There was a time, just a few years ago, when Libyan leader Muammar Gaddafi was ostracized by the international community. Then he became a key, if quirky, ally and business partner of the West. Fast-forward a few years and Gaddafi is back to being ostracized and vilified for his violent crackdown in Libya. The narrative of Gaddafi and Libya that is told in years and decades from now, however, may simply omit those inconvenient and uncomfortable years when the West buddied-up with Gaddafi, enthusiastically shook his hand, smiled at photo-ops and accepted his money in exchange for weapons, some of which could feasibly have been used by Gaddafi-backed troops against Libyans.
There is much to be said about the “limits of law”. International law isn’t the solution to all politics nor is it a solution to peace. Increasingly, the limits of what law can achieve are being recognized and the expectations of law calibrated. Yet, when the UN Security Council referred the situation in Libya to the ICC, the Council actually imposed a political limit to the Court’s jurisdiction and thus what it could and could not investigate.
Operative paragraph 4 of UN Security Council Resolution 1970 (2011) reads:
“4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;
Thus, the ICC’s investigation is limited to the events that have occurred since February 15. This is not an arbitrary decision nor was it included to ensure that the Court did not have too much on its plate. It was a carefully deliberated political decision by member states of the UN Security Council seeking to ensure that embarrassing, political facts could not be brought forward in the process of a trial.
In his excellent post on the debates surrounding the Libya deferral, Xavier Rauscher argues that the legality of the time is not particularly questionable because “[i]t would not necessarily be good administration of justice to constantly give the ICC full jurisdiction time-wise, especially as the Court grows older.” This may be, but there is a difference in giving the Court full jurisdiction back to 2002 and giving the Court a very myopic jurisdiction, beginning just weeks ago. What will be lost with this curtailed temporal investigation is precisely how Gaddafi was able to commit human rights violations on the scale of crimes against humanity.
“Cynics would however not be entirely wrong to point out that political motives may also be at play here, as States would rather avoid having the Court look too closely at possible unsavory ties governments had with Gaddafi prior to the recent rebellion.”
Cynical or not, the limited jurisdiction was politically motivated. This is why:
A recent and rather shocking piece by The Guardian broke down the EU arms deals to Libya. The key points included:
- The EU granted export licenses for €834.5m worth of arms exports in the first five years after the arms embargo was lifted in October 2004 2009 is the highest amount ever: €343.7m
- Italy is the top exporter, with €276.7m over the five years
- The UK got off to a big start in 2005, with €58.9m of the €72.2m total. UK licenses over the five years are worth €119.35m
- Malta saw some €79.7m of guns go through the Island en route to Libya in 2009 – apparently sold via an Italian company
Add to this the following curriculum vitae of less than savoury deals between Western states and Libya:
- Just six weeks before the violence erupted in Libya, Russia announced that it had signed a $1.8 billion arms deal which included small arms, fighter aircraft, tanks and a sophisticated air defence system
- The US recently had a $77 million deal with Libya in place to provide Gadaffi with 50 refurbished armored troop carriers
- Italy’s relationship with Gadadffi’s stands alone: Libya is Italy’s largest supplier of oil while Gadaffi owns 7.5% of Unicredit, Italy’s largest bank, 2% of the Italian oil company ENI, 2% of the country’s second largest industrial group, Finmeccanica and 7% of the Turin-based Juventus soccer club; In 2008, Italy agreed to invest $5 billion in Libya in exchange for tight immigration controls for African migrants in Libya. As Time Magazine put it, Italian Prime Minister Berlusconi “went gaga for Gadaffi”.
- In 2007, Libya and France signed a £200m arms deal which was viewed as an indication of thawing relations between the West and Libya; it also signed agreements on immigration and security.
- In 2007, British PM Tony Blair travelled to meet Gaddafi in Tripoli and called relations between the UK and Libya “completely transformed” and added that “[w]e now have very strong cooperation on counter-terrorism and defence.” The countries then signed a £450 million agreement allowing BP to establish gas exploration projects in Libya which, if it reached its full potential, could be worth £13 billion.
This just barely scratches the surface of the complex web of economic, political and military relations between the West and Libya. The point isn’t that it was wrong for Western states to engage with Libya. Rather, as Stephen Glover recently wrote: “What is not defensible is the subsequent indulging of this horrible man, and treating him as though he were a normal leader of a normal country.”
It is telling that it is harder to find a Western state which did not cozy up to Libya than one which did. Not even jubilant celebrations for Abdel Baset al-Megrahi, the only man convicted of the bombing of the Pan Am flight in 1988, known as the Lockerbie bombing, brought much more than a hiccup of political rhetoric in relations between the West and Gaddafi.
Of course, in the process of shaking hands and meeting with Gaddafi, Western leaders also granted him political legitimacy and currency on the international stage. Even as Gaddafi declared ‘jihad’ on Switzerland in response to the arrest of his son on allegations of assault, the leader now being vilified was welcomed with open arms and open wallets by Western leaders.
Of course, these same Western states are now at the forefront of a call to bring justice and peace to Libya and they certainly don’t want to be accused of a “flip-flop” – that would be far too embarrassing and even politically damaging. Thus, in some ways, restricting investigations into events in Libya was predictable. Fearing political repercussions for their cozy relationship with Gaddafi, why would they make it worse by allowing evidence about their relationships to become public through legal proceedings? The photographs of smiling leaders greeting Gaddafi are awkward enough.
But they’re not. It may be that criminal responsibility lies solely with Gaddafi and the senior officials around him. But political responsibility and accountability should go farther. It may just be that the types of crimes that Gaddafi has been committing against Libyan civilians would be impossible had it not been for the thawing of relations between the West and Libya. Worse yet, it may be that the bullets, guns and tanks used to commit these crimes are British, Russian and French. If political accountability and responsibility for those Western leaders who support the Gaddafi’s of the world is impossible, then the critics who claim international justice as neocolonial and imperial will have compelling evidence justice is by the West and for the West.
When the UN Security Council decided to restrict the ICC’s temporal jurisdiction in Libya, it not only denied the possibility of criminal responsibility but also political responsibility. Further, if trials are intended to provide accurate historical accounts of how, why and what atrocities occurred, then the limited jurisdiction imposed by the Security Council actually denies the “shrinking space of denial.”
The ICC may never shed light on how Gaddafi was able to allgedly commit the violations of international criminal law that he has because understanding how he does requires investigations prior to February 15th and indeed requires investigations into the relationship between Gaddafi and the West.