October 22, 2012
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In preparing for our upcoming topic, the International Criminal Court, I came across an article in Reuters, discussing the statement by Song, the President of the Court, relating to the lack of support by the UN Security Council in cases of referral. Upon looking into the cases of Libya and Darfur, it became evident to me that most challenges faced by the Court are related to a lack of cooperation on the part of governments in question. As Song states, action must be taken by the Council to emphasize the importance of the assistance of its member states in its own cases. Otherwise, the referral of these mandates to the ICC is deemed senseless, which unfortunately has been the case in too many situations.
The article goes on to exemplify such cases. With respect to Darfur, following the indictment of Omar Hassan al-Bashir by the Court, African states voted not to cooperate with the decision, and even ICC member states, who are obliged to carry out the Court’s verdicts, let Bashir travel independently through their borders. In the Libyan case, on the other hand, Libyan authorities refuse to hand Gaddafi to the ICC to provide a fair trial on the basis of the charges in said war crimes. In trying to adjudicate him in its national courts, Libya will cause his trials to not be fair or impartial, thereby, in a sense, obstructing justice. As the mandate was referred to the Court by the Security Council, it has the power to pursue the case despite the fact that Libya is not a state party to the Rome Statute of the ICC. It will be decided by ICC judges whether Gaddafi should be extradited to the Hague or dealt with in Libyan trials, however in either case, the Security Council’s full support in ensuring the cooperation of the authorities of their own member state.
In a situation where the lawyer appointed by the ICC for Gaddafi can be detained in Libya based on allegations of espionage, there should be no need to highlight the crucial importance of the Council’s contribution to the case in dealing with their own member states, and taking action if necessary. However, in response to vague statements such as the one by the Secretary General himself, simply repeating the unease expressed by Song as if it constitutes a concrete solution, it seems like there is little that can be done.
October 13, 2012
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Libya promises ICC Gaddafi’s son will get a fair trial
At what point does it become counterproductive for the ICC to try Gaddaffi’s son themselves?
Of course, there are serious questions as to whether Libyan government could hear the trial properly – it has been known to entertain the death penalty, it has a history of violating attorney privilege, and it’s now believed that Gaddafi was brutally tortured before being killed –so of course it would be ideal if the Libyan government addressed those issues. But if Libya is unwilling or incapable of hearing a proper trial themselves, how much good does it do for the ICC to do it for them? Are international courts a necessary crutch to keep Libya stable for the time being, or do they overlook a systemic problem that needs to be addressed. It’s fantastic that we can serve justice when Libya is incapable, but what are we doing to ensure Libya maintains the rule of law in the future? Are we hoping that fear of being tried by the ICC will be enough to dissuade future war criminals?
April 10, 2012
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Libya’s Justice Minister has chosen to forgo sending Saif al-Islam Gaddafi to the ICC upon their request. Libya seeks instead to try him on charges of financial corruption, mureder and rape with his trial commencing as early as this month. They seek a verdict as early as mid June, saying ” ‘It’s a priority to try him under the Libyan law by Libyan judges on Libyan soil,’ adding that authorities are taking necessary measures to ensure a fair trial.” This comes in the wake of the ICC, on Wednesday, ordering the Libyan government to comply with their arrest warrant and surrender Gaddafi.
The denial of request for trial by the Libyan government has been met with defiance as Ashour elaborates, “there is no intention to hand him [Saif al-Islam] over to the ICC, and Libyan law is the right system to be used to try Saif Gaddafi”. It will be interesting to see how the Security council and ICC react to this.
April 8, 2012
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This past Wednesday the International Criminal Court rejected Libya’s request to postpone the surrender of Gaddafi. Saif al-Islam Gaddafi faces war crimes charges. The ICC had issued a warrant last June for his arrest but Libya has continued to refuse to hand him over claiming that they he should “face justice” at home. The ICC on the other hand said they have jurisdiction over this case because they issued a warrant last for his arrest. If convicted by the ICC, Gaddafi faces only a prison term but if he is found guilty by Libya court he faces the death penalty. “New York-based Human Rights Watch (HRW) also believes Saif al-Islam would receive a fairer and safer trial in the Netherlands”.
