The Death of Gaddafi and the “Injustice Cascade”

Is this the face of "justice"?

Many a practitioner, scholar and layman has argued that we live in a world where holding leaders accountable for committing international crimes – genocide, war crimes and crimes against humanity – has become a norm. The world has no place for impunity. Humanity and the international community, so it goes, no longer question whether to pursue justice and individual accountability for leaders like Muammar Gaddafi, Slobodan Milosevic or Charles Taylor, but how to achieve it.

Kathryn Sikkink has dedicated much of her academic life to communicating precisely this type of narrative. According to Sikkink there exists what she calls a “justice cascade” – the apparent increase in holding individuals accountable in states transitioning to democracy. Through this idea of the “justice cascade”, Sikkink is saying that, one, we increasingly expect and pursue individual accountability and two, that we indeed should. In short, holding individual leaders who commit large-scale human rights violations accountable is an entrenched element of international politics – it has become a norm.

Last night I had the opportunity to attend a keynote speech given by Sikkink, addressed to a crowd of international relations theorists at the annual Millennium Conference. In the address, Sikkink promoted her new book, bearing the name of her above-stated hypothesis: “The Justice Cascade”. In the question and answer period, Professor David Chandler challenged Sikkink by suggesting that actual state practice points to precisely the opposite of a “justice cascade” and, in fact, rather approximates an “injustice cascade.”

In his challenge Chandler summarized a rather disturbing trend in international criminal justice: Milosevic was given a trial, and while critics have exposed some flaws in the trial, Milosevic’s was largely a fair trial in the sense that he was given the opportunity to argue his case. Subsequently, in 2004/2005, Saddam Hussein was put on trial in Iraq, a process that is largely recognized as having been little more than a sham trial. His hanging, the result of a death penalty handed down to him by the Iraqi tribunal hearing his case, is often criticized as having denied Hussein the opportunity to demonstrate how the US had cooperated with him in the past. Of course, we now have Gaddafi who never reached the courtroom, despite having been captured alive.

My question is simple: does this trajectory suggest a knee-jerk reaction and challenge to the so-called norm of individual criminal accountability?

As I have argued previously, it is worth wondering – and being concerned about – whether the killing of individuals like Osama bin Laden and Gaddafi, as well as the dramatic increase in the use of drone strikes by the US is symptomatic of a shift in practice towards eliminating enemies rather than bringing them to the dock. What has disturbed many observers more than anything about this growth in extra-judicial killings is that it is being framed as “justice” and thus brings the “justice” served by assassinating and killing enemies into the same moral space as the “justice” served by holding individuals to account by trial for their role in orchestrating and perpetrating atrocities.

It is important that I clarify a key point: I am not suggesting that Western states are ordering the killing of individuals like Gaddafi because they don’t want to see them in a court. Such direct intentionality is impossible to prove. What is happening, however, is that states (NATO states in the case of Libya), are creating ripe conditions wherein killing “evil” or “inconvenient” adversaries like Gaddafi becomes a likely and predictable outcome.

In Libya, the ripe conditions for Gaddafi’s death were created by the intervening states abrogating their supposed interest in bringing Gaddafi to account for his crimes. While the rhetoric of “bringing Gaddafi to justice” was high in the early stages of the conflict, it quickly turned to “it’s up to Libya what Gaddafi’s fate will be.” In practice, this meant that any pressure exerted by NATO states on Libyan authorities early on in the conflict to deliver Gaddafi to justice – in front of judges – withered.

It is hard not to see how Gaddafi’s death (which, some commentators are arguing, amounts to a war crime by the Libyan forces) was predictable. By saying, “it’s up to the Libyan people to decide what happens with Gaddafi,” the intervening states, which obviously carry tremendous clout and influence, were, in effect saying: “do what you will.” Not doing something, sometimes, does a lot. Not exerting pressure to ensure that Gaddafi was held accountable for his crimes had the effect of Gaddafi not being held to account and contributed, even if only indirectly, to a culture where killing him may not have been seen as an illegitimate act or even an injustice.

If it holds true that the increase in eliminating inconvenient enemies is a fundamental challenge to the norm of individual accountability, the question becomes whether this challenge is a complete reversal in how international actors pursue “justice” or whether it is just an obstacle on the road to universal appreciation for international criminal justice.

If it is the latter – and I think most readers hope it is – then the normative agents of human rights protection – the human rights NGOs of the world, the UN Secretary General’s office and indeed, the ICC’s Office of the Prosecutor – need to challenge this knee-jerk reaction of simply eliminating the adversaries of Western-led projects. There is evidence that they have begun to do so in the wake of Gaddafi’s death, which is a welcome sign if the normalizing of individual criminal accountability is to ever get back on track.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in International Criminal Court (ICC), Justice, Libya, Libya and the ICC, NATO, Osama bin Laden, Osama bin Laden and international law, Slobodan Milosevic, The Tripoli Three (Tripoli3). Bookmark the permalink.

