Magazine | December 19, 2011, Issue

Justice for Libya

It requires blocking the world court’s overreach

Libya’s interim government made a correct, startlingly independent judgment just before Thanksgiving, announcing that Libya, not the International Criminal Court (ICC), would try Saif al-Islam Qaddafi, Moammar Qaddafi’s favorite son and once-likely successor. By rebuffing the aggressive efforts of the ICC’s prosecutor, Luis Moreno-Ocampo, to keep control of the case, the National Transitional Council (NTC) surprised many in the international “human rights” community, including the ICC itself.

While an arcane jurisdictional battle over trying and punishing Saif Qaddafi may not be headline material, this mini-drama has significant implications for the United States. Since the ICC’s inception, it has been cautious in asserting its jurisdiction, hoping to deny ammunition to its opponents. This strategy is part of an intense but quiet effort to seduce America (and other key countries still outside, including Russia, China, India, and Israel, as well as Libya) into acceding to the Rome Statute, the ICC’s foundational treaty. Indeed, the relationship of ICC authority to national judicial systems remains a critical, contentious issue even for states that are already members.

When the Rome Statute was finalized in 1998, its advocates blithely contended that America need not fear an assertive, jurisdiction-expanding ICC because the treaty enshrined the principle of “complementarity.” Article 17 provides that a case is generally inadmissible before the ICC if a state has investigated and already made a decision whether to prosecute. But there is a kicker: The ICC may assert jurisdiction if that state “is unwilling or unable genuinely to carry out the investigation or prosecution.” Most important, it is the ICC that makes the key decision, without further review, about whether the particular state is unwilling or unable to proceed.

Moreover, the concept of complementarity, deferring to national judiciaries, is an entirely hypothetical protection for sovereignty. Other global tribunals, such as the International Court of Justice, decide disputes between states, not within them, and no other has prosecutorial powers directly against individuals. Thus, complementarity has been chimerical from the outset — an unproven assertion, designed to entice America into believing it is safe to join the ICC. Libya is a test case on whether the ICC will continue to proceed warily. While the still-inconclusive outcome is not as threatening as it might have been, the ICC’s performance has nonetheless been disturbing, auguring danger ahead for the United States.

Because Libya is not a Rome Statute party, the Security Council had to authorize ICC involvement, which its Resolution 1970 did unanimously on Feb. 26, 2011. Four months later, with hostilities in Libya still intense, the ICC issued arrest warrants for Moammar and Saif Qaddafi, and for Abdullah al-Senussi, the head of Libyan intelligence. All three were charged, under Rome Statute definitions, with crimes against humanity, namely murder and persecution of the Libyan people. (As of now, despite reports that the NTC had captured Senussi, he apparently remains at large.)

The Security Council’s action (with full Obama-administration support) and the ICC decision to issue warrants during the fighting were mistakes demonstrating two major problems with legalistic approaches to international conflicts. First, contrary to ICC proponents’ arguments, there is no evidence that the ICC warrants in any way deterred Qaddafi or his loyalists from continuing to commit atrocities and abuses. Threat of ICC arrest hardly constituted “shock and awe.” Second, the warrants made it harder if not impossible for the Qaddafis to find an exit strategy that wouldn’t leave them vulnerable later to being turned over to the ICC. If anything, therefore, the Council and the Court may have contributed to extending and intensifying the Libyan bloodshed.

#page#Moammar Qaddafi’s post-capture killing on October 20, conspicuously lacking in due process, created another wrinkle. The “human rights” crowd immediately concluded Libya couldn’t be trusted to provide fair trials for Saif and Senussi, doubtless thereby helping convince the ICC it had to retain jurisdiction. Moreover, Libya provides for the death penalty (a no-no for the International High-Minded), which is not available under the Rome Statute.

Saif’s November 19 apprehension brought matters to a head. Moreno-Ocampo immediately departed for Tripoli to pressure Libya to defer to ICC jurisdiction. One possible “compromise” retaining ICC primacy, reported in the press, was to try Saif at The Hague for the crimes alleged in the ICC’s warrant, then return him to Libya for prosecution for all other crimes he was assumed to have committed in the years prior to Resolution 1970.

Nonetheless, the Libyans stood firm. Moreno-Ocampo retreated, but only partially, saying: “If they prosecute the case, we will discuss with them how to inform the judges, and they can do it, but our judges have to be involved.” There is no Rome Statute or Security Council basis whatever for the prosecutor to insert ICC judges into Libya’s judicial process, and how this will play out remains uncertain.

