Academic journal article Denver Journal of International Law and Policy

A Return to Lockerbie and the Montreal Convention in the Wake of the September 11th Terrorist Attacks: Ramifications of Past Security Council and International Court of Justice Action

Academic journal article Denver Journal of International Law and Policy

A Return to Lockerbie and the Montreal Convention in the Wake of the September 11th Terrorist Attacks: Ramifications of Past Security Council and International Court of Justice Action

Article excerpt

I. INTRODUCTION

Nearly thirteen years after the bombing of Pan Am Flight 103 over Lockerbie, Scotland in December, 1988, (1) the international community again faces the challenge of confronting the international legal ramifications surrounding the extradition and prosecution of alleged international state-sponsored terrorists. As has been explored in a number of previous works on the subject, United Nations Security Council actions in response to the Lockerbie bombing created significant tension between the Security Council and the International Court of Justice ("ICJ"). (2) These tension-producing actions were a response to Libya's attempted invocation of various articles of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, otherwise known as the Montreal Convention of 1971. (3)

Generally speaking, Libya's claims were grounded in the Montreal Convention's prescription for extradition processes of individuals accused of committing acts of aviation-related terrorism, (4) as well as for adjudication in the ICJ in the case of disputes between party states arising from the Montreal Convention. (5) The Security Council invoked its Chapter VII powers of the United Nations Charter at the same time as Libya instituted proceedings in the ICJ with respect to the above and in reference to disputes with the United Kingdom and the United States. (6) Implemented at the urging of the United Kingdom and the United States, Security Council Resolutions 748 (1992), 883 (1993) and their progeny, built upon Resolution 731 (1992) and effectively bound Libya to Resolutions 748 and 883's term. These resolutions had the effect of rendering any ruling of the International Court of Justice and any further Libyan action subject to the mandates of the Security Council. (7)

This paper will attempt to elucidate upon the United Nations role with respect to international action taken in response to the tragic terrorist attacks upon the United States on September 11th. Furthermore, this paper will attempt to provide some insight regarding the question of whether states complicit in acts of international terrorism should have the opportunity to rely on international conventions as a course of responsive action in the international legal arena; prior to Security Council or unilateral State political action initiated under the Security Council's Chapter VII authority. (8)

II. LOCKERBIE: A BRIEF HISTORY OF UNITED NATIONS INVOLVEMENT

In the aftermath of the Lockerbie bombing, the United Nations played a significant role in facilitating the extradition of the accused Libyan terrorists for trial in a neutral state at the behest of the United States and the United Kingdom. (9) During the nearly ten-year negotiation process leading up to the extradition of the accused terrorists from Libya, the United Nations Security Council, by way of Resolutions 731, 748, 883 and 1192 (1998), acted a posteriori in a positive manner with regards to only Libya and not with regards to other states known to harbor, financially assist, or otherwise support terrorists. (10) Rather, the Security Council deferred to the United Nations Charter and General Assembly Resolutions 49/60 (1995) and 51/210 (1997) in its comparatively inert or passive historical "urgings" to other member and non-member States. (11)

The distinction between general directives of the Security Council aimed at combating international terrorism and specific action taken (e.g., the imposition of sanctions or authorization of the use of force) in response to individual acts of international terrorism, such as Lockerbie and the September 11th attacks, is an important one insofar as attempting to discern a pattern of Security Council behavior and decision-making in response to international terrorist attacks. Security Council Resolutions 731 and 748 served to preempt Libya's lawful and timely claim for provisional measures that would have allowed for ICJ proceedings on the question of extradition in that case without the imposition upon Libya of United Nations Security Council sanctions. …

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