As featured in the Diplomatic Courier
On September 19, 1989, UTA Flight 772 exploded in mid-air over the Sahara, killing 170 people. The French-operated plane was flying from N’djamena, Chad to Paris, France when a suitcase bomb planted by Libyan agents caused the aircraft to crash into the Niger desert, killing all passengers and crew, including seven Americans.
In 1991, the U.S. was incensed to find that Libya was behind the bombing and that of Pan Am Flight 103 over Lockerbie, Scotland in 1988 after extensive investigations by the French, U.S., and British governments. Soon the UN Security Council demanded Libya to renounce terror and provide compensation for the attacks. Tripoli did not cooperate, beginning a period of diplomatic isolation and sanctions. A decade passed before Libya and the U.S. began any attempt at reconciliation.
Nearly two decades after it crashed, UTA Flight 772 is testing U.S.-Libyan relations again.
In January, a U.S. federal judge in Washington ordered Libya and six officials to pay $6 billion to the American victims of the bombing. To date, there have been no concrete ramifications, but the ruling will likely test diplomatic progress since 2001, which has seen Libya renounce terror, end its pursuit of weapons of mass destruction, and pledge billions to victims of its former terrorism. The Libyans, who have appealed, see the decision as a break from American commitments to the new relationship; the U.S. expects payment as part of it.
“This legislation has damaged a lot our new relations, unfortunately. It is a great setback,” said Ali Aujali, Libya’s ambassador to the U.S., last month, as reported by Reuters. “Libya is not getting what we deserve.” The Libyan Embassy did not respond to four phone calls and two emails requesting comment for this article.
U.S. District Judge Henry H. Kennedy ruled that Libya was directly responsible for the 1989 attack, which Libya has never accepted responsibility for. The award was made possible by January 2008 legislation that allows victims of state-sponsored terrorism to recover damages from the country, known as the Foreign Sovereign Immunities Act’s “terrorism exception.” Libya appealed the UTA Flight 772 ruling this month and sent a letter to U.S. Secretary of State Condoleezza Rice asking to “correct” the new law.
This appeal contradicts Libya’s good-faith commitment to honor U.S. court rulings on its past terrorist activities when it was removed from the sponsors of terror list in 2006 by the U.S. as a result of that commitment.
“Libya has reaffirmed to us that it has a policy and practice of carrying out agreed settlements and responding in good faith to legal cases brought against it, including court judgments and arbitral awards,” a September 2004 White House statement said regarding cases brought against Tripoli by U.S. victims of terrorism. “We expect Libya to honor this commitment.”
Nonetheless, part of the $2.7 billion Libya agreed to pay the Pan Am Flight 102 victims is outstanding and it is unclear if the UTA Flight 772 award will be paid either.
“Libya has a responsibility to fulfill its commitments to American victims of its terror and has failed to do so,” said U.S. Senator Frank Lautenberg in January, who sponsored the new terror-compensation legislation. “It is time for the Libyans to address these issues with the seriousness they deserve and for Libya to provide justice for all American victims of these attacks.”
From the Libyan perspective, it is the U.S. not living up to its promises. Tripoli has given up its weapons programs, fully cooperated in the War on Terror, and agreed to pay at least $2.7 billion in compensation already, a dramatic shift in less than a decade.
“This is likely to cloud their picture of the U.S. commitment to the new relationship,” said Lisa Anderson, a professor and former dean at Columbia University’s School of International and Public Affairs, describing the Libyan perspective on the $6 billion award. “To them, this is the U.S. not holding their end of the bargain.”
On February 22, Rice said the State Department was reviewing the effect of the new law. “Obviously when you have a major strategic shift of the kind that Libya has made, you want there to be some affirmation of the importance of having done that,” she said, adding that she still planned on visiting Tripoli. “But we do still have differences.”
Prior to Judge Kennedy’s January ruling, the U.S.-Libyan relationship had improved steadily, although disputes remained. Libyan leader Colonel Muammar Qaddafi has worked since 2001 to normalize relations with the West and the U.S. specifically. In 2003, Libya renounced terrorism, ended its weapons programs and took responsibility for the Pan Am 103 bombing.
These diplomatic gestures improved relations with U.S. and European leaders. The U.S. restored full diplomatic relations with Libya in May 2006, removing the country from the list of designated state sponsors of terrorism. Trade sanctions were lifted, and the two countries have conducted billions of dollars in commerce with each other in the last two years.
