Scotland on Sunday
8 April 2001, p. 10
incomprehensible, irrational and arbitrary"
By William Paul
There was always an undercurrent of disquiet when the Lockerbie trial ended in Holland earlier this year. The unanimous guilty verdict on Abdelbaset Ali Mohmed Al Megrahi unexpected, the not guilty verdict on Al Amin Khalifa Fhimah apparently inconsistent, the loose logic adopted in the written judgement seemingly open to challenge.
Yet criticism was largely muted, even among some relatives of the 270 victims of Pan Am Flight 103 who had fought so hard and for so long to have the case brought to court and were mostly convinced that if the Libyans were involved at all they were, at best, minor players in a greater conspiracy that would only be exposed with the trial over.
Once the shock of the court's findings had sunk in, a consensus quickly arose among those with reservations about the verdicts. After all, due process of law had been followed and evidence had been heard in open court as promised. This had the effect of more or less suppressing the widespread sense of dissatisfaction.
Into this comparative vacuum stepped the Lord Advocate, Colin Boyd, with a series of "roadshows" for relatives in Britain and America which were said to have a distinctly triumphalist tone. The reputation of Robert Black, the Edinburgh University law professor who had been a constant critic of the way the case was handled, was subjected to "vicious and acidic" attack, according to one relative present at the briefings. It was also suggested that had Megrahi given evidence Fhimah would have been convicted too.
Trial judge Lord Sutherland agreed that such personal briefings were unusual but added in reference to Black who was adamant there was insufficient evidence for a guilty verdict: "If the Crown were getting their own back I'm not entirely surprised ... I suppose pointing out that he wasn't necessarily right might be a useful counterblast."
Now the authorities are facing a different kind of counterblast, this time from an independent observer who cannot be easily ignored. Dr Hans Koechler, president of the Vienna-based International Progress Organisation and a world -renowned expert on law and human rights, was personally appointed by United Nations Secretary General Kofi Annan to ensure fair play and high standards. Koechler, who sat through every day of the trial at Camp Zeist, not only supports Black's argument that there was insufficient evidence to convict Megrahi, but goes much further in condemning what went on in the special court as hopelessly contaminated by political considerations to the detriment of the rule of law. The conduct of the judges, previously regarded as beyond reproach, is also criticised for allowing a political dimension to be present in the courtroom and therefore to influence the final outcome.
This is a monumental embarrassment to the judges, the Crown prosecution team, and to the UN, an organisation that was pivotal in brokering the diplomatic understanding that allowed the Lockerbie trial to go ahead in a neutral venue after so many years of the British and American governments refusing to compromise.
On the day, January 31, Fhimah was set free and Megrahi was sentenced to life imprisonment, Annan said: "Justice has taken its course and the authority and legitimacy of the legal process must be respected. "
Within days , Annan had received a report from Koechler telling him exactly what he didn't want to hear; the trial had been tainted by political interference and the verdicts were contradictory and irrational.
Yesterday a spokesman for Annan attempted to distance the UN from Koechler's report, saying it amounted to one person's personal opinion and could not be regarded as an official UN document. And the Crown Office pointed out that Koechler seemed not to understand the adversarial nature of criminal procedures in Scots law, nor how it was for the prosecution and defence to decide what evidence was presented in court, not the judges.
Koechler's report, does not pull any punches in its forthright condemnation of the way politics was allowed to dictate the course of the Lockerbie trial.
The problems began on the first day with two representatives of the US Justice Department sitting with the Crown prosecution team and seemingly acting as "supervisors" of strategy and presentation of evidence.
Soon after the start of the trial in May last year, Scotland on Sunday revealed concern over the presence of American lawyers Dana Biehl and Brian Murtaugh, members of the Office for the Victims of Crime, an offshoot of the Department of Justice. It was said their presence gave the court "an unfortunate US v Libya flavour".
Koechler writes: "This serious problem of due process became evident in the matter of the CIA cables concerning one of the Crown's key witnesses, Mr Giaka. Those cables were initially dismissed by the prosecution as not relevant but proved to be highly relevant when finally (but only partially) released."
The cables eventually showed that Abdul Majid Giaka, a Libyan defector, had been paid by the CIA for information which was regarded as of minimal worth. He had not mentioned any knowledge of Lockerbie until months after the bombing and only after being threatened with having his payments stopped. Then he implicated the accused by claiming to have seen them at Luqa airport in Malta with a suspicious suitcase.
