Global Policy Forum

Why the Gadhafi Case had to go to The Hague

The Security Council has referred the escalating crisis in Libya to the International Criminal Court. The Court will investigate whether military attacks on civilians constituted crimes against humanity. This is only the second Security Council referral to the ICC; the first was the case of Sudanese President Omar Hassan al-Bashir in 2005. This article argues that an ICC trial is important not only to end Gadhafi's impunity, but also as a historical record of his crimes.  It could help to deter potential perpetrators even, perhaps, those in powerful states.  The referral tends to strengthen the impression that the court is only concerned with Africa.

By Erna Paris

February 28, 2010

Since the Cold War ended two decades ago, the United Nations has undergone two near-death experiences. In 1994, it undermined its credibility by watching passively as thousands of Rwandans were slaughtered. In 1995, its "safe haven" in Srebrenica was easily overrun by Bosnian Serbs. Yet, the world body did accomplish something important that decade when it established temporary international criminal courts for Yugoslavia and Rwanda to prosecute the major perpetrators of those genocides.

With the crisis in Libya, the UN faced another major test of its credibility. The organization is the repository of the laws of war that were painstakingly agreed to by world leaders over the past 150 years. It's also the repository of international humanitarian law against crimes against humanity. Had the Security Council's response lacked substance in the face of another massacre of civilians, the world might have lost faith in the UN's ability to act in accordance with the very laws that underpin its existence.

The Security Council acted remarkably quickly on Saturday by imposing an arms embargo as well as a travel ban and assets freeze on the Gadhafi family, although it didn't agree to a no-fly zone or to the rescue of civilians by activating the international "responsibility to protect" legislation that was framed in Canada and adopted by the UN in 2006.

But the Security Council's brave decision to refer the case of Moammar Gadhafi to the International Criminal Court does have substantive potential. Since Libya isn't one of the world's 114 parties to the ICC, a referral from the Security Council was the only way the tribunal could assume the case.

The ICC seeks accountability and an end to criminal impunity. It's a tribunal of last resort, meaning it can open a case only when the country of a presumed perpetrator either refuses to hold a trial or lacks the infrastructure to do so fairly. Since Colonel Gadhafi was unlikely to serve an arrest warrant on himself, the ICC was the world's legal alternative.

The victims of massive crimes never forget and, when the time seems right, they sometimes bring their demands for accountability back to the public stage. So it's not surprising that the trigger for Libya's revolt was a festering injustice that resurfaced in a mercurial political environment.

In 1996, 1,200 political prisoners were shot in Tripoli. For eight years, the regime refused to acknowledge the killings; then it refused to tell the victims' families where the bodies of their loved ones had been dumped. When Arab states began erupting in turmoil in January, opening unprecedented possibilities, a Libyan human-rights activist, Fathi Terbil, began to press the government on behalf of the families. When the regime arrested him, a social explosion ensued.

Trials create an important historical record of the crimes dictators like to erase. But even if Col. Gadhafi fails to survive the current mayhem, the Security Council referral will signal a warning. Some of the African mercenaries carrying out the Libyan tyrant's murderous orders are citizens of ICC member states, for example. They, too, may be liable to charges of crimes against humanity.

There's a precedent for the Security Council referral to the ICC. In 2005, it sent the case of Sudanese President Omar Hassan al-Bashir to the tribunal, resulting in an indictment for genocide in Darfur. Reprehensibly, no African country has been willing to arrest Mr. Bashir, and attitudes toward the ICC have been hardening on the continent. This second referral from the Security Council may soften this resistance, especially now that the African Union has formally condemned Col. Gadhafi's breaches of international humanitarian law.

Zimbabwe is another case in point. Earlier this month, President Robert Mugabe arrested 46 people who had met to discuss the uprising in Egypt, charging them with treason. Mr. Mugabe has reason to fear unrest in his country, and he's notoriously brutal. The Security Council referral of the Gadhafi case to the ICC may give him pause as well.

Iran, too, is unpredictable as it anticipates the prospect of greater regional influence. President Mahmoud Ahmadinejad has threatened Israel and crushed dissent at home. The news that the international community is prepared to act on massive breaches by referring world leaders to the court in The Hague may also cause him to rethink any criminal plans he may be formulating.

Courtroom justice is not a panacea for the world's ills, but the presence of the International Criminal Court sends a powerful message to would-be perpetrators of major international crimes. The legitimacy of the UN rests on global law. By sending the case of Moammar Gadhafi to the ICC, the Security Council has restated its founding commitment to human rights and the rule of global law.


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