Because of the horrors unfolding in Libya, voices are again being heard calling for ‘humanitarian intervention’ by the west to protect the defenceless Libyan population from their deranged ruler. This activist climate seems to be affecting the Labour opposition’s front-bench spokesman on defence.
According to a Guardian report on 22 February 2011, Labour’s shadow defence secretary, Jim Murphy, plans to “resurrect the principles of liberal intervention espoused by Tony Blair but discredited by the Iraq war with a message to his party that they have a “responsibility beyond the UK’s borders”:
In an interview with Total Politics magazine, Jim Murphy has begun the task of persuading his colleagues they may have to intervene abroad again – despite many of them still being preoccupied by events in the run-up to and fallout from Iraq.
Referring to the 1999 intervention to defend Kosovans against Slobodan Milosevic, Murphy says: “If Kosovo were to happen in 2017, so we’re out of Afghanistan, I don’t want to get into a position where we would say, post-Iraq, post-Afghanistan, ‘we couldn’t do another Kosovo’.”
“It’s important to make that argument. I’m not trying to nudge things in favour of another military intervention anywhere but you shouldn’t let the residual real anger that there is about the Iraq war defeat the pride that we have in what we did in Kosovo.”
Ed Miliband, who spoke during his successful Labour leadership campaign of the “catastrophic loss of trust” between the party and the electorate over Iraq, is thought to agree with the sentiments in Murphy’s interview that new principles for intervention should be established.
Murphy’s thoughts will inform the two-year defence policy review he is undertaking while fellow Labour shadow cabinet members review their own policy areas.
He will build on his ideas in a speech at the Royal United Services Institute on March 3, in which he is likely to emphasise the need for greater public diplomacy ahead of interventions abroad. [Emphasis added.]
In all this, Mr Murphy is disastrously wrong in virtually every way, as I tried to point out in a letter published in the Guardian on 25 February 2011. In the slightly longer text submitted to the Guardian I wrote:
Someone needs to sit Labour’s shadow defence secretary, Jim Murphy, down somewhere comfortable and teach him about the failure of the disastrous NATO attack on Yugoslavia over Kosovo, and the elementary flaws in Tony Blair’s attempt to justify it with his discredited doctrine of ‘humanitarian intervention’ (Labour urged not to rule out military intervention, February 22nd): otherwise some future Labour government may be tempted to repeat past blunders instead of learning from them.
Contrary to the received wisdom, Mr Blair’s cheerleading of the NATO bombing failed to stop ethnic cleansing in Kosovo (the exodus of refugees out of Kosovo began only after the launch of the NATO attack), or to replace Serbian control of Kosovo by an international administration (that was achieved by flexible US-Russian-Finnish diplomacy when the bombing was going nowhere), or to topple Milosevic (the Serbian electorate did that months later). The NATO intervention was illegal (never authorised by the UN), based on a false prospectus (the Rambouillet conference concocted a pretext for attacking Serbia, not a basis for a peaceful settlement), unnecessary (the possibilities of a peaceful solution had not been exhausted) and incompetently executed (thousands of innocent civilians killed, non-military targets destroyed). If all that sounds familiar, it’s no coincidence. The delusion that the Kosovo aggression was both a success and a personal triumph for Mr Blair clearly encouraged a repetition of all the Kosovo blunders in Iraq, four years later. Never again, thanks, Mr Murphy.
Brian Barder
In his first speech as newly elected party leader to the party conference, Ed Miliband courageously risked the anger of the New Labour Old Guard by dissociating himself and the party from the criminal folly of the aggression against Iraq in 2003, although in somewhat more cautious language than mine (“I do believe that we were wrong. Wrong to take Britain to war and we need to be honest about that. Wrong because that war was not a last resort, because we did not build sufficient alliances and because we undermined the United Nations. America has drawn a line under Iraq and so must we…”) But precisely the same indictment needs to be levelled at the Kosovo intervention. Labour party supporters and members, including those who have joined or re-joined the party since last year’s election, will be dismayed if Mr Murphy is allowed to come up with a defence policy for the party which implicitly or explicitly endorses either the illegal and unsuccessful NATO aggression against Serbia over Kosovo (for which Tony Blair was self-appointed cheer-leader), or the deeply flawed doctrine of ‘humanitarian intervention’ preached by Mr Blair in his Chicago speech of 1999, at the height of the NATO bombing of Yugoslavia, later comprehensively dismantled and replaced by the UN-inspired “Right to Protect” (R2P) which has a completely different basis and which ensures respect for the UN Charter and for international law. Perhaps his more level-headed friends and colleagues will urgently draw Mr Murphy’s attention to the multiple failings of the Kosovo misadventure and to the replacement of Mr Blair’s Chicago doctrine by R2P, whose provisions will repay study, if possible before he enters into ill-conceived commitments in his speech to RUSI on 3 March.
