Deliver Gadhafi to courtroom justice

Erna Paris
Globe and Mail, May 4, 2011

Luis Moreno-Ocampo, the prosecutor-in-chief of the International Criminal Court, will address the United Nations Security Council on Wednesday for the first time since Feb. 26, the day the world organization unanimously referred the abuses taking place in Libya to the ICC. The historic moment deepened just three weeks later when the council voted to enforce a no-fly zone over Libya and to use all means necessary short of foreign occupation to protect civilians, thus actualizing UN legislation known as the “responsibility to protect.” For the first time, the pursuit of justice, including accountability for crimes against humanity and major war crimes, was harmonized with international diplomacy in real time. Since the post-Cold War genocides in Bosnia and Rwanda, global outrage over massive human-rights violations has been quietly nudging conventional realpolitik in directions that privileged international law.

Mr. Moreno-Ocampo will tell the Security Council that his investigations indicate that massive crimes against humanity, including murder, torture and rape, have been committed in Libya; and that security forces are systematically firing live ammunition at unarmed civilians. Ironically, he will deliver this report against the potentially game-changing backdrop of two recent events.

The first was a bombing by NATO that missed killing Moammar Gadhafi, but killed his son and three innocent children, instead. The second was the assassination of Osama bin Laden. The truth about U.S. President Barack Obama’s orders – whether to apprehend Mr. bin Laden, if possible, or to kill him outright – remains murky. This may be of indifferent interest to the blood-lusty revellers pictured cheering in front of the White House, but millions of people who understand that respect for international law is the sine qua non of global stability may think differently. Although the word “justice” is being tossed around by politicians, revenge (although sweet) is its polar opposite.

Extrajudicial assassinations are the antithesis of moral and legal justice as embodied by the post-Cold War international courts that have been breaking ground by prosecuting major perpetrators, all of them founded upon the conviction, first articulated at the Nuremberg Trials, that triumphalism and revenge are inimical to long-term peace. A trial for Mr. bin Laden may have looked messy in prospect, but the evidence of his crimes would have exposed his deeds to future generations and diminished his symbolic power, as did the trials of Adolf Eichmann and Klaus Barbie.

As for Mr. Gadhafi, Mr. Moreno-Ocampo will tell the Security Council that he will soon submit his first application for an arrest warrant to the ICC judges for approval. However, given NATO’s intent to assassinate the Libyan strongman (denials to the contrary), will the prosecutor be sidelined by the same countries that gave him a unanimous mandate to investigate crimes in Libya and to effect courtroom justice?

Even before these two events, Mr. Moreno-Ocampo’s appearance before the Security Council was slated to occur at a fragile time for the UN, NATO and the ICC itself. Instead of ending the Libyan conflict quickly, as expected, the NATO mission has bogged down as countries bicker over how to interpret the “no-fly” resolution of March 17. France and Britain have pushed for greater assistance to the rebels, but what they apparently forgot when approving the attempted killing was that they must necessarily operate from behind. Only the rebels can front the war against their tyrant if the West is to avoid the dreaded “imperialist” label in Arab and African capitals.

Failure in Libya would be destructive to NATO, which has struggled to determine a new role since the end of the Cold War. Failure might also suggest that the responsibility to protect doctrine is simply too politically risky. The removal of humanitarian intervention from the peace and security tool kit would be a serious reversal for international human rights.

On April 14, the Libyan Interim Transitional National Council wrote to Mr. Moreno-Ocampo stating its commitment to trials and the rule of law. In other words, not assassination, an illegal act that encourages violence; not exile, which would condone impunity; and certainly no toleration for the continuing rule of their country’s Great Leader. Is bombing, as subtle as an elephant in a china shop, the only tactic NATO can envision? Once the ICC warrants have been issued, will other possibilities suggest themselves? Covert operations, anyone?

When Mr. Moreno-Ocampo stands before the Security Council, he will stress that the ultimate protection of civilians is tied to the trial of those responsible for the most serious crimes: that justice is achieved when murderous perpetrators stand in the dock and are judged according to the laws we all must live by. He will challenge the member states of the Security Council to meet their obligation to capture, not kill, Mr. Gadhafi. Let us hope this historic opportunity will not be squandered.

Erna Paris is the author of The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice. Prosecutor, a documentary inspired by her book, will premier on TVO on May 11.

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