Lockerbie-style trial on neutral soil could be America's best option for legal deal

Terror in America: Justice
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The Independent US

The Taliban's offer to hand over Osama bin Laden to a neutral country so that he can be tried in an Islamic court will be almost certainly unacceptable to the American government.

Washington will want Mr bin Laden and any other suspects to face justice in a US federal court. George Bush and his advisers know a not-guilty verdict, reached in secret by a group of clerics, could inflame an already volatile political situation.

But if this is the only deal on offer – and the Americans can be reassured that the clerics will make an impartial judgment – then they might have to accept it. The key might be to persuade a US ally, such as Saudi Arabia or Kuwait, to host the trial.

Islamic courts are set up in accordance with the Koran and defendants who appear before them are tried by religious leaders. There is no jury and lawyers do not normally have a formal role. Stephen Jakobi, director of Fair Trials Abroad, said their rules and procedures varied from state to state. "The Taliban courts are the most strict, but some other countries take a more relaxed view and will allow foreign lawyers to attend," he said.

Ironically, capital punishment, one of the most controversial elements of Islamic justice, might help to win American approval for a trial in the Middle East.

America's desire to see Mr bin Laden sentenced to death could run into opposition from some of its European allies – under international law the maximum punishment for crimes against humanity is life imprisonment.

The US administration has raised expectations that this is an international problem which requires an international solution. From the start Mr Bush made very clear that last week's terrorist atrocities were not just an attack on America but an assault on the civilised world.

International criminal lawyers believe the most suitable forum for prosecuting the suspected terrorists is the proposed International Criminal Court (ICC) which was created by a 1998 treaty signed in Rome. But the ICC may not be ready to hear cases for at least another two years, and America has not yet ratified the treaty, which is still a dozen countries short of the 60 required signatories. The ICC does, however, give primacy to domestic courts.

In the end the political realities of bringing to justice Mr bin Laden might require the Americans to strike a deal with the Taliban similar to that agreed between America, Britain and Libya over the 1988 Lockerbie bombing. That trial took place on neutral soil in the Netherlands under a modified jurisdiction agreed by all parties.

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