Moreover, slapping Moreno-Ocampo’s wrist, the ICC’s judges did not accept even his partial retreat, issuing a competing press release on November 23. Making the technically correct point that, under the Rome Statute, they, not the prosecutor, decide whether the ICC will defer to Libya, the judges proclaimed: “Therefore, contrary to what has been reported in the media, [the ICC’s pre-trial panel] remains seized of the case and the Libyan obligation to fully cooperate with the Court remains in force.” (The ICC’s propensity to overextend itself is evident even in a relatively small, almost bizarre matter. The ICC took a month to cancel Moammar Qaddafi’s arrest warrant “because,” it said, “of the changed circumstances caused by his death.” In fact, Moreno-Ocampo pressed for DNA evidence to confirm that Qaddafi was dead, rather than accept the continuously recycled visual evidence and the NTC’s statements.)

In short, Libya is far from off the ICC hook. But it remains entirely correct for the NTC to take responsibility for Qaddafi’s depredations, committed as they were in the name of Libya’s people. The NTC could do so in several ways, such as prosecution or creating a “truth and reconciliation” process as in post-apartheid South Africa. Libya’s decision could well be a cornerstone for a legitimate successor regime, encouraging institutions representative of its people. Asserting that Libya can’t be trusted to deal with its past, or lacks the competence to do so, reflects an unacceptably supranational mindset. Political maturity does not arise by taking decisions away from a country and its citizens. Precisely the opposite is true: Maturity grows from citizens’ confronting their own past and resolving it through democratic choice.

The NTC or its successor may fail at this task, or not fully meet international “human rights” standards, but those are Libya’s mistakes to make. Obviously, creating competent, independent courts is a key NTC responsibility, and some worry that trying Saif too speedily will not afford Libya time to do so with adequate due process. But this too is something Libya should measure for itself; it can hardly be in the NTC’s interest to have anything but a fair and transparent trial, lest it simply sow the seeds for renewed civil war by alienating and angering Qaddafi’s clansmen and other supporters.

#page#The West obviously wants the NTC to function as a legitimate government. To rebuff it here and force it to accept ICC jurisdiction would be most unwise, and perhaps impossible given Saif’s notoriety in Libya. Accordingly, the ICC’s hesitancy to press for full control of the case is consistent with its existing wariness of stirring up U.S. opposition. Nonetheless, the prosecutor’s efforts to keep inserting the ICC into Libya’s processes, and the ICC’s own frosty press release about its equities, demonstrate the expansive views that lie just under The Hague’s quiet surface. These still-unresolved cases provide ongoing examples of ICC overreach that Washington must watch carefully.

More seriously, however, it is not simply the risk of ICC jurisdictional creep, or the ICC’s other manifest imperfections, that should disturb us. Instead, it is the Court’s fundamental illegitimacy: the multilateral creation of a potentially enormously powerful instrument of governmental authority without any democratic accountability. Like a roving global version of America’s now-discredited “independent counsel” concept, the ICC prosecutor is responsible to no one except the ICC judges. In the United States, by contrast, the attorney general, as the Supreme Court has put it, is “the hand of the President” in executing the laws. Since the president is elected, he and his subordinates are constitutionally and politically accountable both to citizens and to Congress, and not to the judiciary.

Our system of both separation of powers and democratic accountability exists precisely because our founders feared untrammeled power, a lesson that the ICC, floating out there in the international clouds, simply ignores. ICC proponents say the Court is ultimately subject to the Rome Statute’s member states, now numbering 119. But as anyone familiar with large multilateral bodies knows, oversight by 119 countries is tantamount to no oversight whatever.

It follows that we should reverse the incremental decisions of the Bush and Obama administrations, however minimal they appear, to assist the ICC and thereby provide it some measure of legitimacy. Simply not joining the ICC is insufficient. We should implement a policy I once called the “three noes”: no financial support, directly or indirectly; no collaboration; and no further negotiations to “improve” the treaty.

Much more could be done to weaken the ICC and protect American sovereignty. After the ICC began operating in 2002, for example, we negotiated over 100 agreements under which countries agreed to return U.S. citizens accused by the ICC to our custody rather than surrender them to the prosecutor (with a reciprocal U.S. obligation to do the same for their citizens). Such a strategy, of course, is exactly the opposite of what a second-term President Obama would doubtless pursue, thus providing another reason why the stakes are high next November.

– Mr. Bolton, a former U.S. representative to the United Nations, is a senior fellow at the American Enterprise Institute. He is the author of Surrender Is Not an Option.

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