"It has become obvious that the presence of foreign governments in a Scottish courtroom (in any courtroom for that matter) jeopardises the independence and integrity of legal procedures and is not in conformity with the general standards of fairness," Koechler wrote.
Relatives of the victims also complained about the two, sometimes three, Americans who sat with the prosecution team. In response, the Lord Advocate, Colin Boyd, said it was up to him who was invited to join him in the court.
Koechler's criticism extended to the defence, and the presence of Kamal Maghour, a former foreign affairs minister in the Libyan government . Again, Maghour was not listed in any official records as being present. The two Libyan accused lodged a special defence blaming named Palestinian terrorists for the bombing.
"It was a consistent pattern during the whole trial that - as an apparent result of political interests and considerations - efforts were undertaken to withhold substantial information from the court. It may never be fully known to which extent relevant information was hidden from the court. The most serious case... is related to the special defence. The alternative theory of the defence - leading to conclusions contradictory to those of the prosecution - was never seriously investigated... although it was officially declared as being of major importance to the defence. By not having pursued... an alternative theory, the court seems to have accepted that the whole legal process was seriously flawed in regard to the requirements of objectivity and due process. As a result the undersigned (Koechler) has reached the conclusion that foreign governments or governmental agencies may have been allowed, albeit indirectly, to determine to a considerable extent, which evidence was made available to the court."
Koechler says it was "highly arbitrary and irrational" to take witnesses like Giaka and Edwin Bollier, whose electronics firm supplied the fatal timing device, and rely on parts of their evidence when other parts were dismissed as riddled with inconsistencies and contradictions.
"In spite of the reservations explaining the verdict itself, the guilty verdict in the case of Megrahi is particularly incomprehensible in view of the admission by the judges themselves that identification was 'not absolute' and that there was a mass of conflicting evidence," the report says. Furthermore, the Opinion of the Court seems to be inconsistent in a basic respect: while the first accused was found guilty, the second accused was found not guilty. This is totally incomprehensible when one considers that the indictment in its very essence was based on the joint action of the two accused in Malta."
Koechler asserts, "The guilty verdict in regard to the first accused appears to be arbitrary, even irrational. This leads the undersigned to the suspicion that political considerations may have been over-riding a strictly judicial evaluation of the case thus may have adversely affected the outcome of the trial. This may have a profound impact on the evaluation of the professional reputation and integrity of the panel of three Scottish judges. Seen from the final outcome, a certain co-ordination of the strategies of prosecution, of defence, and of the judges' considerations during the later period of the trial is not totally unlikely. This, however, when actually proven, would have a devastating effect on the whole legal process of the Scottish Court in the Netherlands and on the legal quality of its findings.
"In the above context, the undersigned has reached the general conclusion that the outcome of the trial may well have been determined by political considerations and may to a considerable extent have been the result of more or less openly exercised influence from the part of actors outside the judicial framework - facts which are not compatible with the basic principle of the division of powers and with the independence of the judiciary, and which put in jeopardy the very rule of law and the confidence citizens must have in the legitimacy of state power and the functioning of the state's organs - whether on the traditional national level or in the framework of international justice."
Koechler's ultimate conclusion is that the Lockerbie trial had done a disservice to the cause of international criminal justice. It was neither fair, nor conducted in an objective manner.
Koechler's final message to Kofi Annan is to express the hope that Megrahi's appeal will "correct the deficiencies" of the trial and that will depend on the integrity and independence of the five judges who will hear it.
The appeal against conviction is likely to be heard in September.
* The man behind the report
HANS Koechler has been professor of legal, anthropological and political philosophy in the law faculty at the University of Innsbruck, in Austria, since 1982.
As well as writing on theology and morals, he has written papers on the ethics of sanctions, the political principles of Pope John Paul II, and the problems of over-centralisation in Europe.
His titles include The New International Economic Order, The Legal Aspects of the Palestinian Problem, and The UN and International Democracy.
He is founder and president of the International Progress Organisation in Vienna, which promotes cultural and academic exchanges between nations and advances an open-minded but critical attitude towards ideological and political systems. It is a non-governmental organisation in consultative status with the UN.
He was selected as one of five independent observers for the Lockerbie trial by the United Nations secretary-general Kofi Annan.
The others were Robert Thabit, also representing IPO; M H Baerenboom of the European Commission; Ms Hairat Balogun of the Organisation of Arab Unity; and Dr Nabil El-Araby of the Arab League.