Children play on a tank near Benghazi (Photograph: Kim Ludbrook/EPA)
The UN’s referral of the situation in Libya sharply restricted the temporal jurisdiction of the ICC. The referral says the Court can have jurisdiction only over crimes committed in Libya since February 15th 2011. In a recent post, I argued that this would bias the potential for political accountability as well as the historical record, particularly in relation to relationships between Western states and Gaddafi.
ICC Prosecutor Luis Moreno-Ocampo also wanted a more expansive jurisdiction, but for different reasons. Tucked away in an article by Al Arabiya about Egypt’s cooperation with the ICC on the investigation of events in Libya, is the following:
“Ocampo had hoped that Security Council resolution 1970 mandate would allow him to investigate crimes in Libya since 2002, rather than Feb. 15, 2011, Al Arabiya sources said.
This expanded time frame that would have allowed him, according to the sources, to show a pattern in the Libyan regime’s behavior.”
Where is this information in mainstream western media? The lack of critical thinking on Resolution 1970 has been frustrating. The role of the ICC been portrayed through a predictable and frustratingly artificial dichotomy: either the referral marks an incredible moment in international cooperation and commitment to international law (see here and here) or it will give Gaddafi more reasons to stay in power and continue killing Libyan civilians (see here, here, and here).
Moreno-Ocampo’s argument needs analysis, separate from the question of the politically-oriented choice of jurisdiction by the UN Security Council. It points to the fact that a restricted jurisdiction is precarious both in terms of justice as well as the law. Presumably, Moreno-Ocampo wants to establish that any of the alleged crimes against humanity committed in Libya are part of a systematic pattern of violence and criminal activity. If any Libyan officials are ever brought to trial, this would no doubt help in the prosecution’s case. Unfortunately for the Court’s Prosecutor, this won’t be possible.
At a recent conference, one well-regarded Transitional Justice academic referred to Libya as a “poisoned chalice” for the ICC. How the referral affects the legitimacy of the Court can only be judged in the months and perhaps years to come, but it is, at the very least, important to consider the possibility that the politically inspired directives of Resolution 1970 are not necessarily a good thing for the Court or international criminal law in general.
Justice in Conflict 
“Criminal’s Accomplice”
(A one act/one scene play with a potentially horrific end.)
Setting: A War Crimes Tribunal, somewhere in Europe.
Actors: Three Judges; an international war crimes Prosecutor; a Court…
“Criminal’s Accomplice”
(A one act/one scene play with a potentially horrific end.)
Setting: A War Crimes Tribunal, somewhere in Europe.
Actors: Three Judges; an international war crimes Prosecutor; a Court Clerk; two armed court officers; Donald Rumsfeld
Act 1
Scene one. A black curtain is slowly drawn to reveal a somber setting. Three Judges ( A President of the Court; the Judge on the President’s right; The Judge on the President’s left); two armed guards; a Court Clerk who reads the charges; the Prosecutor; Donald Rumsfeld, standing as an accused before the Tribunal.
President ( looking at Rumsfeld): Mr. Rumsfeld you have been brought before this Tribunal for reason that by international consensus, a vast majority of people in the world had petitioned for your trial for complicity in crimes against humanity. Should this Tribunal find you guilty, you can be sentenced to life imprisonment. Do you understand?
Rumsfeld: Yes I do.
President: Is there anything you wish to say before the trial commences?
Rumsfeld: I am an American citizen, and this court has no jurisdiction over me. I am American, I am above international law, and in fact I am a law unto myself.
President: Precisely, and it is those misconceived notions which got you into this predicament in the first place. Commence with the charges.
Court Clerk: Reads a long list of jurisprudential formalities, and then adds…
“ facilitating the procurement of chemical weapons , namely bis- ( 2-cholorethyl) – sulfide ( more commonly known as mustard gas) for sale to the Government of Iraq under the rule of Saddam Hussein.”
Rumsfeld: Is that supposed to be a charge?
President: Mr. Rumsfeld the international law applicable to your alleged heinous conduct was read out to you previously. Would you care to have the passages repeated?
Rumsfeld: What’s this international law, international law indeed! I told you already I don’t give a damn about any international law – I am an American citizen.
President: ( looking at Prosecutor) : Please begin questioning.
Prosecutor: Mr. President there is one more charge.
President: Clerk, please read the charge.
Clerk: “Facilitating the procurement of chemical weapons , namely ethyl N, N-dimethylphosphoroamidocyanidate ( more commonly known as Tabun) for sale to the Government of Iraq under the rule of Saddam Hussein.”
Rumsfeld: And that’s what you call a charge? So I helped in getting and approving sales of chemical weapons, and a lot of other weapons for Saddam Hussein, and what of it? There is no crime in that. We sold him weapons because it was in the interest of the United States to sell weapons to him and his bunch of bandits in Iraq . Don’t you understand that he was conducting a war with Iran, and we needed to have a no win situation. It was in US interest. I did my law abiding duty to my country. ( Rumsfled turns from his focus on the President, looks slowly to the center of the court room, lowers his head, and almost sotto voce says) – and I don’t see why I am in this damn court for all the good that I have done for God and country.
