McCue & Partners LLP / V.F
Written Evidence submitted by McCue and Partners LLP for the Northern Ireland Affairs Committee’s inquiry into HM Government support for UK Victims of IRA attacks that used Gaddafi-supplied Semtex and weapons (LSX0021)
Additional evidence submitted 8 September 2015 (page 95)
Email sent on 8 June 2008 by the then British Ambassador to Libya, Vincent Fean, to the Office of Tony Blair.
TABLE OF CONTENTS
I. EXECUTIVE SUMMARY 3
II. THIS INQUIRY 5
III. INTRODUCTION 7
IV. HISTORY 8
A. PIRA/Gaddafi Terrorism (1972-1997) 8
B. The UK/Gaddafi Détente 10
C. Legal Proceedings & the LCSA (2006-2009) 12
D. The Conservatives, in Opposition, Support the Campaign for G2G Negotiations (2009) 31
E. FCO Libya-Northern Ireland Reconciliation Unit (2009 – 2011) 32
F. The Coalition Government – An “Unequivocal Approach” & Renewed Hope (2010) 35
G. The Benghazi Agreement (April 2011) 36
H. The Conservative’s Volte Face Part I – “Important Bilateral Issue” (April 2011 – November 2011) 39
I. The Conservative’s Volte Face Part II – “Legacy Issues” (November 2011 – February 2012) 43
J. The Conservative’s Volte Face Part III – “Broad & Lasting Reconciliation” (March 2012 – June 2013) 47
K. The Blair Revelation and HMG Inaction & Disengagement (August 2013 to February 2015) 52
L. Present (February 2015 onwards) 63
V. COMMENTS & QUESTIONS 66
VI. CONCLUSION 84
I. EXECUTIVE SUMMARY
1. For most of the 40-year rule of dictator Colonel Muammar Gaddafi, The Socialist People’s Libyan Arab Jamahiriya was an enthusiastic state sponsor of terrorism, giving materials and financial support to wide range of terrorist groups, including the Provisional Irish Republican Army (PIRA). The PIRA attacked civilian targets in the United Kingdom throughout the 1970s, 1980s, and 1990s, leading to hundreds of civilian fatalities and thousands of casualties.
2. Ordinarily, victims of terrorist attacks are limited in their search for legal accountability and financial reparations for the harm they have suffered. This is because, with limited exceptions, foreign sovereigns are generally accorded immunity from lawsuits and it is difficult to bring non-state actors, such as terrorist organisations, before traditional courts. However, the United States has carved out an exception in their justice system enabling victims to sue foreign states that are designated as being state sponsors of terrorism. Gaddafi’s Libya carried this designation from 1979 until 2006. In April 2006, more than 130 UK victims (the ‘UK Victims’) and four US victims (the ‘US Victims’) of PIRA terrorist activities launched a class action lawsuit in the US against the Gaddafi Regime and members of its government (including Gaddafi himself) for the material support and encouragement extended by Libya to the PIRA.
3. Soon after the lawsuit was filed, the US and Libya reached a diplomatic agreement, whereby Libya would be removed from the list of state sponsors of terrorism in exchange for Libya’s renunciation of violence and reengagement with the international community. Part of the agreement involved the termination of any pending judicial proceedings against Libya in US courts, an element later given legal significance through the 2008 enactment of a new US law (the Libya Claims Resolution Act 2008 (LCRA)) and an Executive Order signed by then President George W. Bush.
4. The consequences of these unilateral actions -- which were taken without any consideration for the interests of the UK Victims -- meant that a ‘Humanitarian Fund’ was later established to pay out any existing claims for reparations from US victims of Libyan state-sponsored terrorism. Foreign claims, however, were abruptly thrown out and barred from any future action in US courts or from accessing the ‘Humanitarian Fund’. Foreign claimants were encouraged to pursue ‘other available remedies’.
5. The technical term for the actions of the US is ‘espousal’. This is a term relating to judicial and diplomatic interactions between nation states, wherein a government may decide to ‘adopt’ a pending legal action by its citizens against a foreign government in order to bring the full diplomatic and financial resources of the state to bear, in order to help reach a satisfactory conclusion. This often happens in cases of trade or investment concerns, but there are no limitations which exist in international law proscribing any causes a government may wish to adopt — including cases of human rights or terrorism.
6. In the intervening eight years, the UK Victims have repeatedly turned to the UK Government for help in resolving their claims, to no avail. Her Majesty’s Government has declined to espouse the UK Victims’ claims, repeatedly stating that that because the US made no provision for UK claimants in their 2007 diplomatic arrangement with Libya, nothing can be done.
This is factually and legally inaccurate. While very regrettable that the US Government failed to take into account the needs of the UK Victims in the LCRA and Executive Order (which they likely could have done, had they been so inclined), this is no way ties the hands of HMG and prevents it from pursuing unilateral action on behalf of its own citizens. Unfortunately, this has not prevented consecutive UK governments from hiding behind this convenient legal fiction.
7. HMG has espoused claims of the business interests of its citizens in the past, most notably when it took up the cause of the Anglo-Iranian Oil Company before the International Court of Justice in 1952. This was essentially a contractual and foreign investment dispute between Anglo-Iranian (the precursor to British Petroleum) and the then-Iranian Government, but HMG decided that it merited formal diplomatic engagement. One would hope they would judge the claims of UK victims of terrorism to be at least as worthy as those of an oil company.
8. In 2008, then Prime Minister Gordon Brown expressed to claimants’ lawyers that the HMG did not consider it ‘appropriate’ to enter into direct UK-Libyan negotiations to settle these claims because the relationship with Libya has ‘fundamentally’ transformed, and Libya was considered an ‘essential’ partner in the fight against terrorism. In the wake of the 2011 revolution and Gaddafi’s widespread violence against his own citizens, this can no longer be said to accurately reflect facts on the ground. However, even if HMG were unwilling or unable to formally extend espousal on behalf of the UK Victims, other options exist. There are billions of pounds’ worth of Libyan assets frozen in the UK, a fraction of which could be liquidated and distributed to settle the claims of UK Victims. Suggestions to this effect have been made to consecutive UK governments, again to no avail.
9. Throughout these decade-long legal proceedings, there has been the persistent sense that commercial considerations have trumped humanitarian concerns. Both US and UK oil companies rushed into Libya to set up operations soon after the rapprochement with Gaddafi, and several leading political and diplomatic figures from both the US and the UK have taken key roles with corporations doing business in Libya, including former Prime Minister Tony Blair with British Petroleum. As distasteful as this naked commercial pandering might appear, at least the Government of the US managed to secure the rights of its citizens before entering into any subsequent corporate activity. At a minimum, the UK Victims of terrorism should be able to expect from HMG is similar consideration.
10. It is hoped that the Inquiry by this Committee may finally discover what has been behind the failure to do so, and help to enable measures to move this process forward expeditiously.
II. THIS INQUIRY
11. We are the legal representatives of UK victims of Provisional Irish Republican Army (PIRA) attacks made possible by the former regime of Muammar Gaddafi, through its supply of Semtex and other weapons to the PIRA. We commenced proceedings against the Gaddafi Regime on behalf of our Clients (the ‘UK Victims’) in US District Court for damages resulting from its material support of Libyan/PIRA terrorism. This case was Mark McDonald et al. v. The Socialist People’s Libyan Arab Jamahiriya et al. (Case No. 06-CV-0729-JR (D.C.)).
12. On 15 August 2015, we wrote to the Northern Ireland Affairs Committee (the ‘Committee’) to draw to its attention:
- The outstanding issue of compensation to be paid to the UK Victims in parity with that received by US Victims of Gaddafi/IRA terrorism under the LCSA.
- The failure of the present Government, and its predecessors:
- To provide effective assistance to the UK Victims, despite its duty to do so, as well as previous assurances of support while in opposition and in government; and
- To properly consider the use of frozen assets associated with Gaddafi and other Libyan officials responsible for the provision of Semtex to the PIRA that resulted in the loss and harm suffered by the UK Victims, or any other alternative means (such as a bilateral agreement between the UK and Libya similar to the LCSA), to settle the UK Victims’ legitimate claims for compensation.
- Allegations reported by the Sunday Telegraph and other media outlets that former Prime Minister Tony Blair and the Foreign & Commonwealth Office helped broker the LCSA for the benefit of Gaddafi in the knowledge that it would deprive UK Victims of just compensation.
- Lack of effective support by Her Majesty’s Government and, specifically, the FCO, in resolving the matter of the UK Victims’ outstanding claims against Libya, despite the fact that a FCO Unit was dedicated to the support of the UK Victims by former Prime Minister Gordon Brown in 2009.
- Allegations that the FCO may have misled a parliamentary delegation that visited Tripoli in 2009 on behalf of the UK Victims.
13. On 24 July 2015, the Committee announced that it would conduct an Inquiry “into the role of the UK Government in seeking compensation for the victims of IRA attacks made possible by the provision of Semtex and other weapons by the former Gaddafi regime”.
14. Among other issues, as per the Committee’s terms of reference[1], the Committee will seek evidence on:
– “The effectiveness of Government efforts to date in seeking compensation for UK victims;
– The current situation faced by UK victims;
– The work of organisations and individuals campaigning on behalf of UK victims;
– The options for providing compensation and redress, including the potential use of the frozen assets of the Gaddafi family.”
15. Below, we provide:
- A general introduction to the issues;
- A history of events to date, including Government efforts to date and our work on behalf of the UK Victims; and
- Our comments and outstanding questions regarding:
- The effectiveness of HMG efforts to date in seeking compensation for UK Victims;
- The options for providing compensation and redress to the UK Victims, including the potential use of the frozen assets of the Gaddafi family.
To comment on the current situation faced by UK victims, we understand that a number of them will be called by the Committee to give evidence on this issue. As such, we will leave it to them to give evidence on their situations. However, annexed hereto is a UK Victims’ ‘Portfolio’ that details the suffering they have endured. This should be of interest and importance to the Committee. A copy of this was previously provided to the Prime Minister, the Foreign Office and the Libyan Authorities, with the UK Victims’ consent. We must ask that the Committee keep the personal information relating to the UK Victims private and confidential. The Portfolio must not be published or circulated beyond the members of the Committee unless each UK Victim, whose details are included in the Portfolio, gives their express consent to it being reported on publicly. If the Committee would like us to introduce its members to any of the individual UK Victims, we are willing and able to do so.
III. INTRODUCTION
17. In 2008, the US Congress and former President George W. Bush enacted legislation that would remove Libya from the list of state sponsors of terrorism through the Libya Claims Resolution Act 2008 (LCRA) which was enacted only days prior to the signing of the US Libya Claims Settlement Agreement 2008 (LCSA). The LCSA created a ‘Humanitarian Fund’ by which US nationals would be paid compensation for the terrorist acts committed by Libya. After the ‘Humanitarian Fund’ was created, former US President George W. Bush signed Executive Order 13477 requiring the termination of all pending lawsuits against Libya and the espousal of only US nationals’ claims for compensation. Unfairly, this compensation resulted in the dismissal of McDonald and the payment of millions in compensation by Libya to plaintiffs who were US nationals (the ‘US Victims’). However, under the terms of the LCSA, the UK Victims receiving nothing.
18. Since 2008, successive UK governments have failed to properly and adequately protect and represent the UK Victims’ interests. Moreover, it has been reported in the media that HMG might have been at best negligent or at worst complicit in bringing about the LCSA and its denial of just compensation for the UK Victims.
19. The UK Victims seek parity of treatment with the US Victims.
20. The UK Victims claims have been recognised as valid by the US government as set forth in Executive Order 13477 stating:
“Neither the dismissal of the lawsuit [of the foreign nationals], nor anything in this order, shall affect the ability of any foreign national to pursue other available remedies for claims coming within the terms of Article I [of the LCSA] in foreign courts or through the efforts of foreign governments”.”.
They have been also been recognised as valid by: the UK government; the prior Libyan regime under Gaddafi which was engaged in settlement discussions prior to the overthrow of the Gaddafi regime; and the New Libyan Government which entered into multiple memoranda of understanding vis-à-vis the UK Victims’ claims.
There is no legitimate contest or controversy over the merits of these claims by UK Victims against Gaddafi and the former Gaddafi Regime. They only wish to be treated as fairly as the US nationals killed or injured in the same or similar PIRA attacks.
21. These UK Victims ask to be fully and fairly compensated at the established values that were fixed and agreed during lengthy resolution efforts with Libya. They have lost much and suffered greatly.
22. All they seek is parity with not only the US victims of PIRA/Libyan attacks but also victims of, inter alia, the bombing of Pan Am Flight 103 over Lockerbie and the bombing of the La Belle discotheque in Berlin.
23. The compensation of the UK Victims is an issue that must be resolved in order for Libya to gain closure on the long decades of Gaddafi’s reign of terror and continue to progress as a just, fair and respected member of the international community.
IV. HISTORY
A. PIRA/Gaddafi Terrorism (1972-1997)
24. Between December 1969 and July 1997, the PIRA engaged in a campaign of murder in the form of shootings, bombings, and other acts of violence against civilian targets in the UK, including Northern Ireland. Throughout the 1970s and 1980s, the PIRA obtained material support from the Gaddafi Regime in the form of the provision of ammunition, arms, finances, explosives, including, but not limited to, the deadly explosive agent Semtex.
25. The Gaddafi Regime:
- Equipped and supported the PIRA through the facilitation of the sales of ammunition, arms, explosives, and explosive components;
- Provided the PIRA with military training, a base of operations within the territory of Libya, financial support, public support, and encouragement; and
- Supplied the PIRA with vast stores of the explosive agent Semtex.
26. The transport of Semtex explosives to the PIRA was approved and overseen by Gaddafi’s agents. The deaths and injuries sustained by Plaintiffs herein was a reasonably foreseeable result of the provision of Semtex by the Gaddafi Regime to the PIRA. Gaddafi was intimately involved in the policy of arming the PIRA, thus making it possible for the PIRA to engage in acts of terrorism against innocent civilian targets in the UK as described herein.
27. As a consequence, and in violation of the general principles of law recognized by civilized nations, the Gaddafi Regime proximately caused the terrorist acts and resulting death and injury of the UK Victims.
28. Here is a brief summary of the evidence:
- Beginning in 1972, the Gaddafi Regime established contacts with the PIRA that, in the subsequent twenty-five years, grew into a material support apparatus provided by the Gaddafi Regime to the PIRA.
- Between 1972 and 1997, the Gaddafi Regime provided material support to the PIRA in the form of finances, a base in Tripoli, military and explosives training, arms, and explosives including Semtex.
- At all relevant times, the means and objectives of the PIRA terrorist campaign were well known throughout the world due to the extensive publicity surrounding the terrorist atrocities it carried out indiscriminately against both civilian targets in the UK and the PIRA’s public acceptance of responsibility for such attacks. Gaddafi openly embraced the means and objectives of terrorism in the UK by the PIRA. Gaddafi openly provided material support for the PIRA terrorist campaign and understood and intended that death, destruction and personal injury would result.
- The Gaddafi Regime’s material support provided to the PIRA was designed to advance Gaddafi’s objective of fostering and engaging in terrorist acts against targets associated with both the UK and the US.
- During the 1970s, the Gaddafi Regime provided multiple shiploads of weapons and millions of dollars in financial support to the PIRA.
- The Gaddafi Regime continued its arms sales to the PIRA throughout the 1980s. It is estimated that the Gaddafi Regime provided the PIRA roughly between one hundred and twenty and one hundred and fifty tons of ammunition between 1983 and 1987.
- The Gaddafi Regime provided multiple tons of the explosive Semtex to the PIRA.
- On June 11, 1972, Gaddafi said:
"We support the revolutionaries of Ireland, who oppose Britain and who are motivated by nationalism and religion. The Libyan Arab Republic has stood by the revolutionaries of Ireland. It maintains strong links with the revolutionaries. There are arms and there is support for the revolutionaries of Ireland....We have decided to move to the offensive. We have decided to fight Britain in her own home. We have decided to create a problem for Britain and to drive a thorn in her side so as to make life difficult for Britain....She will pay a double price. She will pay dearly. We will give her blows of one for one received.”[2]
- In June of 1972, Gaddafi openly admitted that Libya was sending arms, money and volunteers to Ireland against British occupation forces and that Gaddafi intended to fight Britain and the US on their own lands.[3]
- At a press conference in Paris in November of 1973, Gaddafi said that Libya would continue in its aid of the PIRA because they were “little people fighting for their liberty against a great state.”[4]
- In an interview with Time magazine in April of 1979, Gaddafi declared, “we don’t consider the Irish fight for freedom to be terrorism.”[5]
- On May 2, 1984, Gaddafi openly expressed his continued material support for the PIRA: We do not consider the IRA a terrorist army: they have a just cause, the independence of their country … This is a just cause and we are not ashamed of supporting it and with all the means we have...”[6]
- In 1984, Gaddafi publicly admitted that he cooperated with the PIRA: ... we cooperated with them [PIRA] in the early 1970s … recognize noble strugglers like the leaders of the IRA. At any rate, we consider their cause just and we can support it the best we can.[7]
- On October 28, 1986, in an interview on Irish television, Gaddafi called for “all Irish youth in the North and South off Ireland to participate in the struggle for the liberation of Ulster.”[8]
- In March 1987, Gaddafi told The Observer that he had increased arms supplies to the PIRA in response to the US bombing campaign that occurred the previous year.[9]
- Libyan leader Muammar Gaddafi admitted his support of the PIRA in a speech at the Arab League Conference, broadcast on Al-Arabia TV on March 23, 2005: “Libya supported the IRA with weapons for Ireland’s independence. Of course, it is a terrorist organization...”[10]
29. There is no legitimate question that Gaddafi sponsored terrorist attacks on innocent civilians in the UK. Indeed, the Gaddafi Regime admitted to these crimes when Libya agreed to compensate the US citizens killed in these PIRA terrorist attacks under the LCSA. The UK Victims killed and injured in these same attacks deserve no less and demand parity with other innocent victims of Gaddafi’s Regime.
B. The UK/Gaddafi Détente
30. In December 2003, Gaddafi renounced his weapons of mass destruction and handed over his entire inventory of weapons of mass destruction to British and American experts, and also revealed an illegal stockpile of chemical munitions and a covert nuclear weapons programme. In addition, Libya disclosed details of its suppliers, which allowed Britain and America to prove that Abdul Qadeer Khan, the former head of Pakistan's nuclear programme, had been running a "nuclear supermarket" selling the key components for making atomic bombs to the highest bidders. Prior to this, Libya had one by one removed other obstacles to better relations with the West. In 2003, Libya agreed to pay compensation to the families of the 270 people who died when Pan Am Flight 103 was destroyed over Lockerbie in 1988. Two Libyan intelligence agents were handed over for trial and one was convicted of placing a bomb on board.
31. On 24 March 2004, then-Prime Minister Tony Blair met with Gaddafi in Tripoli to signify, in Mr. Blair’s words, “a new relationship.” Mr. Blair said that while people should not forget the past, they should move beyond it, and continued by saying:
“The world is changing and we have got to do everything we possibly can to tackle the security threat that faces us … the signs are better than they have been for many years. And the future prize in terms of security not just of this region but the wider world - indeed our own country - is great.”
At the same time, it was announced the oil company Shell had signed a deal worth up to £550m for gas exploration rights off the Libyan coast. It was also announced that British police officers would travel to Libya on 3 April 2004 to continue investigations into the murder of WPC Yvonne Fletcher. In addition to Shell, it was reported that other British firms had already begun tapping the opportunities in Libya, among them defence contractor BAE Systems in talks over aviation projects.[11]
Mr. Murphy’s response was: “The Government are aware of the recent calls by representatives of IRA victims and others that Libya should provide compensation for IRA victims. The Prime Minister discussed a wide range of issues with Colonel Gaddafi including international and regional security issues, including terrorism.”
Iris Robinson MP (Ret.d) (DUP) put this written question directly to Mr. Blair:
“(1) Whether (a) he raised the issue of the sale and transportation of illegal arms to the Provisional IRA when he recently met with Colonel Gaddafi in Libya and (b) he was given a full inventory of the weapons and explosives which the Provisional IRA received;
(2) Whether discussions took place with Colonel Gaddafi regarding financial compensation to those injured by, and to the families of those murdered by, illegal weapons transported to the IRA by Libya; and if he will make a statement;
(3) Whether the issue of (a) arms supplies to the IRA by Libya and (b) compensation for victims of terrorism in Northern Ireland arising from arms shipments from Libya to the IRA was raised during his meeting with Colonel Gaddafi.”
Mr. Blair’s response was to refer to his answer to the following question put to him by David Burnside MP (Ret.d) (UUP) on 1 April, when Mr. Burnside asked Mr. Blair: “whether he discussed the supply of arms and explosives to the Provisional IRA with Colonel Gaddafi last week.”
Mr. Blair’s reply to Burnside was that he “discussed a wide range of issues with Colonel Gaddafi including international and regional security issues, including terrorism.”
Comment 1: Was Gaddafi’s support of the PIRA and issue of compensation for its UK Victims discussed during Blair’s meeting with Gaddafi in March 2004? Mr. Blair’s reply to Mr. Burnside’s parliamentary question of 1 April 2004 neither confirms nor denies that it was (see para. 32). If it were, why would Mr. Blair not confirm this? If it weren’t, why would a UK Prime Minister not raise such an issue of national importance? Mr. Blair’s failure, or unwillingness, to do so would stand in stark contrast to the fact that another matter of Libyan terrorism, that of WPC Fletcher, evidently – and quite rightly – was raised, and that he appears to have had no issue lobbying on behalf of UK business, notably Shell (see para. 31). If this were the case, what were Mr. Blair’s or HMG’s sensitivities against, or motivations for not, doing so?
Comment 2: On 14 June 2006, Mr. Straw told Parliament that HMG had no plans to raise the issue of compensation for the UK Victims with the United Nations (see para. 33). Why, in contrast to its support of the victims of Lockerbie, was HMG unwilling to raise the issue of compensation for the UK Victims with the UN?
In brief, through lobbying at the UN, HMG quite rightly provided the following assistance to the victims of Lockerbie:
– 1992 the UN imposes diplomatic sanctions, embargoes on aviation equipment and flights from Libya, and arms supplies and training excluding financial resources derived from the sale of petroleum products and agricultural products are imposed on Libya when it refuses to extradite two citizens suspected of involvement in the Lockerbie bombing. The sanctions call for compensation to be given to the victims of Lockerbie.
– 1993 Further sanctions freeze all financial assets belonging to the public authorities of Libya. •
– 1999: UN sanctions are suspended and diplomatic relations with Britain are reinstated after Libya hands over the Lockerbie suspects for trial in the Netherlands under Scottish law.
– 2002: FCO Minister O’Brien visits Libya and includes compensation for the Lockerbie victims on the agenda.
– March 2003 further talks in London between the US, UK and Libya take place, the aim of the talks are compensation for the Lockerbie victims.
– August 2003: Libya signs a deal worth $2.7bn to compensate families of the Lockerbie bombing victims and writes to the UN Security Council admitting responsibility for the bombing.
Mr. Blair’s government’s lack of support for the UK Victims also stands in stark contrast with previous UK Government support in securing compensation for the family of WPC Fletcher, which can be summarized as follows:
– 1984: diplomatic relations were severed with Libya after Yvonne Fletcher was shot.
– 1991: Gaddafi apologises for the killing and the Foreign Office demands that Gaddafi must hand over the killer.
– In 1999: to re-establish diplomatic relations with Britain, the Libyan regime accepted “general responsibility” for the killings and agreed to compensate WPC Fletcher’s family and offered £250,000 in compensation to the parents of Yvonne Fletcher.
(N.B. On 22 October 2012, Lord Laird also asked the Coalition Government whether it would provide the same support to the UK Victims as it did to the victims of Lockerbie. The reply, as with Mr. Straw’s, was no. (See para. 98)).
How and why did Mr. Blair’s government distinguish between the UK Victims (estimated to number 3,500) and the victims of Lockerbie (270 fatalities) and the family of WPC Fletcher? HMG has never explained this, despite being asked to do (see para. 39). On behalf of the victims of Lockerbie and the family of WPC Fletcher, HMG was prepared to sever diplomatic relations with Libya, and indeed did so, to secure fair treatment, justice and accountability. It appears that Mr. Blair and HMG were not even willing to discuss compensation for the UK Victims with Gaddafi in 2004. This begs the questions: why?
C. Legal Proceedings & the LCSA (2006-2009)
34. On April 21 2006, 152 UK Victims of Gaddafi/IRA terrorism, alongside US Victims, filed civil proceedings in the US District Court for the District of Columbia against Libya, the Libyan External Security Organisation, Muammar Gaddafi and four individual agents of the Libyan Government for damages resulting from the Gaddafi Regime’s material support of Libyan/PIRA terrorism. This case was Mark McDonald et al. v. The Socialist People’s Libyan Arab Jamahiriya et al. (Case No. 06-CV-0729-JR (D.C.)).
35. On 13 August 2006, a Libyan Court awarded damages of $22 billion against the UK and US for their role in the bombing of Tripoli and Benghazi in 1986.
37. On 29 May 2007, Mr. Blair once again travelled to Libya to meet with Gaddafi. Mr. Blair described their talks as "positive and constructive" and said their rapprochement was good for both countries and the "wider region". Mr. Blair continued: “There is nothing I've ever agreed with him that should be done that hasn't been done ... It shows that it is possible to go from a situation where Libya was an outcast from the international community to a situation where our relationship has been transformed." Also at the meeting was Peter Sutherland, the chairman of BP. Officials travelling with Mr. Blair said the oil firm had signed a £450 million agreement, with the prospect of 17 wells being drilled. They added that if all this exploration reached its full potential, the deal could be worth £13 billion.[12] It was also reported that Mr. Blair had lobbied Gaddafi on behalf of the Bulgarian nurses in the well-known HIV trial.[13] There is no record of Mr. Blair having raised the matter of the UK Victims.
(It is of interest that, in the summer of 2014, Blair was hired by a consortium of energy companies to advise on the development of a huge gas field in the Caspian Sea and the creation of transport infrastructure taking the gas through Turkey and onwards through Greece, Albania and Italy. BP is the leader of this consortium. Other companies involved include Statoil, Socar, Botas, Fluxys, Axpo and Eon. According to a Financial Times article, BP hired Blair, along with former German Foreign Minister Hans-Dietrich Genscher and Goldman Sachs International chairman, to sit on an advisory panel, also known as the ‘Southern Corridor Advisory Panel’.[14] In January 2015, a group of Conservative MPs tabled a parliamentary motion to challenge Mr. Blair to share details of his business contracts; one area of interest, as several UK news publications indicated, is his involvement in the Azeri oil pipeline (in the Caspian Sea), a deal from which, according to The Sunday Times, Mr. Blair is rumoured ‘to earn millions of pounds’.[15] We believe it is noteworthy that among companies with interests in the exploration and development of Caspian Sea oil, alongside BP, is PetroSaudi, a Saudi oil company. Similar to his relationship with BP, according to documents retrieved by the Sunday Times, Mr. Blair also acts on behalf of PetroSaudi as a consultant, for which Tony Blair Associates is reported to receive a £41,000 monthly fee, in addition to a 2% commission on any deal Mr. Blair brokers.[16])
Comment 3: As in March 2004, it appears that, despite full knowledge of its importance, Mr. Blair failed, or was unwilling, to raise the issue of compensation for the UK Victims with Gaddafi at their meeting in May 2007. Again, this stands in stark contrast to his willingness to lobby on behalf of UK business and even the plight of foreign nationals, in this instance Bulgarian nurses, but not our own. (See para. 37). As before, given the significance and national importance of this issue, what were Mr. Blair’s or HMG’s sensitivities against or motivations for not doing so?
39. On 13 December 2007, Sammy Wilson MP (DUP) asked the House of Commons:
“During the 1980s, the Libyan Government brought hundreds of tons of guns and explosives into Northern Ireland to help the IRA. As a result, hundreds of people were killed, thousands were maimed, and businesses worth millions of pounds were destroyed. Many of the victims’ groups have been demanding that the Government seek compensation from the Libyan Government, just as compensation was sought for the victims of the destruction of the Pan Am flight over Lockerbie. This week the groups were informed that the Government did not intend to pursue the case. Will the Leader of the House find time to bring the Foreign Secretary along to make a statement explaining why victims of Libyan-sponsored terrorism in Northern Ireland are being treated differently from victims of the same state in Lockerbie?”
We could not locate any record of the Foreign Secretary appearing before the House of Commons to make any such statement.
40. In January 2008, the US Congress passed the annual National Defense Authorization Act (NDAA), the omnibus spending bill that funds the US military each year. The bill always contains several extra provisions covering areas that may be unrelated to defence spending. In 2008, one of those provisions (§1083) allowed victims of state-sponsored terrorism to collect court judgments from those terrorism-sponsoring states by seizing their assets in the US or money from companies doing business with them. At that time, it was estimated that if Libya lost all those court cases brought against it in US courts by victims of its terrorist activities that were still pending, it could have faced losses of $3-6 billion (our opinion is that the amount might have actually been a lot greater). Numerous liens were subsequently filed against corporations in the US doing business with Gaddafi. These included ExxonMobil and Occidental Petroleum. While §1083 remained legally valid for pursuing claims against Libya, its effects were later mitigated by the establishment of a ‘Humanitarian Fund’ for U.S. victims of Libyan terrorism, discussed in more detail below.
41. It was subsequently reported by the New York Times[17] that in March 2008, Libya’s Ambassador to the US, Ali S. Aujali, signed a $2.4 million contract with the prominent Washington lobbying firm the Livingston Group. Together with the Livingston Group, Aujali had a series of meetings with Congressional leaders to secure a waiver from the law. Separately, David Goldwyn, head of Goldwyn International Strategies LLC, “an oil industry group”, and the Libyan Government said they had approached the White House, State Department, Energy Department and the Pentagon. “A battalion of top oil industry executives – from companies including ConocoPhillips, Hess, Occidental and Marathon Oil” were reported to “have been making the rounds on Capitol Hill”. “ExxonMobil, Chevron and Dow Chemical also supported the effort”. Their efforts resulted in four of President Bush’s cabinet members -- Robert M. Gates, the defence secretary, Condoleeza Rice, the Secretary of State (who would subsequently be instrumental in brokering the LCSA), Samuel W. Bodman, the Energy Secretary, and Carlos M. Gutierrez, the Commerce Secretary -- writing a letter to Congress urging it to agree to Libya’s requested exception. The letter said that the law was putting American oil companies at a disadvantage in competing for access to Libya’s 40 billion barrels of proven oil reserves.
It is of interest that David Goldwyn went on to become in 2009 the US Department of State’s (USDOS) Special Envoy for International Energy Affairs.
42. On 12 March 2008, the US Embassy in Tripoli, sent a classified message that read as follows[18]:
“1. (C) Summary: Leader Muammar al-Qadhafi, National Oil Corporation Chairman Shukri Ghanem and Deputy Foreign Minister Siala stressed to American interlocutors in recent meetings that the GOL views the recent confluence of the UTA bombing case judgment against Libya and a new US law intended to assist victims of terrorism as serious threats that could jeopardize further development of US-Libya bilateral ties and prompt Libya to expel US oil and gas companies and reduce oil production. End summary.
US OIL COMPANIES TREATED TO BROWBEATING
2. (C) ConocoPhillips CEO Jim Mulva was summoned to Sirte for a half-hour "browbeating" by Leader Muammar al-Qadhafi during his visit to Libya on/about February 24. Country manager Page Maxson told P/E Chief that the entire conversation focused on al-Qadhafi's "personal ire" about the so-called "Lautenberg Amendment" (section 1083 of the National Defense Authorization Act of 2008) and the USD 6 billion award against Libya in the UTA bombing case, and al-Qadhafi's view that Libya had not been sufficiently compensated for its decision to give up WMD and renounce terrorism. Al-Qadhafi passed a copy of his recent letter to the President on the subject (ref B) to Mulva. Telling Mulva that he and his fellow US oil company CEOs needed to engage members of the US Congress and the Administration on the matter, al-Qadhafi threatened to dramatically reduce Libya's oil production and/or expel out US oil and gas companies. Al-Qadhafi claimed Libya would rather "keep its oil in the ground" and wait for a more favorable overseas investment climate than continue high levels of production in an environment in which sizeable portions of its oil-related assets could be seized.
