Geoffrey Robertson: Megrahi should never have been freed

The result is a triumph for state terrorism and a world-wide boost for the death penalty

The man who made the decision to release the Lockerbie Bomber claims it was an act of compassion, required by "due process". On the contrary, it was an act of foolishness that undermined due process. The readily foreseeable consequences have included a triumph for state terrorism, more suffering for the victims and a wide-world boost for the death penalty.

The bombing of PanAm 103 was a crime against humanity, a particularly heinous offence which every state as a matter of international law has a duty to prosecute and punish and has no power to pardon. For perpetrators of such crimes there can be no forgiveness: there is no time bar on their prosecution and no provision for their early release. We show mercy to the merciless by abjuring torture and the death penalty and by affording them expert medical treatment and family visits when terminally ill. It is part of their punishment that they shall die in some form of custody, because this is the most humane alternative to demands that they die on the scaffold or at the hands of vigilantes.

There is, of course, a place for mercy in every justice system. Primitive countries offer arbitrary pardons to celebrate the ruler's birthday, but more advanced systems require compassion to be rationally related to the mental state of the particular offender. It is extended either because he can be forgiven, or because he is genuinely to be pitied. Abdelbaset Ali al-Megrahi, as an unrepentant and cold-blooded mass-murderer, is unforgiveable. The notion that he can be pitied by being allowed to end his days in triumph as a national hero is simply ridiculous. So the pardon bestowed by Mr MacAskill was not, in law or in logic, an act of compassion. It showed kindness to nobody and it rewarded the wrongdoer.

The Justice Secretary acted with unseemly haste, making his decision on 19 August, less than four weeks after Libya's application. It must have been blindingly obvious that the release of Megrahi would coincide with Gaddafi's 40th anniversary celebrations, where it would be hailed as a triumph. It must have been equally obvious that it would be an act of cruelty to all those who have suffered from Libya's terrorist crimes.

The decision will seriously damage the world-wide campaign to abolish the death penalty for international crimes. This relies upon the validity of assurances (such as that given by Robin Cook to Madeleine Albright) that genocidaires and torturers and terrorists will never be released. Now, such assurances cannot credibly be given by democratic governments, because Mr MacAskill's action illustrates the risk that within a few years, politicians will contrive to breach them.

The claim that the decision accorded with "due process" is unsustainable. When Megrahi was diagnosed with prostate cancer last year, he made an application for bail (not for release to Libya) on compassionate grounds. He asked to live, under custodial conditions of virtual house arrest, in Scotland while his appeal was pending. As recently as last November, the Appeal Court decided that his cancer was "very unpredictable", his NHS treatment was excellent and "his life expectancy may be in years". It ruled that "compassion" did not justify granting him bail, but said in terms that it would "entertain a renewed application" if his condition worsened.

"Due process" required, when it did worsen a few weeks ago, that he make a renewed application for bail. Instead, the minister circumvented due process by ignoring the court and deploying his statutory power to release a serving prisoner on compassionate grounds. This is merely a discretionary power which may (not "must") be exercised if the prisoner will die within three months. The Justice Secretary was under no obligation to intervene in a matter that was before the court and should have been left to the judges.

Today's debate in the Scottish Parliament should not be side-tracked by allegations about the complicity of the UK government, which is a separate issue. So too is the question of Megrahi's guilt, proved beyond reasonable doubt in the minds of eight experienced Scottish judges. It is, of course, crucial to the credibility and integrity of the Scottish Justice system that it consider any fresh evidence that might impact on the correctness of the conviction. But this too is an entirely separate matter.

Opinion polls show that the majority of Scottish people deplore the decision that MacAskill made in their name, although there has been an attempt by his party propagandists to stir national sentiment in its favour. "How dare outsiders criticise Scotland" has been their parochial response. But human rights decisions have international consequences, and Americans have as much right to criticise Scottish decisions as we have to condemn the US for human rights abuses at Guantanamo.

The decision has been supported by a few clerics, entranced by the idea that it reflects forgiveness. But Bishop Joseph Butler, whose sermons have shaped that particular Christian virtue, firmly warned against hasty and uncritical compassion, which he regarded as irresponsible because it compromised important Christian values such as self-respect and respect for the moral order. MacAskill's "compassion" is irresponsible precisely for that reason: he has bestowed it on an unrepentant perpetrator of what Kant termed "radical evil," at a time and in a way that enables him to be honoured as a national hero.

MacAskill repeatedly claims that Megrahi will soon be judged by "a higher power". If he thinks that God re-tries cases in some cloud courtroom and sentences the guilty to hell fire, why bother with human justice at all? The only "higher power", to which Megrahi answers is Gaddafi, guilty for over thirty of his forty years in power of multiple crimes against humanity.

Marx (Groucho) said "To err is human, to forgive supine". Today the Scottish parliament should seize its last chance to mitigate the damage done by Megrahi's release. If Mr MacAskill refuses to admit his error, he must be removed from office. Only in this way can Scotland the Stupid regain its reputation as Scotland the Brave.

Geoffrey Robertson QC's books include 'Crimes Against Humanity: The Struggle for Global Justice'