The International Criminal Court (ICC) in The Hague issued an arrest warrant for Libyan leader Muammar Gaddafi on Monday afternoon. Judges have ruled that there is enough evidence that the actions of Gaddafi’s regime, in quelling public demonstrations, has resulted in hundreds of civilian casualties. Nevertheless, Gaddafi can rest assured that he would still be able to travel abroad.

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By Thijs Bouwknegt

“Why is Muammar Gaddafi not in the dock?” asked Charles Taylor’s lawyer Courtenay Griffiths, pointing to the empty chair next to his client. During his closing statement in March at the Special Court for Sierra Leone, Griffiths pointed out that international law is “selective and politically motivated."

"Have you not heard that the court would have been refused funding by the British government had they attempted to indict Gaddafi because the British government led by Tony Blair was anxious to pursue its economic interests in that country (Libya)." The lawyer reminded the judges again that Taylor and other rebels have been trained by Gaddafi in Libya. The Libyan leader also sent money and weapons to Liberia and Sierra Leone. 

Gaddafi would not have to stand trial for crimes in Sierra Leone: his warrant is for the harsh suppression of Libya’s public uprising. That is, if it were up to ICC chief prosecutor Luis Moreno Ocampo. He accuses the Libyan leader, one of his sons and his brother-in-law of crimes against humanity for persecuting members of the opposition. The three men have also been accused of giving soldiers Viagra in order to rape women, the prosecutor said. Ocampo conducted the investigation in high gear and was able to get his arrest warrant from the ICC judges on Monday.

Little to fear
But does Gaddafi really need to worry? Not particularly. First of all, he claims that he wants to fight until he dies. But even if he survives his country’s revolution, the road to The Hague would still be a long one. Ocampo does not have police officers who can arrest Gaddafi. That job would fall on the shoulders of the future Libyan leaders. If Gaddafi should stay in power, he only needs to carefully chart his international travels. All United Nations members are obligated to carry out the arrest warrant. However, if Gaddafi makes sure he still has some good friends, he can continue to make plenty of trips abroad.

He could, for instance, visit Omar Al Bashir. The Sudanese president has been on Ocampo’s most wanted list since 2009. Bashir’s arrest warrants, including for genocide in Darfur, have at the most limited his freedom of movement. Nevertheless, there are still a number of countries he can go to. On Monday night, he arrived in China. But also shortly after the warrants were issued, he went on a pilgrimage to Mecca.

His Libyan friend is very welcome in Khartoum. Gaddafi already supported Bashir in 2009 in his struggle against the ICC, and went as far as trying to persuade fellow African Union countries to give up their membership.

'Sexy'
It irritates Ocampo, who has once promised a "sexy court." In fact, in his battle against impunity Ocampo can do little else but complain and appeal to the UN Security Council and state governments. He has yet to obtain the success he had hoped achieve since 2003. The judges in The Hague have not yet given their verdict to anyone, and the biggest villains are still at large.

Congolese senator and former Vice President Jean Pierre Bemba has so far been the only big fish caught by the court. However, the case against the multi-millionaire is a complex one, and very “politically tinted,” according to insiders.

Minor warlords should be the ones fearing the ICC. Besides Bemba, three other Congolese rebel leaders are in court, divided into two cases. They were presented to Ocampo on a silver platter. Troublemaker Thomas Lubanga Dyilo was already incarcerated in Kinshasa for a while, and his opponents Germain Katanga en Matthieu Ngudjolo Chui were handed the same fate.

But even in Congo these cases remain arbitrary: notorious warlord Bosco Ntaganda still plays tennis in Goma, while he is also on Ocampo’s wanted list. But President Joseph Kabila needs the 'Terminator' – Ntaganda’s nickname – to strike a balance against Rwandan Hutu rebels in the eastern side of the country, and has subsequently promoted him to the rank of general. Again, Ocampo is left empty handed.

At the centre of politics
In May, an upbeat Uhuru Kenyatta sang Kenya’s national anthem on the steps of the ICC. The vice president – along with five other Kenyans – has come to The Hague to deny that he had anything to do with the political violence following the country’s general elections in 2007.

