Thursday, 22 September 2011

Prosecuting Gaddafi: ensuring justice in Libya

[This is the title of an article published two days ago on the University of Pittsburgh Law School's Jurist website by Charles Adeogun-Phillips a former international prosecutor and senior UN lawyer, who for over a decade led the prosecution of persons responsible for the Rwandan genocide. It reads in part:]

From all indications, it would seem as though the 42-year reign of Libyan leader and Pan African activist Colonel Muammar Gaddafi is finally over. Like Saddam Hussein, his ego is bound to get the better of him, and he will mostly likely remain on Libyan soil until he is captured by rebel forces. That is not necessarily a bad thing. 

At a minimum, it is clear that the preferred choice of the National Transitional Council (NTC) is that Gaddafi be tried at home on account of the fact that he presided over the brutal slaughter of Libyan civilians during the recent uprising. It may well be that, in an attempt to reflect the totality of Gaddafi's alleged criminal conduct, the NTC may decide that he face trial on international terrorism charges in connection with the bombing of Pan Am flight 103 over Lockerbie, Scotland 23 years ago. Many international commentators have objected to this view on the premise that it is inconceivable that Gaddafi could receive justice at the hands of those whom he has repressed for so long. Consequently, they have argued that his fate should be left to the International Criminal Court (ICC) at The Hague. 

Notable among those clamoring for a trial in the ICC is a leading international human rights lawyer and former president of the UN-backed Special Court for Sierra Leone, Geoffrey Robertson. In recent articles in The Sydney Morning Herald and the Guardian, he argues that as a matter of principle, the fate of the Gaddafis must not be left to Libyans. In that regard, Robertson identifies the massacre of 1,200 captives in a prison compound, the killing of 270 people in the Lockerbie bombing and almost as many in a passenger jet over Chad a few months later, as "the most egregious examples of Gaddafi's international crimes." He argues that it is essential for "Gaddafi [to] face justice in The Hague, not in Benghazi."

I am a little surprised and perhaps even more confused by Robertson's arguments in this regard, considering that the ICC does not have retrospective jurisdiction and is therefore unable to try Gaddafi for these particular crimes. All crimes within the jurisdiction of that court must have occurred after the entry into force of the Rome Statute on July 1, 2002. This is one key feature of proceedings before the ICC. That being the case, even with its best efforts, the ICC will be unable to try Gaddafi for these events.

Apart from lacking the temporal jurisdiction to try Gaddafi for these crimes, the ICC also lacks subject matter jurisdiction, at least so far as the Lockerbie and Chad bombings are concerned. These were acts of terrorism committed without any connection to an armed conflict and as such are outside the jurisdiction of the Rome Statute, even though they constitute international crimes. I fail to understand the logic in Robertson's suggestion that a court, which obviously lacks jurisdiction, provides Libyans with an appropriate forum to try Gaddafi for these crimes. Astonishingly, and still in favor of The Hague, Robertson argues that the fact that "liberation has come to the Libyans courtesy of international law, they have a reciprocal duty to abide by it." As evidence of this, Robertson cites the UN Security Council Resolution 1970 [PDF] of February 2011, which referred the situation in Libya to the ICC, and which has led to charges being filed by the ICC prosecutor against Muammar Gaddafi, his son, Saif al-Islam and Abdullah al-Senussi by the said court.

However, a close examination of UN Security Council Resolution 1970 will reveal that it has nothing whatsoever to do with either the Lockerbie or Chad bombings. In fact, ICC prosecutor Luis Moreno-Ocampo has not indicted the Gaddafis for any of these crimes because he is quite simply barred by statute, thus raising one of the most unique and fascinating aspects of international criminal law. In that regard, although there is no statute of limitation for the prosecution of international crimes, several of the international penal institutions where such crimes can be prosecuted are often of limited temporal and subject matter jurisdiction. Such is the case here.

So, if the ICC prosecutor is statute barred from prosecuting Gaddafi at least in connection with the Lockerbie bombing, he is in effect devoid of the ability to reflect the totality of Gaddafi's alleged criminal conduct in court, especially as this particular crime was "international" in all its ramifications. That cannot be the right approach to seeking justice for both Libyans and the international community at large.

