itsnotcricket

Libya has again asserted its right to try its own defendants and our favorite prosecutor has again put his foot in it, discussing the possibility of a national Libyan mechanism with the international media, to the point it appeared to be a forgone conclusion that the Pre-Trial Chamber would accept Libyan jurisdiction in the Saif al-Islam case.

For those unamused by the rebukes of the Pre-Trial Chamber and the hurried clean-up of Ocampo’s statements indicating a decision on complementarity in Libya by the ICC’s public relations folks,  one of the most interesting human rights questions raised by a possible  national prosecution is how can the Court both promote norms of justice while implicitly legitimizing the death penalty?

Notwithstanding the usual cultural arguments about the death penalty, both those that are simply covers for atrocities and those that raise real theoretical questions about life and death and the state, it is pretty clear that all human rights advocates disavow the death penalty without caveat. Furthermore, the complementarity standards in death penalty states should, it would seem, be set at a higher level than non-death penalty states. Failure to adequately execute justice might not only lead to individual loss of life, but exacerbate local senses of injustice which may at minimum make enshrining practices of rule of law difficult  and at the worst spark additional unrest.

In Libya, the concerns preventing previous investigations and trials at the national level were great, and obviously included the corruption and explicit violence and crimes of the regime. However concerns also included the fear that given the legal and government climate of Libya over the years, no competent judges or lawyers could reasonably practice law, enforce judgements, access legal materials and effect fair trials and investigations equal not only to those of the ICC, but generally those of African states with functioning and capable legal environments. There is little to suggest that such capacity questions have been answered in the last few months. If corruption might have tainted the entire legal profession under the previous regime, sans lustration, any efforts at prosecution will be handled by the same legal actors. Regardless of the intent of their actions, they will not enjoy the moral and administrative privilege of their less tainted peers and they will inevitably make decisions in a fraught and troubling prosecution and judicial climate.

The life and death of Saif al-Islam is then cought in the same snare as the future vitality of the ICC. In order to promote the human rights norms that underpin its existence, the court should make it policy not to revert opened cases to the national level on the basis that by definition equal justice is not served if there is a possiblity of cruel punishmnet by use of the death penalty. Such a move would further distance the court from those states suspicious of a North driven rights agenda that attempts to de-legitimize their soveriegnty and moral authority, but it would at least uphold the apolitical legalism the court purports to promote.

Complaints would also issue from the Security Council, who would, for diplomatic reasons, perhaps prefer a local prosecution. Such a prosecution would smooth feathers ruffled by NATO actions, and make failures in the trial, or tensions raised, the problem of Libya and not the international security community. For the ICC too, the gain of a case in Libya was global relevance and attention–and that has already occurred. With Gadaffi dead, the ICC has one more albatross of a situation to add to a pile of unfinished cases. The negotiations with Libya also have the promise of restoring its relations with Africa, a goal the ICC has been actively pursing for some time.

The outcome? Likely acquiescence by the ICC, and a nail in the coffin for justice norms moving from advocacy and practice to institutionalization in international security practice.

This week Libyan president Muammar Gaddafi was killed in Libya, by civilian protesters, putting and end to any remaining conflict about Libyan leadership, the search for Gaddafi, and inadvertently, the legitimacy of the NATO intervention or those of the UN Security Council and the ICC. Reports emerge that the ICC has demanded access to the body of Gaddafi and that investigations into the cause of his death have been launched.

Indeed no-one seems exactly sure how he died– reports concur that it was related to battles in Surt, Gaddafi’s hometown, and that rebel fighters were involved. But the question posed by the UN Office of the High Commissioner for Human Rights (OHCHR) in  investigating the death of Gaddafi seems to rest on whether he died in battle or was assainated.

If he died in battle, the era of Gaddafi can be neatly tied in an international narrative of the end of a vicious authoritarian and a new revolutionary, and moral unblemished ( save of course the troubling reports of rape, ethnic based attacks and regional conflicts that mar the rebels) government emerging. The rebels and others are aiding in this narrative, claiming Gaddafi was a coward whose last words were “Show me mercy!”, or “What did I do to you?” and complemented with the words in the title of this post: “Do you know right from wrong?”

