|Photo: Getty Images|
By Geoffrey Robertson
The Independent, February 23, 2011
"Colonel Gaddafi is the worst man left in the world. His bloodstained record of terrorism, torture and mass murder deserves punishment many times over and a people liberated from the moronic tenets of his Green Book might, if they get the chance, string him up in revenge. But the days of hanging dictators from lampposts are over. International justice must take the place of righteous lynch mobs. Alternatively, if Colonel Gaddafi crushes the revolt, it must ensure that he is hunted down should he set foot again outside Libya. The Security Council, disgracefully slow in responding to this crisis, has an urgent duty either to establish an international court to try Gaddafi or (more simply) to require the prosecutor of the International Criminal Court to investigate and indict him for the massacre of protesters. The ICC has been cutting its teeth on a few Congo warlords and gnashing them over Sudan's President Omer Hassan al-Bashir (although its indictment might have prompted yesterday's announcement of his early retirement). Its treaty has now been ratified by 114 nations and the irrational hostility of the Bush era has been replaced by cautious support from President Barack Obama. Libya, of course, is not a member of the ICC (and nor are any other Arab countries except Jordan and Djibouti -- a situation which new powers in Egypt, Tunisia and elsewhere will be advised to change). But Colonel Gaddafi can be brought within the court's jurisdiction by a Security Council direction -- as was Mr. al-Bashir when the council referred the situation in Darfur to the ICC prosecutor.
The ICC could not put Colonel Gaddafi on trial for all the international crimes he's committed before 2002, when its jurisdiction commenced, so he would escape retribution for funding and promoting years of terrorism in Europe and Africa, for his assassination campaign against 'stray dogs' (several of his opponents were killed in Britain), for the Lockerbie and French airline bombings, and for arbitrary killings of student dissidents. He can, however, be fixed with command responsibility for the crimes against humanity committed by his troops over the past few days as they have shot and killed innocent civilians in a number of towns and cities. Under Article 7 of the ICC statute, a widespread lethal attack directed against a civilian population amounts to a crime against humanity and the wilful killing of civilians in a civil war amounts additionally to a war crime under Article 8. The Libyan delegation at the UN was wrong to allege it amounts to genocide, since this crime does not apply in the case of armed attacks on political groups. No doubt they did so in an effort to engage the obligation to intervene, which is imposed on the international community by the Genocide Convention. But this is now a duty that exists under international law whenever it becomes necessary to stop or to punish crimes against humanity. This 'responsibility to protect' doctrine has been much touted by the UN, so even if Colonel Gaddafi crushes the revolt and remains head of state, the ICC statute gives him no immunity from prosecution, or from arrest once he has been indicted. [...]"
[n.b. Robertson's rejection of the "genocide" label seems to me a narrowly legalistic one; I don't see that the Libyan delegation was obliged to frame their declaration in those terms, given that genocide against political and social groups is widely accepted beyond the strict confines of the ICC.]