Megrahi: Cameron misses the hippo in the drawing-room
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.