3. (C) In a related development, Exxon-Mobil Country Manager Phil Goss told P/E Chief that Shukri Ghanem, Chairman of Libya's National Oil Corporation, had chastised him during a meeting on February 25 for nearly an hour on the "dire political signal" represented by the Lautenberg Amendment and the UTA judgment. Ghanem told Goss that US oil and gas companies should "tell Washington" that Libya was serious in its threat to "significantly curtail" its oil production as a means to "penalize the US" for Lautenberg and UTA. According to Goss, Ghanem -- a US-educated former Prime Minister -- was emotional in insisting that Libya "would not tolerate" Lautenberg and UTA without taking some retaliatory measures. Privately, Goss questioned whether the GOL could really afford to significantly curb oil output at a time when it is making massive investments in infrastructure as part of the run-up to the 40th anniversary of the military coup that brought al-Qadhafi to power on September 1, 2009. Stressing the erratic nature of decision making in the GOL, Goss was careful not to rule out the possibility that Libya could choose "to do something stupid".
DFM SIALA: LAUTENBERG & UTA JUDGMENT "THREATEN EVERYTHING"
4. (C) In a meeting February 27 on other matters, Deputy Foreign Minister-equivalent Muhammad Siala stressed to CDA the seriousness with which the GOL views the UTA bombing case damages judgment and Lautenberg Amendment. Siala expressed concern that the confluence of the two developments was "destroying everything the two sides have built since 2003". US judicial and legislative branch decisions were "pushing Libya into a corner", forcing it to take measures to protect assets that could be exposed to seizure under the Lautenberg Amendment to satisfy terrorism-related claims such as that in the UTA bombing case. In addition, such actions bolstered the position of GOL elements suspicious of re-engagement with the United States.
5. (C) The GOL, Siala said, was urgently examining ways to protect its oil revenues from seizure by US plaintiffs. Claiming that payments to the GOL by US oil and gas companies alone totalled $1 billion per month, Siala said the GOL recently decided to require that these payments be made in Euros rather than in dollars. (Note: ConocoPhillips country manager Page Maxson told P/E Chief total payments by US companies were more likely in the range of $500-750 million per month. End note.) US oil and gas company country managers confirmed that all payments for services must now be in non-dollar currencies; they must also pay their monthly revenue share to the GOL in Euros. In addition, Siala said the GOL was considering whether to require US oil and gas companies to establish wholly owned European subsidiaries through which financial transactions could be funnelled, creating an additional firewall against asset seizure. Stressing that senior GOL leaders viewed Lautenberg and claims issues as "serious threats" to Libya, Siala cautioned that unless some mechanism for mitigating both issues were identified soon, Libya could be forced to slow its oil exports, likely prompting further price spikes in an already jumpy spot market.
6. (C) Siala said the GOL's understanding is that there are 26 outstanding cases before US courts, including Pan Am 103, LaBelle and UTA. The GOL could not afford to be "bled" continuously by high-dollar awards in such cases. Unless the US "took positive steps" to resolve the Lautenberg and UTA judgment issues, Libya would be forced to divest itself of all investment and assets in the US financial system. (Note: Mustafa Zarti, Deputy Chairman of the Libyan Investment Authority (LIA), Libya's sovereign wealth fund, subsequently told CDA and P/E Chief that the LIA had all but completely divested itself of US holdings totalling some $9 billion. Conceding that it was difficult for any fund manager not to have a position in the US market, he stressed that it made "no sense" for the LIA to continue to invest in the US if its assets could be attached. End note.) Noting that he had personally played a key role in negotiating the release of Libyan assets frozen in US banks in the sanctions era, Siala said Lautenberg was "much worse" because courts, not the executive branch, could seize assets and held them without paying interest. Because the Lautenberg Amendment provided for seizure before a final judgment had been reached, assets could be held for years without interest.
COMMENT
7. (C) Comment: Elements of the GOL remain convinced that the confluence of the Lautenberg Amendment and the UTA judgment constitute a political signal about limits on the bilateral relationship. There is genuine confusion among some about why such a signal would have been sent so soon after FM Abdulrahman Shalgam's January visit to Washington and in the course of a good patch of bilateral programmatic cooperation, with some perceiving the timing as a deliberate insult. The threat to curb oil production seems unlikely to be carried out in light of Libya's current budget obligations and absolute dependence on oil revenues. The regime has demonstrated in the past, however, that it is prepared to take sizeable risks and incur significant short- to mid-term costs if it feels it has been politically slighted.
End comment.”
43. On 17 March 2008, the following memo from the US Embassy in Libya, incorporating a confidential memo written by Abdulati Obeidi, Secretary for European Affairs, General People's Committee for Foreign Liaison and International Cooperation, was sent to the US authorities[19]:
“REASON: 1.4 (b), (d)
1. (C) In a meeting on March 16, MFA U/S-equivalent for European Affairs Abdulati Obeidi passed CDA and P/E Chief a copy of a note proposing a meeting with USG officials "at the earliest possible date" to begin discussions regarding a comprehensive settlement of all legal claims pending in US and Libyan courts. (Note: Post's translation is at para 4; original Arabic language text has been scanned and sent to NEA/MAG via email. End note.) Noting that the Libyan proposal stemmed from discussions in February in Europe between NEA A/S David Welch, Saif al-Islam al-Qadhafi and Obeidi, he said the GOL also transmitted the note and instructions to Libya's CDA in Washington, Ali Aujali, on March 15. It was expected that Aujali would convey the note to the Department on March 17. The offer by the GOL to negotiate a comprehensive settlement represented an important "political decision" by the GOL, he said.
2. (C) Obeidi suggested that initial discussions could focus on the three major outstanding claims cases in US venues: Pan Am 103, LaBelle, and UTA. Emphasizing his desire to avoid "surprises", he said that the GOL team would also raise judgments in Libyan courts related to the 1986 Operation El Dorado Canyon bombing of Tripoli and Benghazi. Obeidi said the Libyan team would consist of himself, Deputy Foreign Minister-equivalent Dr. Muhammad Siala, attorney and head of the GOL's litigation committee Ahmed Mselati, attorney Azzam al-Dib, attorney Dr. Ali Dawi, attorney Azza al-Maghour, and Qadhafi Development Foundation official Munther Ramadan. (Note: DFM Siala's position was formally abolished, together with all deputy minister-equivalent positions, in the wake of Leader Muammar al-Qadhafi's March 2 speech to the General People's Congress; however, Siala remains in his office at the MFA. Obeidi said a "reorganization" would occur, but suggested Siala may remain at the MFA in some as-yet undetermined capacity. End note.) Obeidi said discussions to date on a comprehensive settlement had been at the political level; Obeidi suggested the time was now right for the two sides to include legal experts who could help formulate modalities of a possible settlement mechanism.
3. (C) Noting his understanding that positive movement on claims - particularly high-profile cases - could lend impetus to efforts to find a mechanism to mitigate the effects of section 1083 of the 2008 National Defense Authorization Act (the "Lautenberg Amendment"), Obeidi stressed that the GOL would like to meet with the US team as quickly as possible. The GOL's preference is that the venue be either in Tripoli or in Europe (London, Rome and Geneva were suggested). Citing what he said was the decision of the US judge in the Pan Am 103 case to suspend legal proceedings in the case while negotiations were underway, Obeidi said the GOL hoped proceedings could be similarly suspended in the LaBelle and UTA cases.
4. (C) Begin informal translation of note: A Proposal to the US State Department Regarding Settlement of Pending Issues Between the Two Countries Recalling the cases filed against the Great Jamahiriya and a number of its nationals in US courts and Amendment 1083 of the 2008 US Defense Authorization bill, and recalling verdicts pronounced by Libyan courts for compensation of victims of the American raid on Libya in the year 1986 of the Christian calendar; and recalling the intensive contacts between the two sides at the political and legal levels regarding the desire to reach a comprehensive settlement of all pending issues. We wish to inform you of our agreement to reach a settlement that would include all pending issues and would put a definitive end to all judicial disputes and permit forward movement in the development of bilateral relations in all areas of cooperation serving the interests of the two countries: We therefore propose the following:
- Within the framework of implementing the above-referenced settlement, a fund shall be established for the purpose of compensating victims of both countries, to be funded directly or indirectly in accordance with a mutually agreed mechanism that is to be specified in detail within the framework of the proposed settlement.
- To suspend legal proceedings of cases currently before US courts, to suspend implementation of verdicts issued in both countries and to commence negotiations regarding a comprehensive settlement.
- To hold an official meeting between representatives of both countries at the earliest possible date to discuss a comprehensive settlement agreement. We propose that the venue for such a meeting be either Tripoli or any European country. Awaiting your reply, we offer assurances of our respect and highest consideration.
Date: March 11, 2008.
Signed: Abdulati Obeidi, Secretary for European Affairs, General People's Committee for Foreign Liaison and International Cooperation”
44. It is our understanding that on 15 April 2008 Libya, for the first time, made HMG aware of the 2006 Libyan court ruling and its award of damages of $22 billion against the UK and the US for their role in the bombing of Tripoli and Benghazi in 1986.
– They too were the victims of terrorist atrocities involving Libya;
– They had also brought civil proceedings in the US against Libya, Gaddafi and other officials in his regime.
– Our countries were close allies, in particular in fighting terrorism;
– Terrorists made no distinction about nationalities, e.g. in the Harrods bombing both US and UK citizens were killed and injured;
– Surely in these circumstances our two countries should show solidarity for the victims of terrorism from our two countries rather than either country allowing particular national interests, including economic, to block a common compensation scheme.
46. Lord Brennan QC and John Eubanks, Motley Rice LLC, attorney for the UK lawyers in their US claim, had meetings on Capitol Hill, Washington DC, USA, with the Committee on Foreign Relations and senior staff of several relevant US Congress members on 5 and 6 June 2008, and with senior staff at the US Department of State on 6 June 2008.
Those at the Congress meetings were sympathetic, whereas the DOS response was polite but non-committal.
Lord Brennan and Mr. Eubanks also met with USDOS lawyers. At that meeting, USDOS advised that they were not aware of the UK Victims’ claims for compensation and their class action suit that was at that time presently before the US District Court in DC. They requested that we provide a position paper, outlining the details and status of our case (this was subsequently provided).
They also had a meeting with the Chief Counsel and Deputy Staff Chief of the Senate Committee on Foreign Relations. Its Chief Counsel assured us that no waiver would be granted to Libya unless it settled all outstanding actions before the US courts.
Having regard to the subsequent events in the US (as outlined at paras 49 to 51 below) it was obvious that the US Government was determined to proceed to the accord with Libya and that the LCSA was the quid pro quo demanded by Congress in return for the legislation that reopened US/ Libya economic relations and delisted Libya from the State Terrorist black list, whereby they could thereafter try to claim sovereign immunity in any terrorist related claims against Libya in the US. Hence the need for the UK government to act with the determination shown by the US (and to be noted by other allies in Europe), as emphasised in our correspondence with then-Prime Minister Brown at paras 52 and 53 below.
“TB should explain what he said to President Bush (and what Banner said to Welch) to keep his promise to intervene after the President allowed US courts to attach Libyan assets. He could express satisfaction at the progress made in talks between the US and Libya to reach a Govt to Govt solution to all the legal/compensation issues outstanding from the 1980s. It would be good to get these issues resolved, and move on. The right framework is being created. HMG is not involved in the talks, although some British citizens might be affected by them (Lockerbie, plus some Northern Irish litigants going to US courts seeking compensation from Libya for IRA terrorist attacks funded/fuelled by Libya). Libyan Courts have awarded damages of $22 billion against US/UK for the 1986 bombing of Tripoli. HMG are ignoring the decision, aimed primarily politically at the US, which naturally also wants the Libyan court decision not to be implemented.
It remains a UK objective to promote the City of London as a safe and profitable place for Libya to invest its Sovereign Wealth Fund through the Libyan Investment Authority, which we hope will open a London office this year. New York has shot itself in the foot – or rather, President Bush did. Libya has withdrawn $9 billion of investment from the USA.
There is one bilateral issue that I hope TB can raise, as a legacy issue. On 29 May 07 in Sirte, he and Libya’s PM agreed that Libya would buy an air defence system (Jernas) from the UK (MDBA). One year on, MDBA are now back in Tripoli (since 8 June) aiming to agree and sign the contract now – worth £400 million, and up to 2,000 jobs in the UK … We think we have Col Q’s goodwill for this contract: it would be very helpful if he expressed it more clearly.”
We should note here that we did not become aware of this email or its implications until August 2013 when it was reported on by the Telegraph.
Comment 4: The following is apparent from: (a) media reports in early 2008 (see paras. 40 and 41); (b) the US Embassy in Libya’s memo to USDOS dated 12 March 2008 (see para. 42); (c) the US Embassy in Libya’s memo to the US authorities dated 17 March 2008 (see para. 43); and (d) Sir Vincent’s email to Mr. Blair’s office dated 8 June:
- Gaddafi was upset by the potential value of litigation brought against him by victims of his terrorism in the US courts -- any reasonable estimate is that he was facing judgments ordering him to pay damages of tens of billions of dollars – and the US National Defense Authorization Act (2008), which was passed in January 2008 and allowed seizure of Libyan assets in the US
- In March 2008, Gaddafi told US oil company CEOs to engage members of the US Congress and the Administration on the matter or he would dramatically reduce Libya's oil production and/or expel US oil and gas companies from Libya, stating Libya would rather "keep its oil in the ground" and wait for a more favourable overseas investment climate than continue high levels of production in an environment in which sizeable portions of its oil-related assets could be seized. In short, Gaddafi threatened to significantly curtail its oil production or expel US oil companies from Libya as a means to penalize the US. (See para. 42).
- Shortly thereafter, that same month, Obeidi began discussions with the US authorities regarding a comprehensive settlement of all legal claims pending in US and Libyan courts and in doing so, to strengthen the Libyan position, raised that matter of the April 2006 judgment of the Libyan Courts against the US and UK which ordered them to pay damages of USD $22 billion for their role in the 1986 bombings of Tripoli and Benghazi. (See para. 43).
- Mr. Blair (who was then out of office) promised Gaddafi that he would intervene with President Bush on Gaddafi’s behalf to ensure this issue was resolved. (See para. 47)
- Mr. Blair did intervene with President Bush to get this issue resolved. (See para. 47).
- HMG were eager to get this issue resolved and “move on”, even though it was aware that the UK Victims would be affected by them. (See para. 47).
- HMG were not involved in the talks – as confirmed by Sir Vincent -- between the US and Libya on this matter (this un-involvement obviously did not include Mr. Blair who was then out of office). (See para. 47).
- HMG were eager to “move on, and help Gaddafi do so, for the following reasons (though there may have been others): (a) it wanted to avoid a judgment by the Libyan courts for the UK and US to pay damages of $22 billion for its role in the 1986 bombing of Tripoli; (b) it wanted to safeguard the City of London as an investment hub for Libya and its Sovereign Wealth Fund, as it feared that, if it did not assist Gaddafi in this matter, that London would be treated as New York was when Libya withdrew $9 billion of investment from the USA. (See para. 47).
- HMG were not willing to intervene with Gaddafi on behalf of the UK Victims, but it was willing to intervene on behalf of MBDA Missile Systems to ensure that Libya signed a contract worth £400 million. (See para. 47).
These documents are also informative because they clearly illustrate the difference between the US and UK in its willingness to ultimately ensure US victims of Gaddafi terrorism were justly compensated, even at risk of jeopardizing US business interests. In contrast, HMG pursued its détente and UK business interests with Libya (see Shell and Mr. Blair’s meeting with Gaddafi on 24 March 2004 (see para. 31), BP and Mr. Blair’s meeting with Gaddafi on 29 May 2007 (see para. 36) and Sir Vincent’s request related to MDBA Missile Systems (see para. 47)) without first ensuring that the UK Victims claims were addressed and settled. Why did HMG fail or choose not to do so? Why did HMG not seek to negotiate its own UK/Libya Claims Settlement Agreement before normalizing relations with the Gaddafi regime? One can only reach the reasonable conclusion that HMG refused to do anything that might have risked UK business interests and prioritized the profits of private corporations over the needs of UK Victims of terrorism. The tragedy is that, as the US proved, if the UK had stood firm, both UK business and the UK Victims could have been protected. Where the US succeeded, the UK, if only it had stood up to Gaddafi, could have too. This is a sad indictment of UK foreign policy and diplomacy.
“If the US government moves forward only on behalf of US citizens in this litigation, the trust and camaraderie between the US and UK governments will be damaged. Any truly comprehensive settlement of claims pending against Libya within the United States requires consideration and inclusion of the alien claims against Libya in these cases.
This issue calls for cooperation between the United States and the United Kingdom in crafting appropriate redress for these injured parties as our two countries have a unified interest in moving forward relations with Libya and for Libya to put its terrorist past behind it.”
The response from USDOS was that “there are significant differences between the joint US - UK initiative in the UN Security Council concerning the Lockerbie incident and the claims at issue presented by the McDonald litigation. But we appreciate hearing your perspective on this matter, which has been given careful consideration.”
Comment 5: It appears that Mr. Welch, who led the US/Libyan negotiations on the LCSA, was quick in his response to our letter of July 2008 (see para. 48) to dismiss any proposal that UK Victims should be included in the settlement. His reasoning for doing so was spurious at best: “there are significant differences between the joint US-UK initiative in the UN Security Council concerning the Lockerbie incident and the claims at issue presented by the McDonald litigation.”
In simplest terms, the fact that there was a UN Security Council Resolution in respect of Lockerbie was only supportive of any negotiation to include UK victims of Lockerbie in the LCSA settlement. It was not, by any means, a legal prerequisite. As such, there was no bar to negotiating for the inclusion of the UK Victims in the LCSA’s terms. The fact is, the US was not precluded from doing so. It simply chose not to. If, as Mr. Brown wrote in his letter of 11 September 2008 (see para. 52), HMG did make “representations to the US Government that UK claimants in the cases before the US courts against Libya for its past sponsorship of IRA terrorist acts should be included in the recipients of any compensation package” then why did the US government, with which HMG claims to have a ‘special relationship’, decline to do so, and why were Mr. Welch and USDOS so quick to reach that decision?
Mr. Brown wrote that the reason for this was “that international and US law do not permit the US Administration to espouse the claims of foreign nationals” and that “also relevant to the US decision was their assessment of how likely it would be that claims would fall within the jurisdiction of the US courts, and how likely it would be that they would succeed”. Firstly, there simply is no international or US law that prohibits the US from espousing the claims of foreign nationals. This is just USDOS policy; it simply chose not to. Secondly, in respect of any assessment of the merits of McDonald and the probability of its success, these were the same regardless whether the claimants were UK or US nationals. As such, this point was irrelevant. Even so, McDonald had excellent prospects of success and jurisdiction was not at issue challenged by the Defendants. As to the strength of the evidential case, Gaddafi had admitted publicly to providing Semtex to the PIRA and there is an abundance of evidence linking that Semtex to the bombs that killed or injured thousands of UK nationals. That being so, it begs the question of whether there was another reason that the US would not include the issue of compensation for the UK victims in its LCSA negotiations?
Perhaps the answer lies with our meeting with USDOS on 6 June 2008 (see para. 45) at which we were told that USDOS was not even aware of the UK Victims’ claims, some three months after Obeidi first proposed the LCSA (see para. 43) and only two days before Sir Vincent emailed Mr. Blair’s office to inform him that ‘HMG is not involved in the talks” (see para. 47). Did HMG ever actually make representations to the US to ensure that the UK Victims claims were included in the LCSA? We have no reason to believe that Mr. Brown was being untruthful in his letter to us of 11 September 2008, but it is possible that he was misinformed – as he certainly was as to the state of law regarding the ‘US’ ability to espouse the claims of foreign nationals. We have certainly never seen any evidence that HMG made such representations to the US, and we would respectfully request that the Committee ask HMG to produce it.
Returning to the question of why Mr. Welch and USDOS were so quick to dismiss any proposal that UK victims should be included in the LCSA settlement, the answer may be that, unless HMG made a request that they do so – and were strong in that request – there was simply no benefit to the US if it did so. It only risked antagonizing Libya, jeopardizing US business interests and risking a comprehensive settlement for compensation for US Victims of Gaddafi terrorism. However, this should still not absolve any failure by HMG to make every effort to ensure that the US and Libya included the UK victims in the terms of the LCSA. The facts suggest that, despite Mr. Brown’s assurance, no such representation were made or, if they were, they were merely token.
50. On 4 August 2008, US President George W. Bush signed the LCRA into law. Under the LCRA, on “receipt of adequate funds” from Libya, Libya would no longer be subject to exceptions of immunity from jurisdiction under the United States Code and, furthermore, any “private right of action relating to acts by a state of sponsor of terrorism arising under Federal, State, or foreign law shall not apply with respect to claims against Libya, or any of its agencies, instrumentalities, officials, employees, or agents in any action in a Federal or State Court”
“[i]n order to further the process of normalization of relation on the basis of equality and mutual benefit” the US and Libya agreed to reach a final settlement of any claims by either State’s nationals against the other State for either: (a) ‘an act of torture, extrajudicial killing, aircraft sabotage, hostage taking or detention or other terrorist act, or the provision of material support or resources for such an act’; or (b) ‘military measures’”.
In doing so, all such claims that were pending in US courts were to be terminated permanently and any future such claims precluded. The US and Libya agreed to the “establishment of a humanitarian settlement fund (the ‘Fund’) as the basis for settling the claims and terminating and precluding the suits”. Once contributions to the Fund reached the amount of US $1.8 billion, US $1.5 billion was to be deposited in a US Government account for distribution to US nationals and US $300 million was to be deposited into a Libyan Government account for Libyan nationals.
In a subsequent press statement made by Robert Wood, Acting Deputy Spokesman for the USDOS, he confirmed:
“[T]he United States and Libya signed a comprehensive claims settlement agreement in Tripoli. The agreement is designed to provide rapid recovery of fair compensation for American nationals with terrorism-related claims against Libya. It will also address Libyan claims arising from previous US military actions … No US appropriated fund will be contributed, and any contribution by private parties will be voluntary.”
This was followed by statements from David Welch, who went on to say:
“I am confident that there will be robust sources for this funding. I can say with respect to the United States that no taxpayers dollars will be used. There has been, I realize, some commentary about possible funding from US or other firms. The US Government is not asking them to do that. But to our knowledge, there is no legal bar for them voluntarily doing it if they wish to do that. Again, the same would apply to any other foreign entity.”
Despite repeated questioning, Mr. Welch refused to answer why he was so confident that the Fund would be capitalised or what the sources of funding would be.
Comment 6: Mr. Welch’s comments to the media made on 14 August 2008 (see para. 51) strongly implied that the LCSA Fund was capitalized by private parties, most likely the US oil companies who lobbied Congress alongside Libya for the waiver to the National Defense Authorization Act 2008 (see para. 41). This raises the question of why HMG did not approach UK oil companies who profited hugely from their dealings with the Gaddafi Regime to share those profits, just as their US counterparts did, with the UK Victims? As presented in detail supra, the price for UK businesses to trade with Gaddafi’s Libya was seemingly for the UK to drop any request for Libya to pay compensation to the UK Victims. UK corporations have arguable benefited and generated huge profits at the expense of the UK Victims without giving anything in return.
It is a point of interest that almost immediately after the signing of the LCSA, on 18 December 2008 Mr. Welch went on to become the president of the Europe, Africa & Middle East division for Bechtel, a multinational American company with billion-dollar construction deals across the Middle East. In late 2008, Bechtel signed its first contract in Libya since the 1970s to build the 1,400-megawatt Al Khalij power plant near Col. Gadhafi's hometown, Sirte.
Further to this, on 2 August 2011, during the Libyan Civil War, Mr. Welch met with senior Libyan officials – Abubakr Alzleitny and Mohammed Ahmed Ismail – at the Four Seasons Hotel in Cairo. Minutes of the meeting were found by Al Jazeera news producer Jamal Elshayyal in the office of Abdullah Senoussi, head of Libya's intelligence service and a defendant on the McDonald complaint. Senoussi is alleged to have been intimately involved in the supply of Semtex to the PIRA. During the meeting, Welch allegedly advised Gaddafi's team on how to win the propaganda war, suggesting several "confidence-building measures.” Minutes of this meeting record his advice on how to undermine Libya's rebel movement, with the potential assistance of foreign intelligence agencies, including Israel. The documents read:
"Any information related to al-Qaeda or other terrorist extremist organisations should be found and given to the American administration but only via the intelligence agencies of either Israel, Egypt, Morocco, or Jordan … America will listen to them … It's better to receive this information as if it originated from those countries...”
The papers also document Welch advising the Gaddafi regime to take advantage of the current unrest in Syria. The documents held this passage: "The importance of taking advantage of the Syrian situation particularly regarding the double-standard policy adopted by Washington … the Syrians were never your friends and you would lose nothing from exploiting the situation there in order to embarrass the West."
The documents allege that Welch went on to propose the following solution to the crisis, which he said many would support in the US administration: "[Gaddafi] should step aside" but "not necessarily relinquish all his powers". According to the document, as the meeting closed, Welch promised: "To convey everything to the American administration, the congress and other influential figures."[20]
“When it became clear that negotiations were taking place between the US and Libya, the UK Government made representations to the US Government that UK claimants in the cases before the US courts against Libya for its past sponsorship of IRA terrorist acts should be included in the recipients of any compensation package. But in the event, this proved not to be possible.
A key reason for this was that international and US law do not permit the US Administration to espouse the claims of foreign nationals – and thereby preclude those claims not only before the US Courts but also abroad. Also relevant to the US decision was their assessment of how likely it would be that claims would fall within the jurisdiction of the US courts, and how likely it would be that they would succeed.
UK victims in the Lockerbie case, however, were able to receive payments from the compensation fund because of the unique circumstances of the case. The Lockerbie bombing was subject to a UN Security Council Resolution that required that Libya accept responsibility for the Lockerbie bomb and pay victims’ families appropriate compensation. On this basis the US assisted in bringing closure to that case on behalf of the entire international community, and the Libyan Government agreed in 2003 to pay compensation to the victims’ families. The sums to be paid to those families under the terms of the US/Libya agreement reflect the final (so far unpaid) tranche of the previously agreed settlement payments. There is no such mechanism, settlement or court judgment in place in relation to the legal actions regarding the supply of arms by Libya to the IRA.
I realise those involved in the McDonald case will be disappointed with this outcome. You raised the possibility of direct UK-Libya negotiations to settle these cases and I would like to explain why the UK Government does not consider this appropriate. In recent years our relationship with Libya has been fundamentally transformed. They are an essential partner in the fight against terrorism and it is in the UK’s interests for this operation to continue. Furthermore, as you know Libya has answered questions about its involvement with the IRA to the satisfaction of the UK Government.”
53. On 19 September 2008, we wrote to Mr. Brown and encouraged HMG to:
- Open negotiations with the Libyan Government seeking a settlement of the UK Victims’ claims;
- Propose a fund akin to that established under the LCSA;
- Set a timetable for negotiations;
- Do this publicly, as the US did.
We also addressed several inaccuracies contained in Mr. Brown’s letter of 11 September 2008 as follows:
- As regards the claim that that international and US law did not permit the US Administration to espouse the claims of foreign nationals, it is everyday practice in litigation in the US, or for that matter anywhere in the world, for claimants to assign their claim to a third party to settle. Moreover, there are precedents for States being such a third party. As such, the US could have negotiated and brought proceedings to close on behalf of any victim, whatever their nationality.
- In respect of any assessment of the merits of McDonald and the probability of its success, these were the same regardless whether the claimant was a UK or US national. As such, this point was irrelevant. Even so, McDonald had excellent prospects of success. Prior to the promulgation of the LCRA, the LCSA and the Executive Order, jurisdiction was not at issue or even challenged by the Defendants. As to the strength of the evidential case, Gaddafi had admitted publicly to providing Semtex to the PIRA and there is an abundance of evidence linking that Semtex to the bombs that killed or injured thousands of UK nationals.
- To distinguish between the claims of the UK Victims in McDonald and those of Lockerbie was fundamentally flawed. There is no requirement that there must be a relevant United Nations Security Council Resolution (UNSCR) before a State may enter inter-state negotiations for payment of compensation to victims of state wrongdoing, whatever their nationality. To suggest that the LCSA could not have compensated the UK victims because there was not an existing and relevant UNSCR is groundless and wrong. It is entirely improper to argue that Lockerbie was somehow more important, and thus its victims deserved special dispensation, than mass act of terrorism Gaddafi committed when he provided weaponry and support to the Provisional IRA.
- That HMG’s position that entry into government-to-government (G2G) negotiations to settle the UK Victims’ claims would be “inappropriate” was startling. Not least because it has done it before, not only on behalf of the UK Victims of Lockerbie but also the Bulgarian nurses. (We should also add now, which we did not at the time, that HMG has never had an issue entering into G2G negotiations with Libya if it is on behalf of UK business, rather than its victims of terrorism).
Further to the above, we also noted that in transforming their own relationships with Libya, not only the US, but also France and Germany had all settled issues of outstanding compensation for their nationals who were victims of Libyan terrorism. Why had the UK not done the same?
Comment 7: In his letter of 11 September 2008 (see para. 53), Mr. Brown wrote to us that: When it became clear that negotiations were taking place between the US and Libya, the UK Government made representations to the US Government that UK claimants in the cases before the US courts against Libya for its past sponsorship of IRA terrorist acts should be included in the recipients of any compensation package. But in the event, it “proved not to be possible” for the US Government to make “representations to the US Government that UK claimants in the cases before the US courts against Libya for its past sponsorship of IRA terrorist acts should be included in the recipients of any compensation package” because “international and US law do not permit the US Administration to espouse the claims of foreign nationals”.
“Espousal” is a diplomatic term of art whereby an individual that has been injured in some way by a foreign state asks their government to assume the claim on their behalf, so that it may be more effectively fought in court, one sovereign against another. It is discretionary and rare, and states often will elect not to extend espousal as it may interfere with its foreign relations priorities. However, there was nothing to prevent the UK government from espousing its own nationals’ claims. Moreover, the US could have made non-formal, non-legalistic diplomatic representations on behalf of the UK Victims if they had chosen to, as is common practice. In short, while it may be accurate that the US Administration would ordinarily be reluctant to formally espouse the claims of foreign nationals, with all of the attendant legalistic intricacies of that particular phrase, there is nothing in either international or US law preventing the United State government from raising concerns or making representations on behalf of friendly nations -- in fact, this is a backbone of modern international relations, in which the US, as the sole Western superpower, tries to influence events in its sphere of interest on behalf of itself and its allies.
Recent examples could include the US expressing concerns to China about its aggressive behaviour in the South China Sea (on behalf of its Asian allies); or the US presence at negotiations between the European Union and Greece about debt restructuring (keeping a watchful eye as the largest donor to the IMF). Moreover, the US (like all nations) can choose to act as neutral mediator between two countries who may have strained relations, a role explicitly recognized by USDOS. However, there are even more concrete examples of where the US brought its influence to bear in regards to claims for financial reparations by foreign nationals: two prominent ones are the US' (self-interested) efforts to achieve a satisfactory result in the complex negotiations regarding Japanese reparations from World War II to its Southeast Asian neighbours, and more recently, the specific provision that foreign nationals would be permitted to make claims from the September 11th Victims Compensation Fund.
Mr. Brown also wrote to us that: HMG did not consider it “appropriate” for it to enter into government-to-government (G2G) negotiations with Libya to settle the UK Victims claims. This begs the questions of not only why was it appropriate for the US to enter into G2G negotiations on behalf of its victims but not the UK, but also why has HMG never had any issue doing on behalf of UK business? HMG’s position in this regard was, and in fact continues to be, shameful and astonishing; more so because the UK has, in the past, elected to use its espousal powers on behalf of commercial interests. In the 1952 Anglo-Iranian case, the Government of the United Kingdom brought proceedings against Iran in the International Court Justice. It alleged multiple violations of international law, including Iran’s refusal to arbitrate pursuant to a previously agreed oil concession agreement. Iran successfully challenged the treaty bases of jurisdiction invoked by the United Kingdom, so the Court was not empowered to pass upon the merits of the dispute, and the case was dismissed. The Mossadegh Government was eventually overthrown; the Shah, who had fled abroad, returned; and it is widely accepted that in the overthrow of Mossadegh, the intelligence services of the United States and the United Kingdom had a guiding hand. Thereafter the Iranian Oil Consortium Agreement was negotiated, on the one part between Anglo-Iranian and a group of the major international oil companies, and on the other part the Iranian Government. The export of Iranian oil resumed unhindered. That regime flourished until the Iranian revolution of 1979. The Consortium Agreement was ruptured in its wake. The claims of the successor to Anglo-Iranian, British Petroleum, went to ad hoc arbitration. The BP case was eventually settled, while claims of the American oil companies before the Tribunal were adjudicated and paid. In short, why has HMG being willing to espouse the claims of British business with foreign powers, but refuses to do so on behalf of the UK Victims?
