Crunch time

One of the central aims of the International Criminal Court (ICC) is to act as a deterrant for crimes of mass attrocity.

The architects of the court, and international justice in general, maintain that they would much rather stop these crimes happening in the first place than dish out punishments for the perpetrators.

Of course, when you do actually discuss this with people from the ICC, they usually mumble an evasive response, such as, “far too early to tell if this is working, ask us again in 20 years”.

Of course, 20 years is a very long time when you’re talking about people’s basic human rights, and it would be nice to have some certainty that one of the stated goals of the court is actually working. Do wannabe warlords in the Democratic Republic of Congo (DRC) look across the Sahara into Europe, at what is happening to Thomas Lubanga and the rest, and reconsider their own future actions?

It seems somehow a little far-fetched.

I am a particularly strong opponent of the death penalty, and one of the best arguments against having it is that it does not stop people killing. If you are going to kill people for stealing a loaf of bread, then the number of loaves of bread stolen will decline dramatically. But by the time people actually get to the level where they are killing or raping, then they are a thinking in quite a different way and the threat of being executed doesn’t deter them from this course of action. Of course, as a form of retribution, then the death penalty works beautifully.

I’m not sure I agree with the surmisal that it is too early to tell what effect the presence of the ICC is likely to have in the world. All one would have to do, I guess, is spend a few weeks in the Kivus, in the DRC, chatting to groups of mass-murderers, to understand what they think of all this international justice business. I’d imagine they’d say they’re not particularly bothered.

(The ICC, of course, understandably wants to put off for as long as possible any speculation about its deterrant factor – which is why it constantly comes out with the “far too early” line).

Now the deterrant factor is to be put to the test in a way not usually talked about, with Libya.

Last week, shortly after the United Nation’s Security Council referred the Libya case to the ICC, I attended a press conference by Luis Moreno-Ocampo, ICC prosecutor.

Two things stood out at the press conference.

One that Moreno-Ocampo still has a tendancy to say things that make no sense whatsoever. His latest faus pas was in response to a question from one journalist, who asked why the prosecutor had opened the Libyan investigation so quickly, whilst the Central African Republic (CAR) case was opened after two years of deliberation.

His answer was that there was a lower threshold for opening an investigation when a case was referred by the UN. This had me and some other journalists scratching our heads. Since this was just the opening of an investigation, not the pronouncement of a verdict, how could the threshold be lower or higher. The following day, I was sat in the room with a group of legal beagles, and they too were scratching their heads about this. Can anyone from the ICC enlighten me?

The other memorable thing in the conference was the explanation that Moreno-Ocampo gave for why he had publicly named some of the alleged perpetrators, and strongly hinted at the involvement of others. His message was clear: Colonal Muammar Gaddafi and his sons are going down for what they have done. Others could also be targetted, if they continue to commit human rights violations.

In other words: stop now and you could be spared. To Gaddafi and his inner circle: you’re in a whole lot of trouble, but you could make it easier on yourself if you desist right now from doing any more bad stuff.

Here is a very clear example of how Moreno-Ocampo is trying to use the ICC as a lever to deter war crimes. Not in 20 years, but now. Immediately.

Unfortunately, judging by reports coming out of the country, it would appear that Colonal Muammar and his inner circle are not listening. And they may not be listening for a very good reason, which is one of the fundamental problems of the ICC as an institution. The process is so steeped in political inteference that the message the ICC is sending out is a confused one.

It is not: if you do bad things, we are going to get you. It is rather: if you do bad things, make sure that your country is not a member of the ICC and that you have strong allies on the Security Council; China is always a good bet.

For example, why has the UN Security Council never referred Zimbabwe or Israel to the ICC?

No one likes Gaddafi at the moment. He is ostracised by just about everyone in the international community. He has nothing to lose by what he is doing, and everything to gain. He will, I am certain, fight to the death.

Here is a good article that a colleague of mine wrote about the political machinations that lie behnd the ICC.

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