Thursday, March 3, 2011

The ICC Rides to the Rescue in Libya. Or Perhaps Not.

HRW has the story, along with lots of FAQs. The essentials are that while Qaddafi is busy killing thousands of people, the international community (whoever they are) have swiftly passed a UNSC resolution, and in its aftermath, the prosecutor of the International Criminal Court will now open an investigation. How soon, if ever, will this make a difference?

There are many steps between the opening of an investigation and the eventual trial of a case.
It is important to understand that investigations by the ICC prosecutor may not necessarily lead to prosecutions. While the initial decision to open an investigation is based on information available to the prosecutor at that time, the prosecutor must then conduct an independent investigation. On the basis of this investigation, the prosecutor may determine that there is insufficient evidence that crimes committed within the court's jurisdiction have taken place. Or the prosecutor may determine that there are proceedings at the national level that would make any case before the ICC inadmissible or that a prosecution is not in the interests of justice. If the prosecutor decides not to proceed with prosecutions following investigations, this decision can be reviewed by ICC judges sitting in a pre-trial chamber.
If, based on the investigation, the prosecutor wishes to pursue prosecutions, he will need to ask ICC judges to issue arrest warrants for individuals on the basis of specific charges. The prosecutor must establish to the satisfaction of the pre-trial chamber that there are reasonable grounds to believe that the individual named in the request has committed a crime within the jurisdiction of the court and that an arrest is necessary to ensure that the person will appear at trial or that the person will not obstruct or endanger the investigation or the court proceedings, or that a warrant is needed to prevent ongoing crimes. The prosecutor can also request a voluntary summons to appear if he considers that a summons is sufficient to ensure the individual's appearance before the court.
It is difficult to predict how long it might be between the beginning of an investigation and the issuance of arrest warrants or summonses. To date, the court's investigations have lasted between 10 and 20 months before the first arrest warrants have been issued. Most recently, the ICC prosecutor conducted an investigation in the situation in Kenya for eight months before asking the pre-trial chamber to issue summonses for six people on charges of crimes against humanity. A decision on those requests is pending.
In addition, because the ICC does not have its own police force and must rely on governments and the United Nations to enforce the warrants and effect arrests, some of its warrants have been outstanding for more than five years. 
When an individual appears before the Court, following either an arrest or a summons, pre-trial proceedings known as the "confirmation of charges" take place to determine whether the available evidence establishes substantial grounds to believe that the person committed each of the crimes charged in the indictment.  When and if a charge or charges are confirmed, a trial date is set.
The ICC's first trial- of Thomas Lubanga -- began in January 2009, nearly five years after the situation in the Democratic Republic of Congo was referred by its government to the ICC prosecutor and three years after Lubanga was transferred to ICC custody. The trial has yet to reach completion. While the start of Lubanga's trial was delayed for reasons that are unlikely to recur and the two other trials ongoing at the ICC have moved more quickly, the ICC's unique pre-trial proceedings and the complicated nature of cases tried by the court mean that proceedings are likely to last two to three years from arrest to verdict.
My translation of all the legalese gobbledygook: The only way to bring Qaddafi and his top goons to justice is to have them long since out of power. There's no other way. Of course, if some day there's a free Libya, they'll try the man themselves: in that case who will need the ICC? If there isn't, how will he ever get there? One way or the other, the ICC is irrelevant if you wish to prevent the present mass murders from getting any more numerous.

According to our media, one of the things the Libyan rebels are saying about Qaddafi is that his mother was Jewish. On our news this evening a grinning armed rebel explained to the camera that they are going to "kill that Zionist". I see no particular reason to believe that either side in the Libyan conflict like Jews. No matter. My heart aches when I hear about how Qaddafi and his side are apparently slaughtering civilians for the crime of wishing him gone. I can't offhand think of another recent conflict where there's so obviously a good side and a bad one. Moreover, unlike in complicated places with jungles, like the Congo, or primitive places where genocide is done by men with machetes or horse-riders with automatic riles, in Libya the murdering side is using easily identified equipment such as airplanes and perhaps artillery. Throughout almost all of history outsiders rarely involved themselves in faraway conflicts they had no interests in, and certainly not for simple humanitarian reasons. These days, however, such considerations are deemed worthy of consideration, at the very least. Well, if someone wishes to save Libyan lives now, not later once lots of them will have been lost, the way to do so is by sending in the airforce now, not the ICC prosecutor someday.

If, on the other hand, there's no budget for saving Libyan lives, or the shadow of an irrelevant colonial past is too deep, or the distaste for any use of military might is too great, or the fear that Qaddafi might in the end not be beaten and there are too many financial considerations at stake - fine. But then don't babble on about the UNSC, and shut up with the chatter about the ICC. Admit that Libyan civilians aren't worth the only kind of effort that might save their lives, and get on with life. There are Olympic Games to prepare, after all, where the world community will convene next year to demonstrate our common human aspirations.

This ICC track is beyond pathetic. I'm open to arguments telling why I'm wrong, but they'll have to be very compelling, since the arguments supporting my position look overwhelming.


Silke said...

In German I'd say, as long as it leads to job security (at the ICC) it can't be bad.

RK said...

I'm pretty skeptical of this international law business as well, but I understand Gaddafi and (especially) his sons like to travel to Europe, which is a dicier business when there's an ICC warrant out for your arrest. Omar al-Bashir is supposed to have cut down on his international travel after he was indicted. On the other hand, that didn't stop him from traveling to an ICC member state last year. On the third hand, the ICC member state was Chad, which might not be as welcoming of Gaddafi in light of the Toyota War and all that unpleasantness. (Gaddafi probably wouldn't find it as picturesque as Italy, either, given what I know about his tastes.)

Of course, if all you want to do is issue declarations that such-and-such a dictator is persona non grata, the ICC is a pretty elaborate institution. But there it is.

Bryan said...

This is a great post, Yaacov. As the kids say these days, you're "keepin' it real."

Barry Meislin said...

One can't but be incredibly impressed by the massive waves of demonstrations, in support of stopping the slaughter and the repression, that are sweeping all across the major cities of the world.

It's all very heartening.

Silke said...

they sure are out by the millions wherever one looks but alas they are all dressed in Harry Potter's invisibility cloak because otherwise the evil Zionists could stop them ;-((

while I'm at it: aren't we told how wonderfully modern and post post post all that Egyptian intellectuals are? Here is the only surviving supposedly bestselling around the world author from Egypt quoting endorsingly a guy named Heikal

My Question:
who is more nuts, this top intellectual of world reknown or the MB? or in what way is AlAswany distinguishable from Qaradawi?

"No one acquires political legitimacy from a military battle as Mubarak did. Heikal warned that he suspects that a counter-revolution might be in the making, orchestrated in Sharm El-Sheikh and masterminded by foreign powers, implying Israel."