Bin Laden and Gaddafi

Patricio Navia

Buenos Aires Herald, November 1, 2011


The way Muammar Gaddafi died was not a good way to crown the reasonable NATO military intervention that helped put an end to the brutal regime he led for 42 years. Unfortunately, the absence of a due process in bringing the former dictator to justice is not dissimilar to the way the former leader of al Qaeda, Osama bin Laden, was executed by American Special forces last May. Though the actions by the Libyan rebels are unacceptable, the US government is not in a good position to demand that war criminals be treated according to international law.


Even human rights violators have human rights. Perpetrators of crimes against humanity are also entitled to a fair trial. The irony of the defence of human rights is that the victimizers normally enjoy far more rights and protection than their victims. Despite the brutality of their actions, notorious perpetrators of crimes against humanity can seek protection under a number of international treaties. An incomplete and insufficient, but growingly important, international structure and an increasingly legitimized — though still controversial — jurisprudence has emerged to deal with bringing justice to human rights violation cases and dealing with perpetrators of crimes against humanity.


The International Criminal Court (ICC) set up in 2002 has been ratified by a growing number of countries. By January 2012, 119 countries will have ratified it. 32 other countries have signed the treaty but they have not yet ratified it. Several powerful nations are holding back in signing or ratifying the treaty as they fear that their own leaders can be brought to justice using the new jurisdiction and jurisprudence of the ICC. China stands among those that have failed to ratify the treaty. The US is among three countries that have moved back in the process of ratification. In fact, Washington abrogated the treaty as its request to have its soldiers exempted from the jurisdiction of the ICC was rejected. Thus, while the ICC, despite its shortcomings and limitations, is gaining strength in the world, the US has moved in the opposite direction in terms of securing a more robust international structure to deal with crimes against humanity.


The ICC would have been a suitable venue to try Muammar Gaddafi for the crimes against humanity committed under his rule. Naturally, it would be preferable for the Libyan judicial system to try crimes committed in Libya. However, as countries seek to move past the deep divisions generated by civil wars and correctly focus on nation-building — and thus pay less attention to righting the wrongs of the past — it might be convenient to pass the responsibility to try the most notorious victimizers of human rights violations onto the ICC.


When the images of the death of Gaddafi were widely broadcast around the world causing widespread outrage, the US government understandably condemned the assassination and called on the new Libyan authorities to treat those responsible for crimes against humanity according to international standards. Though the US concern was justified and its position correct, the fact that the US has not strictly adhered to international standards in treating suspects of crimes against humanity — in some cases labelled as international terrorists and, in other, as unlawful combatants —undermined the validity and credibility of the US position. In fact, just a few months ago, the US conducted a rather successful military operation that took the life of al Qaeda leader Osama bin Laden. Though the capture of that notorious international terrorist was a militarily complicated and politically difficult undertaking, the way in which it was conducted also contravened international protocols and might have even broken existing international laws. The US government justified its action on a mix of the atrocity of the crimes Osama bin Laden was responsible for and the complexity of the operation that made it almost impossible to capture bin Laden alive and bring him to justice. Yet, once the government of the most powerful democracy in the world relativizes an assassination based on its political and military context, others might do the same. As a result, the death of Gaddafi ended up producing far less outcry than the brutal assassination actually generated in the international public arena.


There is little doubt that Gaddafi was responsible for despicable crimes against his people at home and innocent persons abroad. There is no guarantee that Libya will be a better place — let alone a democracy — now that the Gaddafi regime has ended. Moreover, it is reasonable to express concern about the symbolic origin of a new regime that emerges out of such an inconvenient way of getting rid of the previous nation’s autocratic leader. Unfortunately, though the world has made significant progress in creating a legal structure to deal with crimes against humanity, the recent behaviour of the US government —the symbolic leader of the democratic world — has not contributed to strengthening that international structure and, even worse, has set a precedent that can even be used to justify assassinations of notorious perpetrators of crimes against humanity.