March 2, 2011
An important legal milestone has been crossed, almost as difficult as crossing the Rubicon or the Red Sea. On Saturday in the Security Council the US voted unanimously in favour of a French and British resolution to forward an indictment of Muammar Gaddafi to the International Criminal Court otherwise known as the Court for War Crimes and Crimes Against Humanity.
This was the first time the US had done this. However, during the tenure as president of George W. Bush it did abstain on the vote to do the same with Sudan’s president, Omar al-Bashir. Early in his tenure Bush had bitterly opposed US membership of the War Crimes Court, withdrawing America’s signature from the treaty founding the Court and conducting a savage arms twisting with many signed up members. Later it saw the value of the Court and quietly helped push for indictments.
Under the presidency of Barack Obama the US has come out of the closet. Surely it must be only a matter of time before the US signs up again and fights to get membership ratified in the Senate. Now is the time to strike with American public opinion.
In both votes against Gaddafi Russia and China also voted for indictments even though they too have refused to sign up. If the US goes ahead with ratification there is a good chance they will follow suit.
Despite criticism of the Court from some quarters arguing that it is not light footed or fast enough the Court’s progress is gathering apace, following the success of the Yugoslav, Rwandan and Sierra Leone War Crimes Courts.
Many African nations, conscious that all of the first round of indictments of the Court have been in Africa, despite their early and crucial support for the creation of the Court, have argued for a suspension of its indictment of Omar al-Bashir on the grounds that peace is now arriving in the Sudan and the referendum giving the South independence has been respected.
One can argue that even the threat of the Court’s Sword of Damocles has not stayed the hand of Gaddafi and his like. So far that is correct. It will take sometime more before it seeps into the consciousness of people like him that he may end up on trial and then serve a very long sentence. Meanwhile, war criminals or those, as in Kenya, who have been charged with committing crimes against humanity, do not go into retirement in a welcoming country. They are indicted and if captured and tried are incarcerated and most of the world feels that some sort of punishment has been fairly dealt out. Surprisingly, it has not been too difficult to capture a majority of those indicted- the legal arm of the Court is a long one. War criminals “can run but they can’t hide”, to quote Jo Louis, the former world heavyweight boxing champion.
Before the war in Yugoslavia no one talked much about the creation of a War Crimes Court. I wrote a prominently displayed column in the Los Angeles Times calling for a modern day Nuremberg Court which had been promised at the time by the victorious World War 2 allies. I received only one letter- from a law professor at the University of California, saying he had been arguing for this for a long time. But the no-holds barred viciousness of the war turned opinion round and only a year later the Yugoslavia court was quickly established.
The International Criminal Court was created during one hot summer in Rome in 1993. Every nation in the world was represented, including the US which proposed a good many of its statutes.
Amnesty International’s legal experts have been puzzled by the strength of US opposition during the Bush Administration, as the treaty gives countries whose citizens are charged with crimes the right to try them in their own courts, as the US has done frequently in the past when US soldiers were involved in criminal activities overseas. The Court, in fact, can only prosecute when governments are acting to shield individuals from their national courts.
The US- and its Western allies – have a lot to learn. The pursuit of Osama bin Laden would have been better carried out by an indictment of the Court. Special detectives- and even Special Forces – should have concentrated on finding out where he is lurking and snatched him. The bombing of a whole country and now the war when only a few dozen people were involved in harbouring him has been totally counterproductive. Adolph Eichmann, the man in charge of Germany’s gas chambers, was found that way after a world-wide search.
America is learning that lesson the painful way. The sooner the US signs up for membership for the Court the better off the world will be.