Brian
Three cheers for The Scotsman, the first of the mainstream media to publish an article that at last spells out some of the questions arising from the contradiction between the Libya-UK Prisoner Transfer Agreement (which the Libyans and the Blair government wanted to use to transfer al-Megrahi, convicted of involvement in the Lockerbie bombing, from a Scottish to a Libyan prison) and the binding UN resolution which required Megrahi to serve his sentence in the UK. For the first time, too, the Scotsman article exposes the extraordinary arguments devised by the Blair government in an attempt to resolve the contradiction, asserting that despite the UN resolution there would have been no obstacle in international law to transferring Megrahi to a Libyan jail under the PTA, and offering a bizarre justification for the view that the UK could have transferred Megrahi without breaching its political commitment to the original initiative and without the need for the prior agreement of either the US government or the UN Security Council. And, finally, The Scotsman has done us all a favour by publishing the responses to the new article of both the Scottish Justice Secretary, Kenny MacAskill (who took the decision to release Megrahi on compassionate grounds, not to transfer him to a Libyan prison under the PTA), and also of the UK Foreign & Commonwealth Office, whose response seems to imply a failure to grasp the nature of the problem (for both responses, please read on). As the author of the Scotsman article, I have put its full text on my website at http://www.barder.com/lockerbie-megrahi-and-the-prisoner-transfer-agreement-a-mystery.
Previously classified documents now declassified and released by the Cabinet Secretary have thrown some new light on these still puzzling and potentially significant questions. Why did the Libyan president Col. Gadaffi and then UK prime minister Tony Blair attach so much importance to concluding a UK-Libyan Prisoner Transfer Agreement under which they clearly envisaged transferring al-Megrahi, convicted of involvement in the Lockerbie bombing and serving his sentence in a Scottish prison, to Libya to serve the rest of his sentence in a Libyan prison, when doing so would have contravened original US-UK initiative, formally approved in a mandatory UN Security Council resolution, which clearly stipulated that his sentence was to be served in the UK (i.e. Scotland)? And why has this glaring contradiction not been dragged out of the shadows and explored in parliament and the mainstream media while those involved — especially Tony Blair, Jack Straw and the Libyan Colonel — are still around to answer the questions and unravel the mystery?
At one stage in the negotiation of the PTA the UK government, at the prompting of the Scottish government, tried to include in the PTA a clause explicitly excluding Megrahi from its scope, precisely because of the provision in the original agreement that his sentence was to be served in the UK. This is confirmed in a letter from Lord Hunt [PDF file], a then junior minister in the Ministry of Justice, to the Scottish Justice Secretary, dated 17 August 2007:
The UK side later dropped the proposed exclusion clause under Libyan pressure, assuring the Scots that it would still be open to them to refuse any application for the transfer of Megrahi under the PTA. But since the UK side had admitted in writing that the PTA “would not cover al Megrahi”, what was the point of having the PTA? And why the U-turn later under which the UK side claimed that the PTA could have covered Megrahi after all?
The Scotsman‘s news story accompanying my article of 17 February helpfully includes the response of the Scottish Justice Secretary’s spokesman to the article:
A spokesperson for justice secretary Kenny MacAskill said last night: “Sir Brian is absolutely correct. It was clear that both the US government and the American families objected to prisoner transfer, and did so on the basis of formal agreements entered into by the UK Labour government in 1998 regarding the place of imprisonment of anyone convicted of the atrocity.
“That, indeed, is why the justice secretary rejected the prisoner transfer application.”
He added: “The justice secretary rejected prisoner transfer and granted compassionate release – an entirely different process involving different criteria – according to the due process and practice of Scots Law.”
This helpfully, and I think for the first time in a public statement, confirms that the reason for the consistent opposition of the Scottish government to the PTA, and to any suggestion that Megrahi could be transferred to Libya under it, was precisely that it contravened a key provision of the original initiative as approved by a Chapter VII Security Council resolution. But it would be useful to know whether Scottish ministers based their objections to the PTA on this contradiction in their correspondence with the UK government at the time when the UK was negotiating the PTA with the Libyans: and why they didn’t make public until now their reasons for objecting to the PTA.