You guys beat me to it! For my own contribution, I want to pass along a link to a great post by Mark Kersten, who blogs at “Justice in Conflict.” Here are some selected passages.
“Obama described bin Laden’s death by declaring that “justice has been done.” People around the globe are echoing this sentiment – that bin Laden’s death amounts to “justice”…..But is bin Laden’s death really “justice”?….
First, it is important to note that the legality of assassinating bin Laden rests on shaky grounds, at best…. Of course, this is not to say that justice equates with what is legal or that what is legal equals what is moral….
At the same time, as so many rejoice in the assassination of bin Laden, there is an ongoing and passionate debate about what the international community can and should do about Libyan leader Gaddafi…..
The assassination of bin Laden is very relevant to this discussion. If killing the al Qaeda leader is permissible and just because he is exceptionally brutal and the US is fighting a “war against terrorism”, making bin Laden an “enemy combatant”, then it should hold that killing Gaddafi is just and permissible as well…..
Yet, many who would describe bin Laden’s death as “justice” would not be in favour of assassinating Gaddafi. How do they square that peg? ….”
March 3, 2011
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Prosecutor Louis Moreno Ocampo announced today that the ICC is starting up an investigation on crimes against humanity committed by Gadhafi, his sons and advisors. The ICC will look at the most serious allegations since mid February, when the demonstrations intensified. This CNN article highlights three interesting points, 1) This is the first time that the ICC investigates crimes as they are occuring. 2) The oppurtunity to investigate in real time was partially made possible by social networks like Facebook. According to Moreno Ocampo this triggered a very quick reaction. 3) Moreno Ocampo also goes out with a warning to the anti-Gadhafi protesters, saying that they also will be hold accountable for criminal activity.
It will be very interesting to see how Gadhafi responds to this announcement.
February 22, 2011
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The uprising in Libya follows on the heels of pro-democracy protests in Tunisia and Egypt. But the brutal and violent crackdown on protesters by the Libyan government differentiates this case from others.
Some of Libya’s UN diplomats have broken ranks and accused Gaddafi of genocide, and if not, of committing crimes against humanity that warrant an investigation by the ICC. To be sure, it is not genocide. (This does not diminish the severity or significance of the violence against civilians, but even a cursory reading of the Convention’s definition would demonstrate that this is not genocide.) But the head of the UN human rights commission has called for an investigation into the violence, which could result in some international pressure to hold accountable those who are responsible for ordering and organizing the violence. Keep in mind that Libya is not State Party to the ICC, so any investigation and indictment would have to come by way of referral from the UN Security Council.
And then there’s Gaddafi and his son. First, his son, Saif, made a televised statement the other day that rebuked the protesters, accused outsiders of interfering, and warned of civil war if the government fell. Turns out he also did a PhD at the London School of Economics, and wrote his dissertation on the role of civil society in democratization. Oops! Be careful what you wish for.
Second, Gaddafi is most certainly a nutty but not less dangerous dictator. His regime has been repressive and brutal and internationally he is a friend to many fellow dictators. He is also known for many bizarre things: traveling around with his own personal tent, his bevy of modelesque female bodyguards, and especially his long and non-sensical speeches at home and abroad. Gaddafi’s speeches to the United Nations in the last few years have been gems. And his speech today was no exception.
While it’s important not to make light of the seriousness of the situation or undermine the call the end violence against civilians, Gaddafi’s antics have been a source of amusement and bewilderment in the international community in the past.
See this SNL video if you want a reprieve from the depressing state of international affairs.
UPDATE: Security Council refers Libya case to the ICC. This is also the first time the United States has voted in favor of UNSC resolution on the ICC.
UPDATE: The Telegraph has an interesting article on why the African mercenaries used by Gaddafi would be ‘immune from prosecution for war crimes.‘
Also, Kevin Jon Heller, who blogs at Opinio Juris, has two interesting posts on some of the caveats of the UNSC deferral to the ICC: “Can the Security Council define the limits of a “situation”? and “Can the Prosecutor decide not to investigate the Libya situation?”