I read through the official documents on the al-Megrahi affair on Tuesday, just after they were released. (I was rejected for work experience by Newsnight once again, so I thought I may as well do something vaguely journalistic to make up for it. Yeah, I’m a sad individual.)
The UK Ministry of Justice, the UK Foreign Office, and the Scottish Government all released papers “relevant” to the Megrahi case because of media reports of a conspiracy. This Times analysis is a good summary of the document drop’s Megrahi-related revelations.
But the documents are far more interesting than just for what they say about the decision to release Megrahi. They are a devastating snapshot of UK policy towards a key state in the War on Terror since 2007.
And I’m going to argue that they provide more than a hint that those relations have evolved very haphazardly, very incompetently, and into a very dubious state indeed.
Full details below the fold.
A quick recap
Most news outlets led on a second-hand claim made by a Libyan minister that a Foreign Office minister had assured his government that Gordon Brown privately wanted the Lockerbie bomber to be released to Libya. Well, OK – Mr Brown is Prime Minister, and at a press conference yesterday he notably failed to set the record straight on what he really thinks of the release.
The really important narrative of the documents is this: the Libyan government increasingly aimed to make the transfer of Megrahi a precondition for further Anglo-Libyan co-operation, while the UK Government increasingly did not oppose that transfer. Specifically, the Justice Minister Jack Straw dropped his previous support for excluding Megrahi from a general prisoner transfer agreement with Libya. The UK Government nevertheless reiterated to all relevant parties the Scottish Administration’s preeminence in the matter. Scottish Ministers remained solely responsible for eventually releasing al-Megrahi on 20 August.
Is that clear? It is a bit Byzantine. Not as Byzantine as the development of UK policy towards Libya from 2007 to 2009, as shown in the documents.
Confused policy
Consider the context in which Megrahi’s possible release first emerged. Alex Salmond wrote to Tony Blair about how the prisoner transfer parts of a Memorandum of Understanding between the UK and Libya might affect the Megrahi case, getting in touch soon after the MOU was signed on Mr Blair’s visit to Libya in May 2007.
Number 10 passed it to the Ministry of Justice. The Ministry’s successive responses record very rapid changes in the UK’s Libyan policy – especially a deepening desire to secure judicial co-operation with Colonel Gaddafi’s government.
In attempting to assuage Mr Salmond’s concerns, Lord Falconer wrote that the May 2007 MOU was:
…an understanding that talks will commence in a number of separate areas, including prisoner transfer, but also judicial co-operation in civil and commercial matters, extradition and mutual legal assistance in criminal matters.
“It does not commit the Scottish Executive or indeed the UK Government to anything specific in respect of those four areas of policy,” he added.
But an earlier MOU of 18 October 2005 had set out specific terms for the deportation of “foreign nationals who threaten national security” to Libya – in other words, extradition, one of the four areas of policy. This MOU was part of a series of negotiations in 2005 with Middle Eastern and North African states on this matter, recorded in this FCO press release. It was a bit hard to miss.
This is not the only discrepancy. Flash forward to March 2009, to the Joint Human Rights Committee’s parliamentary review of a full Prisoner Transfer Treaty with Libya. This treaty had been signed in November 2008, but was still awaiting ratification at the time. (We’ll get to why the JHRC wanted to review it in a bit.) In written evidence to the Committee, Jack Straw said that:
In May 2007, the then Prime Minister signed a Memorandum of Understanding with Libya in which he committed the United Kingdom to concluding with Libya a prisoner transfer agreement, an extradition agreement, and agreements on mutual legal assistance and civil and commercial law.
I am not sure how Lord Falconer and Mr Straw could both have been correct in their views of the same MOU. You can’t at once agree to commence talks on something, and also to commit to concluding an agreement on what you are commencing to talk about. Can you? If you can, should you? Is that a sensible negotiation strategy?
In any case, surely the commitment to reach an agreement contradicts Lord Falconer’s statement that the MOU hadn’t committed the UK Government to “anything specific” in regard to those matters.
This chopping and changing of UK policy isn’t massively relevant to the Megrahi case. Still, the level of confusion is striking. The Libyans appear to have successfully bellyflopped the UK Government into hardening its policies in favour of engagement on Libyan terms. This did not leave the UK enough room for manoeuvre on the continued incarceration of the worst mass murderer in British history. I consider that worrying. It’s even more worrying, in fact, because both the MOUs and the Treaty were dodgy enough without Megrahi. Let’s see how dodgy.
The human rights background
This background is perhaps even less directly relevant to the Megrahi affair. Nevertheless, the 2005 MOU and the Prisoner Transfer Treaty are also notable for the human rights concerns that have swirled around them. Tuesday’s documents provide a hint as to how the Government dealt with these concerns.
Here is Jack Straw writing to Alex Salmond in November 2008, summing up his case for a non-exclusionary prisoner transfer agreement:
We currently have standard prisoner transfer agreements with 98 countries and, understandably, Libya does not want to be treated differently.
Really? The UK’s human rights obligations provided one very good legal reason why Libya would have to be treated differently, regardless of what Libyan officials wanted.
It goes like this. One could describe the state of the Libyan justice system in many ways, but ‘different’ would certainly be a basically accurate description, especially with regard to the proper protection of human rights, and proper safeguards against the use of torture.
