Libya, Lockerbie, and the Long-Delayed Settlement
Relating to Pan Am Flight 103

By ANTHONY J. SEBOK


anthony.sebok@brooklaw.edu
----
Monday, Sep. 08, 2003

Last month, lawyers and diplomats from the U.S. and Libya finally settled the outstanding lawsuits surrounding the destruction of Pan Am Flight 103 over Lockerbie, Scotland, in 1988.

The deal guarantees between $5 and $10 million to each of the families of the victims. It also brings to a close a long and painful campaign by plaintiffs who had filed suit against Libya.

The settlement raises a few questions, however, which cannot be ignored.

The History of Earlier Lockerbie Litigation and Diplomacy

First, American law - in particular, the Foreign Sovereign Immunities Act (FSIA) - protected Libya from civil suit in American courts. Second, because Libya would not extradite the suspected terrorist mastermind behind the bombing, no court had yet concluded that there was a Libyan connection in the first place.

By 2003, the landscape had changed dramatically. The U.S. Congress, under pressure from families of victims of state-sponsored murder around the world, amended the FSIA to permit civil suits against a handful of states that "sponsored" terrorism (such as Cuba, Iran, and Libya). And, in 2001, a Scottish court sitting in the Netherlands convicted a Libyan secret servant agent for the terrorist act (the Libyan government, under intense pressure from the world community, sent him to be tried).

Despite these important victories, the civil suits against Libya hung in limbo. When Congress amended the FSIA, it preserved a safety valve whereby the President could nonetheless choose to ask a court to waive the plaintiff's right to recovery "in the interest of national security." President Clinton had already exercised his waiver power twice in cases involving Iran and Cuba. So, despite the Scottish victory and a change in administrations, it was not clear that the lawsuit filed against Libya would ever present a real threat.

The Bush Administration's Stance on Libya and Lockerbie

Surprisingly, the Bush administration's views towards the sovereign immunity of countries that sponsor terrorism largely followed - rather than reversing - those of the Clinton Administration. The Bush State Department quietly continued to oppose what some in the foreign policy community derisively call "diplomacy through litigation."

Why? There are a number of possible reasons. First, no administration, regardless of its politics, likes to cede power to other actors in foreign policy--especially non-state actors such as the ordinary citizens who become tort plaintiffs.

Second, the non-state actors who were asking for the State Department's help were not just the families of the victims of terrorism, they were also their lawyers. And the Bush Administration is not exactly a big fan of tort lawyers.

Thus, the Lockerbie families never could be confident that if they won their lawsuit, they would be able to collect; the Bush Administration might have intervened to prevent that in the name of diplomacy. But Libya, on the other hand, could not be confident either - there was always the chance that the Administration, giving its evolving policies on terrorism might change its mind, hold Libya accountable, and allow the victims would not be able to pursue their suit to the bitter end.

So, for the past few years Libya has been offering a three-cornered deal. It promised that it would settle with the victim's families if they would drop their lawsuit, and if the U.N. and the U.S. would drop their sanctions against Libya.

Libya Finally Accepts Responsibility: The Specifics of the Settlement

Last month, Libya finally caved. It agreed to pay each family up to $10 million per victim, and to admit its responsibility for the terrorist act, in exchange for normalization of its relations with the U.N. and the U.S..

Here are the specifics of the deal: When the U.N. drops its sanctions against Libya, the families will receive $ 4 million per victim. When the U.S. drops its sanctions, the families will receive $4 million more. And when - and if - the U.S. removes Libya from its list of states that support terrorism, the families will receive a final $2 million. (If the U.S. does not do either of these last two things, the families will still get an additional $1 million in addition to the $4 million they will have received when the U.N. drops its sanctions, bringing their recovery to a total of $5 million instead of $10 million.)

Is this a happy ending? Almost--but the deal has created strange and potentially disturbing dynamic.

