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Gaddafi Targeted by Security Council as War Criminal (2/28) MORE NEWS (3/04)     Print Email
By European Affairs

A potentially consequential side-effect of Libya’s repression of civilian protesters is that the events there have been referred by the U.N. Security Council to the International Criminal Court for possible prosecution of Colonel Gaddafi as a war criminal, for ordering the murder of civilians and other crimes against humanity.

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The ICC has started a formal investigation  into possible crimes against humanity in Libya that will focus on the role of the country’s leader, Col. Gaddafi and  several of his sons and members of his inner circle, the New York Times reported March 3.

Luis Moreno-Ocampo, the chief prosecutor, told the newspaper that judging by the information he had received, many more insiders from the Libyan government had defected than was publicly known. “The system appears to be breaking down,” he said.

Mr. Moreno-Ocampo said he hoped that at this stage his actions could have a deterrent effect. He said he was putting senior officials in Libya — “individuals with formal or de facto authority” — on notice that they could be held responsible if forces under their command committed crimes.

Issuing an arrest warrant would probably take several months, but the prosecutor says “how an arrest order is implemented is a different challenge that will have to be addressed in due course. Right now, we must investigate the crimes, and reach those responsible.”

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It would still be a largely hypothetical possibility that Gaddafi might someday end up at The Hague for trial and possible conviction as a war criminal.

But the unusually swift decision by the UN Security Council to refer the Libyan leader to the prosecutor could make the onset of a newly vigorous role for the ICC, a body that has recently seen its authority expanded on paper, but still has little to show for itself as the world’s first permanent tribunal for war crimes.

Particularly striking to some observers was the fact that China overcame its habitual reluctance to intervene in other countries’ internal affairs by joining in the Security Council decision on sanctions on the Libyan leadership and the referral to the ICC. Any such initiative was up to the Council, not to the ICC prosecutor, because Libya (like China, Russia and the U.S.) is not a signatory to the Rome statute that created the court with strong EU backing. (Perhaps prophetically about himself, Gaddafi always lambasted the ICC as a form of neo-colonial “terrorism” aimed at rulers of developing countries.)

Set up to replace the ad hoc war-crimes tribunals that handled the genocides in Rwanda and ex-Yugoslavia, the ICC has so far performed only one significant act – a controversial indictment of President Omar Al-Bashir of Sudan over his forces’ alleged atrocities against rebels in Darfur. And that case itself may take a new political turn now that the Sudanese leader has cooperated with the international community in allowing a peaceful pro-partition vote by separatist rebels in south Sudan, which now seems set to become a separate country – the first such since Kosovo in ex-Yugoslavia.

Paradoxically, the move to activate the ICC could have the practical effect of hardening Gaddafi’s determination to fight to the death rather than surrender. A more important practical result of invoking the ICC is to alarm Gaddafi's closest aides in the repression, putting them on notice that they may have to stand trial for their actions. Hopefully, that will peel some of them away from Gaddafi.  If the situation in Libya turns into a civil war and Gaddafi is ultimately defeated and captured, an ICC warrant for him on war crimes charges could see Gaddafi following in the footsteps of Slobodan Milosevic to a jail cell in The Hague. That would spare the authorities in a new Libya from a potentially divisive trial at home.

In any case, the most immediate impact of the UN action is simply the fresh recognition and legitimacy gained by the ICC as a tool for use in crises by the international community.