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Who Isn't Cooperating On Libyan Terrorists?

The UN 'extradition' resolution may be disguising the US's agenda

By Alfred P. RubinAlfred P. Rubin is a professor of international law at The Fletcher School of Law and Diplomacy, Tufts University, Medford, Mass. / February 5, 1992



IN November 1991, the United States and Great Britain each requested that Libya extradite two Libyan officials accused of involvement in the bombing in 1988 of Pan Am Flight 103 over Lockerbie, Scotland. France requested Libyan cooperation in investigating a similar 1989 attack on UTA Flight 772, a French civil aircraft in Africa. The Libyans refused the requests, asking the three countries to cooperate instead in Libyan investigations and offering to submit the legal issues to the World Court in the Hag ue to determine Libya's obligations.

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The US, Britain, and France ignored that response and instead referred the matter to the United Nations Security Council. The Security Council, on Jan. 21, adopted Resolution 731. The wording of the resolution departs so far from what the United States, Britain, and France are reported to have wanted that current public statements and press accounts reporting an American diplomatic triumph and UN pressures on Libya seem incomprehensible.

In the Arab world the rumor is that the new pressure on Libya is part of a bargain. In return for token Syrian troops and Iranian neutrality in the Gulf war against Iraq, and for their help in freeing the Western hostages that had been held by their client militias in Lebanon, President Hafez al-Assad of Syria and the mullahs of Iran are absolved of responsibility for the two bombings. American embargoes against Syria and Iran as states that support "terrorism" must then be removed. In the Arab world, Sy ria and Iran gain as outwitting the West, and Colonel Muammar Qaddafi is demeaned.

An equally plausible, or implausible, suggestion is that the US and its two European friends are seeking a legal basis for some military strike at Libya that might help an incumbent president or prime minister nearing election time. Creating a legal basis for military action might be significant in holding down the outrage that would otherwise be expected from people who prefer the long-range political advantage of legality and moral stature in their leaders to the spasmodic use of military power.

But was such a legal basis created? Was the passing of the resolution a diplomatic triumph by the US? Is current action by officials of the UN secretariat, reported in the American news media to be pressing Libya to hand over the two accused officials for trial, really implementation of the resolution?

Security Council resolutions are not necessarily binding on the members of the UN. "Decisions" of the Security Council are binding. Normal Security Council practice is to distinguish nonbinding from binding resolutions by the use of the word "decides." The new resolution uses the word "decides" in only one place: The Security Council "decides to remain seized of the matter." It is hard to see what legal obligation that imposes on Libya.

Instead, the resolution "condemns" the destruction of the two flights, "deplores" what is asserted to be "the fact that the Libyan Government has not yet responded effectively to ... requests to cooperate fully in establishing responsibility for the terrorist acts ... against the two flights, and "urges" the Libyan government to provide a "full and effective response."