“Tripoli is tapping US, Libyan and other companies to put money into a humanitarian fund for US victims of terrorism, a senior Bush administration official and another source said … ‘They (the Libyans) are out there raising their funds,’ said the senior official, who spoke on condition he not be named because the issue is sensitive … ‘They have called in a lot of companies, apparently. I don't know what they expect to get from them,’ the official told Reuters when asked whether Libya was tapping companies. Another source who closely tracks the issue said Libyan ministers had in recent weeks called in representatives from US, French and other international firms as well as Libyan companies, to put pressure on them over the fund.”[21]
Comment 8: On 3 October 2008, it was reported that “Libyan ministers had in recent weeks called in representatives from US, French and other international firms as well as Libyan companies, to put pressure on them over the [LCSA] fund” (See para. 54). It is only conjecture but it is possible that, given the prevalence of UK business interests in Libya at that time, such international firms might have included UK companies. If so, could UK companies have capitalized the LCSA Fund as a cost of continuing to do business in Libya and, in doing so, ensured that the US Victims were compensated while the UK Victims received nothing? The perversity of such a scenario would be that it is arguable that, if but for HMG’s desire to protect UK business interests in Libya, it may have negotiated its own LCSA Fund into which UK business could have paid to ensure the UK Victims were compensated.
55. On 6 October 2008, Andrew MacKinlay MP (Ret.d) (Lab) asked the Foreign Secretary David Miliband:
“If he will make a statement as to what representations the UK Mission in Washington DC has made to (a) members of the US Congress and (b) the US Administration on the Congressional Bill that would preclude UK citizens from pursuing civil litigation in US Federal Courts against the Government of Libya in respect of (i) the Lockerbie/Pan Am 103 bombing, (ii) Libya’s involvement in IRA bombings and (iii) the bombing of La Belle disco in Berlin; and if he will make a statement.”
Mr. Howells responded on behalf of Mr. Miliband:
“The conclusion of a Government-to-Government agreement between the US and Libya on 14 August will provide for compensation for many of the victims of Libya’s past sponsorship of terrorism, while ruling out the possibility of legal action against Libya before the US courts as regards allegations of Libyan involvement in terrorism before 30 June 2006. The Government regard inclusion of the British families of the victims of the bombing of Pan Am flight 103 over Lockerbie in 1988 in the recipients of compensation as welcome news for these families, but it is regrettable that the deal will not benefit all UK nationals with cases in US courts against Libya. During the course of negotiations between the US and Libya, the Government made representations to the US Administration that the families of Lockerbie victims and existing UK claimants with claims before US courts against Libya for its past sponsorship of Irish Republican Army (IRA) terrorist acts (the McDonald case) should be included as recipients of any compensation package. In the event, it proved not possible to include the McDonald case claimants in the recipients of compensation under the US/Libya Agreement. The Government did not make representations to the US Administration regarding the Berlin bombing, as there are no UK nationals with cases in US courts against Libya regarding this attack. A key reason for not including the McDonald claimants in the compensation package was that international and US law do not permit the US Administration to espouse the claims of foreign nationals. Also relevant to the US decision was their assessment of how likely it would be that claims would fall within the jurisdiction of US courts and how likely it would be that they would succeed. We understand from the US that US courts would not have jurisdiction to hear such actions by British nationals against Libya.”
Mr. Howells’ response is notable for its parroting of Mr. Brown’s letter of 11 September 2008 (see para. 52).
56. On 7 October 2008, Mr. Brown responded to our letter of 19 September. His reply was that:
“We have considered this matter very carefully and understand that this is a sensitive matter to all those involved. While the UK did make diplomatic representations to the US Administration with the objective of securing the inclusion of your clients in the list of beneficiaries to any compensation package, as you will have noted from my letter of 11 September, the UK Government does not consider it appropriate to enter into a bilateral discussion with Libya on this matter. This remains the Government’s position.
Libya has already answered questions put to it by the UK Government about its involvement with the IRA. Those answers satisfied the then UK Government and Libya has made it clear to us that they consider this matter closed. It would be very strongly opposed to re-opening the issue and it is our considered assessment that Libya would not support or be prepared to discuss a bilateral settlement of these cases with the UK Government and doing so would entail substantial risks.
I assure you that the UK in no way condones Libya’s past sponsorship of terrorism. It is, however, important that we recognise the fundamental changes Libya has made in recent years … With the support of the UK, Libya has returned to the heart of the international community.”
Comment 9: Mr. Brown’s letter to us of 7 October 2008 (see para. 56) is another example of his and Mr. Blair’s governments seeming ineffectiveness, in comparison to US dealings with Libya, in the negotiations of the UK’s détente and new relationship with the Gaddafi regime. More pertinent, however, is their ineffectiveness in comparison with previous UK governments. Whereas previous UK governments had, when Gaddafi resisted, severed diplomatic ties with Libya and lobbied the UN to ensure justice and compensation for the victims of Lockerbie and the family of WPC Fletcher, Messrs. Blair and Brown’s Governments appeared resigned to do nothing and simply accept that, in respect of the UK Victims, Libya “consider[ed] this matter closed”. Such opposition did not prevent previous UK governments from doing what was right when Libya “strongly opposed” or would not “support or be prepared to discuss a bilateral settlement” when negotiating justice for the victims of Lockerbie or the family of WPC Fletcher. What is the reason for this disparity? It appears that HMG was never willing to fight for the UK Victims as it had previously fought for others. They were simply forgotten. They are the forgotten victims. As Mr. Dodds said in his speech to Parliament on 22 October 2008 (See para. 57): “The inactivity of our Government in seeking to support the victims in their just quest for compensation and justice as a result of Libyan-sponsored IRA terrorism contrasts sharply with the various precedents that they themselves have set.”
Mr. Dodds goes on point out that:
“It also contrasts sharply with the activities of other Governments, particularly with the proactive approach of the US Government … It appears that the Government’s attitude is ‘Let’s not rock the boat. Let’s not do anything that will unsettle things diplomatically.’ That approach is of course not adopted by other Governments, most notably those of the US, France and Italy; it appears to be the unique attitude of the UK Government. To their shame, they sit alone in that attitude, betraying and letting down the victims of terrorism.”
To add to Mr. Dodds point, it is important to provide the Committee with the following further information:
- On 19 September 1989, a bomb explosion caused UTA Flight 772 to break up over the Sahara Desert, killing 170. Six Libyans were tried in absentia in the French criminal system and convicted. The Paris Assize Court subsequently awarded the families of the UTA victims sums ranging from €3,000 to €30,000 depending on their relationship to the dead. In 2003 the French threatened to veto the lifting of UN sanctions until the offer of compensation that had been received from Libya was increased. In 2004, Libya agreed to pay $170 million in compensation.
- On 10 August 2004, Libya agreed to pay $35m in compensation to the German victims of the 1986 Berlin bombing of La Belle Discotheque that killed two US soldiers and a Turkish woman and injured 229 other people. The German government called on the Libyan government to accept responsibility and provide compensation to the victims. On August 17, 2003, newspapers reported that Libya had signalled to the German government that it was ready to negotiate compensation for the bombing with lawyers for non-US victims. On August 10, 2004, Libya concluded an agreement to pay a total of $35 million compensation to Germany.
N.B. It appears Mr. Dodds inadvertently substituted Italy for Germany in his example but the point remains the same and just as powerful: if the US, French and German governments could stand up for and adequately represent the interests of their victims of Gaddafi terrorism, why didn’t HMG?
“In 2006, almost 200 British survivors of IRA terrorism … joined a very small number of American victims in taking a class action against Libya, which was filed and pursued through the courts in the United States. The aim was to ensure compensation along the lines of the Lockerbie air disaster in Scotland. Those who took the action were representing not only themselves, but also thousands of others murdered and maimed by Libyan-sponsored IRA terrorism. That was a crucially important and highly symbolic legal action, and those who have suffered so much at the hands of the IRA were surely deserving of the support and encouragement of our Government.
The Government, however, have seemed reluctant — to put it mildly — to become involved, and we were told that that was because of the legal proceedings. None the less, the Government have seen fit to become involved in a number of other matters relating to Libya and Libyan actions towards individuals and foreign citizens. For example, the former Prime Minister, Tony Blair, intervened in relation to the legal actions in Libya against Bulgarian nurses. The Government have rightly intervened on behalf of British and foreign victims of the Lockerbie air disaster, including criminal proceedings in the Netherlands and civil proceedings in Scotland and the United States.
Other European Governments, such as France and Italy, have taken a proactive approach and have secured adequate compensation for their citizens who have suffered as a result of Libyan-supported terrorism. For example, the French Government intervened in litigation brought by French and foreign citizens against Libya regarding the French flight UTA 772, which exploded in mid-air over the Sahara desert in September 1989.
The inactivity of our Government in seeking to support the victims in their just quest for compensation and justice as a result of Libyan-sponsored IRA terrorism contrasts sharply with the various precedents that they themselves have set. It also contrasts sharply with the activities of other Governments, particularly with the proactive approach of the US Government. I commend the American Administration for their determination to see right done by their own citizens. Sadly, in the case of the legal action that has been brought by UK citizens, such determination has turned out to be something of a two-edged sword, for the US Administration have taken the view — and espoused some of the reasons for it — that they can only look after their own citizens. That approach means that, two years on, the case mounted and initiated in the US has hit a massive brick wall.
The US Administration concluded that it was in their best interests, in both security and economic terms, to engage in a process of rapprochement with Colonel Gaddafi. However, as the US Government engaged in negotiations with Gaddafi’s regime, they were also acutely aware of the demands of Congress and victims that any rapprochement could take place only in the context of ensuring compensation for US victims in their courts. In order to secure a successful outcome to the negotiations, the American Government unashamedly interfered in domestic litigation and recommended a stay of civil actions on the basis of agreeing a compensation settlement for US citizens only.
The American deal with Libya was enshrined in the Libya claims settlement agreement of 14 August 2008, and was settled last month when the US Secretary of State Condoleezza Rice visited Libya. The deal means that three Americans — the only US claimants — will be well compensated, and rightly so, but the remaining 139 UK claimants and the class action of some 3,500 British claimants are now back to square one. That cannot be right or just. It is a travesty of justice that has caused considerable dismay and anger among those who now find themselves no better off than they were when they embarked on their just case.
One of the other people who came to the House last week was Willie Frazer of the Northern Ireland-based pressure group, Families Acting for Innocent Relatives. He said:
‘We tracked down the American victims to allow us to take the case in the first place. They will now be entitled to get compensation. I don’t begrudge it to them. We have been working on this for six years, to hold Colonel Gaddafi responsible. We thought there was some justice in the world.’
It is felt not just by him but by many victims in Northern Ireland and throughout the United Kingdom in relation to how matters have proceeded. The Government’s stance on pursuing compensation appears to be to do nothing. That approach can only infuriate victims further. If it was important for the Government to intervene proactively before, it is imperative that they do so now that the case has come to such an abrupt and unsatisfactory stalemate.
The Prime Minister, the Foreign Secretary and the Government must rise to the challenge. I ask them on behalf of the victims what they will do to ensure that Libya and Colonel Gaddafi are made to face up to their responsibility to compensate the victims of Provisional IRA terrorism. Her Majesty’s Government cannot afford simply to sweep the matter under the carpet. However Gaddafi and his regime in Libya are regarded today, we cannot allow them literally to get away with murder.
Unfortunately, the legal correspondence between the victims’ representatives and the Government does not fill one with great confidence that the Government are inclined to change their position. In a recent letter of 7 October, the Prime Minister said to the victims’ representatives that
‘The UK Government does not consider it appropriate to enter into a bilateral discussion with Libya on this matter. Thus remains the Government’s position’.
He went on to say:
‘I assure you that the UK in no way condones Libya’s past sponsorship of terrorism...It is, however, important that we recognise the fundamental changes Libya has made in recent years. It has dismantled its weapons of mass destruction programme and renounced its support for international terrorism, including the IRA. With the support of the UK, Libya has returned to the heart of the international community’.
That is all very well, but it will bring little comfort to the British citizens who suffer daily as a result of IRA atrocities sponsored and aided to a considerable extent by the same Libyan regime. It appears that the Government’s attitude is “Let’s not rock the boat. Let’s not do anything that will unsettle things diplomatically.” That approach is of course not adopted by other Governments, most notably those of the US, France and Italy; it appears to be the unique attitude of the UK Government. To their shame, they sit alone in that attitude, betraying and letting down the victims of terrorism.
This country has suffered more from terrorism over the past 30 years than any other nation in Europe, and perhaps the world, in terms of the length and intensity of violence inflicted. Recently, there has been unprecedented intervention in the banking and financial sectors. It has been all hands to the pump. I do not disagree with many of the actions taken in the current emergency, such as the setting aside of billions, but many victims have said to me recently that it is simply not tenable for the Government to say that they can and will do nothing to achieve justice through compensation for the victims of Libyan state-sponsored terrorism. In my view and that of many victims, the Government must fulfil that moral obligation. Such action will help bring closure to the deep and long-standing tensions between the United Kingdom and Libya and smooth the way to improved trade and business relations, but the issue must be dealt with. It will not go away.
As right hon. and hon. Members will know, a process is under way in Northern Ireland to consider how to deal with issues from the past. An awful lot of time and effort has been put into recognising that such issues will not simply disappear; they must be addressed. Just as that must be acknowledged, the issue of compensation and justice for the victims injured by the Libyans’ actions in supporting the IRA cannot be swept under the carpet. It must be addressed. We will have no closure or settlement of the issues until that boil is lanced. If it is not dealt with properly, the spectre of the victims and their suffering will continue to haunt us. It will not simply go away.
Comment 10: Mr. Dodds speech to Parliament on 22 October 2008 (See para. 57) makes another important point that should be drawn to the Committee’s attention:
“This country has suffered more from terrorism over the past 30 years than any other nation in Europe, and perhaps the world, in terms of the length and intensity of violence inflicted. Recently, there has been unprecedented intervention in the banking and financial sectors. It has been all hands to the pump. I do not disagree with many of the actions taken in the current emergency, such as the setting aside of billions, but many victims have said to me recently that it is simply not tenable for the Government to say that they can and will do nothing to achieve justice through compensation for the victims of Libyan state-sponsored terrorism. In my view and that of many victims, the Government must fulfil that moral obligation. Such action will help bring closure to the deep and long-standing tensions between the United Kingdom and Libya and smooth the way to improved trade and business relations, but the issue must be dealt with. It will not go away…. As right hon. and hon. Members will know, a process is under way in Northern Ireland to consider how to deal with issues from the past. An awful lot of time and effort has been put into recognising that such issues will not simply disappear; they must be addressed. Just as that must be acknowledged, the issue of compensation and justice for the victims injured by the Libyans’ actions in supporting the IRA cannot be swept under the carpet. It must be addressed. We will have no closure or settlement of the issues until that boil is lanced. If it is not dealt with properly, the spectre of the victims and their suffering will continue to haunt us. It will not simply go away.”
There are precedents for Government intervention, as I said. The new special relationship with Gaddafi and Libya has not prevented the US, French and Italian Governments from addressing victims’ needs in their recent agreements with Libya. The run-up to a proposed visit to this country by Colonel Gaddafi is an opportunity. I would be grateful if the Minister could confirm what the arrangements are for any such visit. Who will Gaddafi meet? Will the issue of facing up to his responsibility for IRA terrorism be addressed with Ministers? Will there be an opportunity for victims and their representatives to meet him and put the case directly? It is essential that that should be taken on board.
It is vital to ensure that justice is done and is seen to be done for the victims. We welcome the Libyan regime’s progress in normalisation and the fact that it has taken its place in the international community, but this country cannot say, uniquely and alone, that we will do nothing as far as the victims are concerned. Others have done it; it can be done. It is imperative that this Government act on behalf of the victims.”
Bill Rammell MP (Lab.), then Minister of State for the Foreign and Commonwealth Office replied:
“It is a pleasure to follow the hon. Member for Belfast, North (Mr. Dodds). I congratulate him on securing this debate on an issue that I know he and his colleagues feel strongly about on their constituents’ behalf. I know that the matter is of considerable concern to his constituents and groups representing the victims of IRA terrorism, and of course to the victims and their relatives and friends. The Government are acutely aware that many thousands of people have suffered terribly as a result of IRA terrorism. They continue to have the Government’s deepest sympathies and my own.
The hon. Gentleman’s central question, as I understand it, is whether the British Government will pursue a bilateral settlement with Libya to obtain compensation for the victims of IRA terrorism who have brought claims before the US courts. Before addressing that important and complex question in detail, I assure him and the victims of IRA atrocities that the Government recognise that it is essential to acknowledge and address victims’ suffering as a necessary element in the reconciliation process in Northern Ireland. …
The hon. Gentleman has urged the Government to open bilateral negotiations with Libya to seek compensation for the British victims of Libyan-sponsored IRA terrorism. The Government considered that very carefully at length and on a number of occasions, and we understand that it is a difficult and sensitive matter for those involved. Although the Government made diplomatic representations to the US Government about their agreement with Libya, the Government’s position remains — I respect his view, of course — that we will not seek to enter into a bilateral discussion with Libya on this matter.”
Comment 11: In reply to Mr. Dodds speech to Parliament on 22 October 2008 (See para. 57) and his question of whether the British Government will pursue a bilateral settlement with Libya to obtain compensation for the victims of IRA terrorism who have brought claims before the US courts, Mr. Rammell’s response was:
“The Government considered that very carefully at length and on a number of occasions, and we understand that it is a difficult and sensitive matter for those involved. Although the Government made diplomatic representations to the US Government about their agreement with Libya, the Government’s position remains — I respect his view, of course — that we will not seek to enter into a bilateral discussion with Libya on this matter.”
Notably, Mr. Rammell avoided giving any reason why HMG would not pursue a bilateral settlement with Libya.
Mr. Rammell continued:
“The hon. Gentleman referred to the fact that the United States and Libya signed a comprehensive claims settlement agreement on 14 August. The important point is that that followed an explicit approach by Libya to the US to resolve outstanding compensation claims in order to improve their relations. Under the agreement, compensation will be paid from a humanitarian fund to several categories of victims. Libya’s sovereign immunity before the US courts will be restored, and terrorism-related legal action, prior to June 2006, before the US courts will be barred.
I assure the hon. Gentleman, and all others with an interest in this issue, that the UK Government recognised the importance to the UK victims of their US legal claims, which is why we made real efforts to raise their interests with the US Government. When it became clear that the negotiations were taking place between the US and Libya, the UK Government made a number of diplomatic representations urging the US Government to include, on the list of recipients of any compensation package, UK claimants who had brought cases in the US against Libya. We attempted to do that, but regrettably it did not prove possible for the UK claimants to be included in the US-Libya agreement.”
Comment 12: In his reply to Mr. Dodd’s parliamentary speech of 22 October 2008 (See para. 57), Mr. Rammell stresses:
“That the UK Government recognised the importance to the UK victims of their US legal claims, which is why we made real efforts to raise their interests with the US Government. When it became clear that the negotiations were taking place between the US and Libya, the UK Government made a number of diplomatic representations urging the US Government to include, on the list of recipients of any compensation package, UK claimants who had brought cases in the US against Libya.”
However, this does not answer the outstanding question of, if so, why were USDOS not aware of the UK Victims’ claims when we met with them on 6 June 2008, only a month before the LCSA was agreed (see para. 45)?
Understandably, William McCrea MP (DUP) interjected in Mr. Rammell’s reply to Mr. Dodds by stating: “Will the Minister stop relying on others to do something that the British Government should do? What action will our Government take on behalf of our citizens to defend their rights and bring them justice?” Mr. Rammell replied to Mr. McCrea:
“ … I wish to make it absolutely clear, however, that in reaching this position the Government in no way, shape or form condone Libya’s past sponsorship of IRA terrorism, nor—this is crucial—underestimate the suffering caused by IRA atrocities during the troubles …
Although there can be no doubt that Libya’s financial and material support to the IRA added significantly to its paramilitary capabilities, both the situation in Northern Ireland and our relations with Libya have been fundamentally transformed in recent years to the benefit of everyone concerned. Libya has dismantled its weapons of mass destruction programme and—crucially—renounced its support for international terrorism, including for the IRA…
I do not absolve Libya from its responsibilities for its past actions, but it is incontestable that there has been a transformation in our relations with the Libyan Government to the benefit of people throughout the UK. Libya has renounced its support for international terrorism.
In 1995, Libya explained to the UK Government the extent of its support to the IRA. It has also complied with UN Security Council resolutions and handed over the Lockerbie suspects for trial, in return for which all UN and EU sanctions against Libya have now been lifted. With the support of the British Government, Libya has now returned to the international community — that is in everyone’s interest — and has built normal co-operative relations with those countries to which it was formerly hostile, and we believe that it is right to seek to build on this improvement in relations. Libya is now an essential partner for the UK on wide-ranging issues, in particular in the fight against today’s terrorist threats. It is vital for the UK’s present and future security that that co-operation continues.
For its part, Libya considers this matter closed. [Interruption.] Let me continue. In 1995, Libya explained to the UK Government the extent of its support to the IRA. We should not underestimate the significance of that explanation, because it helped the Government accurately to assess the true material capacities of the IRA. Without that agreement and information, it would have taken us longer to make progress in Northern Ireland. The Libyan Government have subsequently made it clear to us that they now consider this matter closed and that they would be strongly opposed to reopening it. It is therefore this Government’s considered assessment that Libya would not support a bilateral settlement of these cases with the UK Government. That is an important point given that in the US, Libya actually initiated the agreement.
I understand the concerns expressed forcefully by the hon. Member for Belfast, North on behalf of his constituents. We have taken action and I think that the situation has improved. Relations have been transformed to the benefit of citizens throughout the UK, including in his constituency. Nevertheless, I understand the force and conviction with which he put forward his arguments and congratulate him on securing this debate.”
Comment 13: In his reply to Mr. Dodd’s parliamentary speech of 22 October 2008 (See para. 57), Mr. Rammell is at pains to point out that, in refusing to enter into bilateral G2G discussions with Libya on the question of compensation for the UK Victims, “the Government in no way, shape or form condone Libya’s past sponsorship of IRA terrorism, nor — this is crucial — underestimate the suffering caused by IRA atrocities during the troubles” or that in any way does HMG “absolve Libya from its responsibilities for its past actions”. Regrettably, the UK Victims have made clear to us that, without action, these are empty words and that, when it comes to support for the PIRA, HMG has done exactly that which it denies: absolved Libya of any responsibility for its past action. No one has ever been criminally prosecuted for this gross act of mass terrorism and no compensation or redress has ever been made.
Mr. Rammell is at pains also to point out, as Mr. Brown did in his letter of 11 September 2008 (see para. 52), that:
“There has been a transformation in our relations with the Libyan Government to the benefit of people throughout the UK” and that “with the support of the British Government, Libya has now returned to the international community — that is in everyone’s interest — and has built normal co-operative relations with those countries to which it was formerly hostile, and we believe that it is right to seek to build on this improvement in relations. Libya is now an essential partner for the UK on wide-ranging issues, in particular in the fight against today’s terrorist threats. It is vital for the UK’s present and future security that that co-operation continues.”
Given Gaddafi’s subsequent actions, brutality towards his own people and return to international terrorism, these words now ring very hollow. Not only to the “people throughout the UK”, but especially to the victims. It’s specifically worth noting that it has been reported that, in early 2011, a Libyan government courier flew into London with £1.3m while on route to a businessman and supporter of a dissident republican group. He allegedly stayed in a property owned by Gaddafi situated behind Harrods. It was claimed Gaddafi did so in revenge for Britain’s role in overthrowing his regime.[22] This bleakly illustrates how pointless the UK’s abandonment of the UK Victims for the sake of its perceived détente with Gaddafi actually was. In the end, the UK Victims were abandoned and forgotten by HMG for nothing.
Finally, Mr. Rammell informed Parliament:
“For its part, Libya considers this matter closed. … In 1995, Libya explained to the UK Government the extent of its support to the IRA. We should not underestimate the significance of that explanation, because it helped the Government accurately to assess the true material capacities of the IRA. Without that agreement and information, it would have taken us longer to make progress in Northern Ireland. The Libyan Government have subsequently made it clear to us that they now consider this matter closed and that they would be strongly opposed to reopening it. It is therefore this Government’s considered assessment that Libya would not support a bilateral settlement of these cases with the UK Government. That is an important point given that in the US, Libya actually initiated the agreement.”
In comparison to the efforts made by the US, France and Germany on behalf of their victims of Gaddafi terrorism, this statement is quite shocking. In short, Mr. Rammell is saying that because Libya considered this matter closed and would be opposed to reopening it, there is nothing HMG can do. Mr. Rammell tries to distinguish the UK position from that of the US by explaining that, in respect of the LCSA, it was Libya that initiated the settlement. At best, this is an obfuscation of the truth. Libya did initiate the LCSA negotiations, but what Mr. Rammell does not acknowledge is that this was only because the US Congress had already taken such a firm line with it on the matter of its responsibility to pay compensation to US victims of Gaddafi terrorism, that it had little choice but to do so.
58. On 31 October 2008, US Secretary of State certified that the US Government had received adequate funds, USD $1.5 billion, pursuant to the LCSA. That same day, President Bush issued the Executive Order which resulted in the dismissal of the McDonald case, the payment of millions in compensation by Libya to the US Victims in McDonald, and the UK Victims receiving nothing.
59. On 19 November 2008, Lord Tebbit (Con) put this written question to HMG: “Whether, in view of the proposed settlement concerning crimes committed against United States citizens with Libyan support, they will assist British nationals seeking compensation from Libya in the courts of the United States in respect of crimes committed by terrorists trained or armed by Libya.” Lord Bach (Lab) responded in the House of Lords:
“The conclusion of a government-to-government agreement between the US and Libya on 14 August will provide for compensation for many of the victims of Libya's past sponsorship of terrorism including the British families of the victims of the bombing of Pan Am flight 103 over Lockerbie in 1988. While this is welcome news for these families it is regrettable that the deal will not benefit all UK nationals with cases in US courts against Libya. During the course of negotiations between the US and Libya, the Government made representations to the US Administration that existing UK claimants with claims before US courts against Libya for its past sponsorship of IRA terrorist acts (the McDonald case) should be included in the recipients of any compensation package. But in the event, this proved not to be possible. A key reason for this was that international and US law do not permit the US Administration to espouse the claims of foreign nationals. Also relevant to the US decision was their assessment of how likely it would be that claims would fall within the jurisdiction of US courts, and how likely it would be that they would succeed. We understand from the US that US courts would not have jurisdiction to hear actions by British nationals against Libya.”
60. On 19 November 2008, Mr. MacKinlay asked Mr. Brown:
“Will the Prime Minister agree to meet a delegation of MPs, including me, who lost constituents due to the use by the IRA of Semtex and other weapons that had their provenance in Libya? We are disappointed that the Foreign and Commonwealth Office has not yet taken the initiative of following America's example and negotiating adequate compensation with Colonel Gaddafi.”
Mr. Brown replied: “It is a very important point. I will be very happy to meet my hon. Friend to talk about it, and then we will review what we do.”
61. On 10 December 2008, we and some of the UK Victims, along with Mr. MacKinlay and Mr. Dodds, met with Mr. Brown. At that meeting, Mr. Brown confirmed to us that HMG would not seek to negotiate a bilateral agreement with Libya on the issue of compensation for the UK Victims.
D. The Conservatives, in Opposition, Support the Campaign for G2G Negotiations (2009)
Mr. Rammell, answering on behalf of Mr. Miliband responded:
“The meeting between the PM and the hon. Member for Belfast North and others on 10 December provided an opportunity for discussion on this issue. The PM is acutely aware of the sensitivities and frustrations of this issue, as he expressed during this meeting. I would emphasise that the Government does not condone in any way Libya's past actions and the victims of IRA atrocities have our whole hearted sympathy. We have tested the Libyan position on IRA compensation on a number of occasions and the US raised it on our behalf in August this year. Each time the Libyans have reiterated that they consider the matter closed. As the PM stated on 10 December, we will not therefore seek to negotiate a bilateral settlement on this issue with Libya. However, we will monitor the position of Libya in relation to this issue. The Government have already openly responded to queries on compensation for victims of IRA terrorism and will continue to do so.”
63. On 15 January 2009, Sammy Wilson MP (DUP) put this written question to Mr. Miliband: “what discussions the Government has had with the Libyan government on compensation for victims of IRA terrorism involving arms originating in Libya.”
Mr. Rammell, answering on behalf of Mr. Miliband, responded:
“The Government have taken regular soundings on Libya's position in respect of its past support for the IRA since the restoration of diplomatic relations, notably in 2004, 2006, in November 2007, and most recently through the United States in August 2008. In 1995, Libya accounted for its past support of the IRA to the satisfaction of the then Government. On all subsequent occasions this matter has been discussed, Libya has stressed that it believes the matter is firmly closed. It is the Government's considered assessment therefore that Libya would not be prepared to discuss a bilateral settlement of these cases. We will however continue to monitor the Libyan position on this issue.”
64. On 29 April 2009, Mr. Wilson asked during a Commons Debate: “Will the Minister also give an assurance that the Government will pursue equally vigorously the issue of compensation for those who were victims of terrorism funded and supplied by the Libyan Government in the 1980s and ’90s?” Gillian Merron MP (Lab), then Parliamentary Secretary for the Foreign Office replied: “I will certainly place it on the record that, as the hon. Gentleman knows, we sympathise very deeply with the loss and suffering of the victims of IRA terrorism. I can say to him that we did seek to support the interests (sitting suspended).”
65. On 20 July 2009, Mr. MacKinlay put this written question to Mr. Miliband: “whether the Prime Minister discussed with President Gaddafi the issue of compensation for UK victims of terrorism at their meeting on 9 July 2009; and if he will make a statement.” Ivan Lewis MP (Lab), then Minister of State (Foreign and Commonwealth Office) (Labour), answering on behalf of Mr. Miliband responded:
“I am acutely aware of the pain caused by Libya's past actions and the victims of Irish Republican Army atrocities have the Government's whole hearted sympathy. The Government continue to monitor the Libyan position on this matter, and raised it in discussions with Libyan Ministers as recently as February 2009. The Libyans maintain their firm view that they consider the matter closed. The Government therefore see no prospect of a bilateral agreement on this matter and I therefore did not raise this matter with the Libyan Leader.”
“The public needed to know ‘on what basis’ the government had reached its decision not to press for compensation … These latest revelations are part of an ever-expanding farce, with more revelations really every day about how the government have conducted themselves … These latest revelations greatly strengthen the case we have made for an independent inquiry."[23]
Comment 14: Starting in January 2009 (see paras 62, 66 and 68) the Conservatives, while in opposition began publicly supporting the UK Victims’ campaign to lobby HMG to make representations on their behalf to Libya to settle their claims for compensation.
It is clear from this that the Conservatives’ policy was that HMG should “press” Libya for compensation for the UK Victims (i.e. engage in G2G bilateral negotiations with Libya) on this issue as the US, France and Germany had done. By the time the Conservatives entered government in 2010, followed by the 2011 Libyan Civil War, the Conservatives’ policy radically changed. This will be dealt with in more detail infra.
E. FCO Libya-Northern Ireland Reconciliation Unit (2009 – 2011)
67. On the afternoon of 6 September 2009, Mr. Brown made the following televised statement from Berlin:
“I desperately care what has happened to those people who have been victims of IRA terrorism. When I met with the families and the supporters and lawyers ... I assured them of our support and our sympathy for their cause. Our judgment has been that the cause most likely to succeed and bring result is to support the families themselves in their legal representations through their lawyers to the Libyan authorities ... by establishing dedicated foreign office support to the victims’ campaign. We’ll appoint dedicated officers in the foreign office and our embassy in Tripoli will accompany the families and their representatives to meeting with the Libyan government to negotiate compensation.”
The creation of this Foreign Office Unit (the ‘Unit’) fell short of a commitment to G2G bilateral negotiations between the UK and Libya but, nonetheless, the UK Victims believed it was a positive development and were willing to allow HMG the opportunity to attempt to make amends for its previous failings and hoped it would be successful.
68. On 8 September 2009, we had our first meeting with the Unit.
Following the creation of the Unit, and with its facilitation, we commenced communication with the Libyan Government, initially through the then Libyan Ambassador to the UK, Omar Jelban. This would lead to an unofficial cross-party parliamentary delegation visiting Tripoli on behalf of the UK Victims.
69. On 14 September 2009, Mr. Lidington put this written question to Mr. Miliband:
“How many officials in his Department are working full-time on assisting the victims of IRA terrorism to seek compensation from Libya; how many other officials will be employed full-time on this work as a consequence of the implementation of the proposals in the Prime Minister's announcement in Germany on 6 September 2009; and if he will make a statement?”
Mr. Lewis, answering on behalf of Mr. Miliband, responded: “Three officials have been redeployed within the Foreign and Commonwealth Office (FCO) to provide support for the families and their representative-two in London full-time and one at our embassy in Tripoli part-time. The team will also be supported by FCO legal advisers.”
Mr. Hague MP (Con), then Senior Member of the Shadow Cabinet, put this written question to Mr. Miliband: “When he expects his Department's unit dedicated to helping those affected by Irish Republican Army terrorism and their families seeking compensation from Libya to be operational; and if he will make a statement?”
