To be sitting in the warm confines of a jet cruising at 35,000 feet, and then to be suddenly blown into the frigid stratosphere and fall, bleeding, dazed and terrified is a horrible way to die. For causing the bodies and wreckage that littered the Tenere Desert in Niger 18 years ago, a U.S. court has recently decreed that the perpetrators should pay some $6 billion in damages, pain and suffering.

This 15 January 2008 judgment was rendered against Libya by Judge Henry Kennedy of the U.S. District Court for the District of Columbia for the suitcase bombing of a UTA DC-10 in September 1989 that killed all aboard. The company that leased the airplane to UTA and estates of the seven Americans killed in the bombing were plaintiffs in the case.

Libya has until 25 February of this year to file an appeal. Unless the parties conclude a settlement before that date, an appeal can be expected considering the normalization of relations between the United States and Libya which led to the removal of Libya from the “state sponsor of terrorism list” and restored diplomatic relations for the first time in decades.

In the damages hearing last August, the Libyan government was represented by U.S. counsel, who did not present any witnesses. Libya’s decision to be represented in court appeared to be based in part on its well-publicized abandonment of terrorism and nuclear weapons development. Be that as it may, an appeal to the judgment can be expected from the Libyans, raising at least two points: (1) the decree imposes costs that are excessive, most of which are in pain and suffering, and (2) the court did not say whether or what proportion of the money should come from the individuals cited or from the government of Libya. Recently, Libya has actively defended itself in other legal actions pending in the United States, and the amounts awarded in this case are substantially in excess of any such awards allowed by judges in either bench or jury trial proceeding in the U.S., according to sources.

Libya has already agreed to pay more than $2 billion ($8 million per decedent) for the December 1988 bombing of Pan American flight 103, in which 270 passengers and crew were killed when the bomb exploded as the airplane flew over Lockerbie, Scotland. A Libyan intelligence agent was also convicted and jailed in Scotland for the bombing, although a second Libyan was acquitted and the Libyan government has never accepted culpability for this act of terrorism (settlements have been paid through the Gaddafi International Foundation for Charity Associations).

In the case of the Pan American plane downed by bombing the question of “conscious pain and suffering” did not even enter into the damages awards, which makes the UTA judgment noteworthy.

In the case of the UTA bombing, which occurred some 10 months after Pan Am flight 103, the airplane was flying from Brazzaville in the Republic of Congo to Paris, with a stopover in N‘Djamena in Chad. Traces of the explosive pentrite were found in the remains of the forward cargo hold, along with pieces of a grey Samsonite suitcase covered in pentrite that had been loaded into section 13-R of the forward cargo hold in Brazzaville. Also found was a tiny fragment of a printed circuit board from a timing device of similar construction as that found in the Pan Am 103 debris field. The fragment was from a shipment of 100 such devices to one of the Libyan defendants named in the lawsuit.

Six Libyans were tried in absentia for the UTA bombing in 1999 by a French court, which awarded about $1 million to each of the victims, which Libya paid without accepting responsibility for the sabotage (Libya’s motive for bombing the UTA jet is attributed to revenge on the French for supporting Chad in resisting Libyan claims on its territory). The families of the American victims refused to accept their $1 million awards and pursued the matter in U.S. courts. U.S. victims have the right to sue state sponsors of terrorism, a right the European and African victims do not have.

The lawsuit was brought as one of “unlawful interference” with the flight, but those two words do not really describe what it means to be in an airliner suddenly ripped asunder by a bomb. The Americans on the flight included the wife of the American ambassador to Chad and workers returning to the States after working in African oil fields, among others. In brief, the passengers reflected the usual mix of people from various walks of life and economic circumstances, which determined how much money was awarded to each. Judge Kennedy’s 104-page memorandum provides a vivid description of the bomb’s effects in arriving at its decision to award damages:

“ROBERT L. PUGH, et. Al.,

Plaintiffs,

v.

“SOCIALIST PEOPLE’S LIBYAN ARAB JAMAHIRIYA, ET AL.,

Defendants.

“This action is brought pursuant to the ‘terrorism exception’ of the Foreign Sovereign Immunities Act (FISA) … arising from the September 19, 1989 bombing of Union des Transports Aeriens (UTA) Flight 772, over the Tenere Desert in the African country of Niger.

“The aircraft operating as UTA Flight 772, a DC-10-30 wide-body aircraft owned by Interlease, Inc., was en route to Paris, France, from N’Djamena, Chad, when a suitcase bomb in the cargo hold exploded, killing all 170 passengers and crew on board.

