (Libya v. United States)45 the Libyan government argued that under
the Convention for the Suppression of Unlawful Acts against Civil Aviation
(the Montreal Convention) (974 U.N.T.S. 177 (1971)), it could either extradite
or prosecute the suspects themselves. It had elected to prosecute the suspects
under its own jurisdiction for the offence of blowing up Pan am 103 with the
death of 270 on board. The US and the UK contended that the UNSC had, under
Resolutions 731/748, compelled Libya to extradite the bombing suspects on pain
of sanctions under its coercive powers as detailed in Chapter VII of the United
Nations Charter. 46
The ICJ rejected the US argument based on Article 14, paragraph 1, of
the Montreal Convention, to decide on the lawfulness of actions which were
41 Article 66, Procedures for Judicial Settlement, Arbitration and Conciliation. If, under Paragraph
3 of Article 65, no solution has been reached within a period of 12 months following the date
on which the objection was raised, the following procedures shall be followed: (a) Any one of
the parties to a dispute concerning the application or the interpretation of Article 53 or 64 may,
by a written application, submit it to the International Court of Justice for a decision unless the
parties by common consent agree to submit the dispute to arbitration.
42 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), provisional
Measures, Order of 14 April 1992, ICJ Reports 1992 at 3.
43 Security Council resolutions 731 and 748.
44 The US is a signatory to the 1971 Montreal Convention for the Suppression of Unlawful Acts
Against the Safety of Civil Aviation. Both the US and the UK are two of the main driving forces
behind the making of the Montreal Convention, thus implicating that there must have been a
political as well as a legal need to cope with those situations described in the contents of the
convention. The underlying message of the Montreal Convention is that the mere use of bilingual treaties for such situations (i.e., hijacking, bomb on planes etc.) in the past have not been
a sufficient way of enabling justice. Available at <https://treaties.un.org/doc/Publication/UNTS/
Volume%20974/volume-974-I-14118-English.pdf>.
45 1992 I.C.J. Rep. 114 (April 14).
46 Article 39 allows the UNSC to take enforcement actions to restore 'international peace.'
488
Zia Akhtar
in conformity with international law because of the adoption of the UNSC
resolutions. The only dispute which existed from that ruling was between Libya
and the Security Council; this, manifestly, would not be a dispute falling within
the terms of Article 14, Paragraph 1, of the Montreal Convention, and thus not
one which the ICJ was willing to adjudicate.47 The Security Council resolutions
were adopted after the filing of the Libyan submissions and in accordance with its
established jurisprudence, the ICJ had a continuing jurisdiction once established
concerning the interpretation or application of the Montreal Convention. 48
The Court made three separate points; (i) that the SC resolutions were outside
its judicial review powers, (ii) the objection to merits-based jurisdiction raised by
the US on the basis of the alleged absence of a dispute between the Parties was
rejected, and (iii) the Court had jurisdiction to hear the disputes between Libya
and the US as to the interpretation or application of the provisions of the Montreal
Convention. 49 The ICJ interpreted the objection raised by the US to:
not to proceed to judgment on the merits, which would immediately
terminate the proceedings and the decision establishing that the rights
claimed by Libya under the Montreal Convention are incompatible
with its obligations under the Security Council resolutions; and, on
the other hand, a decision that those obligations prevail over those
rights by virtue of Articles 25 and 103 of the Charter.5
The ICJ concluded that if it were to decide on the application to dismiss by the
US it would, as a matter of course, be ruling on the merits of the case. This was
because of the provisions under Article 79 of the Rules of Court. The application
by Libya was admissible, on the ground that it is determined as of the date of
filing of a claim with the result that SC resolutions adopted subsequently are
of no relevance to admissibility. The US submission objecting to the admissibility
of the court to conduct proceedings in this case was circumvented by the
adoption of the UNSC resolution which was successful in persuading the Court to
not rule on the merits of the case.
B. Proceedings under Scottish Jurisdiction
The UK expressed its intention to extradite the two Libyan suspects under
the Extradition Act 1989 which does not require a treaty between the states.
