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Nov 19th, 2019

effete Essay

On December 21, 1988, Pan Am flight 103 exploded over Lockerbie, Scotland killing more than 250 people. The investigations that ensued saw two Libyan intelligence officers charged and paved the way for protracted negotiations between an enduring U.S-UK coalition and Libya for the transfer of al-Megrahi and Khalifa Fhimah for trial in the UK. The Lockerbie negotiations involved several rounds of intensive, iterative public and private meetings in a myriad of locations ranging from the UN Security Council (UNSC), Washington, London, Tripoli, and Netherlands.

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This paper aims to analyze the negotiations that culminated in the trial of the accused in a Scottish court in the Netherlands using Howard Raiffa’s theory of negotiation analysis as a framework. Marrying concepts from decision analysis and game theory, negotiation analysis focuses on the parties’ underlying interests, positions, the Zone of Possible Agreement (ZOPA), no-deal options and alternatives to negotiation during evolving phases of negotiations. Part I of this paper explores the failure of a bargaining and haggling approach-outside the Zone of Possible Agreement- between US-UK and Libya leading to a mutually hurting stalemate.

Part II examines ‘changing the game’ through successful third-party mediation by Nelson Mandela and Saudi Ambassador, Prince Bandar Bin Salman to broker a deal. Part III focuses on the negotiations phase of legal and procedural clarifications for the transfer, trial, and imprisonment in case of conviction. “Resolution traps” and roadblocks to a final agreement are unpacked in this section. Relevant shifts in the global strategic environment, interests, positions, domestic political tension and power asymmetries during each phase of the negotiations are accounted for in the analysis.

The paper concludes with a brief discussion on the insights from the analysis and the U. S’s use of negotiation strategies such as anchoring, ultimatums and its artful maneuvering of the “two-level” structure, and asymmetry of power and interests to propose a cosmetic “win-win” resolution option to Libya, and secure concessions that lie within Libya’s reservation price.

Background

On December 21, 1988, Pan Am flight 103 from Frankfurt to Detroit via London and New York, was destroyed by a bomb over the small town of Lockerbie, Scotland, killing all the 243 passengers, 16 crew members and 11 people on the ground. The victims included 180 American citizens and citizens from 21 countries. After three years of intense investigations led by Dumfries and Galloway Constabulary, Scotland Yard and the FBI, the U.S and U.K charged two Libyan intelligence agents who previously worked for the Libyan airlines in Malta, Abdelbaset al-Megrahi and Al Amin Khalifa Fhimah, with the bombing.

On November 13, 1991, the Scottish court issued a warrant for the arrest of the Libyan nationals and the next day, a U.S. grand jury served an indictment for murder against al-Megrahi and Khalifa Fhima. Libya quickly denied all involvement and arrested the suspects in compliance in with the 1971 Montreal Convention to Suppress Acts of Violence Against Civil Aviation, appointed an investigatory magistrate and requested evidence for the trial of the accused in Libya. This proposition was unacceptable to the U.S and UK who then issued a joint declaration to surrender for trial all those charged with the crime and called upon Libya to accept responsibility for the actions of its citizens and disclose all information related to the crime and grant access to all witness, documents, and evidence, as well as pay compensation to the victims’ families.

Following Libya’s refusal to turn over the accused, U.S and U.K decided to employ the UNSC (though no country had asked the council to involve itself) citing its power under Chapter VII to use economic and military measures against a state to maintain or restore international peace and security. UNSC Res No.731 called on Libya to fully cooperate with U.S, U.K and French requests to surrender the Lockerbie and UTA bombers. In response, Libya quickly scheduled a disposition in Tripoli wherein the two men were ushered in front of a global audience. Later, the judge read a pre-written statement that the court had insufficient evidence to try the case due UK-US refusal to share evidence and offered alternative ways to ensure a fair trial by the ICJ, UN or Arab League in a neutral country. As UN orders went unheeded, several rounds of strict sanctions were applied on Libya from ban on arms sales and oil equipments to an air embargo and freezing of overseas assets (Res No.748 ). The sanctions regime tightened as negotiations over prisoner transfer stalled. From 1994-1997, the U.S. and UK rejected all propositions by Libya and neutral parties until sanctions fatigue spread which put the third country trial option back on the table.

