The Volokh Conspiracy - The Lockerbie Release and the Politics of the Security Council:

Ruth Wedgwood comments at Forbes magazine website on the "compassionate" release of Al-Megrahi from prison in Scotland. I agree overall with Ruth:

Abdel Basset Ali al-Megrahi, is now a free man. He was convicted in the specially created Hague trial court by a panel of Scottish judges, and his appeal was rejected by the Scottish appellate chamber. He remained in prison and began to serve his time.

But on Aug. 20, 2009, he was released from his Scottish jail cell by the justice minister of Scotland, walking away from a 27-year sentence. The release, said the minister, was a gesture of "compassion" in light of the defendant's advanced prostate cancer.

Al-Megrahi has now flown back to Tripoli on the Libyan leader's private plane. Ardent supporters were brought to the airport by government buses to greet him on his return. He has appeared publicly with one of al-Qaddafi's sons and will be received officially by al-Qaddafi as well.

When the prospect of the release of this convicted murderer became widely known this week, the president of the United States told a radio interviewer he had "objected" to the release. But he did not say how much body English had gone into this objection. President Obama warned that al-Megrahi should not be given a "hero's welcome" by Libya. But this thought too was, as diplomats like to say, "overtaken by events."

Meanwhile, British Foreign Minister David Miliband says it is a "slur" to speculate that the release of a mass murderer was influenced, even at the margin, by the bidding for oil extraction rights in Libya. One of England's princes has been to Libya three times recently to talk about oil.

The role of oil, though, does make the motivation for al-Megrahi's release look murky, and the road ahead worrisome.

John Bolton got at the fundamental 'international law and politics' problem that Ruth's article raises, back in 2000 ("Is There Really 'Law' in International Affairs, 10 Transnational Law & Contemporary Problems 1 (Spring 2000), at 23, apparently not up at Westlaw):

The basic wrong turn in policy began with the Bush Administration's [Bush Sr.] decision in 1991-92 to judicialize the Pan Am 103 matter rather than to use force, in effect treating this Libyan act of terror like a domestic murder case, rather than the political-military attack that it was.

This raises a whole set of questions about the legal and political role of the Security Council (I discuss them at greater length in this article.) Ruth remarks in her column that the Lockerbie trial chamber was organized under pressure of Security Council resolutions (SC Resolution 731 (1992) deploring Libya's lack of cooperation with investigators, and SC Resolution 748 (1992) imposing sanctions on Libya, and she notes what Bolton notes, the mobilization of lawyers, not military jets:

In response to the bombing, the Americans mobilized lawyers and diplomats. The U.S. and U.K. marched to the U.N. Security Council to demand the arrest of the Libyan operatives, and pressed that they be extradited for prosecution--for at the time, and even now, there were no international criminal courts with jurisdiction. In reply, Libya hired a former U.N. legal counselor to file suit before the International Court of Justice in The Hague, claiming the right to try its own state-commissioned crimes in its own courts.

The Libyan claim was ultimately defeated, by dint of the ICJ's required deference to a mandatory Security Council resolution. So Colonel Muammar al-Qaddafi, the honcho of the Socialist People's Libyan Arab Jamahiriya, proposed another solution he could live with. He called for a specially created criminal court to convene in the Netherlands, seating Scottish judges and applying Scottish law.

As Bolton observed in his article, although these Security Council resolutions were

hailed at the time as great victories, in fact, there was little enthusiasm for the initial Council condemnation of Libya, and there was barely enough support for the subsequent imposition of sactions. Since 1992 [writing in 1999], the United States has faced continuous pressure to scale back or eliminate the sanctions on any pretext, largely from Europeans who would rather trade with Moammar Ghadhafi than punish him for murder.

One wonders, therefore, whether the hints and rumors tossing about now of oil deals for the UK have any merit, in light of the long history. That problem of politics has always plagued the Security Council - but putting it as such is oddly ambiguous. If you are inclined to see the UN as a Platonic ideal (to borrow from Michael Glennon), then you are likely to brush by mere politics. But if you are inclined to see the UN as merely and realistically political, then you are equally likely to be unfazed that the Security Council is about politics, not law. Either way, Libya, and its enabler states, get a pass.

