»  National Review Online

January 16th, 2001

  The Lockerbie Trial: Is Law-Law Better than War-War?

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Last Tuesday the prosecution rested its case in the trial of the Lockerbie bombers, two Libyans accused of blowing up a jumbo jet over Scotland in 1988.

Lost your attention? Yes, I know, this is one of those news stories that seems to have been bobbing about in the media for ever. The bombing was, of course, awful, and we were all horrified at the time. But that was twelve years ago, and a great many awful things have happened since then. Unless you are a relative or friend of one of the 270 who perished in that atrocity (and if you are, I offer you my heartfelt sympathy, and hope you will not take offense at what follows), the Lockerbie bombing is by now pretty low down on your list of things to be bothered about.

You should be bothered about it, though, because it offers a little morality tale about the state of the world we live in.

To recapitulate very briefly: on December 21st 1988, in the fading twilight of the last Reagan administration, Pan Am flight 103 exploded over Scotland. Large pieces of the plane fell on the village of Lockerbie. All 259 people on board the plane were killed. So were 11 more on the ground. Corpses, most with their faces frozen in expressions of utmost horror — they knew they were going to die — were scattered over houses, fields and farms. Sixty landed in a single garden.

It was quite quickly established that the disaster had been caused by a bomb placed on the plane. Iran came under suspicion at once: just five months earlier, a U.S. warship had accidentally shot down an Iranian passenger plane in the Persian Gulf, killing all on board. Iran had vowed revenge. A long investigation by Scottish police, however, implicated two Libyans, employees of Libyan Arab Airways working in Malta at the time of the bombing. A key piece of luggage was known to have originated in Malta.

By the time all this was put together, the two suspects were back in Libya, and Colonel Gaddafi, the Libyan dictator, was not inclined to hand them over. Sanctions were imposed. Negotiations were undertaken (by, amongst others, Gaddafi's friend and admirer, Nelson Mandela). Eventually, in March of 1999, a deal was struck. The two suspects would be handed over to the Scottish authorities for trial, under certain conditions. Among those conditions: that the trial be conducted on neutral ground, and that there be no jury.

The trial began in May last year, in Utrecht, the Netherlands, before three Scottish judges. It was conducted under Scottish law. (Which is actually similar to Dutch law. Literary folk may recall that the young James Boswell, as part of his training for the Scottish bar, undertook studies in Utrecht.) There were three charges: murder, conspiracy to murder, and destruction of an aircraft. The latter two charges were dropped later, however, the prosecution apparently confident that it could prevail on the murder charge alone.

The prosecution's case was mainly a mass of circumstantial evidence — which, contrary to a widespread popular belief, is sufficient to establish guilt, if its quantity and quality are persuasive enough. No-one had seen either of the accused handling the bomb, or heard them talking about it. They are not known to have been involved in any other terrorist action. The elder of the two is thought to be a high-ranking officer in Libya's intelligence services, but nobody seems to know this for sure.

The main defense argument was that the bombing was done by someone else — Palestinians based in Syria, acting under orders from Iran. They also made the usual allegations of misconduct by investigators — tampering with evidence and so on. In one of the few episodes of light relief, the ubiquitous Pierre Salinger, conspiracy theorist par excellence and former press secretary to JFK, was brought on to say that he knew who had done it but could not tell.

And now the trial has come to an end. A verdict is expected by month end. Under Scottish law, three verdicts are possible: "guilty," "not guilty" and "not proven." The last of these indicates a weight of proof against the accused that is not quite sufficient to convict — the accused goes free, but with a shadow on his reputation.

Now, you may think this is all fine and dandy. Opinion among the relatives of the victims is divided, but most seem satisfied with the trial and hopeful for a conviction.

I can't agree. I think the whole thing has been a travesty. I quite understand that the relatives are glad to see any kind of conclusion to the matter — the word "closure" is inevitable in this context — and I don't feel particularly happy about second-guessing them after their unimaginable grief and pain. However, I think the nations to which most of the victims belonged — the US and the UK — have been craven and foolish, and will pay a price.

Look: Whether or not these are the men who planted the bomb, does anyone really believe they were acting on their own initiative? That they were sitting over a couple of beers one night at some shebeen in downtown Valletta when, entirely out of the blue, al-Amin Khalifa Fhimah said to Abdel-Baset Ali Mohmed al-Megrahi: "Hey! I know what! Let's blow up an airplane! Teach those stinking Yanks a lesson!" Does anybody think this? The bombing of Pan Am 103 was an act of state terrorism. Who doubts it? The only questions in the matter are: Which state? And: What do we do about it?

To which questions, the answers are in fact rather plain. So plain that even Bill Clinton was able to give them. Clinton was not actually talking about the Lockerbie bombing, though he might as well have been. He was addressing a different act, the terrorist murder of 19 USAF personnel in Khobar, Saudi Arabia, in June 1996. Clinton vowed to take military action "against any foreign power suspected of involvement in the attack."