British law, as with the legal procedures of the US, provides the option of
special extradition arrangements in the case of a particular individual if no
treaty or convention exists based on the Extradition Act, Part V which deals
with extradition applications in relation to international cases. Part V, Article 22,
regarding the extension of purposes of extradition for offences under acts giving
47 Paras 33-35.
48 Paras 36-37.
49 Paras 39-44.
50 Paras 45-50.
Jurisdiction,Jus Cogens, Suppression Conventions
489
affect to international Conventions and treaties, where the UK is a signatory.
Part V, Article 24, deals especially with extradition in cases of terrorism also
on the international level. The Extradition Act is also applicable in the Scottish
jurisdiction where the extradited Libyans were to be tried."
Under the Montreal Convention, Libya could claim the right to try the suspects
on its own territory. There was an independent expert appointed by the Secretary
General of the United Nations on the Scottish judicial system to evaluate the
potential fairness of the trial." The location of the Court was Camp Zeist, a
disused former NATO military base in the Netherlands where there was a special
sitting of the High Court of Justiciary, the highest Court of Appeal under Scots
law.53 There was to be a panel of three Scottish judges to adjudicate without a jury
in the trial of the two Libyans accused. 4
51 The nonaligned Committee of Legal Experts on UN Sanctions Against Libya issued a Statement
on the Security Council resolution of 28 August 1998 concerning the trial of the suspects in the
Netherlands the salient points of which were the Committee of Legal Experts on UN Sanctions
Against Libya, in a declaration dated 3 September 1998, concerning Security Council resolution
1192 (1998):
'The Scottish legal system is undoubtedly up to international standards of due process and
fair trial. There is no reason to doubt the report (Doc S/1997/991) of the independent experts
appointed by the Secretary-General of the United Nations on the Scottish judicial system.
The real issue is not whether Scottish law is applied or not, but whether a tribunal exclusively
consisting of Scottish judges can meet the requirement of impartiality. ... The two Libyan
suspects have already been publicly convicted in the United States and in the UK in violation
of basic requirements of due process of law and the presumption of innocence. Under the
present circumstances, it is hard to see how Scottish judges should be completely independent
of this public conviction... Only an international composition of the tribunal could provide
remedy to this serious problem of fairness and impartiality.'
The IPO Committee further stated that 'a criminal tribunal on this case should either be
international in its composition or should operate in an international framework such as that
of the International Court of Justice. The procedural details should be worked out on the
basis of the Statute of the International Court of Justice and not through bilateral agreements
between the governments of the UK and the Netherlands as stipulated in Art 3 of the
Security Council resolution. The undersigned regrets to admit that, contrary to his hopes at
the beginning of the trial in May 2000, the above-expressed reservations -in the formulation
of which he had participated as coordinator of the Committee of Legal Experts - were proven
justified in the course of events.'
52 Doc S/1997/991; See also the initial Memorandum of the International Progress Organization
on the legal aspects of the Lockerbie dispute was circulated as official document of the Security
Council and the General Assembly (Doc A/46/886, S/23641 of 23 February 1992).
53 See Fraser Davidson, Evidence, in Lockerbie Trial Briefing Handbook 27 (John P. Grant ed.,
2000) [hereinafter Lockerbie Handbook] (noting that even with the standard of proof being
beyond a reasonable doubt, 'it is a peculiarity of the Scottish system that no-one may be convicted
without corroboration'). 'That is to say that there must be evidence from more than one source to
the essential elements of a crime.' Id. Moreover, in addition to 'guilty' and 'not guilty' verdicts,
the verdict of 'not proven' may be given in Scottish criminal trials. Id. at 17. It is the equivalent
of an acquittal. Ibid.
54 An early decision was taken that the prosecution would, so far as possible, be conducted
in exactly the same way as any other prosecution in Scotland. The case was precognosced,
prepared, and presented in court the same way as any other case. The principles and values
of independence, impartiality, and professionalism followed in the trial were no different to
those followed by the prosecution in any trial in Scotland.' Colin Boyd, Independence and
Professionalism, Update: Lockerbie Special (Crown Office and Procurator Fiscal Service),
March 2001, at 8.
