I was greeted with the happy news this morning that the Pre-Trial Chamber I of the ICC had issued arrest warrants for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi for crimes against humanity (murder and persecution) allegedly committed across Libya from February 15, 2011 until 28 February 28, 2011.

Ever since I was a fledgling law student I have followed the progress of the Rome Statute of the International Criminal Court, the treaty that established the ICC as of 2002.  The whole concept is a little baffling — a group of countries have signed up, in a purelyvoluntary procedure, to be a part of a judicial system that addresses four specific crimes:  genocide, crimes against humanity, war crimes, and “crimes of aggression”.  The idea was to create one unified system to deal with these incidents, rather than a case-by-case basis like the Nuremburg Trials following WWII, or the International Criminal Tribunals for Yugoslavia and Rwanda.  It was, and is, undoubtedly a noble cause.

The problem with the ICC, since its inception, has been the fact that it is purely voluntary.  Kind of lacks teeth when a nation can opt-out of it, you know?  On top of that, the ICC, by statute, is a court of “last resort”.  The ICC will not step in if a national system has investigated or prosecuted the case, unless it was found that the nation was “unwilling or unable genuinely to carry out the investigation or prosecution”.  What kind of level of proof do you need to show that a nation was genuinely unable to carry out an investigation?  What if the nation is simply governed by a dictator who technically has the capability to perform an investigation but (fraudulently) determined that nothing worth investigating had happened?  Under the Rome Statute, it would be awfully hard for the ICC to step in.  And so, it is not hard to understand why, since its inception in 2002, only four cases are actually active within the court.

The ICC’s act of issuing arrest warrants for Gaddafi et al. is certainly not a bad thing.  His activities are precisely the type the court was set up to address.  The arrest warrants will increase the visibility of the court over the next few days, and the more work they can do, the more legitimacy they will obtain.  But the problem, yet again, is its lack of teeth.  Libya is a non-party to the Rome Statute.  The Rome Statute pretty clearly spells out that it exercises jurisdiction over countries which have signed on to it….  But it’s kind of hard to exercise jurisdiction over countries that haven’t — that’s one of the basic foundations of treaty law: if you haven’t signed the treaty, you aren’t governed by it.  The United States wholeheartedly supports that regime, too — there are various human rights treaties that we can’t or won’t sign because our practices, such as waterboarding, for example, might put us in violation of the treaty.

So that begs the question — what’s the point of a court system created by treaty?  That is voluntary?  If you’re Libya, why WOULD you sign on to the Rome Statute?  When the UN Security Counsel referred the matter to the ICC in February, it stated that it:

Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.

Right.  Because Gaddafi wants to comply with his arrest warrant in a court he’s never agreed to ….?

It took a massive international effort to get the Rome Treaty ratified such that it could enter into force.  I have always wanted it to succeed — it’s hard to argue with a mission of bringing those involved in crimes against humanity and genocide to justice.  But every time it seeks to address one of these situations its shortcomings are so glaringly visible.  Keep your eye on the current case — when it makes it into People Magazine (c.f. the Casey Anthony trial, which has received massive coverage for the killing of one (albeit tiny and lovable) person) then, just then, maybe the ICC will have made it into the “big times”.


One Response to The ICC — Just another slap on the wrist for Gaddafi?

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