8 Responses to The Death of Gaddafi and the “Injustice Cascade”

  1. Staszek says:

    Thx Marek for this thought-provoking post. I too would much prefer if Gaddafi was brought to justice, preferable international. But given the context of this war, it was clear this will not happen. Comparison with Milosevic (by Prof. Chandler) is sooo off the mark that it’s hard to believe it was made in good faith. Talking (by some) about “Libyan forces committing a war crime” is also misleading – have you see any “forces” in those videos? Any command or discipline? It was a mob, as it invariably happens when a totalitarian regime falls.

    What comes to mind is a short story by Tadeusz Borowski about the lynching of a guard by surviving prisoners in Auschwitz right after liberation – if I recall one of the liberators comes into the room where the survivors hold the guard, and gives them a lecture about the need for lawful behavior. They listen politely, nod their heads, and when he leaves, go back to their gruesome task…This is human nature…

    Killing of Gadafi was brutal and unlawful, but it was a form of primitive justice. I do not applaud or support it, it is not my kind of justice, and I found rejoicing it disgusting. but I understand it. It may have an impact – how does Bashar al Asad feel watching these pictures?

  2. Mark Kersten says:

    Thanks for the comment Staszek!

    I don’t think Chandler was comparing Gaddafi with Milosevic in anyway but to say: both were targets of interventions and while one received a trial the other was killed.

    I agree with you that killing of Gaddafi is viewed as some type of “justice”. But serving justice through killing is precisely the type of “justice” that I think people concerned with human rights and humanity were hoping was becoming less frequent, not more.

    Lastly, we don’t know what al Asad thinks when he sees Gaddafi being killed. But assuming that such images were to deter him from continuing to commit atrocities in Syria (something we can’t actually show), then surely Gaddafi sitting in the dock facing his victims would too…

    Do you have the Borowski story or know where I can find it? I’d love to read it!

  3. Very thought provoking. Given the evident chaos in the organisation of the Libyan forces, I’m not sure that even strong statements of the need to bring Gaddafi to the ICC would have helped keep him alive. But I agree that the lack of any statements from the involved states meant there was no pressure on the NTC to at least make it as clear as possible that they wanted him alive.

  4. Mark Kersten says:

    Thanks Jonathan – much appreciated.

    I agree with you – It’s probably unlikely that directives would have saved his life. Hopefully what comes across, however, is that the lack of directives and pressure surely made it *more* likely that Gaddafi would be killed. In other words, it helped create the space in which killing Gaddafi wasn’t considered illegitimate or an injustice.

  5. Fahad says:

    The Libya situation has been referred to the ICC by the Security Council. Any crime that was committed subsequent to such referral can also be technically investigated by the Prosecutor of the ICC. If international justice is to prevail over trigger “ justice,” then the actions of persons most responsible from the National Transitional Council and NATO need to be investigated and perpetrators tried for War Crimes. The argument that the NTC fighters were not part of an organized army but were actually a mob does not stand because there is a precedent against it. In the Nicaragua case the Americans supported the actions of the Contras. The International Court of Justice has held that the Americans were vicariously liable for the actions of the Contras because they were responsible equipping and training the contras. This is just one example, I can think of at least half a dozen more examples of command responsibility where the actions of irregular forces have been attributed to the aiding and abetting authority.

    The ICTY was more “successful” as an international tribunal because all participants of the war i.e Serbians, Croatians, Bosnian Muslims and Macedonians faced charges alike. This is not being done at the ICC, the exception being the Kenya situation. If the ICC wants to establish credibility and the rule of law, the prosecutor needs to ensure that all sides face the consequences of committing war crimes. I think the world has had enough of “Victors Justice Courts and Tribunals “ !!!

  6. Pingback: The Death of Gaddafi and the “Injustice Cascade” « umuvugizi

  7. Derek says:

    I strongly agree with Fahad. This raises another interesting question: why did NATO keep bombing the forces loyal to Gaddhafi under the pretense of “protecting the civilian population” long after they lost their ability to threaten anyone? The first mass graves of civilians who chose to stay in towns loyal to Gaddhafi have already been discovered, more will surely follow. If the aim of the operation had really been to protect civilians NATO should have protected the civilians in towns still loyal to Gaddhafi from the NTC forces (or mob, whatever you prefer).

    Of course the aim of the operation never was to protect civilians, but to remove Gaddhafi from power (at last) and protect Western oil and gas interests in Lybia. There was no intervention in Tunisia or Egypt, Syrians are alone in their struggle because they don’t have any natural resources. NATO countries count some of the worst human rights offenders amongst their staunchest allies. Of course “direct intentionality” is impossible to prove, but I bet many a NATO member country government must be pretty relieved he was never put to trial. International “justice” always has served the interests of the powerful, and if you ask me it always will. I know the argument all too well: just give it time, it is a process, soft law will become binding, the powerful already refer to the norms when breaching them blabla. I’m not buying it.

  8. angelinajhon says:

    Former Libyan leader Muammar al-Qaddafi was reported to have been killed in October 2011. Although his deeds have been discussed for a long time and apparently the situation in Libya will continue be in the news in the future, Qaddafi’s death left some questions worth asking.

    Why Libya got attacked?

    ans view here

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