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The International Criminal Court’s prosecutor petitioned its judges Monday to issue warrants for the arrest of Libyan strongman Muammar Qaddafi, his son Seif al-Islam Qaddafi, and Libyan intelligence head Abdullah al-Sanoussi.
The ICC prosecutor, Argentine Luis Moreno-Ocampo, charges the trio with crimes against humanity. Specifically, Moreno-Ocampo cites shelling funeral processions, attacking civilian homes, and gunning down protestors during the recent unrest to buttress the general charge. The prosecutor says of the judges, “The case is now in their hands.”
But is it?
In the nine years since its inception, the International Criminal Court has convicted zero human beings of genocide, crimes against humanity, or aggression (the three offenses their mandate allows them to prosecute). Its six active cases involve weak African states with little standing in the international community. North Korea? Iran? China? Their “crimes against humanity” have escaped the court’s, but not humanity’s, notice.
Two years ago, the ICC indicted Qaddafi’s neighboring dictator to the southeast, Sudanese strongman Omar al Bashir, for mass killings in the Darfur region. But he still reigns. The ICC wields no enforcement mechanism. It may act as a deterrent for Bashir, or Qaddafi for that matter, to abdicate. But the ICC isn’t scaring the scary people into civilized behavior. Like so many ideas backed by good intentions, the ICC appears to have unintended consequences, such as the incentive for despots to more tightly grasp power in the face of internal uprisings backed by external litigation.
While Qaddafi appears guilty as charged, the expected indictments are themselves problematic. With Qaddafi’s sponsorship of terrorism over the skies of Scotland, in a German discotheque, and on Libyan streets not in question, there are a multitude of regular old national courts with greater standing than the ICC to bring the tyrant to justice should he be deposed. Libya isn’t a party to the treaty establishing the International Criminal Court. A long-held, heretofore uncontroversial tenet of international law is that nations not ratifying treaties aren’t governed by them. Qaddafi may test such a notion because there is currently no independent judiciary within Libya to call him into account. But the precedent set by the ICC exercising jurisdiction over a nation that hasn’t recognized its jurisdiction may prove a dangerous one.
That calls for the ICC to investigate the Israeli Defence Forces’ raid of the ship Mavi Marmara bound for Gaza and their combat against Hamas haven’t been dismissed out of hand—neither the Palestinian Authority nor Israel are parties to the treaty—suggests ICC aspirations beyond its stated mandate. Similar calls for the ICC to investigate the abuses at the Abu Ghraib prison, despite the U.S. prosecution of the offenders (and Iraq and the U.S. not being subject to the ICC), also call into question whether the ICC recognizes limitations. The ICC ultimately didn’t pursue the United States or Israel. But that doesn’t mean the desire to do so isn’t there.
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