The re-appearance of Saif al-Islam after reports that he has been arrested was shameful to Libya’s National Transitional Council.
It also raised important questions about the role of the International Criminal Court (ICC) in war fighting or more precisely regime change.
Luis Moreno Ocampo, the ICC Prosecutor was one of the first if not the most ‘credible’ international figures to confirm the arrest of Saif al-Islam. Speaking to Reuters, Mr. Moreno Ocampo stated that, Saif was captured in Libya…we have confidential information from different sources that we have within Libya confirming this”.
This latest widespread misinformation publicized by the ICC Prosecutor provides a basis for reflection about the increasing prominence of the ICC in Africa’s conflict and specifically in regime change.
It seems that the ICC has become perversely involved in the realm of deep political action, which may undermine and eventually erode the moral necessity of its establishment.
There is certainly a strong moral case for the end of Muammar Ghaddafi’s 42-year arsonist rule or indeed any dictatorship.
It is becoming clearer however that the means adopted by Western states (notably France, Britain and the US) for ending Ghaddafi’s grip on power mask underlying interests of these intervening states. Concerns have been raised especially from African governments that there is clearly an abuse of the legitimate UN mandate of NATO to protect civilians in Libya.
The NATO implementation of no-fly zone revealed that the aspiration of NATO and its western allies was intended for the toppling of Ghaddafi’s regime.
The presence of British military advisers in Benghazi and the arming of opposing rebels by the western governments revealed their motives in Libya.
On 28 June 2011, amidst the controversy and outrage of the disproportionate military intervention in Libya, the ICC indicted Col. Gaddafi, two of his sons (Saif al-Islam and Mohammed) and one of his Chiefs of Intelligence.
This pattern of ICC intervention in Libya has rekindled debate on the adverse role of the ICC in Africa’s crises.
First, it has challenged the impartial nature of the ICC as an institution for promoting and seeking justice and devoid of judicial activism. By indicting Ghaddafi and some of his associates, the ICC effectively joined Western states in taken sides with main opposition group in the Libyan crisis.
It is incontrovertible that such ICC’s action could undermine both the protection of war-affected civilians and the prospect of seeking a political solution in an active conflict.
In Sudan for example, the ICC indictment of Sudan President Hasan al-Bashir reinforced the security and humanitarian crisis in Darfur. In the case of Libya, it is even more disturbing to observe that ICC’s indictment of Ghaddafi and his associates was (in)advertently announced just two days before the commencement of an AU Summit of African Heads of State and Government in Malabo, Equatorial Guinea.
That summit was crucial in the continuation of a dialogue on how to find a political solution to the Libyan crisis. The ICC indictment was therefore heavily criticised especially by President Jacob Zuma of South Africa because it was perceived as jeopardising AU’s political involvement in Libya.
Second, it appears that the ICC is unable to establish and assert itself as an independent international criminal justice system. Perhaps this is because it continues to be perceived as strongly wielded to the dictates of power of the UNSC permanent members (especially Britain, France and the US).
The cases of Darfur and Libya have been specifically referred by the UNSC to the ICC.
Of course, this procedure is in conformity with the Rome Statute. However, in both instances and even more visible in the case of Libya, the ICC has been directly involved in pursuing Western aspirations for possible regime change.
The UNSC referrals of Darfur and Libya to the ICC have been followed by the indictment of rulers for war crimes.
Indeed, this may simply be a mere coincidence but it strongly conveys a resounding message that the ICC may be an agent of the dominance and pursuit of Western interests in Africa.
This is especially compelling because of the reality that most ICC interventions have been largely based in Africa’s crises.
The idea behind the creation of the ICC as a global justice system against mass atrocities is ambitious but a significant moral force. It is however clear that the ICC is still in search of an impartial identity in the actualisation of this vision.
There are two main unresolved issues confronting the ICC. First, the phase of intervention must be revisited. That is, does the ICC what to operate within zones of active conflict and/or in a post-conflict environment?
The second question is whether the ICC can afford to operate without the consent of a state (like in the Libyan crisis) or uphold a rigid approach of intervention with the consent of the legitimate authority of the state? Addressing these questions require hard choices but they must be tackled in order to avert the diminished credibility of the ICC as a potential tour-de-force for preventing and ending global mass atrocities.
By Jide Martins Okeke.
Jide Martyns Okeke holds a PhD in International Security from Leeds University, UK. He is a Security and Intelligence Analyst at the African Union/IPSS, Addis Ababa, Ethiopia.