With Libyan rebels seemingly on the verge of victory, there are growing calls from international justice advocates for Muammar Qaddafi to be turned over to the International Criminal Court (ICC) to face charges of human rights abuses.
But with seven major cases ongoing, and a major one against Congolese warlord Thomas Lubanga about to conclude this week, the main question for the ICC is whether it has learned from past mistakes, and whether its flamboyant and controversial prosecutor, Luis Moreno-Ocampo, can successfully prosecute a high-profile case against Mr. Qaddafi.
Certainly, Mr. Ocampo's public announcement this week that Libyan rebels had captured Qaddafi’s son, Saif al-Islam Qaddafi (disproved within hours as Saif Qaddafi gave a televised interview in Tripoli), was a reminder that Ocampo’s penchant for overstatement remains a problem.
The misstep may seem like a petty matter, something to be blamed on the fog of war, but critics see it as emblematic of a more fundamental problem for the Argentine prosecutor Ocampo, a persistent inattention to detail seen in previous ICC judicial decisions that forced Ocampo to withdraw charges of genocide against Sudanese President Omar al-Bashir and war crimes charges against Mr. Lubanga until his office had done a better job of proving its case.
But human rights experts say that the ICC, as an institution, is certainly beginning to show signs of improvement.
“I think that yes, there have been missteps, and these missteps have hurt the court,” says Richard Dicker, director of the international justice program of Human Rights Watch in New York. “At the same time, there is a learning curve, and even with ongoing problems and missteps on a difficult landscape, the expectations and the demand for justice through the International Criminal Court has increased qualitatively.”
Justice in Libya or in the ICC?
What's more, a new Libyan government made up of leaders of the rebellion could move to bring Qaddafi to justice inside Libya.
At a June 29 meeting between Libyan officials and Ocampo’s office, Mahmoud Jibril, head of the Executive Council of the Transitional National Council (TNC) in Libya, said, “Libya should take the lead in anything related to Libya and on Libyan soil.”
Yet in a political environment such as Libya’s, where the interim government may have loose control over its soldiers at best, it still remains to be seen if Qaddafi would in fact be handed over, even if he is apprehended.
“From an international legal point of view, the Libyan authorities are required to assist the court in arresting and extraditing Muammar Qaddafi and the other indictees, and to hand them over to the court,” says Nick Grono, deputy president of the International Crisis Group in Brussels. “It will be interesting to see what happens.”
The ICC in Libya
The ICC’s involvement in Libya goes back to June 27, when it issued arrest warrants for Qaddafi, his son Saif al-Islam, and Libyan intelligence chief Abdullah al-Senussi on charges of crimes against humanity for their role in the killing of civilian protesters.
Apprehension of Qaddafi, his son, and his intelligence chief would be just the beginning of a process, in which Qaddafi would enjoy the presumption of innocence, and in which the burden of proof for the prosecutor would increase with each step, from arrest, to indictment, to conviction or acquittal.
“Crimes in Libya were primarily committed against Libyans,” Mr. Ocampo said in a statement earlier this month. “The Court issued arrest warrants on 27 of June against three individuals. They are some of the most serious crimes of concern to the international community as a whole. That is why the UN Security Council referred the situation to the International Criminal Court in February 2011.”
Mr. Grono says that one of the greater obstacles to Qaddafi’s prosecution – using his position as leader of Libya to prevent his arrest by Libyan authorities – has now been removed as Qaddafi’s government has effectively collapsed.
“A successful prosecution of Qaddafi would be a huge impetus to the ICC,” says Mr. Grono, adding that the court has “a difficult job” and has been “finding its feet for the last eight years.”
“I suspect that if this case ends up before the judges, it could recast the story of the ICC," he says.
Obstacles for the ICC
Mr. Dicker of Human Rights Watch agrees that much of the criticism aimed at the ICC is valid, but says that it’s important to realize “how difficult the task of the prosecutor of this court is, how formidable the obstacles a prosecutor faces, and that is all the more difficult for a first prosecutor of this court.”
Unlike a district attorney in New York City, for example, who can call upon a police force to investigate a crime, as well as apprehend, charge, and hold onto suspects, the ICC relies on the governments of signatory countries – often the very regimes accused of war crimes – to arrest and extradite their own leaders and officials. In that context, efforts by the ICC are almost certain to be messy at best.
“Certainly, they [the office of the prosecutor] have been energetic, active, and indefatigable,” Dicker says.
Yet it is important for Ocampo and the ICC to get it right over the remaining months of Ocampo’s term as prosecutor, which ends next year, he adds.
“The prosecutor, before he leaves office next year, has work to do to finish some of the tasks in Eastern Congo, in Uganda, in Darfur," he says. "There is unfinished business Moreno-Ocampo must address and to convey to his successor, whoever he or she may be.”