By Basil Katz
We reported today that the families of those killed or injured
in the attack on the U.S. consulate in Benghazi have little
recourse in American courts to win damages from either the
Libyan or the U.S. governments or from those behind the attack.
But one question on the minds of several international law experts is whether the United States could go after Libya for
not doing enough to protect the consulate.
While there are no indications that the Libyan government
had any involvement in or prior knowledge of the Benghazi
breach, if such evidence emerges, could the United States have
viable causes of action?
What's clear, as I'll explain below, is that the U.S.
government likely cannot turn to international courts to mediate
any claims against Libya. What it could do is demand some kind
of payment and use its diplomatic and political tools to put
pressure on Libya to cough up compensation.
"The host government does have a legal obligation by
treaties and tradition to protect the safety and security of all
foreign embassies, consulates and compounds in their country,"
said Tom McDonald, an attorney at Baker Hostetler and a former
U.S. ambassador to Zimbabwe. "The Libyan government obviously
didn't meet that standard."
According to two United Nations treaties from the early
1960s, signed by both the United States and Libya, the host
nation has a "special duty" to "take all appropriate steps" to
protect the consular entities of foreign governments.
A spokesman for the UN secretary general on Wednesday said
that Ban Ki-moon "reminds the Libyan authorities of their
obligations to protect diplomatic facilities and personnel."
In this case, the United States would have a viable claim
against Libya only if the Libyan government were found to have
had prior knowledge of the impending attack that it did not
share, if Libya did not come to the aide of the United States in
a timely way or if it had lent the militants any support.
"If they had knowledge of the attack, then that would be a
real problem for the Libyan government," said David Caron, a
professor of international law at the University of California
Berkeley. "It becomes a question of taking the time now to
assess the evidence." On the face of it, Caron said, it seems as
if the Libyan government helped the United States repel the
attackers, which would suggest it did not have prior knowledge.
Many countries that signed the Vienna Convention on Consular
Relations of 1963 also entered into an additional clause that
said that countries in a dispute involving their obligations
under the pact are under the compulsory jurisdiction of the
International Court of Justice.
Libya never signed the additional clause, called the
"optional protocol concerning the compulsory settlement of
disputes." And in 2005 the Bush administration famously withdrew
from the protocol.
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