President: Mr. Prosecutor – you may begin questioning.
Prosecutor: Your name is Donald Rumsfeld, and you held office under President Reagan, and you have been Secretary of Defence for the United Stares of America?
Rumsfeld: Yes.
Prosecutor: During the period of the Iran- Iraq War – do you recall being an envoy to Baghdad?
Rumsfeld: Yes.
Prosecutor: And at the time you carried a hand-written letter and personally delivered it to Iraq’s President, Saddam Hussein?
Rumsfeld: Yes.
Prosecutor: It is also true to say that at the time of your visit to Iraq you were the highest ranking United States official to have visited Iraq in the previous six years.
Rumsfeld: Probably.
Prosecutor: It was either so or it wasn’t. Are you able to name anyone in the preceding six years, prior to your visit to Baghdad, who held higher office than yourself who had visited Baghdad; or, more precisely had at all visited Iraq?
Rumsfeld: No.
Prosecutor: So…
Rumsfeld: Look, it’s all lawyers’ games, if this then that, so what ? O.K. yes I was the top guy who visited.
Prosecutor: Would you have a look at the three exhibits which I am about to hand up to you – listed “A” , “B” and “C’ for ease for reference.
( papers are handed to Rumsfeld)
Prosecutor: Please look at “ A”. And you accept that in March 1984 you were in Baghdad.
Rumsfeld: Yes.
Prosecutor: Now turn to “B”. From that United Press International report, you accept that it was reported internationally that, and I quote in part, “ Mustard gas laced with a nerve agent has been used on Iranian soldiers in the 43-month Persian Gulf War between Iran and Iraq….” And it goes on “ Meanwhile, in the Iraqi capital of Baghdad, U.S. presidential envoy Donald Rumsfeld held talks with Foreign Minister Tarek Aziz on the Gulf War before leaving for an unspecified destination.” Do you accept that report as factually accurate?
Rumsfeld: Well I already told you that I was in Baghdad, but I wasn’t there doing the gassing.
Prosecutor: Do you have reason to doubt that at the time it was reported, you personally knew, and the day before your meeting with Tariq Aziz it had been reported that some 600 Iranian soldiers had been gassed with chemical weapons on the southern front.
Rumsfeld: I told you I wasn’t there gassing, so how am I to know?
Prosecutor: Look at exhibit “C” Mr. Rumsfeld. By reference to that document, is it no less a person than US Ambassador Jeane Kirkpatrick, who acknowledged, “ We think the use of chemical weapons is a very serious matter. We’ve made that clear in general and particular.” Now, do you deny that as a very senior US official you knew and were fully aware of the gassing with chemical weapons?
Rumsfeld: O.K., you got me on that one.
Prosecutor: And on March 29, 1984, it was reported in the New York Times, “ American diplomats pronounce themselves satisfied with relations between Iraq and the United States and suggest that normal diplomatic ties have been restored in all but name.”
Rumsfeld: Look, I am no dummy, my name is Donald, not George, you are going to go to some paper and ask this, and question the other , and therefore this, and all that lawyer bullshit. Let me just tell you plain and straight. In May, 1984, I resigned. You want to suggest that I am the facilitator who gave support when Iraq was actively using chemical weapons. You are then going on to say that during my period Iraq was actively purchasing weapons and chemical agents from American firms. Well let me tell you something Buddy, that’s just how the world is. I did it for my country, The U.S. of A. which I love. Look, I am not some kind of Milosovic, or some criminal, who you put in some monkey cage and get away with it. We will bomb the shit out of this court before that is allowed to happen. You guys just don’t get it, yes we sold – yes I helped procure the weapons. I did what was right for my country at the time. I came back and I have loyally served George W. Yes, Saddam gassed the Kurds in 1988.Yes we sold him 60 Hughes helicopters and more stuff too.
President: Mr. Rumsfeld, just a couple questions.
Rumsfeld: Sure.
President: Having just admitted as you did, you have been a great help to this Tribunal, and have probably shortened the trial considerably – however, just for the record, a couple points. Do you, personally, not feel any sense of remorse for the complicity in first facilitating the Iraqi government’s atrocities, and then never having done anything about it?
Rumsfeld: Look, under Clinton I signed a letter saying that we should get rid of Saddam.
President: But when you were in a position to inform the world about the atrocities you were totally silent.
Rumsfeld: You just don’t get it. We sold him the stuff, and we needed him then, so why should I have said anything? It would not be logical. It would not have made sense. But when Geroge W. got back in we are focused on oil and we moved aggressively after him. The guy is a tyrant, so he had to be got rid of.
Prosecutor: Mr. Rumsfeld…
Rumsfeld: I have had enough of this court crap.
Rumsfeld turns and walks towards the main doors of the court, and as he does so he is approached by the court’s two armed officers. Rumsfeld turns and says…
“If one of you so much as puts a hand on me, the Marines will be here quicker than you can say ‘Saddam Hussein’ . I am out of here guys, back to God’s own country, the U.S.of A.”
As he walks through the court’s doors a loud mocking laugh is heard.
The End.
(Courtenay Barnett; barnett46@hotmail.com