That is, of course, the correct approach. Acts of state-sponsored terrorism like those at Lockerbie and Khobar are acts of war, perpetrated by one state against another. They do not call for criminal prosecution against individuals, even when those individuals can be identified, but for the destruction of the offending state's military and economic assets. Nor is the identity of the offending state any big secret. Iran is the prime mover in both the Lockerbie and Khobar cases, with Syria, Libya and various freelance Palestinian groups as accessories before the fact. Lockerbie was Iran's revenge for the shooting down of their own plane (see above). Khobar was part of Iran's well-advertised campaign to get the U.S. out of the Persian Gulf.

So we let slip the dogs of war, right? Launch punishment raids against Iran, Syria and Libya, right? Well, this is where things get awkward. By the time it was possible to point a finger at Iran, the first Bush administration was deep into an attempt to "normalize" US-Iranian relations as part of its larger Gulf and Iraq strategy. The possibility of action against Syria came up against the perennial hope, shared by all recent administrations, of brokering a peace deal between Syria and Israel — no doubt a thing worth doing, if it can be done. With no action possible against Iran or Syria, there didn't seem to be much point, or justice, in proceeding against Libya alone.

Hence the trial. With state-on-state action precluded by strategic and diplomatic considerations, there was nothing for it but to send the generals home and bring on the lawyers. This anyway suited the modern American sensibility, with its belief that a good courtroom drama is the solution to every problem. And let's be frank: it's easy for armchair pundits like me to talk about making war on Iran, but imagine what that would actually involve. Diplomatic ructions aside, it would involve maiming and killing people, including quite certainly civilians as innocent of any crime as my own wife and children. It would probably involve the death, crippling or blinding of some US service personnel, or their capture and confinement in Iranian jails for a decade or two, with moldy food and regular beatings. Do we really want to do that, all in aid of upholding some dusty Old Testament precept about an eye for an eye? Winston Churchill, who had seen combat at close quarters, said: "Jaw-jaw is better than war-war." We all like to poke fun at lawyers, but isn't law-law also better than war-war?

Perhaps so. Yet I can't help but wonder what will follow all this rationalizing. A nation blew up our plane, murdered our people, and we did … nothing to that nation. They blew up our people in Khobar and we did … nothing. (Clinton's vow of revenge was, of course, as empty of intention as everything else he has ever said that did not involve his own personal advancement, or the destruction of his personal enemies.) Sure we had excellent reasons for doing nothing. Excellent reasons. And we are, after all, a mighty nation. We don't have to jump every time some dog-patch despotism takes a pot shot at us, do we? Aquila non capit muscas.

And yet … those were our people, and we did … nothing. Well, not quite nothing: we winkled out a couple of suspects from Libya and gave them a trial of sorts (after twelve years). They might get off, though. They might, in fact, be the wrong guys: are you quite sure that Colonel Gaddafi would hand over to us anyone he didn't want to hand over? Even if found guilty and sent to jail, how long will they stay there? You think a nation — even a nation as messed-up as Libya — doesn't have ways to spring a couple of guys out of a Scottish jail? Just what is the record of nations keeping terrorists in jail for the full duration of their sentences, by the way? (You could ask the people of Northern Ireland about that.)

I yield to nobody in my respect for the law. The law that is played out in courtrooms, however, is not the only kind of law. There is also a law of nations, that sometimes needs to be carried out by other means. Was Colonel Gaddafi watching the slow deliberations in that Utrecht courtroom? Were the mullahs of Tehran? With what kind of expressions on their faces?

I don't believe we have done ourselves any favors with our restraint, our diplomatic calculations, our dogged legalism. I think we have made fools of ourselves, made ourselves look weak, and stored up trouble for ourselves in the future. It may be a bit much to hope that politicians might learn from each other's mistakes; but there is a new administration in Washington next week, staffed by some people who actually know which end of a field piece the shell comes out of, or (in Dubya's case) how to get a fighter plane off the ground and back down again in one piece.

Perhaps the next time some towel-head camel-kissing braggart decides to shower American corpses over peaceful farmland, he will find himself facing the appropriate response — which is to say, all the furies of hell let loose, for weeks at a stretch, against his ships and planes and tanks, against his harbors and airfields and barracks, against his refineries and drilling platforms, his factories and power plants, his TV stations and government offices, his highways and bridges and railroads, until there isn't anything left worth burning.

I don't believe the choice is to do such a thing or not do it. I believe the choice is to do it in these times, on our own initiative, when we are militarily supreme and can do it with small cost; or to wait until we are driven to it by some atrocity too large to let stand, so large that our own people will not let it stand, but at a time when the odds against us are longer, the dangers to our troops greater, than they were in 1988 or 1996. There is, as I said, another kind of law beyond courtrooms and witnesses and judges, a law of nations. To break that law, or neglect it, brings its own penalties.