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.

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.”

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.

ICC Prosecutor, in response to questions about the timeline of his investigations in the Ivory Coast, which will arguably lead to favoring prosecutions for the current government.

The United States has issued troops to intervene in Uganda, and the ICC will proceed will investigations in the Ivory Coast–after the French and African forces negotiating the transition have completed their task sans accountability.

Perhaps there needs to be a justice watchdog? Clearly political statements and actions cannot be used to justify apolitical action can they? And perhaps those who are victims, might only be considered such in opposition to suspects anyway, after trials have concluded?

Finally, I have a hard time believing that for Ugandans, the area where intervention, military and justice meet will be the cornerstone of legitimacy and reconciliation.

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.

Leaving aside the broader problems in the conflict–including the fact that there may not be a Libya if and when Gaddafi leaves–the question about whether it was a good idea to indict Gaddafi has interesting implications for future ICC use by the Security Council and for the ICC's own strategies in cases of ongoing conflict.

One, it will be important in future cases to distinguish types of conflict as well as types of solutions–legal or otherwise–to gross violations of human rights. Whether or not the Libyan situation is adequately responded to, civil conflict of the nature of that the North African and Middle Eastern region has been experiencing in the last 6-9 months is inherently different from that of the paradigmatic interventionary cases of Bosnia, Kosovo, and Rwanda. Civilian, rebel, state and international forces are engaged, and classic and basic questions of the nature of the state are being invoked in a way in which peace cannot occur without fundamental state change. This type of politics may make leaders more intransigent, may cause greater or lesser incidents of atrocities, and may be better ended by negotiation or not.

Once an investigation is started, it is likely to be  politically impossible to withdraw it (statutorily, it is possible to withdraw–either by staying investigation by a year, or in the "interests of justice"). The Council, as well as the ICC will be advised to think more critically about the role of the ICC as a bargaining chip or enforcement tool.

Given the dometic pushback against US president Barack Obama, the US may also rethink its strategies in Libya, and the seeming permanency of its engagement with the situation in Libya. In rethinking for other situations, will irreversible techniques with moral responsiblities such as ICC indictments fall out of favor?

The evidence of ICC effectiveness as a means to deter mass atrocities, and to end conflict is mixed—and refers both to strategic and normative results as successes making it hard to see what exactly we are talking about in invoking the usefulness of the ICC as a political actor. And analysis is made even harder by the resolute insistence of the ICC that it is not political.

Next year, elections will take place for a new prosecutor—which will mean taking stock of the legacy of the current ICC prosecutor, and rehashing his controversies and perceived successes. But in the end, what is really being negotiated is the role of the OTP and ICC as a whole. Given the reluctance of the US, for one, to sign on to the ICC’s exercise of power, it is an interesting turn that the ICC is now a key player in international security politics.

The problem for the ICC will be managing a greater public and therefore powerful role at the same time avoiding being drawn into Security Council and powerful state politics. To be seen as initiating investigations at the behest of the US—as in the case of Syria—could do permanent damage to the ICC even if it initially provides major support to its legitimacy. The investigation of Sudanese president Omar al-Bashir almost caused the African Union to pull out of the ICC en masse, despite the fact that atrocities had clearly occurred, and that the AU itself was involved in peacekeeping activities in Darfur.

If the ICC is forced to investigate every time the Security Council’s P-5 needs to punish or restrain a state—even before the type of atrocities such as those in Darfur occur—the ICC will not only use the useful screen apolitical legalism, but lose any connection based in the norms of human rights, and justice on which it gained legitimacy across North and South. So far, Libya, the most striking case of ICC diplomacy by the Security Council has lived up to the promise that acts that shock the conscience of the world occurred there. But who is next? And at what cost?

“The pursuit of truth is the essence of justice and justice will be served.”

[Mladic’s arrest ]“will help to bring down barriers to reconciliation in Bosnia and Herzegovina.”

