The ICC and another African prosecution
Curtis Doebbler, Monday 11 Jul 2011
On Libya, the chief prosecutor of the ICC has shown that he is either incompetent or cannot stand up independently to pressure, particularly from Washington

The recent effort by the International Criminal Court (ICC) and its prosecutor to prosecute Libyan government officials raises significant questions about the impartiality, integrity, independence and competence of the ICC to contribute to international justice and the rule of law.

While the prosecution must be understood in the context a UN Security Council request to which the ICC must respond, the poor handling of the response by both the Prosecutor’s Office and by the Pre-trial Chamber of the ICC add to the concerns of many legal observers.

These latest missteps may be the ones that definitively doom the ICC to being an obstacle to international justice, instead of an instrument for the promotion of international justice.

The International Criminal Court

The ICC was created in 1998 as an attempt to end impunity for violations of international law by senior government officials. This was done by the adoption of the Rome Statute, a legally binding treaty between states. The end of this treaty was to be achieved, according to the preamble of the Rome Statute, with full respect for the Charter of the United Nations.

Especially important was, according to the preamble, “that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State.” And it was emphasised “that nothing in this Statute shall be taken as authorising any State Party to intervene in an armed conflict or in the internal affairs of any State.”

The preamble, although itself not legally binding, must be considered when interpreting and applying the provisions of the treaty, including those authorising investigations and prosecutions. Moreover, the Rome Statute is supplemented by additional instruments that assist in its interpretation, while it is subject to the general rules of international law.

Among the additional instruments are the Regulations of the Office of the Prosecutor adopted in 2009. These regulations state that, “the Prosecutor shall ensure that the Office and its members maintain their full independence and do not seek or act on instructions from any external source.” Moreover the prosecutor “shall present all relevant mitigating and aggravating factors … in an impartial manner.” As discussed below, in relation to Libya, both the prosecutor and the court seemed to ignore factors that were not only mitigating, but also essential to the definition of the crimes with which they were dealing.

Although not a UN body, the ICC has been brought into a relationship with the UN both by the provisions of its Statute and by an agreement with the United Nations. The ICC Statute provides, somewhat oddly for a non-UN body, that it may be forced to take certain situations into account by the Security Council and that the Security Council may, in effect, block certain prosecutions. The prosecutions concerning Libya are based on the Security Council’s referral of the case to the prosecutor — not the prosecutor’s own decision; or, as is usually the case under international law where all states are sovereign equals, the consent of the state concerned.

The United States was influential in pushing for this referral, once again a prosecution by a rich and powerful country that blocks the prosecution of its own nationals, but seeks to prosecute people from developing countries. Under United States law, such biased action by a state authority against a group of individuals could be argued to be discrimination in violation of US law. The US, however, seems less concerned with discriminating against others under international law. In fact, the administration of the first black president in American history recently announced it would not participate in a meeting against racial discrimination at the UN in New York this September because discrimination against Palestinians by Israel will be considered.

The US action on Libya also shows that it has a disproportionate —albeit indirect —influence over the actions of the ICC prosecutor. Combined with the United States discriminatory understanding, or how international criminal law applies to others’ but not its nationals, this bodes badly for matters in which it has a role concerning the administration of international justice, such as the Libyan prosecutions.

The ICC’s handling of the Libyan prosecutions

The ICC’s efforts to prosecute Libyan government officials must be understood in the context of previous prosecutions, all of which have been against the nationals of developing countries, especially those in Africa who are among the most exploited and therefore often the poorest people in the world. All of the prosecutions have been supported by the rich developed countries, some of the most important of which themselves refuse to submit to the jurisdiction of the ICC, as the example of the US mentioned above indicates.

A basic understanding of the exploitation of Africans coupled with a commitment to law as the protection of the most vulnerable would suggest that Africans should be the least prosecuted and those who have contributed to their exploitation and vulnerability the most prosecuted; exactly the opposite has happened. This is not because the developed countries have not contributed to the exploitation and vulnerability of Africans or have acted with respect for the law.