Robertson further cites UN Security Council Resolution 1973 mandating NATO's action in Libya to protect civilian lives, and concludes that no one can pretend that Gaddafi's regime could have been overthrown without the air, sea and logistical support provided by NATO forces. To be fair, he is not the only one that shares this view. It is the collective opinion of many in the "West." However, he likens it to a "duty" under international law, and that is what I have a problem with.

Having totally confused the temporal and subject matter jurisdiction of the ICC in relation to the events outlined above, I trust this renowned British human rights lawyer is not now suggesting that the Libyan people owe the super powers in control of NATO, immense gratitude for their "intervention" in saving the people of Libya and that the time has come for some sort of "payback," after all, as the saying goes, nothing goes for nothing. In all my years of practice as a distinguished member of the international bar, I have never come across such a notion under public international law — namely, one which imposes on a sovereign state, a "reciprocal duty to abide by international law."


  1. Modern day humanitarian intervention, and it's justification of invasions of sovereign nations, has become nothing more than the smokescreen for latter day liberal imperialism.

    Tradition, not to mention laws guarding sovereignty pale almost into insignificance when compared with the gung-ho, border-busting, World Police-style system that Robertson and Co. would like to replace this with.

    A grand utopian project of humanitarian intervention that began in the mid-60s in Africa and flourished and spread across the world. But in the 1990s it became corrupted by the very thing it was supposed to have transcended - western power politics.

    Worse, a strange new hybrid has now emerged - humanitarian militarism, where we adopt a moral ideology that allow us to bomb nations back into the 'stone-age' in the name of democracy and freedom.

    Humanitarian interventionism offers us no political way to judge who it is we are helping in Libya - and thus what the real consequences of our actions might be. If reports that have been distinctly omitted by most of the western media (notably the BBC who, after being castrated by Blair, Campbell and Hutton over their lies on Iraq, is nothing more than a propaganda tool) are believed, then the 'rebels' are clearly also guilty of horrific atrocities all across Libya, all supported by the West, and many Libyan's are just as frightened, if not more so, under their new 'National Transitional Council' than under their previous tyrant.

    What has emerged is a moral battle between 'evil politicians' in *insert suitable African nation* - aided by cynical, hypocritical and corrupt politicians in UK and the US selling them the arms and weapons - and the innocent victims caused by war.

    It seems that any level of tyranny is justified by Robertson in combating tyranny; all forms of barbarism can be deployed in the fight against ‘other forms of barbarism’.

    When you have right on your side, you can do no wrong..

  2. Apart from lacking the temporal jurisdiction to try Gaddafi for these crimes, the ICC also lacks subject matter jurisdiction, at least so far as the Lockerbie and Chad bombings are concerned.

    Former French Foreign Minister Roland Dumas has said he wants to prosecute president Nicholas Sarkozy for committing war crimes in Libya. Dumas also said that he is ready to defend Muammar Gaddafi in the NATO-supported so-called International Criminal Court, which has issued an illegal warrant for Gaddafi's arrest.

    However, Dumas believes the Libyan leader will never face the fake court in The Hague: "If NATO finds him they'll kill him."

  3. Well said, Eddie. My thoughts entirely. As reported recently,
    "both Sarkozy and Cameron suggested in their speeches Thursday that the Libyan war provided a new model for imperialist interventions."

    Which might be summed up:put covert ground troops in, stir up a riot or two, a couple of false flags, and it's bomb bomb bomb to protect civilians.

  4. "Sarkozy and Cameron suggested in their speeches Thursday that the Libyan war provided a new model for imperialist interventions."

    New?? The model, well summed up by Felix, has been used since the beginning of times.

    The difference should have been, that we today have international laws and UN.

    It is not surprising that it does not work. The UN veto-right for the permanent members showed clearly how sincere the will to reduce own powers were.

    Whenever a UN resolution (like #1441 (Iraq) and #1973 (Libya)) can somehow - even with the widest possible interpretation - be used as justification for an attack, it will be. Should same UN crystalclearly be against it, oh, well...

    Blair: 'Unreasonable' objections won't stop war

    "Might is right" is the hallmark of this millennium so far.

    - - -

    That is not surprising - the surprising thing (to me) was, how little we can trust the press to keep us informed.

    "Lockerbie bomber home to hero's welcome"
    - made front page news all over the world.

    But anyone thinking that
    "Lockerbie trial witness received 2 mill USD"
    would make a headline on any page, in any large newspaper, would be wrong.

  5. Go and look for the documentary evidence of the figure 1200. Then come back and report.