490
Zia Akhtar
In HerMajesty's Advocate v. AbdelbasetAli Mohamed al-MegrahiandAl Amin
Khalifa Fhimah,5 the accused, Abdelbaset Ali Mohmed al-Megrahi and Al Amin
Khalifa Fhimah, faced an eight-month-long trial which featured the testimony of
235 witnesses and the admission of thousands of pieces of documentary evidence.
The case ultimately turned on just four key pieces of evidence recovered from the
wreckage of Pan Am 103 in Scotland, one vital document supplied by Germany,
and four crucial witnesses from the US, Switzerland, Malta, and Sweden. The
accused were extradited for the purpose of the trial which meant that the principle
of aut dedere aut judicare was enforced despite the possibility of trial by the
State whose nationals they were and which had signed the Montreal Convention.
Michael Scharf elucidated the central issues at the trial by distinguishing
'a computer printout of baggage tracking information for Frankfurt airport at
the time the Pan Am feeder flight was being loaded and it was linked to an
unaccompanied bag that had been transferred from Flight KM180 from Malta to
Pan Am 103A.' 56 The Court determined that the prosecution had not proved how
this suspicious suitcase had been placed on board KM180 and that represented a
significant flaw in the Crown evidence.
The Court found one of the two Libyan defendants, Al Amin Khalifa Fhimah,
was not guilty but returned a murder conviction against al-Megrahi based on its
finding that he was proved to be a Libyan intelligence officer 'of fairly high rank.'
The Court did not indicate his seniority of rank nor did it rule out the possibility of
another country being involved in the bombing plot.57 Al-Megrahi's lawyers filed
a notice of appeal which argued that the court's equivocal findings did not amount
to proof of guilt beyond reasonable doubt. The inference was that it was a close
decision with
the three judges acknowledging that the prosecution's case had
'uncertainties and qualifications' and that key witnesses had
repeatedly lied. Indeed, portions of the judgment read as though the
text had been drafted for a 'not proven' verdict, which is used under
Scottish law when the court is convinced of guilt, but the evidence
does not rise to the level of 'beyond reasonable doubt. 58
C. Trial Proceedings on Camera
In June 2007 more than six years after the first trial the Scottish Criminal Cases
Review Commission (SCCRC) referred the case for a possible miscarriage of
55 No. 1475/99, (31 January 2001) High Court of Judiciary: opinion of the Court delivered by Lord
Sutherland in causa Her Majesty's Advocate v AdbelbasetAli MohamedAl Megrahi and Al Amin
Khalifa Fhimah, Prisoners in the Prison of Zeist, Camp Zeist (Kamp van Zeist), The Netherlands.
56 Michael Scharf, 'The Lockerbie Trial Verdict,' 2(6) American Society of International
Law Journal(2001), available at <https://www.asil.org/insights/volume/6/issue/2/lockerbie-trialverdict> (accessed 19 September 2019).
57 Michael Scharf, 'Lockerbie Model of Transfer of Proceedings', in InternationalCriminal Law
and Bilateral Enforcement, Edited by M. Cherif Bassiouni. (2008) p. 524-525.
58 Ibid.
Jurisdiction,Jus Cogens, Suppression Conventions
491
justice. 59 It referred al-Megrahi's case back to the appeal court for a review which
allowed the Libyan authorities to claim that there should be repatriation of the
prisoner which would be the solution to the problem of any possible miscarriage.
During the process of the appeal, the UK and the Libyan government signed
the Prisoner Transfer Agreement (PTA) on 17 November 2008. Its ratification in
2009 allowed al-Megrahi to apply for transfer where the 'offence involved would
constitute a criminal offence in the other jurisdiction; where the judgment is final;
and where the person concerned has at least six months of the sentence left to
serve. A transfer requires the consent of both states.' 60
There are criticisms from the international jurists of the trial proceedings
carried out under the auspices of the Scottish judicial system. Hans Koechler
argues,
this dilemma makes it all too obvious that the structural problem
besetting the proceedings from the very beginning -namely that this
case of criminal justice is situated in the space of international politics,
not law-has not been resolved in any way (despite the SCCRC's
decision on the referral of the case). Since the arguments advanced
by the British Foreign Secretary in his PII certificate have not been
questioned by the judges -they appear resigned to accommodate his
request by the appointment of a 'Special Counsel.'61
The implication was that the defence lawyers were denied access to exculpatory
material that was in the possession of the prosecution since the start of the trial.