The latter invokes the uncomfortable reality that the UN and the ICC and the OHCHR must address: how to manage justice and revolution? Again, the question of whose justice emerges, but this time all parties agree that Gaddafi’s death was no great loss–however in terms of what lessons this might teach about the right to kill, administrating justice and the morality of revolution, the OHCHR has for the moment equated justice and morality with a strictly legal and institutional framework indicating that the killing of Gaddafi “robbed his victims of a chance at “cathartic” justice in the courts.”

One of the key charges against international justice interventions, particularly in Africa, has been that of a re-colonization of Africans through political and administrative structures designed to rob sovereignty and physical agency as well as decision-making from African states and civilians. Though these arguments are often derided, especially by North scholars and commentators, these accusations have roots that should be considered despite the often questionable status of those making the charge, and pose questions about the framework and discourse of international and global justice projects.

Several investigations of the legacy and meaning of colonial law in the post-colonial state have revealed a disturbing connection between colonial ideas of person, body, and state/colony that remain and must be reworked in a post colonial era. Discourses of responsibility and protection bring to mind not unreasonably, ideas of paternalism and domination that invoked the same language. Not only in speech, but in law and action, responsibility, and law have been marshaled against South states under colonization as a means to discursively and materially cement Northern rule.

As the ICC moves to increase its span, legitimacy, and to construct its role in global justice, it is thus important to look not only at the questions of who it investigates, and prosecutes, its relationship to victims and to the powerful-especially the P-5 members of the Security Council–but also to look at the types of law it produces.

Since the formation of the ad hoc’s a number of disturbing legal culture questions have arisen, around plea-bargaining, adversarial methods of court procedure, and more recently, rights of protection from “double jeopardy.” These issues pit conceptions of justice against each other, and with no civil law structure to add or remove these procedures once in place, nor a singular notion of justice, the risks that the more resourced legal systems will dominate is considerable.

What might that mean? Since the system will affect the less resourced, and is conceived by the more resourced sans corrective measures, or accountability to those it serves, the ICC and international justice more broadly, risks being either paternalistic or non-just by structure alone.

The best case of mitigating against this was in the Kenyan case, which allowed for negotiation and alternatives to some extent, before the ICC investigation. The worst case was Libya, which ignored complementarity questions and indeed the presence of a state post-arrest warrant, partly on the basis that the ICC was “helping” the people of Libya by prosecuting under its own legal and justice culture where they were unable.

I have been reading and mulling over Rosemary Nagy’s 2008 article in Third World Quarterly, entitled “Transitional Justice as Global Project: critical reflections” and recently happened to see Patrick Wegner’s post on Justice on Conflict on the “ICC Complementarity, Positive Peace and Comprehensive Approaches in Transitional Justice” both of which ask for a connection between international and domestic roles in the construction of transitional justice mechanisms.

One of Nagy’s main complaints is the colonialist and indifference as well as blameless approach to transitional justice taken by international actors. This approach, she says, leaves out certain victims, and perpetrators–and leads to a misguided approach to transition, timing, reconciliation and ending violations of human rights and other violence. An example she gives are the Iraq Tribunal and the South African Truth and Reconciliation Commission, both of which neglected structural and local experiences. In the Iraq case, more importantly, she notes the exclusion of mid-conflict violence by the structuring of the timing of atrocities and transition.

Likewise, Wegner criticizes the lack of parallel structure between the ICC and the domestic constituencies’ needs for mechanisms such as truth commissions, and local trials.

While the ICC’s requirements for complementarity have a desperate need for a more robust approach, and a more meaningful application—is the Libyan case really one where it can be said that complementarity was addressed?—the uneasy relationship between international actors and domestic actors, needs and populations is inherent to a notion that there can be global and domestic justice.

Either one frames contemporary justice from an inclusive point of view—in which the ICC is a natural extension of all states criminal justice systems—or it is a distinct form at the international level, operating from a parallel but separate authority.

Depending on how one chooses to approach it, transitional and global justice practices must then be chosen differently, and have different expectations. Local notions of justice might way more than international ones if justice as a concept is differentiated. This might mean admitting the arguments of Iraqis who wanted executions in opposition to human rights advocates around the world who railed against the execution of Saddam Hussein. It might also mean listening more closely to the needs of Libyan authorities and civil society, as well as those of Sudan, Kenya and Uganda.

On the other hand, if indeed global justice–particularly global criminal justice–is inseparable from domestic variants, local, regional and state cultures of justice must be reflected in its practice; procedurally, as well as punitively.