This is typical of political games in international law. Kenyatta has put himself up as a presidential candidate, following the footsteps of his father Jomo Kenyatta. If the judges should find him innocent, the whole episode would most likely win him more votes. This shows that the ICC’s Argentine prosecutor has a tough job. Ocampo is tasked with working independently, and yet he is at the centre of the political arena. The interference of the UNSC does not make the Libyan case any easier.

The ICC has been an unwilling puppet of political leaders. It is not uncommon for political rivals to accuse one another of genocide, and to try to play out their differences before the court. Whether or not crimes are handled by the ICC also seems to be a political choice. Besides the UNSC, governments – meaning its political leaders – can request the prosecutor to conduct an investigation. This occurred in Uganda, Congo, the Central African Republic, and – most recently – in Ivory Coast. At face value, this seems to be a good thing. However, Yoweri Museveni, Joseph Kabila and Francois Bozize also fear for their own hides. All three leaders have tried to halt ICC investigations. Allassane Ouattara also only wants to send his rival Laurent Gbagbo to The Hague.

'African Criminal Court'
While the ICC claims to be a global court, reality points in a different direction. Like Libya and Sudan, great powers like China, Russia and the USA do not recognise the ICC’s jurisdiction. None of these countries want to hand over their sovereignty. This seriously dents the credibility of international criminal law, and is used as fodder for critics and African leaders who speak of an ‘African Criminal Court’. After all, all the ongoing cases at the ICC are tied to Africa. The fact that Ocampo independently started an investigation in Kenya has added fuel to the fire. Critics accuse the West of judicial colonialism and arbitrariness. “Why doesn’t Ocampo travel to the Palestinian territories or to Iraq?” they ask cynically.

It is a job in itself for the ICC to explain its mission. It boils down to the fact that it may only intervene in countries that have signed the Rome Statute and do so when there are no other legal tools left. It is a court of last resort. Thus, ICC judges always have to scrutinise whether member states are able to conduct a credible investigation into war crimes, crimes against humanity or genocide. If nothing happens, then the ICC can initiate an investigation. The UNSC can intervene in non-member states such as Sudan and Libya.

Fresh start
Gaddafi will not be held responsible for crimes during Sierra Leone’s civil war between 1991 and 2002. One would expect that large scale crimes against humanity would never exceed their statutes of limitation. While indeed they don’t, the founders of the ICC decided in 1998 in Rome that no old crimes would be taken into consideration. This would have made a fresh start impossible. It did lead to the fact that the ICC could only handle crimes committed after July 1, 2002, which was the day the court opened its doors.

This rule works in favour of Calixte Mbarushimana, the Rwandan arrested last year for allegedly leading a band of rampaging Hutu rebels in eastern Congo out of the safety of his Paris apartment via telephone and the internet. He won’t have to answer for his alleged role in the 1994 genocide in Rwanda, of which he is accused by prosecutors in Rwanda and France.

International justice is sluggish and very expensive. It is often neither effective nor adequate. The court says it is there for the victims of large-scale human rights violations. Sometimes however, the court takes a long time to move into action. For example, Ocampo in 2005 had arrest warrants out for Ugandan rebel leader Joseph Kony and four other prominent leaders of the Lord’s Resistance Army. One of them has since been murdered, but Kony is currently still wreaking havoc in the jungles of DR Congo, Sudan and the CAR.

Far from my hometown
Even when a trial does finally start, victims often feel it is something that is happening a great distance away from their lives. The court is based in The Hague and up to now, no hearings have been held close to the crime scenes. How many Congolese have enough money to travel to The Hague? Which African has the luxury to be in possession of a Schengen visa in order to enter The Netherlands? The spaces available for the public in the courtroom gallery are always eerily empty. Whether it has to do with Rwanda, Cambodia, the former Yugoslavia or Sierra Leone, international justice silently moves past the victims. It won’t be much different if Gaddafi should ever make it to The Hague.

Lead photo - Hans and Carolyn on flickr.com - all further use subject to this CC license