The response of the Foreign & Commonwealth Office to my article was brief and not at all to the point. Can my old department’s spokesperson have had the remotest understanding of the questions posed by the article? –
A Foreign Office spokesman said: “The UK government believes it was the wrong decision to release Mr Megrahi.”
I continue to think that we are entitled to a better answer than that to these troublesome questions. To quote my own Scotsman article: Why did the UK agree a deal with Gaddafi to send Megrahi to a Libyan prison in defiance of a binding United Nations resolution? The Prisoner Transfer Agreement is obviously inconsistent with the US-UK initiative and thus with a binding UN resolution; so what was the point of the PTA? Did Tony Blair or Jack Straw point out to the Libyans during the lengthy negotiation of the Prisoner Transfer Agreement that under the US-UK initiative and the UN resolution Megrahi could not be transferred to a Libyan prison? If not, why not? Were the Libyans or indeed Blair and his accompanying officials aware of the inconsistency — one acknowledged in writing by a junior minister in the Ministry of Justice? Could they have failed to notice it? What were the grounds for the UK government’s assurance to the Scottish government that, despite Lord Hunt’s admission to the contrary, there would be no international law problem over transferring Megrahi under the PTA? How could the then UK government have justified departing unilaterally from the terms of the agreement and the UN resolution without the prior agreement of both the US government and the Security Council? Why has the new Tory government, ever hungry for sticks with which to beat its Labour predecessor, failed to raise these questions, instead contenting itself with holier-than-thou condemnation of MacAskill’s perfectly proper, legal and humane decision to release Megrahi on compassionate grounds? And why, until now, have neither the mainstream media nor, for the most part, the issue-addicted blogosphere, taken these matters up, explored them and demanded better answers than we have been fobbed off with so far? As the King of Siam memorably remarked: Is puzzlement.
Brian
It’s sad to have to record that on 10 February 2011 the house of commons debated and passed a motion[1] that asserted two indefensible propositions: that we should continue to deprive almost all prisoners of their right to vote, and that the European Court of Human Rights (ECtHR) was trespassing on parliament’s territory in ruling that the UK’s blanket ban, hitherto imposed without parliamentary debate, contravened prisoners’ fundamental rights under the Convention. It’s almost sadder to record that this scurrilous and retrograde motion was co-sponsored by Jack Straw, veteran Labour MP and former Labour home secretary, foreign secretary, “Lord” Chancellor and “Justice” Secretary, as well as just about everything else. The motion was carried by 234 votes to a measly 22 [2], plus two tellers for each side, with nearly two-thirds of MPs absent or abstaining.
For nearly five and a half hours MP after MP – the vast majority of them Tories — rose to announce that anyone who has been sent to prison for committing a crime forfeits the right to vote, as if this were an argument and not merely a statement of current fact. Most added a thunderous denunciation of the European Court for daring to challenge a mythical but much cherished treasure called ‘parliamentary sovereignty’. I watched much of the debate, with mounting gloom. The intellectual and even the ethical calibre of the vast majority who spoke was frankly lamentable. Even reading the full record of the debate in Hansard I could detect not a single valid argument for depriving people in prison of their vote as well as their liberty. Bad-mouthing the European Court because of disagreement with a specific ruling in a single case smelled in many cases like threatening the referee, with a generous helping of gut Europhobia thrown in (how many of the red-faced blusterers understood that the Court has nothing to do with the EU and that Britain had been largely instrumental in setting it up after the second world war, and accepting its jurisdiction?).
I longed to shout at the screen that the question is not whether we should give prisoners the right to vote, but rather what possible purpose is served by depriving them of it? There are positive grounds for encouraging prisoners to exercise their right to vote, as part of the rehabilitation effort to help them to see themselves as members of society with both rights and duties — an effort which, if successful, could only help towards a reduction in the rates of reoffending. Depriving them of the vote has the directly opposite effect: it sends a signal that they are to be treated as pariahs, unpersons, excluded from society, deprived not only of their liberty but also of the most basic right of a citizen, the right to vote: and if they are treated as being excluded from society, there’s an unmistakable implication that their duty to society has disappeared with their rights.
Many MPs who spoke carried on about “murderers and rapists”, as if that had anything to do with it. Some fundamental rights are obviously enjoyed by our fellow-citizens even after they have gone to prison, regardless of the gravity of their offence – the right to life and the right not to “be subjected to torture or to inhuman or degrading treatment or punishment“, are two obvious examples. Only vindictiveness and a morbid attachment to the idea of punishment argue for a maximum deprivation of rights rather than the minimum, namely that which flows logically from the basic deprivation of liberty which imprisonment entails. If anyone can point to a single rational purpose served by taking away this basic voting right from prisoners, I shall be very glad to know what it is. But I have yet to hear or read a single one.
