The ICC’s Arrest Warrant for Gaddafi: Justice, Peace and Politics Meet

July 16, 2011

By Natasha Harrington, pupil barrister (Essex Court Chambers, London)

On 27th June 2011, the Pre-trial Chamber of the International Criminal Court (ICC) issued arrest warrants for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi (see here). The Court found reasonable grounds to believe that the three have committed crimes against humanity by murder contrary to article 7(1)(a) and persecution of opponents to the Gaddafi regime contrary to article 7(1)(h) of the Rome Statute.

Muammar Gaddafi has become the second serving head of state, following President Al-Basheer of the Sudan, to face prosecution by the ICC, where state officials are not immune from prosecution. Libya is not a State Party to the Rome Statute. Therefore, the jurisdiction of the Court is based on United Nations Security Council Resolution 1970, referring the situation in Libya to the ICC as of 15th February 2011, in accordance with article 13(b) of the Rome Statute.

In contrast, no investigation or charges have been brought against any members of the National Transitional Council (NTC), despite a report from the U.N. High Commissioner for Human Rights that cited evidence of serious abuses by NTC forces. Nevertheless, Gaddafi has made clear his intention to use the Libyan State courts for this purpose, and to try the NATO member states for war crimes.

Justice 1: 0 Peace?

If Gaddafi and his close associates do not relinquish power and slip away it may take NATO and the NTC many more weeks and months to remove them, and in the process Libyan civilians and the unity of their country will suffer the most. Many are now questioning whether the ICC arrest warrants are a triumph for justice at the expense of peace because, in the words of the Italian Foreign Minister, once a warrant is issued ‘from that moment on an exit from power or from the country will no longer be imaginable’.

All State Parties to the Rome Statute have an obligation to ‘cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court’ (article 86 of the Rome Statute). Following the issue of the arrest warrants any State Party finding Gaddafi on its territory would be required to surrender him to the ICC, and so many States can no longer legally offer him exile. Uganda, a party to the Rome Convention, has indicated that it will disregard the arrest warrant. However, this may be of little practical use because Gaddafi will have difficulty in leaving Libya without the knowledge of NATO, whose members have an obligation to apprehend him. Further, the arrest warrants have resulted in furious statements of resolve to stay in Libya from Gaddafi’s regime.

The United Nations Security Council has the prerogative to stall the prosecution in the interests of peace under article 16 of the Rome Statute. It may request a deferral of prosecution for a renewable period of twelve months. The Court itself cannot balance the interests of peace and justice in its pre-trial hearings, and can be driven forward by the determined Chief Prosecutor, Luis Moreno-Ocampo.

However, the dichotomy between justice and peace may be false if Libya’s best interests lie in a just peace. The arrest warrants may catalyse the collapse of the Gaddafi regime because officials of the regime will be wary of attracting liability as co-perpetrators, aiders or abettors if they continue to participate in Gaddafi’s attempts to crush his opposition. Further, assuming that the Gaddafi regime is defeated, the arrest warrants may put accountability and justice at the forefront of efforts to re-establish stability in Libya. They may reduce the power of Gaddafi’s closest allies in peace talks, as indictments by the International Criminal Tribunal for the Former Yugoslavia against Mladic and Karadicz appear to have done in the Dayton peace talks. Mark Kersten argues by analogy with Uganda that the arrest warrants will make clear that accountability must be part of a peaceful solution, regime change is not an end in itself, it must bring justice and reconciliation.

Meanwhile, the NTC’s statement that Gaddafi can retire in Libya if he cedes power may show that justice can be both carrot and stick in moving the country towards peace. It puts accountability on the agenda and uses it as the means to sue for an end to the violence. Such a pragmatic result will be seen by some as frustrating the work of the ICC and the UN. In particular, Libya would be acting in defiance of Security Council Resolution 1970, which calls on the Libyan Authorities to cooperate fully with, and provide any necessary assistance to, the ICC. However, it may also be the best way of ensuring that the ICC plays a constructive role in finding a just peace of Libya.

A Just Peace

Criticisms over the Ben Ali trials in Tunisia show that if justice is ignored or simply parodied a vital opportunity to bring closure to the victims of the regime may be missed (see our posts on international justice here and here, as well as Robert Fisk’s article for the Independent Online). The Ben Ali trial shows that domestic justice must be rigorous. It must also be a true judicial process, it is not only important to reach the right result but to hear the victims of torture give their story. Avoiding a bare victors’ justice is always difficult following regime change, but are there any deeper reasons why a trial on the international stage is better than a domestic trial?

The Search for International Justice Continues

The fundamental objection if Gaddafi does evade prosecution must be that international standards of justice in respect of the gravest offences will not be upheld. This is a serious concern, and yet this case has highlighted that a truly international justice is still in evolution.

The African Union reacted to news of the Gaddafi Arrest Warrant by deciding, on 1st July 2011, that its members should not comply with the Court’s decision. Jean Ping, the Chairperson for the African Union Commission, said that the Court is ‘discriminatory’ because it targets Africans whilst ignoring the acts of Northern powers in Iraq and Afghanistan.

Chief Prosecutor Luis Moreno-Ocampo’s attempts to drive forward prosecutions and to make the ICC a ‘sexy’ Court are the focus of this criticism. The Chief Prosecutor is the dynamo of the ICC because the Court has limited powers to control his tempo. In the long term this should be a good thing, ensuring that the ICC makes a significant contribution to International Criminal Law. However, the ICC is about to enter a new phase, Mr. Ocampo’s tenure ends in June 2012 and his replacement will be chosen in December 2011. The African Union has made clear that it wants an African candidate. The best nomination would surely operate pragmatically, to redress the perceived imbalance, but proactively, pursuing a truly international justice across all of the world’s continents.

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