Libya: Has the ICC cast the die for Gaddafi? – Asks Dr Michael J.K. Bokor

ICC Prosecutor Luis Moreno-Ocampo at the 16 May 2011 Press Conference regarding the situation in Libya/Photo: ICC-CPI
At long last, the International Criminal Court (ICC) has waded into the Libyan crisis with a decision that will close the noose around the Libyan leader’s neck. The ICC seems to have cast the die for him in its collaboration with NATO. They have now steadily pushed him to the banks of the Rubicon and will certainly force him to cross over to his doom. It is no more a question of how they will get rid of Gaddafi but rather, a question of when. We already know why the West is in Libya.

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Any lingering doubt about the outcome of the West’s actions in Libya should be clear by now. There is no reason to believe that the West will give him any breathing space. The latest confirmation of the West’s pursuit of its stated objective has come from the ICC whose chief prosecutor (Luis Moreno-Ocampo) is seeking the arrest of Gaddafi and two others (his son, Saif al-Islam, and intelligence chief and his brother-in-law, Abdullah al-Sanussi) for “crimes against humanity.” This charge is too serious to neglect because it is designed to add a whole new complexion to the crisis in Libya.

This indictment doesn’t, however, take immediate effect nor do we know whether it will be put on hold. ICC judges must still decide whether or not to issue warrants for their arrest. But we can’t fail to realize that it will definitely be carried through. Even before the chief prosecutor began or concluded his investigation, indications were clear that the West would use the ICC to give a legal backing to anything it does against Gaddafi. Just like the rubber-stamping that the UN Security (Council) did to legitimize its military actions, the ICC is set to give the legal backing for the elimination of Gaddafi and all those perceived as instrumental in attempting to quell the insurgency by the Benghazi rebels. This indictment by the ICC’s chief prosecutor is just a fait accompli.

In his report, Moreno-Ocampo said Gaddafi and those two others bore the greatest responsibility for “widespread and systematic attacks” on civilians, according to the BBC. He outlined reasons for indicting them, saying that after reviewing more than 1,200 documents and 50 interviews with key insiders and witnesses, his office had evidence showing that Col Gaddafi had “personally ordered attacks on unarmed Libyan civilians.” He justified the indictment of Saif and Sanussi too.

The prosecutor insisted that he was “almost ready” for a trial, based on the testimony, particularly of those who had escaped from Libya. We are not told whether the ICC’s chief prosecutor gathered evidence from those not opposed to Gaddafi, which leaves his conclusion and indictment open to question. If the evidence he gathered came solely from opponents of Gaddafi, it will definitely be discounted as biased and a mere reflection of what the ICC had already premeditated even before commencing its investigation. That indictment, then, will be nothing but a ploy to assist the West’s agenda against Gaddafi. On that score, the outcome of the investigation is not surprising.

In justifying his decision, Moreno-Ocampo said the three men were suspected of committing crimes against humanity in two categories—murder and persecution—under the Rome Statute, which established the ICC. The charges cover the days following the start of anti-government protests on February 15, 2011, in which between 500 and 700 people are believed to have been killed in that month alone.

In another development, ICC prosecutors are also studying evidence about the alleged commission of war crimes once the situation developed into an armed conflict. This includes allegations of rape and attacks against sub-Saharan Africans wrongly perceived to be mercenaries. It is not clear whether this aspect deals with the Benghazi rebels or the Gaddafi group that the ICC’s chief prosecutor has indicted. The atrocities against sub-Saharan Africans wrongly perceived as mercenaries were committed by the rebel forces, at least, from the reports that emerged. So, is there a likelihood that some elements of the rebel forces too will be taken to task? We wait to see.

An inquiry set up by the UN Human Rights Council is expected to submit its report on the alleged war crimes to the UN Security Council on 7 June. Justifying his decision, Moreno-Ocampo said he was acting in accordance with UN Security Council resolution 1970, which referred the situation in Libya to the ICC. The Pre-Trial Chamber’s judges may decide to accept the prosecutor’s application, reject it, or ask him for more information.

This recourse to the Pre-Trial Chamber is bootless because it is part of the grand scheme to nail down Gaddafi and those indicted with him. No one should expect anything apart from an endorsement of the chief prosecutor’s indictment.

If a warrant for Gaddafi is issued, it will be the second time that the ICC has sought a warrant for a sitting head of state. Sudanese President Omar al-Bashir has been indicted for genocide in Darfur but is still living his life as a free man, visiting friendly countries, and spurning the ICC’s arrest warrant.

Considering the forces that have been massed up against Gaddafi, though, we shouldn’t expect him to enjoy the kind of “freedom” that Al-Bashir has. Both leaders are in different classes of their own. For obvious reasons, the West hates Gaddafi more than it does Al-Bashir and will do everything to nail him down. Only two avenues exist for them to end it all for Gaddafi—either to kill him or arrest him for trial at the ICC if they can reach him.

