Tuesday, August 23, 2011

Libya: Essential that ICC member states not lend support to Gaddafi evading justice

As reports roll in of rebels successfully advancing into Tripoli, a key question is the whereabouts of Libya’s Brother Leader, Colonel Muammar Gaddafi. On 27 June, the International Criminal Court (ICC) issued arrest warrants for Gaddafi, his son and de facto Prime Minister Saif al-Islam, and military intelligence chief Abdallah al-Senussi for alleged crimes against humanity, including murder and persecution of people in opposition to Gaddafi’s 42-year rule. Because the ICC does not have its own police force, whether Gaddafi will see a courtroom in The Hague depends firstly on Libyans (to the extent that they can get their hands on him). It also depends a great deal on states parties to the ICC, who are duty-bound to assist the Court in ensuring Gaddafi’s capture and surrender to the ICC for trial.

There have been alarming reports suggesting that Gaddafi may travel to Angola or Zimbabwe, apparently with the assistance of South Africa, where he could be granted political exile and evade justice – neither Angola nor Zimbabwe are parties to the Court.

Following rumours that South Africa had sent aeroplanes to Libya to assist in transferring Gaddafi out of Libya to a “safe” destination, the South African Department of International Relations and Co-operation (DIRCO) announced on Monday that it will not offer asylum to Colonel Gaddafi and/or assist in his transfer. The announcement made by DIRCO should be welcomed. Itdemonstrates the commitment expected of all states that voluntarily assumedobligations under the ICC Statute.

That commitment to the ICC specifically, and international criminal justice in general, is expected in four ways. Firstly, as member states of the ICC Statute, South Africa and the other 31 African states parties have a duty to cooperate with the ICC. This includes a negative obligation not to assist anyone who is the subject of an ICC arrest warrant to evade justice. Secondly, South Africa, is not only a state party to the ICC Statute, its Parliament has enacted legislation, which gives domestic effect to its cooperative obligations with the ICC. Obviously this means that South Africa – like all other states parties – may not formally or informally provide assistance to Gaddafi to evade trial. Thirdly, South African officials and/or nationals who make themselves complicit in Gaddafi’s evasion of justice would place themselves at risk of being responsible under both South African law and international criminal law as accessories after the fact to the crimes thatGaddafi is alleged to have committed. To allow a wanted criminal to hide in your back garden, or to assist his escape to a friendly neighbour, makes you guilty by association. Lastly, as the UN Secretary General has confirmed, the question of Gaddafi’s future is centrally in the hands of the Libyan people. To assist Gaddafi’s exile from justice would be an unacceptable form of foreign intervention that directly undermines the will of the Libyan people to deal with Gaddafi in collaboration with the ICC.

 For these reasons, if there ever was any substance to the stories about South African intentions to assist Gaddafi, DIRCO’s public denunciation of the rumours confirms a careful consideration by South Africa of its own position under law. The denunciation has averted the need for civil society organisations to approach a High Court urgently for appropriate relief compelling the South African government to keep to its obligations. And the denunciation is of enormous international significance – as the world watches, with bated breath, to learn whether a man that has butchered his own people will face or evade justice.

Max du Plessis is a Senior Research Fellow for the International Crime in Africa Programme (ISS) and Professor of Law at the University of Kwa-Zulu Natal

Ottilia Anna Maunganidze is a Researcher for the International Crime in Africa Programme (ISS)