Icj Review of Security Council Decisions

The question of judicial review of the decisions of the major political organs of the United Nations (U.N.), and in particular, review of Security Council decisions by the International Court of Justice (ICJ), is well illustrated by the Lockerbie case1 that was before the ICJ for over a decade. Although the case was finally dismissed in late 2003 without a decision on the merits,2 it remains a fascinating model for analyzing the question of judicial review with respect to the decisions of the United Nation's major political organs, and in particular, review of Security Council decisions by the ICJ. This case involved on the one side, Libya, and on the other side, the United States and the United Kingdom.3 It remains a fascinating way to discussing this topic not only because the Locherbie case had the potential for becoming the major seminal case on the question of judicial review of U.N. Security Council decisions, but also because it illustrated the ways in which there may be interplay between the ICJ and the Council in a particular situation. The Lockerbie case arose out of the destruction of a U.S. airliner, Pan American Airlines Flight 103, over the town of Lockerbie, Scotland in December 1988. After a period of intense investigation by U.S. and British authorities, indictments were brought down in both the United States and the United Kingdom against two Libyan intelligence officers who were alleged to have planted the bomb that destroyed the aircraft.4 The United States and the United Kingdom immediately demanded that Libya turn over these individuals for trial in either one of their jurisdictions.5 Realizing, however, that Libya was highly unlikely to act on its own, the two States then sought Security Council action that would compel Libya to turn over the suspects. In January 1992, the Security Council adopted a resolution urging Libya to respond to these demands, but not requiring such action.6 The United States and the United Kingdom did intend to ask the Security Council to take the next step-using its mandatory authority under Chapter VII of the UN Charter-to compel Libya to turn the suspects over. Libya, of course, was interested in trying to deter or prevent the Security Council from taking such action, and so it hit upon the strategy of suing the United States and the United Kingdom in the ICJ.7 One may question how the alleged perpetrator of a major act of air sabotage could bring suit against the States of nationality of the victims. Libya attempted to do so on the basis of the Montreal Convention, which provides for investigation and prosecution of incidents of air sabotage.8 Libya alleged that the United States and the United Kingdom had denied Libya its rights under the Convention to investigate and possibly prosecute the incident itself. Specifically, Libya pointed to the provision of the Convention, which provides that a State in which persons who were alleged to have committed such acts of aircraft sabotage were found has the obligation to prosecute or extradite.9 Accordingly, Libya contended that it had the right to prosecute if it so chose and that it is a violation of the Convention for the United States and the United Kingdom instead to go elsewhere and apply measures designed to compel Libya's surrender of these individuals.10 In addition, the Convention provides that such a State is entitled to ask other parties for their fullest measure of cooperation in its investigation and possible prosecution.11 Libya, in effect, was asserting: we asked the United States and the United Kingdom for all the information they had about this incident, and they refused to give it to us. The United States and the United Kingdom refused to give Libya access to the evidence they had collected for obvious reasons, namely that it would have shown the degree to which the United States and the United Kingdom had penetrated Libyan intelligence operations. Libya alleged, therefore, that the United States and the United Kingdom violated the Montreal Convention. …

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