A newer feature of the politics of the Council has arisen since Bolton wrote. In the past, in the 90s, for example, Security Council resolutions - many of those dealing with Saddam, for example - were passed by the Council in relatively strong form precisely because they were tacitly understood to be 'just talk'. They were an alternative to using force; cover for not acting. Then came the GWB administration, which used the long succession of Saddam-resolutions as part of its legal basis for using force. This seemed to take other states by surprise; they had politically gone along in large part way-back-when because the language of the resolutions was a tradeoff for not using force, not a basis for it, no matter how strong the surface language. So today states (particularly Russia and China, but not just them) have a very different understanding of how strong resolutions should be viewed - they might, it turns out, be appealed to years later as part of a case for using force and therefore need to be treated as such, not merely as a gift to some SC member in present need of saying something as a substitute for actually doing something.

Finally, the legal status of apparently binding Security Council resolutions is itself under some pressure from Europe. We have discussed here the decisions of the European Court of Justice (Kadi) that subject even apparently binding commands of the Security Council under its Charter authority to interpretation and being contravened and set aside on human rights grounds by the ECJ or other courts; a flood of scholarship is emerging in Europe to explain those doctrines (curiously largely uncommented in the US academic literature), and there is not a clear consensus on what they mean.

However, it is not beyond all political imagination to suggest the feature of those decisions is a Security Council decision that is seen to be taken at the behest and for the benefit of the superpower, the US. A court might talk loftily about how everything is subject to human rights considerations, but it is not beyond imagining that, in a European court's eyes, even without recourse to human rights claims, Security Council resolutions seemingly to benefit one P-5 member, even assented to by the Council, and even apparently binding under the Charter, should be seen as somehow less binding than something that seems to be more to the benefit of the whole, and not the product of bargaining.

It is not a crazy moral position, in fact - but seems to me to have little support in the way that Europe has traditionally seen the Charter as a legal document. What it does seem to me to be is a sideways move to reform the role of the P5 without actually altering its composition. The way in which sanctions against Libya were seen from by European states from the get-go, despite the legal command of the Security Council resolutions, suggests that the Kadi decision need not necessarily be understood as a matter of human rights, or at least not exclusively as a matter of human rights, but instead as both a simple political proposition about global consitutionalism by the EU, but also an indirect move to alter power relations among the P5 by judicializing them. The history of Libya and Pan Am 103 in the Security Council is not irrelevant to that.

