Qaddafi and the ICC: A Conversation with Geoffrey Robertson

Qaddafi and the ICC: A Conversation with Geoffrey Robertson

Feisal G. Mohamed – Qaddafi and the ICC: A Conversation with Geoffrey Robertson

Geoffrey Robertson is the founder and head of Doughty Street Chambers, the UK?s leading human rights practice. He makes frequent appearances in the European Court of Human Rights, served as a UN appeal judge at its war crimes court in Sierra Leone, and in 2008 was appointed as one of three distinguished jurist members of the UN?s Internal Justice Council, which was tasked with reforming the UN?s administration of justice.

Mr. Robertson is the author of several books, including The Justice Game and his indispensable survey of global justice, Crimes Against Humanity. His most recent book is The Case of the Pope: Vatican Accountability for Human Rights Abuse (Penguin, 2010), which exposes to the scrutiny of human rights law the Vatican?s, and especially Joseph Ratzinger?s, concealment of cases of sexual abuse.

We spoke moments after the prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, announced on March 3 the launch of an investigation of Muammar Qaddafi and his regime.

FM: This past weekend, the Security Council unanimously passed Resolution 1970, which not only imposes sanctions on Libya but also refers Qaddafi and his circle to the ICC for investigation. What is you response to the resolution?

GR: I was very pleased and urged this course of action the previous week, when it was clear that Qaddafi was rejected by a majority of people. It seems to me, and has for some time, that Qaddafi is the worst man left in the world. He?s certainly guilty of funding masses of terrorism. In the early days he was the prime funder of the IRA, and of course of a number of movements in the seventies and eighties that caused great casualties, especially among Americans. He is, I think, clearly guilty of both the Lockerbie killing and the UTA bombing that followed it.

He has many other crimes to his name that he will never be held accountable for because the ICC jurisdiction only begins in 2002, so it is only crimes since then that it has power to investigate or prosecute. Nonetheless, under Article 7 of its statute the widespread killing of civilians amounts to a crime against humanity, and, under Article 8, amounts to a war crime if they are killed in the course of civil war.

We know from his past record that Qaddafi is a man entirely without mercy: in 1996 there were 1,200 prisoners massacred at one of the main prisons in Libya. And so it is right that at this stage, with allegations of several thousand people being killed by his forces already, there should be an investigation mounted not only into him but into his son Seif, who has called in effect for blood on the streets. Qaddafi has said that fighting should go on to the last man or woman, which is perhaps commendably non-sexist but at the same time frightening when you realize that potentially includes the last child as well.

In these circumstances, where the state is poised to fight back, the prospect of an ongoing ICC investigation and indictment is a matter of considerable importance. The insurgency is now in check and facing what could be a massive retaliation and Qaddafi-style vengeance, like his assassination of his opponents abroad, or what he called ?stray dogs,? in the eighties and nineties. It could be a very violent vengeance that he exacts.

FM: Today?s announcement is a little confusing in that when the Security Council adopted the resolution, the Indian ambassador in particular noted a twelve-month delay that has to take place between a Security Council referral and an ICC investigation. Today?s ICC announcement suggests that the investigation will begin immediately. What is the procedure?

GR: The Indian ambassador was referring to the power of the ICC to defer any investigation or any indictment for up to twelve months, but it was not a power that was exercised when the case was referred. This is the second time a referral has been made where a state is not a party to the ICC. There are 114 states that are, but the list doesn?t include Libya, nor ironically does it include China, Russia, or the United States, who voted for the referral. International law provides for the Security Council to refer a situation to the ICC prosecutor. Unless it imposes specifically a twelve-month term of adjournment, then the investigation and indeed the indictment may begin immediately, as it did in Darfur.

FM: You mention that several Security Council members, and indeed several permanent members of the Security Council, are not signatories to the ICC. Does it not raise concerns about this process that certain states who guard themselves against punishment are speaking the language of impunity to others?

GR: Sure, it does. All one can say is that the ICC is the legacy of Nuremberg, it took fifty years to establish it, and it is a slow business. International justice is a slow, upcoming thing.

