Nemesis overtaking Osama?

By Chinmaya R. Gharekhan

ACCORDING TO reports published in the media on February 10, 2001, datelined Islamabad, Afghanistan's Taliban militia has reiterated its willingness to discuss sending Osama bin Laden for trial by Muslim clerics in an Islamic country. A spokesman of Pakistan's Interior Ministry was quoted as saying that the Taliban's readiness to consider such a proposal was conveyed to Pakistan's Interior Minister, Mr. Moinuddin Haidar, during his visit to Kabul during the past few days. In another report published the same day, Pakistan's military ruler, Gen. Pervez Musharraf, was quoted as having told the Khaleej Times in an interview that the Taliban would never hand over Osama to the Americans and suggested that he be tried by a court in a third country: ``The U.S. is demanding that Laden be handed over to it... This is impossible.'' Gen. Musharraf added that Osama's trial in a third country by Islamic judges was not an impossible option.

This is the beginning of the end of Osama Bin Laden. So long as the Taliban had taken the position that he was an honoured guest and that it would never consider handing him over to anyone, there was some hope, however faint, for him. Now there is none. The case of the two Libyans wanted by the Americans for the bombing of the Pan Am flight 103 over Lockerbie in 1988 explains why.

India was a member of the Security Council when the Libyan drama unfolded and concluded with the imposition of mandatory sanctions against Libya in 1992. We first saw a report in the Washington Post in December 1991 that the U.S., the U.K. and France were preparing to bring to the Council their case against Libya for its alleged responsibility in the two civil aviation disasters involving Pan Am flight 103 and the UTA flight crash over Niger. The three Governments had asked Libya to hand over to them certain suspects as well as for compensation. Libya refused, hence the decision to raise the matter in the Council. Even though the U.S. mission in New York initially denied the story, most of us in the Council were inclined to give full credence to it. In the first week of January 1992, the three countries circulated documents detailing reports by their respective investigating agencies on evidence against the particular individuals as well as the involvement of Libyan intelligence.

The Libyans feared that, before long, these three permanent members would ask the Council to impose mandatory sanctions against them. This was indeed the intention of the three countries as they explained to the other members of the Council. The Libyan Ambassador met the Non-Aligned members of the Council on January 8 and suggested that the Council was not a proper forum to deal with such legal issues. However, Libya could agree to the Secretary-General being asked to investigate the matter and suggest ways of solving it. Alternatively, the Council could set up a committee to look into the matter in an impartial manner.

The Libyan situation was very embarrassing for the Non-Aligned. We were most unhappy at the attempt of the three countries to use the Council to settle their bilateral scores with Libya and to punish a country on the basis of allegations made by their domestic agencies and not an impartial international body. The three countries argued, with some logic, that it was better from the international community's viewpoint that they bring such matters to the Council rather than take unilateral punitive action. They picked a country which did not have too many friends at that time and they picked an issue - international terrorism - which no country would want to be perceived as defending.

Things moved fast. On January 13, the three countries circulated a draft resolution which did not contain threat of sanctions but merely said that the Council would remain seized of the matter in case Libya did not comply with the demands of the Council. The cause of the three had become the cause of the Council! The Non- Aligned managed to obtain a role for the Secretary-General by requesting him to seek Libya's cooperation to provide a full and effective response to the Council's demands. Resolution 731 was adopted unanimously on January 21.

The U.S., the U.K. and France, anticipating that Libya would not surrender the suspects, kept up the pressure for sanctions. The then U.S. President, Mr. George Bush Sr., the then British Prime Minister, Mr. John Major, and the then French President, Francois Mitterand, used the occasion of the first-ever summit meeting of the Security Council on January 31 to lobby other leaders. The then Prime Minister, Mr. P. V. Narasimha Rao, told Mr. Major that, as a lawyer, he found it difficult to accept the proposition that the Council should act on the basis of allegations by one or two states.

On February 14, the Libyan Ambassador told the Non-Aligned caucus in the Council that Libya was prepared to surrender the suspects, but a mechanism was required to deal with Anglo-American requests since Libya did not have diplomatic relations with them. He suggested that the Secretary-General could provide the mechanism. Boutros Boutros-Ghali, who knew his Libyans, was reluctant to get involved but agreed to help if so asked by the Council. Everyone was looking for a way out to avoid sanctions. A few days later, the Russian Foreign Minister, Andrei Kozyrev, claimed that Libya was willing to hand over the suspects to a third country. Libya filed a case with the International Court of Justice on March 2. This introduced a new important element, since many in the Council thought that it should not act while the Court was siezed of the matter. The three permanent members absolutely rejected any such suggestion and even the Legal Counsel of the U.N. agreed that the Court and the Council were principal organs of the U.N., each with its own competence and neither was subordinate to the other. At one stage, the Libyan Ambassador said that his Government would hand over the suspects to the UNDP office in Tripoli and it would then be up to the Secretary-General to decide the further course of action. On March 22, Major Jalloud, the No.2 man in Libya, informed the Indian Ambassador in Tripoli of Libya's decision to hand over the suspects to the Arab League. A seven-member Arab League delegation went to Tripoli on March 24, but returned empty-handed; it was even ridiculed by the Libyan media for having gone on such an unholy mission in the holy month of Ramzan!

Eventually, the Council adopted resolution 748 on March 31, imposing Chapter VII sanctions in respect of civil aviation, arms embargo and diplomatic presence in and of Libya. India, along with China, Morocco, Zimbabwe and Cape Verde abstained. The Libyans till the end were counting on a Chinese veto. It took several years, and dozens of hours of patient and persistent work by the present Secretary-General, Mr. Kofi Annan, to get Libya agree to the arrangement whereby the two suspects were tried by a Scottish Court. The Court's judgment a few weeks ago exonerated one accused and found the other guilty of some of the charges, enough to sentence him to 20 years imprisonment.

Compared to the two Libyans, Osama is in a hopeless situation. The international community today is much more united and determined to deal severely with international terrorism. Osama's involvement in terrorist acts is more readily believed than were the allegations against the Libyans. There is no mention anywhere of a third country being involved in the acts alleged to have been committed by Osama. And it is not just the U.S. - Russia, China, India and many others are interested in bringing Osama to justice. The Taliban, like the Libyans, is keen to avoid further sanctions and Pakistan would want to give, for political and economic reasons, concrete evidence of its commitment to fight international terrorism. Having conceded the principle of giving him up, the Taliban and Pakistan will look for a formula to save some face and leave Osama to his fate in the hands of a court which will not necessarily be to his liking.

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