International legal guarantees put at risk in 2011

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International criminal law seems to have been rewritten in 2011. Phenomena such as the 'Arab Spring' (Tunisia, Egypt, Yemen), 'regime change' (Libya) and 'extrajudicial executions' (Bin Laden, Al-Awlaki and Muammar Gaddafi) have been given legitimacy on the part of the international community.

This is something that has never happened before in contemporary international criminal law in such a short space of time. So is there a new world order with new international criminal rules?

by Geert-Jan Knoops

About the author

Geert-Jan Knoops is Professor of International Criminal Law at Utrecht University, and an international criminal lawyer in Amsterdam. He is a regular contributor to the RNW International Justice website.

This article is published by permission of de Volkskrant.

Dead letter
Perhaps, when you think of what has actually happened judicially in the past year. Although the international community is pleased by the changes on the political scene, the legal implications are far less favourable. Some fundamental principles of international criminal law seem to have become a dead letter. A few examples:

Firstly, there was the misuse of the power of the International Criminal Court (ICC) for a political purpose, while according to the principle of trias politica [separation of powers. Ed] it ought to be an independent body. In late February we saw that the power of the ICC was invoked by the UN Security Council to get rid of a regime that was displeasing to the West: that of Gaddafi. This was achieved through a Security Council Resolution (1970) against the Gaddafi regime in which economic and political sanctions were imposed. But the ICC was also asked to investigate possible crimes in Libya. In other words, the jurisdiction of the ICC was made part of a package of political measures.

In June, the Gaddafi family was subject to an arrest warrant from the ICC, even though the ICC was not able to carry out its own investigation in Libya until late October. How the International Criminal Court could say in June that it had enough evidence to issue the arrest warrant remains unclear. And, contrary to the resolution, in December the ICC suddenly cancelled plans for a trial in The Hague of Saïf al-Islam Gaddafi because the National Transitional Council (NTC) of Libya wanted to conduct the trial in Libya.

The fact that Al-Islam would never get a fair trial in Libya didn't seem to bother anyone. Nor did the fact that Muammar Gaddafi was killed under the responsibility of the NTC, in violation of the rules of war. Not to mention the possible crimes committed by soldiers of the NTC and NATO. It is unlikely that these persons and bodies will ever be brought to justice.

'War situation'
Secondly the United States, which cooperated in invoking the power of the ICC against Libya, saw no reason to lawfully arrest and try Osama bin Laden under the same rules of international criminal law. Instead, he was - under the guise of a 'war' - killed extrajudicially. The same was true for the so-called 'terror preacher' Anwar al-Awlaki - a US citizen - who was executed on 30 September by a US Predator drone in Yemen.

Not only were these people denied a trial, and therefore killed extrajudicially, but the US also violated the territory of sovereign states, namely Pakistan and Yemen.

Dubious dimension
Thirdly, the legitimate use of force by the international community under international law had a dubious dimension in Libya. A Security Council resolution that was intended only to protect human rights, turned out to be improperly used to overthrow a regime. And to this end the bombing that was carried out went far beyond the protection of civilians, and amounted to direct military assistance in a ground war. The international legal system of collective self-defence became an empty shell.

The legal price
2011 will go down in history as a year in which certain legal guarantees which we thought we had in international criminal law, were put at risk. From the perspective of international politics that will be welcomed in terms of political outcomes (Bin Laden and Gaddafi killed, Libya under the control of the West). However, what few seem to have realised is that the legal price is high, a price that you and I will have to pay sooner or later, if we ever find ourselves subjected to the system.