There’s one category of prisoner for whom the deprivation of voting rights is especially and most obviously indefensible: namely, those serving IPPs (indeterminate sentences for public protection) who have served their tariffs and thereby completed the punishment deemed appropriate for their offences, but who are still in prison indefinitely, not any more as a punishment but in preventive detention, because a group of men in suits is frightened that they might reoffend if released. Some of these have now been in prison for several years beyond their tariffs and have virtually no hope of ever being released, because they can’t satisfy the parole boards that they won’t reoffend if released, and often can’t get places on the courses which parole boards in practice regard as a necessary (but by no means sufficient) condition for release. (More on this, if you’re interested, at http://www.barder.com/3013 and http://www.labourlist.org/ken-clarkes-proposals-on-ipps-deserve-a-heartfelt-welcome.) There’s no possible justification for punishing these people in their private Kafkaesque hell, and least of all for depriving them of the right to vote on top of all the other unjust deprivations that they suffer.
It’s profoundly depressing that Ed Miliband’s New Generation Labour seems to be about to try to out-do the Tories on this issue by being even more hard-line than the baying Tory blimps, reportedly preparing to demand that if the coalition plans to confine the voting ban to those serving sentences of more than four years (to avoid having to pay out millions of pounds in compensation for failure to act on the European Court’s ruling), that cut-off should be reduced to one year. I wonder what happened to Ed Miliband’s promises that under his leadership Labour would regain the ownership of the title of principal defender of human rights? It’s a relief of sorts to see that none of the principal members of Labour’s front bench voted for Straw’s miserable motion (nor did the coalition front bench); but sad that no Labour front bench stalwarts voted against it, either. All honour, then, to the gallant 22 plus two tellers who braved the scorn of the hangers and floggers to record their opposition to this grossly misconceived text (which appears below[1], along with the names of those[2] who bravely stuck their heads above the parapet).
[1] The motion read: Resolved, That this House notes the ruling of the European Court of Human Rights in Hirst v . the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.
[2] The roll of honour: those who voted against the motion were:
Beith, the Rt Hon Sir Alan; Bottomley, Sir Peter; Brake, Tom; Edwards, Jonathan; Foster, the Rt Hon Mr Don; Gardiner, Barry; Green, Kate; Hames, Duncan; Hermon, Lady; Hughes, the Rt Hon Simon; Huppert, Dr Julian; Jackson, Glenda; Llwyd, the Rt Hon Mr Elfyn; Love, Mr Andrew; Lucas, Caroline; McCarthy, Kerry; McDonnell, John; Munt, Tessa; Qureshi, Yasmin; Reid, Mr Alan; Williams, Hywel; Williams, Stephen; plus the tellers for the Noes, Jeremy Corbyn and Lorely Burt. Bravo!
Update (13 February 2011): The likely implications for Britain’s membership of the EU and the Council of Europe of a decision, unthinkable until now, to withdraw from the jurisdiction of the European Court of Human Rights and/or from the European Human Rights Convention itself are discussed in an informative and thoughtful blog post by the BBC’s Gavin Hewitt, here. (Hat-tip: Peter Harvey, once again.)
Brian
The prime minister’s statement in parliament on 7 February about the report by the Cabinet Secretary (pdf) on the newly released documents in the Megrahi case inexplicably ignored the major unresolved issue revealed by the documents, and focused instead on two fundamentally misconceived accusations against the Labour government and the Scottish Executive respectively. The missed opportunity was the obvious incompatibility between (1) Labour’s championing of the Prisoner Transfer Agreement with Libya, under which Labour ministers claimed that Megrahi could be transferred from Scotland to Libya to serve the rest of his sentence in a Libyan prison, and (2) the terms of the original ‘initiative’ of the US and UK governments, formally approved by a mandatory resolution of the UN Security Council, under which Megrahi was to serve his sentence in the UK.
