On June 27th, 2011, international arrest warrants were issued by the International Criminal Court for Libyan dictator Muammar Gaddafi and two of his top henchmen, approximately four months after the UN Security Council unanimously decided "to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court" in Resolution 1970. For those keeping track, this was supported by the newly renamed Organization of Islamic Cooperation (nee Organization of the Islamic Conference, commonly referred to as the OIC), whose Secretary General "underlined the role played by the OIC in resolving the Libyan conflict, the latest of them being the dispatch of a political delegation to the Libyan capital, Tripoli."
In fact, Resolution 1970 specifically welcomed "the condemnation by the Arab League, the African Union, and the Secretary General of the Organization of the Islamic Conference…" In other words, the Security Council chose to act only after Libya's regional power base – which had primarily been the Arab and Islamic international organizations – deserted the Gaddafi regime. Only then could ICC Prosecutor Luis Moreno Ocampo declare that "there will be no impunity in Libya." Only then could NATO pursue a no-fly zone without risking a regional backlash.
Without getting into domestic concerns raised regarding American intervention, who would try to turn this long overdue development – namely Qaddafi's removal from power itself – into a contentious issue? The answer is Richard Falk, who currently serves as the UN "Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967." In a June 28th Al Jazeera article entitled "Doubts surround Gaddafi arrest warrants" Falk opined that "one has to wonder why such an effort to arrest and indict was pushed so hard at this time. The timing arouses strong suspicions, and not just of bad judgment!" From there, he cited the trial of Slobodan Milosevic in order to leap to the histrionic 'conclusion' that "we can expect that whenever NATO has recourse to war the political leader of its opposition will be charged with international crimes before the fighting even stops. How convenient! Lawfare in the service of warfare!"
Falk's empty rhetorical usage of the term lawfare is, incidentally, merely the second most absurd use on Al Jazeera in the past two months, falling a distant second to Joseph Massad's utterly unfounded and false statementthat lawfare "is usually used to mean "the effort to conquer and control indigenous peoples by the coercive use of legal means."" One may easily picture Massad scrolling down the Wikipedia entry for the term lawfare in order to find his preferred 'definition;' perhaps understandably, Falk never even attempted to substantiate his usage.
Nevertheless, Falk blithely built up to his concluding (and conclusory) notion that "An opportunity exists for an aroused citizenry, especially in the Arab world, to insist that law should no longer be a plaything of those who wield hard power from the comfort zone of NATO headquarters." One must wonder what "aroused citizenry" Falk is discussing – perhaps he means that same Libyan people currently fighting against Gaddafi's depredations, with NATO's assistance?
Yes, it is true – and common knowledge – that Gaddafi has escaped justice in the past for his crimes against his own people. As the U.S. Department of State's background note on Libya notes, "An abortive coup attempt in May 1984, apparently mounted by Libyan exiles with internal support, led to a short-lived reign of terror in which thousands were imprisoned and interrogated. An unknown number were executed." Less than a decade afterward, "Qadhafi's security forces launched a pre-emptive strike at alleged coup plotters in the military and among the Warfallah tribe in October 1993. Widespread arrests and government reshufflings followed, accompanied by public "confessions" from regime opponents and allegations of torture and executions. The military, once Qadhafi's strongest supporters, became a potential threat in the 1990s. In 1993, following a failed coup attempt that implicated senior military officers, Qadhafi began to purge the military periodically, eliminating potential rivals and inserting his own loyal followers in their place."
What has changed since then? Again, this time when the Libyan people rose up against Gaddafi, his allies deserted him. The equation here is that Gaddafi, minus his regional supporters, now equals fair game to be brought to justice for his crimes. Attacking the motivations of NATO and/or the I.C.C. is merely a transparent ploy to obfuscate the issue. Sure enough, RIA Novosti reported that the Libyan Justice Ministry issued a public statement alleging that "The so-called International Criminal Court is only a cover for operations of NATO…"
There is no question that geopolitics – and regional politics as well – play a critical role in any number of international developments that may or may not have a legitimate claim to being "law." However, when ostensible experts completely misrepresent complex international developments in order to make unfounded assertions, it is anything but helpful.