Australia/Israel & Jewish Affairs Council

Bringing Gaddafi to justice may be a trial for NATO

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If the hiding place of recently deposed Libyan leader Muammar Gaddafi is found, there is always the question of where, how and even if he will be brought to trial. Lawyer/activist Geoffrey Robertson has written an op-ed in today's Sydney Morning Herald, calling for Gaddafi to be handed-over to the International Criminal Court (ICC) rather than summarily executed or given a farcical show-trial a la Saddam Hussein. Robertson argues that only an ICC trial would truly expose Gaddafi as the monster that he is.

There must be no repeat of the Bush administration's error of allowing Saddam to be speedily executed for a minor offence while his greatest atrocities, such as the 1988 chemical attack at Halabja, which killed 7000 civilians, went uninvestigated and unprosecuted.

Saif Gaddafi showed his true colours with his television broadcasts urging the murder of civilians. He is remembered in Australia for his visit to the Barrier Reef in a boat stocked with Cairns prostitutes, who took fright when he and his guards pulled out guns "to shoot at sharks".

International justice has had its critics - remember the outrage over the arrest of Chile's General Pinochet emanating from George Bush snr, Margaret Thatcher, Pope John Paul II, Cardinal Ratzinger, Henry Kissinger and even Fidel Castro?

Yet, in the space of only a decade, the spectacle of Radovan Karadzic and Ratko Mladic in The Hague dock over their actions in the Bosnian wars and the trial of Liberia's Charles Taylor have established the principle that there must be no hiding place for those who order the most heinous crimes.

However, the reality is that bringing Gaddafi to trial may not be all that easy. As international legal scholar David Kaye wrote in a briefing for Foreign Affairs back in May, an arrest warrant from the ICC being issued hardly guarantees that the suspect will be arrested.

But issuing warrants is one thing; getting custody of the accused is quite another As I argued in the May/June issue of Foreign Affairs, the Security Council and other major players have not provided the kind of support the ICC needs to gain custody of those accused of war crimes, crimes against humanity, and genocide...

First, the Security Council has not adopted a resolution to require all governments to enforce the ICC arrest warrants related to Libya. (It has not done that for its 2005 referral of Sudan to the ICC, either.) For now, upon request by the ICC, only the 114 member states of the ICC would be obligated to arrest a person subject to an arrest warrant and transfer him or her to The Hague. Other countries could do so as a courtesy. This leaves Qaddafi with dozens of possibilities for a safe haven, such as Saudi Arabia, Venezuela, or any number of African countries led by a friend of Qaddafi.

With the possible exception of action by Qaddafi's own security forces, all the roads to The Hague seem blocked.

Second, the council's authorization of "all necessary measures... to protect civilians and civilian populated areas under threat of attack" seems broad enough to cover enforcement of arrest warrants. Still, the Security Council should reaffirm its support for the ICC's actions, whether by resolution or presidential statement, a nonbinding document that reflects the views of the council. Beyond that, the council could call on Libyans themselves to ensure that if they are captured, the Qadaffis are not summarily executed but instead arrested and brought to justice, either in domestic courts or at The Hague.

In lieu of a Security Council resolution, Kaye argued that arresting Gaddafi would require NATO to actually send footsoldiers into Libya - an unlikely scenario.

... Arresting the three would require "boots on the ground," a scenario that has largely -- if not categorically -- been taken off the table, especially by the United States. The last time NATO faced such a predicament, in Bosnia in the 1990s, it long resisted devoting any of its resources to enforcing arrest warrants issued by the UN International Criminal Tribunal for the Former Yugoslavia, even when it had significant numbers of troops on the ground.

Kaye also suggested that the Arab League could potentially be crucial in determining the course of Gaddafi's trial, however the Arab states have a number of disincentives from referring him to the ICC.

... Three factors, however, may stand in the way of real Arab cooperation to arrest the Libyan three. First, some Arab states may argue that supporting the arrests will undermine their policy of opposition to the arrest warrants against Sudan's President Omar al-Bashir, who, despite being the subject of an arrest warrant for atrocities in Darfur, has been supported by the Arab League. (Indeed, not long after Hosni Mubarak stepped down as Egyptian president, Bashir was the first head of state to travel to Egypt, a visit he had made during the two years since being under threat of an arrest warrant.) Second, some states may see themselves as possible safe havens for Qadaffi, which would lead to the end of the conflict, and would thus not want to close off the option of exile. And third, some Arab countries may not want a trial to be held, since that would offer Qaddafi the opportunity to expose the long-term cooperation and stature he enjoyed in Africa and the Arab world.

There is, however, a possibility that NATO forces may currently be engaged in the manhunt - meaning that Gaddafi could well be brought to the ICC. Or, they may not. As comically noted by Commentary blogger Abe Greenwald, the media do not seem quite sure of whether or not this is the case.

Dueling headline alert. From the New York Times:

NATO Helps in Hunt for Qaddafi as Rebels Gain Momentum

And from the Associated Press:

Pentagon: US, NATO not in manhunt for Qaddafi
Well, they can't both be right.

NATO is either helping in the hunt for Muammar Qaddafi or it's not. As reported in theTimes, "Britain's defense secretary, Liam Fox, said Thursday that NATO was trying to help the rebels locate Colonel Qaddafi, apparently breaking from the frequent Western assertion that it adheres to its United Nations mandate to protect civilians." But according to the AP, U.S. Marine Col. David Lapan said,  "I've confirmed with folks at NATO and through the command structure that they are not involved in targeting any particular individual, that they are not involved in a manhunt. NATO itself and the US's part of NATO are not."

As Greenwald also observes, capturing Gaddafi in this way would involve expanding NATO's combat role beyond the UN mandate. This creates a Catch-22 situation, where implementing the arrest warrant against Gaddafi from the ICC, thus fulfilling international legal obligations, would require NATO forces to break international law. That the UK and the US are arguing about whether or not they are actually doing so makes the whole scenario further resemble a scene from Heller's seminal novel.

Daniel Meyerowitz-Katz