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IWPR Insight
Will Gaddafi Face Justice?
By Simon Jennings - International Justice - ICC19 May 11
The prosecutor at the International Criminal Court, Luis Moreno
Ocampo, has asked judges to issue arrest warrants for Libyan
president, Muammar Gaddafi, and twoother senior Libyan
officials.
IWPRs international justice reporter, Simon Jennings, assesses
the likelihood ofGaddafi and his henchmen being brought to justice
in the event of formal chargesbeing issued.
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Who is implicated in the prosecutors request for arrest warrants
and what charges
could they face?The prosecutor is seeking arrests warrants for
Gaddafi and his inner circle, including his second eldest son, Saif
al-Islam Gaddafi and his brother-in-law Abdullah al-Sanousi, the
head of Libyas military intelligence. Ocampo says he has gathered
direct evidence of widespread and systematic attacks against
civilians by the Libyan regime since February 15, 2011. The
allegations constitute crimes against humanity - specifically the
orchestrated murder and persecution of civilians.
The prosecutor says he has evidence of meetings between the
three men to plan attacks on demonstrators, civilians in their
homes as well as the use of heavy artillery against funeral
processions. Ocampo also told how the Libyan regime prepared lists
of names of dissidents who were rounded up, imprisoned and
tortured.
These are not just crimes against Libyans, they are crimes
against humanity as awhole, the prosecutor said, addressing the
media on May 16.
Ocampo said his office would also be investigating the two sides
in the conflictfor war crimes, since clashes broke out at the end
of February. He said he woul
d look into alleged incidents of rape as well as attacks by
rebels against sub-Saharan Africans mistakenly thought to be
mercenaries. The prosecutor is also intouch with the United Nations
Human Rights Council which will publish its reportinto Libyan
atrocities on June 7.
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What happens next?A bench of three ICC judges will now review
the evidence presented by the prosecutor. They can either issue
arrest warrants, dismiss the prosecutors request, orask him to
provide more evidence to support the arrest warrants. It is
difficultto say how long this process might take and in the past
ICC judges have dithere
d over the level of evidence required to issue an arrest
warrant.
The arrest warrants for the only other sitting head of state
charged by the ICC,Sudanese president Omar al-Bashir, took eight
months to be issued and then judg
es added genocide charges a further 15 months after that.
However, other arrestwarrants have been drawn up within one or two
months.
It is thought that in the Libya case, judges will want to act
swiftly given thecurrent international attention and the Security
Councils desire for timely actio
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n. If arrest warrants are granted, the court will also want to
bring Gaddafi toThe Hague before he is killed by NATO airstrikes or
has the chance to slip intoexile. According to Ocampo, his evidence
is so strong and his team is almost readyfor a trial.
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Is the prosecutors move likely to deter the Libyan regime?The
prosecutors request and, if granted, the arrest warrants are
unlikely to haveany immediate deterrent effect on the Libyan
regime. Libya
s deputy foreign minister, Khaled Kaim, has already dismissed
the potential warrants. As Libya is not a member of the ICC , its
government does not see itself bound by the courts decisions.
However, as a UN member it is bound to cooperate with the court due
tothe original referral by the Security Council.
Some fear arrest warrants could actually have a detrimental
effect on any efforts to negotiate with Gaddafi and limit the
possible safe havens open to him if hewere to stand down. Some have
questioned the prosecutors strategy of requesting
an arrest warrant publicly when, it may be argued, Gaddafi could
have been forced into exile and then surprised by a sealed arrest
warrant and apprehended.
While the UN resolution referring the conflict in Libya to the
ICC urges all UNstates to cooperate with the court, they are not
legally bound to do so and it seems unlikely that there would be no
state willing to accept Gaddafi. Bashir hasbenefited from the
hospitality of several UN states who remain hostile to the I
CC and it is possible to see Gaddafi doing the same.
If certain states do prove sympathetic to Gaddafi, there is
little the ICC can do but appeal to the Security Council. Since
indicting suspects in Sudan, the court has reported Khartoums
non-compliance as well as visits by Bashir to other UNand ICC
member states to the Security Council. However, the latter has done
noth
ing about it. Some of its permanent members, critics would
argue, are more concerned with political issues such as the smooth
secession of South Sudan than withsupporting international
justice.
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Who will apprehend Gaddafi and his henchmen if judges go ahead
and issue arrestwarrants?Issuing arrest warrants is one thing, but
actually bringing Gaddafi to The Haguewould not happen overnight.
The ICC doesnt have its own police force so would beentirely
reliant on states - in this case the Libyan regime itself - to
arrest
any suspects. The ICC has long been a court that has struggled
to deliver suspects to The Hague. It has had arrest warrants
outstanding for Bashir; his former deputies and commanders of
Ugandas rebel Lords Resistance Army, since 2009, 2007 and 2005
respectively.
None have been apprehended and the Sudanese government continues
to wage a campaign of violence in Darfur.
Arrest warrants against Gadaffi and his henchmen are unlikely to
be acted upon for as long as hes in power. If the regime falls, the
incoming government could well hand the potential suspects over to
the ICC.
As for getting assistance from NATO in apprehending suspects,
the prosecutor has
so far not requested any but even if he did there are question
marks over whether it could effect arrests.
