Leading Article: The law can be slow and tortuous, but it is the only way
Tuesday 25 August 1998
Many people in this country may regard as absurd the suggestion that the two Libyans who stand accused of blowing up PanAm Flight 103 in December 1988 would not get a fair trial in Scotland. When the Libyan leader, Muammar Gaddafi, argued that his government would surrender the two men up only if the trial took place in a neutral country, it may have been a mere rhetorical dodge.
If it was a rhetorical dodge, however, that was all the more reason to call Col Gaddafi's bluff. Robin Cook, the Foreign Secretary, argues that the Conservative government was remiss not to have pursued all possible avenues. He is right - and most of the victims' relatives agree. There was some talk yesterday of "desecration". More typical, however, was Jim Swire, spokesman for the relatives in the UK, whose daughter was among the 259 who died in the disaster. He has long pressed for the trial to be able to go ahead - abroad, if need be - and yesterday described the mood as "euphoric".
In allowing the trial to go ahead on these terms, Britain and the United States - which have been holding discussions since last year on whether and how to find a compromise - are giving almost nothing up. The legitimacy of the trial has not been affected. You could hardly ask for a legally more scrupulous country than the Netherlands. To all intents and purposes, this will remain a Scottish case - heard under Scottish law, and judged by Scottish judges. The Libyan argument that any Scottish jury would be biased against the defendants has been neatly sidestepped: Britain argues that, purely because of the cost and logistical implications, a Scottish jury cannot be expected to stay in the Netherlands for the entire duration of the case. Hence, there is to be no jury.
So far, then, so good. Sudan has scuppered all those calculations. None the less, there could hardly be a worse moment for presenting such an arm-twisting compromise. If this new development had been announced a week ago, then there would have been at least a reasonable chance that other countries in the region might help to put pressure on Col Gaddafi to accept the deal. He would have been forced into a corner. But the bombing of Osama bin Laden's lair in Afghanistan and of the factory in Sudan definitively scuppered all those calculations.
It will now be far easier for the Libyan leader to defy the West and get away with it almost unscathed. Political solidarity by Muslim countries with Britain and the United States has, in recent days, become far more difficult; by the same token, solidarity with the monstrous Libyan regime has become much easier.
All of which is a reminder of what should have been clear even before the American action last Thursday evening: that the use of due legal process - even if it takes a tortuous 10 years to get to trial - is far more likely to bring genuine, long-lasting results than the apparent American penchant for due illegal process. There appears to be no clear evidence backing up the American assertion that the bombed Sudanese pharmaceuticals factory was producing nerve gas. George Robertson, the Defense Secretary, has talked of "independent evidence", but has failed to produce any. Even critics of the Sudanese regime have lined up behind the Khartoum government on this occasion.
It is not just a matter of ethics. Simple politics suggest that the law of the bully is ineffective, when applied to international politics. An inflexible stance can appear to be morally absolute. In reality, it is not just morally flawed. It can be counter-productive.
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