Gadhafi prosecuted

Against the backdrop of the bloody attacks on civilians by Libyan forces loyal to Moammar Gadhafi, the chief prosecutor for the International Criminal Court (ICC), Luis Moreno-Ocampo announced Monday that investigators at the ICC have applied for arrest warrants against Gadhafi, his eldest son Seif al Islam and the head of the Libyan secret service.

Never before in its relatively short history has the ICC worked so quickly. Normally, it takes investigators months or even years to prepare a warrant against persons accused of crimes against humanity. The UN Security Council had requested the court begin investigations at the end of February.

"This is a new era in international criminal law, prosecuting heads of state and other leaders while still in office," said Claus Kress, professor for international law in Cologne.

Kress believes the court's swift action in this case is a strong signal that international institutions are willing to prosecute those that are ultimately responsible for the alleged crimes, even if the court still needs to formally issue the warrant.

Not the first

In 1999, Slobodan Milosevic was the first head of state to be charged by a war crimes tribunal while still in office, although, back then, it was the ICC for the former Yugoslavia that dealt with the case of Milosevic, who died in prison in 2006.

Sierra Leone's Charles Taylor, whose trial is ongoing, is another example of a head of state being indicted while still in office. In March 2009, the ICC issued a warrant against Sudanese President Omar al Bashir which a year later was modified to include a genocide charge.

Complex investigation

In all these cases, the investigations on international crimes against humanity are complex, as the normal rule of law applies and suspects cannot be imprisoned unless there is solid evidence. The same applies for an arrest warrant.

In Gadhafi's case, his slowly dwindling power helped the court's work. On Sunday, investigators said they had received phone calls from high-ranking officials in Libya offering their help.

Investigating crimes that happened thousands of miles away is a challenge for the international legal system. Normally, prosecutors are not comfortable taking on cases from abroad, especially from countries at war, like Libya.

But with globalization a reality, that mindset is changing. In a world full of cross-border conflicts, the ICC offers a legal framework to protect individuals and nations alike. The international community has learnt its lessons from the Balkan wars and the genocide in Rwanda.

Political dimension?

Political considerations should not be part of that legal process, but it is obvious that an arrest warrant against Gadhafi would be highly political. The international community is embroiled in a military conflict with the Gadhafi regime. NATO has been targeting Libya with airstrikes since the end of February, possibly killing civilians in the process.

So, there is a case to be made for a lack of impartiality on the side of the court, even if NATO is acting on a UN mandate.

"What's missing is an assurance by the court that it will also look into civil war crimes on the rebels' side or the attack by the international coalition on the home of one of Gadhafi's sons," said Reinhard Merkel, an expert on international law from Hamburg.

Sending out a signal

One question legal experts as well as people in the region are asking is whether an arrest warrant would increase pressure on other autocratic leaders. Both the Syrian leader Bashar al-Assad and Yemen's President Ali Abdullah Saleh have recently ordered security and armed forces to shoot at unarmed demonstrators.

"In so far as the legal measures taken against Gadhafi are justified, they are sending a strong signal to other leaders, who are treating their subordinates in a similar way," said Claus Kress.

"And that's of course what we want," he added. Even though it is currently unlikely that either of the two leaders will be imprisoned, the threat alone of some degree of punishment and that of an arrest warrant against Gadhafi could well serve as a deterrent.

Author: Daniel Scheschkewitz / ng
Editor: Martin Kuebler