The Special Counsel appointed by the Court could offer evidence that was not
divulged to the accused in the trial proceedings. 62 There was criticism of the
appointment of these Advocates appointed under the Public Interest Immunity
(PII) certificates. Under this procedure, the subjective judicial process has become
more apparent because the Foreign Secretary of the UK may withhold certain
evidence (namely secret documents originating from a foreign government) from
the defence and from public view. 63 This is disadvantageous to the defence
59 Press Release, Scottish Criminal Cases Review Commission, Abdelbaset Ali Mohmed Al
Megrahi, (June 28, 2007), available at <http://www.sccrc.org.uk/ViewFile.aspx?id=293>.
60 House of Lords and House of Commons Joint Committee of Human Rights, 13th Report
of Series, HL Paper 71, 2008-9. <uehttps://publications.parliament.uk/pa/jt200809/jtselect/
jtrights/71/71.pdf>.
61 Hans Koechler, National Law School of India Review, Vol. 21(1) 2009, p. 159-162 at 154.
62 For details of the Scottish judges' ruling to appoint 'Special Counsel' for Mr al-Megrahi see the
BBC report Reevel Alderson, Appeal Court Plans Lockerbie Move, BBC NEWS, (Sept. 17,
2008), available at <http://news.bbc.co.uk/2/hi/uk_news/scotland/south_of_scotland/7622223.
stm>.
63 This power is reserved now in the UK Justice and Security Act 2013, Part II Disclosure of
Sensitive, Section 9 deals with the appointment of a special advocate to represent the interests
of an excluded party in closed material proceedings. This person would be a security cleared
lawyer. This is in line with procedures adopted in respect of other closed material procedures such
as those before the Special Immigration Appeals Commission (SIAC). The section states that
special advocates are, depending on the jurisdiction concerned, to be appointed by the Attorney
General, the Advocate General for Scotland or the Advocate General for Northern Ireland. The
492
Zia Akhtar
because the adversarial system of justice relies on evidence that is divulged to
the other party in the course of the proceedings by the prosecution.
The ruling was followed by two appeals; the first of which was unsuccessful
but the second appeal against conviction on 28 April 2009 raised the issue of
the guilty verdict as being unreasonable as delivered by the trial court. It relied
upon s. 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 which allows
submissions generally used in respect of jury verdicts, namely that no reasonable
jury, properly instructed, could have delivered the same verdict. This process was
available historically in Scotland from 1926 until 1980, and then re-introduced by
the 1995 Act. The legal framework of s.106 provides that the Appeal Court can
review the reasonableness of a verdict even where there is a technical sufficiency
of evidence.6 4
There were aspersions cast upon the original verdict as it was possible that
there was insufficient evidence and the fact that the trial was unique, and the
judges gave their reasons for reaching the verdict without a jury being present.
It was therefore unclear which evidence was relied upon by the trial judges and
which evidence was rejected. The appellant raised the defects in the procedures
and of the evidentially flawed material that no reasonable jury could return a guilty
verdict. The Lockerbie trial has been described as 'not merely transnational, i.e.,
the national trial of a crime against international law involving alleged perpetrators
from a second State and victims from one or more other countries.'6 5 It has been
defined as an international trial by its subject matter, the issues raised under the
Montreal Convention, the refusal to accept the ICJ jurisdiction by the respondent
party that led to the extradition of the accused. The trial process under the
jurisdiction of the State whose criminal law was enforced of a trial held in the
State of a third party all militates towards an international trial in which the rules
of customary international law and treaty conventions were in the court's domain.
IV. SUPPRESSION CONVENTIONS AND COMPLEMENTARITY
A. Scope of Jurisdiction in Binding Treaties
The Montreal Convention is a suppression treaty and its ambit for enforcing the
trial of suspects in the context of the Lockerbie Case makes for an argument that
there should be a basis for judicial oversight of its breach by domestic courts. The
Convention can be supplemented by other laws such as the UN Charter XVI, 66
and under customary international law the Suppression Conventions could be
special advocate is not responsible to the person whose interests they represent. A person may
only be appointed as a special advocate if they have the qualifications set out at subsection (5).
