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22 Sep 2009 07:02
Wednesday brings excruciating embarrassment for the United Nations. It will honour the worst man left in the world, who now devotes his time to thwarting its attempts to bring other international criminals to justice.
Colonel Gadaffi will make a triumphant address to the assembled dignitaries (including a humiliated President Barack Obama), unless a district attorney in New York arrests him for murder, or torture, or conspiracy to cause explosions—or for any of the various crimes against humanity committed during 35 of his 40 years of dictatorship.
Gadaffi gets away with murder because European nations, and the corporations that influence their governments (British Petroleum in the case of the UK), are desperate to share in his oil wealth, and because he buys off the relatives of his victims with “blood money” ($2,7-billion for Lockerbie, $1-million per family for a UTA passenger jet, and further millions for US victims of his supply of semtex to the IRA), accompanied by insincere apologies.
In Africa, his impunity is attractive to other corrupt or brutal rulers: in February, he was elected chairperson of the African Union, and he has transformed this organisation into the main opponent of the International Criminal Court, guaranteeing to protect Omar al-Bashir from its arrest warrant over his alleged crimes in Darfur.
The legal excuse for his untouchability is sovereign (or head of state) immunity, the Machiavellian doctrine that for centuries protected political and military leaders from any kind of accountability other than by forcible overthrow. But immunity is not what it used to be: the Pinochet decision, by Britain’s highest court, held that ex-dictators could be liable for torturing their own people; and then the international court of justice held that courts set up by the United Nations could prosecute government ministers for mass murder. In due course Slobodan Milosevic went to trial, followed by Charles Taylor after the UN’s court in Sierra Leone had upheld the issue of an arrest warrant at a time when he was still the head of Liberia. The particulars in this warrant, significantly, named Gadaffi as an “unindicted co-conspirator”, accusing him of sponsoring Taylor and Foday Sankoh, the brutal rebel leader whose Operation No Living Thing almost lived down to its words in Freetown.
The experienced prosecutor who obtained the Taylor warrant has publicly stated that he had the evidence to indict Gadaffi. His successor, Stephen Rapp, has just left the Taylor trial to take up the post of ambassador for war crimes prosecutions with the Obama administration. If his replacement obtains an arrest warrant from the UN court, Gadaffi would have no immunity if it were executed on him in New York.
There are other ways for US law enforcement to feel the colonel’s collar. Britain gave the world the Pinochet precedent, but the US provided the Noriega example—the Panama head of state was arrested, convicted and jailed for exporting cocaine to the US. If Al-Megrahi was guilty of the Lockerbie bombing (and, conspiracy theories aside, the evidence justified the verdict), then Gadaffi must have given the order.
Al-Megrahi was a senior Libyan intelligence official, and there is no way that Gadaffi’s intelligence services, run by his brother-in-law, would commit an atrocity of this magnitude without his knowledge and approval. This crime has such close connections to America, given the nationality of the airline and most of the victims, that a New York district attorney would have no difficulty claiming jurisdiction to arrest the man reasonably suspected of being an arch co-conspirator.
Just six months after Lockerbie, the Libyans did it again—to a French airliner over Chad. A French court convicted in absentia Gadaffi’s brother-in-law and five Libyan intelligence operatives. Then investigating judges held that there was a strong case for Gadaffi himself to answer: post Pinochet, sovereign immunity could not apply for a crime as serious as blowing up an airliner. But a French appeal court overruled this decision, on the erroneous ground that airline terrorism did not amount to an international crime. The families of Gadaffi’s victims appealed to the European court of human rights, so to get himself off the hook his charity paid each family $1-million to compromise the case. If the evidence is still available, this case too might proceed in the US.
There are other legal possibilities. Unruly rulers such as Karadzic, Mugabe and Marcos have on visiting America been served with writs and made the subjects of civil actions under the US alien tort claims act. Although those indicted cannot be obliged to wait around for the verdict, proceedings can give victims’ relatives some satisfaction through the presentation of evidence about the defendants’ complicity in crimes against humanity.
For the present however, Gadaffi struts the world stage, a living embodiment of impunity. He came in from the cold in 2003 for one reason only—to obtain help against Islamic enemies who despise his “green book” and want to destroy his dynasty. Britain has been his leading appeaser: the SAS trains his troops, Scotland Yard helps his police (although not to apprehend the murderer of PC Yvonne Fletcher), and his dissidents here have been arrested and jailed under the UK’s anti-terror legislation. Italy and France have welcomed him, and last month the Swiss government issued a grovelling apology for arresting his son, Hannibal, over allegations of beating his servants.
So, over to America. Obama and Secretary of State Hillary Clinton recently criticised Britain for pandering to Gaddafi by encouraging Al-Megrahi’s release. This week the US has the opportunity to end Gaddafi’s invulnerability which derives not from his strength, but from the weakness of international law and those who have a duty to apply it. - guardian.co.uk
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