I discussed this rarely ventilated issue in an earlier post on this blog in July 2010 (see the sources cited there and also the important and authoritative comments appended to it by others). I also raised it in a letter to the Guardian published on 26 July 2010, whose text is reproduced in my earlier blog post. Apart from a baffling and highly unconvincing attempt to resolve this incompatibility in an obscure and heavily redacted page of the FCO website, and discussed in a comment on my blog post of last July here, there had been no official explanation of the discrepancy until the Cabinet Secretary published a mass of documents alongside his report earlier this week. Many of them (none originally intended for publication) reveal agonised arguments with the Americans and terse exchanges with the Scottish Executive on precisely this problem: the original arrangement agreed with the US government and approved by the UN Security Council provided for the sentence of any Lockerbie suspect convicted of the crime to be served in the UK (i.e. in Scotland, as the whole process was to be under Scottish law): whereas the Prisoner Transfer Agreement provided for the prisoner, i.e. Megrahi, to serve the rest of his sentence in Libya.
The newly published documents show that this difficulty was never satisfactorily resolved between London and Washington, although the disagreement was deliberately concealed from the Scottish Executive. It emerges that the US and UK governments’ lawyers managed to construct some kind of argument — the details blacked out in the published documents — that despite the terms of the US-UK initiative and the UN resolution, there was no legal obstacle to using the Prisoner Transfer Agreement to get Megrahi back to Libya to serve out the rest of his sentence in a Libyan jail; but the Americans argued that as HMG had given them (the Americans) a political “assurance” that Megrahi would serve his sentence in the UK, he could not be released under the PTA without the prior agreement of the US government. The then UK government admitted that they had given such an “assurance” to the Americans but went on to argue, incredibly in my view, that that political assurance could not have been ‘absolute’ since (a) no government could bind its successor, and (b) there might be a change in UK-Libyan relations that would somehow nullify the assurance. The UK rejected the American claim that Megrahi could not be transferred to Libya under the PTA without prior American agreement.
Both these positions seem extraordinarily short on credibility. The document providing for any sentence to be served in the UK was formally endorsed by Security Council resolution 1192 of 1998. The resolution was explicitly passed under Chapter VII of the UN Charter, meaning that its provisions are binding on all UN member states in international law; and in it, among other solemn statements of approval of the document setting out the US-UK initiative, the Security Council “Calls upon the … Government of the United Kingdom to take such steps as are necessary to implement the initiative”, and “Decides that all States shall cooperate to this end” — in both cases deliberately using mandatory Chapter VII language. In these circumstances, it’s surely extraordinary for the US and UK government lawyers to argue that there was no legal obstacle to the UK contravening a key provision of the initiative by setting up an arrangement for Megrahi to serve part of his sentence in Libya. No wonder the basis for this highly counter-intuitive legal position seems to have been carefully redacted in the documents as released.
The position of the then UK government on the so-called “political assurances” given to the Americans (and, even more importantly, to the Security Council) that Megrahi’s sentence would be served in the UK is equally if not more unconvincing. It introduces the remarkable doctrine, surely new and significant, that there are two kinds of “assurance” given by one government to another: an absolute assurance and, presumably, a relative assurance: and that the latter can be varied or withdrawn at will by the assuring government without the agreement of the other party. Almost everything is wrong with this proposition. In the first place, the provision for the sentence to be served in the UK was not an assurance: it was a key feature of a formal document agreed between the US and UK governments setting out the arrangements for the trial and, in the event of a conviction, the punishment of the Lockerbie suspects. Nor was it simply something promised by one government to another: it was part of a proposal submitted for formal approval by the highest body of the United Nations, the Security Council, so in approving it and calling for the UK government to implement it in a binding resolution, the whole of the UN became as much a party to it as either the UK or the US government. Under the resolution the UN appointed observers to monitor its implementation and decided to “remain seized of the matter” — meaning that it remains formally on the Council’s agenda. To argue, as the then UK government did, that it was free unilaterally to vary the terms of the arrangement without the prior agreement of either its partner in the initiative or of the Security Council requires a certain chutzpah. The argument that a government commitment given to another government can’t be ‘absolute’ because no government can bind its successor is similarly unconvincing: all international agreements between governments remain binding, regardless of changes of government in the contracting states, unless the agreement expressly provides otherwise — which this one did not, and anyway could not have done once it was enshrined in a mandatory resolution of the Security Council.
