The death of Gaddafi, international criminal justice and the ‘invisible college of international lawyers’

The ICC is an institution of great promise.  International lawyers like to boast, as they should, that the introduction of the International Criminal Court – a feat that only a few decades ago no-one thought would be possible – attests to the progressive institutionalisation and humanisation of international law.  However, not much has happened since the ICC was established in 2002 and, despite its best efforts, the Court has been under increasing pressure to deliver on its promise.  Amidst a period of strained relations with African states and the controversy surrounding the indictment of President Al-Bashir, the prosecution of a head of state such as Gaddafi would have given the Court a much-needed boost.

In his 42 years in power, Gaddafi allegedly committed numerous crimes against humanity and—more recently, in the context of the armed conflict— war crimes.  His megalomaniac personality and appalling sense of self-entitlement would have made his trial a warning to other heads of states presenting similar tendencies.  Thus, it is not surprising that international lawyers are now left with the feeling that a great opportunity has been missed.

At the end of the day, Gaddafi’s death adds to what may be seen as a disappointing record for the international criminal justice: its failure to make heads of state accountable for the atrocities committed under their regimes.  Hitler’s suicide and consequent evasion of the Nuremberg trials, Milosevic’s death of natural causes under the custody of the International Criminal Tribunal for the former Yugoslavia, and the present difficulties in obtaining custody over President Al-Bashir are some of the most prominent examples of this record.  The trial of Saddan Hussein, due to the polemics surrounding the Iraq War and the criticism directed at the procedures of the Iraqi Special Tribunal, did not really advance the cause of international justice.  One can only hope that the trials of the likes of Charles Taylor, Radovan Karadzic and Radko Mladic will offer a more satisfactory outcome.

Be that as it may, we should ask ourselves whether what international lawyers may perceive to be an unfortunate loss is really so important.  When our concern is Libya and the Libyans, how much is really lost with the absence of a trial of Gaddafi?  Even if a fair trial by a court of law is preferable to a killing under suspicious circumstances, Gaddafi’s death may be sufficient to provide what the Libyan mostly need at the moment: closure.  With him gone, the Libyan people will be able to focus on what matters the most – the reconstruction of a political community that fell victim to a horrendous regime, and the establishment of institutions that can lead to a brighter future.

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