Gerry Simpson
June 29, 2011 - 10:20AM
A man walks past caricatures of Libyan leader Muammar Gaddafi (left) and his son Saif near a courthouse in Benghazi1. Photo: Reuters
Many Western officials have hailed the International Criminal Court's decision to issue arrest warrants for Colonel Muammar Gaddafi, his son, Saif and his intelligence chief Abdualla Al-Senussi for crimes against humanity as a breakthrough in the war against Libya's leader.
It also has been described as a great advance for international criminal justice, but while the warrants themselves contain some surprises, the move has two great dangers — for the Libyan people and for the ICC.
The discredited Gaddafi regime is threatened on three fronts — the rebels appear to be closing in on Tripoli, the NATO airstrikes continue and now legal proceedings have started over the regime's response to the rebel uprising.
The warrants are based on information documenting a pattern of attacks on civilians by the Libyan armed forces, Gaddafi's security forces and mercenaries fighting on behalf of the regime. They paint a predictably grim picture of a regime intent on punishing resistance to Gaddafi's rule. But the warrants contain some surprises. There is no reference to war crimes, for example. This suggests that the ICC chief prosecutor may not have believed that the rebel uprising and accompanying repression reached the level of intensity required under the legal definition of "war". In any event, the result is that the warrants seriously underplay the existence of an armed rebellion in eastern Libya (indeed I could find no reference at all to this rather significant feature of the situation).
It is striking, too, that the court has sought the arrest of Gaddafi's son. For some years, Saif Gaddafi, a darling of the West, has been the respectable, modernising face of Libya. He has a PhD from the London School of Economics and has been making the right noises about reform and democracy for many years. Human Rights Watch reports suggest, too, that any improvements in the treatment of citizens may have been attributable partly to him. His inclusion in the warrant, then, effectively ends any hope of a Gaddafi-led transition to a more decent form of government.
The issuing of the arrest warrants also carries dangers for the Libyan people — it may prolong the war by deterring the Gaddafis from voluntarily giving up power. Indeed, the warrants close off some escape routes for Colonel Gaddafi. Some of the countries (for example. Venezuela) to which he might flee are now barred by their international obligations from giving him sanctuary. Of course, the ICC move may encourage further defections from his regime and hasten its end but there is no guarantee of this.
Another danger is that these arrest warrants may diminish the credibility of the ICC. It is not the ICC's fault that British Foreign Secretary William Hague expresses delight with its decisions but the result might be a growing perception that the court (for all its recent achievements in Africa) has become the judicial arm of NATO and that judicial interventions fall meekly into line with Western military interventions. And, after all, there was no sustained call for international criminal trials while Gaddafi was committing serious and systematic cruelties on his own people before the recent rebellion and during the period of his decade-long rehabilitation. All this may give the impression that international criminal law is for enemies of the Western powers. In the light of this, the ICC still needs to prove that it is a global court whose laws are applicable to friends and enemies.
But perhaps this is all part of a much deeper problem for international criminal justice and one that the ICC (given the rules it operates under) will find difficult to confront: namely that international criminal justice is embedded in a system of governance that forecloses the prosecution of officials of the great powers (in particular the US, Britain, China, Russia and France). Not a single official from one of these states has been indicted before an international criminal court since 1945. From this perspective, the Libyan arrest warrants look like business as usual.
Professor Gerry Simpson holds a Chair of Law at Melbourne Law School and is a Visiting Professor at the London School of Economics.
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Read more: http://www.smh.com.au/opinion/politics/gaddafi-warrants-expose-the-limits-of-global-justice-20110629-1gpt1.html#ixzz1Qf0gi3Gl
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19 comments so far
You gotta laugh, Bush and Blair bomb and kill thousands based on false information and not only get away with it, make money by writing books on their criminal behaviour and travelling the world giving speeches.
If this Gaddafi man is so bad why has he spent 25 billion on a water pipeline for the people to pump fossil water from an ocean of fresh water deep below the desert ? This will make Libya self sufficient in food and no need for expensive distillation plants that turn sea water into drinking water.The pipeline has taken 5 years build.
If he is so bad why does he provide free health care, education and subsidised housing ? Why do Libyans enjoy the highest standard of living and life expectancy in Africa, equivalent to the Western world ? Libyan debt is 3% of GDP, US debt is 90%. Is this a bad thing to run your country at very low debt levels ?
Gaddafi made the mistake of using the Libyan resources to improve his peoples standard of living.The IMF do not want any country self sufficient, and are against Muslim countries/banks because they do not charge interest.
Why are they in Libya ?
They want a private usury Central Bank to fleece the place. End of story.
What was the first thing the 'freedom fighting' rebels do of course, set up a Central Bank. Now, who do you think are funding those rebels ?
street professor | sydney - June 29, 2011, 11:21AM
Perfectly put street professor.
together | japan - June 29, 2011, 11:35AM
That's not the way the world works street professor. Possibly get a post grad uni degree and you'll realise the ways of the world, and stop preaching your street views
James | GAP Year - June 29, 2011, 11:35AM
Excellent article. It is becoming more apparent that the ICC is run by western governments for western governments. Otherwise we would see warrants issued for George W Bush and Mr Cheney and Mr Blair and co. NATO has already admitted killing civilians in Libya in a conflict that has not been declared as a war, so where is the ICC in this area? do they agree that certain NATO countries have committed acts against humanity, or are we to believe that only those who are perpetrated by the western media as culpable, matter to the ICC?
You cannot instil faith in a judicial system, where that system would seem to be turning a blind eye to the actions of some, but choosing to pursue action onto others. And yet that is what the ICC has done.
jonjo | Sydney - June 29, 2011, 11:36AM
I can only criticise the writer's moderation, then again in the Australian university system to go after the western imperial world government institutions, trumped up R2P bogus international law revisionism and imperial aggression, or people like the International Crisis Group's Gareth "Biggles" Evans or some ICC supporting jurist or an out of control foreign minister is career limiting or "brave" in public service speak. So good luck Gerry we'll be watching.