Again on the Prisoner Transfer Agreement: the then British government knew that, rightly or wrongly, in the eyes of the Libyan government and population Megrahi was and is an innocent man, wrongly convicted in a massive miscarriage of justice. (They are incidentally not by any means alone in this view.) The idea that the Libyans would have agreed to keep Megrahi in a Libyan prison for years, or until he died of cancer, after his transfer from Scotland under the PTA is obviously pure fantasy. The day after Megrahi had been admitted to a Libyan prison under the Prisoner Transfer Agreement (if he had been transferred under its terms), his lawyers would have been in the Libyan courts arguing that his incarceration in Libya was plainly unlawful since it contravened arrangements which all UN member states were obliged to implement under a mandatory resolution of the Security Council. Since a mandatory UNSC resolution supersedes a bilateral Agreement such as the PTA, Megrahi would have had to be released, and would have emerged half an hour later into the arms of his family, his doctors and cheering crowds of Libyans. No wonder both the Americans and the Scottish Executive took such strong objection to the Prisoner Transfer Agreement and to any idea that Megrahi should be transferred to Libya under it. Messrs Blair and Straw, who were chiefly responsible for negotiating the PTA with the Libyans, trying to include a provision in it excluding Megrahi from it, and then yielding to Libyan pressure to withdraw the exclusion, still have a lot of explaining to do. (It would be unkind to point out that the same two politicians adopted a similarly cavalier attitude to international law and the sanctity of government commitments when, as prime minister and foreign secretary respectively, they took Britain into an illegal war with Iraq in 2003 — having similarly persuaded their lawyers to dream up a far-fetched legal justification for doing so.)
So much for the credibility of the then British government’s case for claiming that there was no incompatibility between the terms of the original initiative approved by the UN, and the possibility of transferring Megrahi to Libya under the Prisoner Transfer Agreement. Anyway, it enabled HMG to tell the Scottish First Minister, Alex Salmond, and the Justice Secretary, Kenny MacAskill, who had asked the question, that both the US and UK governments agreed that there was no legal impediment arising from the original agreement and the UN resolution to using the PTA to send Megrahi to serve out his sentence in Libya. It was decided to withhold from the Scots any knowledge of the US-UK disagreement over the implications of the political assurance that both sides acknowledged had been given. (In the words of the old Scottish anecdote: weel, they ken noo!)
The prime minister’s statement on 7 February not only failed, mysteriously, to make any mention of the former government’s shaky position on the conflict between the mandatory Security Council resolution and the Prisoner Transfer Agreement: the points he did make contributed considerably more heat than light, and MPs’ questions after it were not much better. Mr Cameron acknowledged that (in Sir Gus O’Donnell’s words) nothing in the voluminous documents he had reviewed “contradicts anything in the then Foreign Secretary’s statement to the House Of Commons (12 October 2009) or the current Foreign Secretary’s letter to Senator Kerry (23 July 2010), or statements made by the former Prime Minister on this matter”: there was no evidence of a conspiracy, either between the Libyans and the British government or between the British government and the Scottish Executive which alone, as everyone agreed, had the responsibility of deciding whether Megrahi should be released from his Scottish prison, and if so, whether he should be sent back to Libya to serve out the rest of his sentence in a Libyan prison under the UK-Libya Prisoner Transfer Agreement (PTA), the preferred option of the British government, or released on compassionate grounds, these being that he was dying of cancer and that the independent medical advice to Kenny MacAskill, the Scottish Justice Secretary, was that he would probably die within three months if he remained in prison.
David Cameron however complained passionately and repeatedly on two different scores: first, that the Scottish Executive’s decision to release Megrahi on compassionate grounds was in his (Cameron’s) view utterly wrong, in view of the gravity of the crime of which he had been convicted — he should have been kept in jail until he died, according to the prime minister; and, secondly, that although there had been no secret about the view of the previous British (Labour) government that Megrahi’s release would be in Britain’s best commercial, diplomatic and other material interests, that government had failed to disclose to parliament the fact that they were assisting Libya with information about the procedures for applying to the Scottish Executive for Megrahi’s release, either under the Prisoner Transfer Agreement or on compassionate grounds, regardless of whether this help was being given in (legitimate) response to Libya’s (legitimate) request for the information, or whether on their own (legitimate) initiative — legitimate because of their declared view that Megrahi’s release would be in the best interests of Britain.
Neither complaint seems to hold water. Whether the Scottish Justice Secretary’s decision to release Megrahi on compassionate grounds was right or wrong can only be a matter of subjective opinion. No-one has suggested that the decision was not taken after due process and in good faith; it was undoubtedly in full accordance with Scottish law and precedent; it was based on humanitarian considerations in preference to the demands of revenge and retribution. The Lockerbie victims’ relatives’ opinions were sought and provided, and taken into account: in any case, they were by no means unanimous. Mr Cameron’s opinion on the matter, leaning towards harshness rather than compassion, is really of little material interest. The decision was not his, nor even one for his Labour predecessor. There exists no objective standard by which to judge Mr MacAskill’s decision. Personally I think it was right and that it ought to be supported, or at least respected, by the UK prime minister as the legitimate decision of a component government of what is now the semi-federation of the UK.
