ICC and its ominous implications for Israel

Libya turns the corner on international law
By SETH J. FRANTZMAN, JPOST

Human Rights organizations didn’t care too much about Saif al-Islam Gaddafi’s abuses until he was arrested.

Judging from recent comments by “human rights” organizations and international legal experts, one might assume that Saif al-Islam, the son of the notorious and recently deceased Libyan dictator Muammar Gaddafi, is the real victim in Libya.

While the International Criminal Court has indicted al-Islam, interim Libyan Prime Minister Abdurrahim el-Keib has said that he will not be turned over to the Hague and that “Saif al-Islam will receive a fair trial under fair legal processes which our own people have been deprived of for the last 40 years.”

Libya, despite its chaotic problems, is creating an important precedent for other nations to re-assert their authority against this dangerous court, which has no checks on its power.

Writing on the Counterpunch website, Franklin Lamb offers an insightful, if worrisome, view of the International Criminal Court.

“It is the ICC judges, and not the ICC prosecutor, who will decide whether a case will be held in The Hague or [in] the country where the alleged crimes occurred…

.. once the ICC decides to open an investigation of a case, national courts may not investigate that case and are relieved from their obligation to do so. In addition, since the ICC has issued an arrest warrant against Libyan defendants, all states – including Libya – are obliged to cooperate fully with the Court.”

It has been reported that Human Rights Watch “has called for al-Islam to be promptly turned over to the International Criminal Court, having expressed its concern about the killings of his father and brother when they were captured last month.”

And in a more detailed statement in late November, Amnesty International declared that al-Islam “must” be handed over to the Europeans.

“If reports are correct that Saif al-Islam al- Gaddafi has been captured by the Libyan authorities, he must be handed over to the ICC, and his safety and rights must be guaranteed,” said Hassiba Hadj Sahraoui, Amnesty International’s Middle East and North Africa deputy director.

“After what happened after the capture of Muammar and Mutassim al-Gaddafi, we hold the National Transition Council responsible for preventing similar harm coming to Saif al-Islam al-Gaddafi, so that he can face justice for his alleged crimes in a fair trial with no death penalty… justice that may have been denied with the apparently unlawful killing of Muammar al- Gaddafi,” said the Amnesty statement.

WHEN ONE considers these outrageous statements they might be forgiven for thinking that what happened in Libya was not the overthrow of a brutal dictator and his having died much as he lived, by the sword, but rather the oppression of the Gaddafi family.

This points to a fundamental problem with human rights organizations. One can assume it is only a matter of time before we start hearing about “fears for the safety” of Bashar Assad in Syria.

Even more frustrating than the colonization of post-conflict situations by human rights organizations, who suddenly discover abuses after having ignored them for years, is the secondary colonization of the post-conflict period by “international law.”

Once upon a time, international law was considered binding between states and arbitrated with the theory that the states voluntarily submit to such arbitration. But in recent times it has grown so that it gives itself supra-national authority.

Consider the logic: The ICC is an international organization, upon which there is no oversight, that adjudicates for itself the power to investigate cases wherever it wants and rules that independent countries must then stop their investigation of a specific case and are “obliged” to cooperate with a court over which they have no say.

This is part of the larger European legal fad towards “universal jurisdiction” whereby European courts have assigned themselves the jurisdiction to prosecute crimes committed outside of Europe. Cynics might say that Europe, having lost its colonies around the world following World War II, wants to retain certain colonial- like institutions with which it can place on trial anyone in the world.

One need not get into an argument about neo-colonialism or bash “western imperialism” to realize that a state, no matter how chaotic, should always reserve to itself the power to prosecute its own citizens for crimes committed on its own territory.

Countries that respect their sovereign jurisdiction, such as the United States, China, India, Israel and Turkey have not signed or have withdrawn their signature to the Rome Statute of the International Criminal Court. Thus, they are not bound by the ICC.

It might be understandable for some countries with no real, functioning central governments, like Somalia, to submit to the jurisdiction of the ICC if they feel they cannot prosecute vicious war criminals.

But ironically, it is the countries that do have functioning governments that have given up their rights.

Many African states have eaten from the poisoned tree of universal jurisdiction and supra-national law, including Kenya, which made the mistake of referring a list of suspects to the ICC following post-election violence in 2007-2008. In 2009 the ICC opened an investigation into at least six men accused of coordinating the violence.

Other countries who have allowed the ICC to meddle in their affairs include Rwanda, Sierra Leone and Ivory Coast, with former President Laurent Gbagbo of Ivory Coast being flown to the Hague in late November 2011. It is as irrational for a Dutch court to prosecute wayward African warlords as it would be for a court based in Beijing to award itself the power to do so.

These nations have no one to blame but themselves for waiving their rights, but Libya, at least for now, is standing strong and demanding that Saif al-Islam, a notorious playboy, plagiarist and human rights abuser, be tried, and probably executed, on his own soil.

The writer received his PhD from the Hebrew University of Jerusalem and is a fellow at the Jerusalem Institute of Market Studies.