Doubts surround Gaddafi arrest warrants
The timing and nature of the issuance of arrest warrants
against Gaddafi and his allies verifies complex geopolitics.
Richard Falk
Last Modified: 29 Jun 2011 08:15
The International Criminal Court has accused Gaddafi of crimes against humanity
and of ordering attacks on civilians [EPA]
The International Criminal Court has formally agreed that warrants
should be issued for the arrest of Col. Muammar Qaddafi, as well as his
son, Seif al-Islam, who has been acting as Prime Minister along with
Libya's intelligence chief, Abdullah Senussi. These three Libyan leaders
are charged with crimes against humanity involving the murder,
injuring, and imprisoning of Libyan civilians between Feburary 10-18,
2011, the first days of the uprising and prior to NATO's military
involvement. The ICC judge speaking on behalf of a three-judge panel
authorized the issuance of the arrest warrants, Sanji Monogeng of
Botswana, on the basis of the evidence presented by the prosecutor that
'reasonable grounds' existed to support the charges contained in the
outstanding indictments against these three individuals. Judge Monogeng
clarified the ruling by explaining that issuing an arrest warrant was
meant to convey the conclusion that sufficient evidence of criminality
existed to proceed with the prosecution, but it is not intended to imply
guilt, which must be determined by the outcome of a trial.
The
ICC assessment is likely to withstand scrutiny so far as the substance
of the accusations directed at the Qaddafi leadership are concerned.
Qaddafi clearly responded to the popular challenges directed against the
Libyan government with extreme violence against civilians, reinforced
by genocidal rhetoric, which certainly seems to involve crimes against
humanity. But why was such an effort to arrest and indict was pushed so
hard at this time. The timing of the indictment, and now the arrest
warrants, arouses strong suspicions, and not just of bad judgment! It is
relevant to recall that in the course of NATO's Kosovo War in 1999
against Serbia, the Serbian president, Slobodan Milosevic, was indicted
by another European-based international tribunal--the special ad hoc
International Criminal Tribunal for Former Yugoslavia. Are we now to
expect that whenever NATO has recourse to war the political leader
heading its opposition will be charged with international crimes while
the fighting ensues? How convenient! Lawfare in the service of warfare!
Rather
than a matter of convenience, the motivation seems more sinister.
Criticism is deflected from NATO's own lawlessness. In both of these
instances, NATO had itself has resorting to war unlawfully, engaging in
what was designated at Nuremberg as a 'crime against peace,' and held by
that tribunal to be the greatest of war crimes embracing within itself
both crimes against humanity and gross violations of the laws of war
(war crimes). In the Kosovo War NATO acted without a mandate from the
UN, thereby violating the UN Charter's core principle prohibiting
non-defensive uses of force unless authorized by the Security Council.
In Libya there was such an initial authorization to protect civilians by
establishing a no fly zone (Security Council Resoultion 1973, 17 May
2011), but the NATO mission as executed almost immediately grossly
exceeded the original mandate, and did little to hide its unmandated
goal of regime change in Tripoli by way of ending Qaddafi's role as
ruler and thereby achieving victory for opposition forces in a civil
war. It is certainly worthy of comment that in both of these wars
initiated by NATO the leader of a country attacked was targeted for
criminal prosecution before hostilities has ended. Even the Allies in
World War II waited until after the end of combat before trying to
impose their version of 'victors justice' on surviving defeated German
and Japanese leaders.
A similar manipulation of criminal
accountability occurred in Iraq a few years ago. There the American led
aggressive war waged against Iraq in 2003 was quickly followed by a
carefully planned and orchestrated criminal prosecution, stage managed
behind the scenes by the US occupation commanders), followed by the
execution of Saddam Hussein (and his close associates). The Iraqi trial
was politically circumscribed so as to exclude any evidence bearing on
the close and discrediting strategic relationship maintained between the
United States and Iraq during the period of Saddam Hussein's most
serious instances of criminality (genocidal operations against Kurdish
villages), as well as by disallowing any inquiry into American
criminality associated with the attack on Iraq and subsequent
allegations of criminal wrongdoing in response to Iraqi resistance to
military occupation. This American potential criminality was never
discussed, much less investigated in a responsible manner.