I?m sure history will bear out that one of the stupidest actions of the United States was the puerile and counterproductive behavior that was part of the first term of Bush?s office, when, wound up by Jesse Helms, Congress actually passed the ?Bomb the Hague? bill, which gave the president power to use force to free any American who was indicted by the ICC. That was, I think, the height of childishness on the part of the United States–actually vigorously opposing the ICC, while threats were made to some U.S. client states that unless they refused to join the ICC they would lose aid and assistance.

In a kind of roundabout way, it actually gave the ICC credibility that America was so opposed to it. But quite clearly in terms of the quest for global justice, which all decent Americans would subscribe to, the ICC is a good thing and a necessary institution to have and to develop. The Obama White House has been a lot friendlier to the ICC. Bush in his second term started the process, and Obama is supportive of the ICC, albeit not daring yet (and it might take a second term) to become a member. I would like the United States to become an associate member very soon and then put pressure on Russia and China to join, because it is on the face of it unsatisfactory to have them referring situations to the ICC without fully supporting that court.

But it is important to keep in mind that there was a precedent set on Saturday in that the Security Council was unanimous. It was the first time that the Security Council has unanimously supported an ICC investigation. In the case of Darfur, back in 2005, the United States, Russia, and China all abstained.

FM: As a final question, we might turn to Obama and his record. You?ve mentioned that he has been friendlier to the ICC; certainly it?s hard to imagine being less friendly to the ICC than the Bush regime was. Has he lived up to his obligations, and what are his obligations under international law?

GR: That?s the real question. I would venture to suggest that there are certain duties that states have under international law, certain Good Samaritan duties, if you like. Where innocent civilians–men, women, and children–are being mass murdered, there does arise a duty to intervene. This is a duty that is spelled out in the Genocide Convention, and let us recall that the Genocide Convention at least was ratified, by Ronald Reagan. And it was that convention that the Clinton administration, in such cowardly and appalling fashion, ignored when it could have stepped in and stopped genocide in Rwanda. At a time when hundreds of thousands of lives could have been saved, it was the United States and the UK that stopped the Security Council, and who ensured that the ?g? word wasn?t used until it was too late to act.

But I think there is a duty, a basic duty under humanitarian law, to intervene, so long as a number of pre-conditions are established. I would argue for a right of humanitarian intervention, even though the Security Council is blocked by the Chinese, or Russian, or American veto. Where innocent people are being mass murdered, a duty does arise, for an alliance of states like NATO, or individual states like Tanzania when it went in to overthrow Idi Amin, or India when it went in to stop the mass killings and the mass rapes by the Pakistani army in Bangladesh.

There are these situations where you can legitimately bypass the Security Council, which is blocked on political grounds, and act as the UK, United States, and France acted without Security Council authorization to set up no-fly zones in Iraq to protect the Kurds in the early 1990s. The bombing of Kosovo in the early 1990s to stop ethnic cleansing was another example of acting without Security Council support. There are these narrowly defined situations where if you act proportionately, if you have a prospect of success, if you are acting to stop crimes against humanity at the behest of the people who are being killed, then I think once those preconditions are satisfied state alliances and states are justified, and indeed intervention becomes lawful.

I will address one more thing, which is a particular bugbear of mine: the practice of the Security Council of debating these issues in secret. I think this is outrageous and disgraceful. It protects the big powers from criticism when they articulate arguments for nonintervention that are immoral. In the 1994 debates in the Security Council over whether to intervene in the genocide in Rwanda, it was only when the minutes later came to light through a leak that it was recognized that Britain and the United States had led the dreadful attempt to pretend that what was happening was not genocide.

The Security Council, because it is charged with keeping world peace and decides when to intervene, should be as public as debates in Parliament or in Congress. The fact that they always seem to go into secret session to discuss questions of intervention is simply unacceptable. The people of the world should see, and hear, and comment on the debates that are crucial to the civility and the peace of the world. So, I think the first step in reform and in reaching rational decisions on these terribly hard questions about whether to intervene or not is to have the debates held in the open.