Mr. Miliband replied:
“The new Foreign and Commonwealth Office (FCO) Libya IRA Compensation Unit was set up on 7 September 2009. Representatives of the families met No. 10 and FCO officials at No. 10 in a 45 minute meeting on 8 September 2009. The new head of the unit attended. The unit is comprised of three officials-two in London full-time and one at our embassy in Tripoli part-time. The team will also be supported by FCO legal advisers.”
Mr. Hague also asked Mr. Miliband: “whether the team being established in his Department to provide assistance to those affected by Irish Republican Army terrorism and their families will offer legal advice on seeking compensation from Libya; and if he will make a statement.”
Mr. Miliband’s response was:
“The Foreign and Commonwealth Office (FCO) will not be providing the families with legal advice. We understand that those affected by IRA terrorism and their families have access to their own legal advice. The new FCO Libya IRA Compensation Unit will support the victims' families and their representatives by serving as a central point of contact within the FCO, arranging meetings with the Libyan authorities, providing logistical assistance and supporting the representatives of the victims in Libya.”
Comment 15: On 14 September 2009 (see para. 69), Mr. Hague asked Mr. Miliband whether the Unit would offer the UK Victims legal advice, strongly implying that it should do. This is significant because the UK Victims, having proposed that assets belonging to Gaddafi and other Gaddafi regime officials responsible for supplying Semtex to the PIRA be used to pay compensation, have been told repeatedly by the FCO, during both Mr. Hague’s own stewardship as Foreign Secretary and that of his successor, Philip Hammond, that to do so would be unlawful, but without any explanation as to why. They have only ever been given an ipse dixit response. On requesting such formal legal advice from the FCO’s lawyers on this point, the UK Victims have been told on more than one occasion that they may not have one. Why, when the Conservatives were in opposition were they supportive of legal advice being provided by the FCO to the UK Victims but opposed to it when in government, specifically in relation to HMG’s position as to the legality of the use of frozen assets?
70. On 12 October 2009, Keith Vaz MP (Lab.) in a House of Commons Debate, asked Mr. Miliband:
“Will he give an undertaking to this House that it is not just the creation of the unit that matters, but full and unequivocal support from Ministers for the campaign? Will he give thought to the idea of a Minister's leading the delegation when it goes to Libya to ask for that compensation?”
Mr. Miliband responded:
“I certainly give my right hon. Friend the commitment of full ministerial engagement and support. However, I think it would be unwise to turn this into a Government-to-Government issue. It is far better that we support the families, who are campaigning for the victims, and their representatives in Parliament, because I think that a humanitarian appeal is more likely to succeed. I do not want to raise expectations of imminent success in this area, but I think that a humanitarian appeal has more likelihood of success than a Government-to-Government negotiation.”
Comment 16: In response to Mr. Vaz’s question to HMG of 12 October 2009 (see para. 70) as to whether a government minister would lead a delegation to Libya on the issue of compensation, Mr. Miliband replied:
“I think it would be unwise to turn this into a Government-to-Government issue. It is far better that we support the families, who are campaigning for the victims, and their representatives in Parliament, because I think that a humanitarian appeal is more likely to succeed. I do not want to raise expectations of imminent success in this area, but I think that a humanitarian appeal has more likelihood of success than a Government-to-Government negotiation.”
Given the success of the US in securing compensation for the US Victims through G2G negotiation, versus the failure of HMG through its abdication of responsibilities to the UK Victims, this is a startling comment for HMG to make.
Kate Hoey MP (Lab) put this written question to Mr. Brown: “if he will make representations to the President of Libya on compensation for the victims of Irish Republican Army terrorism in Northern Ireland.” Mr. Brown’s response was to refer her to “the press briefing given by my spokesman on 7 September. A transcript of this is available on the No. 10 website http://www.number10.gov.uk/Page20542.” (This transcript is no longer available.)
In the Lords, Lord Laird asked HMG: “what support they will offer to relatives and dependants of those killed and injured by the IRA who are attempting to obtain compensation from the Government of Libya.”
Baroness Kinnock (Lab) replied on behalf of HMG: “The new Foreign and Commonwealth Office (FCO) unit will support the victims' families and their representatives by serving as a central point of contact within the FCO, arranging meetings with the Libyan authorities, providing logistical assistance and supporting the representatives of the victims in Libya.”
While in Tripoli, the Delegation met with Obeidi (a senior minister in the Gaddafi Regime), Secretary of the General People’s Congress Mr. Embarek Shamekh, Secretary for Foreign Affairs at the General People’s Congress Mr. Suleiman Shahoumi, and Secretary of the Tripoli Municipality Dr. Ali Rih. The UK Ambassador Sir Vincent Fean was fully involved during this visit. Lord Brennan QC negotiated at length with Minister Obeidi.
In order encourage the Libyan Government to enter into discussions on the matter of compensation for UK Victims, the Delegation also presented a detailed and wide-ranging proposal for Libya to participate in a humanitarian programme for peace and reconciliation for the benefit of all affected in the UK, particularly in Northern Ireland, including substantial business and infrastructure investment by Libya and worthy community development projects. This was emphasized as a new and innovative means of giving closure to past.
Prior to the Delegation’s visit and after it, Lord Brennan QC had several meetings with the Libyan Ambassador in London, and also met Minister Obeidi in London.
It was evident that resolution of the compensation and other proposals would only be achieved at government to government level.
Comment 17: The unofficial cross-party delegation that travelled to Tripoli on the UK Victims’ behalf between 31 October and 2 November 2009 (see para. 71) relied on representations made to them by the FCO, the Unit, Sir Vincent and the government of the day. The failure to inform them of the previous arrangements between Mr. Blair, HMG and Gaddafi (see para. 47) made their meetings with the Libyans pointless and surely exposed them to ridicule by their Libyan counterparts, who were no doubt fully briefed of Gaddafi’s position. All this was done in the knowledge that limited victim campaign funds and time were being wasted for what the FCO and Sir Vincent knew to be no more than a pantomime on a stage they had been complicit in building. Indeed, on 7 February 2011, in a response in Parliament to a statement by Lord Howell, the FCO Minister of State, on the European Council and North Africa, Lord Bew astutely noted that “the Libyan Ministers to whom we spoke [during the parliamentary delegation’s visit to Libya] knew more about recent UK policy on this matter than those of us who were on that delegation.” He followed up with the request: “will [Lord Howell] ensure that those who go as part of future parliamentary delegations to Libya know the full background of recent UK policy to the country that we are dealing with? Otherwise, one is at a disadvantage”.
72. On 12 November 2009, Lord Laird put this written question to HMG: “what assessment they have made of the request for compensation from the Government of Libya by relatives and dependants of those killed or injured by arms and explosives supplied by that government.”
Baroness Kinnock responded on behalf of HMG:
“The Government have considered requests for compensation from Libya and taken soundings on the issue since the restoration of diplomatic relations in 1999. We did this in 2004, 2006, 2007 and most recently in February 2009. Libya accounted for its past support of the IRA in 1995 and on all subsequent occasions this matter has been discussed, Libya has stressed they believe the matter is firmly closed. On 6 Sept 2009 my right honourable friend the Prime Minister announced enhanced support for the campaign by victims and families of victims of IRA terrorism for compensation from the Libyan Government. This recognises the Government's assessment that the most likely way for the victims and their families to succeed is for them to address the Libyan Government directly, supported by the British Government. From 8 Sept the FCO-based Libya/Northern Ireland Reconciliation Unit was established to provide logistical support and advice to the campaign. The British Government themselves are not negotiating directly with Libya.”
F. The Coalition Government – An “Unequivocal Approach” & Renewed Hope (2010)
73. In 2010, on becoming Prime Minister, David Cameron appeared wholly supportive and committed to the resolution of the UK Victims’ claims in his correspondence with us on this matter. Indeed, fully aware of our plan to meet the new Libyan leaders during the civil conflict (see para. 77), the Prime Minister wrote to us a personal note of encouragement. (See para. 74).
74. On 22 October 2010, Prime Minister David Cameron in a letter to us wrote:
“The Government will be unequivocal in its attitude to Libya’s past sponsorship of terrorism while welcoming the progress that Libya continues to make in reintegrating into the international community. As you know, I am hugely sympathetic to the sufferings of the victims and their legitimate attempts to seek redress”
This was accompanied by a handwritten note by Mr. Cameron that says: “I am extremely enthusiastic about what you are doing and really want to see it progress and come to fruition. If there is anything I can do to help make it happen, let me know.” (Emphasis original).
Comment 18: Starting in January 2009 (see paras. 62, 66 and 68) the Conservatives, while in opposition began publicly supporting the UK Victims’ campaign to lobby HMG to make representations on their behalf to Libya to settle their claims for compensation. This culminated in Mr. Hague, then Senior Member of the Shadow Cabinet, making the public statement (see para. 66):
“The public needed to know ‘on what basis’ the government had reached its decision not to press for compensation … These latest revelations are part of an ever-expanding farce, with more revelations really every day about how the government have conducted themselves … These latest revelations greatly strengthen the case we have made for an independent inquiry."
As well as the Prime Minister’s letter of 22 December 2010, which wrote:
“The Government will be unequivocal in its attitude to Libya’s past sponsorship of terrorism while welcoming the progress that Libya continues to make in reintegrating into the international community. As you know, I am hugely sympathetic to the sufferings of the victims and their legitimate attempts to seek redress”
This was accompanied by a handwritten note by Mr. Cameron that says: “I am extremely enthusiastic about [what] you are doing and really want to see it progress and come to fruition. If there is anything I can do to help make it happen, let me know.” (Emphasis in original).
It is clear from this that the Conservatives’ policy in opposition was that HMG should “press” Libya for compensation for the UK Victims (i.e. engage in G2G bilateral negotiations with Libya) on this issue as the US, France and Germany had done. By the time the Conservatives entered government in 2010, followed by the 2011 Libyan Civil War, the Conservatives’ policy had radically changed. This was made apparent both in Mr. Cameron’s new government’s correspondence to us and in public statements that made clear that it now considered the UK Victims’ claims to be a purely private matter that it could not directly support because general government policy forbade it from intervening in private claims for compensation. It remains unclear what brought about this change in position. Why did Conservative policy toward the UK Victims change following their coming to power in 2010 and the subsequent start of the 2011 Libya Civil War?
75. On 8 February 2011, we wrote to the Prime Minister to request that FCO Minister attend an upcoming meeting between Obeidi and us in London to encourage the Libyan Government to settle the UK Victims’ claims.
76. On 24 February 2011, as a consequence of the popular uprising in Libya against the Gaddafi Regime and the commencement of civil war in Libya, we formally terminated our initiative and any further contact with the Libya Government until such as time as a new non-Gaddafi government could be formed.
G. The Benghazi Agreement (April 2011)
77. On 2 March 2011, Mr. Dodds asked the Prime Minister:
“Given our campaign for compensation for the victims of Libyan state-sponsored IRA terrorism, will the Prime Minister give an assurance that before the normalisation of relations with Libya under any new regime, the outstanding matter of compensation will be addressed by the Government, not least through the use of Gaddafi assets seized in Britain?”
The Prime Minister’s reply was:
“An FCO-led unit is still working on that issue and it is vital that it continues to go on doing that. It is an ingenious idea to use the frozen assets in that way. Having sought advice, those assets really belong to the Libyan people. The whole problem with Libya is that it is a rich country with poor people. We can see that in the extensive assets that have been frozen. Those assets belong to the Libyan people first and foremost.”
Comment 19: On 2 March 2011 (see para. 77), Mr. Dodds asked the Prime Minister:
“Given our campaign for compensation for the victims of Libyan state-sponsored IRA terrorism, will the Prime Minister give an assurance that before the normalisation of relations with Libya under any new regime, the outstanding matter of compensation will be addressed by the Government, not least through the use of Gaddafi assets seized in Britain?”
The Prime Minister’s response was:
“It is an ingenious idea to use the frozen assets in that way. Having sought advice, those assets really belong to the Libyan people. The whole problem with Libya is that it is a rich country with poor people. We can see that in the extensive assets that have been frozen. Those assets belong to the Libyan people first and foremost.”
The fallacy of that argument is that Mr. Dodds was proposing the use of Gaddafi’s own assets, not Libyan state assets. This could also extend to the other Gaddafi regime officials who were responsible for supplying Semtex to the PIRA. These individuals had a direct and personal liability to the UK Victims who -- despite being denied compensation by the LCSA -- had their claims recognized as legitimate by Gaddafi when his regime signed the LCSA and compensated the US Victims (and later recognised also by the New Libyan Government under the Benghazi Agreement (see para. 78)). Such assets arguably belong to the UK Victims as payment of compensation for their legally recognized claims, rather than the Libyan people. This begs the question: Why has HMG consistently failed or refused to adequately address the question of whether frozen assets associated with Gaddafi and other Gaddafi regime officials can be used to compensate the UK Victims?
Further to the above, the use of frozen assets to compensate victims of international crimes has international precedent. In 2000, US Congress passed the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1541, a catch-all bill with numerous provisions to assist victims of domestic and international violence. Victims of Iranian-sponsored and Cuban-sponsored terrorism worked with interested Congressmen to add Section 2002, "Payment of Certain Anti-Terrorism Judgments," to the bill, which enabled the Treasury Department to pay the victims' claims out of certain assets held in funds named in the bill. That section also included a "Reaffirmation of Authority" stating that "Congress reaffirms the President's statutory authority to manage and, where appropriate and consistent with the national interest, vest foreign assets located in the United States for the purposes, among other things, of assisting and, where appropriate, making payments to victims of terrorism." Furthermore, in December 2011, legislation requiring USDOS to assist victims of Libyan terrorism and their families in obtaining just compensation from frozen assets passed Congress as part of the year-end Omnibus Bill. The purpose of this was to provide access to frozen assets of the Gaddafi Regime as compensation for terrorist acts at Rome Airport, and well as for relatives of the victims of the Lockerbie bombing, who did not receive full compensation from the Fund established under the LCSA. Why can the UK not do the same?
“Within a reasonable timeframe that acknowledges the difficult situation currently on the ground in Libya it is our sincere desire to reach a morally just and appropriate settlement of the existing [UK] claimants in McDonald et al v. Gaddafi US Case 1-06-CV-00729-JR legal claim, on a parity and non-discrimination basis, in line with other US victim claimants in the same action who have already received compensation pursuant to the principles of the Libya Claims Settlement Act in the USA”.
79. The Chairman of the National Transitional Council (NTC) of Libya, Mustafa Abdul Jalil, signed this Agreement. The NTC was already then recognized by the UK as the legitimate representative of the Libyan people. By signing this Agreement, the NTC recognized the legitimacy of the UK Victims’ claims and pledged to cooperate fully in reaching a just and appropriate settlement of these claims in the Statement of Reconciliation to the Victims of Gaddafi Sponsored IRA Terrorism.
The Benghazi Agreement also states the following:
“The NTC hereby recognizes that there exists a public need to deal with and resolve certain historical legacy issues involving the Gaddafi Regime, concerning its support for terrorism and previous acts of violence that has adversely affected past relations between UK and Libya, if the peoples of Britain and Libya are to develop a permanent and mutually beneficial relationship which is based on respect for each other’s culture and the rule of law in the future.
To this end the NTC hereby issues this public declaration that it stands ready to deal with all outstanding legacy issues, including the previous Regime’s support for terrorism and commission of human rights atrocities both at home and abroad, and in particular:
As an act of friendship towards the British people, and in recognition of the pain suffered by British victims as a consequence of IRA acts of violence, which were actively supported by the Gaddafi Regime in contravention of international law, the NTC hereby issues a voluntary and sincere apology on behalf of the Free People of Libya for the previous conduct of the Gaddafi Regime in supplying Semtex explosives and other support to the IRA for the purposes of committing such acts of violence”.”.
It also states that:
“In recognition of the wider class of similar UK IRA/Gaddafi victims that are not Claimants in the above USA action [McDonald], our sincere desire to enter discussions to consider an appropriately resourced humanitarian fund to be set up to recognize the pain and suffering of such victims and the wider society in the UK, and in particular Northern Ireland.”
80. In addition to the Benghazi Agreement, it is worth noting here that we also obtained a witness statement from Chairman Jalil that confirmed the following:
“Gaddafi personally gave the order for Lockerbie bombing and I have proof … I have personally seen official documents of the Gaddafi regime that directly implicate Gaddafi in the ordering, sanctioning and implementation of the Lockerbie terrorist incident and its subsequent cover up. In due course, I will provide all such evidence to the proper investigating authorities and representatives charged with carrying out investigations in order that the victim may discover the truth about how Gaddafi directly murdered their loved ones … It was common knowledge within the closed circles of the regime that Gaddafi ordered the act of terrorism that occurred at Lockerbie … I can confirm that through his conduct Gaddafi demonstrated his personal culpability to me … I am aware from my former position that Megrahi was involved in this act of terrorism. It was common knowledge within the Gaddafi regime … I am also aware that Gaddafi paid money to Megrahi for carrying out his orders to commit the act of terrorism and to cover up that act. Subsequent to his arrest, and later to his release, Gaddafi provided payments to Megrahi to ensure that he did not publicly implicate Gaddafi personally in the act of terrorism … to that extent it is the new Libyan National Transitional Governments and my sincere desire to provide a more detailed statement of evidence in dues [sic] course.”
Further to this, Chairman Jalil signed a statement of reconciliation to the Lockerbie victims, which also confirmed the NTC’s willingness:
“To facilitate all investigations into the Lockerbie bombing by using its best endeavours to serve all requisite evidence, including the securing of witness statements from those who have relevant knowledge or records, in order to bring closure to remaining historical legacy issues, and unlock an [sic] new era of international friendship and co-operation between Libya, Britain, America and the international community.”
Comment 20: In respect of the Benghazi Agreement signed on 5 April 2011 (see para. 78), it is interesting to note that we received no support from the Coalition Government or its Foreign Office for our trip to Libya in April. Indeed, we were actively discouraged from travelling there. We have never known why. One possible answer might lie within emails, reported by the Telegraph,[24] sent by Sidney Blumenthal, a former aide to US President Clinton, to the then US Secretary of State Hilary Clinton. In one email, Mr. Blumenthal wrote:
“On the morning of April 8 [2011], an individual with direct access to the Leadership of the Libyan National Council (LNC) stated in strictest confident that members of the Military Committee of the LNC are concerned that, despite its involvement of NATO against the forces of Muammar Qaddafi, the government of Great Britain is using its intelligence services in an effort to dictate the actions of both the LNC and the Qaddafi regime. These individuals add that they have been informed by contacts in France and Italy that, while they have been engaged in discussions with the LNC regarding possible assistance, British diplomats and intelligence officers have maintained contact with members of the Qaddafi government, In [sic] an effort to protect the British position in the event the rebellion settles into a stalemate. These LNC officials believe that the defection of Libyan Minister of Foreign Affairs Mousa Kousa to the United Kingdom was part of this effort. By the same token they that British Intelligence officers are in discussion with associates of Saif al-Islam Qaddafi, regarding future relation between the two countries if he takes power from his father and implements reforms.”
This begs the question: Was the Coalition Government unwilling to provide the UK Victims support in negotiating a settlement with the NTC for risk of upsetting Gaddafi? If so, was the Coalition Government’s pledged support for the UK Victims’ previous settlement discussions with the Gaddafi Regime ever sincere?
Of interest is the Coalition Government’s response to Mr. Dodds parliamentary question put to Mr. Mitchell the very same day we signed the Benghazi agreement (see para. H):
“Can he give the House a guarantee that no obstacle will be placed in the way of the pursuit of the Gaddafi regime’s people, administration or assets by victims of IRA terrorism that, as he mentioned, was sponsored by Gaddafi through the supply of Semtex? They must be allowed to pursue their claims against whomever and whatever assets are out there.”
Mr. Mitchell’s response was seemingly evasive it that it failed to address Mr Dodds’ questions but focused on wider development efforts in the MENA region instead:
““The right hon. Gentleman makes an extremely good point. My right hon. Friend the Prime Minister has already spoken about the role of the International Criminal Court in those matters. The right hon. Gentleman will have heard what has been said in recent days, not least by the Scottish law authorities about the long arm of the law and police investigations leading where they may. The role of regional partners is critical. I have held discussions on stabilisation as well as humanitarian relief with Turkey, the United Arab Emirates and the Organisation of the Islamic Conference. That builds on our coalition Government’s shift towards greater engagement with Gulf States generally. We have offered to host the next high-level meeting of the Development Assistance Committee/Arab Donor Co-ordination Group. Indeed, my right hon. Friend the Minister of State is travelling to Abu Dhabi today, where, together with the Emirati Deputy Foreign Minister, he will host a seminar on partnership working in fragile environments. In the wider region, for example, in Egypt and Tunisia, the role of Europe and the international finance institutions will be crucial. They are significant players and can do much to catalyse economic and political change. We will also work with the EU on creating a new and ambitious economic and trade partnership with the region. That offer, together with any EU aid attached to it, should be made conditional on the delivery of real progress towards democracy, human rights and political and economic reform. Our vision is simple: we want open, fair and inclusive societies that meet the needs of all citizens, including the poorest and most vulnerable. We want the economic growth that will create the jobs that help young people to see how they can build a future for themselves and their own children International consensus will be particularly helpful in achieving that. We will play our part, recognising that our priority must be to help fragile states to build legitimate, effective and resilient institutions of their own.”
H. The Conservative’s Volte Face Part I – “Important Bilateral Issue” (April 2011 – November 2011)
“Can he give the House a guarantee that no obstacle will be placed in the way of the pursuit of the Gaddafi regime’s people, administration or assets by victims of IRA terrorism that, as he mentioned, was sponsored by Gaddafi through the supply of Semtex? They must be allowed to pursue their claims against whomever and whatever assets are out there.”
Mr Mitchell replied:
“The right hon. Gentleman makes an extremely good point. My right hon. Friend the Prime Minister has already spoken about the role of the International Criminal Court in those matters. The right hon. Gentleman will have heard what has been said in recent days, not least by the Scottish law authorities about the long arm of the law and police investigations leading where they may. The role of regional partners is critical. I have held discussions on stabilisation as well as humanitarian relief with Turkey, the United Arab Emirates and the Organisation of the Islamic Conference. That builds on our coalition Government’s shift towards greater engagement with Gulf States generally. We have offered to host the next high-level meeting of the Development Assistance Committee/Arab Donor Co-ordination Group. Indeed, my right hon. Friend the Minister of State is travelling to Abu Dhabi today, where, together with the Emirati Deputy Foreign Minister, he will host a seminar on partnership working in fragile environments. In the wider region, for example, in Egypt and Tunisia, the role of Europe and the international finance institutions will be crucial. They are significant players and can do much to catalyse economic and political change. We will also work with the EU on creating a new and ambitious economic and trade partnership with the region. That offer, together with any EU aid attached to it, should be made conditional on the delivery of real progress towards democracy, human rights and political and economic reform. Our vision is simple: we want open, fair and inclusive societies that meet the needs of all citizens, including the poorest and most vulnerable. We want the economic growth that will create the jobs that help young people to see how they can build a future for themselves and their own children International consensus will be particularly helpful in achieving that. We will play our part, recognising that our priority must be to help fragile states to build legitimate, effective and resilient institutions of their own.”
82. On 13 June 2011, we wrote to Mr. Hague, to inform him that US Senator John Kerry, at that time Chairman of the Senate Foreign Relations Committee, was drafting legislation to be put before Congress that, if passed, would allow for the release of a proportion of Gaddafi’s assets then frozen by the US Government and located in that jurisdiction to be distributed to the Libyan National Transitional Council. Furthermore, an amendment to that bill had been proposed that would ring-fence a proportion of those assets from general distribution so that instead they could be distributed to settle the UK Victims’ claims. Indeed, there was precedent for this in the form of US Executive Order 13290, which, in 2003, released frozen funds held in the US and associated with the regime of Saddam Hussein for the purpose of making payments to the Iraqi people. EO 13290 included an exception for funds already claimed in legal suits against the Saddam Regime. There is additional precedent in the passage of the Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA”), which liquidated some frozen assets to pay claims and appropriated some additional U.S. funds to compensate those holding judgments against Iran and Cuba. Hundreds of millions of dollars have since been paid out to claimants pursuant to the VTVPA.[25]
We asked Mr. Hague whether he would confirm HMG’s support for the proposed amendment and, if so, would the FCO communicate such support directly to the US Government and Sen. Kerry.
Mr. Hague responded on 26 June 2011 that:
“We have concerns over such an approach but are exploring, including discussing with other States, whether any other means can be found to use Libyan frozen assets. For now, we are not convinced that frozen assets can legitimately be allocated in the way suggested. For this reason, it would be inappropriate for us formally to lobby the US on the legislation being proposed by Senator Kerry. Ultimately this is a matter for the US Government.”
Comment 21: On 13 June 2011 (See para. 82) we wrote to Mr. Hague to inform him that that US Senator John Kerry, at that time Chairman of the Senate Foreign Relations Committee, was drafting legislation to be put before Congress that, if passed, would allow for the release of a proportion of Gaddafi’s assets then frozen by the US Government and located in that jurisdiction to be distributed to the Libyan National Transitional Council. Furthermore, an amendment to that bill had been proposed that would ring-fence a proportion of those assets from general distribution so that instead they could be distributed to settle the UK Victims’ claims. Mr. Hague’s response was that:
“We have concerns over such an approach but are exploring, including discussing with other States, whether any other means can be found to use Libyan frozen assets. For now, we are not convinced that frozen assets can legitimately be allocated in the way suggested. For this reason, it would be inappropriate for us formally to lobby the US on the legislation being proposed by Senator Kerry. Ultimately this is a matter for the US Government.”
Regardless of whether UK law prohibited the use of Gaddafi frozen assets to compensate the UK Victims (which we dispute), this in no way would prevent the Coalition Government lobbying the US for it to use funds frozen in that jurisdiction to compensate the UK Victims. Why then did Mr. Hague refuse this request?
83. On 21 June 2011, Mr. Dodds put this written question to Mr Hague: “whether he has had recent discussions with representatives of the Transitional National Council in Libya on outstanding issues relating to Libya's past involvement in IRA terrorism.”
Alistair Burt MP (Con), then Parliamentary Under-Secretary (Foreign and Commonwealth Office) responded on behalf of Mr. Hague: “At the request of the Secretary of State for Foreign and Commonwealth Affairs, senior Foreign and Commonwealth Office officials have met members of the National Transitional Council in London and Benghazi to discuss a range of subjects, including Libya's past involvement in IRA terrorism.”
84. On 2 September 2011, we wrote to the Prime Minister to implore him to return to the issue of compensation for the UK Victims and, at time when many of the coalition countries that had supported the Libyan people in uprising against Gaddafi were pressing the NTC for oil concessions, to approach the NTC to earmark Libyan frozen assets to be used to satisfy the Benghazi Agreement and settle the UK Victim’ claims.
85. On 5 September 2011, Mr. Dodds asked the Prime Minister:
“The Prime Minister rightly talked about the issue of legacy, and he referred to Megrahi and PCPC Yvonne Fletcher. He said that Libya must deal with the series of problems from the past. Among those will be the issue of compensation and justice for the many hundreds of victims of Libyan-sponsored IRA terrorism. Can I seek an assurance from the Prime Minister that he continues to back the case for justice, and that he will do what he can to secure compensation from the new regime?”
The Prime Minister’s reply was:
“I certainly will do that and it is a vital issue. There is no doubt that the Libyan provision of Semtex to the IRA was immensely damaging over many years, and it possibly still is today. We need to be clear that this will be an important bilateral issue between Britain and the new Libyan authorities. Clearly we have to let this Government get their feet under the desk, but this is very high up my list of items.”
Comment 22: At the same time as the Prime Minister was advising Mr. Dodds on 5 September 2011 (see para. 85) that we must first allow the new Libyan Authorities to “get their feet under the desk” before it could raise the question of compensation for the UK Victims (a policy repeated to Parliament by Mr. Burt on 10 October 2011 (see para. 87)), on 26 September 2011 Lord Green, minister for trade and investment, led a UK delegation including representatives of BP and Shell for talks in Tripoli with the National Transitional Council (NTC) ministers dealing with the economy, transport, education and communications.[26] The following day, the Libyan Embassy in London hosted a meeting for British business that was arranged by HMG. The meeting was reported to have been attended by around 100 executives.[27] Why was the Coalition Government’s policy that it could not approach the Libyan Government in late 2011 on the issue of compensation for the UK Victims because “we have to let this Government get their feet under the desk” but was evidently more than willing to approach it on behalf of UK business?
86. On 4 October 2011, Lord Empey asked HMG: “what progress has been made in negotiations with the National Transitional Council in Libya to secure compensation for United Kingdom victims of armaments supplied to the IRA by the Gaddafi Government.”
Lord Howell, Minister of State (Foreign and Commonwealth Office), replied:
“My Lords, as my right honourable friend the Prime Minister said on 5 September, we are clear that this will be an important bilateral issue between the United Kingdom and the new Libyan authorities. The National Transitional Council's chairman, Abdul Jalil, and Prime Minister Jibril have assured the Government that they will work with the UK to resolve bilateral issues arising from the wrongs of the Gaddafi regime.”
Mr. Burt, on behalf of Mr. Hague, responded: “I have had no discussions with my US counterpart on this issue.”
Comment 23: On 10 October 2011, Mr. Dodds asked Mr. Hague: “what discussions he has had with his US counterpart on receiving compensation from Libya for those affected by IRA terrorism.” Mr. Hague’s reply was: “I have had no discussions with my US counterpart on this issue.” Given the Coalition Government’s declared commitment to securing compensation for the UK Victims, and the US’ own success in doing so for its nationals, one might reasonably have presumed that they would have sought advice from the US on how best to do so. It did not.
It is of interest that, earlier this year, the Indian government successfully lobbied the US Government to engage with it over the injustice of its victims of Pan Am 73 being denied lawful compensation by the LCSA. Like the UK Victims, these Indian nationals filed legal proceedings in US District Court in 2006 and were denied compensation under the LCSA on the grounds of their nationality. Assistant Secretary of State for South and Central Asia, Nesha Desai Biswal, confirmed that the US Government was prepared to enter into discussions and consultations with the Indian Government and the Indian victims of Pan Am Flight 73 on “what the options are for moving forward”. Ms. Biswal also offered “consultations on some of the processes that the US went through as well [to achieve compensation for US nationals]” noting: “[T]he Government of India is following this with deep interest. This is something we are prepared to engage with them on”. In contrast to the Indian Government, why did the Coalition Government fail or refuse to lobby the US for its advice on how to negotiate with Libya on the issue of compensation for the UK Victims?
Mr. Dodds also asked Mr. Hague: “what discussions he has had with the National Transitional Council in Libya on compensation for those affected by IRA terrorism.”
Mr. Burt, on behalf of Mr. Hague, responded:
“The National Transitional Council's (NTC) chairman Abdul Jalil and Prime Minister Jibril have assured us that they will work with the UK to resolve bilateral issues arising from the wrongs of Qadhafi's regime. As the Prime Minister, my right hon. Friend Mr Cameron, said in the House on 5 September, we are clear that compensation for those affected by IRA terrorism will be an important bilateral issue between the United Kingdom and the new Libyan authorities. I have not yet had detailed discussions with members of the NTC on this specific issue, since we have to give the NTC time to establish a new Libyan government.”
88. On 17 October 2011, David Mowat MP (Con) put this written question to Mr. Hague: “what discussions he has had with members of Libya's National Transitional Council on compensation payments for British victims of Libyan state-sponsored terrorism.”
Mr. Burt, on behalf of Mr. Hague responded:
“As the Prime Minister, said on 5 September 2011, Official Report, columns 23-26, this will be an important bilateral issue between the UK and the new Libyan authorities. The National Transitional Council's Chairman Abdul Jalil and Prime Minister Jibril have assured the Government that they will work with the UK to resolve bilateral issues arising from the wrongs of the Gaddafi regime. More detailed discussions with Libya on this specific issue will await the establishment of a new Libyan transitional Government.”
89. On 15 November 2011, the Prime Minister responded to our letter of 2 September 2011 and wrote:
“Dealing with the outstanding issues arising from the actions of Qadhafi’s regime against Britain and British citizens is a top priority as we shape the bilateral relationship with the new Libya. This includes resolving the outstanding claims of the victims of Libyan-sponsored IRA terrorism. I am clear that cooperation on these issues must not be subordinate to other security or commercial interests, or put onto the back burner, and I agree with your instinct that we should use our influence to move these issues to a conclusion. I have been very open about this with Chairman Abdul-Jalil and Prime Minister Jibril in my recent meetings with them, and I have been encouraged by their readiness to acknowledge that these are issues that must be addressed. I had a similarly encouraging first conversation with the new Interim Prime Minister, al Kib, last week.