	[Kenneth Anderson, August 23, 2009 at 2:42pm] Trackbacks The Lockerbie Release and the Politics of the Security Council: Ruth Wedgwood comments at Forbes magazine website on the "compassionate" release of Al-Megrahi from prison in Scotland. I agree overall with Ruth: Abdel Basset Ali al-Megrahi, is now a free man. He was convicted in the specially created Hague trial court by a panel of Scottish judges, and his appeal was rejected by the Scottish appellate chamber. He remained in prison and began to serve his time. But on Aug. 20, 2009, he was released from his Scottish jail cell by the justice minister of Scotland, walking away from a 27-year sentence. The release, said the minister, was a gesture of "compassion" in light of the defendant's advanced prostate cancer. Al-Megrahi has now flown back to Tripoli on the Libyan leader's private plane. Ardent supporters were brought to the airport by government buses to greet him on his return. He has appeared publicly with one of al-Qaddafi's sons and will be received officially by al-Qaddafi as well. When the prospect of the release of this convicted murderer became widely known this week, the president of the United States told a radio interviewer he had "objected" to the release. But he did not say how much body English had gone into this objection. President Obama warned that al-Megrahi should not be given a "hero's welcome" by Libya. But this thought too was, as diplomats like to say, "overtaken by events." Meanwhile, British Foreign Minister David Miliband says it is a "slur" to speculate that the release of a mass murderer was influenced, even at the margin, by the bidding for oil extraction rights in Libya. One of England's princes has been to Libya three times recently to talk about oil. The role of oil, though, does make the motivation for al-Megrahi's release look murky, and the road ahead worrisome. John Bolton got at the fundamental 'international law and politics' problem that Ruth's article raises, back in 2000 ("Is There Really 'Law' in International Affairs, 10 Transnational Law & Contemporary Problems 1 (Spring 2000), at 23, apparently not up at Westlaw): The basic wrong turn in policy began with the Bush Administration's [Bush Sr.] decision in 1991-92 to judicialize the Pan Am 103 matter rather than to use force, in effect treating this Libyan act of terror like a domestic murder case, rather than the political-military attack that it was. This raises a whole set of questions about the legal and political role of the Security Council (I discuss them at greater length in this article.) Ruth remarks in her column that the Lockerbie trial chamber was organized under pressure of Security Council resolutions (SC Resolution 731 (1992) deploring Libya's lack of cooperation with investigators, and SC Resolution 748 (1992) imposing sanctions on Libya, and she notes what Bolton notes, the mobilization of lawyers, not military jets: In response to the bombing, the Americans mobilized lawyers and diplomats. The U.S. and U.K. marched to the U.N. Security Council to demand the arrest of the Libyan operatives, and pressed that they be extradited for prosecution--for at the time, and even now, there were no international criminal courts with jurisdiction. In reply, Libya hired a former U.N. legal counselor to file suit before the International Court of Justice in The Hague, claiming the right to try its own state-commissioned crimes in its own courts. The Libyan claim was ultimately defeated, by dint of the ICJ's required deference to a mandatory Security Council resolution. So Colonel Muammar al-Qaddafi, the honcho of the Socialist People's Libyan Arab Jamahiriya, proposed another solution he could live with. He called for a specially created criminal court to convene in the Netherlands, seating Scottish judges and applying Scottish law. As Bolton observed in his article, although these Security Council resolutions were hailed at the time as great victories, in fact, there was little enthusiasm for the initial Council condemnation of Libya, and there was barely enough support for the subsequent imposition of sactions. Since 1992 [writing in 1999], the United States has faced continuous pressure to scale back or eliminate the sanctions on any pretext, largely from Europeans who would rather trade with Moammar Ghadhafi than punish him for murder. One wonders, therefore, whether the hints and rumors tossing about now of oil deals for the UK have any merit, in light of the long history. That problem of politics has always plagued the Security Council - but putting it as such is oddly ambiguous. If you are inclined to see the UN as a Platonic ideal (to borrow from Michael Glennon), then you are likely to brush by mere politics. But if you are inclined to see the UN as merely and realistically political, then you are equally likely to be unfazed that the Security Council is about politics, not law. Either way, Libya, and its enabler states, get a pass. A newer feature of the politics of the Council has arisen since Bolton wrote. In the past, in the 90s, for example, Security Council resolutions - many of those dealing with Saddam, for example - were passed by the Council in relatively strong form precisely because they were tacitly understood to be 'just talk'. They were an alternative to using force; cover for not acting. Then came the GWB administration, which used the long succession of Saddam-resolutions as part of its legal basis for using force. This seemed to take other states by surprise; they had politically gone along in large part way-back-when because the language of the resolutions was a tradeoff for not using force, not a basis for it, no matter how strong the surface language. So today states (particularly Russia and China, but not just them) have a very different understanding of how strong resolutions should be viewed - they might, it turns out, be appealed to years later as part of a case for using force and therefore need to be treated as such, not merely as a gift to some SC member in present need of saying something as a substitute for actually doing something. Finally, the legal status of apparently binding Security Council resolutions is itself under some pressure from Europe. We have discussed here the decisions of the European Court of Justice (Kadi) that subject even apparently binding commands of the Security Council under its Charter authority to interpretation and being contravened and set aside on human rights grounds by the ECJ or other courts; a flood of scholarship is emerging in Europe to explain those doctrines (curiously largely uncommented in the US academic literature), and there is not a clear consensus on what they mean. However, it is not beyond all political imagination to suggest the feature of those decisions is a Security Council decision that is seen to be taken at the behest and for the benefit of the superpower, the US. A court might talk loftily about how everything is subject to human rights considerations, but it is not beyond imagining that, in a European court's eyes, even without recourse to human rights claims, Security Council resolutions seemingly to benefit one P-5 member, even assented to by the Council, and even apparently binding under the Charter, should be seen as somehow less binding than something that seems to be more to the benefit of the whole, and not the product of bargaining. It is not a crazy moral position, in fact - but seems to me to have little support in the way that Europe has traditionally seen the Charter as a legal document. What it does seem to me to be is a sideways move to reform the role of the P5 without actually altering its composition. The way in which sanctions against Libya were seen from by European states from the get-go, despite the legal command of the Security Council resolutions, suggests that the Kadi decision need not necessarily be understood as a matter of human rights, or at least not exclusively as a matter of human rights, but instead as both a simple political proposition about global consitutionalism by the EU, but also an indirect move to alter power relations among the P5 by judicializing them. The history of Libya and Pan Am 103 in the Security Council is not irrelevant to that.