Peace for All or Justice for One?

Peace for All or Justice for One?/By Mark S. Ellis, executive director of the International Bar Association

THE NEW YORK TIMES, 12/08/11

At a recent press conference in London, Britain’s foreign secretary, William Hague, provided some well-meaning but flawed counsel regarding the fate of Muammar el-Qaddafi: The Libyan president should relinquish power and retire with possible impunity either in Libya or some safe-haven country.

When asked by a journalist if the offer of impunity contravened the International Criminal Court’s indictment for Qaddafi’s arrest, Hague answered, “The British government is very in favor of the powers of the I.C.C. and the requirements of the I.C.C. being complied with. So I think you are trying to take us down a hypothetical route.”

For the international court, there is nothing hypothetical about Qaddafi’s indicted status. A spokeswoman from the office of the court prosecutor, Luis Moreno-Ocampo, observed pointedly that the indictment is a “legal fact,” not an option, with only one possible course of action: “He has to be arrested.”

The public contretemps between London and the I.C.C. is the latest in a series of collisions between the international justice system and state diplomacy.

In 2009, Israel’s foreign minister, Tzipi Livni, was forced to cancel a visit to London for fear of being arrested on war crimes charges for her involvement in the operations in Gaza. What was both remarkable and disturbing about this was that a U.K. magistrate judge issued the arrest warrant. The British government seemed oblivious to the judge’s actions, stating that there had been no application for a warrant and “no record of any such hearing.” In fact, the identity of the person or group requesting the warrant was not made public; it was a “private prosecution.” Based on the principle of universal jurisdiction, an arrest warrant in Britain can be pursued by a private claimant and issued without prior consent by the attorney general.

That same year, the I.C.C. prosecutor, amid sluggish diplomatic progress to end the atrocities in Darfur, intervened with an indictment of President Omar Hassan al-Bashir of Sudan on charges of war crimes and crimes against humanity. This was the first such I.C.C. action taken against a sitting head of state, and many saw the indictment as having scuttled diplomatic efforts to resolve the Darfur crisis.

In January 2011, when the Special Tribunal for Lebanon issued a sealed indictment of suspects in the Rafik Hariri case, it led to the collapse of that country’s coalition government.

Holding political and military leaders accountable for their actions by an international tribunal was, of course, pioneered with the prosecution of Nazi crimes at the end of World War II. Since then, clear legal principles have been embedded in international law, codified in documents and treaties such as the 1948 United Nations Universal Declaration of Human Rights, the 1948 genocide convention, the 1949 Geneva Conventions, and the 1984 torture convention.

These new legal norms were tested in the early 1990s in the ad hoc criminal tribunals for Rwanda and the former Yugoslavia. The system was then tentative and fragile, but proved to be effective, especially in the case of the former Yugoslavia, where the International Tribunal for  the Former Yugoslavia secured the arrest of the Serbian president, Slobodan Milosevic, the Bosnian Serb leader Radovan Karadzic, and most recently the architect of the Srebrenica massacre, Ratko Mladic.

Designed as a permanent institution to prosecute the most egregious international crimes, the I.C.C.’s creation was a remarkable development in international law. Since its inception, the court has generated more than two dozen indictments and sowed no small amount of diplomatic discord.

The fault lines in the I.C.C.’s indictment process against Qaddafi are telling. Although 116 nations have ratified the Rome Statute that established the court, including all of South America, most of Europe and half the nations of Africa, large tracts of political and geographic terrain remain outside I.C.C. jurisdiction, notably Russia, China, India and the United States. Yet each of these countries voted for the U.N. Security Council resolution that referred Libya (also not a signatory) to the court. For any of these countries to seek a safe haven for Qaddafi would seriously undermine the principle of international justice.

For his part, Moreno-Ocampo was certainly aware of efforts to move Qaddafi beyond the international court’s reach. It appears that he tried to thwart the diplomatic dodge by issuing a request for Qaddafi’s indictment in record time. The U.N. Security Council referred the Libya situation to the I.C.C. at the end of February. The indictment was out of the gate in four months, creating a legal fait accompli that turned Qaddafi from a beleaguered head of state into an indicted war criminal. The prosecutor was seeking to send a message that accountability should trump impunity. It’s an assertion with precedent.

When Radovan Karadzic went on trial in March 2010, he claimed that Richard Holbrooke, a former U.S. ambassador to the U.N., had promised immunity in exchange for relinquishing power. Karadzic wanted to know why he was facing criminal prosecution when he should have been protected by a deal.

Charles Taylor, the former president of Liberia, wanted to know the same thing. Unlike Karadzic, whose claims of promised immunity Holbrooke flatly denied, Taylor negotiated an arrangement that provided comfortable exile in Nigeria — until justice intervened and he went on trial in the Hague.

In these instances, the machinery of justice crushed diplomatic immunity, leaving Slobodan Milosevic, Radovan Karadzic, Taylor, and even Bashir open to prosecution. But at what cost?

Diplomats would contend that the promise of immunity has proven to be a powerful tool in resolving political and humanitarian crises. The impunity originally extended to Taylor clearly spared further carnage in Liberia, while the I.C.C. indictment against Bashir exacerbated the human suffering when the Sudanese president in retaliation expelled Western relief organizations.

Unfortunately, contradictions and competing agendas undermine the credibility and effectiveness of prosecutors and diplomats alike.

What good is the deterrent effect of criminal prosecution if a diplomat can hold out the prospect of immunity? What good is a diplomat’s promise of immunity if a court can undo it? How fair or credible is a system of justice that is restricted to a politically determined jurisdiction? If the I.C.C. is to provide uniformity in the exercise of jurisdiction over international crimes then why indict one leader for atrocities while ignoring the excesses of another? And ultimately, how do we weigh the price in suffering between judicial accountability and diplomatic compromise?

Diplomacy is about negotiating interests across borders. Justice is about the application of legal principles within jurisdictions. Diplomacy is based on power relationships and relies on nuance, discretion, perceptions and, most important, negotiation. The best diplomacy is often invisible. In contrast, the best judicial processes are based on facts, principles, rigorous adherence to procedures, and above all, transparency.

Despite these differences and potential incompatibilities, diplomats and judicial authorities need to start looking for points of coordination. As Qaddafi awaits his fate, the time has come for diplomats and jurists to begin exploring common ground for the common good.