The Lockerbie Case: the role of the Security Council in enforcing the principle aut dedere aut judicare

Abstract

The article considers the history of the attempts to extradite or otherwise bring to trial the two Libyans suspected of carrying out the bombing of Pan Am Flight 103 over Lockerbie in 1988. As a result of sanctions and other diplomatic pressure, Libya did eventually agree to 'hand over' the suspects for trial in the Netherlands. The article considers whether the case has modified the law governing international cooperation in criminal matters, and specifically whether a 'third alternative' been added to the traditional aut dedere aut judicare principle — aut transferere. Under this principle, the requested state has hitherto had only two options: either to submit the case to its own competent authorities for prosecution, or to surrender the defendant to the authorities of the requesting state. Has the discretionary power of the requested state now increased and broadened by encompassing also the 'middle path': neither extradition, nor prosecution, but 'delivery' of the accused to a third state? Is the Security Council now playing a new role as an 'enforcer' of the principle of aut dedere aut judicare? If so, this raises further questions, such as the scope ratione materiae of the modified principle.