Ostensibly, it was the Scottish Crown Office that brought the case against the two Libyans, Abdelbaset Ali Mohmed al-Megrahi and Al Amin Khalifa Fhimah, for the Lockerbie bombing, with the chief law officer of Scotland, the Lord Advocate, Colin Boyd, QC, leading for the prosecution. Ostensibly also, the trial was held in a Scottish Court under Scottish law, albeit outside Scotland at Camp Zeist in the Netherlands and without a jury.
Those divergences from the norm of Scottish justice were well known. But, there was another major divergence from the norm that was not well known: the official Scottish prosecuting team was prompted throughout by two state prosecutors from the US Department of Justice. These men were not named in any official court document. Nevertheless, they sat next to the official prosecution team throughout the trial and prompted the official team throughout.
In what was supposed to be a Scottish Court, the chief law officer of Scotland was under instruction by agents of a foreign government.
This remarkable fact emerged in a report on the Lockerbie trial to UN Secretary-General, Kofi Annan, by Hans Koechler. Koechler was an official UN observer nominated by Kofi Annan under Security Council resolution 1192 passed on 27 August 1998.
This resolution gave approval to the two Libyans being tried by a Scottish Court sitting in the Netherlands, and prescribed that UN sanctions against Libya would be suspended once the two Libyans surrendered to the jurisdiction of the Court there. It also invited the UN Secretary-General, Kofi Annan, "to nominate international observers to attend the trial" and a press briefing dated 28 April 2000 (see UN web site) announced his nominees:
"The Secretary-General named as his observers the following five people: Hairat Balogun of the Organization of African Unity and the Non-Aligned Movement; M.H. Beerenboom of the European Commission; Nabil El-Araby of the League of Arab States; and Hans Koechler and Robert Thabit of the International Progress Organization."
Koechler is an Austrian and a Professor of Philosophy at the University of Innsbruck. His report, dated 3 February, became public in early April. Beginning at paragraph 4, the report comments on the foreign presence on the prosecution team as follows:
4. As far as the material aspects of due process and fairness of the trial are concerned, the presence of at least two representatives of a foreign government in the courtroom during the entire period of the trial was highly problematic. The two state prosecutors from the US Department of Justice were seated next to the prosecution team. They were not listed in any of the official information documents about the Court's officers produced by the Scottish Court Service, yet they were seen talking to the prosecutors while the Court was in session, checking notes and passing on documents. For an independent observer watching this from the visitors' gallery, this created the impression of "supervisors" handling vital matters of the prosecution strategy and deciding, in certain cases, which documents (evidence) were to be released in open court or what parts of information contained in a certain document were to be withheld (deleted).
5. This serious problem of due process became evident in the matter of the CIA cables concerning one of the Crown's key witnesses, Mr. Giaka. Those cables were initially dismissed by the prosecution as "not relevant," but proved to be of high relevance when finally (though only partially) released after a move from the part of the defense. Apart from this specific aspect - that seriously damaged the integrity of the whole legal procedure -, it has become obvious that the presence of representatives of foreign governments in a Scottish courtroom (or any courtroom, for that matter) on the side of the prosecution team jeopardizes the independence and integrity of legal procedures and is not in conformity with the general standards of due process and fairness of the trial. As has become obvious to the undersigned, this presence has negatively impacted on the Court's ability to find the truth; it has introduced a political element into the proceedings in the courtroom. This presence should never have been granted from the outset
8. As a result of this situation, the undersigned [Koechler] has reached the conclusion that foreign governments or (secret) governmental agencies may have been allowed, albeit indirectly, to determine, to a considerable extent, which evidence was made available to the Court.
In general, the report expresses incomprehension at the verdict and concludes that political considerations have overridden a strictly judicial evaluation of the case. We quote:
11. The air of international power politics is present in the whole verdict of the panel of judges. In spite of the many reservations in the Opinion of the Court explaining the verdict itself, the guilty verdict in the case of the first accused is particularly incomprehensible in view of the admission by the judges themselves that the identification of the first accused by the Maltese shop owner was "not absolute" (formulation in Par. 89 of the Opinion) and that there was a "mass ofconflicting evidence" (ibid.). The consistency and legal credibility of the verdict is further jeopardized by the fact that the judges deleted one of the basic elements of the indictment, namely the statement about the two accused having induced on 20 December 1988 into Malta airport the suitcase that was supposedly used to hide the bomb that exploded in the Panam jet.
