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.
Although I agree with your general evaluation, I would qualify your comments slightly by pointing out a few things.
1) I’m not sure that criminal courts are there to narrate history for future generations. They claim to do that, but that is not, and cannot be, their function. They are but one, and not the best suited, institution, that contribute with the collection of evidence in relation to specific cases. But ultimately, historians write history, not lawyers, or at least that’s how it should be.
2) However politically debatable the relations of the western powers have been with Libya, one must not forget the material competence of the ICC, which is genocide, crimes against humanity and war crimes. One could argue that it was a little cynical for the States you mention to “cozy up”, as you say, with the unsavory Libyan regime, but the continuous human rights violations preceding the uprising need to be defined as crimes within the meaning of the Statute to justify its jurisdiction before Feb 15th. The ICC is not a general Court of naming and shaming support for dictatorships.
3) Even admitting that crimes within the jurisdiction of the Court might have been committed before the insurgency, the starting date of the referral means (of we accept it as legal according to the Statute) that no crimes committed before that date can be prosecuted, but it doesn’t necessarily mean that facts and events taking place before cannot be considered, if relevant, for example, in establishing the mens rea for crimes against humanity. Other international tribunals have notably done this. At Nuremberg, for example, the tribunal considered nazi policies in the 30s, despite the jurisdiction only starting at the beginning of the war. The same is true for the Special Court for Sierra Leone and the ICTY, which went far back into the histories of the countries to give a context. To push that logic, to the extent that the crimes were committed after the date of the referral, you could still claim complicity if you establish that Western States could foresee that crimes would be committed, even if the sale of weapons occurred earlier (arguably, what I just described as complicity is more flexible that what is actually envisioned in Article 25(3)(d) of the ICC Statute, but you get the idea).
4) Finally, one must not forget that the judicial process itself involves not just the Prosecutor, but also the Defendant. If Khadafi ever ends up in the dock, he will surely bring up everything you mention, as other international defendants have done in the past. It might not be legally relevant for the Prosecutor’s case, but it will go on the record and will be part of the “writing of history”.
I very much appreciate the time and effort you took to construct your comment. I also appreciate the insightful knowledge you consistently provide on ICL/ICJ in the blogosphere. I’ll respond in kind to the points you make.
1. I agree that courts cannot narrate history and that there is a problem with the expectation that they should and that they can. It may be that Courts are unable to contribute to any ‘truth’ other than forensic truth and thus ‘forensic history’. But through the practice of trials Courts do contribute to the creation of history. I thus have a problem with both the view that Courts are responsible for history and also that they are necessarily able to establish even an accurate ‘forensic history’, which, in this case, would require going beyond February 15th. Perhaps, as you say, however, as a Defendant, Gaddafi would contribute to this history, although I remain skeptical (see below).
2. I agree with this point entirely although I’m not convinced (and I’m not sure you’re making this point) that the reason why February 15th was chosen by the UN Security Council was because no events prior to that date and after 2002 could constitute crimes within the Court’s jurisdiction.
3. Thanks, in particular, for this point. I am interested to see how this shakes out. The counter-example, of course, is the ICTR where both alleged crimes following the genocide as well as the assassination of Habyarimana have never been brought forward to the Tribunal.
4. Again, I generally agree with this point although I remain unsure whether Gaddafi will be able to produce damning information regarding his ties with Western states as evidence that is admissible to the Court. Further, if there is any responsibility on the part of states which sell the weapons that are used against Libyans, then perhaps the Prosecution should be interested and not only the Defence. I remain unconvinced that histories produced will equally, or better even-handedly, take into consideration both the evidence and narratives presented by the Defense and those of the Prosecution.
Thanks for the comment on my blogging, which has been a little erratic as of late, and your reply.
I was indeed not making the point in 2) that the date was chosen because no crimes had been committed before. I’m just saying that your point that the date was chosen to avoid embarassment for western powers needed the qualification that you still have to establish international crimes for the ICC to have jurisdiction, not just that there was a condemnable support for a dictatorship.
More generally, I think there is maybe too much emphasis on that date. Ultimately, it is unlikely that my complicity option in 3) pans out, not because of any temporal limitations, but just because it is unlikely that the Prosecutor will shoot himself in the foot by opening an investigation against permanent members of the SC…
As to the relationship between history and law, it is a fascinating one that would deserve more than this response. But I do think (maybe naively) that long term historical analysis manages to free itself from the shackles of the immediate perception of a criminal trial, however biased it may be. We all know now that the massacre of polish officers in Katyn was a soviet crime, despite it being blamed on the nazis at Nuremberg, and more generally, the acts committed by the Allies (Dresden for example) have been amply documented, despite their absence from the Nuremberg trial. Historians will unearth the truth about the habyarimana assassination and will document the failure of western States to prevent atrocities, or even their contribution to them. History takes time and should not be confused with accountability, which requires some urgency. In relation to the notion of long term historical analysis, I really like what a Chinese leader allegedly said in the 1970s when asked about the impact of the French Revolution: “it’s too soon to tell.”
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I think you forgot an essental part / photo in the Ghadaffi story.
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