SECRETARY OF STATE Condoleezza
Rice's visit to Libya last week represents the final step in a decades-long
U.S. effort to reform and rehabilitate the rogue state. A charter member of the
U.S. Department of State's list of State Sponsors of Terrorism, after its
nuclear program was disclosed in 2003, Tripoli demonstrated contrition and
agreed to compensate American victims of a 1988 terrorist attack. Libya was
scratched from the list in 2006, and this past August Washington struck a deal
with Tripoli that removed the final hurdles in normalizing the bilateral
The Bush administration considers
the reintegration of Libya to be among its crowning foreign policy achievements
and a roadmap for other rogue states. Indeed, in 2006 Secretary Rice described
Libya as "an important model as nations around the world press for changes
in behavior by the Iranian and North Korean regimes." Despite the
self-congratulations, however, the agreement is not the unqualified success it
is portrayed to be. The rollback of Libya's nuclear program was a strategic
achievement, but it was not without a political and moral cost.
In fact, the August deal that paved
the way for Rice's trip contains an unprecedented arrangement in which victims
of a U.S. retaliatory strike in response to Libyan state-supported terrorism
will receive compensation. The accord has profound implications for U.S.
counterterrorism and military policy.
Back in 2003, Libya agreed to
dismantle its WMD programs and compensate U.S. victims of the 1988 Pan Am
Lockerbie attack in exchange for removal from the terrorism list and
normalization of relations. Tripoli paid most of the $10 million per family,
but balked at paying in full when Washington did not follow through on its
pledge to remove Libya from the list. The administration was unable to do so
because in 2004, Libya was implicated in a plot to assassinate Saudi Crown
Washington eventually removed Libya
from the terrorism list in 2006, but normalization of relations remained in
limbo until last month, when an agreement was signed to provide the outstanding
compensation for the Lockerbie victims, as well as for those killed and wounded
in the 1986 Libyan-sponsored attack on the La Belle Disco in Germany.
The August deal known as the
"U.S.-Libya Comprehensive Claims Settlement," establishes a fund in
excess of $1 billion to cover Lockerbie, La Belle, and any future U.S.
terrorism-related damages claims against Libya. But the settlement also stipulates
that the fund will compensate Libyans who were killed and injured during the
U.S. military retaliation for the La Belle disco bombing. Some 40 Libyans were
killed and 80 wounded in the April 1986 U.S. airstrikes. Libyan courts have
rendered judgments against the United States in these matters.
Assistant Secretary of State for
Near East Affairs David Welch, who helped pen the settlement, said this
mechanism would "give fair compensation to the claimants from both sides
for the past incidents and ... will enable us to move ahead toward a normal
relationship." While the agreement succeeded in breaking the logjam, the
terms of the deal are extremely problematic.
On the face of it, the quid pro
quo implicitly equates the intentional targeting of civilians (i.e.,
terrorism) with unintentional collateral damage incurred during a legal act of
self defense. The administration's embrace of moral equivalency to seal the
deal is stunning. In a surreal twist of events, Libyan leader Muamar
Qaddhafi--who ordered the attack on the La Belle--could be eligible for
compensation for the death of his adopted daughter, who was said to have been
killed in the U.S. counterstrike.
More problematic than the disturbing
moral implications, however, are the legal ramifications for Washington of the
agreement. The United States has never accepted the legal obligation to pay
compensation for unintentional collateral damage incurred during legitimate
military actions, and nothing in the Geneva Conventions specifies it. Even
though the fund will be financed by Libyan and U.S. corporate contributions,
there is a very real danger that the Libya settlement could serve as precedent
for future claims of this sort.
In Iraq, U.S. Armed Forces routinely
pay compensation in cases of wrongful death to help mitigate the hostility of
the local population, but these payments are voluntary.
To help ensure that the Libya
settlement does not become the standard, the White House should immediately
clarify that compensation for Libyan victims are ex gratia--non-obligatory--payments
and not precedent setting. Regrettably, even if the White House does so, the
damage may already be done.
By equating those killed in the U.S.
counterstrike on Libya with American victims of Libyan terror the
administration has inadvertently muddled a principled position on terrorism
that differentiates between terrorist and counterterrorist operations. It is a
message that will not be lost on Washington's enemies.