To take this work forward, I have asked the Foreign Office to prepare detailed plans for a comprehensive structured bilateral dialogue with the new Libyan Government with a view to establishing a sustainable and effective partnership with Libya. This will provide a forum to address all outstanding legacy issues resulting from the Qadhafi period and the many victims affected by his actions. Our objective is a comprehensive resolution of these legacy issues. For this reason, I do not think it would be right or productive to pressure the NTC to settle just one element now. I want to make lasting and comprehensive progress. I have asked the Foreign Office to contact you about this initiative and to discuss what it could mean for your campaign and how we may be able to draw on your knowledge of the issue.
Your letter of 2 September raised the issue of frozen Libyan assets. I have examined the case closely and concluded that, as the assets belong to the people of Libya, we have no strict legal basis for withholding Libyan assets once the relevant Libyan entities meet the conditions for unfreezing as set out in UNSCR 2009. Legally compelling Libya to hand over money now could prove counter-productive to achieving a comprehensive resolution. But I can see the logic you are following, and we will engage the new Libyan Government on the case for voluntarily setting aside assets, as a gesture of good faith and intent while negotiations proceed.”
Comment 24: The Prime Minister’s letter to us of 15 November 2011 (see para. 89) was confirmation to us of the shift from his pledged unequivocal approach toward Libya on the issue of compensation for the UK Victims to being simply an “important bilateral issue”. While his assurance that it was, nonetheless, a “top priority” in the ‘bilateral relationship” and that “it must not be subordinate to other security or commercial interests, or put onto the back burner” was encouraging at the time, it quickly became evident that other interests would in fact dominate and be given priority over the UK Victims. This is evidenced by the following:
Commercial Interests:
2011: the new Libyan military bought missiles from the MBDA Missile Company, part owned by BAE Systems.
26 September 2011: Lord Green, minister for trade and investment, led a UK delegation including representatives of BP and Shell for talks in Tripoli with National Transitional Council (NTC) ministers dealing with the economy, transport, education and communications.[28] The following day, the Libyan Embassy in London hosted a meeting for British business that was arranged by HMG. The meeting was reported to have been attended by around 100 executives.[29]
July 2012: A military delegation from Libya attended the Farnborough International Airshow, having been invited by UK Trade & Investment Defence & Security Organisation (UKTI DSO).).
January 2013: This saw the tenth British trade delegation, led by the Prime Minister’s trade envoy, Lord Marland, to Libya since the end of the civil war. As the Telegraph reported at the time, this trip was intended to secure business for British companies, including G4S, BAE Systems and Ernst & Young.
April 2013: Arms fair in Tripoli aboard the British frigate HMS Kent, organised by UKTI DSO, and officially opened by UK Defence Secretary Philip Hammond.
March 2013: UKTI issued an invitation, which was accepted, to Libyan officials to attend a Security and Policing Arms Fair in Farnborough.
April 2014: A business delegation of directors and senior executives from leading companies in Northern Ireland visited Tripoli to explore future opportunities for trade, joint ventures and technology agreements. Commercial staff of the British Embassy in Tripoli as well as UK trade and industry and commercial staff based in Tripoli assisted the delegation, representing a large portion of Northern Ireland’s industry sectors, during the visit.
Diplomacy:
January 2013: The Prime Minister visited Libya to express his intent to support the country as the security threat from Islamist terrorism rose. He stated: “We look forward to working together in the years ahead.” In the same month, Michael Aron was appointed by HMG as the new ambassador to Libya.
September 2013: Later that year, in September, Andrew Murrison, the British Minister for International Security Strategy, visited Tripoli for talks with top military officials, including the Chief of Staff, remarking: “It’s a long term relationship”. These examples demonstrate the pursuit by HMG of strong diplomatic ties with Libya.
Security:
June 2013: At the G8 summit, the UK government agreed to train 2000 Libyan Armed Forces personnel in basic infantry skills.
September 2013: A £62.5 million Security, Justice and Defence Programme was agreed between the Libyan Prime Minister and Britain, to ensure that Libya is fully equipped to deal with threats of terrorism. This is being funded by HMG. In the same month the Prime Minister responded to the Libyan Prime Minister’s appeal for help with removing weapons left in Libya, given fears of arms smuggling to Syria. Prime Minister stated, “We are doing everything we can to help.”
In the interim, despite the Prime Minister’s pledges, no progress was made in respect of the issue of compensation for the UK Victims. Even if the pledge was sincere when the Prime Minister made it, the facts show that it has not been upheld. UK/Libyan diplomatic, trade and security ties have blossomed while the UK Victims claims have, once again, been forgotten.
I. The Conservative’s Volte Face Part II – “Legacy Issues” (November 2011 – February 2012)
90. On 23 November 2011, Lord Empey asked Lord Howell:
“Can the Minister tell us that in addition to pursuing the issue of Lockerbie, the Government will rigorously and vigorously pursue the issue of compensation for all UK victims who were damaged by weapons supplied to the IRA by the Gaddafi regime and that the Government themselves will lead those negotiations rather than leaving them to third parties?”
Lord Howell replied:
“At present we are looking at all possible options with the Libyan Government to get a resolution on the legacy issues, including this one, which is certainly a very high priority. It is very early days for the new Libyan Government as they have only just been appointed, but we want to see a broad proposal for embracing questions of compensation, reconciliation and, indeed, investment in Northern Ireland. We are trying to develop a broad approach with, and led by, the Libyan Government.”
91. In December 2011, we travelled to Tripoli, Libya, and, without the support of the FCO, met with the President’s office, the Prime Minister’s Office, and the Deputy Prime Minister. In those meetings, we informed the Libyan Government what the Prime Minister had said in his letter of 15 November that he did not intend to unilaterally use Libyan frozen assets to compensate the UK Victims, but he did intend to engage the new Libyan Government on the case for voluntarily setting aside assets, as a gesture of good faith and intent while negotiations proceed. Their response was that they would wait for the Prime Minister to engage them formally. We advised the Prime Minister of this in a letter to him dated 15 December 2011.
92. On 15 December 2011, Vernon Coaker MP (Labour), put this written question to Mr. Hague: “Vernon Coaker asks the Secretary of State for Foreign and Commonwealth Affairs what progress has been made by the specialist unit in his Department in negotiations with the new Libyan government on compensation for victims of terrorism in the UK; and if he will make a statement.”
Mr. Burt, on behalf of Mr. Hague, replied:
“A specialist unit was set up under the previous Administration in 2009. The remit of the officers in the dedicated FCO Unit has been to offer facilitation, logistical support and general advice to the campaign seeking compensation for the victims of IRA terrorism that was sponsored by Libya through the supply of Semtex. They have also accompanied representatives of the victims at meetings with the Libyan Government.
Properly addressing legacy issues will be an important part of the UK's relationship with Libya. I raised this with the Libyan Transitional Government during my visit to Tripoli on 6-8 December. I made clear our desire to see progress on outstanding issues from the Gaddafi era. The newly appointed Foreign Minister Ashour Ben Khayyal agreed that we would take forward discussions on this.
The campaigns seeking compensation for IRA victims are private. The terms of the campaigns and the range of victims are therefore also private. However, we understand at this stage that no settlement has been made.”
Comment 25: Following the Prime Minister’s letter to us of 15 November 2011 (see para. 89), it became evident that the Coalition Government’s “unequivocal approach” on coming to power in 2010 had shifted to an “important bilateral issue” in April 2011, to the resolution of “legacy issues” in November 2011, without any explanation given or it ever being made clear to the UK Victims what this actually meant.
93. On 21 February 2012, we sent a letter from the UK Victims to the Prime Minister, which read:
“Though your words are kind, we must make plain that, after decades of waiting for justice and many years of fighting our legal case and campaign, immediate and real action is more important. Prime Minister Blair gave us meaningless words of consolation and conciliation that led us nowhere; indeed, it is clear now that he sold us out to BP. Prime Minister Brown provided us with some action when he established the Foreign Office Unit dedicated to supporting our campaign (the ‘Unit’) but the only real progress has been made independently when our legal team secured the April 2011 Agreement (“the Agreement”). What we now need is active assistance from and intervention by HMG to satisfy the Agreement and to do so without further delay.”
The UK Victims went on to identify what barriers they might have been facing:
“We appreciate that civil servants may be making you uncomfortable about actively assisting us. They may tell you:
- Not to intervene in what they describe as purely private litigation;
- That to do so would set a precedent that will open the floodgates; and
- That helping us to secure parity (of compensation with that received by our American McDonald co-claimants under the Libya Claims Settlement Agreement 2008 (LCSA)) may raise issues and objections from a wider-class of victims of the Troubles or cause repercussions within and from Northern Ireland.”
The UK Victims went on to write:
Such bureaucratic advice happens to be wrong and misguided and ignores not only HMG’s governmental and moral duty to represent the interest of its people, but also the fact that offering words of support while offering no practical assistance amounts to no more than appeasement. In the absence of a meeting with you to explain why such advice to you is wrong, we wish to explain why such advice to kick our cause into the long grass is not only unprincipled and unconscionable but lacks good sense.
- Assisting the McDonald Claimants is not akin to helping actively any and all private civil actions. Our claim ceased to be a purely private action when the US and Libyan governments agreed the LCSA; a bilateral agreement that dismissed McDonald and provided compensation for our American co-claimants but left us, the UK McDonald Claimants, with nothing. The LCSA and its lack of parity of treatment for UK victims transformed a purely private action into a public issue as well as a matter of British pride. While PM Blair negotiated the UK/Libyan détente in the interest of British business, the US predicated its own on the promise of compensation for its victims. The US chose to take a moral and principled stance and protect the interests of its citizens involved in litigation against Libya. The UK did not. US claimant victims received compensation. We did not. The UK put profit before its people and, in doing so, shamed our nation and failed the British public. PM Brown recognized this and sought to remedy that failure. He established the Unit to assist the McDonald Claimants (it was not set up to support the wider cause of UK victims of Libyan terrorism as appears to have been suggested recently) and provide us with the acknowledgment, backing and support we should have received from PM Blair. He did so because he recognized that our campaign had now become a public issue and that we deserved a level playing field with our American co-claimants. As a regrettably unresolved public issue, we look to you now for action to resolve it.
Helping us to achieve parity is the sole assistance sought. We are not asking for you to prove, prosecute or execute our claim. Through the LCSA process, Libya accepted that it had liability for McDonald and it accepted fixed tariff damages. However, the US and Libyan governments made a diplomatic decision not to pay the majority of the McDonald Claimants simply because they were not American. This was not only immoral and reprehensible, it was adding insult to injury for us and was a slap in the face to the British people. Between them, they decided a British victim in the case was not equal to an American victim. HMG should provide now not only a level playing field for the UK McDonald Claimants by providing us active assistance but, like the US, it should facilitate payment of our fixed tariff compensation to us.
- Assisting us would not open the floodgates. Our situation is unique. We know of no other instance where legal proceedings have been dismissed by bilateral agreement between two governments, one of which was a defendant in active legal proceedings, resulting in the defendant state providing compensation for one class of claimants and not another; such disparity of treatment being based solely on nationality. We ask you simply to correct this wrong. Intervention by you would only establish a precedent if this rare confluence of circumstances were ever repeated. Such an event is highly unlikely. The floodgate argument has no merit.
Such intervention is merely akin to supporting British business abroad in the face of an advantage being won by a foreign competitor due it receiving active support from its own government. If US business were afforded preferential treatment by the New Libyan Government due to US diplomacy, HMG would do everything in its power to ensure British business received equal, if not better, consideration. Indeed, HMG is doing just this right now in Libya. If a British business had a contract with Libya that Libya was failing to honour, doubtlessly HMG would intervene and, indeed, has done so in the past. In April 2011 in Benghazi the National Transitional Council (NTC) signed the Agreement with our legal and campaign team giving a commitment to:
‘[R]each a morally just and appropriate settlement of the existing UK claimants in McDonald et al v. Gaddafi US Case 1-10-CV-00729-JR, on a parity and non-discrimination basis, in line with other US victim claimants in the same action who have already received compensation pursuant to the principles of the Libya Claims Settlement Act in the USA.’
In doing so, the New Libyan Government acknowledged its country’s debt to the UK McDonald Claimants and that this payment should be in line with the amounts agreed under the LCSA. All that we ask is that you give us the same active support in enforcing such a ‘debt’ as you would do for British business. To choose not to do so would be wrong. Indeed, the Libyan Government must be bewildered that HMG has not yet done so and it is clear that it is waiting on HMG, or rather you, to raise the issue and initiate the payment process.
- Contrary to what you may have been advised, the wider class of victims are very supportive of our case and our campaign. They recognize that:
- We initiated a private claim when they did not and understand that, since the LCSA, they have no legal entitlement to compensation from Libya but only a moral claim;
- Success for us, through parity of treatment, would be symbolic for victims generally and may finally bring closure to thousands of victims or PIRA attacks and thus also the Northern Ireland community at large; and
- Regardless that the LCSA and rules on limitation prevent them now from seeking legal recourse, and when successive British governments have forgotten and failed them, our campaign has fought on their behalf on moral grounds to try and secure some recognition for their suffering.
Indeed our legal and campaign team secured the following statement of intent from the NTC within our Agreement:
‘In recognition of the wider class of similar UK IRA/Gaddafi victims that are not claimants in the above USA action, our sincere desire to enter discussion to consider an appropriately resourced humanitarian fund to be set up to recognize the pain and suffering of such victims and the wider society in the UK, and in particular Northern Ireland.”
This is why so many wider victims’ groups and Northern Ireland politicians have given our case such support. It is clear that in Northern Ireland and Libya, our legal situation is seen separately to that of the wider-class’ moral claims.
On this point we remind HMG that, in addition to fulfilment of the NTC’s agreement to compensate the McDonald Claimants, the NTC is open to exploring with HMG the issue of reconciliation for the wider-class of victim in Northern Ireland. In addition to providing active support for our claimants, it would be another failure by HMG not to support our efforts on behalf of reconciliation for the wider class …
Active support by HMG for our claims would not, as you may have been led to believe, cause division and unrest in Northern Ireland. Only your failure now to resolve our claims and to follow up with the NTC on the matter of the wider class would do that.
The UK Victims went on to ask the Prime Minister the following:
- That they be informed when preparation for ‘a new partnership with the new Libyan government to address all outstanding bilateral issues from the Gaddafi period and the claims of victims affected’ was complete and, moreover, when they would be implemented.
- If the delayed is being caused by the UK civil service’s inaction or lack of will, that the Prime Minister directly and personally intervene to correct this. Alternatively, if the delay lies with the new Libyan Government then the Prime Minister must insist that it addresses their claims and inform it that any failure to do so will immediately impact wider UK/Libyan relations on such matters as trade, security and diplomacy.
Finally, on the matter of frozen assets, the UK Victims drew to the Prime Minister’s attention the Consolidated Appropriations Act 2012, which had been recently passed by the US Congress and required the US Department of State to work with the NTC to obtain just compensation from the frozen assets of Gaddafi, his family and officials for the purpose of assisting US Victims of Libyan terrorism who remained uncompensated under the LCSA.
J. The Conservative’s Volte Face Part III – “Broad & Lasting Reconciliation” (March 2012 – June 2013)
94. The Prime Minister responded on 30 March 2012 and wrote the following:
“I see resolving the crimes committed by the Qadhafi regime as a top priority for our relationship with new Libya. I have personally raised the issue with NTC Chairman Mustafa Abdul Jalil and Transitional Government Prime Minister Abdurrahim Al-Kib. Ministerial Colleagues have consistently done likewise, including with the Libyan Minister of the Interior when he visited in January. Our Ambassador, Sir Dominic Asquith, discusses the possibility of a voluntary set aside of assets. In addition, the FCO’s Libya-Northern Ireland Reconciliation Unit will continue to facilitate your campaign, as it sought to do for the compensation element of your visit to Libya in December.
As a result, I can assure you that the Libyan authorities are in no doubt about the importance we attach to resolving the crimes committed against your clients, and others, in which the former Libyan regime was involved.
As I said in my previous letter, our goal is a comprehensive resolution of legal issues, including lasting reconciliation between Libya and the people affected. I believe that it would not be right or productive to pressure the Libyan authorities to settle only one element now. We will be looking at a range of initiatives including post-conflict reconciliation, education, health, trade and investment as well as community links. We have raised this with the Libyan authorities and plan to start exploring the details with them shortly. We will make this clear this should not be to the detriment of your clients’ claims.
I am encouraged by the positive response of the new Libyan authorities who are committed to working with us to resolve such crimes. But we have to be realistic about the capacity of the new Government in Libya to resolve these issues in the timescale we would like – as your clients recognise in their letter. The new Government is overwhelmed given the enormous upheavals that have taken place and the challenges of rebuilding Libya. In particular, the current transitional authorities are constrained from entering into long term and binding commitments ahead of legislative elections which will pave the way for a new constitution and a more permanent Libyan Government for us to engage.”
Comment 26: The Prime Minister’s letter to us of 30 March 2012 (see para. 94), made clear to us that the Coalition Government’s policy had shifted once again from resolving “legacy issues” to “broad and lasting reconciliation”. It was explained that the Prime Minister did not believe that “it would be right or productive to pressure the Libyan authorities to settle only one element now”. Rather, the issue of compensation for the UK Victims would be incorporated into a wider package of “post-conflict reconciliation, education, health, trade and investment as well as community links.” Furthermore, we were advised by the Prime Minister to be:
“realistic about the capacity of the new Government in Libya to resolve these issues in the timescale we would like … The new Government is overwhelmed given the enormous upheavals that have taken place and the challenges of rebuilding Libya. In particular, the current transitional authorities are constrained from entering into long term and binding commitments ahead of legislative elections which will pave the way for a new constitution and a more permanent Libyan Government for us to engage.”
It was baffling to the UK Victims why the issue of compensation had become wrapped up in one of broader and lasting reconciliation.
95. On 23 May 2012, following the one-year anniversary of the signing of the Benghazi Agreement, we wrote to Libya’s Chairman Jalil to ask him to honour it and revert with a timetable for resolution. In the interim, we asked that he consider a payment of a first instalment of compensation for the UK Victims.
96. Mr. Hague travelled to Libya in July 2012, where met with the Libyan Prime Minister and was assured by him of “Libya’s cooperation to bring justice for UK victims of Qadhafi”. (We learnt this at a meeting with the Unit on 11 September 2012 (see para. 97)).
- Sharing UK knowledge and experience of reconciliation and post-conflict issues
- “Commercial activities”
- Establishing links between Libyan and UK institutions and communities
- Gestures of reconciliation (it was suggested that the Libyan Prime Minister could place a wreath at PCPC Fletcher’s memorial during his next visit).
When the UK Victims asked what this meant for their compensation claims, the FCO explained that they would have to explore this directly with the Libyan government themselves through their own private campaign, though the FCO would continue to provide “facilitation support”. The FCO advised that HMG itself was not involved in any negotiations with the Libyan authorities on securing compensation payments, though it would continue to press the Libyans to engage with us. The FCO’s role would be limited to helping set up meetings for us with the Libyan Embassy in London, offering updates on the situation in Libya and providing advice on any approaches to the Libyan authorities.
Comment 27: The FCO’s advice to us at our meeting with it on 11 September 2012 (see para. 97), when asked what its “broad and lasting reconciliation” initiative meant for the UK Victims compensation claims was baffling. We were told that the “reconciliation package” meant that we would have to explore the issue of compensation with the Libyan Government ourselves and through our own private campaign, though the FCO would continue to provide “facilitation support”. In contrast to what the Prime Minister advised in his letter of 30 March 2012 (see para. 94), the FCO went on to advise us that the Coalition Government was not itself involved in any negotiations with the Libyan authorities on securing compensation (the Prime Minister had written that he had personally raised the issue with NTC Chairman Mustafa Abdul Jalil and Transitional Government Prime Minister Abdurrahim Al-Kib), though it would continue to press Libya to engage with us, and the FCO’s role would be limited to helping to set up meetings for us with the Libyan Embassy.
Lord Wallace (LD) responded on behalf of HMG:
“A key priority for the British Government's engagement with the new Libya is promoting broad and lasting reconciliation between Libya and those UK communities directly affected by Gaddafi's support of terrorism. We believe that compensation claims are best pursued directly with the Libyan Government through private campaigns. Although the British Government are not involved in any negotiations with the Libyan authorities on securing compensation payments, the Foreign and Commonwealth Office provides facilitation support to a number of such private campaigns. We also continue to encourage the Libyan authorities to engage with representatives of UK victims.”
100. In December 2012, Mr. Burt travelled to Libya. We were told at a later meeting with the FCO on 22 February 2013 (see para. 106) that a priority of this visit was to ensure the Libyan Government understood the importance HMG attached to resolving “legacy issues” and to discuss “reconciliation” ideas with the Libyans and establish their views on the way forward. We were told that the fact that the Libyan Foreign Minister took the time to meet with them was a sign the Libyan government was taking this matter seriously but he stressed that this was a “sensitive issue” and that many Libyans felt that the problems in their own country should be resolved before focusing on those of other nations.
Baroness Warsi (Con) responded on behalf of HMG:
“Individual compensation claims are being pursued on a private basis and the Government are not involved in negotiations with the Libyan authorities on securing compensation payments. However, the Foreign and Commonwealth Office provides facilitation support to a number of such private campaigns. The Government have raised Gaddafi's support of Irish Republican Army (IRA) terrorism with the Libyan authorities on numerous occasions, including this year on 16 January, 16 February, 22 February, 6 July, 16 July, 24 September, 3 October, 4 October, 10 October, and 11 October. We also continue to encourage the Libyan authorities to engage with representatives of UK victims. The Libyan authorities are in no doubt of the importance the UK attaches to resolving this and other outstanding bilateral issues arising from the actions of the Gaddafi regime.”
It is notable that Baroness Warsi did not actually answer Lord Empey’s explicit question as to whether the Coalition Government had raised the issue of compensation with the Libyan Government. She only confirmed that the Coalition Government had raised the issue of Gaddafi’s support of the PIRA.
Mr. Burt, on behalf of Mr. Hague, replied: “The Gaddafi regime left a terrible legacy, with many victims both in Libya and in the UK. My right hon. Friends the Prime Minister and the Foreign Secretary and I have consistently raised Gaddafi’s relationship with the IRA when we have seen the Libyan authorities.” It is notable that Mr. Hague did not actually answer Mr. Mowat’s explicit question about reparations.
Comment 28: It is notable that in December 2012 (see paras. 101 and 102) Baroness Warsi and Mr. Burt, in separate answers to two separate and explicit questions that asked if the Coalition Government had discussed the issue of compensation with the Libyan Government, both avoided answering and would say that it had raised the issue of Gaddafi’s support with the PIRA? This raises the reasonable concern that, at this time, the Coalition Government was not in fact raising the matter of compensation for the UK Victims with the Libyan Government, despite suggestions otherwise.
Mr. Mowat asked also:
“It is now accepted that Libya provided the Semtex used both at Lockerbie and at the Warrington bombing in 1993. The US Government are vigorously pursuing a claim on behalf of the Lockerbie victims, whereas the UK is more passive in its support for the equivalent McCue case. Will the Minister review our position and undertake to go the extra mile for the UK victims, including those living in Warrington?”
Mr. Burt, on behalf of Mr. Hague, replied:
“I know my hon. Friend’s position and his close relationship with those who suffered in Warrington, not least Colin Parry and his family. It has not been the UK’s position specifically to support individual compensation claims — that has been done privately — but the UK has offered facilitation and support to those making such claims. More important, the UK has also been able to support a process of reconciliation with the new Libyan authorities to make good the comment of President Magarief at the UN in September — he apologised for the crimes of the despot and is looking to try to ensure that things are repaired. We are working continually with the Libyan authorities on that. I am going there next week to help in that process.”
103. On 29 January 2013, we wrote to the Prime Minister to provide him with a copy of a ‘Victims’ Portfolio that tells the story of the UK Victims’ pain and suffering in their own words and informing him that an Arabic version had been sent to the Libyan President, Prime Minister and Justice Minister. We also informed the Prime Minister that we had requested that the FCO facilitate discussions between the Claimant’s representatives and the Libyan Justice Minister.
104. On 31 January 2013, we wrote to the Libyan Justice Minister advising him that the FCO were seeking to facilitate a meeting between us. We wrote also to the Libyan Prime Minister asking him to support the Justice Minister in reaching a resolution to the issue of compensation for the UK Victims.
Mr. Cameron travelled to Libya. We were told at a later meeting with the FCO on 22 February 2013 (see para. 106) that a priority of this visit was to ensure the Libyan Government understood the importance HMG attached to resolving “legacy issues”.
105. On 19 February 2013, the FCO Unit hosted a meeting at Stormont. We were advised that, following a meeting between the NIO and the Libyan Foreign Minister in December, the UK would draft a set of proposals for reconciliation (despite the fact that we were advised that this was already being done in September 2012 – see para. 97) and that this proposal would set out five key areas:
- Political gestures;
- Trade and investment;
- Developing community links;
- Policing in post conflict communities;
- Scholarships.
We were told by the FCO that HMG considered the UK Victims’ compensation claims are best pursued privately and directly with the Libyan authorities and that the best thing HMG could do to assist was to develop the bilateral relationship. We were also told that while Libya did have the money to pay the compensation, it lacked the basic financial infrastructures to make such a payment.
- To assist Libya to improve the security situation;
- To assist the Libyan government to deliver for Libyan citizens;
- To build the UK/Libya bilateral relationship;
- To progress reconciliation and other legacy issues.
Comment 29: In November 2012 (see para. 99), we asked the Unit, whose self-described role was to arrange meetings between us and the Libyan authorities, to arrange a meeting between us and the Libyan Justice Minister. Four months late, on 26 February 2013 (see para. 107), despite our chasing, the FCO advised that they had failed to do so but could arrange a meeting with the Libyan Embassy in London. For us, this called into serious question the effectiveness of the Unit’s and its increasingly limited role at that time.
“I have great personal sympathy with those you represent and with everyone affected by Qadhafi’s sponsorship of IRA terrorism. These were acts that caused terrible misery and suffering and we utterly condemn them. The British Government will do all we can to promote broad and lasting reconciliation between Libya and those UK communities directly affected by Qadhafi’s support of terrorism. I made clear to the Libyan Government just how important this issue is to me when I visited on 31 January. I was persuaded of their intention to work with us on this, and I will continue to bring it to their attention until reconciliation is achieved.
As you are aware, the Foreign and Commonwealth Office and the Northern Ireland Office enjoyed a positive joint visit to Libya in December of last year, in which the Libyan Authorities agreed to work with us to achieve our UK-Libya reconciliation objectives. Officials in the British Embassy in Tripoli are now pursuing your request to meet the Justice Minister, and will keep you updated.
Whilst we need to recognise the constraints that the new Government faces I am confident that an increasingly strong bilateral relationship between Libya and Britain will produce progress both in regards to private compensation claims and our wider work on reconciliation.”
Comment 30: The Prime Minister wrote to us on 28 February 2013 (see para. 108). This was notable for the fact that assuring us of his “great personal sympathy with those you represent and with everyone affected by Qadhafi’s sponsorship of IRA terrorism”, there was no mention or reference to compensation. Instead, much was made of the need for “broad and lasting reconciliation” and “UK-Libya reconciliation objectives” and a “strong bilateral relationship”.
We followed with a letter requesting a further meeting with representatives of the Libyan Government at the earliest opportunity to discuss how we might progress. No response was forthcoming. Following chasing letters, we received a letter from the Embassy in early 2014 that the Embassy “did not yet get a response from the Libyan Government. As you might be aware, the country is going through a particularly challenging in time [sic] in terms of stability. Therefore, many outstanding issues remain so. We hope that a response comes through from Tripoli and we will contact you as soon as we get it.” Despite further efforts and best efforts, this was our last communication with the Libyan Government.
Comment 31: It was strongly implied to us at our meeting with the Libyan Embassy on 2 May 2013 (see para. 109) that while the issue of compensation for the UK Victims was an important one for the Libyan Government, it was waiting to be asked by the UK to make settlement. The implication was that the Libyan Government was amenable to doing so but it could not, unless there was a strong and official request for it to do so from HMG. Otherwise, it would have no political justification to give to the Libyan people for making such a settlement. Again, this calls into question whether the Coalition Government, at that time, had or was making any real request that the Libyan Government should settle the UK Victims’ compensation claims?
110. On 19 June 2013, Ms Hoey asked the Prime Minister:
“Hosting the G8 in Enniskillen was a practical way of showing that Northern Ireland was an integral part of the UK, and I want to add my congratulations to the Prime Minister on taking it there. Is he aware of the concern, however, that the Libyan Prime Minister was in Enniskillen, just a few miles from the site of a terrible atrocity involving Semtex from Libya, but was not able to meet those concerned—they got very late notice—and then went and met someone who used to be in the IRA?”
The Prime Minister replied:
“First, the hon. Lady is absolutely right to say that Libyan Semtex played an appalling role in the violence and destruction in Northern Ireland. For all we know, Libyan Semtex may still be in the hands of dissident republicans, so this is a serious and live issue. Let me commend the Libyan Prime Minister for wanting to settle all these issues with the United Kingdom. He knows how important it is to communities in Northern Ireland and elsewhere to do so. My sense is that he wants to deal with these issues, not least because he knows that Britain played such a key role in getting rid of Gaddafi. Let us not forget that he was the person who provided the Semtex in the first place.”
Comment 32: In June 2013, the Libyan Prime Minister attended the G8 Summit in Lough Erne, Northern Ireland (see para. 110). While there, he met with the First Minister and Deputy Minister of Northern Ireland. The Unit advised us that the FCO welcomed this engagement as a positive development for UK/Libyan reconciliation. However, a number of the UK Victims were, in fact, deeply upset and distressed by this meeting. Not only because the Unit had failed to give them any notice of it but, more importantly, that rather than arranging for the Libyan Minister to meet with the UK Victims of Gaddafi terrorism, they had arranged for him to meet with an alleged former senior member of the very organization to which Gaddafi so murderously supplied Semtex. The Unit and the FCO’s insensitivity was indicative of how far removed they had become from the original stated purpose of the Unit when it was established by Mr. Brown and HMG’s real responsibilities to its terror victims.
K. The Blair Revelation and HMG Inaction & Disengagement (August 2013 to February 2015)
Comment 33: Mr. Blair’s reported response to the Telegraph’s revelations (see para. 111) that he might have brokered the LCSA on Gaddafi’s behalf, via his spokesman, seems to support the view that HMG and Mr. Blair viewed our clients’ claims as unimportant: “The only conversation [Mr. Blair] ever had with regard to this matter was to give a general view that it was in the interests of both Libya and the USA to resolve those issues in a fair manner and move on.” There is no indication from this, or any other source, that Mr. Blair ever advocated on behalf of, or even raised, the interests of the UK victims. It is also telling that Mr. Blair never answered our letter of 1 June 2007 (see para. 38).
112. We wrote to the Prime Minister on 22 August 2013 regarding these revelations. As well as our concern about Mr. Blair’s alleged actions, we informed the Prime Minister:
“We must also query former Ambassador to Libya Sir Vincent Fean’s, involvement. Despite his seeming lack of interest in supporting the UK victims’ claims, and his knowledge of and involvement in Mr. Blair’s intervention with President Bush on the matter of the reach of the LCRA, Sir Vincent and his team were appointed (by the Brown government) as our main support and point of contact with the Libyan Government during our negotiations with them following the creation of the FCO Libya-Northern Ireland Reconciliation Unit in 2008. This being so, not only may we question Sir Vincent’s position as interlocutor and his commitment to affectively assisting the victims in their pursuit of fair treatment, but also the FCO’s and the Unit’s. The petitions he claimed to have made to the Libyan Minister on behalf of the UK victim’s behalf must, if they occurred, have been embarrassing, bearing in mind his participation in the earlier Blair arrangement, and rather comical from the point of view of the Libyans. Indeed, one might go as far to say that Sir Vincent had a clear conflict of interest that should have been disclosed to the claimants and, at the very least, explained to the parliamentary delegation that travelled to Tripoli on behalf of the claimants, where it met with the Libyans and Sir Vincent. Serious questions are now raised as to whether members of the Lords and the Commons were deliberately misled by the previous government…
In November 2009, the Parliamentary delegation to Libya, including Lord Daniel Brennan QC, Lord Paul Bew, Andrew MacKinlay MP, Jeff Donaldson MP, and Nigel Dodds MP met with Libyan Ministers to negotiate the victims’ position. They relied on representations made to them by the FCO, the Unit, Sir Vincent and the government of the day. The failure to inform them of the previous arrangements between Mr. Blair, HMG and Gaddafi made their meetings with the Libyans pointless and surely exposed them to ridicule by their Libyan counterparts, who were no doubt fully briefed of Gaddafi’s position. All this was done in the knowledge that limited victim campaign funds and time were being wasted for what the FCO and Sir Vincent knew to be no more than a pantomime on a stage they had been complicit in building. Indeed, on 7 February 2011, in a response in Parliament to a statement by Lord Howell, the FCO Minister of State, on the European Council and North Africa, Lord Bew astutely noted that “the Libyan Ministers to whom we spoke [during the parliamentary delegation’s visit to Libya] knew more about recent UK policy on this matter than those of us who were on that delegation.” He followed up with the request: “will [Lord Howell] ensure that those who go as part of future parliamentary delegations to Libya know the full background of recent UK policy to the country that we are dealing with? Otherwise, one is at a disadvantage”.
