Who Isn't Cooperating On Libyan Terrorists?

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

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

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.

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.

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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."

The assertion that Libya has not responded effectively is incomprehensible. Is the report untrue that Libya has offered to refer questions of Libyan obligations to the World Court and to accept Western cooperation in a trial in Libya of the accused officials? Or is such action not regarded as effective? What would be "a full and effective" reponse?

It cannot be the extradition demanded by the US and Great Britain (France has not demanded any extradition). The applicable convention dealing with the extradition of those whose acts endanger civil aviation requires extradition only if the country holding the accused decides not to try them and punish them severely by its own law.

Libya is reported to have asked for our help in supplying evidence sufficient to convict the people we say were involved. If that is correct, it is we who have refused to cooperate with the Libyan request, thus making it clear why Libya has offered to refer the legal issues to the World Court. Moreover, the two accused are Libyan nationals, and many countries, including Germany and nearly all Latin American countries, refuse to extradite their own nationals. Is Libya failing to cooperate by acting as som e of our best friends act with regard to extradition?

What is actually involved appears not to be a futile and misconceived request for extradition, but a disguised allegation that Libya is officially involved in the Pan Am and UTA bombings, as Chile was apparently officially involved in the Letelier murder by paid assassins in Washington, D.C., in 1976. But attaching individual responsibility in this way, if adopted as a rule of law generally, puts officials of the American government also at risk.

Have we not also run covert operations that cost foreign lives? Should Captain Rogers of the Vincennes be extradited to Iran for trial? Should we extradite any of our officials to any foreign government claiming to have "evidence" of that official's involvement in some operation it claims cost lives in its territory? It now seems clear why the Security Council resolution does not mention extradition, but only some unspecified obligation that seems not to rest on law.

None of this is to say that Libya is innocent. But there are paths through the thickets of law by which the wicked can be tracked and brought to justice. If we have the evidence, we should accept Libya's invitation to present our case to the World Court. We could also present international claims, seek to block Libyan bank accounts until recompense is paid to the families of the victims of Libya's outrages, seek international cooperation in embargoes or, at least, an embargo of air traffic to and from Li bya (as in fact we are doing).

It's hard to see how what we label Libya's refusal to cooperate makes justifiable our failure to use the tools of the law in the interest of justice and safety. And worse would be our representing the nonbinding and deliberately evasive language of the Security Council into UN approval of some dramatic, futile, and possibly deadly gesture.

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