Why suing terrorists like the Real IRA is not the answer
Suing militants on the basis of their terrorist status is fraught with dangers - not least the prevailing political climate
On Monday, amid the furore over last week's elections and Gordon Brown's political future, the Belfast high court supported a civil lawsuit brought by 12 families of victims of the 1998 Omagh bombing against members of the Real IRA.
As a result of Judge Declan Morgan's landmark ruling, the Omagh families will be able to seek up to £1.2 million in damages against the four men deemed to have been responsible for the bomb that killed 29 people. Crucially, they will also be able to sue the Real IRA as an organisation.
The Omagh families have hailed the triumphant conclusion of their eight-year campaign as a 'semblance of justice' after successive criminal investigations failed to find and convict the perpetrators.
Lawsuits could scapegoat people without ever conclusively proving their guilt
But the ruling raises questions that are relevant not only to Northern Ireland's worst terrorist atrocity. Some commentators have suggested that such civil actions may empower the victims of future terrorist atrocities and provide a new weapon against terrorism around the world, making it possible to undermine terrorist organisations financially where the normal legal process has failed.
These arguments are overly optimistic. The determination of the Omagh families to bring those who killed their loved ones to justice is entirely understandable and admirable, but it is worth recalling that their civil action was forced upon them by major failures on the part of the security forces, both before and after the bombing.
Judge Morgan's ruling was made possible by the lower burden of proof required in such cases, but this lowered benchmark may well offer a poor substitute for justice, by scapegoating certain individuals, without ever conclusively proving their guilt.
This is not necessarily a desirable precedent - and there is another reason why civil actions are a dubious weapon in the anti-terrorist arsenal.
The Omagh lawsuit was strongly supported by then Prime Minister Tony Blair, George Bush and others. The same kind of support was crucial in last month's decision by a Chicago Federal court to support a $600m civil suit against several alleged US-based Hamas front organisations, by the parents of 17-year-old David Boim, an American who was shot dead by unknown Palestinian assailants in the West Bank in 1996. This decision was clearly dependent on the consensual perception of Hamas as a terrorist organisation.
But this consensus is open to shifting political agendas and so is the political support that can make or break civil lawsuits. Last November, the Libyan government paid out $1.2bn to US victims of the 1988 Lockerbie bombing, even though Libyan officials have continued to deny that Libya was responsible, in exchange for an end to sanctions and Libya's removal from the US list of terrorist-sponsors.
Other lawsuits against alleged terrorists and their sponsors have failed because they did not have such official backing. Last month the US Justice Department advised the Supreme Court to exclude members of the Saudi royal family from a $3 trillion suit against them by families of the 9/11 victims.
The plaintiffs allege that members of the Saudi establishment diverted funds to al-Qaeda through charitable institutions. This case has already been rejected by lower courts and the Supreme Court looks set to follow their example. A 2003 claim for $300m in damages against various Saudi princes by a consortium of US insurance companies is likely to meet a similar fate.
The Obama administration is clearly no more willing to antagonise a powerful ally than its predecessor, and this question of political support will always be crucial in deciding whether civil lawsuits against terrorist organisations and their sponsors succeed.
Even when they do, their impact is likely to remain largely symbolic. Libya was able to pay, but the same is unlikely to apply to the four members of the Real IRA. Two of them are already in jail, and the others now face the loss of whatever financial assets they possess.
That will certainly hurt them, but it would be a mistake to hail Monday's verdict as a major breakthrough in the struggle against terrorism. Whatever the state of their bank balances, men who place bombs in city centres are not usually looking forward to a comfortable future when they embark on such activities. ·
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