Gaddafi indicted by the International Court of public opinion

It doesn't help that the ICC's Chief Prosecutor always looks so smug. (photo courtesy

The International Criminal Court, like so many other international institutions, suffers from its own lofty ambition. The dream of an international tribunal which upholds basic decency in the world, where tyrants are brought to book and mass murderers are served justice, is a beautiful one. Unfortunately, the ICC does not – can not – live up to this dream, and as the years go by it’s finding itself dragged further and further into the ugly world of modern international politics.

Take this week’s issuing of an indictment for war crimes against one Muammar Gaddafi. On the surface, this makes sense; he’s a monster who’s hunger for power is slaughtering thousands of his own people. He’s exactly the sort of person who the ICC should be indicting.

But dig a little deeper, and it all starts looking a little murkier. For a start, there’s the practical consequences; the ICC’s decision was criticised by a number of people involved in the negotiations with Gaddafi, who said it would shut down communication routes and prevent the possibility of a peaceful solution to the problem. This echoes the reaction of much of the NGO and academic community after the ICC indicted Sudan’s president Omar al Bashir, particularly the ones with hands-on experience in Sudan. They said that the indictment would have little impact except to anger the government and prevent any moderation of policy; sure enough, the morning after the indictment all the international NGOs in Khartoum were ordered out of the country, a move that had a real impact on many lives.

But perhaps you believe that justice should be served no matter what the consequences; it’s a valid viewpoint. Still, the ICC falls short. For in this case, you must believe that justice should be served to all, regardless of race or location or political expediency. And here, the ICC is hamstrung by its indictment processes, which allow an investigation to occur only when a matter is referred to the ICC by a country, the UN Security Council, or when the prosecutor gets special information from another source. In practice, this means that countries can refer people for investigation, or the UN Security Council gets to do it, as they did with Libya. This means essentially that figures linked to sitting governments can only be referred if there is an overwhelming international consensus about the issue. It’s no surprise that it’s taken so long to refer Gaddafi; after all, Russia only gave its tentative support to the rebels two weeks ago, and until it did so there was no chance of a referral being passed. This is why other high-profile figures are not brought to book, or even investigated – Henry Kissinger being one example, for his role in the bombing of Cambodia, and Ariel Sharon another, for his role in the Sabra and Shatila massacres.

In fact, the only people that have ever been indicted by the ICC are African – and black. This is because no single African country exerts any significant pressure on the international stage, meaning that there is often an international consensus to prosecute an African figure. This is not to say they should not be indicted, that there is not good reason for them to be brought before the court – there certainly is. But the fact that it is only Africans seriously undermines the message the court is trying to send – that the court is for everyone, no matter what your race or nationality. It also opens the court up to accusations – which are being made, to the extent that the ICC’s deputy prosecutor had to deny them – that the court’s targets are not legitimate.

We don’t live in a perfect world, with perfect justice. The ICC is an admirable attempt to plug that gap, and should receive significantly more funding and international support to do so. But unless it cleans up its processes, and stops launching investigations only when they are politically expedient, it risks fatally flawing itself before its done any of the good work it should be doing.

VERDICT: The ICC goes 4th; it can keep targeting Africans, as long as it targets the bad guys in the rest of the world too.


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