Chapter 15: Internationalised Domestic Criminal Tribunals
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Thereupon, the US and UK Governments demanded through the Security Council
that Libya surrender the accused so that they could stand trial in either of the two
countries. At the behest of the two Governments Resolution 731 was initially
adopted,
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requesting Libyan condemnation of terrorism and lack of co-operation.
The Libyan Government protested that it was fulfilling its obligations under Art 7 of
the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of
Civil Aviation, which imposes an obligation to either prosecute or extradite. The
Libyans sued the US and UK before the International Court of Justice (ICJ), arguing
that since they had submitted the case to a competent judicial authority they had
fulfilled their obligations under the 1971 Montreal Convention for the Suppression
of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention). Before
the ICJ could reach a judgment on its jurisdiction, the Security Council adopted
Resolution 748,
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under chapter VII of the UN Charter, demanding that within two
weeks Libya establish its responsibility over the acts and essentially surrender the
accused for trial, otherwise a range of sanctions would have to be imposed, as they
were.
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The ICJ, somewhat crippled by Resolution 748, held that on the basis of Art
103 of the UN Charter, according to which obligations under the Charter supersede
all other obligations of Member States, the Council’s authority to adopt binding
resolutions prevailed over the terms of the 1971 Montreal Convention. The majority
of the judges noted, however, that had it not been for Resolution 748, Libya would
not have been at fault.
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During this time, and until 1998, Libya maintained that not
only was it precluded by constitutional constraints from surrendering its own
nationals, but because of the inevitable media coverage in the US and UK, the accused
would not receive a fair trial. Nonetheless, Libya offered to surrender the accused
for trial in a neutral country, but this proposal was resisted.
The impasse was finally resolved in 1998 when the UK agreed to a proposal
envisaging the trial in a neutral country and heard by a Scottish court. The
Netherlands concurred to host it on its territory, and an agreement was signed
between the two countries on 18 September 1998.
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Subsequently, Council Resolution
1192 welcomed the end to the stalemate, asking all States to co-operate, further
designating The Netherlands as the detaining power once the accused had been
surrendered for trial.
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TheAgreement between the UK and The Netherlands entered
into force on 8 January 1999. Unlike the two ad hoc tribunals (that is, the ICTY and
ICTR), and other internationalised domestic tribunals (that is, Sierra Leone Special
Court and East Timor Special Panels), the court (the Scottish High Court of Justiciary)
specified in the 1998 Agreement did not have a Security Council mandate and did
not sit in the territory of the country exercising territorial jurisdiction. In that sense,
it is a unique creature, adapted to the particular exigencies of the case, demonstrating
a flexibility that is rare for international criminal justice. Under the Agreement, Scots
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SC Res 731 (21 January 1992).
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SC Res 748 (31 March 1992).
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Further sanctions were imposed more than a year later through SC Res 883 (11 November 1993).
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