“Seven of the passengers were citizens of the United States. The Estates of the seven American decedents, 44 of their immediate family members, and Interlease are the plaintiffs in this case. Defendants are the Socialist People’s Libyan Arab Jamahiriya and the Libyan External Security Organization (LESO) (collectively, the ‘Libyan State Defendants’), and six high-ranking Libyan government officials sued in their personal capacities, Abdallah Senoussi [a brother-in-law to Col. Gaddafi and head of Libya’s external intelligence organization], Ahmed Abdallah Elazragh, Ibrahim Naeli, Abras Musbah, Issa Abdelsalam Shibani, and Abdelsalam Hammouda El Ageli (collectively, the ‘Individual Libyan Defendants’). …

“On My 11, 2006, this court granted summary judgment as to liability in favor of plaintiffs and on August 13, 2007, commended a two and one-half day damages hearing. During the contested hearing, plaintiffs presented the live testimony of eight fact witnesses and four expert witnesses … Libya did not present any witnesses.

“1. The fuel in the aircraft that operated as UTA Flight 772 was contained in three places, in the two wings and in the compartment under the fuselage between he two wings. A suitcase bomb exploded in the right forward lower baggage hold of the aircraft about 45 minutes into the flight when it had climbed to approximately 35,000 feet. This caused the airplane to break into four major parts, the nose section, the section between the nose section and the wings, the wing section going back to the tail, and the tail and aft part of the plane.

“2.When the bomb exploded, the passengers on the plane experienced ‘explosive decompression,’ which happens when the atmosphere within a plane in flight fills instantly with the atmosphere outside the plane. It takes less than one second for the pressure to equalize.

“3. Many of the passengers likely survived the bomb explosion and were conscious as they fell to earth from 35,000 feet. Even if some of the passengers temporarily blacked out, they likely would have regained consciousness as they fell since the effects of hypoxia – lack of oxygen – are reversible and would have quickly been reduced as oxygen levels rose during each victim’s fall to earth.

“4. In addition to the initial shock of explosive decompression, a surviving passenger would have experienced the disorienting experience of feeling the temperature instantly drop 129 degrees, from 70 degrees Fahrenheit inside the plane to 49 degrees below zero outside of it. Among other things, this atmospheric change has a very painful psychological effect on the body, particularly if one has trapped gases. These body gases expand and cause extreme discomfort.

“5. In addition, the explosion caused shards of metal to fly in every direction, typically embedding themselves into people badly enough to cause pain but not badly enough to kill.

“6. Some of the passengers caught on fire from the explosion. As a result, many of the passengers burned alive as they plummeted to earth.

“7. Burning to death is extremely painful and does not happen at once. Dr. Levy testified as follows:

‘People who are on fire die from lack of oxygen because fire burns up the oxygen in the atmosphere, the fire burns their upper respiratory passages, the hot gases are at first inhaled, it destroys the lining of their lungs and they cannot exchange oxygen appropriately, and therefore, they basically die of oxygen starvation, which leads to brain damage, and they eventually are unable to maintain necessary functions of life. So certainly many of them [passengers on UTA Flight 772] must have died from fire, but not immediately.’

“8. Other unpleasant experiences the passengers likely suffered included loss of control over their sphincters and severe choking sensations.

“9. Those that did not die from the explosion or the fire died from the impact with the ground at a velocity of 150 to 160 miles per hour.

“10. It took 89 seconds to 178 seconds, between one and one-half minutes to three minutes, for the passengers to hit the ground following the explosion. The range of times reflects variations in the passengers’ trajectories to the ground, based upon where they were seated on the plane.

“11. All 170 people aboard died a horrific death. The many passengers who likely survived the mid-air explosion experienced horrific terror and excruciating pain for as long as three minutes as they were burned alive and tumbled to earth. The explosion, decompression, fire, and mid-air break-up of the aircraft caused the passengers to suffer extreme terror, painful bodily injury, chocking and suffocation, and the tragic realization that their lives would soon terminate.

[What follows are determinations by the court of damages, just a couple examples of which are given here.]

B. Plaintiffs’ Testimony

“67. The Estate of Donald Warner is entitled to damages … for wrongful death and Libya’s intentional infliction of emotional distress. The Estate of Donald Warner shall be awarded damages against the Libyan State Defendants in the amount of $3,020,000 for economic damages and $18 million for pain and suffering …

“72. Interlease, Inc., shall be awarded damages against the Individual Libyan Defendants in the amount of $41 million in economic damages …

* * * * * * *

“An appropriate order accompanies this memorandum.

“Henry H. Kennedy, Jr.

“United States District Judge”

Considering the amounts of damages that Judge Kennedy awarded to the surviving family members, one would have to consider if the individual defendants would ever have the means to pay for their major part of the judgment, aside from the fact that none of them are residents of the United States and probably have no assets which could be seized in this country.

A couple things are nonetheless clear. States that engage in terrorism, and found out through good investigative work, can expect lengthy wrangling in court and judgments that stigmatize them. And the testimony of expert witnesses as to the effects on passengers of a bombing provide vivid grist as to the sobering reality of murder at high altitude.

Figure A

View from the ground and from the air of the memorial erected in the desert at the crash site. The circle features mirrors that, in the sunlight, will make the crash site visible from above. Source: http://assoc.orange.fr/dc10-uta