What
converts these separate instances into a pattern is the Eurocentric (or
West-centric) selectivity evident in most recent efforts to enforce
international criminal law. It should be noted that this selectivity is
made more objectionable by the impunity accorded to European, American,
and Israeli leaders. Double standards so pervasively evident in this
behavior undermine the authority of law, especially in relation to a
subject-matter as vital as war and peace. Unless equals are treated
equally most of the time, what is called 'law' is more accurately
treated as 'geopolitics.'
The geopolitical nature of this
approval of arrest warrants just issued by the ICC is unintentionally
confirmed when it is acknowledged by NATO officials that it will not be
possible to arrest Qaddafi unless in the unlikely event that he is
captured by the Rebels. Governmental representatives in Washington
admitting this, have declared that the warrants will nevertheless be
useful in forthcoming UN debates about Libyan policy, presumably to push
aside any objections based on the failure by NATO to limit military
operations to the no fly zone initially authorized by the Security
Council. It should be remembered that the initial authorization in SC
Resolution 1973 was itself weakened by five abstentions, including China
and Russia, and further, by South Africa that voted with the majority,
while expressing strong objections to the subsequent undertaking. One
wonders whether China and Russia would not have used their veto had they
anticipated how far beyond what was insisted on limited humanitarian
purposes by the proponents of the use of force would the actual
operation become. In effect, to overcome any impression of unlawfulness
on NATO's part it is useful to demonize the adversary, and an opportune
way to reach this goal is to put forward premature accusations of severe
criminality.
Of course, as has been pointed out more than once,
there was an embedded hypocrisy in the central argument put forward by
the states seeking a UN green light to intervene in Libya, which was
based on the responsibility to protect norm that supposedly confers a
duty on the international community to protect civilian populations that
are being subjected to severely abusive behavior. Too obvious
contradictions were present. Why not Syria in the current regional
setting? And even more starkly, why not Gaza back in 2008-09 when it was
being mercilessly attacked by Israel? The answers to such questions are
'blowin' in the wind.'
There are further more technical reasons
in the present setting to challenge the timing of the arrest warrants.
They seem legally and politically dubious. Legally dubious because the
most serious criminality associated with the behavior of the Qaddafi
regime during the conflict occurred after the ICC cutoff date of 18
February (e.g. the siege of Misrata). Why other than ulterior
motivations was there this rush to prosecute? Politically dubious
because there is now a new obstacle to diplomacy in a situation where
the alternative seems likely to be a prolonged civil war. Negotiating
space for an accommodation is definitely reduced by this implication of
Qaddafi's criminality that creates incentives for the Tripoli leadership
to fight on as long as possible.
Perhaps, cynics would argue
that law always reflects power, and of course they are correct to a
certain extent. Progress in human affairs arises from a struggle against
such pretensions. And the locus and nature of power is changing in the
world: the West is losing its capacity to shape history and high
technology warfare, upon which the West depends to enforce its will on
the non-West, is losing its capacity to produce political victories
(e.g. anti-colonial wars, Vietnam, Iraq, Afghanistan). This politicized
use of the ICC in the course of the Libyan War offers an opportunity for
those dedicated to global justice, especially in the Arab world, to
insist that international law should no longer serve as a plaything for
those who intervene with hard power in their region from the comfort
zone of NATO headquarters.
Richard Falk is Albert G Milbank Professor
Emeritus of International Law at Princeton University and Research
Professor in Global and International Studies at the University of
California, Santa Barbara. He has authored and edited numerous
publications spanning a period of five decades. His most recent book is
Achieving Human Rights (2009).
He is currently serving his fourth year of a six year term as a United Nations
Special Rapporteur on Palestinian human rights.
The views expressed in this article are the author's own and do not
necessarily reflect Al Jazeera's editorial policy.
http://english.aljazeera.net/indepth/opinion/2011/06/20116287132175572.html
[Non-text portions of this message have been removed]
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