Lockerbie
On August 20, 2009, the Scottish justice secretary, Kenny MacAskill announced his decision to release Abdelbaset Ali Mahmud al-Megrahi of Libya, who was convicted of murder in relation to the terrorist bombing of Pan Am Flight 103 over Lockerbie, Scotland, on December 21, 1988. Secretary MacAskill justified his decision on compassionate grounds, noting that al-Megrahi suffered from terminal prostate cancer and was facing imminent death according to doctors attending him in Scotland.
The fact that the crime for which al-Megrahi was punished took place on an American airliner over Scottish skies made this an international issue. For a variety of reasons, the process by which he was tried, his sentence, and many of the other details surrounding his prosecution created international political complications. At the very outset, the location of al-Megrahi’s trial became a point of heated dispute among the American, British, and Libyan authorities. Al-Megrahi was living in Libya when he was accused of helping orchestrate the bombing, and the refusal of the Libyan government to put him on trial resulted in sanctions by the United Nations Security Council. After much debate, and prompted by the last-minute intervention of Nelson Mandela with the Libyan leader Muammar al-Gaddafi, two suspects were sent to The Hague, where it had been agreed they would be tried, though by Scottish judges under Scottish law.
On January 31, 2001, the judges found al-Megrahi guilty of murder, but released his alleged coconspirator, Al Amin Khalifa Fhimah. Subsequent to his exhaustion of the appeals process, al-Megrahi was sentenced to life in prison and sent to a facility outside Glasgow. On June 10, 2002, Nelson Mandela again intervened, asking that al-Megrahi be placed in a prison in an Arab country (presumably Libya), where his Islamic religion would not make him subject to abuse by other prisoners, a request that was denied at the time. In autumn 2008 he was diagnosed with prostrate cancer, the condition that eventually precipitated his release.
As these diplomatic complexities suggest, the trial and punishment of al-Megrahi was already creating international normative conflict before the decision to release him came about. On the one hand, Mandela is considered a genuine humanitarian who embodies the liberal ethos of the rule of law and democracy, both of which he helped to institute in a post-apartheid South Africa. At the same time, Mandela initially intervened while acting as president of an African country that positioned itself as a voice for an alternative international order, one that Libya’s Gaddafi also helped to constitute. This alternative order sees the politics of colonialism and imperialism as having contaminated international law by creating what many in the developing world believe to be a two-tiered system of justice—a belief substantiated by the fact that the ICC has only placed African conflicts on its docket and that the Rwandan tribunal has issued harsher penalties than the Yugoslav tribunal. Mandela’s eventual support for al–Megrahi’s release (at that time, as a former South African president) reflects the view of many in the developing world that the punishment for this act reinstates a particular Western legal order that does not correspond to their reality. Because punishment not only reflects values but reveals authority, those who have been left out of the construction of the current international justice system will continue to agitate against it.
The prosecution of al-Megrahi became the subject of complex legal and diplomatic negotiations that included American, British, and Libyan officials. Secretary MacAskill’s statement of August 20 provides a window into the issues surrounding the case. As he notes, “This is a global issue, and international in its nature. The questions to be asked and answered are beyond the jurisdiction of Scots law and the restricted remit of the Scottish Government.” Yet, despite this statement, he goes on to assert that this matter is one for the Scottish, not even British, government.
MacAskill was very clear about the various considerations that went into his decision, noting that he had met with representatives of the US government, the Libyan government, and families of both American and British victims. He acknowledged that neither the U.S. government nor the families of American victims believed releasing al–Megrahi was justified. He also stated that the British government in Westminster had not provided any guidance to him, which, coming from a Scottish nationalist politician, had distinctly political undertones. MacAskill said that according to the medical advice he had received, al-Megrahi had only three months to live, which made him eligible for compassionate release according to Scottish law. But what was perhaps most important, Secretary MacAskill pointed to the values that prompted his decision to release the prisoner. While explicitly noting that al-Megrahi was guilty, he concluded that releasing the prisoner was justified in accordance with the laws and values of Scotland:
