What’s next for Libyan Victims of Terrorism?
Readers of Opinio Juris may have seen Roger Alford’s recent piece discussing the apportionment of compensation funds among victims of Libyan terrorism. Victims and their families have retained Crowell & Moring to act against the Libyan government. Given the large number of victims, it was decided to appoint representatives to liaise between victims and the firm. The representatives signed a joint prosecution agreement (JPA), stipulating that compensation received by any signatory was to be shared by all signatories, according to an injury-type sliding scale and without regard for nationality.
A few years later, the U.S. government signed a compensation treaty with the Libyans, compensating only American victims. Crowell & Moring demanded that the funds obtained through the treaty should be shared with all victims of terrorism, including non-Americans, as per the JPA. Alford thinks it will be difficult for the non-Americans to argue that the JPA overrides the treaty as the agreement does not explicitly allocate funds obtained through diplomatic means. I bow to his superior knowledge of likely litigation outcomes – but am unsure that such a decision would be just.
The majority of victims of Libyan atrocities are non-American. Morally, they are as entitled to compensation as American victims. There is a possibility that other nations will not be as successful as the Americans in obtaining compensation for their victims. The Libyans have a strong incentive to please the Americans as well as only a few other powerful nations who control the levers of the War on Terror. Most nations would have difficulty imposing sanctions or other penalties that could compel the Libyans to give in to their demands. Odds are, there’s a limited amount of possible compensation money obtainable from the Libyans. Should it all go to the Americans because they have a stronger negotiating position? No. This does not mean that the United States is in the wrong by taking advantage of its strong negotiating position so as to benefit its citizens, but it does mean that the victims need to consider whether they should abide by the terms of the JPA after receiving treaty-obtained funds.
US victims need not have signed the JPA. They could have opted out of the JPA, renegotiated it, or retained another firm under different conditions. In retrospect, it is easy to say that they would have been well-advised to seek an alternative agreement. They would have had no trouble finding another law firm, as the case is high-profile. If the victims lacked the funds, they could have made a contingent fee arrangement (as the JPA does) or, convinced a firm to take the case on a pro-bono basis.
Americans were represented at the bargaining table, like victims of other nationalities. That they did sign the JPA compels them to share compensation money according to the agreement’s terms. True, the JPA does not explicitly state that it applies to funds obtained through diplomatic means. Perhaps American victims were unaware that their government was negotiating a compensation treaty and thus, it could be said they were unable to plan for such an eventuality in the JPA. I doubt that they were unaware. Even if they were, it is obvious that there are a variety of means for obtaining compensation. The language of the JPA makes no distinction between means of recovery – it therefore binds signatories to a comprehensive collective endeavour.
Aside from the question of what should happen, there is a question of what will happen. Alford is probably right that, as the JPA did not explicitly mention diplomatically obtained compensation, such money is off-limits. Even if diplomatically obtained compensation was mentioned in the JPA, I’m not sure the JPA could supersede the US-Libya agreement. In an age of terrorism, it is important to think not just about the law’s role as a prevention mechanism – it is important to think about how the law can serve as a compensation mechanism to assist survivors and their families.