12. Furthermore, the Opinion of the Court seems to be inconsistent in a basic respect: while the first accused was found "guilty," the second accused was found "not guilty." It is to be noted that the judgement, in the latter's case, was not "not proven," but "not guilty." This is totally incomprehensible for any rational observer when one considers that the indictment in its very essence was based on the joint action of the two accused in Malta.
13. The Opinion of the Court is exclusively based on circumstantial evidence and on a series of highly problematic inferences. As to the undersigned's knowledge, there is not one single piece of material evidence linking the two accused to the crime. In such a context, the guilty verdict in regard to the first accused appears to be arbitrary, even irrational. This impression is enforced when one considers that the actual wording of the larger part of the Opinion of the Court points more into the direction of a "not proven" verdict. The arbitrary aspect of the verdict is becoming even more obvious when one considers that the prosecution, at a rather late stage of the trial, decided to "split" the accusation and to change the very essence of the indictment by renouncing the identification of the second accused as a member of Libyan intelligence so as to actually disengage him from the formerly alleged collusion with the first accused in the supposed perpetration of the crime. Some light is shed on this procedure by the otherwise totally incomprehensible "not guilty" verdict in regard to the second accused.
14. This leads the undersigned to the suspicion that political considerations may have been overriding a strictly judicial evaluation of the case and thus may have adversely affected the outcome of the trial. This may have a profound impact on the evaluation of the professional reputation and integrity of the panel of three Scottish judges.
15. In the above context, the undersigned has reached the general conclusion that the outcome of the trial may well have been determined by political considerations and may to a considerable extent have been the result of more or less openly exercised influence from the part of actors outside the judicial framework - facts which are not compatible with the basic principle of the division of powers and with the independence of the judiciary, and which put in jeopardy the very rule of law and the confidence citizens must have in the legitimacy of state power and the functioning of the state's organs - whether on the traditional national level or in the framework of international justice as it is gradually being established through the United Nations Organization.
16. On the basis of the above observations and evaluation, the undersigned has - to his great dismay - reached the conclusion that the trial, seen in its entirety, was not fair and was not conducted in an objective manner. Indeed, there are many more questions and doubts at the end of the trial than there were at its beginning. The trial has effectively created more confusion than clarity and no rational observer can make any statement on the complex subject matter "beyond any reasonable doubt."
These devastating comments on the Lockerbie trial have had barely a mention in the British press. There was a report in Scotland on Sunday on 8 April, which prompted a letter in reply from one Sir Frederick O'Brien QC, a week later. Plainly, Sir Frederick had been selected to reply on behalf of the whole Scottish legal profession. He took particular exception to Hans Koechler's conclusion that the judges had allowed their verdict to be affected by political considerations, saying:"I have known the three judges for some 40 years, and like everyone else who has had the privilege of being their professional colleagues, have never before heard their professional reputations or integrity questioned."
He went on:
"You describe the author as a professor of legal and political philosophy whose writings include theology and morals. Before he mounted a catalogue of accusations against judges with a wealth of court experience I should have expected Prof Koechler to have played some active role in criminal trials during his own career. If he had, he might not have found so much "incomprehensible" as he did."
How could a mere professor of legal and political philosophy understand about such complicated things as identification evidence? It took three Scottish judges to add a novel dimension to Scottish jurisprudence whereby someone who looks like another person actually is that other person.
Professor Koechler presented his report to a conference on the Lockerbie trial in Cairo on 7-8 April. This was sponsored by the Arab League and the Arab Lawyers Union. In a declaration adopted at the end of the conference proceedings, the participants criticized the apparent political interference into the proceedings of the Scottish Court and called for a fair trial for Abdel Basset Al-Megrahi at the eventual Scottish Court of Appeal.