64 King v. HM Advocate 1999 JC 226. The provisions of s.106 have been successfully employed in
the cases of AJE v. HM Advocate 2002 JC 215 and Rooney v. HM Advocate 2007 SCCR 49.
65 See Jordan J. Paust et al, InternationalCriminalLaw: Cases and Materials2nd edition (Carolina
Academic Press 2000) 18-19.
66 This states: 'In the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail'.
Jurisdiction,Jus Cogens, Suppression Conventions
493
a source of development within international criminal law. This will follow the
principles of referral for breaches of the Convention to the International Criminal
Court (ICC) which has the power and scope to adjudicate under its legislative
framework. Whether it can become a peremptory norm in the content and form
can be resolved and that will prevent an extradition under compulsion which could
be politically influenced under the UN Security Council.
It is necessary to analyse the framework of the Montreal Convention as
preparatory acts are not included in these treaties, in cases of breach, unless they
amount to an attempt to commit or complicity in an offence. The conventions
therefore reflect the common law principle which is similar to those in other legal
systems and only the precise application of the principle varies. 67 The offences
under the conventions include attempts and a participant being an accessory or
accomplice, and the concept of complicity is wide enough to embrace conspiracy.
Thus, beginning with the Terrorist Bombings Convention 1997, the concept was
added, and the Terrorist Financing Convention 1999 made a clearer distinction
between the civil law concept of association malfaiteur and the approximate
common law concept of conspiracy. 68
The issue in the aftermath of the trial of the two accused Libyans in Scotland is
whether it has impacted on the law governing international cooperation in criminal
matters. 69 The transnational criminal law refers to violations of national penal
law involving perpetrators and/or victims of more than one nationality and/or
which have effects on more than one national territory. By contrast, international
criminal law normally refers to serious violations of international law, such as war
crimes, genocide, and crimes against humanity, for which individual responsibility
has been established by international agreements such as treaties or customary
international law. International crimes need not involve any transnational elements
and until now the issue thus far had been enforcing the process of extradition and
prosecution in a domestic court and subjecting the accused to trial.70
Plachta argues that there:
now appears to be specifically, a 'third alternative' that has extended
the traditional rule aut dedere aut judicare-aut transferere. Under
this principle the requested State has had only two options: either to
submit the case to the competent authorities for prosecution within
&
67 See J. Lambert, Terrorism and Hostages in International Law (Grotius, Cambridge, 1990)
263-298.
68 Ibid., pages 244 (para. 9) and 270 (para. 23); Article 2(5)(c) of the Financing Convention was
taken from Article 25(3)(a) of the Statute of the International Criminal Court 1998 (UNTS Reg.
No. 38544); ILM (1998), p. 1002.
69 See Andrew Hardie, Lockerbie-Briefing For Family Members, Address By Lord Advocate
(Aug. 23, 1999) (pointing out the unprecedented U.N. sanctions on Libya designed to bring
alleged offenders before a national court) (on file with author). Cf Symposium: International
Terrorism, Victims' Rights and the Lockerbie Criminal Trial, 29 SYRACUSE J. INT'L L.
COM. 1, 15 (2001) stating that the Scottish and U.S. indictments issued on 14 November
1991 was the first time that prosecutors in two countries had commenced simultaneous criminal
proceedings.
70 See Jordan J. Paust, supra note 64, at 20.
494
Zia Akhtar
domestic jurisdiction, or to surrender the person to the authorities of
the requesting State. However, since Lockerbie, the inherent power of
the country requesting extradition has been enlarged and included the
'delivery' of the accused to another jurisdiction. 1
The exercise of criminal jurisdiction by States is often defined in terms of certain
factors of the conduct and the exercise of universal jurisdiction. The basis for
complementarity to arise requires the various types of extraterritorial jurisdiction.
