Composed as above,
Having regard to Articles 41 and 48 of the Statute of the Court, and to Articles 73 and 74 of the Rules of Court,
Having regard to the Application by the Socialist People's Libyan Arab Jamahiriya (hereinafter called "Libya") filed in the Registry of the Court on 3 March 1992, instituting proceedings against the United States of America (hereinafter called "the United States") in respect of "a dispute... between Libya and the United States over the interpretation or application of the Montreal Convention" of 23 September 1971, a dispute arising from acts resulting in the aerial incident that occurred over Lockerbie, Scotland, on 21 December 1988,
Makes the following Order:
"On 14 November 1991, a Grand Jury of the United States District Court for the District of Columbia, United States of America, indicted two Libyan nationals (the 'accused') charging, inter alia, that they had caused a bomb to be placed aboard [that flight]... which bomb had exploded causing the aeroplane to crash" ;
and whereas Libya also refers, in this connection, to Article 1 of the Montreal Convention, contending that the acts alleged by the indictment constitute an offence within the meaning of that provision;
2. Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offences mentioned in Article 1, paragraph 1 (a), (b)and. (c), and in Article 1, paragraph 2, in so far as that paragraph relates to those offences, in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article.
3. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law."
"'Article 7. The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State."
2. If a Contracting State which makes extradition conditional on the existence of a treaty receives a request for extradition from another Contracting State with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of the offences. Extradition shall be subject to the other conditions provided by the law of the requested State.
"Article 11. 1. Contracting States shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offences. The law of the State requested shall apply in all cases.
2. The provisions of paragraph 1 of this Article shall not affect obligations under any other treaty, bilateral or multilateral, which governs or will govern, in whole or in part, mutual assistance in criminal matters";
"(a) that Libya has fully complied with all of its obligations under the Montreal Convention ;
(b) that the United States has breached, and is continuing to breach, its legal obligations to Libya under Articles 5 (2), 5 (3), 7, 8 (2) and 11 of the Montreal Convention ; and
(c) that the United States is under a legal obligation immediately to cease and desist from such breaches and from the use of any and all force or threats against Libya, including the threat of force against Libya, and from all violations of the sovereignty, territorial integrity, and the political independence of Libya" ;
"(a) to enjoin the United States from taking any action against Libya calculated to coerce or compel Libya to surrender the accused individuals to any jurisdiction outside of Libya; and
(b) to ensure that no steps are taken that would prejudice in any way the rights of Libya with respect to the legal proceedings that are the subject of Libya's Application" ;
"taking into account both the absence of any concrete showing of urgency relating to the request and developments in the ongoing action by the Security Council and the Secretary-General in this matter... the action requested by Libya... is unnecessary and could be misconstrued" ;
on behalf of Libya :
H.E. Mr. A1 Faitouri Sh. Mohamed, Agent,
Mr. Ian Brownlie, Q.C.,
Mr. Jean Salmon,
Mr. Eric Suy;
on behalf of the United States:
The Hon. Edwin D. Williamson, Agent,
Mr. Alan J. Kreczko, Deputy Agent,
Mr. Bruce C. Rashkow,
Mr. Charles N. Brower,
Mr. Jonathan B. Schwartz;
and whereas during the hearings questions were put by Judges, to which the Parties subsequently replied in writing, within the time-limit fixed pursuant to Article 61, paragraph 4, of the Rules of Court;
"Libya hereby confirms that it is requesting the Court to indicate the following provisional measures :
(a) to enjoin... the United States... from taking against Libya measures calculated to exert coercion on it or compel it to surrender the accused individuals to any jurisdiction outside of Libya; and
(b) to ensure that no steps are taken that could prejudice in any way the rights of Libya with respect to the proceedings instituted by Libya's Applications" ;
" May it please the Court,
On behalf of the United States of America, to reject the request of the Government of the Great Socialist People's Libyan Arab Jamahiriya for the indication of provisional measures of protection, and not to indicate any such measures";
"Any dispute between two or more Contracting States concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months of the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court" ;
"The British and American Governments today declare that the Government of Libya must :
— surrender for trial all those charged with the crime; and accept responsibility for the actions of Libyan officials ;
— disclose all it knows of this crime, including the names of all those responsible, and allow full access to all witnesses, documents and other material evidence, including all the remaining timers ;
— pay appropriate compensation.
