by Jayne Stoyles Executive Director, Canadian Centre for International Justice; member, Board of Directors, International Institute for Criminal Investigations
- First Posted: Jul 21 2011 08:06 AM
As the North Atlantic Treaty Organization (NATO) contemplates the future of its bombing campaign in Libya, which is aimed at ending four months of violent conflict, the International Criminal Court (ICC) has issued an arrest warrant for the country’s leader, Moammar Gadhafi, as well as his son and brother-in-law. All three are accused of crimes against humanity for allegedly conspiring to carry out intentional attacks on civilians in Libya.
While many felt the military response was essential to help halt the violence in Libya, the ICC’s role is an equally important response to attacks that are said to have included killing, rape, unlawful arrest and detention, and enforced disappearances. The ICC’s chief prosecutor has indicated that Gadhafi may have personally overseen a policy of rape designed to intimidate and retaliate against those opposing his government. He is also accused of ordering snipers to kill people leaving mosques after evening prayers, and of indiscriminate killing during protests.
The ICC is the world’s first permanent international court with a mandate to try individuals for what are considered the most serious crimes of international concern – namely genocide, crimes against humanity, and war crimes. The possibility of holding criminally accountable those responsible for mass atrocities adds teeth to the international laws that have long prohibited such acts.
The ICC treaty negotiators in 1998 expected that the Security Council would be hamstrung by the U.S. and China’s opposition to the court, and would never exercise its right to trigger the ICC’s jurisdiction. Belying this fundamental assumption is the fact that this is the second time the United Nations Security Council has referred a situation to the court for investigation and potential charges.
The first Security Council referral was for atrocities being committed in the Darfur region of Sudan, and resulted in two arrest warrants for Sudanese President Omar al-Bashir – one for crimes against humanity and war crimes in 2009, and another for genocide in 2010.
The referrals of Sudan and Libya, and the fact that the court has responded to each by issuing arrest warrants for the heads of state, are groundbreaking developments in the international movement to end impunity for such serious violations of international law. Security Council involvement is the only way the court can look at crimes being committed in – and by the officials of – a country that has not ratified the treaty. Thus, its willingness to act means the international community has another tool with which to respond to ongoing situations of conflict and human-rights abuse.
Despite this – or, perhaps, because of it – the warrants have not been uniformly welcomed.
The 53-member African Union (AU) has denounced the arrest warrants of both the Sudanese and Libyan leaders. Because only African nations are currently under the scrutiny of the court, the AU’s mantra in these situations is that the ICC is a new tool of western imperialism. It also argues that the ICC will get in the way of negotiations for peace.
African countries were among the most ardent supporters of the court at the time of its creation. Yet, while African human-rights organizations have maintained their strong pro-ICC positions, African leaders have been pulling back. Some say this is precisely because the court is proving to be more wide-reaching and powerful than people expected.
It is important to note that three of the six situations that have given rise to ICC cases to date were referred by the affected states. Still, the critique that the ICC is dealing only with African cases is not without merit, and is being taken seriously by the court. The ICC’s Office of the Prosecutor is analyzing situations on other continents, including in Afghanistan, Colombia, Georgia, Honduras, the Occupied Palestinian Territories, and the Republic of Korea. It has already published the conclusions of its investigations into alleged crimes committed in Iraq and Venezuela.
It is also important to examine the interaction between peace negotiations and quests for justice in each context. In Libya, Gadhafi has shown absolutely no sign of interest in negotiating for peace. On the contrary, he and his son had vowed to fight until the bitter end before there was any serious discussion of the ICC’s involvement.
The arrest warrants can also be seen in another light: They have the potential to put pressure on those around the Libyan leader, who now know that continuing to support Gadhafi may result in similar warrants being issued in their names.
The concern about justice negatively impacting a peace negotiation was also raised when the ad hoc International Criminal Tribunal for the Former Yugoslavia indicted Bosnian Serb political and military leaders Radovan Karadzic and Ratko Mladic. Yet, those involved in securing the Dayton Peace Accord that ended the Bosnian war indicate that these indictments incapacitated the leaders, ensuring the success of the negotiations.
The ICC certainly holds significant promise for a different world. The bold vision is that, as its cases develop and more heads of state and other officials come under threat of personal accountability, the committing of such acts of enormous violence will eventually be deterred.
There is uncertainty about the ability of militarism to help achieve lasting peace in Libya, and, as always, concerns about its human and financial toll. Perhaps we should be listening more to the voices of African civil society and their calls for a strong role for justice through the ICC, rather than simply repeating the refutable claims against the ICC made by the leaders of those countries who may have vested interests in its impotence.