The Lingering Question of France and Its Security Council Veto

You see, there is the question of France. Any member of the U.N. Security Council - including, of course, France - can veto a resolution to drop sanctions against Libya. And France, too, has a history with Libya.

In 1989, a French passenger plane was bombed over Niger. In 1999, a French court convicted six Libyans in absentia for that attack, which killed 170 people. Afterwards, Libya paid $33 million to France, which was distributed to the survivors, and France and Libya mended fences. This amount works out to about $194,000 per victim.

Then France heard that Libya was willing to pay up $10 million per each victim on Pan Am Flight 103 - and was outraged. France demanded that the families of the French Niger bombing victims receive as much as the families of the American Lockerbie bombing victims. And until last week, at least, France was threatening to veto the Flight 103 deal unless this occurred.

It seems (although as of this writing, it is not yet certain) that the French will get what they want and the Lockerbie deal will go through as planned. But we should reflect for a moment upon what, exactly, is happening here.

Thus, the $10 million settlement value per victim built into the Lockerbie deal reflects (to put it crudely) a blend of two kinds of "prices"--one rooted in American tort law, and the other rooted in multilateral diplomacy.

Are the French Right to Insist on a Recalculation of the Niger Bombing Settlement?

Should France be using the "price" of the Lockerbie settlement to restate the price of their Niger settlement?

If one looks at the settlement purely as the settlement of a tort case (and leaving out its diplomatic aspects), France's position seems weak. Seen in this light, plaintiffs in an American tort suit settled for a sum higher than what a similarly-situated plaintiff, in a different suit, might have obtained in France. But so what?

The two tort systems have very different damages structures, as I pointed out in an earlier essay comparing the German and American tort systems. The French system, being a typical European system, awards much lower figures for economic loss and pain and suffering, and nothing for punitive damages. (Indeed, France's legal elites have often derided the American tort system as "out of control" and "lottery-like" in its damage awards.) Thus, it may well be a matter of course that similarly-situated plaintiffs receive more in the U.S. system, than they would in the French system.

But of course, this isn't just your everyday tort settlement. Does it strengthen France's argument that the Lockerbie deal seems also to reflect some kind of negotiated price for a multilateral agreement to normalize relations between Libya and the world?

The answer is still no. Indeed, this factor only differentiates the Niger and Lockerbie settlements further. The Niger settlement is what France demanded to forgive Libya for its attack on one of its airliners. The Lockerbie settlement is what Libya is willing to give to try to amend its status as a world pariah. Since the two settlements have different diplomatic aims, it is no wonder that each incorporates a different diplomatic "price."

Valuing the Lost Lives of Terrorism Victims: There's No Right Answer

Of course, no one should begrudge the recovery of - or minimize in any way the suffering of - the families of the French victims of the Niger attack - nor that of the families of the 49 Congolese victims on the plane. (France is now being pressured to include them in the deal as well--it seems they received none of the original $33 million payment.)

Rather, the value in money is purely relative and purely situational. The American norm may be as much as $20 million for a plaintiff who was young and highly compensated. It is no more just than the French norm, in which awards of more than $200,000 are quite rare.

Like the Holocaust litigation, which was also settled in the U.S. through the efforts of the U.S. Government, the Lockerbie deal mixes private tort law with public diplomacy. Perhaps these unique deals are necessary to solve unique problems, but they do have their disadvantages.

One disadvantage of this new form of tort law is that American tort values--especially its damages values--become the benchmark in any discussion of settlement and compensation. In a sense, this is yet another example of American globalization.

Like the omnipresence of Disney and MTV, that is not necessarily a bad thing. But should American standards become world standards even if other countries are not given notice, and a true choice whether to adopt them? Domestically, France is happy with its own lower tort awards. But internationally, to save face, it apparently feels compelled to match those of the U.S..


Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School, where he teaches Torts, among other subjects. Professor Sebok's other tort law columns for FindLaw can be located in the archive of his columns on the site.

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