There are reports that both Britain and France are toying with the possibility of a peace plan in Libya
On Monday, the British Foreign Secretary, William Hague (don’t confuse him with The Hague ) said a political settlement was being considered by which Gaddafi would relinquish power but remain in Libya
‘What happens to Gaddafi is ultimately a question for the Libyans’, Hague said. ‘It is for the Libyan people to determine their own future. Whatever happens, Gaddafi must leave power.’Hague was apparently building upon a statement from Mustafa Abdul Jalil, president of the rebel national transitional council, who said that Gaddafi could remain in Libya
But Florence Olara, who is spokesperson for the Prosecutor of the International Criminal Court, said: ‘Any negotiation or deal has to respect (UN Security Council resolution) 1970 and the ICC's decision’.
And so we return to the peace and justice conundrum that has troubled the International Criminal Court since it began prosecutions in 2005. Indeed, it is an issue that all international tribunals dealing with crimes committed in ongoing conflicts have had to confront. To what extent can justice be sacrificed to peace?
Impunity for Gaddafi in exchange for peace and democracy in Libya Libya
Gaddafi may look to the example of Charles Taylor, who was also promised a ‘get out of jail free’ card in exchange for leaving power. The peace deal that ended the conflict in Liberia included a promise that Taylor could live in exile in Nigeria
The questions raised by this problem were hotly debated in 2006-2007 after the arrest warrants were issued against leaders of the Lord’s Resistance Army in Uganda Uganda Sudan
What is so significant about the latest development in Libya is that it indicates that two of the strongest supporters of the Court – Britain
There are extreme views on both sides of this debate. Among supporters of the International Criminal Court, the prevailing opinion is that expressed by the Office of the Prosecutor. The theory behind this is developed in the Prosecutor’s paper on ‘interests of justice’ where he says that the decision to temper justice so as to promote peace should be made outside the Court, at the Security Council.
There is a difficulty with this ‘division of labour’ approach to the peace and justice problem. Much of the enthusiasm for the International Criminal Court has been driven by the desire of states to create an institution that is not subservient to the Security Council. Article 16, which is the provision by which the Court acknowledges the authority of the Council to block prosecution, was an ugly compromise. Most states – and certainly almost all states from the Global South – would have been delighted to eliminate article 16 altogether.
But in his ‘interests of justice’ paper, the Prosecutor said that the way to deal with peace is through article 16 of the Rome Statute. I believe that this philosophy does not sit well with many states, and that it helps explain the unhappiness with the Court that we have seen in Africa in recent years.
Can what the British and French (and the rebel leaders) propose be done lawfully? Libya Libya Libya
5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;
The reference to ‘States not party to the Rome Statute’ means the US , China , Russia and so on, but not Libya
Of course, the Security Council could revoke the resolution, of course. That would be a terrible blow for the Court, however. This is the dilemma created by the Prosecutor’s approach to the peace/justice relationship. Assigning the ‘peace’ component to the Security Council has the consequence of subordinating the Court to the Council, and this is not in the best interests of the institution. It would be better if the Court could offer a comprehensive, holistic approach to peace and justice. The Prosecutor should use the powers granted by article 53 of the Rome Statute to agree to withdraw from a situation when this is in the interests of peace. He has no need of the Security Council. In the long run, this will protect and promote the Court, and ensure that the broad support it has enjoyed throughout the world will continue.
2 comments:
I lived my first 20 years under the communist dictatorship in Romania, and personally I would not make such deals. Such deals only encourage people to become dictators. They know that the dictator occupation is a risk free job. You reign according to your caprice, enjoy torturing and killing, plunder the country and then you enjoy your retirement with tens of billions in your Swiss accounts, then your children will have a bright future. If Gadhafi gets a deal, the leaders of the new revolutionary movement have no real incentive to become democratic. They might just become a new dictatorship, since they know they will get a deal as well in the end. On the other hand, if they try him, their act puts some obligation on their shoulders to govern differently. And if someone else tries him, they the new Libyan governments is warned.
I share the views of Mihai and add the questions: do we want promotion for the ICC for any price? Is it the task of a judicial body to weigh political circumstances? Do we want to have an image of the Court for the future that it is an impartial judicial authority or only an additional stakeholder in ongoing/post-conflict scenarios whom others can sit to the negotiating table with and make a good deal if needed? Wouldn't it undermine the integrity of the Court on the long run?
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