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International Criminal Court

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Libya: What Now?

24 August 2011

Libya: What Now?

By Gwynne Dyer

In war, the moral is to the physical as three to one, said Napoleon, and the Libyan rebels certainly demonstrated the truth of that. Gaddafi had more soldiers, they were better trained and much better armed, and they did not lack courage. But the rebels firmly believed that they were bound to win, and once Gaddafi’s troops also became infected with that belief their resistance collapsed.

However, Napoleon also said that God is on the side with the best artillery, and the rebels had nothing bigger than light anti-aircraft guns. Their real artillery was the NATO air forces that conducted a five-month bombing campaign on their behalf.

Even though there are technically no foreign “boots on the ground” in Libya, this heavy reliance on foreign military support makes the rebels forces beholden to the West in the eyes of some Libyans and many other Arabs. So they are, but as the leaders of the revolution try to make the tricky transition from dictatorship and civil war to an open and democratic country, the influence of the foreigners may prove useful.

Consider the tasks that the revolutionaries now face. First, the rebel leaders must prevent their victorious troops from taking revenge on the regime’s erstwhile supporters. The last thing they need is a bloodbath in Tripoli or anywhere else.

Then they must choose some thousands of today’s ragtag fighters to serve as a conventional and disband the rest of the militia forces that sprang up to fight Gaddafi’s army. A lot of people who fought for the revolution are going to feel cheated, and they still have guns.

The revolutionaries must then find a way of dealing with Gaddafi (if and when they catch him) that does not deepen the already grave divisions in Libyan society. Many people from Gaddafi’s tribe and its allies fought for the regime, and half the families in the country include someone who worked for Gaddafi’s government at some point during his 43-year rule.

Then they have to write a constitution, hold a free election, and form a legitimate government to which the National Transitional Council (NTC) will hand over all its powers. They also have to restart the economy and get money into people’s hands as quickly as possible. Many Libyans have not been paid for four months now.

That task will be a lot easier if the country’s foreign currency reserves, much of which are held abroad in accounts that were frozen by the United Nations during the conflict in order to cut off Gaddafi’s cash flow, are now released rapidly to the new Libyan government. It will also want to borrow a lot of money abroad to repair the oil facilities that were damaged in the fighting and get exports moving again.

That money will almost certainly be made available, because Libya has enough oil reserves to repay it tenfold, if necessary. But then the going gets harder.

Many people in the rebel leadership understand that the country’s strong tribal loyalties are divisive, but keeping them out of democratic politics is not going to be easy. It’s especially hard because there are no powerful civic organisations (professional associations, trade unions, etc.) to serve as an alternate focus for political activity.

Moreover, the revolution succeeded early in the east (Cyrenaica), while most of the west (Tripolitania) stayed under Gaddafi’s rule almost down to the end. So the NTC, which is only now moving from Benghazi in the east to Tripoli in the west, has a strong eastern bias. Yet the west has two-thirds of the population, and it was the fighters in the west who carried the main burden of the fighting.

Libyan society was atomised under Gaddafi, quite deliberately, in order to make each individual isolated and powerless when dealing with the regime. Now all those horizontal links that are collectively known as “civil society” must be recreated, without allowing tribal and regional loyalties to take over. Which is why the fact that the revolution has powerful foreign supporters could be useful to Libya.

Britain and France, in particular, have committed a great deal of political capital to the success of the Libyan revolution. They carried out more than half of the air strikes in support of the rebels, while other European democracies and Canada, all NATO members, did the rest. (The United States only contributed surveillance capabilities and occasional Predator drone strikes after the first few weeks.)

These European allies need to justify their intervention to their own people, so they will do everything in their power to make sure that there are no massacres, that Gaddafi and his close allies, when caught, are handed over to the International Criminal Court for trial (much better for the stability of the country than trying him in Libya), and that the process of building a democratic government in Libya goes as smoothly as possible.

They have a great deal of leverage over the rebel forces at the moment, and they will use it to keep the revolution on the tracks. Despite all the obstacles to a smooth transition that Libya faces, the outcome here could be surprisingly positive.