The JHRC focused on this very area of difference in its review of the Treaty. As the Committee noted, the Prisoner Transfer Treaty contained even fewer human rights guarantees than the 2005 MOU. (Specifically, it allowed prisoners to be transferred without their consent, but without giving them a full right of appeal – indeed it was the first ever “non-consent” prisoner transfer agreement made by the UK. So Jack Straw was doubly wrong about different treatment for Libya).
Why is this important? Because the Special Immigrant Appeals Commission found (PDF) in 2007 that the assurances Libya made to the UK in the MOU left too high a risk that deportees could be tortured on return to Libya, when it ruled on the deportation of two Libyan nationals with ties to terrorism.
Exposing individuals to this level of risk violates the UK’s obligations to prohibit torture under Article 3 of the European Convention on Human Rights. The UK’s obligations here have extended to the extradition of individuals to non-ECHR states for a long time – since the case of Chahal v. United Kingdom before the European Court of Human Rights in 1996.
The Court of Appeal confirmed SIAC’s finding in 2008. Both the SIAC and Court of Appeal judgements strongly emphasised the unpredictable nature of decision-making in the Libyan government as a barrier to human rights protection.
In other words: Colonel Gaddafi was still too batshit insane to be trusted with anyone the UK might extradite to him. He might order them to be tortured himself, or he might not care or be able to stop others from doing it.
Not only was this assessment made after three or four years (at the time) of Libya integrating back into the international community under the UK’s wing. If we add this background to the Libyan bellyflop in evidence in the documents, the value of Anglo-Libyan rapprochement seems much more doubtful.
So, to sum up: what do the documents really tell us?
Bluntly, that Anglo-Libyan relations had come unmoored long before the Megrahi affair, damaging the benefits it has brought since 2004.
1. The UK has made “judicial co-operation” with Libya a costly priority. A priority large enough to make concessions over Megrahi in order to make the prisoner transfer treaty happen.
The UK declined to negotiate for an exclusion, and the UK declined to defend a 1998 agreement with the US regarding keeping persons convicted of the Lockerbie bombing in Scotland, when the Libyans made Megrahi the sine qua non for further co-operation. If those are not concessions, I don’t know what are. Ministers even deemed it acceptable for an inexperienced Scottish Administration to have deal with the consequences of these concessions when the Libyans came to collect.
2. Libya appears to have held the initiative in its relations with the UK since at least 2007. The documents show how Libyan officials were able to progressively make Megrahi’s release central to its co-operation on key interests between the two countries. Jack Straw’s change of heart on the exclusion of Megrahi from the putative PTA is testimony to this.
Having agreed with the Scottish Administration in September 2007 that an exclusion should be built into any PTA, Mr Straw had decided by December that this was no longer feasible; and, by February 2008, that a specific exclusion could no longer be considered “sensible” in light of the UK’s national interests. The pressure on Mr Straw can perhaps be explained by Mr Al-Obidi’s representation to the Scottish Administration in March 2009 that “catastrophic effects on the relationship between the Libya and the UK” would ensue if Mr Megrahi died in Scottish custody.
3. Libyan policy remains far too unpredictable. We can only wonder now what those “catastrophic effects” would have been. But it’s telling, surely, that Mr Alobidi could still threaten them after five years of working with the UK, even if it was probably a complete bluff.
The Libyans also reneged on a commitment the Scottish authorities about the nature of al-Megrahi’s transfer to Libya, were it to go ahead:
If Mr Al-Megrahi were to be transferred to Libya that it would be done quietly and peacefully and away from the glare of the media.
Yes, away from the glare of the media:
All of this only serves to underline what SIAC and the Court of Appeal had already said about the trustworthiness of the Libyan government.
Conclusion
Which leaves me to wonder about the big picture. The UK should engage with Libya. But not at any price. How far can the UK commit to deepening its détente with Libya while Gaddafi is still in power? How far should we go through humiliations like the way the Megrahi release took place? What will we get at the end?
We are not going to get Libyan renunciations of terrorism and weapons of mass destruction. We have them already. Gaddafi gave them to us in 2004, in what is still a major achievement for British diplomacy since September 11. He knows the price of reversing that renunciation.
We are not going to get judicial co-operation on terms that are fair, or moral, or effective at fighting terrorism. The documents make this clear, surely. If Libya would have stopped its anti-terror co-operation if Megrahi had been left to serve his sentence in Scotland – is that a reliable partner we want to keep for the future?
Libya couldn’t even keep a very public promise not to celebrate the return of a mass murderer on the actual airport tarmac, even after the Scottish Administration opted for compassionate release above Megrahi’s continued custody. What if it had been a prisoner transfer – would the Libyans simply have released Megrahi? What about prisoner transfers in general – if we ask the Libyans not to torture someone we deport to them, how can we trust them not to?
Hence why this quasi-journalistic rant has extended to 2000 words. Much of the news cycle on the Lockerbie release story was about “suggestions” of a conspiracy to release Megrahi for a “deal” with the Libyans. Well, there was no conspiracy – the documents show that to have been a load of rubbish, as I expected. But they also show a great deal of mistakes, confusion, and lack of attention to human rights in the UK’s entire Libya policy. That’s not good enough for the UK.
Because it’s incompetence, not conspiracy, that experience shows we should really be worried about when it comes to UK foreign policy in the Middle East.
/rant
UPDATE: Colonel Gaddafi proposes the abolition of Switzerland.
