Why did the USG rule out the use of an ICT to address the bombing of Pan Am flight 103, yet seek to prosecute alleged atrocity perpetrators from the FRY through that option at approximately the same time?
The U.S./DoS believed that supporting a war crimes commission on the FRY would elicit pressure from Libya and its sympathizers to do so for the Pan Am tragedy. As a confidential U.S./DoS memorandum on August 31, 1992, argued:
[f]ollowing the efforts by the United States to obtain passage of [UNSC] Resolution 748 [(invoking the UN Charter’s Chapter VII authority to compel Libya to cooperate with the investigation of the alleged terrorist attack and to impose sanctions on Libya until it complied165)], we have been fending off repeated proposals by Libya and its [Non-Aligned Movement]
supporters to resolve the Pan Am 103 problem by referring the matter to an
The same memorandum stressed the origin of the lobbying and its potential outcome: “There may be pressures from Arab countries to find an international forum for the Lockerbie pair; this could be an undesirable diversion from our preferred course of action.”167 That preferred course of action, according to a different confidential U.S./DoS memorandum, was to have the Lockerbie pair “extradited to the United States or United Kingdom as required by [UNSC] Resolution 748 .”168 It was this plan, already established with the imprimatur of the UNSC, which ultimately led the U.S./DoS to conclude that the USG could persuasively make the case that the FRY and Libya could be treated distinctly. In making this argument, USG officials stressed differences between Libya and Iraq. According to a confidential U.S./DoS memorandum, “the Libyan case is more distinguishable [from the Iraqi one] since the [UNSC] has already laid out a clear course of action to be followed.”169
A set of U.S./DoS talking points addressed the potential question of why the USG did not favor the creation of an ICT to prosecute the suspected terrorist attackers of Pan Am flight 103. The talking points first stressed that “[o]ur position consistently is that defendants should be tried before appropriate tribunals, with due process, whether those tribunals are national or interna- tional.”170 The talking points then went on to state that “[UNSC] Resolution  called upon Libya to surrender the suspects. This reflects a decision by the international community that national tribunals are appropriate for those defendants.”172 Matheson agrees, recalling: “There was no need for an international tribunal in the PA 103 case—U.S. and British courts had jurisdiction, had issued indictments, and were perfectly proper and normal places for pros- ecution.”173 The phrasing of the talking points as well as Matheson’s statement leave open the possibility that ICTs could be appropriate for other suspects, such as in the case of the FRY. As a result, the phraseology suggests that USG officials did not possess a normative belief favoring international over domestic tribunals, but that political and pragmatic issues dictated the USG’s preference in this particular context.
Scharf argues even further that normative beliefs (in, for example, the rule of law) had little to do with the USG’s policy on this matter. Claiming that the USG used the bombing of Pan Am flight 103 as an opportunity to impose economic sanctions on Libya through the UNSC in order to “isolate Libya and strangle it economically,” Scharf contends that “[t]here really wasn’t much interest in a justice mechanism” within the USG.174
Scharf offers an additional reason the USG supported the creation of an ICT to address the FRY but not the bombing of Pan Am flight 103. He points out that, during the late-1980s and early-1990s, the USG considered a terrorist plane attack distinct from atrocities allegedly committed in the FRY, thereby requiring an alternative response. He explains:
in Bosnia you had basically international crimes. You had grave breaches of the Geneva Conventions, crimes against humanity, genocide. What is the bombing of Pan Am flight 103? At the time, it was just a regular domestic criminal matter. Yes, over 300 people died, but it wasn’t seen as invoking international law.175
Shattuck agrees, arguing that, as compared to the bombing of Pan Am flight 103, the “scale of atrocities [were] much larger in [the] Balkans,” thus necessitating a different approach.176 From the perspective of the USG at the time, then, the nature and number of casualties in the Pan Am flight 103 and FRY contexts merited different categorizations and, thus, responses. Now, however, especially since the attacks on September 11, 2001, the USG as well as many other members of the international community increasingly consider terrorism to qualify as an international crime even if the number of victims involved is far less than in a situation like the FRY.177