The United States, for example, while encouraging the prosecution of African leaders has ensured that its leaders —for whom there is significant evidence of responsibility for killing millions of Iraqi and Afghani nationals —enjoy impunity for their international crimes. In what can only be termed a neo-colonialist mindset, the US has pursued both the slaughter of people in developing countries and the prosecution of their leaders, while itself remaining above the law.

The wanton aggression against the people of Libya, which was not authorised by the UN except in the minds of the aggressors, is the international crime that US judge Robert Jackson at Nuremberg called the supreme international crime embodying the evil of all other crimes. Yet no consideration has been given to this crime by the ICC prosecutor or the court. While this is understandable, given how the aggressors have tied their hands, it is not understandable that in exercise of their duty to dispense justice fairly and impartially, and to be seen as doing so, the prosecutor and the court have ignored circumstances that create at the very least an impression of bias, partiality, and lack of independence.

The prosecutor has done this both in his actions and his public statements, including his 3 March 2011 announcement of his conclusion that an investigation into the situation in Libya was warranted. The court has done this in its 43-page decision on the prosecutor’s request for arrest warrants.

The ICC prosecutors’ focus is not so much on actions undertaken by the Libyan government but on the intention behind them. While this is in some degree appropriate, it stands in stark contrast to the silence by the international community in other situations. For example, US President George W Bush referred to the Taliban in Afghanistan as a religious group, in his view a fanatical one, and then called for the killing or capture of all of them. Such a clear expression of the intention of genocide, indeed followed by actions to implement it, has rarely been seen, or is hopefully likely to be seen in the future. Nevertheless, despite the obligation of every one of the approximately 150 states that are party to the Genocide Convention to prosecute this crime, no action was taken.

In the case of Libya, the evidence is more tenuous. It is true that the various representative of the government made inappropriate statements; the most onerous of these statements were not followed by action. Indeed, in response to the popular demonstrations on 16 February, the government released prisoners and promised changes. On 17 and 18 February, however, demonstrators, who we now know were in contact with several NATO countries, overran police stations and military compounds in Benghazi and acquired heavy arms. Still the government ordered the military to stay in its barracks and for the police to handle the situation.

The evidence available from the early weeks of the civil war indicated that the NATO-led rebels were acting in concert with foreign governments. As agents of foreign governments they would be combatants in an international armed conflict to which the rules of international humanitarian law apply first and foremost and the rules of international human rights law apply in so far as there has not been an appropriate derogation by the government of Libya. In announcing his investigation on 3 March 2011, the ICC prosecutor himself stated that he had “information that some opposition groups also have weapons” and that if need be NATO-led rebels would be prosecuted. None have been, including the leaders of the NATO-led rebels who continue to order the use of force, while rejecting international efforts by African leaders to achieve a peaceful settlement to the civil war.

Oddly, in his 3 March statement, the ICC prosecutor also seems to indicate that there was not yet an armed conflict in Libya, despite the fact that he was speaking two weeks after NATO-led rebels had seized heavy arms, announced their intention to overthrow the lawful government, and had taken control of several cities by the use of force.

The evaluation of the acts of states or their agents that have initiated a war of aggression should be both international humanitarian law and the lower threshold of international human rights law in consideration of the acts of the aggressors. The aggression of NATO and the NATO-led rebels should thus be judged first and foremost by the standard of international human rights law and the force that is allowed by civilians or states acting in peacetime. Any other starting point would encourage states to elevate situations to armed conflicts in order to lessen their responsibility, and would therefore be inconsistent with the objective and purpose of the law, especially the human rights treaties in which it is often found. By this standard, the acts of aggression themselves against Libyans, including the widespread attacks on Libyan government soldiers not initially putting up resistance, may be considered murder and inhuman acts which are prohibited by international criminal law. Why weren’t these crimes considered?