Brandon and du Plessis argue that the jurisdiction based on nationality, whereby
States exercise jurisdiction over the conduct of their nationals, in foreign
jurisdictions is 'particularly favoured by civil law systems, but it is increasingly
invoked in common law jurisdictions.'72
The inference is that the States:
exercise criminal jurisdiction on the ground that their nationals are the
victims of the crime (passive personality principle), or that the crime
imperils the vital national interests of the State (protective principle)
or, occasionally, that the effects of conduct abroad are experienced
within the territory of the State (effects principle).
Hence, it is not surprising that States apply different meanings of what constitutes
and which State organs are involved in investigation and prosecution of offences. 73
There is general acceptance that universal jurisdiction arises in cases where
sovereign States are involved and they may cooperate by extraditing or
prosecuting and bringing to justice those accused of serious crimes.7 4 This process
is in accordance with the rule of law and in international law its scope is defined as
aut dedere autjudicare which implies that the domestic courts must prosecute or
extradite to the country where the crime occurred. 75 However, the phrase 'extradite
71 Ibid.
72 B. Brandon and M. du Plessis, The Prosecution of International Crimes: A Practical Guide to
Prosecuting ICC Crimes in Commonwealth States (Commonwealth Secretariat 2005) Part II,
125-230.
73 See E. Greppi, 'Inability to Investigate and Prosecute under Article 17' in M. Politi and F. Gioia
(eds), The International Criminal Court and National Jurisdictions (Aldershot 2008) 63.
74 See, e.g., General Assembly resolution 2840 (XXVI) of 18 December 1971 entitled 'Question
of the Punishment of War Criminals and of Persons Who Have Committed Crimes Against
Humanity'; General Assembly resolution 3074 (XXVIII) of 3 December 1973 on the 'Principles
of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons
Guilty of War Crimes and Crimes Against Humanity'; and principle 18 of Economic and Social
Council resolution 1989/65 of 24 May 1989 entitled 'Effective Prevention and Investigation
of Extra-legal, Arbitrary and Summary Executions'. The principles of 24 May 1989 endorse
universal jurisdiction over persons suspected of extra-legal executions. (It endorses the extraditeor-prosecute approach - but since it purports to apply to all states, it effectively supports universal
jurisdiction for this offence.) Res. 2840 is about state cooperation, including extradition to states
where crimes were committed and the like, not referring to universal jurisdiction. Res. 3074
only says that persons committing core international crimes shall be 'subject to investigation'
(seemingly by any state), and shall also subject to 'tracing, arrest, trial'. It goes on to say,
however, that, 'as a general rule,' trial and punishment are to be by the state in which the acts
took place - with other states having the task of cooperating by way of extradition.
75 General Assembly resolution 67/1 of 24 September 2012.
Jurisdiction,Jus Cogens, Suppression Conventions
495
or prosecute' in actual terms implies 'that there is no obligation to prosecute
whatever the circumstances, for example if there is not sufficient evidence.'7 6
B. Higher Threshold for Extradition Requests
It could be argued that the 'delivery' or transfer to a third-party state for trial is a
de facto extradition, particularly from the perspective of the requested State and
its domestic law. However, if it is assumed, that 'delivery' is a substantially new
element, then one would be compelled to acknowledge that the Security Council
started playing a new role as an 'enforcer' of the principle aut dedere autjudicare.
This realization raises further questions, such as the scope for ratione materiae
of the modified principle. It is to be assumed that the intervention of the Security
Council in extradition may be justified, in so far as the situation constitutes a threat
to international peace and security, thereby legitimizing the action of the Security
Council under Chapter VII of the UN Charter. However, the issue arises as to
whether such an intervention would have to be restricted to terrorism, terrorists,
and terrorist acts. 77
The 'political' exception must be clearly distinguished from the clause in
most of the conventions that mutual legal assistance or extradition may be
refused if it has been requested for the purpose of prosecuting or persecuting
the person for their political affiliations (see, for example, Article 9(1) of the
International Convention against the Taking of Hostages 1979). In contrast, the
political exception is the provision in certain extradition treaties, or domestic laws,
which makes 'political offences' -crimes committed with a political motive-not
extraditable. It is assumed that most terrorist crimes are committed for some
political purpose, and the earlier conventions do not prohibit the political
exception, this can prevent extradition for a terrorist offence, though the requested
party would then have to follow the aut dedere autjudicare rule. 78
However, unlike the Convention on Offences and Certain Other Acts
Committed on Board Aircraft (Tokyo Convention) 1963, the other conventions
include no prohibition on reservations, in addition to the caveat that can be
registered to the disputes article. When a multilateral treaty does not prohibit
reservations or allow only specified reservations, these can be entered when they
are compatible with the object and purpose of the treaty (Article 19(a) of the
Vienna Convention on the Law of Treaties). 79
76 The obligation to extradite or prosecute (aut dedere aut judicare) Final Report of
the International Law Commission 2014, p. 8, available at <https://legal.un.org/ilc/texts/
instruments/english/reports/7_6_2014.pdf>.
