Tuesday, December 23, 2008

Terrorism judgment against Libya to be nullified

In January 2008, a group of American families obtained a U.S. $6 billion judgment in U.S. District Court against Libya in connection with the 1989 bombing of UTA Flight 772 in which 170 persons lost their lives, including 7 Americans.  See Pugh v. Socialist People's Libyan Arab Jamahiriya, 530 F.Supp.2d 216 (D.D.C. 2008).  The Americans sued under the 1996 Anti-Terrorism Act and the Foreign Sovereign Immunities Act.  In August, the governments of Libya and the U.S. reached a settlement agreement pursuant to which Libya agreed to pay the U.S. $1.5 billion in settlement of these claims and others.  According to the U.S. State Department, the beneficiaries of the seven American victims will each be eligible to receive approximately $10 million.  Some of the Pugh families are unhappy that they took their case to court and won, only to have the judgment nullified by the U.S. government and their award significantly reduced.  On the one hand, it may be argued that the U.S. government used these families to pressure Libya into a settlement by encouraging them to invest significant resources, financial, emotional and otherwise, in a lawsuit.  On the other hand, the families did get the public condemnation of LIbya they say they desired and they are much more likely to actually recover money from Libya under the settlement than through efforts to collect on their judgment, so perhaps this result is not so bad in the long run.  As a legal matter, the President's power to enter into agreements with foreign nations to settle monetary claims has been upheld numerous times in cases, such as Dames & Moore, Garamendi, Pink, and Belmont.  In this case, it appears the President is on particularly solid legal ground because Congress has approved the settlement agreement in the Libyan Claims Resolution Act. 

For more background, see the N.Y. Times article at: http://www.washingtonpost.com/wp-dyn/content/article/2008/12/22/AR2008122202050.html?wpisrc=newsletterse



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Whilst one does not begrudge the US relatives of the UTA bombing their award in the US Federal Courts of $142M/a US life lost in that sad tragedy, one must ask what is the value of a human life.

My brother a UK citizen died on UTA also, and when the matter of compensation was raised by my solicitor she said that the matter of my brother's death was raised in the English courts (I live in the UK) being a criminal matter would not make any difference to the quantum, and beyond a notional sum for 'loss of association' a claim could be made (either from the airline, or the perpetrators) for economic loss.

As neither my mother nor me were economical dependent on my brother, and he had no other family, she assessed my quantum as being $2000 (sic), and if paid by the airline, they would be entitled to claim it from the perpetrator, but if the perpetrator were discovered and convicted no further compensation could be ordered.

French law (and UTA was a French case) is much the same on this point and English, and compensation would be measured around the $10,000 mark.

Throughout the 1990s US law was improved to make it possible for its citizens who though they had been the victim of foreign state terrorism to bring actions against those states.

Admittedly, it rested upon the willingness of the US Government to recognise such claims.

Crucially, in 2001 the US authorities did not recognise that the Saudi Arabian citizens who blew up the WTC had any connection with the Saudi Arabian government and compensation for those killed in those atrocities were governed by a special Act of Congress.

But over Lockerbie and UTA Libya was subjected to the full power that the relatives could bring.

Over Lockerbie, an agreement was made without recourse to the courts at $10M/victim. This made possible by the removal of UN sanctions and some modification of the US regime against that country.

France did not have the same economic clout to threaten Libya, and the victims of the UTA aircraft had to settle for an ex-gratia payment of $1M/victim, wrung out it without the slightest help of anyone in the US.

Meanwhile, the Libyans thought the US UTA relatives should be content with that same $1M payout and failed to defend the case brought in Pugh et al, and a default judgement was then entered at $142m/victim.

Even the State Department baulked at that, which is why the 'Lockerbie quantum' is being applied to the American UTA victims.

What is the value of a life, and to whom should it be applied? Logically, the innocent victims of US military power should be included. For example that means that the best part of $3.9B should be paid out to the Iranian families who died on the Iranian Airbus brought down by the Vincennes in 1988, who received by agreement compensation of about $60K/victim.

And the hundreds of thousands of innocent Iraqi and Afghani lives wasted by the hyperpower would put the figure to incalculable trillions.

The payments that have been made in Lockerbie and UTA are justifiable only in that the US still has the power to enforce them, and as US power declines, it will be increasingly impossible for the country to assist its affected citizens in this way.

It does not alter the real question of compensation - what is it for and who does it assuage? Compensated relatives, I have found do not develop more friendly feelings towards the compensator than the compensated, and simply insist that their compensation is a matter of right, which is obviously not.

Charles Norrie (brother of Tony Norrie died 19 September 1989 on UT-772)

Posted by: Charles Norrie | Dec 24, 2008 10:47:44 PM

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