We requested:
- A response from HMG by 6 September 2013 on the allegations reported by the Telegraph, noting that this revelation has distressed the UK Victims greatly and that it is only right that their concerns be addressed at the earliest opportunity, and that they were looking to the Prime Minister for action.
- That HMG lay out what action it now intended to take on the UK Victims’ behalf.
- That the Prime Minister make good on his promise to engage the new Libyan Government to set aside necessary assets to resolve the UK Victims’ claims.
113. On 18 September 2013 we received a holding response from Downing Street informing us that our letter was receiving attention and we could expect a reply as soon as possible.
114. On 5 November 2013, we wrote again to the Prime Minister noting that the UK Victims were still awaiting a reply to our concerns regarding the Telegraph’s allegations. In that letter, we also identified the broader problem that had arisen. From pledges of full support and direct action, the Coalition Government’s position had changed such that it could not directly assist the UK Victims because general policy forbade it from directly involving itself in matters of private litigation. Therefore, even though the case in question involves public interest concerns -- namely UK victims of terrorism seeking justice for terrorist atrocities brought about, in part, by the UK’s own domestic and foreign policies -- HMG’s position is now that it is barred from becoming directly involved. Moreover, this policy also appeared to have been no bar to Mr. Blair and Sir Vincent and the FCO involving themselves and seeking to influence the outcome of the UK Victims’ litigation when to do so would assist Gaddafi. Thus, HMG’s policy seems to be one that will not allow it to provide direct assistance to its own citizens and victims, but appears to permit the provision of direct assistance to a rogue regime in its private litigation against the very UK nationals against whom it has committed acts of terrorism.
Lord Empey asked also: “whether they have reached any agreement with the government of Libya on compensation for United Kingdom citizens killed or injured by weapons supplied to the IRA by the former Gaddafi regime.”
Baroness Warsi on behalf of HMG responded:
“The British Government's focus is on developing a broad and long lasting reconciliation between Libya and affected areas in the UK. The Government has raised these reconciliation objectives and Qadhafi’s support of terrorism with the Libyan government on a number of occasions this year. The Prime Minister, my right hon. Friend Mr Cameron, raised this with the Libyan Prime Minister most recently on his visit to London on 17 September. The Government will continue to seek opportunities to discuss this with the Libyans.”
Comment 34: It is notable that in response to explicit questions by Lord Empey to HMG on 11 November 2013 (see para. 115) whether the Coalition Government had raised the issue of compensation for the UK Victims with the Libyan Government, Baroness Warsi’s response was only to say that: “The British Government's focus is on developing a broad and long lasting reconciliation between Libya and affected areas in the UK. The Government has raised these reconciliation objectives and Qadhafi’s support of terrorism with the Libyan government on a number of occasions this year.” In doing so, once again Baroness Warsi failed, or refused, to confirm whether the issue of compensation had even been raised.
− Stated that: “Resolving legacy issues from the Qadhafi regime is a priority for the British Government. We have been clear with the Libyan authorities that in order for a bilateral relationship to develop, progress must be made on these issues. The Prime Minister has spoken to the Libyan Prime Minister, Ali Zeidan, about this several times this year, including when he visited London in September.”
− Stated that the former Labour Government had supported the LCSA on the basis that it meant that UK victims of Lockerbie would receive payment of compensation and that such payment was a requirement under UN Security Council Resolution 748, and there was no similar international obligation to compensate victims of Libyan-sponsored terrorism.
− Claimed that: “When it became clear in May 2008 that the US and Libya were proceeding with the negotiations on a bilateral agreement to settle outstanding claims, the UK lobbied the US to include UK claimants on the list of recipients. Unfortunately, this was not possible, mainly because international and US law does not allow the US to espouse the claims of foreign nationals. Our Embassy in Tripoli also lobbied the then Libyan authorities to include UK victims in the settlement. The Libyans made clear that they had answered questions about their support for IRA terrorism and considered the matter closed.”
− Claimed that any allegation that government officials took any deliberate action that denied the UK Victims compensation under the LCSA or misled parliamentarians were wrong.
− Reiterated that HMG’s position is that the UK Victims’ claims are a private matter, thus HMG cannot involve itself directly; thus the UK Victims should pursue it with the Libyan authorities.
− Informed us that, in 2012, the former Ambassador to Libya, Sir Dominic Asquith, raised the idea with the Libyan authorities of voluntarily setting aside Libyan frozen assets to settle the UK Victims’ claims but this had not gained a positive response.
− Informed us that, since his arrival in Libya, the current Ambassador, Michael Aron, had discussed legacy issues with Prime Minister Zeidan and Justice Minister Salah al Marghani on a number of occasions and that: (i) “the Libyan Government have condemned Gaddafi’s sponsorship of terrorism and have stressed that there is a clear distinction between the actions of his regime and the current Government”; (ii) “they fully understand the importance HMG attaches to developing a new and forward looking relationship between the Libyan people and UK communities most affected by Qadhafi’s support of terrorism”.
− Informed us that Libyan Prime Minister “met with the First and Deputy First Ministers of Northern Ireland in Belfast on 18 June to discuss ways in which to build links and understanding and potential areas for future partnership work. This meet was proposed and arranged by the FCO unit”.
Comment 35: Mr. Robertson’s letter to us of 26 November 2013 (see para. 116) was notable for the following reasons:
− It did not confirm whether the Prime Minister had raised the issue of compensation for the UK Victims with former Prime Minister Zeidan, only that they had discussed “legacy issues”.
− His defence that no “government officials” took any “deliberate” action that denied the UK Victims compensation under the LCSA or misled any parliamentarian does not deny: (a) that Mr. Blair might have taken deliberate action to deny the UK Victims compensation (he was no longer in office at the time and thus not a government official); or (b) that government officials might have been negligent, if not deliberate or intentional, in their actions that caused the UK Victims to be denied compensation. In short, his defence of the allegations against former Prime Minister Blair and HMG is far from satisfactory.
− Confirmation whether: “the Telegraph’s reporting was in anyway inaccurate and, more specifically, whether HMG denies the existence of the memo reported as sent by Sir Vincent Fean to former Prime Minister Tony Blair.”
− Why, when no demonstrable progress had been made by HMG in respect of the UK victims’ claims, had other UK interests flourished. The following examples were cited:
“Trade – … In particular HMG’s great efforts to secure arms and oil contracts for UK companies and individuals. For example, January 2013 saw the tenth British trade delegation, led by the Prime Minister’s trade envoy, Lord Marland, to Libya since the end of the civil war. As the Telegraph reported, this trip was intended to secure business for British companies, including G4S, BAE Systems and Ernst Young. In 2011 the UK military bought missiles from the MBDA Missile Company, part owned by BAE systems. The January trade event echoes a similar trip conducted and led by British Trade Minister Stephen Green in September 2011, which prompted a Whitehall official to remark that “British oil companies have been major players in Libya and I’m sure that they will want to get back in there”. More recently, in April 2013 there was an arms fair in Tripoli aboard the British frigate HMS Kent, organised by UKTI DSO, and officially opened by UK Defense Secretary Philip Hammond. In March 2013 UKTI issued an invitation, which was accepted, to Libyan officials to attend a Security and Policing Arms Fair in Farnborough. A military delegation from Libya also attended the July 2012 Farnborough International Airshow, having been invited by UKTI DSO.”
Diplomacy - In January 2013 the Prime Minister visited Libya to express his intent to support the country as the security threat from Islamist terrorism rose. He stated: “We look forward to working together in the years ahead.” In the same month, Michael Aron was appointed by HMG as the new ambassador to Libya. Later that year, in September, Andrew Murrison, the British Minister for International Security Strategy, visited Tripoli for talks with top military officials, including the Chief of Staff, remarking: “It’s a long-term relationship”. These examples demonstrate the pursuit by HMG of strong diplomatic ties with Libya.
Security – In September 2013 a £62.5 million Security, Justice and Defence Programme was agreed between the Libyan Prime Minister and Britain, to ensure that Libya is fully equipped to deal with threats of terrorism. This is being funded by HMG. In the same month the Prime Minister responded to the Libyan Prime Minister’s appeal for help with removing weapons left in Libya, given fears of arms smuggling to Syria. Prime Minister stated, “We are doing everything we can to help.” Additionally, at the June 2013 G8 summit, the UK government agreed to train 2000 Libyan Armed Forces personnel in basic infantry skills.”
We noted that:
“In a letter to us dated 15 November 2011, the Prime Minister stated that he was ‘clear that [claims of the victims of Libyan-sponsored IRA terrorism] must not be subordinate to other security or commercial interests, or put onto the back burner’. Even if the pledge was sincere when the Prime Minister made it, the facts show that this pledge has not been upheld. UK/Libyan diplomatic, trade and security ties have blossomed while our Clients’ claims have been left to fester.”
− Was it “simply the ‘view’ of the government, that it cannot directly involve itself in this matter, which would suggest that HMG has discretion to take a different ‘view’, or is it actually prohibited from doing so, be it by law, rule, custom or convention?”
− If, as Mr. Robertson’s letter of 26 November 2013 stated, in 2008 “’the UK lobbied the US to include UK claimants on the list of recipients [under the LCSA]’ and also ‘lobbied the then Libyan authorities to include UK victims in the settlement’ … what prevents it from doing so now?”
− “Is HMG’s position that it never or can never involve itself in private litigation concerning its citizens or foreign citizens?”
− Why HMG could not seek a bilateral agreement of its own with Libya to settle the UK Victims’ claims? Mr. Robertson, in his letter of 26 November 2013, had stated this was because:
“a. While the payment of compensation to “the families of the UK victims of the Lockerbie atrocity...was a requirement under UN Security Council resolution [sic] 748”, “there was no similar obligation to compensate victims of Libyan-sponsored IRA terrorism”; and
b. The Libyans made clear that they had answered questions about their support for IRA terrorism and considered the matter closed.”
We also advised Mr. Robertson that:
− “While our Clients are grateful that the Prime Minster has had several conversations about progressing ‘legacy issues’ with the Libyan Prime Minister, nothing has been achieved. Moreover, the vagary of this phrase and its persistent use may, in reality, only serve to obfuscate and delay the discovery of HMG’s continued failure to make any real progress in respect of our Clients’ claims. We must be clear that our Clients fully support broader reconciliation between Libya and the UK, especially Northern Ireland. However, progressing ‘legacy issues’ does not directly address our Clients outstanding legal claim against Libya for settlement of their claims for the loss and harm they suffered as a result of the former regime’s material support of the IRA.”
− “Our Clients are sufficiently disappointed with what they see to be HMG’s, and especially the FCO’s, ineffective assistance in this matter that they have instructed us that they no longer see the benefit of any further liaison with HMG or the FCO.”
(Despite repeated requests for a response from Mr. Robertson from the UK Victims, no further correspondence from him was forthcoming until 3 July 2014 when he informed us that responsibility for this matter had now been transferred to the National Security Advisor, Sir Kim Darroch.)
Comment 36: As we have never received a substantive response to our letter to Mr. Robertson of 14 January 2014 (see para. 117), the following questions put to HMG remain outstanding:
– Why, when no demonstrable progress had been made by HMG in respect of the UK victims’ claims, had other UK interests, in trade, diplomacy and security, flourished?
– Was it simply the ‘view’ of the government, that it cannot directly involve itself in this matter, which would suggest that HMG has discretion to take a different ‘view’, or is it actually prohibited from doing so, be it by law, rule, custom or convention?
– If, as Mr. Robertson’s letter of 26 November 2013 (see para. 116) stated, in 2008 “the UK lobbied the US to include UK claimants on the list of recipients [under the LCSA]” and also “lobbied the then Libyan authorities to include UK victims in the settlement”, what prevents it from doing so now?
– Is HMG’s position that it never or can never involve itself in private litigation concerning its citizens or foreign citizens?
– Why HMG could not seek a bilateral agreement of its own with Libya to settle the UK Victims’ claims?
118. On 22 January 2014, Lord Empey put this written question to HMG: “whether they are continuing to negotiate with the government of Libya regarding possible compensation for United Kingdom citizens killed or injured by weapons supplied to the IRA by the former Gaddafi regime.”
Baroness Warsi, on behalf of HMG, responded:
“The Government is not involved in any negotiations with the Libyan government on securing compensation payments for the British victims of Qadhafi sponsored Irish Republican Army (IRA) terrorism. The Government considers individual compensation claims that are being pursued to be a private matter and best pursued directly with the Libyan government. However, the Foreign and Commonwealth Office does provide facilitation support to a number of private compensation campaign groups, where it has been requested.”
- Justice and policing;
- Education and youth;
- Political dialogue;
- Trade and investment; and
- Health and society.
It was explained that this would help pave the way for the UK Victims to engage with the Libyans in respect of compensation claims, and that, because Libya was facing difficulties after years of the Gaddafi regime, HMG had first to build Libyan understanding of the legacy issues and encourage them to engage with the UK victims.
Comment 37: On 31 January 2014, we had another meeting with the Unit (see para. 119). At that meeting, it outlined plans to develop a package of “activities” to promote a “broad and lasting reconciliation” between Libya and the UK. These focused on five activities:
- Justice and policing;
- Education and youth;
- Political dialogue;
- Trade and investment; and
- Health and society.
This was startling as not only had this package of “activities” seemingly first been promised by the Prime Minister, over three years earlier, in his letter to us of 15 November 2011 (see para. 89), which advised that he had “asked the Foreign Office to prepare detailed plans for a comprehensive structured bilateral dialogue with the new Libyan Government with a view to establishing a sustainable and effective partnership with Libya” but:
– In a letter to us of 30 March 2012 (see para. 94), the Prime Minister advised: “We will be looking at a range of initiatives including post-conflict reconciliation, education, health, trade and investment as well as community links.”
– At a meeting with the FCO and NIO in September 2012 (see para, 97), they had identified the following broad “activities”, which could be included in a potential reconciliation package:
- Sharing UK knowledge and experience of reconciliation and post-conflict issues
- “Commercial activities”
- Establishing links between Libyan and UK institutions and communities
- Gestures of reconciliation (it was suggested that the Libyan Prime Minister could place a wreath at PCPC Fletcher’s memorial during his next visit).
– On 19 February 2013, the FCO Unit hosted a meeting at Stormont, where we were advised that, following a meeting between the NIO and the Libyan Foreign Minister in December, the UK would draft a set of proposals for reconciliation and that this proposal would set out five key areas:
- Political gestures;
- Trade and investment;
- Developing community links;
- Policing in post conflict communities;
- Scholarships.
The Coalition Government had first advised us in November 2011 that plans for improving the bilateral relationship were being prepared. Seemingly, they were still being prepared in March 2012, September 2012, February 2013 and then January 2014. Worse still, each “package” was different from the last. Again, this caused serious concern to the UK Victims about the effectiveness of the Unit.
120. On 25 March 2014, Lord Empey put this written question to HMG: “whether they intend to discuss with the Government of Libya the question of compensation for United Kingdom victims of arms supplied to the IRA by the Gaddafi regime.”
Baroness Warsi, on behalf of HMG responded:
“My Lords, the Government will continue to encourage the Libyan Government to engage with UK victims seeking redress, including those seeking compensation and their legal representatives. More broadly, we will continue to promote wide and lasting reconciliation between Libya and UK communities affected by Gaddafi-sponsored terrorism. We have raised these issues with the Libyan Government repeatedly and the Prime Minister, my right honourable friend Mr Cameron, raised this most recently with the Libyan Prime Minister in September last year.”
121. On 26 March 2014, Mr Dodds asked the Prime Minister in a Commons debate:
“The Prime Minister, and indeed the whole House, will be well aware of the contribution to the immense suffering of thousands of innocent victims across the United Kingdom made by the Gaddafi regime’s state sponsorship of IRA terrorism and the supply of arms and Semtex over many years to republican groups. Does he agree with what he previously said: the issue of compensation from Libya remains a priority for this Government? Will he agree to meet me to review the case and to discuss what further progress might be made?”
The Prime Minister replied:
“I am happy to repeat what I said earlier. The Libyan authorities are in no doubt of the importance that we attach to their engaging properly with UK victims seeking redress. I raised it most recently with the Libyan Prime Minister last September. Of course the country faces huge challenges, which makes it difficult to make progress on this issue, but I am committed to doing that, and I am happy to meet the right hon. Gentleman.”
Comment 38: On 26 March 2014, the Prime Minister told Parliament that: “The Libyan authorities are in no doubt of the importance that we attach to their engaging properly with UK victims seeking redress.” (See para. 121). This provided little comfort to the UK Victims as, despite our best and on-going effort and as the Unit was aware, we had received no further communication from the Libyan Government since early 2014 (see para. 109). The Unit was of no assistance in remedying this.
122. On 2 April 2014, Ms Hoey put this written question to Theresa Villiers MP (Con), Secretary of State for Northern Ireland: “what progress has been made on gaining compensation from the Libyan Government for the victims of terrorist acts perpetrated by the IRA.”
Mr Robathan MP (Ret.d) (Con), answered on behalf of Ms. Villiers:
“As the Prime Minister said during Prime Ministers Questions on 26 March 2014, the British Government have raised repeatedly with the Libyan Government, at the highest levels, the importance of them engaging with UK victims seeking redress. This includes those seeking compensation through private campaigns, and their legal representatives.”
123. On 8 April 2014, Mr. Mowat asked Mr. Robertson in a Commons Debate: “What discussions he has had with the Libyan Government on reparations for people killed in attacks made using Libyan Semtex.”
Mr. Robertson replied:
“Successive UK Governments have not routinely negotiated with foreign Governments over private compensation claims. However, the UK has raised with the Libyan authorities on a number of occasions the importance of engaging with UK victims seeking redress, including those seeking compensation through private campaigns, and with their legal representatives.”
Mr. Mowat continued:
“The Minister will be aware that the American victims of Semtex bombings have received more than £1 billion of compensation, while the 200 UK victims have so far received nothing. Can he assure the House that no deal was done in 2008 as part of the normalisation of relations with Gaddafi, to the detriment of my constituents?”
Mr. Robertson replied:
“Yes, I can. I should probably say to my hon. Friend that the situation here is very different from that in the United States, because we have victims who have suffered by a wide range of means, not merely Semtex. However, I can absolutely assure him that the claim that Government officials took any action in the 2008 bilateral agreement between the US and Libya that denied UK victims compensation is wrong.”
124. On 3 May 2014, following lobbying efforts by the UK Victims, it was reported by the Sunday Telegraph that Mr. Cameron had appointed his National Security Adviser, Sir Kim Darroch, to lead a new drive for compensation for the UK Victims and had stated that he was willing to meet with us to make progress on this issue. Regrettably, the Prime Minister did not fulfil his offer to meet us on this issue (in contrast to his predecessor, Mr. Brown, who did meet with us and the UK Victims to discuss their claim for compensation).
125. In June 2014, Sir Kim travelled to Tripoli to meet with the Libyan Prime Minister Abdullah al-Thinni.
126. On 9 July 2014 Lord Empey in a written question to HMG asked: “what is the current state of their discussions on possible compensation for victims of terrorism in Northern Ireland where such victimhood can be attributed to explosives or other weapons supplied by regimes outside the United Kingdom.”
Baroness Randerson, Parliamentary Under-Secretary of State, Wales Office (LD), responded on behalf of HMG:
“The Government recognises the importance of this issue for the many people who suffered at the hands of Qadhafi sponsored terrorism. The Prime Minister has asked the National Security Advisor, Sir Kim Darroch, to lead cross Government activity to build a dialogue with the Libyan authorities on reconciliation initiatives. Sir Kim’s efforts are designed to support all of those who have suffered as a result of Qadhafi’s support to terrorism, and are not focused exclusively on any one group of victims. He has been talking to the Libyan Government about how best to take forward these matters given the challenging security and political situation in Libya.”
127. On 16 July 2014, Sir Kim contacted us and offered us a meeting. This meeting was finally arranged for and took place on 8 October 2014. The meeting confirmed that:
- Despite previous assurances to the contrary, HMG had not, in fact, promoted the UK Victims claims for compensation with the Libyan government and had no intention of doing so.
- There was no willingness by Libya to settlement the UK Victims’ claims for compensation (despite its signing of the Benghazi Agreement).
128. Following our meeting with Sir Kim, we wrote to him on 6 November 2014 and requested that HMG provide a position paper to the UK Victims to clarify to them, formally and in writing, what HMG’s actual position is in respect of their claims. We felt that this might have gone some way to help to alleviate the anxiety and upset that has been caused to them by the allegations about Government inaction and/or interference (e.g. the Telegraph’s revelations regarding former Prime Minister Blair), as well the apparent turnaround in HMG’s policy and attitude toward them since Mr. Brown provided them with the dedicated FCO Unit.
We requested also that Government lawyers provide to us a written legal opinion on why HMG is of the view that assets belonging to Gaddafi - as well as those other officials of his regime involved in the supply of Semtex to the IRA who were defendants in McDonald - now frozen by the UK, may not be used to satisfy our Clients’ claims for compensation. We hoped that this would better inform the UK Victims as opposed to HMG’s ipse dixit assertion that it just cannot be done which, so far, is all that they have been offered.
Finally, we submitted a reasonable and suitable proposal, to which there is no apparent legal bar, that involved the use of Gaddafi’s, and those others responsible for the provision of Semtex to the PIRA, frozen assets with either Libya’s consent or recourse to international arbitration.
129. On 23 October 2014, Nigel Dodds MP (DUP) asked Mr. Hague:
“On 30 April, I and several colleagues met the Prime Minister to talk about the issue of UK compensation for the victims of the Gaddafi regime’s sponsorship of IRA terrorism. It was a very positive meeting and subsequently the Prime Minister announced the appointment of Sir Kim Darroch to make progress on the issue with the Libyan authorities. May we have a statement to update the House on what progress has been made?”
Mr. Hague replied:
“It is open to the right hon. Gentleman to ask questions of the Foreign Office. He will appreciate how difficult the situation has been in Libya in recent months, with the violence between militias. Libyan ministries have not easily been able to function, so it has been a difficult period to take the issue forward, through no fault of anyone in the UK. I will convey his request for an update to my colleagues and I suggest that he also asks the relevant questions in September last year.”
130. On 5 December 2014 Lord Empey put this written question to HMG:
“Lord Laird asks Her Majesty’s Government what is the current state of discussions with the relevant authority in Syria concerning compensation for those in Northern Ireland who were injured as a result of explosives and guns that were supplied to the IRA.”
Baroness Anelay, Foreign and Commonwealth Office (Con) respond on behalf of HMG:
“We have been discussing this matter with the Libyan authorities, not the Syrian government. While we do not intend to negotiate a compensation settlement with the Libyan authorities, once stability returns, and our Embassy re-opens, we will again encourage the Libyans to engage with UK victims seeking redress, including those seeking compensation and their legal representatives. The Prime Minister, my right hon. Friend the Member for Witney (Mr Cameron), has said that he is committed to doing this and has asked the National Security Advisor to lead cross-government efforts to engage the Libyans on reconciliation initiatives. The Government will also continue to promote broad and lasting reconciliation between Libya and affected UK communities.”
131. On 12 December 2014, Sir Kim responded that he “was not sure about the value” of the position paper we had requested for the UK Victims and he did not give any reasonable or considered response to our proposal in respect of frozen assets. He also said as follows:
“You asked me for clarity on the Government’s position in relation to your clients. As I explained in our recent meeting, we are trying to bring about progress in the cases of all of the victims of Qaddafi-sponsored IRA terrorism; but we are not prioritising any specific group. My understanding is that this is a long-standing Government position. Legacy issues are an important element of our bilateral relationship with Libya and everyone in Government, including the FCO, remains committed to addressing them. As you know, the Prime Minister has asked me to build a dialogue with the Libyan authorities on reconciliation initiatives.”
132. On 10 February 2015, we wrote our final letter to Sir Kim and HMG. It is worth quoting here in full:
“You write of legacy issues, the bilateral relationship and reconciliation initiatives. The reality is that while these may be HMG’s priorities, they are not the victim claimants’. Of course, the victim claimants also want general broader reconciliation. However, what they need is closure on their legal claim and parity compensation (as per the April 2011 Benghazi Agreement) as many are unable to work or unable to pay for much needed medical care or adaptions to their home so that they can live with their disabilities. The IRA bombs built with Libyan Semtex blew their lives apart. Money cannot replace lost loved ones or limbs but it can help them, to a small degree, repair and rebuild. They need compensation.
While we can interpret the fact that you do not mention the word compensation in connection with your explanation of Government policy as meaning that you are no longer pursuing it, HMG have a moral obligation to state this clearly to the Victim Claimants without obfuscation. To do otherwise is simply wrong.
In the meantime, subject to any clear and written explanation of HMG’s policy to the Victim Claimants, we can only do our best to interpret it as follows: that HMG no longer has any intention of pursuing compensation for the victims….
In respect of your approach ‘to bring about progress in the cases of all of the victims of Qaddafi- sponsored IRA terrorism; but we are not prioritizing any specific group’, this is fundamentally misconceived for the following reason:
Only our clients, the 150 McDonald claimants, have a case against the state of Libya based on the proceedings issues before the US District Court, brought to an end for the US victims by the Libya Claims Resolution Act 2008 (LCRA), and advanced as to the UK citizens by virtue of the agreement signed by the Libyan Government in Benghazi in April 2011 (the ‘Benghazi Agreement’) that stated its commitment:
‘To reach a morally just and appropriate settlement of the existing UK claimants in the McDonald case on a parity and non-discrimination basis, in line with other US victim claimants in the same action who have already received compensation pursuant to the principles of the Libyan Claims Settlement Act in the USA.’
It is deeply tragic that other possible victims of Libyan-backed IRA terrorism, not named in the McDonald Complaint, do not have a case to be settled but that is only as a result of potential claimants not rising to the publicised call to join the McDonald action and the LCRA (which, at best, HMG failed to properly lobby USG to ensure it provided for UK victims of Libyan terrorism and, at worst, as has been alleged, the LCRA was brokered by a former British Prime Minister, with the support of the FCO). If it were not for the LCRA, the McDonald litigation had every chance of success in securing compensation. Not only for those on the writ, our clients, but, as a class action, it had the potential to compensate every victim of Libyan backed IRA terrorism who may have been members of a wider-class. Because of either HMG’s failure to act or the alleged meddling of Tony Blair and the FCO, this potential class of people were arguably denied any chance of a future legal claim against Libya.
As regards your understanding that it is a long-standing Government position not to prioritise any specific group, this is not borne out by the evidence:
If we go back to 19 November 2008, Lord Bach was asked the following Parliamentary Question (PQ) by Lord Tebbit: ‘Whether in view of the proposed settlement [the LCSA] concerning crimes committed against United States citizens with Libyan support, they will assist British nationals seeking compensation from Libya in the courts of the United States in respect of crimes committed by terrorists trained or armed by Libya.’ Lord Bach, then Parliamentary Under-Secretary of State for Justice, replied:
‘During the course of negotiations between the US and Libya, the Government made representations to the US Administration that existing UK claimants with claims before US courts against Libya for its past sponsorship of IRA terrorist acts [the McDonald case] should be included in the recipients of any compensation package. But in the event, this proved not to be possible.’
Based on Lord Bach’s response -- questions of the effectiveness and sincerity of HMG’s efforts aside -- it is clear that, in early 2008, HMG was directly lobbying for compensation for our clients, the McDonald claimants, and not for any other undefined group of victims.
Following lobbying by our campaign, this was followed on 6 September 2009 by Prime Minister Gordon Brown dedicating FCO support, through a dedicated unit, to support and foster our efforts to settle our Clients’ case. It is informative, that at that time, the present Coalition Government’s former Foreign Secretary, William Hague, commented ‘the British government should have provided active support ... for families of the victims of IRA terrorism in their pursuit of compensation ... as a matter of course, not as a result of public pressure’.
Indeed, on 14 September 2009, Mr. Hague asked the then Foreign Secretary, David Miliband, in a PQ to confirm the level of support HMG would provide our Clients. Mr. Miliband gave the assurance that ‘the new FCO Libya IRA Compensation Unit’ would support our efforts on our Clients’ behalf to secure compensation.
In a response to a Parliamentary question by the Rt. Hon. Nigel Dodds MP regarding compensation on 2 March 2011, Prime Minister David Cameron confirmed that an ‘FCO-Led Unit’ was “still working on that issue [obtaining compensation for the victim claimants] and it is vital that it continues to go on doing that”.
In 2009, Government Policy was to directly support, via a dedicated FCO Unit, the settlement of our Clients’ claims through compensation. Prime Minister Cameron then adopted this policy on taking office in 2010. Indeed, fully aware of Mr. McCue’s plan to meet the new Libyan leaders during the civil conflict, the Prime Minister wrote Mr. McCue a personal note of encouragement. However, as will be displayed below, further to the 2011 Libyan Civil War, the downfall of Gaddafi and the coming to power of a new Libyan Government, the HMG policy later evolved to general reconciliation, for which compensation was only a means to that general end. It was only recently, and years later, that this fully changed to become the policy you have now confirmed; reconciliation and the resolution of legacy issues between the victims of Libyan/IRA terrorism and Libya, with no mention of any compensation by Libya to its victims.
Following the 2011 Libyan Civil War, Lord Howell, Minister of State at the FCO, in a response to a Parliamentary question from Lord Laird on 3 October 2011, again confirmed that the matter [Victim Claimant compensation] remained ‘an important bilateral issue between the UK and the new Libyan authorities.’ The Secretary of State for Foreign and Commonwealth Affairs, Alastair Burt, reaffirmed this in a response to a Parliamentary question on 10 October 2011, when he said that ‘compensation for those affected by [Libya/IRA] terrorism will be an important bilateral issue between the United Kingdom and the new Libyan authorities’. However, contrary to statements of its officials, by this time, it appeared that HMG’s policy had widened and been watered down from direct and focused support for our Clients’ claims to broader reconciliation for all those UK citizens affected by Libyan/IRA terrorism (in the context of a resetting of relations between the UK and ‘New Libya’ following Gaddafi’s downfall).
On 11 November 2013 Baroness Warsi, then Senior Minister of State for Foreign and Commonwealth Affairs, in response to a PQ from Lord Empey on the matter of compensation for victims of Libyan/IRA terrorism said: ‘The British Government's focus is on developing a broad and long lasting reconciliation between Libya and affected areas in the UK. The Government has raised these reconciliation objectives and Qadhafi’s support of terrorism with the Libyan government on a number of occasions this year.’ (Emphasis added). It is notable that the word compensation was pointedly ignored and reconciliation emphasised instead.
A shift in HMG policy became even more apparent when in response to a further PQ from Lord Empey on 22 January 2014, Baroness Warsi said:
‘The Government is not involved in any negotiations with the Libyan government on securing compensation payments for the British victims of Qadhafi sponsored Irish Republican Army (IRA) terrorism. The Government considers individual compensation claims that are being pursued to be a private matter and best pursued directly with the Libyan government.’
It seemed from this response that HMG’s policy was no longer to pursue/support compensation for UK claimant victims of Libyan/IRA terrorism. The question of compensation was now to be a private matter between the victims and the State of Libya (which, by HMG’s own admission, does not have a functioning government with whom we can negotiate with).
This became more evident when, in response to a PQ by Lord Empey on 25 March 2014, Baroness Warsi said: ‘My Lords, the Government will continue to encourage the Libyan Government to engage with UK victims seeking redress, including those seeking compensation and their legal representatives. More broadly, we will continue to promote wide and lasting reconciliation between Libya and UK communities affected by Gaddafi sponsored terrorism.’ (Emphasis added).
This is not something our Clients, the Victim Claimant victims, should have to divine for themselves. Once again, we ask that you reconsider our request for a position paper that plainly and simply details the evolution of HMG’s policy from the inception of the FCO Unit dedicated to supporting our Clients to where it is now.
The clear change in government position and its adverse effect on UK victims, UK interests and foreign policy, is clearly an appropriate issue to be placed under the microscope especially when government officials have clearly made contrary statements that appear to mislead and government actions have been out of kilter with stated policy. With numerous on-going inquiries into HMG’s relationship with Libya, including Prime Minister Blair’s role within it, do you feel the quagmire around this issue would now be better resolved, rather than through this current channel, by some more public and/or formal platform? We are sure the Victim Claimants would readily support an inquiry or commission of some nature directed at resolving and clarifying this matter if you felt, after you having had the thankless task of familiarising yourself with the contradictions and shenanigans surrounding HMG’s actions, that was a better way of making progress.”