77 Michael Plachta, The LockerbieAffair: When ExtraditionFailsAre the UnitedNations' Sanctions
a Solution? (The Role of the Security Council in the Enforcing of the Rule Aut Dedere
AutJudicare) (2001) p. 103, available at <www.ejil.org/pdfs/12/1/499.pdf>.
78 However, the Terrorist Bombing Convention 1997 (Article 11) and the Terrorist Financing
Convention 1999 (Article 14) do prohibit the political exception, as do some extradition treaties.
79 The application of this rule has to surmount many difficulties, see A. Aust, Modern Treaty Law
and Practice(Cambridge University Press 2000), Chapter 8, pp. 108-112.
496
Zia Akhtar
The party to a dispute in a Suppression Convention must establish its
jurisdiction over the offences and if they are committed on its territory or,
generally, by one of its nationals abroad or on board a vessel or aircraft registered
with it. 80 The grounds for jurisdiction may be found under its domestic law which
means that all that is required is that the national jurisdiction must enable the
alleged offender to be detained and, if appropriate, extradited or indicted in a
domestic court. The uniform rules of application that apply when the aut dedere
aut judicare is concerned are based on an obligation of States to extradite or
prosecute perpetrators of crimes irrespective of the jurisdiction or the context in
which the offences happened. 81 The effective promotion and protection of human
rights, as mandated specifically by Article 55(c) of the UN Charter not only
requires the creation of substantial norms in the form of prohibitions, but also
of procedural rules. 82
Since the State, as an international legal subject, has the primary duty to
investigate and prosecute international crimes, the obligation to 'extradite or
prosecute' shares certain similarities with the principle of complementarity. 83
The proceedings encompass both investigations and prosecutions,8 4 the trial
element includes criminal allegations instituted against an accused, and an
indictment denotes a test of the prosecution allegations or 'formal judicial
examination.' 85 The custodial State must establish jurisdiction, investigate and
prosecute the alleged violations of international crimes in accordance with the
fundamental requirements of the state being able and willing to initiate criminal
proceedings. 86
However, if the custodial State does not meet the requirements of good faith
set out in the tests of willingness or ability to submit the case for the purpose
of prosecution, the State has not fulfilled the aut judicare aspect of this duty.
It is proposed that the criteria for determining whether a State has met the
80 International Convention for the Suppression of the Financing Terrorism. Article 9 (2) 'Upon
being satisfied that the circumstances so warrant, the State Party in whose territory the offender
or alleged offender is present shall take the appropriate measures under its domestic law so as to
ensure that person=s presence for the purpose of prosecution or extradition'.
81 The obligation to extradite or prosecute (aut dedere autjudicare) may be interpreted as amounting
to 'Jurisdiction with regard to crimes committed outside national territory' which was on the
provisional list of 14 topics at the first session of the Commission in 1949. United Nations, The
Work of the International Law Commission, 8th edition (United Nations 2012), vol. 1, p. 37.
82 Colleen Enanche-Brown and Ari Fried, 'Universal Crime, Jurisdiction and Duty: The Obligation
of Aut Dedere Aut Judicare in International Law,' 43 McGill Law Journal 613 (1998) at 613.
83 Brandon and du Plessis, supra note 69 at 33-34; See also, M. El Zeidy, The Principle of
Complementarity in International Criminal Law (Martinus Nijhoff 2008), 220-221. See Claus
Kress, '"Self-Referrals" and "Waivers of Complementarity": Some Considerations in Law and
Policy' (2004) 2 JICJ 944, 946.