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To shorten to 725 words, omit paragraphs 6 and 11. (“The revolutionaries…rule”; and “Moreover…fighting”)

Omar al-Bashir: Politics and the Law

16 July 2008

Omar al-Bashir: Politics and the Law

 By Gwynne Dyer

All the opposition groups in Darfur celebrated when the prosecutor of the International Criminal Court announced on 14 July that he was seeking the indictment of Sudan’s President Omar al Bashir on the charge of genocide, but almost everybody else had a problem with it. They don’t doubt that Bashir is a ruthless dictator who is guilty of ordering many thousands of deaths. They just think that putting him on an international “wanted” list is unwise.

Tanzanian foreign minister Bernard Membe, speaking on behalf of the African Union, said: “We are asking for the ICC to re-examine its decision….If you arrest Bashir, you will create a leadership vacuum in Sudan. The outcome could be equal to that of Iraq.” Membe and many other people fear that the indictment of Bashir, far from ending the conflict in Darfur, could reignite the much bigger civil war between northern and southern Sudan.

Andrew Natsios, the former US special envoy for Sudan, was equally worried that the ICC was playing with fire: “This indictment may well shut off the last remaining hope for a peaceful settlement (for Darfur).” United Nations Secretary-General Ban Ki-moon phoned Bashir personally to assure him that the ICC is quite separate from the UN. In Khartoum there was defiance from Bashir personally, but also warnings from opposition leaders that this was not a good idea.

The Sudan People’s Liberation Movement, which led the predominantly African and Christian south of the country in the 22-year civil war, was emphatically not for rocking the boat right now. The SPLM spokesman said that “indicting (Omar al-Bashir) has created a dangerous situation in Sudan threatening peace and stability in the country.”

What is at stake, in the SPLM’s view, is the 2005 peace deal that gave the south its autonomy, and promised elections for next year in which the south could choose independence from the mainly Muslim and Arabic-speaking north if it wants. The election might also bring democracy to Sudan (or to the two halves, if they separate), after nineteen years of Bashir’s dictatorship.

An estimated two million people died in the north-south civil war, compared to perhaps 200,000 in the past five years in Darfur. Nobody wants to go back to that, and with oil revenues starting to build up, both the northern and the southern political elites have every incentive to make the deal work.

Sudan is in the midst of a difficult but still promising transition, but it may not succeed if Bashir’s only choices are to live as a hunted criminal facing arrest and trial on genocide charges, or to cling to power forever. More immediately, his indictment could wreck the possibility of a peace deal to end the war in Darfur. So most of the northern opposition parties opposed the ICC’s action, too.

But that is irrelevant to the International Criminal Court, because it is not a political organisation. It is a COURT, and courts operate by different rules. It may be politically inconvenient to indict Bashir right now, but as the prosecutor, Luis Moreno-Ocampo of Argentina, said last week, “I don’t have the luxury to look away. I have the evidence.”

Moreno-Ocampo, and the three judges (Ghanaian, Lithuanian and Brazilian) who must now decide whether or not to indict Bashir, and the whole ICC, are quite rightly barred from taking political considerations into account. They are there to administer the laws.

The law in question is the new international law that seeks to make even senior military and political leaders legally responsible for genocide, crimes against humanity, and war crimes. Since such people are unlikely to face legal action in their own countries, which are generally tyrannies of one sort or another, it must be done at the international level. Hence the creation of the ICC in 2002.

The ICC is a fragile new growth that challenges the old de facto rule that sovereign states can forgive themselves and their servants for any abuse or atrocity, however wicked. 147 countries have signed the treaty that created it, although neither China nor India accepts the ICC’s jurisdiction, and the United States and Israel have both “unsigned” the treaty.

The most powerful states are always the most reluctant to give up their sovereign powers in the interests of international law, so the rest of the world tends to go ahead without them, on the assumption that they will catch up later. In the meantime, the main problem for those who do support the ICC is to remember that they are trying to build the rule of law in the world, not to solve some local problem.

It is important that Sudan finally gets peace and prosperity, after endless years of war, tyranny and poverty. It is even more important that leaders who commit genocide, crimes against humanity and war crimes know that they will have to answer to an international court.

In the end, these two goals are probably not irreconcilable. Or do you really think that Sudan’s political elites are so stupid and supine that they will let their whole future be wrecked in order to protect one brutal, blood-soaked general who has long outlived his usefulness?

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To shorten to 725 words, omit paragraphs 11 and 12. (“The ICC…problem”)