I lean more toward the first option (assassinating him) because of my hunch that it will be difficult for the West to get close to him to arrest. Gaddafi’s end may not be different from that of Osama bin-Laden. If he is, however, arrested, the West will have a dilemma to tackle: will they release him to his own Libyan judicial system to deal with (as is being demanded by the Benghazi-based Transitional national Council) or rush him out to the Hague for the ICC to try?

I am tempted to surmise that he may be handed over to the Benghazi-based rebels to deal with in accordance with Libyan laws, which means that a Saddam Hussein type of justice awaits him. We need to know, however, that in the case of Saddam Hussein, the ICC wasn’t involved, which pours some cold water on any action that might lead to Gaddafi’s being tried at home. If captured alive, he will be sent to the Hague to face a fate similar to that of the late Serbian leader Slobodan Milosevic, Liberia’s former President Charles Taylor, and Kenya’s top politicians being prosecuted on similar charges. In any case, he will not come out of that scenario the same.

Doubtless, this indictment has already been supported by the anti-Gaddafi elements. Libya’s opposition
National Transitional Council praised the ICC move; but its vice-president, Abdel Hafez Ghoga, said: “We would like him [Col Gaddafi] to be tried in Libya first before being put on trial in an international court,” according to the BBC.

It is not as if the Libyan government didn’t expect this outcome. It did, as we can tell from the response of its spokesman, Deputy Foreign Minister Khalid Kaim, who said the court was a “baby of the European Union designed for African politicians and leaders” and its practices were “questionable.” Undoubtedly, Libya did not recognize its jurisdiction. The Libyan government has already said it will ignore the announcement.

The ICC has been accused in certain circles of being unfair in its operations, especially for overlooking cases of the sort that it is quick to investigate African leaders on. Some criticisms indicate that the ICCC should have taken action against the former US President George Bush and his inner circle concerning the war in Iraq, where more civilians were killed than what Milosevic, Al-Bashir, Charles Taylor, Gaddafi, and the Kenyan politicians are accused of. Others think that the happenings in Syria should also have been taken up by the UN Security Council and the ICC but they are not doing so because they are bent on prosecuting a skewed against African leaders and others elsewhere who are not in the good books of the West.

This indictment is the final blessing that NATO needs to heighten its bombardment of Libya, which has only one aim—to either kill Gaddafi or snatch him for prosecution by the ICC if they can get close to him. In either case, Gaddafi will have no chance to retain his hold on power. Whether he is captured or killed in action, Gaddafi stands to lose. But his loss is also a loss for the Libyan system, especially if his supporters resort to acts that will further destabilize the country.

We are, however, certain that the military bombardment against areas still under Gaddafi’s control will intensify. That’s the only way NATO can weaken Gaddafi’s hold on power and clear the path for the Benghazi rebels to take their onslaught away from their strongholds in the east to new grounds in the west, where there is no fighting to warrant NATO’s presence on humanitarian grounds. The stage is now set for NATO to be the prime-mover to stir up trouble in those areas still under Gaddafi’s control. By provoking this anti-Gaddafi insurgency in those areas, NATO will have a pretext to push the Benghazi rebels on with the objective of wresting power from Gaddafi. By that means, the “Gaddafi must go” refrain will be close to actualization.

The military option being pursued by the West has succeeded in disengaging Gaddafi’s control over cities in the east while helping his opponents to regain the western city of Misrata. The rebels also said they had defeated two brigades of troops loyal to Gaddafi in the city of Zintan, south-east of Tripoli, over the weekend. New frontiers are being opened to help the rebels advance toward pro-Gaddafi territories.
Latest reports indicate that NATO aircraft had bombed an oil terminal in the eastern port of Ras Lanuf. Even when there is no fighting going on to warrant any further devastation, NATO continues to pound Tripoli because it will not cease action until it achieves its objective for being in Libya.

Now that the ICC has put the final nail in Gaddafi’s political coffin, this military option will be reinforced in the final push not to only dislodge Gaddafi from power but also to bring him to the kind of justice that the West thinks he deserves. We wait to see how the events will unfold henceforth.

With the current developments, though, one thing is certain. Gaddafi will not go down easily. Already determined to die a martyr, his resolve will be strengthened by the ICC chief prosecutor’s indictment and he will dig in to resist the West and their rebel allies until his end comes. This resistance will be sustained through the use of force and other desperate measures that will have enormous repercussions unless he is dealt with expeditiously. If he flees Libya, we will see how the arrest warrant will be enforced.

The problem that awaits Libya in a post-Gaddafi period are as frightening as what we’ve seen since the insurgency began. There is a clear indication that a government to be formed by the rebels will not be supported by the pro-Gaddafi forces; they will do all in their power to cause trouble, which means that Libya will not know peace for a long time to come. The country stands to suffer enormously from the effects of this insurgency, and that’s why any step to resolve this crisis must not exclude less volatile ones such as political and diplomatic means.

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