Marion Edmunds
A top Department of Foreign Affairs lawyer has backed President Nelson Mandela’s controversial stance on Libya, advising him to support Moammar Gadaffi’s refusal to hand the Lockerbie bombing suspects to Britain and the United States.
The department’s chief legal adviser, Albert Hoffmann, told Mandela’s office that according to international law, Libya was right to refuse to hand over the suspects accused of the bombing of a PanAm jumbo jet in 1988. The jet crashed over the Scottish town of Lockerbie, causing the deaths of 270 people.
Mandela has angered the US and British governments by visiting Libya en route to the Commonwealth summit in Edinburgh, effectively challenging the moral legitimacy of United Nations Security Council resolutions which condemn Libya for not handing over the suspects. He is also challenging the imposition of sanctions against Libya.
Hoffman said of the use of the security council by Britain and the US: “They are both permanent members of the council, I presume they were the main architects of the resolution. I don’t want to pass judgment but bigger powers can afford to use the security council mechanisms for their own purposes, which they say is in the interests of fighting international terrorism. Legally speaking, both sides are correct. The US and the UK can demand and may demand extradition, but at the same time Libya is also fully entitled under international law not to extradite. That’s why there is this impasse …
“The United Nations is deliberating on a permanent international criminal court and were this in place, it would have provided a way out.”
Mandela supports Libya’s proposal that the trial of the suspects take place in a neutral territory, and has used the opportunity of the Commonwealth summit to add moral authority to Gadaffi’s position.
Mandela left South Africa armed with possible solutions to the deadlock. He has had talks with Gadaffi in Tripoli, followed by discussions with British Prime Minister Tony Blair, and this week returned to Libya on his way home.
His office played down the possibility of mediating in the Lockerbie dispute, although his movements, particularly the second visit to Libya, suggest shuttle diplomacy.
Mandela’s challenge to the security council resolutions and his perceived role as peace- maker and voice for the African and Arab world on this deadlock, has further raised his stakes for a permanent seat for South Africa on the council. He has succeeded in putting the US and Britain on the defensive.
Hoffmann said Libya had complied with the 1971 Montreal Convention to Suppress Acts of Violence against Civil Aviation, by arresting both suspects in Libya and setting up a local investigation. He said the US and the UK had rejected international treaty obligations in favour of security council resolutions to try to pressure Libya to hand over the suspects.
Libya had taken the matter, in protest, to the International Court of Justice at the Hague, where the British and American governments had advanced legal arguments as to why security council resolutions should have preference.
Hoffmann, in his advice to Mandela, suggests solutions that include pursuing negotiations beyond the impasse.
He suggests setting up a special ad hoc criminal tribunal to prosecute the suspects. The parties in the dispute would then agree to the composition of the tribunal and it would adopt its own rules of procedure.
American and British intransigence on these points of law has fuelled international speculation that they may want to perpetuate the deadlock because they have something to hide. Government sources have indicated that the Americans may not want to open up to international scrutiny the methods by which they acquired the information to accuse the two Libyans. There is speculation that they may have been falsely accused, to cover up an act by operatives from another nation.