An arrest in Libya, a change of guard at the top, and a big decision on Kenya will mark imminent moments of truth for the International Criminal Court
ON NOVEMBER 22nd Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court (ICC), flew into Tripoli in perhaps the last high-wire act of his career. He and his deputy, Fatou Bensouda, a Gambian lawyer, began haggling over the fate of two men who are wanted in more than one place: Saif al-Islam, son of the late Libyan dictator Muammar Qaddafi, who has just been arrested while trying to flee to Niger (above), and Abdullah al-Senoussi, a former Libyan spymaster.
On the Libyan street there is a palpable desire to see the two men hanged. The new Libyan authorities are insisting that they are capable of staging fair trials. Mr Moreno-Ocampo had at first argued that the prior claim belonged to the ICC, which issued arrest warrants for the two Qaddafis and Mr Senoussi at the behest of the United Nations Security Council in June. But on November 23rd—though doubting whether Mr Senoussi really had been arrested—he accepted that Libyan courts could give the younger Qaddafi a decent hearing. He added that the ICC, in its capacity as a court of last resort, would help if needed.
From the suspects’ viewpoint, a deliberate inquiry by the ICC in The Hague, with a chance to defend themselves and no death penalty on the statue book, would be preferable to a trial in the vengeful atmosphere at home. But an ICC trial would have limitations. The charges drawn up by Mr Moreno-Ocampo pertain only to misdeeds committed since February this year, when civil war escalated and the UN called in the court as one of many instruments designed to thwart the Qaddafi regime. The UN could in theory authorise a broader probe, but the court can never look into anything that happened before its doors opened in 2002. So a trial in The Hague could not investigate the downing in 1988 of an American passenger plane over Scotland, or the killing of 1,200 inmates in a Libyan jail in 1996.
Some institutional interests are at stake. A Libyan case would have thrust the court at last into the limelight, confirming its role as the place where victims of the worst misdeeds—crimes which might otherwise go unpunished—can seek restitution. Set against the Utopian predictions made in 1998, when the Rome statute providing for the court was signed, the record so far has been rather disappointing. The court was destined, said one campaigner for its creation, to “save millions of humans from suffering unspeakably horrible and inhumane death.” Of course, its very existence may have made some would-be dealers of death hold back; but such extravagant claims are hard to sustain.
The most ambitious thing the ICC has done is to indict Omar Hassan al-Bashir, the president of Sudan, on a charge-sheet that includes genocide in the Darfur region. But he remains firmly in office and seems free to travel to a good number of countries. The indictment has not triggered the bloodbath some feared, but it has not done much good either—leaving untouched, for example, the military and intelligence apparatus of the Sudanese state.
The court faces a turning point next month, when member states confer in New York. A new prosecutor will be chosen from four candidates, including Ms Bensouda. Six of the 18 judges will also be replaced, in a ballot preceded by an unseemly round of bargaining and canvassing. Arcane rules govern the choice of judges: the sexes must be balanced, and each of the world’s main regions must be equally represented. But candidates need not have been judges at home; one Japanese member of the court has been a law professor and diplomat. Of the 19 runners in next month’s ballot, four seem unqualified, says one team of legal pundits; but they may still be voted in thanks to diplomatic back-scratching. The field at least looks better than it did in September, when the deadline had to be extended for want of suitable names.
Whatever happens, the court may be less of a cosy club than it has been hitherto, insiders say. A handful of individuals were closely involved in the talks to set it up, and many of them took senior jobs. Next month’s choices will help to determine whether the institution develops a robust life of its own, or simply becomes one more wagon in the UN gravy train.
Many hope the court will broaden its geographical ambit, although any such move will face huge political obstacles. No member of the UN Security Council has ever been in the court’s sights; indeed only two permanent council members, Britain and France, belong to it. All five countries where villains are expected to go to The Hague (see table) are in Africa. This year the court has also become involved in Côte d’Ivoire and Libya. In three cases, the countries themselves called in the court; but this narrow focus has made many African governments suspicious of a body which has many member states—119 and rising—but big absentees, from America to India to most Middle Eastern countries.
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