Nor is there anything in David Cameron’s second complaint. In helping the Libyans with factual information about the procedures for an application for a prisoner’s release under Scottish law, the Labour government was acting in accordance with its publicly declared assessment of the national interest; and the information it gave the Libyans was all in the public domain, freely available for the asking. Had the government disclosed in parliament or elsewhere the details of these exchanges with the Libyans, it would have been vulnerable to the accusation that this amounted to pressure on the Scottish Executive to decide in favour of Megrahi’s release, and such pressure would have been regarded, not least by the Scots, as wholly improper — a point that none of the opposition MPs who spoke in the mini-debate on 7 February saw fit to make.
It’s strange, on the face of it, that the prime minister and his Conservative party supporters in parliament should have wasted their ammunition on two invalid targets while ignoring the one outstanding issue, nakedly exposed in a string of documents now released by the Cabinet Secretary, about which members of the Labour government at the time still have a good deal of explaining to do. In the words of the song: Well, maybe next year.
Brian
Is there no end to the muddle and misrepresentations generated by the controversy over the release by the Scottish government in August 2009 on compassionate grounds of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted (quite possibly wrongly) of responsibility for the 1988 Lockerbie bombing? The Daily Telegraph is the latest source of misinformation, based on yet more US diplomatic cables that it has received from WikiLeaks (Mr Assange’s latest quarrel having apparently been with the Guardian, no longer favoured with new batches of WikiLeaks). A Telegraph article on 31 January 2011 bore the sensational headline: “WikiLeaks cables reveal ‘cold, callous and brutal’ behaviour of ministers“, the first factual error: the cables reveal nothing of the sort, and it emerges later that the source of the allegation about ministers’ behaviour is an understandable but hardly authoritative comment by the mother of an American victim of the Lockerbie bombing.
Although the headline’s assertion purports to be based on “WikiLeaks cables” (plural), it is clearly based on only one of them, which reveals very little information that has not been publicly available for a long time. The article leans heavily on the assertion that “within a week of the diagnosis, Bill Rammell, a junior Foreign Office minister, had written to his Libyan counterpart advising him on how this could be used as the grounds of securing al-Megrahi’s compassionate release from prison.“ It’s clear from the actual text of the US cable, however, that the FCO was merely answering a Libyan government question about the procedure under Scottish law for applying for the compassionate release of a prisoner, information already in the public domain and of the kind routinely provided on request by one government to another. The spin put on this by the Daily Telegraph article challenges one’s confidence in the objective reporting and reliability of a major quality newspaper.
On other issues raised in the article, we have known all along that the UK government, with its sole responsibility for Britain’s foreign affairs and trade, had conveyed its views on the pros and cons of releasing Megrahi to the Scottish government which in turn had the sole responsibility for deciding whether and if so when and on what basis to release him: nothing remotely improper or surprising about that. It has also been repeatedly reported that the question of Megrahi’s future was discussed with the Libyans in the context of Britain’s commercial relations with Libya by Tony Blair and Jack Straw among others, although always on the clear understanding that the decision on this would be taken solely by the Scottish government: again, nothing new or improper in this even if it’s true. The repeated use in the article of such phrases as “It can now be disclosed that…” is seriously misleading, whether attributable to ignorance of the issues or to an intention to give the false impression that the Telegraph and WikiLeaks were together uncovering some hitherto well concealed villainy.
The Telegraph article strongly implies that its revelations are drawn from “more than 480″ US diplomatic cables now published on its website. In fact an examination of these texts (available at http://www.telegraph.co.uk/news/wikileaks-files/libya-wikileaks/) shows that barely a handful of them concern Lockerbie or Megrahi, and of those which do, the majority are factual reports on the decision to release Megrahi on compassionate grounds and on Megrahi’s return to Libya following his release. These, incidentally, show that the Libyans did to some extent respond to President Obama’s appeal to the Libyans to treat Megrahi’s return in a low key, contrary to the impression given in the UK and US media. They also make it clear that the vast majority of Libyans accepted their government’s assertion that Megrahi was innocent: they were celebrating his return to his homeland as an unjustly convicted victim of a great injustice, not welcoming him as a terrorist bomber. The Daily Telegraph article does not report any of this.
