May 16, 2011
ICC Prosecutor Indicts Gaddafi: Ethic of Conviction or Ethic of Responsibility?
Inevitably given the level of briefing, leaking and PR emanating from the ICC Prosecutor’s office in the past fortnight, Colonel Gaddafi and his intelligence chief, Abdullah Senussi, have been indicted as suspects for crimes against humanity by Luis Moreno-Ocampo today. Less expectedly, the former’s son, Saif, has also been named. ICC judges must still decide whether or not to issue warrants for their arrest. Moreno-Ocampo said: “The evidence shows that Muammar Gaddafi personally ordered attacks on unarmed Libyan civilians. His forces attacked Libyan civilians in their homes and in the public space, shot demonstrators with live ammunition, used heavy weaponry against participants in funeral processions and placed snipers to kill those leaving mosques after the prayers.” Moreno-Ocampo made it clear that if the ICC approves his request for the three arrest warrants, he will not be asking NATO to enforce them. NATO is of course in no place to enforce the warrants, given that it appears no nearer to effecting regime change than it was a month ago. There is increasing evidence that the alliance has ran out of ideas on how to wage the campaign. Gen. David Richards, head of Britain’s armed forces, announced yesterday that he was concerned that the situation would reach a stalemate without increased NATO strikes.
The indictment comes at a time when there is increased expectation that Libya and the international community, both caught in vicious circles of collapse and ineffectuality respectively, will agree to a truce as a precondition for negotiations. After the indictment, the concern must be that any judicial process could unduly delay any process of negotiation, surrender, withdrawal or exile. Even a week or fortnight’s delay on the part of Gaddafi could cost hundreds of lives. This does not appear to have entered into Moreno-Ocampo’s reckoning. One could argue that this is appropriate, given that article 51 of the Rome Statute only allows him to eschew initiating an investigation where there are substantial reasons to believe that an investigation would not serve the interests of justice, which is in deliberate contradistinction to the interests of peace, which only the UN Security Council are allowed to invoke under article 16, which provides that no investigation or prosecution may be commenced or proceeded with under the Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect. The Security Council might make such a request if it transpires that negotiations with Gaddafi are required to resolve the conflict. However, this element of doubt might have been avoided had the Prosecutor shown a greater deal of circumspection and held off an issuing an indictment until a time when it became apparent that it had some chance of success.
The primary reason for abandoning or postponing prosecution is the typical stability versus justice debate where the transitional state or peace negotiations cannot survive the destabilising effects of trying the armed and powerful, which lead those involved in the process to acquiesce to leniency or impunity in the interests of ending conflict. These are what Elster calls “hard constraints” arising out of negotiated transitions where justice is a bargaining chip, with impunity traded for justice. Here, pursuit of justice becomes unfeasible, perhaps best exemplified by the Chilean dictator Augusto Pinochet’s warning “Touch one hair on the head of my soldiers, and you lose your new democracy”. Zalaquett argues that new rulers in these cases follow a commendable Weberian ethical maxim of responsibility by considering the predictable consequences of the actions instead of an ethic of conviction about what is right. Of course, many of these experiences yield self-amnesty or exile, though there have also been democratically legitimated amnesties. As the experiences of courts in the likes of Rwanda, Sierra Leone and Germany demonstrate, the prospects for accountability are better when one side is comprehensively defeated, yet there is little prospect of this occurring in Libya in the short-term.
Should the court issue an arrest warrant for Gaddafi, it would not be the first warrant for a sitting head of state by an international court. However, the first two previous instances showed a greater patience than evinced by Senor Moreno-Ocampo, where a more cautious approach has been taken. In 1999, the International Criminal Tribunal for the Former Yugoslavia issued its first indictment against Yugoslav President Slobodan Milosevic for war crimes and crimes against humanity committed in Kosovo. Significantly, this was four years after the Dayton accords had been arrived at – there is considerable evidence to suggest the Prosecutors in the intervening period, Richard Goldstone and Louise Arbour, deliberately refrained from unsealing the indictment of Milosevic and Karadzic In 2003, the Special Court for Sierra Leone unsealed its indictment of Charles Taylor, then President of Liberia for crimes committed during the Sierra Leone civil war, once more at a time after peace had been established. The indictment of sitting Sudanese President Bashir in 2008 has gone nowhere, though the chances of prosecuting Gaddafi are admittedly better than a country where no consensus could be reached on humanitarian intervention. It is instructive to look at Afghanistan, where in the aftermath of Bin Laden’s assassination, the stalemate had made the inevitable process of talks with the Taliban more palatable – the general consensus in Washington is that talks will begin sooner rather than later, though Secretary of State Hillary Clinton is avowedly sceptical of such a move.
Predictably, Human Rights Watch has brought out the bunting: “The ICC prosecutor’s request acts as a warning bell to others that serious crimes will not go unpunished,” said Richard Dicker, international justice director at Human Rights Watch. “It’s a message to those responsible for grave abuses that they will be held to account for their actions.” Given that Gaddafi and co. remain reasonably safe when one considers the ineffectuality of the spluttering NATO campaign to remove him, the message contains somewhat less punch than Dicker implies. “Libyan civilians who have lived through a nightmare over the past months deserve redress through an independent and impartial judicial process,” Dicker said. “Today’s announcement offers them that chance.” They might very well prefer that bombs stop dropping on them. It is far from clear that the ICC Prosecutor’s action does anything to make this more likely.