And for the others, here is what the commander of US forces Admiral Mullen and Defence Secretary Robert Gates had to say in response to questions of whether Ghaddafi had killed civilians "we've seen no confirmation whatsoever". Fat lot of good that restraint did, they went straight in.
And remember Moreno announcing off cuff that the Gaddafi's would be prosecuted for supplying drugs for troops to use to rape civilians. Where was the resignation when he was proved an idiot who doesn't observe any rule of evidence? And where did the real psychedelic drugs turn up?
Crime under international law of Westphalian derivation is committed when the ICC pulls incentivised witnesses out of conflict theatres in order to lay charges against leaders of regimes that the west wants to overthrow by any means. In every instance more civilians get killed than would otherwise if not for intelligence led operations and insurgencies that launched the conflicts from abroad. This applies to all the "pet" R2P justifiers like Rwanda, Bosnia, Kosovo etc.
ciao - June 29, 2011, 12:27PM
Can any one image what would have taken place if Hitler had been arrested and tried on an ICC warrant instead of the war continuing and millions of jews being killed?
If Gadaffi has lost his opportunity to flee to other countries, is that not good? He can only stand trial instead of seeking refuge.
The ICC has yet to stretch its wings. Let it do its job.
@ street professor | sydney - June 29, 2011, 11:21AM hasn't the ICC already had Gaddafi's and his families bank accounts around the world frozen? With billions of dollars in those accounts? And what about real estate Gaddafi and his family have bought around the world?
A dollar for the people and ten dollars for the Gaddafi family is not a country benefiting from its existing rule. Oh, I don't know actual figures. The dollar for ten dollars is an example and nothing more.
cb - June 29, 2011, 12:33PM
Feel free to correct me if I am wrong but I understood the difference to be that George W Bush and Mr Cheney and Mr Blair ordered that civilian casualties (collateral damage) were to be avoided or minimised. They never allowed civilians to be primary targets but Muammar and Saif Gaddafi are accused of ordering civilians to be primary targets as well as other atrocities. I do not know the law here but from a legal perspective is that a reasonably large difference?
peteg3 | sydney - June 29, 2011, 12:34PM
Below find UK's Daily Telegraph on the line in the UN security council resolution regarding ICC prosecutions that creates impunity for the actions of all non ICC signatory foreign aggressors in the Libyan conflict theatre whether in uniform or covert.
quoteThe key paragraph said that anyone from a non-ICC country alleged to have committed crimes in Libya would "be subject to the exclusive jurisdiction" of their own country. It was inserted despite Susan Rice, the US ambassador to the UN, saying that all those "who slaughter civilians" would "be held personally accountable".
Speaking to reporters outside the council chamber, Gerard Araud, the French UN ambassador, described the paragraph as "a red line for the United States", meaning American diplomats had been ordered by their bosses in Washington to secure it. "It was a deal-breaker, and that's the reason we accepted this text to have the unanimity of the council," said Mr Araud.
unquote
Of coarse the pro establishment Tele coloured it by talking about Ghaddafi's African mercenaries who turned out to be regulars or just black gust workers that the racist Benghazi's were stringing up on sight at the time and needed a justification for their actions.
Players call it law. The law of the jungle.
For antijihad, you know those Coptics you are so concerned about in Egypt? Yes that was an Israeli-American spy held for cultivating with cash the same sort of jihadi wahhabist as in Libya to attack those so dear to your heart.
ciao - June 29, 2011, 1:00PM
@ street professor | sydney - June 29, 2011, 11:21AM hasn't the ICC already had Gaddafi's and his families bank accounts around the world frozen? With billions of dollars in those accounts? And what about real estate Gaddafi and his family have bought around the world?
A dollar for the people and ten dollars for the Gaddafi family is not a country benefiting from its existing rule. Oh, I don't know actual figures. The dollar for ten dollars is an example and nothing more.
cb - June 29, 2011, 12:33PM
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You don't think Western leaders benefit from leading their countries ? You realise the links between western politicians and the banking, oil and arms industries ?
Majority of the money that has been "frozen" belongs to the Libyan Investment Fund (LIA), which is a sovereign wealth.funds, and therefore holds assets on behalf of the nation it represents. A sovereign wealth fund, by its very nature, can not serve to hide personal fortunes.
The ones who should be made accountable of robbery are the US and the EU, who have diverted each, respectively, 32 billion $ and 45 billion euros, belonging to the Libyan people, under the pretext of "freezing Gaddafi's money".
The board of trustees managing the LIA is composed of Libyan officials / list available on Internet. There is no Gaddafi family member among them. This initiative to "fund the resistance" is nothing but pillage and plunder
street professor | sydney - June 29, 2011, 1:09PM
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Các anh chị có ý kiến, phê bình gì qua bài viết "Gaddafi warrants expose the limits of global justice" và một số ý kiến phê binh trên của đọc giả ???
Những tên độc tài đã từng nhúng tay vào MÁU của thường dân dù là dân của nước họ hay bất cứ dân của nước nào khác CŨNG PHẢI ĐỀN TỘI.
Các anh chị có suy nghĩ gì về sự tồn tại trên ngai vàng của độc tài Gadhafi trên đầu người dân Libya, có phải tự bản thân độc tài Gadhafi có khả năng "thống trị" người dân Gadhafi hay đã được "nuôi dưỡng" bởi những thế lực nào khác trên thế giới ???
Và đâu là nguyên nhân chính đưa độc tài Gadhafi đến kết cuộc ngày hôm nay ???
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