Similarly, in considering the request for arrest warrants, the ICC Pre-trial Chamber fails to take into account the Libyan government’s responsibility to protect its people from violence, both perpetrated by internal groups of people as well as by foreign governments and other entities acting through Libyans. As already noted, there is significant evidence available in the public domain indicating that the NATO-led rebels took up arms first, and that any disproportionate use of force by the government was incidental rather than widespread before this time. At the very least these arguments should have been considered as they could have removed the matter ratio matriae from the court’s jurisdiction. The court does not consider them, but merely assumes the validity of the prosecutor’s allegation that widespread or systematic attacks have been directed against the civilian population. There is no discussion of the evidence readily available to the judges. This evidence favours the conclusion that not only did NATO-led rebels first use the most significant force, subsequent to their capturing a significant cache of military weapons from military bases in Benghazi, but that the government acted with moderation. Indeed, the rebels almost marched on Tripoli before the government ordered its soldiers to restore order. Faced with an armed attack that threatens the very existence of the state, the International Court of Justice has told us that a state may even resort to the use of nuclear weapons. While people may differ as to the exact application of this essential mitigating factor, the failure of both the prosecutor and the court to even consider it is very problematic.

Deja vu Iraq

The arrest warrants themselves are short and strikingly include pictures —even of Gaddafi himself —that appear to portray the accused in a demeaning light. The poor quality pictures show the accused, particularly the Libyan leader, with an unnaturally stern face. This is the case although there is literally thousands of better quality and more neutral looking pictures available. Moreover, the picture appears while the memory of US action concerning the Iraqi president is still fresh in peoples’ minds. The US released an unflattering picture of the former Iraqi president before subjecting him to a trial that was repeated determined to be patently unfair by almost every impartial observer, including the UN Working Group on Arbitrary Detention. The Iraqi president’s lawyers were told by US-paid officials that the pictures were part of an effort to discredit him before his unfair trial.

This small but telling misstep by the ICC in the context of another case of Western countries acting with illegal aggression against a developing country will automatically raise suspicions that any trial will be manipulated in the same way as the Iraqi trials. In the Iraqi trials, judges were removed for failing to follow US instructions, officials paid for by the US used UN positions to obtain information from the defence counsel and then acted as paid agents of the US to interfere with the trial by threatening lawyers. These threats were not without a degree of reality as nearly half the lawyers were killed during the trial, often by persons apparently to working for the Iraqi government, while the US looked on and repeatedly refused to provide them protection. And of course it will be remembered that the Iraqi Special Tribunal itself stated that human rights law was of no concern to it. The ICC has de facto done the same by its handling of the Libya case.

Finally, just days after videos were released showing beheadings and the torture of children by the NATO-led rebels, ICC Prosecutor Luis Moreno-Ocampo met with their self-proclaimed leader, Mr Mahmoud Jibril. The two, according to the ICC website, discussed “the arrest warrants issued by ICC judges against Muammar Gaddafi, his son Saif Al-Islam Gaddafi and Abdullah Al-Senussi.” No mention is made of any discussion of war crimes by NATO-led rebels, despite credible evidence of such atrocities being widespread. This action by the prosecutor —meeting with former Libyan government officials who are now trying to overthrow their own government in violation of the most basic principles of Libyan and international law, and at the cost of an estimated 35,000 Libyan lives to date —appears to be extremely reckless. It also sends a definitive message to the world that the ICC prosecutor is not neutral, but is either consciously biased in the exercise of his functions or so incompetent as to raise serious questions about his fitness for the job.

These concerns create an impression that both the prosecutor and the judges of the ICC may be involved in a miscarriage of justice that is contrary to basic standards of international human rights law that require an independent judiciary and a fair trial for all. The latter includes not only a de facto fair trial, but also one in which both the prosecuting authorities and the judicial authorities appear to be acting justly. The failure of the prosecutor and the judges of the ICC to consider the context in which the case arises, creates the appearance of injustice.

Indeed, the ICC’s engagement as an instrument supporting the illegal aggression against the people of Libya by Western countries and Qatar, Jordan and the NATO-led rebels, may be the final nail in the coffin of the ICC; one that relegates it to the graveyard of failed attempts at international justice. While it must be hoped that this is not the case, neither the prosecutor nor the court have shown the courage or ability to stand up for the rule of law in the face of exercises of power that violate the law. Such cowardliness is not compatible with the rule of international law.

The writer is a prominent international human rights lawyer and was a member of the defence team of Iraqi President Saddam Hussein.