L. Present (February 2015 onwards)
133. On 12 February 2015, Mr. Dodds put this written question to Mr. Hague:
“What recent discussions he has had with the Libyan government on the campaign for equitable compensation for victims of IRA terrorism sponsored by Colonel Gaddafi's government and the decision by the Libyan Parliament to revoke a law banning officials from that government from re-entering the political realm.”
Tobias Ellwood MP (Con), Parliamentary Under-Secretary, Foreign and Commonwealth Office, answering on behalf of Mr. Hague responded:
“While we do not intend to negotiate a compensation settlement with the Libyan authorities, once stability returns, and our Embassy re-opens, we will again encourage the Libyans to engage with UK victims seeking redress, including those seeking compensation and their legal representatives. The Prime Minister, my right hon. Friend the member for Witney (Mr Cameron) is committed to doing this and has asked the National Security Advisor to lead cross-government efforts to engage the Libyans on reconciliation initiatives. The Government will also continue to promote broad and lasting reconciliation between Libya and affected UK communities. The UK has not formally discussed with the House of Representatives their decision on the political isolation law. Only an inclusive political solution can resolve the on-going hostilities and political polarisation in Libya. The UK has urged all parties to cease all hostilities and support the UN process led by the Special Representative of the UN Secretary General, Bernardino Leon.”
134. On 3 March 2015, Mr. Dodds put this written question to Philip Hammond MP (Con), the Foreign Secretary: “what steps he is taking to (a) encourage stability in Libya and (b) allow compensation to be paid to victims of terrorist acts sponsored by the Gaddafi regime.”
Mr. Ellwood, replied on behalf of Mr. Hammond:
“The UK Government, working closely with our international partners, continues to support the people of Libya and the efforts of the Special Representative of the UN Secretary General for Libya, Bernardino Leon, to resolve the political crisis. Since 2011, the UK has also funded much practical support to Libya. The current focus is on contributing to UN political settlement efforts through the UK Special Envoy to the Libyan Political Transition, Jonathan Powell. The UK is also providing expert advice to the Constitutional Drafting Assembly; helping to enhance the quality and coverage of media reporting of events in Libya; providing support in the areas of border controls and humanitarian demining; and helping Libyan institutions to effectively manage their public finances. While we do not intend to negotiate a compensation settlement with the Libyan authorities, once stability returns and our Embassy re-opens, we will again encourage the Libyans to engage with UK victims seeking redress, including those seeking compensation and their legal representatives. The Prime Minister is committed to doing this and in May 2014 asked the National Security Advisor to lead cross-government efforts to engage the Libyans on reconciliation initiatives. The Government will also continue to promote broad and lasting reconciliation between Libya and affected UK communities.”
Mr. Dodds also asked Mr. Hammond:
“Following engagement with ourselves, the Prime Minister appointed the National Security Adviser to engage with the Libyan authorities on reconciliation and finding ways forward for compensation for victims of IRA terrorism that was sponsored by the Gaddafi regime. Will the Foreign Secretary update the House on what progress the National Security Adviser has made in that work?”
Mr. Hammond replied:
“I regret to have to tell the right hon. Gentleman that the reality on the ground in Libya is that there is no authority to engage with. I am afraid that at the moment I can report no progress on those measures. The urgent need now is to see a Government of national unity created and for the Libyan people to deal collectively with the threat to their society that is posed by the establishment of ISIL cells. Once we have such an authority in place, we will of course re-engage with that agenda.”
135. On 15 July 2015, Mr. Donaldson asked the Prime Minister in a Commons Debate:
“Enniskillen, Portadown, Lisburn, Belfast, Manchester, Warrington, Canary Wharf and the Grand hotel, Brighton are all places synonymous with the use by the IRA of Semtex explosives supplied by the Libyan Government to maim and murder thousands of innocent people in the United Kingdom. The American Government have secured compensation from the Libyans for the victims of state-sponsored terrorism. In the light of the recent political agreement in Libya, will the Prime Minister now commit to press the case for UK victims of state-sponsored Libyan terrorism to be given compensation as well?”
The Prime Minister replied:
“Let me commend the right hon. Gentleman for raising this issue time and time again; he is absolutely right to do so. The fact is that it was Libyan Semtex that was used, and frankly could still be being used by dissident IRA groups because so much of it was delivered by Colonel Gaddafi and his hateful regime. Yes, we have raised with the Libyan Government in the past the issue of trying to seek compensation, and when there is a Libyan Government—there is not yet one in place—we will certainly raise it again.”
136. On 25 June 2015, Lord Empey put this written question to HMG: “whether they have discussed with the government of Libya the possibility of compensation for United Kingdom victims of terrorism carried out using weaponry supplied by the former Gaddafi regime to the IRA; and if so, when.”
Baroness Anelay responded on behalf of HMG:
“We do not intend to negotiate a compensation settlement with the Libyan authorities. Once stability returns and our Embassy re-opens, we will again encourage the Libyans to engage with UK victims seeking redress, including those seeking compensation, and their legal representatives. The Prime Minister, my right hon. Friend the Member for Witney (Mr Cameron), is committed to doing this and has tasked the National Security Advisor to lead cross-government efforts to engage the Libyans on reconciliation initiatives. The British Government will also continue to promote broad and lasting reconciliation between Libya and affected UK communities. The UK has urged all parties to cease all hostilities and support the UN process led by the Special Representative of the UN Secretary General, Bernardino Leon.”
V. COMMENTS & QUESTIONS
The Committee will find our comments, and questions, interspersed throughout the narrative of events detailed in the History at Section IV supra. For ease of reference, these are repeated here:
Comment 1:
Was Gaddafi’s support of the PIRA and issue of compensation for its UK Victims discussed during Blair’s meeting with Gaddafi in March 2004? Mr. Blair’s reply to Mr. Burnside’s parliamentary question of 1 April 2004 neither confirms nor denies that it was (see para. 32). If it was, why would Mr. Blair not confirm this? If it wasn’t, why would a UK Prime Minister not raise such an issue of national importance? Mr. Blair’s failure, or unwillingness, to do so would stand in stark contrast to the fact that another matter of Libyan terrorism, that of WPC Fletcher, evidently – and quite rightly – was raised, and that he appears to have had no issue lobbying on behalf of UK business, notably Shell (see para. 31). If this were the case, what were Mr. Blair’s or HMG’s sensitivities against, or motivations for not, doing so?
Comment 2:
On 14 June 2004, Mr. Straw told Parliament that HMG had no plans to raise the issue of compensation for the UK Victims with the United Nations (see para. 33). Why, in contrast to its support of the victims of Lockerbie, was HMG unwilling to raise the issue of compensation for the UK Victims with the UN?
In brief, through lobbying at the UN, HMG quite rightly provided the following assistance to the victims of Lockerbie:
– 1992 the UN imposes diplomatic sanctions, embargoes on aviation equipment and flights from Libya, and arms supplies and training excluding financial resources derived from the sale of petroleum products and agricultural products are imposed on Libya when it refuses to extradite two citizens suspected of involvement in the Lockerbie bombing. The sanctions call for compensation to be given to the victims of Lockerbie.
– 1993 Further sanctions freeze all financial assets belonging to the public authorities of Libya.
– 1999: UN sanctions are suspended and diplomatic relations with Britain are reinstated after Libya hands over the Lockerbie suspects for trial in the Netherlands under Scottish law.
– 2002: FCO Minister O’Brien visits Libya and includes compensation for the Lockerbie victims on the agenda.
– March 2003 further talks in London between the US, UK and Libya take place, the aim of the talks are compensation for the Lockerbie victims.
– August 2003: Libya signs a deal worth $2.7bn to compensate families of the Lockerbie bombing victims and writes to the UN Security Council admitting responsibility for the bombing.
Mr. Blair’s government’s lack of support for the UK Victims also stands in stark contrast with previous UK Government support in securing compensation for the family of WPC Fletcher, which can be summarized as follows:
– 1984: diplomatic relations were severed with Libya after Yvonne Fletcher was shot.
– 1991: Gaddafi apologises for the killing and the Foreign Office demands that Gaddafi must hand over the killer.
– In 1999: to re-establish diplomatic relations with Britain, the Libyan regime accepted “general responsibility” for the killings and agreed to compensate WPC Fletcher’s family and offered £250,000 in compensation to the parents of Yvonne Fletcher.
(N.B. On 22 October 2012, Lord Laird also asked the Coalition Government whether it would provide the same support to the UK Victims as it did to the victims of Lockerbie. The reply, as with Mr. Straw’s, was no. (See para. 98)).
How and why did Mr. Blair’s government distinguish between the UK Victims (estimated to number 3,500) and the victims of Lockerbie (270 fatalities) and the family of WPC Fletcher? HMG has never explained this, despite being asked to do (see para. 39). On behalf of the victims of Lockerbie and the family of WPC Fletcher, HMG was prepared to sever diplomatic relations with Libya, and indeed did so, to secure fair treatment, justice and accountability. It appears that Mr. Blair and HMG were not even willing to discuss compensation for the UK Victims with Gaddafi in 2004. This begs the questions: why?
Comment 3:
As in March 2004, it appears that, despite full knowledge of its importance, Mr. Blair failed, or was unwilling, to raise the issue of compensation for the UK Victims with Gaddafi at their meeting in May 2007. Again, this stands in stark contrast to his willingness to lobby on behalf of UK business and even the plight of foreign nationals, in this instance Bulgarian nurses, but not our own. (See para. 37). As before, given the significance and national importance of this issue, what were Mr. Blair’s or HMG’s sensitivities against or motivations for not doing so?
Comment 4:
The following is apparent from: (a) media reports in early 2008 (see paras. 40 and 41); (b) the US Embassy in Libya’s memo to USDOS dated 12 March 2008 (see para. 42); (c) the US Embassy in Libya’s memo to the US authorities dated 17 March 2008 (see para. 43); and (d) Sir Vincent’s email to Mr. Blair’s office dated 8 June:
- Gaddafi was upset by the potential value of litigation brought against him by victims of his terrorism in the US courts -- any reasonable estimate is that he was facing judgments ordering him to pay damages of tens of billions of dollars – and the US National Defense Authorization Act (2008), which was passed in January 2008 and allowed seizure of Libyan assets in the US
- In March 2008, Gaddafi told US oil company CEOs to engage members of the US Congress and the Administration on the matter or he would dramatically reduce Libya's oil production and/or expel US oil and gas companies from Libya, stating Libya would rather "keep its oil in the ground" and wait for a more favourable overseas investment climate than continue high levels of production in an environment in which sizeable portions of its oil-related assets could be seized. In short, Gaddafi threatened to significantly curtail its oil production or expel US oil companies from Libya as a means to penalize the US. (See para. 42).
- Shortly thereafter, that same month, Obeidi began discussions with the US authorities regarding a comprehensive settlement of all legal claims pending in US and Libyan courts and in doing so, to strengthen the Libyan position, raised that matter of the April 2006 judgment of the Libyan Courts against the US and UK which ordered them to pay damages of USD $22 billion for their role in the 1986 bombings of Tripoli and Benghazi. (See para. 43).
- Mr. Blair (who was then out of office) promised Gaddafi that he would intervene with President Bush on Gaddafi’s behalf to ensure this issue was resolved. (See para. 47)
- Mr. Blair did intervene with President Bush to get this issue resolved. (See para. 47).
- HMG were eager to get this issue resolved and “move on”, even though it was aware that the UK Victims would be affected by them. (See para. 47).
- HMG were not involved in the talks – as confirmed by Sir Vincent -- between the US and Libya on this matter (this lack of involvement obviously did not include Mr. Blair who was then out of office). (See para. 47).
- HMG were eager to “move on, and help Gaddafi do so, for the following reasons (though there may have been others): (a) it wanted to avoid a judgment by the Libyan courts for the UK and US to pay damages of $22 billion for its role in the 1986 bombing of Tripoli; (b) it wanted to safeguard the City of London as an investment hub for Libya and its Sovereign Wealth Fund, as it feared that, if it did not assist Gaddafi in this matter, that London would be treated as New York was when Libya withdrew $9 billion of investment from the USA. (See para. 47).
- HMG were not willing to intervene with Gaddafi on behalf of the UK Victims, but it was willing to intervene on behalf of MBDA Missile Systems to ensure that Libya signed a contract worth £400 million. (See para. 47).
These documents are also informative because they clearly illustrate the difference between the US and UK in its willingness to ultimately ensure US victims of Gaddafi terrorism were justly compensated, even at risk of jeopardizing US business interests. In contrast, HMG pursued its détente and UK business interests with Libya (see Shell and Mr. Blair’s meeting with Gaddafi on 24 March 2004 (see para. 31), BP and Mr. Blair’s meeting with Gaddafi on 29 May 2007 (see para. 36) and Sir Vincent’s request related to MDBA Missile Systems (see para. 47)) without first ensuring that the UK Victims claims were addressed and settled. Why did HMG fail or choose not to do so? Why did HMG not seek to negotiate its own UK/Libya Claims Settlement Agreement before normalizing relations with the Gaddafi regime? One can only reach the reasonable conclusion that HMG refused to do anything that might have risked UK business interests and prioritized the profits of private corporations over the needs of UK Victims of terrorism. The tragedy is, that as the US proved, if the UK had stood firm, both UK business and the UK Victims could have been protected. Where the US succeeded, the UK, if only it had stood up to Gaddafi, could have too. This is a sad indictment of UK foreign policy and diplomacy.
Comment 5:
It appears that Mr. Welch, who led the US/Libyan negotiations on the LCSA, was quick in his response to our letter of July 2008 (see para. 48) to dismiss any proposal that UK Victims should be included in the settlement. His reasoning for doing so was spurious at best: “there are significant differences between the joint US-UK initiative in the UN Security Council concerning the Lockerbie incident and the claims at issue presented by the McDonald litigation.”
In simplest terms, the fact that there was a UN Security Council Resolution in respect of Lockerbie was only supportive of any negotiation to include UK victims of Lockerbie in the LCSA settlement. It was not, by any means, a legal prerequisite. As such, there was no bar to negotiating for the inclusion of the UK Victims in the LCSA’s terms. The fact is, the US was not precluded from doing so. It simply chose not to. If, as Mr. Brown wrote in his letter of 11 September 2008 (see para. 52), HMG did make “representations to the US Government that UK claimants in the cases before the US courts against Libya for its past sponsorship of IRA terrorist acts should be included in the recipients of any compensation package” then why did the US government, with which HMG claims to have a ‘special relationship’, decline to do so, and why were Mr. Welch and USDOS so quick to reach that decision?
Mr. Brown wrote that the reason for this was “that international and US law do not permit the US Administration to espouse the claims of foreign nationals” and that “also relevant to the US decision was their assessment of how likely it would be that claims would fall within the jurisdiction of the US courts, and how likely it would be that they would succeed”. Firstly, there simply is no international or US law that prohibits the US from espousing the claims of foreign nationals. This is just USDOS policy; it simply chose not to. Secondly, in respect of any assessment of the merits of McDonald and the probability of its success, these were the same regardless whether the claimants were UK or US nationals. As such, this point was irrelevant. Even so, McDonald had excellent prospects of success and jurisdiction was not at issue challenged by the Defendants. As to the strength of the evidential case, Gaddafi had admitted publicly to providing Semtex to the PIRA and there is an abundance of evidence linking that Semtex to the bombs that killed or injured thousands of UK nationals. That being so, it begs the question of whether there was another reason that the US would not include the issue of compensation for the UK victims in its LCSA negotiations?
Perhaps the answer lies with our meeting with USDOS on 6 June 2008 (see para. 45) at which we were told that USDOS was not even aware of the UK Victims’ claims, some three months after Obeidi first proposed the LCSA (see para. 43) and only two days before Sir Vincent emailed Mr. Blair’s office to inform him that ‘HMG is not involved in the talks” (see para. 47). Did HMG ever actually make representations to the US to ensure that the UK Victims claims were included in the LCSA? We have no reason to believe that Mr. Brown was being untruthful in his letter to us of 11 September 2008, but it is possible that he was misinformed – as he certainly was as to the state of law regarding the ‘US’ ability to espouse the claims of foreign nationals. We have certainly never seen any evidence that HMG made such representations to the US, and we would respectfully request that the Committee ask HMG to produce it.
Returning to the question of why Mr. Welch and USDOS were so quick to dismiss any proposal that UK victims should be included in the LCSA settlement, the answer may be that, unless HMG made a request that they do so – and were strong in that request – there was simply no benefit to the US if it did so. It only risked antagonizing Libya, jeopardizing US business interests and risking a comprehensive settlement for compensation for US Victims of Gaddafi terrorism. However, this should still not absolve any failure by HMG to make every effort to ensure that the US and Libya included the UK victims in the terms of the LCSA. The facts suggest that, despite Mr. Brown’s assurance, no such representation were made or, if they were, they were merely token.
Comment 6:
Mr. Welch’s comments to the media made on 14 August 2008 (see para. 51) strongly implied that the LCSA Fund was capitalized by private parties, most likely the US oil companies who lobbied Congress alongside Libya for the waiver to the National Defense Authorization Act 2008 (see para. 41). This raises the question of why HMG did not approach UK oil companies who profited hugely from their dealings with the Gaddafi Regime to share those profits, just as their US counterparts did, with the UK Victims? As presented in detail supra, the price for UK businesses to trade with Gaddafi’s Libya was seemingly for the UK to drop any request for Libya to pay compensation to the UK Victims. UK corporations have arguable benefited and generated huge profits at the expense of the UK Victims without giving anything in return.
Comment 7:
In his letter of 11 September 2008 (see para. 53), Mr. Brown wrote to us that: When it became clear that negotiations were taking place between the US and Libya, the UK Government made representations to the US Government that UK claimants in the cases before the US courts against Libya for its past sponsorship of IRA terrorist acts should be included in the recipients of any compensation package. But in the event, it “proved not to be possible” for the US Government to make “representations to the US Government that UK claimants in the cases before the US courts against Libya for its past sponsorship of IRA terrorist acts should be included in the recipients of any compensation package” because “international and US law do not permit the US Administration to espouse the claims of foreign nationals”.
“Espousal” is a diplomatic term of art whereby an individual that has been injured in some way by a foreign state asks their government to assume the claim on their behalf, so that it may be more effectively fought in court, one sovereign against another. It is discretionary and rare, and states often will elect not to extend espousal as it may interfere with its foreign relations priorities. However, there was nothing to prevent the UK government from espousing its own nationals’ claims. Moreover, the US could have made non-formal, non-legalistic diplomatic representations on behalf of the UK Victims if they had chosen to, as is common practice. In short, while it may be accurate that the US Administration would ordinarily be reluctant to formally espouse the claims of foreign nationals, with all of the attendant legalistic intricacies of that particular phrase, there is nothing in either international or US law preventing the United State government from raising concerns or making representations on behalf of friendly nations -- in fact, this is a backbone of modern international relations, in which the US, as the sole Western superpower, tries to influence events in its sphere of interest on behalf of itself and its allies.
Recent examples could include the US expressing concerns to China about its aggressive behaviour in the South China Sea (on behalf of its Asian allies); or the US presence at negotiations between the European Union and Greece about debt restructuring (keeping a watchful eye as the largest donor to the IMF). Moreover, the US (like all nations) can choose to act as neutral mediator between two countries who may have strained relations, a role explicitly recognized by USDOS. However, there are even more concrete examples of where the US brought its influence to bear in regards to claims for financial reparations by foreign nationals: two prominent ones are the US' (self-interested) efforts to achieve a satisfactory result in the complex negotiations regarding Japanese reparations from World War II to its Southeast Asian neighbours, and more recently, the specific provision that foreign nationals would be permitted to make claims from the September 11th Victims Compensation Fund.
Mr. Brown also wrote to us that: HMG did not consider it “appropriate” for it to enter into government-to-government (G2G) negotiations with Libya to settle the UK Victims claims. This begs the questions of not only why was it appropriate for the US to enter into G2G negotiations on behalf of its victims but not the UK, but also why has HMG never had any issue doing on behalf of UK business? HMG’s position in this regard was, and in fact continues to be, shameful and astonishing.
Furthermore, the UK has, in the past, elected to use its espousal powers on behalf of commercial interests. In the 1952 Anglo-Iranian case, the Government of the United Kingdom brought proceedings against Iran in the International Court Justice. It alleged multiple violations of international law, including Iran’s refusal to arbitrate pursuant to a previously agreed oil concession agreement. Iran successfully challenged the treaty bases of jurisdiction invoked by the United Kingdom, so the Court was not empowered to pass upon the merits of the dispute, and the case was dismissed. The Mossadegh Government was eventually overthrown; the Shah, who had fled abroad, returned; and it is widely accepted that in the overthrow of Mossadegh, the intelligence services of the United States and the United Kingdom had a guiding hand. Thereafter the Iranian Oil Consortium Agreement was negotiated, on the one part between Anglo-Iranian and a group of the major international oil companies, and on the other part the Iranian Government. The export of Iranian oil resumed unhindered. That regime flourished until the Iranian revolution of 1979. The Consortium Agreement was ruptured in its wake. The claims of the successor to Anglo-Iranian, British Petroleum, went to ad hoc arbitration. The BP case was eventually settled, while claims of the American oil companies before the Tribunal were adjudicated and paid. In short, why has HMG being willing to espouse the claims of British business with foreign powers, but refuses to do so on behalf of the UK Victims?
Comment 8:
On 3 October 2008, it was reported that “Libyan ministers had in recent weeks called in representatives from US, French and other international firms as well as Libyan companies, to put pressure on them over the [LCSA] fund” (See para. 54). It is only conjecture but it is possible that, given the prevalence of UK business interests in Libya at that time, such international firms might have included UK companies. If so, could UK companies have capitalized the LCSA Fund as a cost of continuing to do business in Libya and, in doing so, ensured that the US Victims were compensated while the UK Victims received nothing? The perversity of such a scenario would be that it is arguable that, if but for HMG’s desire to protect UK business interests in Libya, it may have negotiated its own LCSA Fund into which UK business could have paid to ensure the UK Victims were compensated.
Comment 9:
Mr. Brown’s letter to us of 7 October 2008 (see para. 56) is another example of his and Mr. Blair’s governments’ seeming ineffectiveness, in comparison to US dealings with Libya, in the negotiations of the UK’s détente and new relationship with the Gaddafi regime. More pertinent however is their ineffectiveness in comparison with previous UK governments. Whereas previous UK governments had, when Gaddafi resisted, severed diplomatic ties Libya and lobbied the UN to ensure justice and compensation for the victims of Lockerbie and the family of WPC Fletcher, Messrs. Blair and Brown’s Governments appeared resigned to do nothing and simply accept that, in respect of the UK Victims, Libya “consider[ed] this matter closed”. Such opposition did not prevent previous UK governments from doing what was right when Libya “strongly opposed” or would not “support or be prepared to discuss a bilateral settlement” when negotiating justice for the victims of Lockerbie or the family of WPC Fletcher. What is the reason for this disparity? It appears that HMG was never willing to fight for the UK Victims as it had previously fought for others. They were simply forgotten. They are the forgotten victims. As Mr. Dodds said in his speech to Parliament on 22 October 2008 (See para. 57): “The inactivity of our Government in seeking to support the victims in their just quest for compensation and justice as a result of Libyan-sponsored IRA terrorism contrasts sharply with the various precedents that they themselves have set.”
Mr. Dodds goes on point out that:
“It also contrasts sharply with the activities of other Governments, particularly with the proactive approach of the US Government … It appears that the Government’s attitude is ‘Let’s not rock the boat. Let’s not do anything that will unsettle things diplomatically.’ That approach is of course not adopted by other Governments, most notably those of the US, France and Italy; it appears to be the unique attitude of the UK Government. To their shame, they sit alone in that attitude, betraying and letting down the victims of terrorism.”
To add to Mr. Dodds point, it is important to provide the Committee with the following further information:
- On 19 September 1989, a bomb explosion caused UTA Flight 772 to break up over the Sahara Desert, killing 170. Six Libyans were tried in absentia in the French criminal system and convicted. The Paris Assize Court subsequently awarded the families of the UTA victims sums ranging from €3,000 to €30,000 depending on their relationship to the dead. In 2003 the French threatened to veto the lifting of UN sanctions until the offer of compensation that had been received from Libya was increased. In 2004, Libya agreed to pay $170 million in compensation.
- On 10 August 2004, Libya agreed to pay $35m in compensation to the German victims of the 1986 Berlin bombing of La Belle Discotheque that killed two US soldiers and a Turkish woman and injured 229 other people. The German government called on the Libyan government to accept responsibility and provide compensation to the victims. On August 17, 2003, newspapers reported that Libya had signalled to the German government that it was ready to negotiate compensation for the bombing with lawyers for non-US victims. On August 10, 2004, Libya concluded an agreement to pay a total of $35 million compensation to Germany.
N.B. It appears Mr. Dodds inadvertently substituted Italy for Germany in his example but the point remains the same and just as powerful: if the US, French and German governments could stand up for and adequately represent the interests of their victims of Gaddafi terrorism, why didn’t HMG?
Comment 10:
Mr. Dodds speech to Parliament on 22 October 2008 (see para. 57) makes another important point that should be drawn to the Committee’s attention:
“This country has suffered more from terrorism over the past 30 years than any other nation in Europe, and perhaps the world, in terms of the length and intensity of violence inflicted. Recently, there has been unprecedented intervention in the banking and financial sectors. It has been all hands to the pump. I do not disagree with many of the actions taken in the current emergency, such as the setting aside of billions, but many victims have said to me recently that it is simply not tenable for the Government to say that they can and will do nothing to achieve justice through compensation for the victims of Libyan state-sponsored terrorism. In my view and that of many victims, the Government must fulfil that moral obligation. Such action will help bring closure to the deep and long-standing tensions between the United Kingdom and Libya and smooth the way to improved trade and business relations, but the issue must be dealt with. It will not go away…. As right hon. and hon. Members will know, a process is under way in Northern Ireland to consider how to deal with issues from the past. An awful lot of time and effort has been put into recognising that such issues will not simply disappear; they must be addressed. Just as that must be acknowledged, the issue of compensation and justice for the victims injured by the Libyans’ actions in supporting the IRA cannot be swept under the carpet. It must be addressed. We will have no closure or settlement of the issues until that boil is lanced. If it is not dealt with properly, the spectre of the victims and their suffering will continue to haunt us. It will not simply go away.”
Comment 11:
In reply to Mr. Dodds speech to Parliament on 22 October 2008 (see para. 57) and his question of whether the British Government will pursue a bilateral settlement with Libya to obtain compensation for the victims of IRA terrorism who have brought claims before the US courts, Mr. Rammell’s response was:
“The Government considered that very carefully at length and on a number of occasions, and we understand that it is a difficult and sensitive matter for those involved. Although the Government made diplomatic representations to the US Government about their agreement with Libya, the Government’s position remains — I respect his view, of course — that we will not seek to enter into a bilateral discussion with Libya on this matter.”
Notably, Mr. Rammell avoided giving any reason why HMG would not pursue a bilateral settlement with Libya.
Comment 12:
In his reply to Mr. Dodd’s parliamentary speech of 22 October 2008 (See para. 57), Mr. Rammell stresses:
“That the UK Government recognised the importance to the UK victims of their US legal claims, which is why we made real efforts to raise their interests with the US Government. When it became clear that the negotiations were taking place between the US and Libya, the UK Government made a number of diplomatic representations urging the US Government to include, on the list of recipients of any compensation package, UK claimants who had brought cases in the US against Libya.”
However, this does not answer the outstanding question of, if so, why were USDOS not aware of the UK Victims’ claims when we met with them on 6 June 2008, only a month before the LCSA was agreed (see para. 45)?
Comment 13:
In his reply to Mr. Dodd’s parliamentary speech of 22 October 2008 (See para. 57), Mr. Rammell is at pains to point out that, in refusing to enter into bilateral G2G discussions with Libya on the question of compensation for the UK Victims, “the Government in no way, shape or form condone Libya’s past sponsorship of IRA terrorism, nor — this is crucial — underestimate the suffering caused by IRA atrocities during the troubles” or that in any way does HMG “absolve Libya from its responsibilities for its past actions”. Regrettably, the UK Victims have made clear to us that, without action, these are empty words and that, when it comes to support for the PIRA, HMG has done exactly that which it denies: absolved Libya of any responsibility for its past action. No one has ever been criminally prosecuted for this gross act of mass terrorism and no compensation or redress has ever been made.
Mr. Rammell is at pains also to point out, as Mr. Brown did in his letter of 11 September 2008 (see para. 52), that:
“There has been a transformation in our relations with the Libyan Government to the benefit of people throughout the UK” and that “with the support of the British Government, Libya has now returned to the international community — that is in everyone’s interest — and has built normal co-operative relations with those countries to which it was formerly hostile, and we believe that it is right to seek to build on this improvement in relations. Libya is now an essential partner for the UK on wide-ranging issues, in particular in the fight against today’s terrorist threats. It is vital for the UK’s present and future security that that co-operation continues.”
Given Gaddafi’s subsequent actions, brutality towards his own people and return to international terrorism, these words now ring very hollow. Not only to the “people throughout the UK”, but especially to the victims. It’s specifically worth noting that it has been reported that, in early 2011, a Libyan government courier flew into London with £1.3m while on route to a businessman and supporter of a dissident republican group. He allegedly stayed in a property owned by Gaddafi situated behind Harrods. It was claimed Gaddafi did so in revenge for Britain’s role in overthrowing his regime.[30] This bleakly illustrates how pointless the UK’s abandonment of the UK Victims for the sake of its perceived détente with Gaddafi actually was. In the end, the UK Victims were abandoned and forgotten by HMG for nothing.
Finally, Mr. Rammell informed Parliament:
“For its part, Libya considers this matter closed. … In 1995, Libya explained to the UK Government the extent of its support to the IRA. We should not underestimate the significance of that explanation, because it helped the Government accurately to assess the true material capacities of the IRA. Without that agreement and information, it would have taken us longer to make progress in Northern Ireland. The Libyan Government have subsequently made it clear to us that they now consider this matter closed and that they would be strongly opposed to reopening it. It is therefore this Government’s considered assessment that Libya would not support a bilateral settlement of these cases with the UK Government. That is an important point given that in the US, Libya actually initiated the agreement.”
In comparison to the efforts made by the US, France and Germany on behalf of their victims of Gaddafi terrorism, this statement is quite shocking. In short, Mr. Rammell is saying that because Libya considered this matter closed and would be opposed to reopening it, there is nothing HMG can do. Mr. Rammell tries to distinguish the UK position from that of the US by explaining that, in respect of the LCSA, it was Libya that initiated the settlement. At best, this is an obfuscation of the truth. Libya did initiate the LCSA negotiations, but what Mr. Rammell does not acknowledge is that this was only because the US Congress had already taken such a firm line with it on the matter of its responsibility to pay compensation to US victims of Gaddafi terrorism, that it had little choice but to do so.
Comment 14:
Starting in January 2009 (see paras, 62, 66 and 68) the Conservatives, while in opposition began publicly supporting the UK Victims’ campaign to lobby HMG to make representations on their behalf to Libya to settle their claims for compensation.
It is clear from this that the Conservatives’ policy was that HMG should “press” Libya for compensation for the UK Victims (i.e. engage in G2G bilateral negotiations with Libya) on this issue as the US, France and Germany had done. By the time the Conservatives entered government in 2010, followed by the 2011 Libyan Civil War, the Conservatives’ policy radically changed. This will be dealt with in more detail infra.
Comment 15:
On 14 September 2009 (see para. 69), Mr. Hague asked Mr. Miliband whether the Unit would offer the UK Victims legal advice, strongly implying that it should do. This is significant because the UK Victims, having proposed that assets belonging to Gaddafi and other Gaddafi regime officials responsible for supplying Semtex to the PIRA be used to pay compensation, have been told repeatedly by the FCO, during both Mr. Hague’s own stewardship as Foreign Secretary and that of his successor, Philip Hammond, that to do so would be unlawful, but without any explanation as to why. They have only ever been given an ipse dixit response. On requesting such formal legal advice from the FCO’s lawyers on this point, the UK Victims have been told on more than one occasion that they may not have one. Why, when the Conservatives were in opposition were they supportive of legal advice being provided by the FCO to the UK Victims but opposed to it when in government, specifically in relation to HMG’s position as to the legality of the use of frozen assets?