– BiH High Representative and EU Special Representative, Valentin Inzko

In today's surprising news, Ratko Mladic has been arrested by Serbian police, after decades of being a fugitive from a warrant issued by the International Criminal Tribunal for the Former Yugoslavia. In addtion to Radovan Karadzic, Slobodan Milosevic, and, to a lesser extent, Goran Hadzic, Mladic's arrest is a prize for ICTY, and a symbol of its victory over major power and Serbian intransigence, and its own highly criticized legacy.

Videos of Mladic at family events had long circulated the internet, and indeed he and Karadzic had lived openly, and then thinly disguised, in Serbia for many years after their arrest warrants had been issued. Allegations that the Serbian government knew of their whereabouts and refused to arrest them, have circulated over the years, including in the yet unreleased report on teh ICTY planned to be released by ICTY prosecutor Serge Brammertz.

The EU's conditionality for Serbian accession–the arrest of fugitives accused of war crimes by the ICTY–led to the move of current Serbian leaders to find, and arrest Karadzic and now Mladic.

What might that mean though, about Inko's and others statements about reconciliation? Can civil society in Serbia and in the rest of the region really be expected to see significant changes now that Serbia has decided that EU accession is more important than post-war national identity? Indeed maybe the reason Serb politicians prioritze accession is precisely because, unlike with the arrest of Milosevic, civil protests are deemed unlikely–precisely because people have, in a sense reconciled? Or at least moved on?

For international justice though, the question is more about what precedents, and strengths, might this mean? The blogosphere and twittosphere are abuzz, and  major media are all following the case–which at least suggests that worldwide knowledge and care about international justice is high. Lots of interesting questions have been raised, and undoubtedly, lofty statements on impunity will follow from international criminal justice advocates and actors.

Clearly though, in addition to a last gasp for ICTY which is almost closed at this point (finally, after almost 20 years), the arrest yet again points to the intractability of local politics, the politics of powerful states and institutions and the classic peace v. justice conundrums of exchange values for justice projects and stability from any judicial accountability project.

It would be a dangerous mistake to forget both the massive normalization of international criminal justice this represents, AND the inherently and coldly political way in which it came about. Mladic would not grace your tv or paper without EU accession on the table, and without ICTY political pressure, or Serbian state change. Reconciliation has no part in the decision to arrest Mladic–unless state formation and change in Serbia can be called reconciliation. Nor are any major political figures calling for a robust Serbian, Croatian, or Bosnia reconciliation around the crimes Mladic is allegedly responsible for.

Earlier, I queried the unequal use of Security Council referrals to the ICC–but now, I am wondering if the more interesting area of investigation is the strategy of referrals, arrests, and investigations. Frattini implied that until the warrant Gaddafi has time to find a place of exile. Was this the reason for Ocampo's silence on the warrants? The ICC's time to investigate? Or the referral itself?

Is the ICC now part of diplomacy and more importantly, the business of negotiated settlements?

Among international relations theorists, realists would argue that this is just business as usual. Indeed many in the international advocacy community would agree, and state that any rhetorical support of the ICC's existence by the US is enough for any realistic person to hope for.

While even new president Barack Obama, who was hoped to have taken a more positive role in international law and human rights has failed to ratify the Rome Statute, (or close Guantanamo Bay's notorious prison,  as planned, but that's another story), the Security Council's resolutions referring situations to the court show that the US is on board with some legitimacy for the court.

What could be gained or lost from a strong push for US or other P-5 state accountability? Would the court be undermined, lost in a struggle for power? Or would it gain some independence and respect? My guess is the former– but there is a possibility of more interesting "soft" effects of the ICC over time that might make the US and other former detractors act differently in war which, at the end of the day, may be better results than ratification or prosectution. After all, the ICC is actually powerless until something that "shocks the conscience of the world" has happened.

If equality in accountablity of the table, less of those things happening might be a good place to start.