We expect Libya to comply promptly and in full" ;
"The Security Council,
Deeply disturbed by the world-wide persistence of acts of international terrorism in all its forms, including those in which States are directly or indirectly involved, which endanger or take innocent lives, have a deleterious effect on international relations and jeopardize the security of States,
Deeply concerned by all illegal activities directed against international civil aviation, and affirming the right of all States, in accordance with the Charter of the United Nations and relevant principles of international law, to protect their nationals from acts of international terrorism that constitute threats to international peace and security,
Deeply concerned over the results of investigations, which implicate officials of the Libyan Government and which are contained in Security Council documents that include the requests addressed to the Libyan authorities by France1,2, the United Kingdom of Great Britain and Northern Ireland2,3 and the United States of America2,4,5 in connection with the legal procedures related to the attacks carried out against Pan American flight 103 and Union de transports aériens flight 772;
2. Strongly deplores the fact that the Libyan Government has not yet responded effectively to the above requests to cooperate fully in establishing responsibility for the terrorist acts referred to above against Pan American flight 103 and Union de transports aériens flight 772;
3. Urges the Libyan Government immediately to provide a full and effective response to those requests so as to contribute to the elimination of international terrorism;
Deeply concerned that the Libyan Government has still not provided a full and effective response to the requests in its resolution 731 (1992) of 21 January 1992,
Convinced that the suppression of acts of international terrorism, including those in which States are directly or indirectly involved, is essential for the maintenance of international peace and security,
Determining, in this context, that the failure by the Libyan Government to demonstrate by concrete actions its renunciation of terrorism and in particular its continued failure to respond fully and effectively to the requests in resolution 731 (1992) constitute a threat to international peace and security,
Acting under Chapter VII of the Charter,
1. Decides that the Libyan Government must now comply without any further delay with paragraph 3 of resolution 731 (1992) regarding the requests contained in documents S/23306, S/23308 and S/23309;
2. Decides also that the Libyan Government must commit itself definitively to cease all forms of terrorist action and all assistance to terrorist groups and that it must promptly, by concrete actions, demonstrate its renunciation of terrorism;
3. Decides that, on 15 April 1992 all States shall adopt the measures set out below, which shall apply until the Security Council decides that the Libyan Government has complied with paragraphs 1 and 2 above;
7. Calls upon all States, including States not members of the United Nations, and all international organizations, to act strictly in accordance with the provisions of the present resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to 15 April 1992" ;
"That resolution, adopted pursuant to Chapter VII of the United Nations Charter, 'decides that the Libyan Government must now comply without any further delay with paragraph 3 of resolution 731 (1992) of 21 January 1992 regarding the requests contained in documents S/23306, S/23308 and S/23309'. It will be recalled that the referenced requests include the request that Libya surrender the two Libyan suspects in the bombing of Pan Am flight 103 to the United States or to the United Kingdom. For this additional reason, the United States maintains its submission of 28 March 1992 that the request of the Government of the Great Socialist People's Libyan Arab Jamahiriya for the indication of provisional measures of protection should be denied, and that no such measures should be indicated";
By eleven votes to five,
Finds that the circumstances of the case are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.
in favour: Vice-President Oda, Acting President; President Sir Robert Jennings ; Judges Lachs, Ago, Schwebel, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley;
against : Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola; Judge ad hoc El-Kosheri.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this fourteenth day of April, one thousand nine hundred and ninety-two, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Libyan Arab Jamahiriya and the Government of the United States of America, respectively.
Vice-President Oda, Acting President, and Judge Ni append declarations to the Order of the Court; Judges Evensen, Tarassov, Guillaume and Aguilar Mawdsley append a joint declaration to the Order of the Court.
Judges Lachs and Shahabuddeen append separate opinions to the Order of the Court.
Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola and Judge ad hoc El-Kosheri append dissenting opinions to the Order of the Court.