Nor does the article mention the disclosure in the cables, which was new to me (but perhaps not to others?), that in appealing to the Libyans to play their welcome of Megrahi in a low key, the US administration, from the President down, also appealed to the Libyans to keep Megrahi in a Libyan prison, or at the least under house arrest, out of respect for the life sentence that had been passed on him — on the face of it a doomed suggestion which took no account either of the Libyans’ position on Megrahi’s innocence, nor of the decision of the Scottish government to set him free on health grounds, nor of most Libyans’ sympathy with Megrahi as an innocent man who was the victim of a grave miscarriage of justice — a view shared, incidentally, by a number of the relatives of the Lockerbie bombing victims and of respected Scottish and other legal authorities. It’s a sound rule of diplomacy not to make demands of another government which have no prospect whatever of succeeding; such demands can only give the impression of misjudgement and misunderstanding on the part of the demandeur.
The American appeal to the Libyans to keep Megrahi in detention after his return is also strangely at odds with the clear provision in the original agreement, formally approved by UN Security Council resolution, that the Lockerbie suspects (of whom Megrahi was one) should serve their sentences, if convicted, in the UK — in practice meaning in Scotland, since the trial and its aftermath were all conducted under Scottish law. Not only would this have ruled out on legal as well as political grounds any idea of the Libyans locking up Megrahi to serve the rest of his sentence in a Libyan prison, as demanded by the Americans: it would also have ruled out any idea of sending Megrahi back to Libya to serve out his sentence there under the UK-Libyan Prisoner Transfer Agreement, one of the options constantly discussed with the Libyans as if it was a possibility. I have discussed this mystery more fully in an earlier post on this blog in July 2010 (see the sources cited there and also the important and authoritative comments appended to it by others), so there’s no need to go further into it here except to note that the WikiLeaked cables show no awareness of it, and neither does the Daily Telegraph article.
One other point of interest emerges from the WikiLeaked cables (also ignored by the Telegraph article): the US embassy in Libya reports being told by its British colleagues that according to what the Scottish First Minister, Alex Salmond, had told the UK government, the decision whether or not to release Megrahi on compassionate grounds would ultimately be taken by Salmond himself, not by the Scottish Justice Secretary, Kenny MacAskill, whose responsibility it would ordinarily have been. In the event both Salmond and MacAskill have emphasised that it was MacAskill who took the decision on Megrahi’s release and that he accepted the full responsibility for it, although Salmond has always supported it. Of course the US report of what they thought they had been told by their British embassy colleagues may have been mistaken, or the FCO in London may have misunderstood what Salmond had told them, or Salmond may have changed his mind about who should take the decision. But it’s an interesting and probably new snippet of information emerging from the leaked cables on this subject.
One indictment might however emerge from all this, although it’s doubtful whether there’s anything new in it. Labour ministers privately assured both the Libyans and the Scottish government that they didn’t want Megrahi to die in prison and that they would favour his release, not least because his release would be helpful in the context of UK-Libyan commercial relations (a perfectly legitimate consideration, by the way, although not one that Scottish ministers could or would take into account in their decision on Megrahi’s release). But my impression is that in public Blair, Straw and perhaps subsequently Gordon Brown opposed any decision to release “the Lockerbie bomber”, although perhaps only after the event. (Can anyone produce chapter and verse for this?) If so, this would have reflected a dilemma for any British government: open support for Megrahi’s release would have been deeply offensive to American public opinion, to most American families of the Lockerbie victims (although not to all the British victims’ families), and to the US government and Congress. It would also have laid the UK government open to the accusation of improperly trying to influence a decision which belonged solely to Scottish ministers. At the same time, releasing Megrahi was obviously in the legitimate commercial interests of the UK and UK ministers were fully entitled to make sure that the Scottish and Libyan governments knew it. Certainly when David Cameron succeeded Gordon Brown as prime minister, he cheerfully joined President Obama in strongly denouncing the Scottish government’s decision. No doubt at that early stage in his premiership he had no wish to anger the American President, Senators and victims’ families who were professing (with varying degrees of apparent sincerity) outrage over Megrahi’s release; and neither the Blair nor Brown nor Cameron governments felt themselves under any obligation to support an SNP separatist government in Edinburgh, even when it had acted in a way that benefited the overall interests of the UK.
So the mysteries remain unsolved; the Daily Telegraph homes in on the wrong issues; and meanwhile so far as we know Abdelbaset Ali Mohmed al Megrahi is still alive. I wonder whether we shall ever know the truth.
Brian
