The Prosecutor v. Muammar Gaddafi -- and a Step Closer to Justice

07/26/2011 06:53 pm ET | Updated Sep 25, 2011
  • Mark V. Vlasic Senior Fellow & Adjunct Professor of Law; Georgetown University, Principle, Madison Law & Strategy Group

In its second act against a head of state, and pursuant to a United Nations Security Council referral, the International Criminal Court (ICC) in The Hague recently issued arrest warrants for Libyan leader Muammar Gaddafi, as well as his son Saif al-Islam, and his military intelligence chief, Abdullah Senussi. International prosecutors have accused the three of crimes against humanity, including killing civilian protestors during Libya's Arab Spring. Libyan protestors cheered the announcement, while Syrian leaders were more muted.

Fortunately, for those followers of international justice, it seems that justice for war crimes in the Middle East did not end where it started, with the trial of Saddam Hussein. The question, however, is where justice will move next.

There have been a number of "firsts" in the realm of international justice. The first major international tribunal at Nuremberg, tried Nazi officials for war crimes, while the first war crimes tribunal in Asia, the Tokyo Tribunal, focused on war-time leaders in Japan. Then novel experiments in international justice, they were followed by the first United Nations war crimes tribunals in Europe and Africa -- which focused on the former Yugoslavia and Rwanda. Later institutions -- international, domestic and hybrid -- would investigate and prosecute other war crimes in Africa, Asia and Latin America. But a region that largely fell off the map, when it came to international justice for war crimes, was the Middle East.

This all changed with the indictment, arrest and trial of Saddam Hussein by the Iraqi Special Tribunal (IST), less than a decade ago. And while the world had seen the arrests of former presidents Slobodan Milosevic and Charles Taylor, the Saddam trial was the first-ever war crimes trial of a head of state in the Middle East -- thus slowly eroding the culture of impunity in another area of the world.

Saddam and his cohorts were convicted of crimes against humanity, and sentenced accordingly. After the IST finished its priority cases, however, many wondered if the Saddam trial would be the first and last war crimes case from Middle East.

In the eight years since Saddam's arrest, the Middle East and North Africa have changed remarkably. There are now new faces of leadership in Egypt and Tunisia -- but the leader that may have the most blood on his hands (including American blood), Muammar Gaddafi, has held his ground and refused to compromise his policies or his power.

Indeed, a leader who recently made moves towards reconciliation with the West, has since returned to his cold-blooded ways, brutally suppressing protesters in Libya. In an effort to prevent a possible bloodbath in Benghazi, NATO-led forces intervened in Libya -- but Gaddafi did not back down. Thus, his transgressions have caught the eye of international prosecutors in The Hague.

Armchair skeptics might question the immediate impact of an international arrest warrant. General Ratko Mladic, who allegedly orchestrated the brutal Srebrenica genocide -- the slaughter of almost 8,000 Muslim men and boys in Bosnia -- was recently arrested and extradited to The Hague -- but only after successfully fleeing justice for nearly 16 years. Charles Taylor, former President of Liberia, was just recently brought to trial for atrocities that he allegedly committed in Sierra Leone in the 1990s -- but the Nigerian government reportedly housed him and his entourage for years after the Special Court for Sierra Leone indicted him. And even after the Arab Spring, Omar al-Bashir, President of Sudan, still travels freely because some countries refuse to execute an ICC warrant demanding his arrest and extradition on charges of genocide.

Nevertheless, although Gaddafi's warrant does not guarantee that he will be brought to justice immediately, it is increasingly likely that he will be brought to justice eventually. This fact is no small change in perspective. For lack of a more elegant word -- this is huge -- and this fact is critical to understanding the pace of international justice in the world.

For centuries, national leaders acted with impunity, perpetrating atrocities without fear of ever being hauled into court. But starting at Nuremburg, this impunity started to deteriorate. And since Nuremburg, criminal courts throughout the world -- whether in The Hague, Sierra Leone, Iraq, Cambodia, Rwanda, Tanzania, or elsewhere -- have seen arrest and conviction rates increase rapidly. Courts that decades ago would have never existed are now fully staffed and doing their part to end the impunity that has for far too long been associated with dictators and mass slaughter.

Gaddafi has faced judicial challenges before -- particularly after the bombing of Pan Am flight 103 over Lockerbie, Scotland -- and he managed to survive relatively unscathed. But this time, justice is not focused just on Gaddafi's associates and henchmen. This time justice is focused squarely on a leader who has failed to notice that the trend of international justice is no longer in his favor. Whether he knows it or not, his days are numbered. And whether justice finds him in a courtroom in The Hague, or at the unpleasant end of a NATO-sponsored "kinetic" device, or by other means, an ICC warrant -- and thus the fact that Gaddafi will never again grace the halls of the United Nations General Assembly -- is a realization that the rule of law and the fight against impunity is slowly coming to mean something.

Mark V. Vlasic, an adjunct professor of law at Georgetown University Law Center and former White House Fellow to Secretary of Defense Robert Gates and Slobodan Milosevic prosecution trial team member, served on the U.S. delegation to the Pan Am 103 trial in the Netherlands and helped train the Iraqi judges that tried Saddam Hussein. He currently heads the international practice at Ward & Ward PLLC and serves as a senior fellow at Georgetown's Institute for Law, Science & Global Security. Peter Atlee is a law student at Georgetown University Law Center.