84 Update on Communications received by the ICC Prosecutor, Iraq response (9 February 2006);
Update on Communications received by the ICC Prosecutor, Venezuela response (9 February
2006).
85 J.R. Spencer, 'The English System' in Mireille Delmas-Marty and others (eds), European
Criminal Procedures, Cambridge University Press 2002, 181.
86 J. Kleffner, 'Auto-referrals and the Complementary Nature of the ICC' in C. Stahn and
G. Sluiter (eds), The Emerging Practice of the International Criminal Court (Martinus Nijhoff
2009) 41-42.
Jurisdiction,Jus Cogens, Suppression Conventions
497
'prosecution' requirement are to be guided by the complementarity principle
relating to prosecution as there is no strict requirement for the presence of an
extradition request by another State to trigger the applicability of the prosecution
duty.
Nonetheless, the custodial State may opt to extradite the suspect to another
State and relieve itself from the prosecution requirement. The issue of intervention
arises when the judicial system of the requested State is unwilling or unable to
genuinely conduct national proceedings in relation to a case, the requesting State
must be allowed to fill the impunity gap and initiate criminal proceedings against
the relator following the extradition process. 87 Hence, it is essential to establish
whether a bona fide investigation and prosecution is required and if it can be met
by the custodial State. 88 However, being a party to the Suppression Convention is
a compelling ground for giving the State whose personnel are accused of crimes
the opportunity to carry out the trial of its nationals rather than to extradite on
suspicion only.
V. Conclusion
The issue in the Lockerbie case was if extradition was to be preferred over the
domestic arrangements for a trial if the accused is from the country has the legal
procedures in place for due process. There was consideration of the argument
whether there should be a 'third alternative' in addition to the traditional aut
dedere aut judicare principle (i.e., aut transferere). Under this principle, the
requested State has had only two options which are either to try the accused in
the criminal courts within domestic jurisdiction, or to surrender the person to the
authorities of the requesting State. Since the Lockerbie case, the inherent power
of the State requesting extradition has been extended and includes the transfer of
the suspect to a third jurisdiction.
The Suppression Conventions do not include a referral process to the
jurisdiction of international tribunals such as the International Criminal Court.
This Court is not a realistic forum to try the accused as it is not suitable for
transnational crimes. It was onerous for it to deliberate on the definition of
aggression in 2010 before incorporating it in its Statute. The breach of the
Montreal Convention was the source of the dispute in the Lockerbie case and the
matter was seized by the High Court of Judiciary under Scottish law which denied
the Libyan government the opportunity to review if there was sufficient basis for
87 William Schabas, An Introduction to the International Criminal Court (4th ed, CUP 2011)
20. See Report of the International Commission of Inquiry on Violations of International
Humanitarian Law and Human Rights Law in Darfur, UN Doc. S/2005/60, para. 568. See also,
Greppi supra note 75, at 67.
88 See also, Report of the International Commission of Inquiry on Violations of International
Humanitarian Law and Human Rights Law in Darfur, UN Doc. S/2005/60, paras 614-616 where
it is suggested that states are presumed to be under a duty to prosecute suspects on their territory,
the principle applied to the obligation to prosecute serves as an orienteer of whether States have
met the primary duty to prosecute.
498
Zia Akhtar
a trial in its own courts. In this manner, the principle of aut dedere aut judicare
was not respected and the prosecution could not take place in Libya.
There should be a right included in the Suppression Conventions where the UN
Security Council provides the list of suspects to the country to which the accused
belongs. This should then lead to the criminal trial of the accused within the state
of which he is a national if its criminal laws are substantive and there would be
no need for an extradition. The indictment could be served once the evidence is
available and the trial can then take place in the domestic court of the accused.
The principle of universal jurisdiction does not militate against the trial of
the accused in its own domestic courts. The only consideration is the available
evidence and the procedural basis for such a trial. In the instance where the
accused is still in the custody of the local authorities then the trial should be
conducted on the basis of aut dedere aut judicare which will lead to a conviction
providing concrete evidence can be adduced at the trial.