HAGUE LETTER:Governments backing the International Criminal Court must make sure there will be no impunity over Libyan excesses, writes PETER CLUSKEY
WHEN THE International Criminal Court (ICC) warned Col Muammar Gadafy on Monday that he is to be held criminally responsible for the actions of his regime, it was just its second time launching a formal investigation into a sitting head of state.
The first was in March 2009, when the ICC issued an arrest warrant for Sudan’s president Omar Hassan al-Bashir for war crimes and crimes against humanity – followed in July 2010 by a second warrant, this time for genocide in western Darfur.
In response to the charges laid against al-Bashir by the ICC’s chief prosecutor, Luis Moreno-Ocampo, a Sudanese government official infamously pledged to “turn Darfur into a graveyard” – and al-Bashir, not surprisingly, has never surrendered himself to the court in The Hague.
At the time, as the UN began evacuating non-essential personnel from Sudan for fear of reprisals, pro-Bashir loyalists in the streets of Khartoum and El Fasher, the capital of north Darfur, chanted: “We don’t need Ocampo. We don’t need the ICC.” That was pretty much the view too at the time of Col Gadafy, who as chairman of the African Union described the ICC indictment as a form of “terrorism” – and an attempt by the west to “recolonise their former colonies”.
So it’s not without irony that now, just a few years later, it is Gadafy himself; his son, Saif al-Islam; and his brother-in-law and security chief, Abdullah al-Sanoussi, who are squarely in Moreno-Ocampo’s sights, facing the threat of international arrest warrants. And now, as then, the ICC is treading on politically sensitive ground.
The argument was advanced at the time of the al-Bashir indictments that rather than facilitating a settlement in Darfur, the ICC charges would exacerbate the conflict and al-Bashir would dig in, which he did. Now the same is being said about Col Gadafy in Libya – and the ICC’s critics may well be right again. That is not to say, however, that the ICC and Moreno- Ocampo are not right.
Established in 2002, the independence of the ICC – visited by President Mary McAleese on her official visit to the Netherlands this month, and by former president Mary Robinson, with the group of international leaders known as The Elders last week – is paramount.
The aim when it was set up was to give real tangible force for the first time ever to the international rule of law by establishing a permanent court which could exercise jurisdiction in cases involving the most serious international atrocities.
The court has jurisdiction only in three circumstances: where the accused is a national of a member state or a state which accepts its jurisdiction; where the alleged crime took place on the territory of such a state; or where a conflict is referred to it by the UN Security Council – as happened in the case of Libya.
Before the ICC was established there were a number of separate independent tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR). There are also several special courts and tribunals, such as the Special Court for Sierra Leone, the Special Tribunal for Cambodia, and the Special Tribunal for Lebanon, investigating the assassination in 2005 of former Lebanese prime minister Rafik Hariri.
The ICTY brought Slobodan Milosevic to The Hague only to see him die in 2006 in the final stages of his trial; Radovan Karadzic is currently on trial for genocide, and Gen Ratko Mladic, the Bosnian Serb commander, remains at large.
The trial of former Liberian president Charles Taylor at the Special Court for Sierra Leone briefly entered the public consciousness last August when supermodel Naomi Campbell admitted she was given so-called “blood diamonds” – illegally mined to pay for weapons used in war – by Taylor at a dinner party hosted by Nelson Mandela in South Africa in 1997.
While these courts and tribunals have their critics, who describe them as far too expensive, far too long-running, and too often an opportunity for the defendant to grand-stand, their defenders argue that they demonstrate nobody is above the law, that they provide an incontrovertible historical record of brutalities they investigate, and that, ultimately, they promote peace and reconciliation.
Both sets of arguments equally apply to the International Criminal Court, which is a decade old next year.
Also crucial to the ICC’s standing and credibility is the status of its chief prosecutor, Moreno-Ocampo, whose position is as independent as the court’s, and who cannot be dictated to – even, perhaps particularly, by the UN Security Council.
That is why – whatever the political considerations at play when the ICC decides or is asked to investigate any particular set of alleged barbarities – Moreno-Ocampo’s freedom to act as and when he feels appropriate is regarded as sacrosanct by international legal experts.
So when Moreno-Ocampo says, as he did in The Hague on Monday: “There will be no impunity in Libya,” the governments which support the ICC must ensure there is not. Whatever about politics, that is how justice works.