Others say the UTA Flight 772 ruling significantly hurts recent diplomatic progress. “It basically kills our possibilities of normalizing our relationship, which had been marked by success over the past couple years,” said Ambassador David Mack of the Middle East Institute, a former U.S. diplomat who served in Libya from 1969 to 1972. “This kind of thing makes it very difficult to improve relations, which comes at a bad time with Libya on Security Council and lots of issues to collaborate on.”
Libya joined the United Nations Security Council in October 2007 as a nonpermanent member. The U.S. did not endorse—but did not block—Libya’s candidacy, which was attributed to the improved relationship.
The Federal Court ruling, however, is unrelated to the Administration’s foreign policy, even as Libya’s decision to pay the $6 billion UTA Flight 772 award is.
“Judge Kennedy's ruling is absolutely separate from anything diplomatic or political,” said Stuart Newberger of Crowell & Moring, the lead lawyer for the families of UTA Flight 772, in an e-mail. “[It] is based solely on the record before him and the law.”
Libya, nonetheless, is unlikely to separate a U.S. federal court ruling from U.S. foreign policy.
“Libya’s perception of foreign policy is different than ours. A legal rendition is seen as America’s foreign policy,” said Omar Turbi, an expert on U.S.-Libya relations. “When [the ruling] was handed down, there was a shockwave in Tripoli – ‘this is America coming down on us.’”
State Department spokesperson Sean McCormack said on January 16 that the award was from “a separate branch of government.”
He added: “We have encouraged the Libyan government in general to resolve the outstanding claims with the families of victims of terror attacks, whether that's Pan Am 103, the Labelle disco bombing or the UTA flight. I know that they have been working with the various…representatives to resolve those claims.”
There are strains in the U.S. and Libyan relationship that preceded the Flight 772 ruling. Congress has delayed confirmation hearings for Gene Cretz, President Bush’s proposed Ambassador to Libya, and has also delayed funding for the new embassy in Tripoli because compensation to victims of terrorist attacks remains outstanding.
The U.S. court decision in January ordered the state of Libya to pay $1.6 billion and six Libyan officials $4.4 billion. The officials, senior intelligence agents at the time of the bombing, have not appealed and are still in Libya, where their status is unclear. In 1999, the same officials were convicted in absentia by a French court and sentenced to life in prison, but Libya has refused to turn them over. One of them is Abdallah Senoussi, Gaddafi’s brother-in-law.
In 2004, Libya agreed to pay $170 million in compensation for the UTA flight in Paris, $1 million for each victim, but the U.S. families opted out of the deal.
The Libyan state and its officials, however, cannot be forced to pay—the U.S. would not use military power to enforce—and therefore money from Tripoli depends on diplomacy.
If Libya and its officials do not pay, the plaintiffs will seek to collect from Libyan commercial assets in the U.S., Newberger, the plaintiffs’ lawyer, said. And if that fails as well, Newberger said he will target Libyan commercial interests in European countries to “finish the job” after the appeal is finalized.
Anderson, Turbi, and Mack agreed that it is unlikely that Libya will pay the full $6 billion. They anticipate diplomatic negotiations to lower the sum, although it is unclear how such deal making would work legally.
Regardless, the plaintiffs believe the award consistent with the improved U.S.-Libyan relationship, although there was no formal agreement for compensation. “This award proves that the rule of law will always prevail over state-sponsored terrorism,” Crowell & Moring said in a January 15 statement announcing the $6 billion award. “It is because of rulings like this that Libya has rejected terrorism and re-joined the civilized nations of the world.”
On January 24, however, Libyan Foreign Minister Abd-al-Rahman Shalqam expressed his frustration with the U.S. over the Flight 772 ruling. “This is blackmail and terrorism in the name of the law,” Shalqam said in an interview published by pan-Arab daily Al-Sharq al-Awsat. “There still is a great deal that is subject to dispute between us and the United States.”
The Libyan state is represented by two large Washington law firms, Blank Rome and White & Case. Both offices declined to comment on the case, including the grounds for appeal.
Paradoxically, recently improved diplomatic ties—the very ones that the UTA Flight 772 decision threatens—will be key for the rapprochement between Washington and Tripoli to continue.
“Working this out will be with diplomatic relations; I don’t think it will sever relations,” said Bruce Jentleson, a Libya expert and Professor of Public Policy Studies and Political Science at Duke University. “The fundamental context has changed and that’s a different context to work it out in."