Rozenberg

A unique hearing takes place this week. For the first time, the ordinary courts of one country are sitting in the territory of another. Lord Sutherland, a Scottish judge, is being asked to decide whether two men should stand trial as charged under Scottish law. But the preliminary hearing, like the trial itself, is taking place in The Netherlands.

As a legal concept this is breathtaking. Judges sometimes travel abroad to take evidence on commission, courts martial may sit anywhere, but never before has one country provided premises – and diplomatic inviolability – for the courts of another.

The two accused are Abdelbaset Ali Mohmed Al Magrahi and Al Amin Khalifa Fhima. The Libyans are charged in connection with the Lockerbie bombing, 11 years ago, which caused the death of 270 people. Their trial is due to begin in two months' time.

It will be held at Camp Zeist, a converted air base. Camp Zeist is not in The Hague, as some people still fondly imagine. In fact, it's not in a city at all. Camp Zeist is in open countryside, 20 minutes' drive from Utrecht. It's also pretty cold at this time of year.

So it would be impractical to have a jury – you couldn't expect 15 members of the public to spend what could be several months living in the Netherlands, returning to their homes and families only at weekends. Only lawyers, judges and journalists can be expected to put up with that sort of existence. Instead, the case will be heard by three High Court judges – Lord Sutherland, Lord Coulsfield and Lord MacLean. Lord Abernethy will be first reserve.

The two accused each face three charges. The first is conspiracy to murder, the second is murder pure and simple, and the third is destroying an aircraft contrary to the Aviation Security Act 1982. The charges are expressed as alternatives, which means that each accused could be convicted of no more than one charge.

Lord Sutherland alone is hearing this week's challenge to the indictment. The men's first objection is that the Scottish courts have no jurisdiction to try them for conspiracy to murder because the conspiracy is not alleged to have taken place in Scotland.

There is no doubt the court can try them for murder pure and simple. 259 victims died in a plane over Scotland and, poignantly, 11 were killed when wreckage fell on their homes in Sherwood Crescent, Lockerbie. But, say the accused, if they were cleared of murder there would then be no jurisdiction to convict them of conspiracy. In any event, they say, it is "unfair, oppressive and incompetent" for the prosecution to charge conspiracy when the only possible basis of jurisdiction is the murder charge itself.

The accused also object to allegations in the indictment that they were members of the Libyan intelligence services. They say those claims are irrelevant, presumably because being an intelligence agent is not, in itself, a crime.

The most the accused can hope for this week is to have the conspiracy charge thrown out and the other charges reworded. But a guilty verdict on either of the two remaining charges would still put them in a Scottish prison for the rest of their lives.

Joshua Rozenberg is the BBC's legal affairs correspondent. He can be contacted at joshua.rozenberg@bbc.co.uk