Gaddafi and the failure of the International Criminal Court

From March to May 2011, when the Libyan Civil War was in full flow, the International Criminal Court (ICC) intervened with sharp words for the government of Muammar Gaddafi. The ICC’s chief prosecutor Luis Moreno-Ocampo echoed the rhetoric from the Western capitals.

In May, Moreno-Ocampo released an estimate that between five hundred and seven hundred civilians had been killed by Gaddafi’s army. "Shooting at protestors was systematic," he told the media.

It was based on such rhetoric that the ICC in late July framed a warrant for the arrest of Saif al-Islam Gaddafi, whom the ICC called the "de facto Prime Minister" of Libya. The ICC’s warrant included Gaddafi’s father, Muammar, and the head of military intelligence, Abdullah al-Senussi. None of these warrants have been executed.

Muammar Gaddafi was killed in a NATO targeted strike in October 2011. Both Saif al-Islam and al-Senussi have now been sentenced to death by firing squad by a court in Tripoli. Saif al-Islam is held by the militia in Zintan, which is unlikely to turn him over to Tripoli. They would like to kill him themselves. There is no chance that the ICC would ever see Saif al-Islam or al-Senussi.

The ICC and NATO's war in Libya

The role of the ICC in NATO’s war in Libya has not been fully studied. The ICC certainly provided the justification for the United Nations Security Council Resolution 1973 of March 17, 2011. Moreno-Ocampo opened his formal investigation on March 3.

He had made several wild allegations in the lead-up to opening the file. For instance, he said that Gaddafi’s regime gave Viagra to its troops to promote mass rape. These allegations had also been made by the then US Ambassador to the UN, Susan Rice.

"The coalition is confronting an adversary doing reprehensible things," Rice told a closed-door meeting at the UN. She did not offer any specific details. Nor did Moreno-Ocampo. Margot Willstrom, the UN Special Representative on Sexual Violence in Conflict, was equally reticent on specifics. She told reporters that reports of mass rape had been "brutally silenced".

The ICC’s warrant included Gaddafi’s father, Muammar, and the head of military intelligence, Abdullah al-Senussi. None of these warrants have been executed.

Amnesty International’s skilled investigator, Donatella Rovera, took three months - long after the UN resolution based on such allegations - to show that there was no fire to the ICC’s smoke.

My reporting also could not substantiate any of these claims, and nor could many reporters who talked to medical and mortuary workers. The credibility of the ICC’s claims should have been much reduced by the lack of evidence for them. NATO was eager for war. It did not want to be questioned.

The question that was never assessed by the ICC or the UN agencies in the lead-up to UNSC resolution 1973 was whether the government reacted merely to peaceful protests or to an armed rebellion.

If the Libyan regime struck down against peaceful civilians, and killed as large numbers as claimed by Sayed al-Shanuka (the Libyan member of the ICC who had defected from the regime) then it was appropriate for the ICC to open a file on the Gaddafis and al-Senussi.

The ICC warrant was based on what was later seen as a greatly exaggerated number of deaths. Moreno-Ocampo followed entirely the narrative from the Western capitals and egged on the UN to act on UN resolution 1973. He essentially subordinated the ICC to the NATO war.

ICC's "farce"

Once the war ended, the ICC could not execute its warrants. Those whom it accused of crimes against humanity were either killed in extra-judicial assassinations or held outside the basic protocols of legality. Strikingly, in 2013 the ICC withdrew its own warrant for al-Senussi.

It gave one of the two Libyan governments (the one in Tripoli that is not recognised by the West) permission to try al-Senussi. Despite the chaos that has engulfed Tripoli, the ICC’s current chief prosecutor Fatou Bensouda said this February that there "does not appear to have been any significant disruption to the trial proceedings".

The ICC appointed lawyer for Gaddafi, John Jones, to his credit, called the recent Tripoli proceedings "a complete show trial. A farce."

The credibility of the ICC’s claims should have been much reduced by the lack of evidence for them. NATO was eager for war. It did not want to be questioned.

Till date, tens of thousands of Gaddafi fighters remain in various Libyan prisons that have conflicting jurisdictions. Mona Rishmawi and Hanny Megally of the UN Human Rights office visited these prisons and said that this situation is a "recipe for abuse".

There have only been mute condemnations of these indefinite detentions without trail from the UN and almost none from the ICC.

There is a good reason why the international community has no confidence in the ICC and will not any longer allow the UN Security Council to pass a resolution under Chapter VII (for armed force).

The United States - despite not being a member of the ICC - seems to set its agenda. A pliable ICC allows the United States to use hallowed language about human rights when it wants to let loose the dogs of war through the United Nations.

The tragedy here is that well-meaning and important international institutions are being used cynically by the West for its interests. The Libyan war was never about human rights. If it were, the West would not be so scrupulous in its desire to trample on them.



Vijay Prashad is a columnist at Frontline and a Senior Research Fellow at AUB's Issam Fares Institute of Public Policy and International Affairs. His latest book is The Poorer Nations: A Possible History of the Global South (Verso, 2014 paperback).



Opinions expressed in this article remain those of the author and do not necessarily represent those of al-Araby al-Jadeed, its editorial board or staff.