Comment 16:
In response to Mr. Vaz’s question to HMG of 12 October 2009 (see para. 70) as to whether a government minister would lead a delegation to Libya on the issue of compensation, Mr. Miliband replied:
“I think it would be unwise to turn this into a Government-to-Government issue. It is far better that we support the families, who are campaigning for the victims, and their representatives in Parliament, because I think that a humanitarian appeal is more likely to succeed. I do not want to raise expectations of imminent success in this area, but I think that a humanitarian appeal has more likelihood of success than a Government-to-Government negotiation.”
Given the success of the US in securing compensation for the US Victims through G2G negotiation, versus the failure of HMG through its abdication of responsibilities to the UK Victims, this is a startling comment for HMG to make.
Comment 17:
The unofficial cross-party delegation that travelled to Tripoli on the UK Victims’ behalf between 31 October and 2 November 2009 (see para. 71) relied on representations made to them by the FCO, the Unit, Sir Vincent and the government of the day. The failure to inform them of the previous arrangements between Mr. Blair, HMG and Gaddafi (see para. 47) made their meetings with the Libyans pointless and surely exposed them to ridicule by their Libyan counterparts, who were no doubt fully briefed of Gaddafi’s position. All this was done in the knowledge that limited victim campaign funds and time were being wasted for what the FCO and Sir Vincent knew to be no more than a pantomime on a stage they had been complicit in building. Indeed, on 7 February 2011, in a response in Parliament to a statement by Lord Howell, the FCO Minister of State, on the European Council and North Africa, Lord Bew astutely noted that “the Libyan Ministers to whom we spoke [during the parliamentary delegation’s visit to Libya] knew more about recent UK policy on this matter than those of us who were on that delegation.” He followed up with the request: “will [Lord Howell] ensure that those who go as part of future parliamentary delegations to Libya know the full background of recent UK policy to the country that we are dealing with? Otherwise, one is at a disadvantage”.
Comment 18:
Starting in January 2009 (see paras, 62, 66 and 68) the Conservatives, while in opposition began publicly supporting the UK Victims’ campaign to lobby HMG to make representations on their behalf to Libya to settle their claims for compensation. This culminated in Mr. Hague, then Senior Member of the Shadow Cabinet, making the public statement (see para. 66):
“The public needed to know ‘on what basis’ the government had reached its decision not to press for compensation … These latest revelations are part of an ever-expanding farce, with more revelations really every day about how the government have conducted themselves … These latest revelations greatly strengthen the case we have made for an independent inquiry."
As well as the Prime Minister’s letter of 22 December 2010, which wrote:
“The Government will be unequivocal in its attitude to Libya’s past sponsorship of terrorism while welcoming the progress that Libya continues to make in reintegrating into the international community. As you know, I am hugely sympathetic to the sufferings of the victims and their legitimate attempts to seek redress”
This was accompanied by a handwritten note by Mr. Cameron that says: “I am extremely enthusiastic about [what] you are doing and really want to see it progress and come to fruition. If there is anything I can do to help make it happen, let me know.” (Emphasis in original).
It is clear from this that the Conservatives’ policy in opposition was that HMG should “press” Libya for compensation for the UK Victims (i.e. engage in G2G bilateral negotiations with Libya) on this issue as the US, France and Germany had done. By the time the Conservatives entered government in 2010, followed by the 2011 Libyan Civil War, the Conservatives’ policy had radically changed. This was made apparent both in Mr. Cameron’s new government’s correspondence to us and in public statements that made clear that it now considered the UK Victims’ claims to be a purely private matter that it could not directly support because general government policy forbade it from intervening in private claims for compensation. It remains unclear what brought about this change in position. Why did Conservative policy toward the UK Victims change following their coming to power in 2010 and the subsequent start of the 2011 Libya Civil War?
Comment 19:
On 2 March 2011 (see para. 77), Mr. Dodds asked the Prime Minister:
“Given our campaign for compensation for the victims of Libyan state-sponsored IRA terrorism, will the Prime Minister give an assurance that before the normalisation of relations with Libya under any new regime, the outstanding matter of compensation will be addressed by the Government, not least through the use of Gaddafi assets seized in Britain?”
The Prime Minister’s response was:
“It is an ingenious idea to use the frozen assets in that way. Having sought advice, those assets really belong to the Libyan people. The whole problem with Libya is that it is a rich country with poor people. We can see that in the extensive assets that have been frozen. Those assets belong to the Libyan people first and foremost.”
The fallacy of that argument is that Mr. Dodds was proposing the use of Gaddafi’s own assets, not Libyan state assets. This could also extend to the other Gaddafi regime officials who were responsible for supplying Semtex to the PIRA. These individuals had a direct and personal liability to the UK Victims who -- despite being denied compensation by the LCSA -- had their claims recognized as legitimate by Gaddafi when his regime signed the LCSA and compensated the US Victims (and later recognised also by the New Libyan Government under the Benghazi Agreement (see para. 78)). Such assets arguably belong to the UK Victims as payment of compensation for their legally recognized claims, rather than the Libyan people. This begs the question: Why has HMG consistently failed or refused to adequately address the question of whether frozen assets associated with Gaddafi and other Gaddafi regime officials can be used to compensate the UK Victims?
Further to the above, the use of frozen assets to compensate victims of international crimes has international precedent. In 2000, US Congress passed the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1541, a catch-all bill with numerous provisions to assist victims of domestic and international violence. Victims of Iranian-sponsored and Cuban-sponsored terrorism worked with interested Congressmen to add Section 2002, "Payment of Certain Anti-Terrorism Judgments," to the bill, which enabled the Treasury Department to pay the victims' claims out of certain assets held in funds named in the bill. That section also included a "Reaffirmation of Authority" stating that, "Congress reaffirms the President's statutory authority to manage and, where appropriate and consistent with the national interest, vest foreign assets located in the United States for the purposes, among other things, of assisting and, where appropriate, making payments to victims of terrorism." Furthermore, in December 2011, legislation requiring USDOS to assist victims of Libyan terrorism and their families in obtaining just compensation from frozen assets passed Congress as part of the year-end Omnibus Bill. The purpose of this was to provide access to frozen assets of the Gaddafi Regime as compensation for terrorist acts at Rome Airport, and well as for relatives of the victims of the Lockerbie bombing, who did not receive full compensation from the Fund established under the LCSA. Why can the UK not do the same?
Comment 20:
In respect of the Benghazi Agreement signed on 5 April 2011 (see para. 78), it is interesting to note that we received no support from the Coalition Government or its Foreign Office for our trip to Libya in April. Indeed, we were actively discouraged from travelling there. We have never known why. One possible answer might lie within emails, reported by the Telegraph,[31] sent by Sidney Blumenthal, a former aide to US President Clinton, to the then US Secretary of State Hilary Clinton. In one email, Mr. Blumenthal wrote:
“On the morning of April 8 [2011], an individual with direct access to the Leadership of the Libyan National Council (LNC) stated in strictest confident that members of the Military Committee of the LNC are concerned that, despite its involvement of NATO against the forces of Muammar Qaddafi, the government of Great Britain is using its intelligence services in an effort to dictate the actions of both the LNC and the Qaddafi regime. These individuals add that they have been informed by contacts in France and Italy that, while they have been engaged in discussions with the LNC regarding possible assistance, British diplomats and intelligence officers have maintained contact with members of the Qaddafi government, In [sic] an effort to protect the British position in the event the rebellion settles into a stalemate. These LNC officials believe that the defection of Libyan Minister of Foreign Affairs Mousa Kousa to the United Kingdom was part of this effort. By the same token they that British Intelligence officers are in discussion with associates of Saif al-Islam Qaddafi, regarding future relation between the two countries if he takes power from his father and implements reforms.”
This begs the question: Was the Coalition Government unwilling to provide the UK Victims support in negotiating a settlement with the NTC for risk of upsetting Gaddafi? If so, was the Coalition Government’s pledged support for the UK Victims’ previous settlement discussions with the Gaddafi Regime ever sincere? Of interest is the Coalition Government’s response to Mr. Dodds parliamentary question put to Mr. Mitchell the very same day we signed the Benghazi agreement (see para. 81):
“Can he give the House a guarantee that no obstacle will be placed in the way of the pursuit of the Gaddafi regime’s people, administration or assets by victims of IRA terrorism that, as he mentioned, was sponsored by Gaddafi through the supply of Semtex? They must be allowed to pursue their claims against whomever and whatever assets are out there.”
Mr. Mitchell’s response was seemingly evasive it that it failed to address Mr Dodds’ questions but focused on wider development efforts in the MENA region instead:
“The right hon. Gentleman makes an extremely good point. My right hon. Friend the Prime Minister has already spoken about the role of the International Criminal Court in those matters. The right hon. Gentleman will have heard what has been said in recent days, not least by the Scottish law authorities about the long arm of the law and police investigations leading where they may. The role of regional partners is critical. I have held discussions on stabilisation as well as humanitarian relief with Turkey, the United Arab Emirates and the Organisation of the Islamic Conference. That builds on our coalition Government’s shift towards greater engagement with Gulf States generally. We have offered to host the next high-level meeting of the Development Assistance Committee/Arab Donor Co-ordination Group. Indeed, my right hon. Friend the Minister of State is travelling to Abu Dhabi today, where, together with the Emirati Deputy Foreign Minister, he will host a seminar on partnership working in fragile environments. In the wider region, for example, in Egypt and Tunisia, the role of Europe and the international finance institutions will be crucial. They are significant players and can do much to catalyse economic and political change. We will also work with the EU on creating a new and ambitious economic and trade partnership with the region. That offer, together with any EU aid attached to it, should be made conditional on the delivery of real progress towards democracy, human rights and political and economic reform. Our vision is simple: we want open, fair and inclusive societies that meet the needs of all citizens, including the poorest and most vulnerable. We want the economic growth that will create the jobs that help young people to see how they can build a future for themselves and their own children International consensus will be particularly helpful in achieving that. We will play our part, recognising that our priority must be to help fragile states to build legitimate, effective and resilient institutions of their own.”
Comment 21:
On 13 June 2011 (See para. 82) we wrote to Mr. Hague to inform him that that US Senator John Kerry, at that time Chairman of the Senate Foreign Relations Committee, was drafting legislation to be put before Congress that, if passed, would allow for the release of a proportion of Gaddafi’s assets then frozen by the US Government and located in that jurisdiction to be distributed to the Libyan National Transitional Council. Furthermore, an amendment to that bill had been proposed that would ring-fence a proportion of those assets from general distribution so that instead they could be distributed to settle the UK Victims’ claims. Mr. Hague’s response was that:
“We have concerns over such an approach but are exploring, including discussing with other States, whether any other means can be found to use Libyan frozen assets. For now, we are not convinced that frozen assets can legitimately be allocated in the way suggested. For this reason, it would be inappropriate for us formally to lobby the US on the legislation being proposed by Senator Kerry. Ultimately this is a matter for the US Government.”
Regardless of whether UK law prohibited the use of Gaddafi frozen assets to compensate the UK Victims (which we dispute), this in no way would prevent the Coalition Government lobbying the US for it to use funds frozen in that jurisdiction to compensate the UK Victims. Why then did Mr. Hague refuse this request?
Comment 22:
At the same time as the Prime Minister was advising Mr. Dodds on 5 September 2011 (see para. 85) that we must first allow the new Libyan Authorities to “get their feet under the desk” before it could raise the question of compensation for the UK Victims (a policy repeated to Parliament by Mr. Burt on 10 October 2011 (see para. 87)), on 26 September 2011 Lord Green, minister for trade and investment, led a UK delegation including representatives of BP and Shell for talks in Tripoli with the National Transitional Council (NTC) ministers dealing with the economy, transport, education and communications.[32] The following day, the Libyan Embassy in London hosted a meeting for British business that was arranged by HMG. The meeting was reported to have been attended by around 100 executives.[33]
Why was the Coalition Government’s policy that it could not approach the Libyan Government in late 2011 on the issue of compensation for the UK Victims because “we have to let this Government get their feet under the desk” but was evidently more than willing to approach it on behalf of UK business?
Comment 23:
On 10 October 2011, Mr. Dodds asked Mr. Hague: “what discussions he has had with his US counterpart on receiving compensation from Libya for those affected by IRA terrorism.” Mr. Hague’s reply was: ““I have had no discussions with my US counterpart on this issue.” Given the Coalition Government’s declared commitment to securing compensation for the UK Victims, and the US’ own success in doing so for its nationals, one might reasonably have presumed that they would have sought advice from the US on how best to do so. It did not.
It is of interest that, earlier this year, the Indian government successfully lobbied the US Government to engage with it over the injustice of its victims of Pan Am 73 being denied lawful compensation by the LCSA. Like the UK Victims, these Indian nationals filed legal proceedings in US District Court in 2006 and were denied compensation under the LCSA on the grounds of their nationality. Assistant Secretary of State for South and Central Asia, Nesha Desai Biswal, confirmed that the US Government was prepared to enter into discussions and consultations with the Indian Government and the Indian victims of Pan Am Flight 73 on “what the options are for moving forward”. Ms. Biswal also offered “consultations on some of the processes that the US went through as well [to achieve compensation for US nationals]” noting: “[T]he Government of India is following this with deep interest. This is something we are prepared to engage with them on”. In contrast to the Indian Government, why did the Coalition Government fail or refuse to lobby the US for its advice on how to negotiate with Libya on the issue of compensation for the UK Victims?
COMMENT 24:
The Prime Minister’s letter to us of 15 November 2011 (see para. 89) was confirmation to us of the shift from his pledged unequivocal approach toward Libya on the issue of compensation for the UK Victims to being simply an “important bilateral issue”. While his assurance that it was, nonetheless, a “top priority” in the ‘bilateral relationship” and that “it must not be subordinate to other security or commercial interests, or put onto the back burner” was encouraging at the time, it quickly became evident that other interests would in fact dominate and be given priority over the UK Victims. This is evidenced by the following:
Commercial Interests:
2011: the new Libyan military bought missiles from the MBDA Missile Company, part owned by BAE Systems.
26 September 2011: Lord Green, minister for trade and investment, led a UK delegation including representatives of BP and Shell for talks in Tripoli with National Transitional Council (NTC) ministers dealing with the economy, transport, education and communications.[34] The following day, the Libyan Embassy in London hosted a meeting for British business that was arranged by HMG. The meeting was reported to have been attended by around 100 executives.[35]
July 2012: A military delegation from Libya attended the Farnborough International Airshow, having been invited by UK Trade & Investment Defence & Security Organisation (UKTI DSO).).
January 2013: This saw the tenth British trade delegation, led by the Prime Minister’s trade envoy, Lord Marland, to Libya since the end of the civil war. As the Telegraph reported at the time, this trip was intended to secure business for British companies, including G4S, BAE Systems and Ernst & Young.
April 2013: Arms fair in Tripoli aboard the British frigate HMS Kent, organised by UKTI DSO, and officially opened by UK Defence Secretary Philip Hammond.
March 2013: UKTI issued an invitation, which was accepted, to Libyan officials to attend a Security and Policing Arms Fair in Farnborough.
April 2014: A business delegation of directors and senior executives from leading companies in Northern Ireland visited Tripoli to explore future opportunities for trade, joint ventures and technology agreements. Commercial staff of the British Embassy in Tripoli as well as UK trade and industry and commercial staff based in Tripoli assisted the delegation, representing a large portion of Northern Ireland’s industry sectors, during the visit.
Diplomacy:
January 2013: The Prime Minister visited Libya to express his intent to support the country as the security threat from Islamist terrorism rose. He stated: “We look forward to working together in the years ahead.” In the same month, Michael Aron was appointed by HMG as the new ambassador to Libya.
September 2013: Later that year, in September, Andrew Murrison, the British Minister for International Security Strategy, visited Tripoli for talks with top military officials, including the Chief of Staff, remarking: “It’s a long term relationship”. These examples demonstrate the pursuit by HMG of strong diplomatic ties with Libya.
Security:
June 2013: At the G8 summit, the UK government agreed to train 2000 Libyan Armed Forces personnel in basic infantry skills.
September 2013: A £62.5 million Security, Justice and Defence Programme was agreed between the Libyan Prime Minister and Britain, to ensure that Libya is fully equipped to deal with threats of terrorism. This is being funded by HMG. In the same month the Prime Minister responded to the Libyan Prime Minister’s appeal for help with removing weapons left in Libya, given fears of arms smuggling to Syria. Prime Minister stated, “We are doing everything we can to help.”
In the interim, despite the Prime Minister’s pledges, no progress was made in respect of the issue of compensation for the UK Victims. Even if the pledge was sincere when the Prime Minister made it, the facts show that it has not been upheld. UK/Libyan diplomatic, trade and security ties have blossomed while the UK Victims claims have, once again, been forgotten.
Comment 25:
Following the Prime Minister’s letter to us of 15 November 2011 (see para. 89), it became evident that the Coalition Government’s “unequivocal approach” on coming to power in 2010 had shifted to an “important bilateral issue” in April 2011, to the resolution of “legacy issues” in November 2011, without any explanation given or it ever being made clear to the UK Victims what this actually meant.
Comment 26:
The Prime Minister’s letter to us of 30 March 2012 (see para. 94), made clear to us that the Coalition Government’s policy had shifted once again from resolving “legacy issues” to “broad and lasting reconciliation”. It was explained that the Prime Minister did not believe that “it would be right or productive to pressure the Libyan authorities to settle only one element now”. Rather, the issue of compensation for the UK Victims would be incorporated into a wider package of “post-conflict reconciliation, education, health, trade and investment as well as community links.” Furthermore, we were advised by the Prime Minister to be:
“realistic about the capacity of the new Government in Libya to resolve these issues in the timescale we would like … The new Government is overwhelmed given the enormous upheavals that have taken place and the challenges of rebuilding Libya. In particular, the current transitional authorities are constrained from entering into long term and binding commitments ahead of legislative elections which will pave the way for a new constitution and a more permanent Libyan Government for us to engage.”
It was baffling to the UK Victims why the issue of compensation had become wrapped up in one of broader and lasting reconciliation.
Comment 27:
The FCO’s advice to us at our meeting with it on 11 September 2012 (see para. 97), when asked what its “broad and lasting reconciliation” initiative meant for the UK Victims compensation claims was baffling.
We were told that the “reconciliation package” meant that we would have to explore the issue of compensation with the Libyan Government ourselves and through our own private campaign, though the FCO would continue to provide “facilitation support”. In contrast to what the Prime Minister advised in his letter of 30 March 2012 (see para. 94), the FCO went on to advise us that the Coalition Government was not itself involved in any negotiations with the Libyan authorities on securing compensation (the Prime Minister had written that he had personally raised the issue with NTC Chairman Mustafa Abdul Jalil and Transitional Government Prime Minister Abdurrahim Al-Kib), though it would continue to press Libya to engage with us, and the FCO’s role would be limited to helping to set up meetings for us with the Libyan Embassy.
Comment 28:
It is notable that in December 2012 (see paras. 101 and 102) Baroness Warsi and Mr. Burt, in separate answers to two separate and explicit questions that asked if the Coalition Government had discussed the issue of compensation with the Libyan Government, both avoided answering and would say that it had raised the issue of Gaddafi’s support with the PIRA? This raises the reasonable concern that, at this time, the Coalition Government was not in fact raising the matter of compensation for the UK Victims with the Libyan Government, despite suggestions otherwise.
Comment 29:
In November 2012 (see para. 99), we asked the Unit, whose self-described role was to arrange meetings between us and the Libyan authorities, to arrange a meeting between us and the Libyan Justice Minister. Four months late, on 26 February 2013 (see para. 107), despite our chasing, the FCO advised that they had failed to do so but could arrange a meeting with the Libyan Embassy in London. For us, this called into serious question the effectiveness of the Unit’s and its increasingly limited role at that time.
Comment 30:
The Prime Minister wrote to us on 28 February 2013 (see para. 108). This was notable for the fact that assuring us of his “great personal sympathy with those you represent and with everyone affected by Qadhafi’s sponsorship of IRA terrorism”, there was no mention or reference to compensation. Instead, much was made of the need for “broad and lasting reconciliation” and “UK-Libya reconciliation objectives” and a “strong bilateral relationship”.
Comment 31:
It was strongly implied to us at our meeting with the Libyan Embassy on 2 May 2013 (see para. 109) that while the issue of compensation for the UK Victims was an important one for the Libyan Government, it was waiting to be asked by the UK to make settlement. The implication was that the Libyan Government was amenable to doing so but it could not, unless there was a strong and official request for it to do so from HMG. Otherwise, it would have no political justification to give to the Libyan people for making such a settlement. Again, this calls into question whether the Coalition Government, at that time, had or was making any real request that the Libyan Government should settle the UK Victims’ compensation claims?
Comment 32:
In June 2013, the Libyan Prime Minister attended the G8 Summit in Lough Erne, Northern Ireland (see para. 110). While there, he met with the First Minister and Deputy Minister of Northern Ireland. The Unit advised us that the FCO welcomed this engagement as a positive development for UK/Libyan reconciliation. However, a number of the UK Victims were, in fact, deeply upset and distressed by this meeting. Not only because the Unit had failed to give them any notice of it but, more importantly, that rather than arranging for the Libyan Minister to meet with the UK Victims of Gaddafi terrorism, they had arranged for him to meet with an alleged former senior member of the very organization to which Gaddafi so murderously supplied Semtex. The Unit and the FCO’s insensitivity was indicative of how far removed they had become from the original stated purpose of the Unit when it was established by Mr. Brown and HMG’s real responsibilities to its terror victims.
Comment 33:
Mr. Blair’s reported response to the Telegraph’s revelations (see para. 111) that he might have brokered the LCSA on Gaddafi’s behalf, via his spokesman, seems to support the view that HMG and Mr. Blair viewed our clients’ claims as unimportant: “The only conversation [Mr. Blair] ever had with regard to this matter was to give a general view that it was in the interests of both Libya and the USA to resolve those issues in a fair manner and move on.” There is no indication from this, or any other source, that Mr. Blair ever advocated on behalf of, or even raised, the interests of the UK victims. It is also telling that Mr. Blair never answered our letter of 1 June 2007 (see para. 38).
Comment 34:
It is notable that in response to explicit questions by Lord Empey to HMG on 11 November 2013 (see para. 115) whether the Coalition Government had raised the issue of compensation for the UK Victims with the Libyan Government, Baroness Warsi’s response was only to say that: “The British Government's focus is on developing a broad and long lasting reconciliation between Libya and affected areas in the UK. The Government has raised these reconciliation objectives and Qadhafi’s support of terrorism with the Libyan government on a number of occasions this year.” In doing so, once again Baroness Warsi failed, or refused, to confirm whether the issue of compensation had even been raised.
Comment 35:
Mr. Robertson’s letter to us of 26 November 2013 (see para. 116) was notable for the following reasons:
− It did not confirm whether the Prime Minister had raised the issue of compensation for the UK Victims with former Prime Minister Zeidan, only that they had discussed “legacy issues”.
− His defence that no “government officials” took any “deliberate” action that denied the UK Victims compensation under the LCSA or misled any parliamentarian does not deny: (a) that Mr. Blair might have taken deliberate action to deny the UK Victims compensation (he was no longer in office at the time and thus not a government official); or (b) that government officials might have been negligent, if not deliberate or intentional, in their actions that caused the UK Victims to be denied compensation. In short, his defence of the allegations against former Prime Minister Blair and HMG is far from satisfactory.
Comment 36:
As we have never received a substantive response to our letter to Mr. Robertson of 14 January 2014 (see para. 117), the following questions put to HMG remain outstanding:
– Why, when no demonstrable progress had been made by HMG in respect of the UK victims’ claims, had other UK interests, in trade, diplomacy and security, flourished?
– Was it simply the ‘view’ of the government, that it cannot directly involve itself in this matter, which would suggest that HMG has discretion to take a different ‘view’, or is it actually prohibited from doing so, be it by law, rule, custom or convention?
– If, as Mr. Robertson’s letter of 26 November 2013 (see para. 116) stated, in 2008 “the UK lobbied the US to include UK claimants on the list of recipients [under the LCSA]” and also “lobbied the then Libyan authorities to include UK victims in the settlement”, what prevents it from doing so now?
– Is HMG’s position that it never or can never involve itself in private litigation concerning its citizens or foreign citizens?
– Why HMG could not seek a bilateral agreement of its own with Libya to settle the UK Victims’ claims?
Comment 37:
On 31 January 2014, we had another meeting with the Unit (see para. 119). At that meeting, it outlined plans to develop a package of “activities” to promote a “broad and lasting reconciliation” between Libya and the UK. These focused on five activities:
- Justice and policing;
- Education and youth;
- Political dialogue;
- Trade and investment; and
- Health and society.
This was startling as not only had this package of “activities” seemingly first been promised by the Prime Minister, over three years earlier, in his letter to us of 15 November 2011 (see para. 89), which advised that he had “asked the Foreign Office to prepare detailed plans for a comprehensive structured bilateral dialogue with the new Libyan Government with a view to establishing a sustainable and effective partnership with Libya” but:
– In a letter to us of 30 March 2012 (see para. 94), the Prime Minister advised: “We will be looking at a range of initiatives including post-conflict reconciliation, education, health, trade and investment as well as community links.”
– At a meeting with the FCO and NIO in September 2012 (see para, 97), they had identified the following broad “activities”, which could be included in a potential reconciliation package:
- Sharing UK knowledge and experience of reconciliation and post-conflict issues
- “Commercial activities”
- Establishing links between Libyan and UK institutions and communities
- Gestures of reconciliation (it was suggested that the Libyan Prime Minister could place a wreath at PCPC Fletcher’s memorial during his next visit).
– On 19 February 2013, the FCO Unit hosted a meeting at Stormont, where we were advised that, following a meeting between the NIO and the Libyan Foreign Minister in December, the UK would draft a set of proposals for reconciliation and that this proposal would set out five key areas:
- Political gestures;
- Trade and investment;
- Developing community links;
- Policing in post conflict communities;
- Scholarships.
The Coalition Government had first advised us in November 2011 that plans for improving the bilateral relationship were being prepared. Seemingly, they were still being prepared in March 2012, September 2012, February 2013 and then January 2014. Worse still, each “package” was different from the last. Again, this caused serious concern to the UK Victims about the effectiveness of the Unit.
Comment 38:
On 26 March 2014, the Prime Minister told Parliament that: “The Libyan authorities are in no doubt of the importance that we attach to their engaging properly with UK victims seeking redress.” (See para. 121). This provided little comfort to the UK Victims as, despite our best and on-going effort and as the Unit was aware, we had received no further communication from the Libyan Government since early 2014 (see para. 109). The Unit was of no assistance in remedying this.
VI. CONCLUSION
137. The Libyan state directly promoted terrorist acts in the United Kingdom between 1972 and 1997. Over 40 years later, UK victims still await compensation. In addition to the concerted 25-year campaign in the UK, Libya sponsored individual terrorist acts in other countries resulting in, inter alia, US, German, and French victims. The governments of these countries have ensured, as an essential precondition of their rapprochement with Libya, that their citizens were compensated. However, the UK government, through successive Administrations drawn from different political parties, has consistently placed diplomatic and business considerations above proper compensation for their citizens.
138. The differing treatment of victims of the same terrorist act is graphically illustrated by the following.
139. On 17 December 1983 a bomb made of Libyan supplied Semtex, exploded outside Harrods in London. Six people were killed; five UK citizens and Kenneth Salvesen, a US citizen. Mr Salvesen’s family was part of the McDonald case we commenced in the US (indeed the ‘McDonald’ of the case title is a reference to another US citizen, Mark McDonald, who was severely injured in the same atrocity). The US government intervened in the McDonald case, secured compensation for its citizens – Mr. Salvesen’s family and Mr. McDonald, and directed that the claim brought by the UK citizens be dismissed. The US government could have secured compensation for the UK victims; it could have allowed the UK victims’ case to continue, it did neither. The UK government could have sought to influence the US government but it is apparent, notwithstanding its subsequent protestations, that it did not. It could have negotiated directly with Libya to secure compensation for its citizens; it did not then and has refused to since.
140. And so US citizens killed and maimed in London by Libya are compensated but UK citizens killed, maimed and terrorised by Libya for over 25 years in their own country are not. It should be stressed that there is now no doubt as to Libyan guilt; the only positive element of the US brokered settlement for its citizens was the explicit acceptance by Libya that it was the perpetrator of UK terrorism.
141. The UK government for reasons of political expediency has frustrated attempts by UK citizens to secure compensation. It is iniquitous that UK citizens who bore the brunt of Libyan terrorism should not be compensated when the citizens of the US, and other European citizens, have been. No other government has so blatantly placed what it sees as the demands of international realpolitik above the welfare of its own citizens.
142. The UK government controls extensive Libyan assets and these assets should be used immediately to compensate UK victims on the same basis as compensation was paid to US victims in the McDonald case.
143. Terrorist acts are, by their very nature, designed to cause chaos. They are unexpected, their impacts are capricious, and their consequences are unpredictable. No one is unsympathetic to the fact that during the height of The Troubles, HMG was unable to design effective measures to make whole those citizens who had been negatively affected by decades of armed conflict.
144. However, in the 17 years since the Good Friday Agreements were signed, the needs of victims of Provisional IRA terrorist attacks remain unaddressed, for reasons unknown. Victims and their representatives have made frequent attempts through various channels, to no avail. HMG has repeatedly prioritized commercial interests or diplomatic relations with Libya above her own citizens, and relied on legal fictions to absolve itself of responsibility to act.
145. There is no question that the Government of Libya (under Gaddafi) was involved in the attacks that killed and maimed the UK Victims. Diplomatic and administrative channels exist to impose accountability and secure justice for its citizens, but HMG refuses to pursue any of them. The reasons for doing so are unclear.
146. However, by refusing to address the needs of victims of terrorism, HMG stands at odds with the best practices recommended by the United Nations and other influential actors. In 2012, the UN Special Rapporteur on Human Rights and Counter-Terrorism wrote a pioneering report[36] stating that States should ‘voluntarily accept a binding international obligation to provide reparation to the victims of all acts of terrorism occurring on their territory in which a natural person has been killed or has suffered serious physical or psychological harm, irrespective of the nationality of the perpetrator or the victim, and thereby to fill an existing protection gap’.[37] The Special Rapporteur explained:
‘There are sound reasons of principle in favour of recognizing that States should now accept a special obligation to victims of terrorism. It is inherent in the nature of terrorism that it involves the use or threat of force aimed at influencing a State or group of States or an international organization [and] there is almost always a direct or indirect motivational connection (however misguided) between acts of terrorism and policies of state. A terrorist killing is thus different in character from a purely private murder.
There are additional practical reasons for adopting [this] approach. Where bystanders or hostages are killed in the course of counter-terrorism operations, it may be impossible to determine whether the acts of a public official were both causative and culpable. Similarly, the determination of State responsibility for an alleged failure to take positive operational steps to prevent an act of terrorism can be fraught with evidential difficulties … Perhaps the most fundamental point is that the direct perpetrator of a terrorist act is unlikely ever to be in a position to compensate the victims. The perpetrator will usually have been sentenced to a long term of imprisonment (if they have not been killed or evaded capture). A victim-centred approach does not permit reliance on an indigent, deceased or untraceable individual to provide reparation for death or serious injury.
Many States have voluntarily accepted an international law obligation to establish schemes to provide State-funded compensation to the victims of all crimes of violence resulting in death or serious physical or psychological injury. Such schemes already make provision for the payment of State-funded compensation to the human victims of terrorism. The Special Rapporteur recommends that all States now accept an obligation to establish such a scheme for the victims of terrorism. In the context of transitional justice, broader reparation programmes have been established to provide additional forms of reparation for gross and systematic human rights violations committed in conflict situations. The Special Rapporteur believes that such schemes provide an appropriate model for affording full reparation to the victims of terrorism, particularly where large scale or repeated terrorist acts have resulted in large numbers of victims. Several States have adopted a model for compensating victims of terrorism that closely resembles existing compensation schemes for military and civilian victims of war. Such programmes are specifically tailored to meet the needs of the victims and designed in a manner that encourages their participation.
The contemporary recognition that acts of terrorism involve grave human rights violations; the State's duty to protect and secure the right to life; the emerging international consensus in favour of a victim-centred approach; the absence of any alternative source of compensation or reparation; and the inexorable connection between the misguided motivation of the terrorist and the policies of the State that is the terrorists’ ultimate target, together provide a sound rationale for recognizing an obligation on the State to provide compensation and reparation to the victims of all acts of terrorism occurring on their territory, without imposing on the victims the added burden of proving State responsibility.[38]
147. This Committee has a unique opportunity to explore HMG intransigence in respect of the claims of UK Victims of Libyan-sponsored PIRA terrorism, a mandate to influence government policy to ensure it is at the forefront of international best practices, and the authority to make concrete suggestions on how to move forward effectively. We are ready to assist this process in any way we can.
-- END—
Additional evidence submitted 8 September 2015
Email sent on 8 June 2008 by the then British Ambassador to Libya, Vincent Fean, to the Office of Tony Blair.
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