The horrendous killings in Libya, the growing refugee crisis, and Col. Muammar Gadhafi’s speeches from a parallel universe have finally forced the United Nations Security Council to refer Libya to the International Criminal Court (ICC). The UN Human Rights Council in Geneva has suspended Libya as its member. As UN measures go, this is as stern as it can get, short of a call to use “all necessary means”—diplomatic-speak for the use of force.
Also Read | Salil Tripathi’s earlier columns
But the deluded colonel is not losing any sleep. Libya has not signed the Rome Statute which established ICC, and as such, it doesn’t have to cooperate with it or comply with the court’s ruling. Treaties only apply to states that sign and ratify the treaties: Libya hasn’t (nor, for that matter, has India).
The UN has weakened the resolution by saying it won’t pay for ICC’s necessary investigations. Since the appointment of Luis Moreno-Ocampo as the court’s prosecutor in 2003 (and his term expires next year) not one of the trials has been completed, and naturally, there hasn’t been any conviction. The sensational indictment of Sudan’s president Omar al-Bashir didn’t prevent Bashir from travelling to Kenya, and Kenya ignored ICC’s request that he be arrested.
As the Libyan colonel famously does not like travelling over water, the practicality of bringing him to The Hague for a trial—assuming he can be arrested—is remote. And given the Bashir precedent, in the unlikely event that Gadhafi will travel abroad, there is no guarantee that he will be arrested—assuming a warrant is issued by then following credible investigations.
Bringing Gadhafi to justice in The Hague is thus a nice idea, but that’s about it. Removing Libya from the Human Rights Council in Geneva is a moral victory, but no more than that. It restores some of the dignity the council lost when it let Libya be its member. Libya became a member because of the fictional assumption that all member-states have similar regard and respect for human rights, and so all countries are eligible to join the council. While some human rights groups have called for rigorous criteria, there is no agreement on what those could be. It is worth noting that when Libya’s suspension was discussed, China and Nigeria opposed it. Their objection was not over some high-sounding principle of separating the state from the actions of an individual; rather, the low-sounding principle of self-preservation. Few of the current member-states of the council are in a position to cast the first stone, and nobody wants to create a precedent.
Decisions at the UN are the result of consensus and balancing regional groups, which produces odious outcomes, such as Libya being part of the Human Rights Council. (The 47-member council currently also includes such worthies as Saudi Arabia, Angola, Ukraine, and Cuba). Consensus forces outcomes few are happy with.
To break such a logjam, Canada led efforts from mid-1990s to support a new doctrine: the Responsibility to Protect. That norm was meant to get states to act quickly and collectively to prevent genocides like in Rwanda. The end of the Cold War, it was felt, would make collective action easier, since there would be fewer reasons for permanent members to use their veto. The underlying idea was sound: state sovereignty is a responsibility, not a privilege; it carries with it obligations, it is not a divine right. If a state behaves badly, others can step in to save lives. This idea sought to build on interventions in the 1990s: the North Atlantic Treaty Organisation had bombed Serbia to stop Slobodan Milosevic’s government—and Radovan Karadzic’s Bosnian Serb army—from spreading terror among Muslims in Bosnia (and later in Kosovo). In Sierra Leone, the British intervention supported the legitimate government, which was being attacked by Foday Sankoh’s murderous, limb-amputating Revolutionary United Front.
But then Iraq happened. And whatever your view of that war’s legality, morality, justness, or fairness—or not—the war’s conduct harmed the idea of intervention so badly that the world watched helplessly as wars raged in Darfur and the Democratic Republic of Congo.
Wars are terrible: civilians get killed; there is collateral damage; wars without international approval are flawed. Yes, sanctions should be imposed first. Military intervention should only be the last resort. Yes, the torturers and dictators who have committed genocide, crimes against humanity, and war crimes, should face trial, and if found guilty, be punished.
But given the impotence of the international order and the horrors wars unleash, what then must we do? What will provide relief to the hundreds of thousands of Libyans and foreigners, now amassed at the border? Elegant words of UN resolutions? Tighter sanctions?
There will always be the “what-about” question, and you can fill in that blank with the rogues you don’t like. But if Libya is not the place, and this is not the time for an intervention, where and when will it be?
Salil Tripathi is a writer based in London. Your comments are welcome at firstname.lastname@example.org