Why we should send Gaddafi and his awful outfits to the ICC

Normally I associate the 1980s with the Thatcher government, the miners’ strike, the Falklands war and alarming fashion decisions.  I often forget it was also the decade that saw the end of apartheid in South Africa and the Berlin wall.  But watching the Arab Spring spread across the Middle East has reminded me that these international events had as big an influence on me as did events on my own doorstep.

During my school years this translated into ardent campaigning for Amnesty International.  I spent many an industrious lunch hour writing airmail letters to despotic governments, politely requesting (always politely) that they release a prisoner of conscience or commute a death penalty.

My letter writing may have diminished somewhat but I am still against the death penalty, whatever the crime.  As far as I am concerned, this applies to tyrants as much as to common-or-garden murderers (if there is such a thing).  I’ve seen arguments that tyrants such as Gaddafi should be an exception, that only their execution can signal a definitive end to their tyrannical rule and allow a new nation to flourish.

Robespierre claimed as much in 1792 when, despite his personal opposition to the death penalty, he argued it should be applied to the king:  ‘With regret I pronounce this fatal truth: Louis must die so that the nation might live.’  But as the subsequent Terror in revolutionary France suggests, it is never the end.

Muammar Gaddafi is clearly not a nice man (as well as having no fashion sense).  He should be sent to International Criminal Court (ICC) for trial, assuming, of course, he’s ever found (it can’t be that difficult with that 80s-rivalling wardrobe).  But since the ICC issued an arrest warrant for him, his son and his head of military intelligence in February, debate has raged as to whether he should, and could, stand trial in The Hague or whether the Libyan people should prosecute him themselves.

The problem is that the ICC has been the subject of controversy since it was set up in 2002.  The aim in setting up a permanent international criminal tribunal was to avoid the delays inherent in setting up ad hoc tribunals in response to specific situations, such as those in former Yugoslavia and Rwanda.

Arguably, so far, it hasn’t been particularly successful in this regard:  it has only just concluded its first trial, that of Congolese warlord Thomas Lubanga, arrested in March 2006 and accused of recruiting hundreds of child soldiers and sending them to fight and kill in his country’s civil war.  Judgement is still pending.

There are, as of 1 September, 116 states party to the Statute of the Court, including all of South America, nearly all of Europe and about half the countries in Africa.  Russia has not ratified the treaty and neither China nor India have signed it.  The USA has ‘unsigned it’, meaning it no longer intends to become a state party and has no legal obligations under the treaty (can one generally ‘unsign’ legal documents?  Could be handy to know).

It was also US opposition that thwarted attempts to give the court international jurisdiction.  As such, unless the UN Security Council makes a referral, it only has jurisdiction in states that are signatories and only when national courts are unwilling or unable to investigate or prosecute.

More controversially, the ICC has been accused of double standards and a tool of western imperialism:  so far, it has only investigated African countries and indicted Africans.  In particular, it has been criticised for making no moves to investigate Syria, Yemen or Bahrain, despite the brutal tactics employed by their governments in crushing opposition uprisings.

As far as Libya is concerned, not being an expert in international law, I am nonetheless going to stick my neck out and say it is my understanding that the ICC does have legal jurisdiction.  Even though Libya is not a state party to the court, the UN Security Council’s referral in February enables the ICC to investigate and issue arrest warrants.  Al Jazeera reported the arrest warrants were welcomed by Libyans and the head of the National Transitional Council who said ‘justice has been done’.

It’s easy to understand why Libyans would want to put Gaddafi on trial themselves.  What is less clear why David Cameron has insisted the fate of Gaddafi to be a matter for the Libyan people.  I would have thought this is precisely the time when we should be highlighting the importance of international law and shoring up the role of the ICC, not undermining it.  This should be an opportunity to send a strong signal to other tyrannical regimes that they will not be allowed to torture and murder their citizens with impunity.

The Libyan people, of course, have a right to self determination and could argue that they are willing and able to put Gaddafi on trial.  However, Amnesty International has suggested the justice system they will inherit is not up to the job.  It’s also easy to imagine how, after suffering repression for so long, such a trial could descend into revenge and retribution.

The execution of Saddam Hussein in Iraq was just such an example.  I don’t know anyone who felt that was a good day for democracy.  It may have marked the end of an era, but it certainly didn’t end the conflict or atrocities.  It looked more like savage revenge than impartial justice and caused an outcry around the world.

In a rather grim twist of irony, the then president of Egypt Hosni Mubarak said Saddam’s botched hanging turned the former Iraqi leader into a martyr.  On trial in his own country, it may be that Mr Mubarak is the next deposed dictator to suffer such a fate.  But the last thing Egypt, or Libya needs, is a martyr.

For Libya to become a new nation it should instead heed the words of George Kateb on individuals and democratic culture:  ‘…the state’s power deliberately to destroy innocuous (though guilty) life is a manifestation of the hidden wish that the state be allowed to do anything it pleases with life’.

Better, surely, to hand over Gaddafi to the ICC to be tried for crimes against humanity.  International law demands it and we should encourage Libya towards that end.