On October 1997, Nelson Mandela made a highly publicized visit to Tripoli and awarded Qaddafi with the Medal of Good hope, opening previously unexplored avenues of mediation. Diplomatic efforts garnered momentum under the Clinton administration, and in 1998, US-UK agreed to a trial in Hague under Scottish law. Mandela and the then Saudi Arabia’s ambassador to the U.S Prince Bandar Bin Salman formed the perseverant tag-team that shuttled between D.C, Tripoli, and London to broker the deal. Later, due to sustained US opposition to direct negotiations, Secretary General Kofi Annan was tasked to report on any progress, and an agreement was reached to suspend sanctions against Libya on Annan’s official communication of the handover with the Council. Following months of negotiations between U.S, UK and the Dutch, a Scottish court was established, funded by the US, UK, and the Dutch, in Camp Zeist. On April 5, 1999, the Annan announced that the two Libyans had arrived in the Netherlands, where they were detained by the Dutch authorities and later extradited to UK custody to be held in the Netherlands under Scottish law for trial.

Negotiation Analysis

According to Raiffa , “analysis–mostly simple analysis–can help” to understand the underlying the processes and rationale that dictates all negotiations. Raiffa’s “science” of negotiations analysis focuses on the parties’ perceptions of interests, alternatives to no- deal options, processes of trade-offs and creating joint pay-offs, and moves to “change the game”. These factors are assessed at each turn to delineate the ZOPA and analyze subsequent outcomes.

Part I: Haggling and Bargaining: Decade of Sanctions Leading to a Mutually Hurting Stalemate

From 1998 till 1997, the negotiations between the US, UK, and Libya moved at a glacial pace culminating in a hurting stalemate from 1994. The interdependence of decisions prescribed a haggling and bargaining or contending approach to negotiations since each party had partial control over its own consequence and the other party’s outcome . Understanding negotiations as a bargaining process in which both parties move from their initial positions towards an optimum outcome using both coercion and concession warrants an exhaustive diagnosis of the parties, their positions and interests.

Negotiation analysis prescribes a pragmatic framework for mapping all relevant parties and their relationships in the context of the negotiations process . At the time, the relationship between Libya and the Western powers was fraught with hefty animosity and an explicit call for each other’s downfall. President Reagan described Qadaffi as the “Mad Dog of the Middle East” and covert US operations in 1986 involved bombing Qadaffi’s home, killing his daughter and injuring himself and his entire family. Meanwhile, the Colonel was funding terrorist organizations across the globe, from the IRA and Pan African Congress to the Red Brigade and Black Power movement. This chasm in their relationships inherently dictated their positions and interests.

The cardinal incentive for parties to enter negotiations is to protect or proliferate their interests and thus, interests dictate the rationale behind the attractiveness of a deal. Negotiation analysis centers on parties’ underlying interests to analyze trade-offs to increase pay-offs. The analysis becomes complex since parties are not monolithic and often times there exists a spaghetti bowl of interests laden in a single issue. In the initial phase of this negotiation, interdependence of their decisions compounded to the dissonance in interests rendered negotiations unproductive. Consensus on issues and preferences were very limited, if not non-existent between the two aisles. Anchored at the opposite ends of the political spectrum, their incorrigibility in political ideologies, institutional structures, and leadership styles led to protracted delays and derailment of the case. For Libya, the primary motive in retaining the accused was not merely dictated by its revisionist tendencies but for rational national security reasons – it did not want its intelligence officers in the custody of Western powers, and perceived that the US’s demands for complete cooperation and access to witnesses and documents as a trap to infiltrate his intelligence. Western interests were initially torn between exploiting this window of opportunity to attack Libya, gain intelligence and curb its terrorism funding, and ensuring justice to the victims’ family. However, having declared Libya as a terrorist state, US position of “No-Negotiations with Terrorists” restrained direct negotiations with Libya, institutionalizing the structure and process of subsequent negotiations. A positional bargaining approach masked certain compatible interests until the later stages of negotiations.

Intuitively, parties are parry to negotiations to satisfy the totality of their interests better through joint decisions than they could otherwise. Hence, unpacking offers, and counter-offers reveals US-UK and Libya’s positions in time and their agency to increase pay-offs and reach an agreement. In this scenario, a bargaining and haggling approach to negotiation was in vain since both parties were negotiating without regards to others reservation price/security points and negotiating outside each other’s ZOPA- The US-UK demand for a trial in the UK laid within Libya’s reservation price to have no Western government interrogate its intelligence officers, while Libya’s counteroffer of a “fair” home country trial with international observers was unacceptable to the coalition.

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